Goguadze v. Atty Gen USA

106 F. App'x 800
Court of Appeals for the Third Circuit·Decided August 5, 2004·No. 03-2245·Unpublished

Opinion

OPINION OF THE COURT

SMITH, Circuit Judge.

Grigol A. Goguadze petitioned for review of the decision of the Board of Immigration Appeals denying his motion for reconsideration and to reopen his claim for asylum, for withholding of removal and for relief under the United Nations Convention Against Torture. 1 We will deny the petition for review.

Goguadze, a physician from the Republic of Georgia, filed an application for asylum in the United States, withholding of removal to the Republic of Georgia, and relief under the United Nations Conven *802 tion Against Torture. Goguadze claimed that he was a political refugee because he had supported President Eduard Shevardnadze’s former defense minister Tingiz Ketovani. As a result of that support, Go-guadze alleged, he was fired from his position as chairman of the local hospital’s emergency department. In addition, Go-guadze claimed that he was beaten, arrested, detained, and interrogated on several occasions.

The Immigration Judge (“IJ”) found that Goguadze’s beliefs were “like most Georgian citizens,” and that his activities were not so political that they would “draw the interest of the government.” In addition, the IJ found that the events of which Goguadze complained did not constitute persecution, explaining that Goguadze’s family was unharmed and that he later regained his position as the chairman of the local emergency department. Although Goguadze testified that he had been arrested and detained on two occasions, the IJ found that Goguadze’s claim of persecution was exaggerated inasmuch as he remained in Georgia unharmed for more than two years after his arrest in May 1996. Goguadze’s “primary motivation” for seeking asylum in the United States, according to the IJ, was to join his childhood friend who had immigrated to America and had been granted leave to remain through a lottery program.

The BIA affirmed the IJ’s decision without opinion. Goguadze filed a timely motion for reconsideration and to reopen his case. After the BIA denied the motion, Goguadze petitioned for review of that order.

The BIA had jurisdiction over Go-guadze’s motion to reopen and reconsider pursuant to 8 C.F.R. § 1008.2. We have appellate jurisdiction over the BIA’s denial of the motion for reconsideration and to reopen because it is a final order of removal for purposes of 8 U.S.C. § 1252(b)(4)(B). Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir.2002).

A motion for reconsideration must “specify the errors of law or fact in the previous order and shall be supported by pertinent authority.” 8 U.S.C. § 1229a(c)(5)(C); 8 C.F.R. § 1003.2(b)(1). Regulation 1003.2(a) provides that the “decision to grant or deny a motion to ... reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2(a). Accordingly, we review to determine if the BIA abused its discretion. “Discretionary decisions of the BIA will not be disturbed unless they are found to be ‘arbitrary, irrational or contrary to law.’ ” Tipu v. I.N.S., 20 F.3d 580, 582 (3d Cir.1994) (quoting Chung v. U.S. I.N.S., 602 F.2d 608, 612 (3d Cir.1979)).

Section 1229a(e)(6) allows an alien to file a motion to reopen which must “state the new facts that will be proven at a hearing to be held if the motion is granted.” 8 U.S.C. § 1229a(c)(6)(B). Regulation 1003.2(c) provides that a motion to reopen “shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). The regulation further provides that granting a “motion to reopen ... is within the discretion of the Board.” 8 C.F.R. § 1003.2(a). Thus, our review is for an abuse of discretion. See I.N.S. v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (holding that a motion to reopen under a regulation which was a predecessor of 8 U.S.C. § 1229a(c)(6) and 8 C.F.R. § 1003.2 was subject to review for an abuse of discretion).

The BIA denied Goguadze’s motion for reconsideration, stating “we find no new legal argument or particular aspect of *803 the case which was overlooked and no ground upon which to reconsider our previous decision.” Goguadze contends that the BIA abused its discretion because it failed to recognize several errors of fact in the IJ’s decision which, if viewed properly, would have established that he was persecuted. We disagree. Although some of the facts identified by Goguadze may have strengthened his contention that he was persecuted, none of those facts would have definitively established that he was subject to more than the “generally harsh conditions” shared by many other Georgians. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (“BIA suggested that generally harsh conditions shared by many other persons do not amount to persecution”) (internal quotation marks and brackets omitted) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 222, 1985 WL 56042 (1985)).

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Goguadze v. Atty Gen USA, 106 F. App'x 800 (3d Cir. 2004).

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Related

Immigration & Naturalization Service v. Abudu
485 U.S. 94 (Supreme Court, 1988)
ACOSTA
19 I. & N. Dec. 211 (Board of Immigration Appeals, 1985)