Filed: Apr. 09, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 4-9-2009 Gordeziani v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-2538 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Gordeziani v. Atty Gen USA" (2009). 2009 Decisions. Paper 1558. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1558 This decision is brought to you for free and open access by the Op
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 4-9-2009 Gordeziani v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-2538 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Gordeziani v. Atty Gen USA" (2009). 2009 Decisions. Paper 1558. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1558 This decision is brought to you for free and open access by the Opi..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-9-2009
Gordeziani v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2538
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Gordeziani v. Atty Gen USA" (2009). 2009 Decisions. Paper 1558.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1558
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2538
PAATA GORDEZIANI; KETEVAN GORDEZIANI;
JEMAL GORDEZIANI; GVANTSA GORDEZIANI,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A96-017-743, A96-017-744,
A96-017-745, A96-017-746
(U.S. Immigration Judge: Honorable Roxanne C. Hladylowycz)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 8, 2009
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
(Filed: April 9, 2009)
OPINION OF THE COURT
PER CURIAM.
Petitioners seek review of the Board of Immigration Appeals’ (“BIA”) final order
of removal. For the following reasons, we will deny the petition.
I.
The lead petitioner is Ketevan Gordeziani, and the others are her husband (Paata)
and their two children. All are natives and citizens of Georgia. They arrived in the
United States in December 2002 without valid documents and they concede removability
on that basis. They applied for asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”) on the basis of Ketevan’s involvement with the
Jehovah’s Witnesses. (There is some dispute about whether Ketevan is a full-fledged
member of the Jehovah’s Witnesses, but that dispute is immaterial to the issues on review
and we will assume that she is.)1
Before the Immigration Judge (“IJ”), petitioners presented testimony and other
evidence regarding civilian harassment of and violence against Jehovah’s Witnesses in
Georgia. Ketevan testified that she became involved with the Jehovah’s Witnesses in
2001. In September 2001, a mob armed with sticks and stones broke up a worship
meeting that she was attending with several other people, but she and the others escaped
unharmed through a back door. She attributed this attack to followers of a radical
Orthodox priest named Basil Magosvili. Shortly thereafter, she began receiving
anonymous death threats over the telephone. She testified that she usually received
multiple threats per day and may have received as many as 1,200 in all, both at the
1
Petitioners also applied on the basis of a nebulous claim by her husband, a former
police officer, that he feared harm from forces “inside and outside” the police department,
but they did not raise that claim before the BIA and have not raised it here.
2
family’s house and after the family moved in with her husband’s father, before finally
fleeing Georgia. Her husband testified in substantially the same manner. In addition to
their testimony, petitioners presented, inter alia, articles regarding the treatment of
Jehovah’s Witnesses and the Department of State’s International Religious Freedom
Reports from 2002 through 2006.
The IJ found petitioners not credible because she thought their testimony
implausible for several reasons, but she explained that she would have denied their claims
even if she believed them. The IJ concluded that petitioners had not suffered past
persecution and had not shown a well-founded fear of future persecution. In particular,
the IJ noted that Basil Magosvili and another of his followers had been arrested,
convicted and imprisoned for fomenting religious-based violence, and that his “followers
have in many ways been demobilized.” The IJ also concluded that petitioners had failed
to meet their higher burden of proof for purposes of withholding of removal and CAT.
On appeal, the BIA did not address the adverse credibility finding, but stated that it
“adopted” the IJ’s decision “insofar as the [IJ] found that even assuming the credibility of
the testimony presented, the respondents failed to establish eligibility for relief.” The
BIA then explained that petitioners had shown neither past persecution nor a “well-
founded fear of harm rising to the level of persecution by persons the government is
unwilling or unable to control.” The BIA further explained why it believed that the
potential harm mentioned in the most recent country report did not rise to the level of
3
persecution and could not be attributed to the Georgian government. Petitioners seek
review.2
II.
