Koba Khakhnelidze v. Eric Holder, Jr.

432 F. App'x 564
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 8, 2011
Docket09-4514
StatusUnpublished
Cited by2 cases

This text of 432 F. App'x 564 (Koba Khakhnelidze v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Koba Khakhnelidze v. Eric Holder, Jr., 432 F. App'x 564 (6th Cir. 2011).

Opinions

STAFFORD, District Judge.

Koba G. Khakhnelidze (“Koba”), his wife, Marine Z. Goguadze (“Marine”), and their two children, Beka K. Khakhnelidze (“Beka”), and Manana K. Khakhnelidze (“Manana”) (collectively “Petitioners”), citizens of the Republic of Georgia, petition for review of a November 17, 2009, final order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen a final removal order dated February 26, 2009.

BACKGROUND

Koba entered the United States on September 13, 2002, as a non-immigrant visitor for pleasure, with authorization to remain in the United States until December 3, 2002. Marine and Beka arrived as non-immigrant visitors on October 13, 2003, with authorization to stay until January 11, 2004. Manana arrived on December 31, 2004, with authorization to stay until June 30, 2005. All four stayed in the United States longer than the time permitted.

A. Proceedings Before the IJ

Koba first applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on August 18, 2005, almost three years after he entered the United States, almost two years after his wife and son entered, but less than a year (almost nine months) after his daughter arrived. Koba included his wife and children as derivatives on his application for relief. After his initial application was rejected, he re-filed successfully on September 22, 2005. He indicated on his application that he was filing more than one year after his last arrival in the United States “because I was afraid that if the Government of Georgia finds out about it, [the] mafia will find and kill my family.” He did not explain why he waited almost nine months after his family was at last secure in the United States to file his application.

On November 18, 2005, the Department of Homeland Security (“Department”) served Petitioners with Notices to Appear on charges that they were removable under Section 237(a)(1)(B) of the Immigration and Nationality Act (“INA”) because they remained in the United States for a time longer than permitted. Petitioners first appeared, pro se, before an immigration judge (“IJ”) on December 13, 2005. The IJ continued the hearing because Petitioners had not yet retained counsel to assist them. On October 27, 2006, Petitioners again appeared before an IJ, and again the hearing was continued because [566]*566Petitioners had not yet retained counsel. When the hearing was re-convened on December 8, 2006, Vlad Sigalov (“Sigalov”) for the first time appeared as counsel for Petitioners. At the December hearing, Sigalov, on behalf of his clients, conceded removability but asked for asylum, withholding of removal, and protection under CAT, all on the basis of political opinion. The case was set for a merits hearing on September 25, 2007.

Koba was the only witness who testified at the merits hearing. Koba stated that he was working as the second shift supervisor of security at the Georgian Parliament on November 8, 2001, when the security monitor for the money vault blacked out. Koba immediately went to investigate and found a colleague — the third shift security supervisor — with two other men at an open safe. The men offered Koba $100,000 not to report the theft, then threatened that, if Koba made any “mistakes,” he would regret it for the rest of his life. Despite the threat, Koba set off the alarm and detained his co-worker while the other two men escaped. Koba explained: “I was taught by my parents not to be a dishonest person and all of that went in my head in a second when I was ... standing there. And of course I did what I was suppose[d] to do.”

Although the two accomplices were later apprehended, they spent only two weeks in jail because Koba’s co-worker “took the blame.”1 According to Koba, the two accomplices turned out to be employees of the Department of State Security and were — like Koba’s co-worker — members of the Mafia. Koba testified at his colleague’s trial, during which time the Georgian police provided Koba with security. The colleague was sentenced to nine years in prison and was still in prison at the time of the hearing before the IJ.

Koba was convinced that there were unknown persons behind the robbery. He knew that “there had to be an insider who was an accomplice to the robbery in order for [the accomplices] to escape the way they did.” Koba shared his concerns with the chief of security at the Georgian Parliament but was told that the case was closed. Koba was soon after transferred to a position at the Tbilisi airport, namely, the position as chief officer of security in the airport’s government wing.

In January 2002, a white car driven by an unknown driver almost hit Koba as he was walking home from work. That same month, Koba received a phone call at work from an unknown individual, suggesting that he call home to make sure everything was OK. A call to his wife confirmed that everything was, in fact, OK. Days or weeks later, he received a phone call at home, again from an unknown individual, who said: “Soon you are going to wish you were dead. We can arrange for it too but not yet. You should [have] taken $100,000.” When he contacted the police about the calls, he was told that there was little the police could do based on the information received. The police suggested that, if the calls continued, Koba should record the calls.

On June 15, 2002, seven months after the foiled robbery, Beka was kidnapped by unknown persons. Three days later, the kidnappers called Koba and told him that his son could be found on the side of the road near the airport. Before Koba arrived at the site, the boy — brutally beaten about the head and bleeding profusely— had been taken by ambulance to the hospi[567]*567tal, where he stayed for about a month. The incident left Beka with scars on his face and no hearing. Although Koba asked the police and his work superiors to investigate the kidnaping, he was never able to learn the identity of the people who were “terrorizing” his family. Koba left Georgia for the United States three months later, without having experienced any additional acts of “terror.”

When asked by his counsel why he applied for asylum more than a year after he entered the United States, Koba explained that (1) he did not speak English well when he first entered the country and he did not know what steps to take; and (2) he “could not leave [his family] alone there being terrorized and horrified over there.”

The IJ offered to hear testimony from Marine, but Petitioners’ counsel stated that she would merely corroborate Koba’s testimony concerning Beka’s condition at the hospital. The IJ accepted that Marine’s testimony would corroborate Beka’s trauma.

B. The IJ’s Decision

While finding Koba to be generally credible, the IJ denied Petitioners’ requests for relief. The IJ first found that Koba’s claim for asylum was statutorily barred as untimely because his application was filed more than one year after he entered the United States and because he failed to demonstrate any changed or extraordinary circumstances that would excuse the late filing.

The IJ went on to find that, even if timeliness were assumed, Koba was not entitled to asylum because he failed to demonstrate that he suffered past “persecution” in Georgia.

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