Ograpishvili, et al v. Atty Gen USA

Filing 3010177092

Ograpishvili, et al v. Atty Gen USA

Doc. 3010177092

Case: 08-2847

Document: 003110177092

Page: 1

Date Filed: 06/10/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT _____________ N o . 08-2847 _____________ M A L K H A Z OGRAPISHVILI, NINO SHUBITIDZE P e titio n e r v. A T T O R N E Y GENERAL OF THE UNITED STATES R e s p o n d e n t. _____________ O n Petition for Review of an Order of the Board of Immigration Appeals BIA Nos. A98-906-541/542 _____________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) F e b ru a ry 2, 2010 B e f o re : McKEE, Chief Judge, HARDIMAN, Circuit Judge, and POLLAK, District Judge.* _____________ O P IN IO N (F ile d : June 10, 2010) M c K E E , Chief Judge. P e titio n e r Malkhaz Ograpishvili petitions for review of a final removal order of the The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of Pennsylvania, sitting by designation. 1
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B o a rd of Immigration Appeals ("BIA") denying him and his wife asylum, withholding of re m o v a l, and relief under the Convention Against Torture. For the reasons that follow, w e will deny his petition for review. I. FACTS AND PROCEDURAL POSTURE

W e write primarily for the parties and therefore need not set forth the factual or p ro c e d u ra l history. At his hearing, the Immigration Judge ("IJ") asked Ograpishvili about p e rc e iv e d inconsistencies between his asylum application and his asylum interview. The IJ found that Ograpishvili's explanation was not credible, and this credibility d e t e rm in a t io n was a factor in the IJ's decision to deny Ograpishvili relief. The IJ also c o n c lu d e d that Ograpishvili failed to establish that any adverse treatment he was s u b je c te d to in Georgia was "on account of race, religion, nationality, membership in a p a rticu lar social group, or political opinion," as required under 8 U.S.C. § 1101(a)(42) to q u a lify for relief from removal.1 Ograpishvili claimed that he was persecuted for his w h i stle - b lo w e r activity related to corruption in Georgian customs. T h e BIA affirmed the IJ's ruling, concluding that Ograpishvili had failed to show th a t the threats and attack he suffered were on account of a protected ground. According to the BIA, Ograpishvili's testimony established that the threats and violence he faced w e re an effort to force him to leave his customs job. The BIA concluded that the
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To qualify for asylum, a petitioner must show that any mistreatment rose to the level of "persecution or a well-founded fear of persecution" and that such mistreatment was "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). 2

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m is tre a tm e n t would have stopped if Ograpishvili had resigned. The BIA also upheld the IJ's adverse credibility finding. The BIA cited particular in c o n sis ten c ies from the record in support of its adverse credibility determination. First, O g ra p is h v ili stated in his asylum application that after the January 2004 incident, he re c eiv e d "proper medical aid" from the nearest medical center but that the doctor denied h is request for a medical report documenting the nature and cause of his injuries. However, he also submitted a medical report from that incident as documentary evidence w ith the application. When asked about this discrepancy in his asylum interview, O g ra p ish v ili stated that he did not receive the medical care he needed at the first clinic a n d that he had to seek treatment at a second clinic. The medical report was from that s e c o n d clinic. He explained that he omitted one of the visits in his asylum application b e c a u se he wanted to focus only on the difficulties he and his wife experienced in G eo rgia. Ograpishvili never explained why he concluded that the first doctor's in a d e q u a te medical attention and refusal to provide a report did not support his and his w if e ' s asylum claims. S ec o n d , the BIA noted that Ograpishvili again changed his story when the IJ c o n f ro n te d him with these discrepancies. Ograpishvili then claimed that the omission re su lted from inaccurate translation of the events by his wife. The BIA found this e x p la n a tio n unconvincing because Ograpishvili's wife had personal knowledge of the J a n u a r y 2004 events.

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T h is petition for review of the BIA's order followed. II. JURISDICTION AND STANDARD OF REVIEW

O u r jurisdiction over a petition for review of a final removal order by the BIA a r is e s under INA § 242(a), 8 U.S.C. § 1252(a). Absent certain specific circumstances, w h i c h are not present here, we review the decision of the BIA and not that of the IJ. Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001). We must accord the BIA's f a ctu a l findings in a final removal order denying asylum significant deference. Where the B IA 's adverse credibility decision is supported by "substantial evidence," we will not in ter v e n e unless the record as a whole would "compel[]" any reasonable fact-finder to c o n c lu d e otherwise. Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004). Although " a d v ers e credibility determinations cannot be based on speculation or conjecture, such a f in d in g will be afforded substantial deference" when the BIA provides "specific[,] cogent re a s o n s " grounded in the record to support those determinations. Abdulrahman v. A s h c r o ft, 330 F.3d 587, 597 (3d Cir. 2003) (citations omitted). Adverse credibility d e te rm in a tio n s may be based on "inconsistent statements, contradictory evidence, and in h e re n tly improbable testimony." Cao v. Att'y Gen. of U.S., 407 F.3d 146, 152 (3d Cir. 2 0 0 5 ) (quotation marks omitted). III. DISCUSSION

O g r a p is h v i li argues that the BIA's adverse credibility finding is erroneous because it relied on speculation rather than evidence. He contends that he fully explained what he