In their briefs, petitioners have expressly abandoned their CAT claim, have not
addressed their claim for withholding of removal, and have conceded that they did not
suffer past persecution, which would have made them presumptively eligible for asylum.
Thus, we review only their claim that they have a well-founded fear of future persecution
if returned to Georgia.
In order to succeed on that claim, petitioners bore the burden of establishing that
their fear of mistreatment on return to Georgia is both subjectively genuine and
objectively reasonable—i.e., that mistreatment is a reasonable possibility, such that a
reasonable person in their situation would fear it. See Sioe Tjen Wong, 539 F.3d at 232.
They also bore the burden of establishing that such mistreatment both rises to the level of
2
We have jurisdiction to review petitioners’ final order of removal under 8 U.S.C. §
1252(a)(1). Our review extends only to the BIA’s decision but, because the BIA both
adopted a portion of the IJ’s decision and engaged in its own analysis, we review both the
IJ’s and BIA’s reasoning. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).
We review the BIA’s factual findings for substantial evidence and must treat them “as
‘conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.’” Sioe Tjen Wong v. Att’y Gen.,
539 F.3d 225, 230 (3d Cir. 2008) (citations
omitted). We have plenary review over its conclusions of law, subject to established
principles of deference on agency review. See
id. at 231. In conducting our review, we
assume that petitioners’ testimony was credible because the BIA neither adopted the IJ’s
adverse credibility determination nor made one of its own. See
Kayembe, 334 F.3d at
234-35.
4
persecution and is attributable either to the Georgian government or to forces that it is
unable or unwilling to control. See id. at 232-33.
Here, the IJ concluded that petitioners’ fear of persecution is not objectively
reasonable because the imprisonment of Basil Magosvili and the 2006 country report
indicate that petitioners have “nothing to fear” if returned to Georgia.3 The BIA adopted
that conclusion. In addition, it concluded that the harm petitioners fear does not rise to
the level of persecution because the 2006 country report describes only “sporadic
harassment and occasional threats,” and that such actions could not be attributed to the
Georgian government or forces that it is unable or unwilling to control. Either of those
conclusions, if supported by substantial evidence, would be sufficient to support the
BIA’s ruling. Petitioners raise no challenge in their briefs to the first of these
conclusions, so we could deny their petition on that basis alone. In any event, our review
of the record confirms that the BIA’s second conclusion is supported by substantial
evidence.
The BIA based this conclusion on the 2006 country report, which, as the BIA
noted, states that the Georgian government and Orthodox Church are separate under the
3
The IJ also concluded that petitioners failed to prove that they “will be” subjected to
future persecution. As explained above, the relevant standard is whether persecution is
reasonably possible, not whether petitioners have “nothing to fear” or “will be”
persecuted. See Sioe Tjen Wong, 539 F.3d at 232. Earlier in her decision, however, the
IJ recited the correct standard, (IJ Dec. at 9), so there is no basis to conclude that the IJ (or
BIA) applied the wrong legal standard in this regard, as petitioners argue for the first time
in their reply brief.
5
Georgian constitution and indicates that “the government in Georgia has taken steps to
prosecute, convict, and jail religious radicals” who participated in religious-based
violence and harassment. (BIA Dec. at 2.) In particular, as both the IJ and BIA noted,
the 2006 State Department describes the arrest and conviction of Basil Magosvili and
another of his followers, who have been sentenced to six and four years imprisonment,
respectively. The report also describes increasing efforts on the part of the Georgian
government to prevent religious-based violence and a continuing decrease in such
violence. See, e.g., A.288 (noting that “[p]olice were generally more responsive to the
needs of religious minorities”); A.289 (noting that “[t]he criminal code specifically
prohibits interference with worship services [and] persecution of a person based on
religious faith or belief,” and that the governmental agencies “have become more active
in the protection of religious freedom”); A.290 (noting that “Jehovah’s Witnesses no
longer believed it necessary to hold services in private homes for security reasons”).
Petitioners do not directly argue that the BIA erred in concluding that such
harassment as continues is not attributable to governmental action or acquiescence.
Instead, they argue that the IJ’s fundamental misunderstanding of the facts and the BIA’s
adoption of the IJ’s conclusion effectively denied them meaningful review. Petitioners
raise four specific arguments in this regard, but only the last touches on the issue of
6
whether the mistreatment they fear is attributable to the Georgian government.4
Petitioners’ fourth argument takes issue with the IJ’s conclusion that they “have
nothing to fear” if returned to Georgia. Petitioners argue that “no reasonable fact finder
reading the State Department reports as well as the other human rights reports in the
record could find that a Jehovah’s Witness returning to Georgia would have nothing to
fear.” In particular, they note that the 2006 report, though stating that attacks on
Jehovah’s Witnesses and other religious minorities continued to decrease, reports several
instances of continuing harassment and attacks. They further note that the report states
that “[o]n some occasions . . . local police were slow to prevent the harassment” of
Jehovah’s Witnesses and describes one incident in a particular town in which “numerous
4
Petitioners’ first three arguments are not relevant to any issue on review. Petitioners
argue first that the IJ erred in concluding that they did not have “anything happen to
them” in Georgia when in fact the lead petitioner was driven from a worship service by a
mob and received threatening telephone calls. The IJ, however, expressly made this
statement in ruling that petitioners had not suffered past persecution, as they now concede
(and in any event clearly was aware of petitioners’ claims in that regard). Petitioners’
second argument is that the IJ failed to credit their explanation for not reporting the
telephone calls to police and believed that they “did nothing” in response to the threats,
though they in fact moved to the husband petitioner’s parents’ house. The IJ, however,
expressly relied on these circumstances only for purposes of petitioners’ credibility,
which we assume, and in any event specifically noted the move that petitioners claim she
overlooked. (IJ Dec. at 12.) Finally, petitioners argue that the IJ misunderstood the lead
petitioner’s testimony about when she became involved with the Jehovah’s Witnesses and
wrongly held against them the fact that her children remained without harm in Georgia
during a period before she had become involved with the Jehovah’s Witnesses. Though
this argument is otherwise well-taken, it is irrelevant to the BIA’s conclusion that the
mistreatment petitioners fear cannot be attributed to the Georgian government or forces
that it is unable or unwilling to control.
7
investigations were launched . . . into reports that the police had been slow to respond to
the violence and then themselves threatened the Jehovah’s Witnesses.” (A.293.) Finally,
they point to other articles noting that, although the Georgian government has arrested
and convicted Basil Magosvili, it has not prosecuted others who participated in religious-
based harassment and violence in the past. Thus, petitioners implicitly take issue with the
BIA’s conclusion that any mistreatment they fear is not attributable to the Georgian
government or forces it is unable or unwilling to control.
As explained above, however, the BIA’s conclusion is supported by substantial
evidence. The fact that some attacks continue despite the Georgian government’s
increasingly-effective efforts to prevent them does not provide a basis to disturb the
BIA’s ruling. Neither does the isolated incident described in the 2006 report in which
police “threatened” Jehovah’s Witnesses—an incident, as the report states, into which
“numerous investigations were launched.” (A.293.) Finally, although the Georgian
government may not have prosecuted others who participated in religious-based
harassment or violence in the past, the reports confirm that the government is actively
attempting to prevent such conduct in the future and that its efforts have been increasingly
successful. In sum, the evidence of record arguably would have supported a conclusion
contrary to the BIA’s for the reasons argued by petitioners, but it does not compel one.
See Kayembe, 334 F.3d at 236-37 (explaining that State Department report that “cuts both
ways” nevertheless constitutes substantial evidence when it would not compel a
8
reasonable adjudicator to draw a contrary conclusion). Accordingly, the petition for
review will be denied.
9
