MacHarashvili v. Attorney General of the United States

227 F. App'x 119
CourtCourt of Appeals for the Third Circuit
DecidedJune 13, 2007
Docket06-1363
StatusUnpublished

This text of 227 F. App'x 119 (MacHarashvili v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacHarashvili v. Attorney General of the United States, 227 F. App'x 119 (3d Cir. 2007).

Opinion

OPINION

BARRY, Circuit Judge.

Merab Macharashvili petitions for review of an order of the Board of Immigration Appeals (“BIA”) upholding the Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will deny the petition.

I.

Macharashvili is a citizen and native of Georgia who entered the United States, via Mexico, on February 23, 2000. On February 20, 2001, he applied for asylum, withholding of removal, and CAT protection. He alleged, as the basis for relief, his Ossetian nationality and his outspoken opposition to the Georgian nationalist policies of then-President Eduard Shevardnadze. An asylum interview was conducted on March 20, 2001. The asylum officer determined that Macharashvili’s application was timely, but that he was ineligible for asylum because his testimony lacked credibility and failed to describe acts rising to the level of persecution. The matter was referred to an IJ for a hearing.

*121 An IJ held hearings on March 11, 2002 and April 16, 2002, and Macharashvili testified with the aid of Russian and Georgian translators, respectively. He testified that he is half Ossetian and half Georgian, and that his wife is Georgian. He claimed that after fighting broke out in Ossetia in 1991 and he began to criticize the nationalist policies of President Shevardnadze, he was frequently persecuted because of his nationality and political views. Specifically, he testified, he lost his job on three occasions between 1995 and 1998, was assaulted twice, and received threatening phone calls. Although he sought help from the police, he claimed that they refused to investigate because he was Ossetian. In December 1996, he stated, he and his wife moved to the region known as South Ossetia, where he continued to be persecuted because of his wife’s Georgian nationality. In July 1997, he moved to Moscow while his wife remained in Georgia. After the Chechen war broke out in 1998, he claimed that he was persecuted for being from the Caucasus region, and for not having proper identification. He stated that he returned to his wife in August 1999, but after learning that he was still in danger, he obtained a Mexican visa and “took off to Mexico.” (App. vol. II at 173-74.) His wife and two children, both daughters, purportedly remain in Georgia.

At the conclusion of the April 16, 2002 hearing, the IJ made an adverse credibility determination and denied relief. On appeal, the BIA found the IJ’s findings speculative and remanded for further findings consistent with Third Circuit caselaw. The BIA specifically instructed the IJ to permit the parties to present evidence regarding current country conditions, and to afford Macharashvili the opportunity to explain any discrepancies in his testimony.

On remand, the matter was assigned to a new IJ, who, on February 20, 2004, held a new hearing. The government submitted evidence of a change of political leadership in Georgia following the resignation of President Shevardnadze in November 2003 and the election of a new president in January 2004. Macharashvili again testified with the aid of a Georgian interpreter. At the end of the hearing, the IJ denied relief, finding Macharashvili’s claim not credible. She specifically cited his failure to provide reliable proof of his Ossetian nationality, his lack of any independent corroboration from his wife, and his inability to provide credible explanations for his lack of proof.

Macharashvili appealed to the BIA, which, on December 27, 2005, issued a detailed opinion affirming the IJ’s findings and denial of relief. The BIA found, based on its independent review of the record, that a negative credibility finding was warranted. It noted, specifically, that Macharashvili had submitted insufficient documentation of his nationality and no corroborative evidence from his wife with respect to the claimed incidents of persecution. The BIA also cited evidence in the record that political conditions in Georgia changed after the 2004 presidential elections, and found that Macharashvili had been afforded an opportunity to address each of these concerns. This petition followed.

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252, and we review adverse credibility determinations of the IJ or BIA for substantial evidence. Chen v. Ashcroft, 376 F.3d 215, 221-22 (3d Cir.2004). The BIA performed an independent review of the record, but also relied substantially on the IJ’s “specific, cogent reasons for her adverse credibility finding.” (App. vol. I at 6.) Accordingly, we review both the IJ and *122 BIA’s opinions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We must uphold the BIA and IJ’s adverse credibility determination unless the evidence of Macharashvili’s credibility is so strong “that in a civil trial he would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.

There is substantial evidence in the record to support the findings of the IJ and the BIA that Macharashvili lacked credibility, particularly as it relates to the question of his Ossetian nationality. At the heart of his claim is his assertion that he is “half Ossetian” — a fact that allegedly resulted in his being persecuted at the hands of Georgian nationalists, but that fails to withstand scrutiny. He testified that he was born in Georgia and speaks only Georgian, having not learned the Ossetian language either in his youth or during the period when he and his wife resided in South Ossetia. His father, also born in Georgia, is himself “half Ossetian,” while his mother is Georgian; and his paternal grandfather is “half Ossetian.” (App. vol. I at 57.) These ratios, it must be noted, would make Macharashvili no more than one quarter Ossetian. He conceded that he has a Georgian last name, but maintained that “everyone” in Georgia knows that it is derived from Ossetian. (Id. at 42.) Yet, from 1985 to 1995, he was a star performer in the Georgian National Dance Company, and was fired in 1995, four years after fighting broke out between Georgian and Ossetian nationalists, allegedly because he refused to join the Georgian Citizens Union. He acknowledged that union leaders wanted him to join.

We agree with the IJ and the BIA that these circumstances cast considerable doubt on Maeharashvili’s Ossetian identity, and raise the need for corroboration. See In re Y-B-, 21 I. & N. Dec. 1136, 1139 (BIA 1998) (“[T]he weaker an alien’s testimony, the greater the need for corroborative evidence.”). Corroboration here, however, is virtually nonexistent. Despite having had three years to gather documentary support for his claim, the only evidence that Macharashvili has produced of his Ossetian identity is his father’s reissued, unauthenticated birth certificate, showing “Ossetian” as the nationality of his paternal grandfather. 1

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227 F. App'x 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macharashvili-v-attorney-general-of-the-united-states-ca3-2007.