Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
11-1-2004
Ambartsoumian v. Atty Gen USA Precedential or Non-Precedential: Precedential
Docket No. 03-1961
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Recommended Citation "Ambartsoumian v. Atty Gen USA" (2004). 2004 Decisions. Paper 114. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/114
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UNITED STATES COURT OF Attorney for Petitioner APPEALS FOR THE THIRD CIRCUIT _____________________ PETER D. KEISLER Assistant Attorney General, Civil NO. 03-1961 Division ______________________ ANTHONY W. NORWOOD Senior Litigation Counsel GAREGIN AMBARTSOUMIAN; JENNIFER A. LEVINGS (ARGUED) NADIA AMBARTSOUMIAN; United States Department of Justice KARINA AMBARTSOUMIAN; Office of Immigration Litigation RIMMA AMBARTSOUMIAN, Ben Franklin Station Petitioners P.O. Box 878 Washington, DC 20044 v. Attorneys for Respondent JOHN ASHCROFT, ATTORNEY GENERAL ________________________ OF THE UNITED STATES OF AMERICA, OPINION OF THE COURT Respondent ________________________ ______________________ BECKER, Circuit Judge. On Petition for Review of Orders of the Board of Immigration Appeals This is a petition by Garegin (Board Nos. A75-006-540; Ambartsoumian (“Garegin”), his wife A75-006-541; Nadia Ambartsoumian (“Nadia”), and their A75-006-543; A75-559-426) two children, for review of an order of the ________________________ Board of Immigration Appeals (BIA) denying them asylum, withholding of Argued October 5, 2004 removal, and protection under the Convention Against Torture. It is, in a Before: SLOVITER, BECKER and way, a tale of two countries—the Ukraine STAPLETON, Circuit Judges and Georgia. Garegin is a Georgian citizen of Armenian and Ossetian parentage. (Filed: November 1, 2004) Nadia is a Ukrainian citizen and a Baptist. The Ambartsoumians married in the Ukraine in 1989, and spent much of the next three years shuttling back and forth Abkhazia and South Ossetia.1 The record between their two native countries. They contains evidence that in 1989 the arrived in the United States in 1996, after Ambartsoumians received death threats a sojourn in Canada, and applied for from Georgian nationalists; that in 1990 asylum, claiming that they had faced both Nadia and Garegin were badly persecution in both Ukraine and Georgia beaten; and that in 1992, upon his return and would be persecuted in either country from Ukraine, an attempt was made to if obliged to return. conscript Garegin into the Georgian army. However, the Ambartsoumians’ principal The case for persecution in the contention before us, supported by an Ukraine is extremely weak. It is largely expert witness— a professor specializing in predicated on events that took place, and the history and politics of the region—is on policies and attitudes that existed, that ethnic hostility toward Armenians and before the breakup of the Soviet Union and the establishment of an independent Ukraine. Except for an alleged beating in 1 1991 and a putative attempt to kidnap the Abkhazia is a region in northwest Ambartsoumians’ children in 1992, the Georgia, along the coast of the Black Sea record includes nothing more than and the Russian border. It declared sporadic veiled threats and a lack of independence in 1992, and was the scene economic opportunity in the Ukraine. The of a bloody war in 1992-1993. See A Ambartsoumians did adduce evidence that Matter of Russian Honour—Russia, The the climate in the Ukraine is inhospitable Economist, Aug. 21, 2004, available at to Armenians. However, the record, 2004 WL 62019076. South Ossetia is in including State Department reports on north-central Georgia, bordering on the country conditions, reflects a total change North Ossetia region of Russia. It in the governmental policies of the declared independence from Georgia in Ukraine since 1991, and nothing in the 1990, intending to reunite with North record suggests that the Ambartsoumians Ossetia; this sparked a war lasting until would now be persecuted in the Ukraine 1992. See Fact Sheet: Georgia, Dep’t St. for either their ethnicity or their religious Dispatch, May 9, 1994, at 296, available beliefs. at 1994 WL 2848944. Currently, Russian and UN peacekeepers maintain truces in The case for persecution in Georgia Abkhazia and South Ossetia, see CIA seems more complicated in light of the World Factbook—Georgia, at fluid political situation in the North http://www.cia.gov/cia/publications/factb Caucasus and the continuing tensions in ook/geos/gg.html, but the government of Georgia still does not control those areas, see Putting Out More Flags— Georgia, The Economist, July 24, 2004, available at 2004 WL 62018768.