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d e e m s to be minor inconsistencies in his case. He also claims that his allegations of p e rs e c u tio n in response to his whistle-blower activity satisfy the requirements of the statu te. According to Ograpishvili, the BIA impermissibly ignored evidence in the record in concluding that his mistreatment at the hands of the customs office where he worked w o u ld have stopped if he had resigned. A s ylu m is a form of discretionary relief, and a petitioner bears the burden of p ro v in g he cannot return to his home country because of, as relevant here, "persecution or a well-founded fear of persecution on account of . . . membership in a particular social g r o u p , or political opinion." INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Past p e rs e c u tio n requires a showing that the government or forces beyond its control th re a te n e d the applicant's life or freedom because of a protected ground. Abdulrahman, 3 3 0 F.3d at 592. To prove a well-founded fear of future persecution, the applicant must p re se n t credible testimony of his genuine subjective fear of persecution, and evidence that a reasonable person in his position would fear returning to his country of origin. Lie v. A sh c ro ft, 396 F.3d 530, 536 (3d Cir. 2005) (citations omitted). Credible testimony can s a tis f y the applicant's burden; but documentary evidence may also be required. Gao v. A sh c ro ft, 299 F.3d 266, 272 (3d Cir. 2002). To be eligible for withholding of removal,2 th e standard is higher than the well-founded fear required for asylum. The alien must

Because Ograpishvili did not challenge the IJ's denial of CAT relief in his BIA appeal or in his brief to this court, the issue is waived and need not be discussed further. See AbdulAkbar v. McKelvie, 239 F.3d 307, 316 n.2 (3d Cir. 2001) (en banc). 5

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d e m o n s tra te that it is "more likely than not" that he will be persecuted in his home c o u n try on account of a protected ground. INS v. Cardoza-Fonseca, 480 U.S. 421, 429, 4 4 8 -50 (1987); INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). A lth o u g h we are reviewing the decision of the BIA, we are nevertheless troubled b y the IJ's adverse credibility determination that, at least in part, contributed to the BIA's rulin g . We cannot speculate on the precise weight that the IJ placed on Ograpishvili's te s tim o n y that the first doctor he visited refused to give him a report in making an adverse c re d ib ility determination. The IJ reasoned that it was "unlikely that a physician would re f u se to provide a written record of the Respondent's visit." In the Removal Case of O g ra p ish v ili, Nos. 98-906-541/542, at 4 (I. & N. Dec. June 27, 2007). That conclusion a p p e ars to be based on nothing more than the IJ's own experience. However, we do not th in k it the least bit suspicious or surprising that a doctor in a country governed by an a b u siv e or corrupt regime would be extremely reluctant to document anything that could im p a c t adversely on that regime or its agents. Rather, absent evidence to the contrary, it s e e m s quite likely that such a physician would refuse to document any treatment that re su lte d from abuse at the hands of government agents. The government argues that the IJ reasoned that "a treating physician likely would not be at risk by merely documenting th e treatment provided without documenting the cause." Respondent's Br. at 15. However, that is pure speculation and it is equally as likely that any professional whose liv e lih o o d depends on a government license would not risk offending the very officials

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h e /s h e must depend on to practice medicine. We are therefore concerned that the IJ was so willing to discredit that part of O g ra p is h v ili's testimony. Since that testimony may have influenced the IJ's skepticism of O g ra p is h v ili's attempt to explain inconsistencies in his asylum application and interview, it is difficult to tell what effect it had on the IJ's adverse credibility determination. Nevertheless, we must affirm the BIA's denial of relief because, even if we accept a ll of Ograpishvili's testimony as true, we agree that the record does not support a finding th a t the mistreatment he complains of was "on account of" a ground that would qualify f o r relief under the asylum statute. As the BIA found, Ograpishvili's own testimony d e m o n stra ted that the threats focused on getting him to resign from his job. Even as to th e January 2004 incident, he stated "they told me several times, why don't you resign a n d we will just . . . leave you alone." Thus, it appears that the BIA was correct in c o n c lu d in g , based on Ograpishvili's own testimony, that any mistreatment would end w ith his resignation. Moreover, Ograpishvili argues that the threats and attack were on a c co u n t of his whistle-blower activity, but that would not entitle him to relief under the a sylu m statute. Congress simply did not include "whistle-blowers" within the scope of 8 U .S .C . § 1101(a)(42). Accordingly, unless the status of "whistle-blower" can somehow be e q u a te d with "race, religion, nationality, membership in a particular social group, or p o litic a l opinion," it does not advance Ograpishvili's claim for relief. Finally, because he n o longer works as a customs officer, his own testimony establishes that his assailants

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w ill "leave him alone" if forced to return.3 C O N C L U SIO N F o r the foregoing reasons, we will deny the petition for review.

Ograpishvili could conceivably have established his eligibility for relief had he established that the "persecution" he complains of was because of a political opinion imputed to him because of the activities of his cousin. See Amanfi v. Ashcroft, 328 F.3d 719, 729 & n.4 (3d Cir. 2003). However, this record does not contain any testimony that would support that conclusion, and Ograpishvili is not relying on that basis for relief. 8

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