2 religious hostility toward non-Orthodox been pertinent, intervening events in the Christians would now render the country of removal; and (2) whether the Ambartsoumians subject to persecution in issues on review are ‘time sensitive’ in that Georgia. changes in conditions over time may affect the resolution of the issues.” The full text The latest State Department of the procedures are set forth in the Country Report in the record, for 1998, Appendix to this opinion. We commend counters the expert’s opinion. We the Attorney General and OIL on this therefore asked the parties to comment on reform. the adequacy of the administrative record, given the current situation in Georgia, in N o t w i t h s ta n d i n g the new light of our opinions in Berishaj v. procedures, the OIL concluded that the Ashcroft, 378 F.3d 314, 328-31 (3d Cir. record in this case does not warrant a 2004), and Gambashidze v. Ashcroft, 381 remand to the BIA. Concomitantly, the F.3d 187, 193-94 (3d Cir. 2004). In these Ambartsoumians’ counsel, at oral cases, we expressed our concerns about argument, agreed that the record before the being forced to use stale administrative agency was sufficient for this Court to records to decide petitions seeking to consider, although he argued that it avoid deportation to countries of origin compelled us to reject the IJ’s findings. where asylum applicants might be Since both parties seem to agree that the persecuted. staleness of the record does not present any difficulties here, we reach the merits In response to our request for of the persecution claims. comment, the Attorney General reported that the Department of Justice has The government submits that the responded to Berishaj by implementing a record does not compel the conclusion that new procedure pursuant to which the there was past persecution, or that the Office of Immigration Litigation (OIL), in Ambartsoumians will face persecution if consultation with its client agencies, now returned to Georgia. For the reasons that screens out and seeks to remand cases follow, we agree. As will appear, where records are out of date and not important to this conclusion are the facts appropriate for judicial review. All OIL that: (1) the Ambartsoumians’ expert, Dr. attorneys have been instructed to consider Ronald Suny, was too general and broad- whether the record in each case assigned to brushed to overcome the 1998 Country them is so out of date as to justify a Report’s account of greatly improved remand. If the record is stale, the OIL conditions for Armenians in Georgia; (2) attorney is to bring the case to the attention Suny acknowledged that the situation in of the Director of OIL, who may seek a Georgia had significantly improved and remand as a matter of discretion. The that the government was not a likely factors that OIL will use in assessing old persecutor; and (3) the real problem was records include “(1) whether there have only that Georgia was a “weak state”
3 where Armenians are not popular. Because we find that the Ambartsoumians are not eligible for asylum, we need not For these reasons, the Petition for consider their eligibility for withholding of Review will be denied. removal under this stricter standard. See I. The Legal Framework Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004). The Attorney General may, in his discretion, grant asylum to any alien if he The standard for CAT protection is determines that the alien is a refugee. 8 different from that for asylum or U.S.C. § 1158(b)(1). To demonstrate that withholding of removal; it requires proof he or she is a refugee, an asylum applicant that the applicant is “more likely than not” must establish that he or she is unable or to be tortured, 8 C.F.R. § 1208.16(c)(2), unwilling to return to his or her native but does not require any showing that the country because of “persecution or a well- torture is on account of any protected founded fear of persecution on account of ground. See Lukwago v. Ashcroft, 329 F.3d race, religion, nationality, membership in 157, 183 (3d Cir. 2003). a particular social group, or political The Immigration Judge denied the opinion.” 8 U.S.C. § 1101(a)(42)(A). A Ambartsoumians’ requests for relief, but showing of past persecution gives rise to a granted them voluntary departure. The rebuttable presumption of a well-founded Board of Immigration Appeals affirmed fear of future persecution. 8 C.F.R. without opinion, pursuant to 8 C.F.R. § 1208.13(b)(1). The burden of proving § 1003.1(e)(4).2 Therefore, we review only persecution is on the asylum applicant. the decision of the Immigration Judge. 8 C.F.R. § 1208.13(a). Gao v. Ashcroft, 299 F.3d 266, 271 (3d The Ambartsoumians’ application Cir. 2002). Our review is limited by the for withholding of removal is based upon “substantial evidence” standard, which 8 U.S.C. § 1231(b)(3)(A), which forbids states that “the administrative findings of removal if “the alien's life or freedom fact are conclusive unless any reasonable would be threatened in that country adjudicator would be compelled to because of the alien’s race, religion, conclude to the contrary.” 8 U.S.C. nationality, membership in a particular § 1252(b)(4)(B). The determination that an social group, or political opinion.” To asylum applicant faced past persecution, or qualify for withholding of removal, the applicant must show “that it is more likely than not that he will face persecution if he 2 In his brief, Ambartsoumian suggests is deported.” Li Wu Lin v. INS, 238 F.3d that the Board’s policy of affirming 239, 244 (3d Cir. 2001) (citing INS v. without opinion denies him due process. Cardoza-Fonseca, 480 U.S. 421, 430 This argument is foreclosed by our recent (1987)). This standard is stricter than the decision in Dia v. Ashcroft, 353 F.3d “well-founded fear” standard for asylum. 228, 238-45 (3d Cir. 2003) (en banc).
4 has a well-founded fear of future Boyko, was a Baptist preacher who was persecution, is a factual conclusion subject imprisoned and exiled to Siberia during to this deferential review. Gao, 299 F.3d at the Soviet era. Nadia suffered for her 272. We therefore must uphold the IJ’s father’s beliefs: as a child, she was findings if they are “supported by interrogated by the KGB and abused by reasonable, substantial, and probative her classmates, and she lived with her evidence on the record considered as a father in Siberia for three years. Nikolai whole.” INS v. Elias-Zacarias, 502 U.S. Boyko was in Siberia until 1993. 478, 481 (1992). Garegin and Nadia met in 1988 in The Immigration Judge (IJ) heard Odessa, Ukraine, Nadia’s birthplace, while testimony from Garegin and Nadia Garegin was on a work assignment. They Ambartsoumian, and from their expert married in 1989, and returned to Garegin’s witness, Dr. Suny. He also reviewed the homeland, but soon moved back to U.S. Department of State Country Reports Ukraine to escape ethnic tensions in for Georgia and Ukraine for 1998, and the Georgia. Garegin at first found work in State Department Asylum Profiles for Odessa, but alleges that he was harassed those countries. He relied heavily on the and eventually fired because of his “objective evidence” of these reports. This nationality. He claims that the Ukrainian reliance was justifiable, as we have held courts refused to help him and that he was that State Department reports may unable to find any other permanent constitute “substantial evidence” for the employment. Ukraine, too, was suffused purposes of reviewing immigration with ethnic nationalism, and Garegin decisions. Kayembe v. Ashcroft, 334 F.3d claims that the family was repeatedly 231, 235 (3d Cir. 2003); cf. Lal v. INS, 255 threatened and insulted. In 1990, Garegin F.3d 998, 1023 (9th Cir. 2001) (describing was beaten by Ukrainian nationalists, and State Department country reports as the decided to return to Georgia so as not to “most appropriate” and “perhaps best put his family at risk. resource” on country conditions). He returned to the Ukraine later that Based on the record, the IJ year. He claims that he stayed in hiding in determined that the Ambartsoumians had his wife’s house for two months, failed to establish a well-founded fear of apparently because he was in the Ukraine persecution in either Georgia or the illegally. Eventually, the police raided his Ukraine. We examine his decision as to house, arrested him, beat him, and told him each of these countries in turn. that this treatment would continue unless he left the Ukraine. He also claims that II. The Ukraine someone attempted to kidnap the couple’s Nadia Ambartsoumian claims that two children, and that Nadia was beaten she was persecuted in the Ukraine because and threatened because of her non- of her Baptist faith. Her father, Nikolai Ukrainian husband. He once again
5 returned to Georgia in 1992, but quickly instances of discrimination against came back to the Ukraine to avoid serving Evangelicals, but nothing that would rise in the Georgian army. On Garegin’s return, to the level of persecution. Ukraine 1998 neighbors again attacked and threatened Country Report 1589. And Nadia the Ambartsoumians, and Nadia suffered a Ambartsoumian admitted during the miscarriage after one such attack. asylum hearing that her parents and four of her siblings still live in the Ukraine and The Ambartsoumians left the practice the Baptist faith, and presented no Ukraine for Canada in 1992. While in evidence that they are currently persecuted Canada, they applied for refugee status. for their beliefs. In fact, though she said They left Canada for the United States in that her father had not received permission 1996, before Canadian officials had taken to buy a house of prayer, she admitted that final action on their asylum application. he currently has a church in Odessa. They surren dered to imm igratio n Reading the record as a whole, we find no authorities in Champlain, NY, and compelling reason to reverse the IJ’s requested asylum. finding that Nadia Ambartsoumian does The above facts and allegations not have a well-founded fear of suggest two possible bases for the claim of persecution in the Ukraine.3 persecution in the Ukraine, each of which Second, Garegin claims that he and the IJ rejected. his family suffered persecution because he First, Nadia claims that she suffered was not a native Ukrainian. The only persecution because of her religious evid e n c e f o r t h is w a s the background. The IJ agreed that Nadia’s Ambartsoumians’ own testimony. The IJ family was persecuted during the Soviet era. But he found that Nadia herself did 3 not suffer the same degree of persecution The IJ did not clearly state whether he as her father, and that the post-Communist had found that Nadia had not suffered Ukraine was much more hospitable to past persecution, or whether he found Baptists. that she had suffered such past persecution, but that the presumption of There is substantial evidence in the future persecution was rebutted by record to support this conclusion. The evidence of a change in country State Department Asylum Profile states conditions since the fall of the Soviet that the Communists repressed Evangelical Union. See 8 C.F.R. § 1208.13(b) Christians, but that “[w]ith the overthrow (1)(i)(A). Such a failure to make specific of the Communist regime in 1991, findings generally makes review more Evangelicals are no longer denied religious difficult, but in the instant case we find freedom and they worship without that either conclusion would be interference.” Ukraine 1997 Asylum supported by substantial evidence, so we Profile 8. The Country Report notes some do not inquire further.
6 again relied on the State Department reasonably have concluded that Garegin reports, which indicate that the Ukraine’s was not persecuted for his nationality, but nationality policy “meet[s] international rather that he had legal difficulties due to standards required for the protection of his own failure to obtain the proper minority groups,” Ukraine 1997 Asylum permissions. There is no evidence in the Profile 3, although they also describe record to suggest that Garegin ever sought “ [ f ] r e q u ent harassment of rac ial legal status in the Ukraine, as explained in minorities,” especially dark-skinned Asian the margin, or that he would have been and African minorities. Ukraine 1998 prevented from doing so because of his Country Report 1590. While this State nationality. 4 Garegin’s difficulties with his Department evidence may be equivocal, employers and with the police certainly do the IJ was entitled to draw from it the not amount to ethnic persecution if they conclusion that Armenians do not face persecution in the Ukraine, see Kayembe, 334 F.3d at 236-37, and there is no 4 The Ambartsoumians introduced into significant evidence in the record to the the record evidence of the Ukrainian law contrary. of citizenship, apparently to prove that Moreover, the IJ found that Garegin is currently ineligible for Garegin’s troubles in the Ukraine stemmed Ukrainian citizenship. This, however, not from his ethnicity but from his lack of does not prove that Garegin is ineligible official permission to live and work in that for permission to live and work in the country. This finding, too, is well Ukraine. In fact, the citizenship law supported. Both Garegin’s and Nadia’s requires that candidates demonstrate own testimony could be read as indicating “continuous residence on legal grounds that Garegin was unable to work, and was on the territory of Ukraine throughout the harassed by the police, mainly because he past five years.” This requirement had failed to obtain proper legal naturally suggests that non-citizens may documents and permissions. Garegin live legally in the Ukraine. testified that he was fired from his job We also note that, even if Garegin “[b]ecause I’m not [a] permanent resident Ambartsoumian did face difficulties in of the Ukraine. And plus, I am Armenian.” obtaining the proper work and residency He later testified that he lived in hiding in permits, this fact alone would not his wife’s house because people had told necessarily rise to the level of him that he was in the Ukraine illegally. persecution. Cf. Ahmed v. Ashcroft, 341 Nadia gave several reasons for her F.3d 214, 218 (3d Cir. 2003) (holding husband’s inability to get a job, including that a stateless Palestinian in Saudi that he speaks no Ukrainian and that he Arabia did not suffer persecution due to lacked a propiska, or residency permit. his difficulty in obtaining work and From this testimony the IJ could residency permits).
7 were due only to his own failure to follow nationality, his family was in hiding, Ukrainian residency and labor laws. See apparently afraid of anti-Ossetian feeling Janusiak v. INS, 947 F.2d 46, 48 (3d Cir. among Georgians. Fearful for his own 1991). Thus the evidence as a whole does safety, Garegin returned to the Ukraine. not compel the conclusion that Garegin Again, his stay in the Ukraine did not last suffered persecution in the Ukraine. long, and Garegin once again returned to Georgia early in 1992. This time, when III. Georgia he arrived at the Tbilisi airport, he was To prove that they were conscripted into the Georgian army to persecuted in Georgia, the fight in the civil war in the Abkhazia Ambartsoumians presented their own region. He immediately was put on a bus testimony and that of an expert witness. to the front, but managed to escape that Their testimony indicates that they faced night, and fled back to the Ukraine. serious difficulties during the (generally The Ambartsoumians also short) periods that they spent in Georgia. presented the report and testimony of Dr. Garegin was born in Tbilisi, Ronald Suny, a professor at the Georgia, and is a Georgian citizen. He is University of Chicago and an expert on ethnically Armenian and Ossetian, and is modern Georgian and Armenian history an Armenian Christian, but he has visited and politics. Dr. Suny testified that Armenia only once, as a child. He claims President Zviad Gamsakhurdia’s policy that, because of his Armenian heritage, of “Georgia for the Georgians” had led to he was harassed and beaten while serious problems for Armenians in the growing up in Georgia, and while early 1990s. 5 He also noted that serving as a conscript in the Soviet army. After meeting Nadia in the Ukraine, 5 Garegin returned with her to Tbilisi in Gamsakhurdia, an ethnic nationalist, 1989. With ethnic tensions on the rise in ruled Georgia from 1990 through 1992. Georgia, the couple claims that they He was overthrown in January 1992, and received death threats, and that Nadia replaced by the more moderate Eduard was beaten by neighbors because they Shevardnadze. See Georgia 1995 Asylum were not ethnic Georgians. As discussed Profile 4. Though it is not in the above, they left for the Ukraine, but administrative record, we take judicial Garegin returned to Georgia in 1990 notice of the fact that President because of difficulties he encountered Shevardnadze stepped down in during his short time in the Ukraine. November 2003, after the final BIA action in this case. He was replaced by When he returned to Georgia, Mikhail Saakhasvili, the current Garegin found a nation divided by the president. See The Comicopera Ends, civil war in the region of South Ossetia. The Economist, May 8, 2004, available As his mother was Ossetian by at 2004 WL 62017854.
8 Armenians became unpopular during the Gamsakhurdia regime of 1990-1992, Georgia’s civil conflict in Abkhazia, he concluded that there was no evidence because they were perceived as having of discrimination against non-Georgians sided with the Abkhazians. But Dr. Suny since then, and that, under the rule of acknowledged that conditions in Georgia President Shevardnadze, Armenians no had improved since the Gamsakhurdia longer faced discrimination or years, although he noted that the persecution. Shevardnadze government, see supra These conclusions are fully note 5, was too weak to keep order and supported by the State Department protect ethnic minorities. He asserted that reports. While the Asylum Profile for the central government had effective Georgia noted that, during the control only of Tbilisi, the capital city, Gamsakhurdia era, “acts against and that even within Tbilisi the Armenians on a personal basis may have government had only limited control over taken place,” it concluded that there was its citizens, and even over its police no evidence of “actions taken against forces. As a result, he represented that Armenians on the basis of their there were a number of incidents of ethnicity” during that period. Georgia unofficial violence against Armenians 1995 Asylum Profile 5 (emphasis added). even since Shevardnadze came to power. More importantly, it noted that “from However, Dr. Suny confessed that 1993 we have seen no evidence of he had no real familiarity with the governmental discrimination against the Ambartsoumians’ situation, but stated non-Georgian population.” Id. at 4. that Garegin would have difficulty In evaluating the evidence offered getting travel documents to return to by the Ambartsoumians and Dr. Suny, Georgia, that he would face economic the IJ found that it did not establish that troubles upon his return, and that the the Ambartsoumians experienced past government and police would not be persecution in Georgia. He did not zealous in protecting him from other explicitly make an adverse credibility Georgians. finding, though he concluded that some Having heard all this testimony, aspects of the Ambartsoumians’ the IJ determined that the testimony were “inaccurate.” Ambartsoumians had not suffered Importantly, he noted that Dr. Suny had persecution in Georgia on account of agreed that relations between Georgians their ethnicity. He relied heavily on the and Armenians had historically been State Department reports, noting that amicable, and that the Shevardnadze they showed a “historic amity between government had largely restored those Armenians and Georgians.” While he relations after the Gamsakhurdia conceded that there was some troubles. The IJ also found that Suny’s discrimination against Armenians during concerns about the dangers facing
9 Armenians were not supported by “the civil war against the region of Abkhazia. weight of objective evidence.” He But conscription by a sovereign nation determined that, even during the cannot constitute persecution under 8 Gamsakhurdia years, there was little or U.S.C. § 1101(a)(42). Lukwago v. no government-sponsored persecution of Ashcroft, 329 F.3d 157, 168-69 (3d Cir. Armenians, and that the Ambartsoumians 2003). Thus the facts that life in Georgia “avoided the excesses of the was difficult due to a civil war, and that Gamsakhurdia regime by relocating to Garegin Ambartsoumian was conscripted Ukraine.” to fight in that war, do not in themselves establish past persecution. As noted above, the IJ’s reliance on “objective evidence” in the form of We do not deny that the State Department reports was justifiable Ambartsoumians’, and Dr. Suny’s, under our decision in Kayembe. Upon descriptions of life in Georgia are reviewing the testimony and affidavits troubling. But we do not believe that presented by the Ambartsoumians, and these allegations rise to the level of the State Department reports considered persecution required by § 1101(a)(42) by the IJ, we are unable to conclude that and by Fatin. Thus, the record does not the record would compel any reasonable compel us to set aside the IJ’s finding adjudicator to reject the IJ’s findings. that the Ambartsoumians did not suffer Even if we accept, as the IJ apparently persecution in Georgia, or his did, that the Ambartsoumians determination that they had not encountered difficult conditions in established a well-founded fear of future Georgia, that would not necessarily persecution there. support a finding of past persecution. IV. The State of the Record Certainly Georgia was, and continues to be, involved in a number of civil The record in this case consists of conflicts. In fact, the IJ specifically the Ambartsoumians’ testimony about found that the Ambartsoumians’ events predating 1992, and of State principal reason for leaving Georgia was Department reports from 1995 through the civil war. But we have held that the 1998. Concerned about the long delay standard for persecution is high, and that between this record and our review of the “‘generally harsh conditions shared by case, we requested supplemental briefing many other persons’ do not amount to on the issues raised by this Court in persecution.” Fatin v. INS, 12 F.3d 1233, Berishaj v. Ashcroft, 378 F.3d 314, 328- 1240 (3d Cir. 1993) (quoting Matter of 31 (3d Cir. 2004), and reiterated in Acosta, 19 I. & N. Dec. 211, 222 (BIA Gambashidze v. Ashcroft, 381 F.3d 187, 1985)). Ambartsoumian alleges that, on 193-94 (3d Cir. 2004). The government’s his return to Georgia in 1992, he was submission in response to this request pressed into military service in Georgia’s informed the Court of the new, and
10 salutary, screening policy described minorities than was the Shevardnadze above (and set forth fully in the government. Both parties rely on the Appendix). record before the IJ and the BIA, and we are therefore satisfied that our concerns The Department of Justice asserts in Berishaj and Gambashidze are that it has followed its screening policy inapplicable here. in this case, but has determined that conditions have not changed significantly V. Conclusion enough to make the record here obsolete On reviewing all the evidence in and require a remand. Mindful of our the record, we are unable to conclude obligation to base our review on the that the evidence as a whole would contents of the administrative record, see compel any reasonable adjudicator to Berishaj, 378 F.3d at 330, we are find that the Ambartsoumians suffered unwilling to take judicial notice of the persecution in either Georgia or the most recent State Department reports on Ukraine, or that they have a well- Georgia and the Ukraine, which are founded fear of future persecution or easily available on the Internet, see torture in either of those countries. http://www.state.gov/g/drl/rls/hrrpt/2003/ Therefore, we will deny the petition for . Instead, we simply note that neither of review. the parties have provided any evidence or argument that would counsel a remand to Appendix open the record in this case. At oral To clarify the new policy of the argument, counsel for petitioners Office of Immigration Litigation (OIL), specifically disclaimed the argument that we set forth, in full (including footnotes), the administrative record in this case was Part II of the government’s supplemental insufficient because of staleness; instead, memorandum in the instant case: he argued that the evidence in the record compels reversal. And petitioners have After receiving a copy of not filed a motion to reopen the record the Court’s decision in before the BIA, pursuant to 8 C.F.R. Berishaj, the Office of the § 1003.2(c). The government submits Attorney General and the that no material changes have occurred in Civil Division immediately Georgia or the Ukraine. started to consider how best to address the Court’s In short, no serious suggestion has concerns. The Deputy been made that conditions in the Ukraine Assistant Attorney General have changed, in any respect material to for OIL consulted with the asylum, since the BIA’s decision; while Executive Office of Georgia has a new president, see supra Immigration Review note 5, neither party has suggested that (EOIR) (which includes the the new regime is any worse for ethnic
11 Board of Immigration remands would add delay Appeals (BIA) and the to the adjudication of some Immigration Judges (IJ)) aliens’ claims, and and the Department of although it is possible that Homeland Security (DHS) a remanded case would (which litigates cases in become stale again after front of the BIA and IJs) 6 the record is supplemented, to determine the reasons this proposal appeared to for the stale records and to be a sound method for explore possible solutions. improving the quality of Based on these meetings records in appropriate and OIL’s own analysis of cases. The Assistant the issue, he proposed to Attorney General agreed, the Assistant Attorney and so did the Office of the General of the Civil Attorney General. Division that, as a matter of Accordingly, at the “prosecutorial discretion,” direction of the Deputy the Government should Assistant Attorney General screen out and seek to for OIL, the Director of remand cases whose OIL has informed all records are out-of-date and attorneys under his not appropriate for judicial supervision that, when a review.7 Although such case is assigned to them, they should consider 6 After its creation, DHS assumed the whether the age and quality responsibilities of the former of the record counsels in Immigration and Naturalization Service, favor of a remand. If a including the prosecution of cases before record is old and deficient, the BIA and IJs. The Civil Division, the attorney should through OIL, continues to defend the promptly bring it to the BIA’s decisions in the federal courts. attention of the Director of
7 The decision to seek a remand in a particular case would, of course, be conditions have improved, weakening discretionary. The law does not require the alien’s claim). Rather, the prescribed the Government to screen out and seek regulatory mechanism for responding to remands in cases in which country stale records is the motion to reopen. See conditions have gotten worse, 8 C.F.R. § 1003.2(c). If conditions in a strengthening an alien’s asylum claim country worsen, the alien has the burden (or, for that matter, cases in which of filing the motion to reopen. Id.
12 OIL, who, in consultation the alien was improperly with the OIL’s client denied the opportunity to agencies (EOIR and DHS), perfect and preserve the will exercise his discretion record on his claims.8 OIL on whether to seek a attorneys will consider remand in the case. these factors in all subsequent cases in light of The Director of OIL Berishaj. also notified all OIL attorneys of the factors that Moreover, EOIR they should consider in has also taken steps to assessing whether a record respond to the Court’s is suitable for judicial concerns. Even before review. Among these Berishaj, the BIA factors are: (1) whether remanded cases from there have been pertinent, countries where conditions intervening events in the were fluid, thus enabling country of removal; and (2) the parties to supplement whether the issues on the record. After meeting review are “time sensitive” with DHS and the Deputy in that changes in Assistant Attorney General conditions over time may for OIL, EOIR agreed to affect the resolution of the continue to consider issues. In addition, because additional remands. OIL’s screening of cases Additionally, EOIR is should not create a currently contemplating windfall for aliens who other proposals, including, have failed to meet their burdens of proof or to 8 pursue the procedural These factors reflect the fact that an opportunities available to old record is not necessarily a deficient them, OIL attorneys should record. For example, country conditions determine in each case may not have changed despite the whether the alien bears the passage of time (conversely, a record burden of proof, whether could be deficient even if not much time the alien has made efforts has passed). Moreover, even if country to perfect and preserve the conditions have changed, a remand might record on his claims not be appropriate, if, say, none of the through timely motions to issues in the case is time sensitive or if the agency, and whether the other factors in the analysis counsel against remand.
13 if an appropriate case arises, having the BIA issue a published decision remanding a case with a stale record. The Members of the BIA have already discussed en banc this Court’s decision, and are continuing to do so. The Respondent will inform the Court of any proposals that are adopted.