Gabuniya v. Atty Gen USA ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-19-2006
Gabuniya v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 05-3339
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3339
ZAZA GABUNIYA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A95-462-488)
Immigration Judge: Donald V. Ferlise
Argued June 8, 2006
Before: AMBRO, FUENTES, and NYGAARD, Circuit Judges.
(Filed September 19, 2006)
Christina L. Harding (Argued)
Tatiana Aristova
Law Office of John J. Gallagher, P.C.
1760 Market Street, Suite 1100
Philadelphia, PA 19103
1
ATTORNEY FOR PETITIONER
Peter D. Keisler
Theresa M. Majkrzak (Argued)
United States Department of Justice
55 Erieview Plaza, Suite 700
Cleveland, OH 44144
Christopher C. Fuller
William C. Peachey
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
ATTORNEYS FOR RESPONDENT
OPINION OF THE COURT
FUENTES, Circuit Judge.
Zaza Gabuniya, a native and citizen of the country of
Georgia, entered the United States in 2001, and subsequently
applied for asylum, withholding of removal, and protection
under the Convention Against Torture. In support of his
application, Gabuniya alleged that as a result of his support for
democratic reforms in Georgia he was threatened, arrested, and
beaten on numerous occasions, and that his wife was killed by
government officials. The Immigration Judge (“IJ”) ruled that:
1) Gabuniya was not credible; 2) even if credible, his allegations
did not demonstrate past persecution or torture; 3) and, in any
event, conditions in Georgia had changed since Gabuniya’s
departure such that he was not likely to face persecution or
torture upon his return.
2
We find that substantial evidence does not support the
IJ’s finding that Gabuniya lacked credibility. We also find that
substantial evidence does not support the IJ’s finding that, even
if credible, Gabuniya’s allegations did not demonstrate evidence
of past persecution. In addition, because the BIA did not rule on
the IJ’s conclusion that country conditions in Georgia have
changed, we grant the petition for review and remand the case to
the BIA.
I. Factual and Procedural Background
This immigration appeal concerns the oppressive tactics
of Georgian police officials under the Shevardnadze regime,
which governed Georgia after its independence from the Soviet
Union and subsequent civil war. Georgia became an independent
state on April 9, 1991 and, shortly thereafter, Zviad
Gamsakhurdia was elected its first president. Petitioner Zaza
Gabuniya (“Gabuniya”) supported Gamsakhurdia, who began to
carry out democratic reforms immediately after taking office.
However, in December 1991, Gamsakhurdia was overthrown in
a bloody coup d’etat, and the country entered into a civil war. In
1992, Eduard Shevardnadze, a Georgian who had been involved
in Soviet politics, joined the leaders of the coup and was soon
appointed the interim chairman of the Georgian state council.
When the civil war ended in 1995, Shevardnadze was elected
president of Georgia.
Gabuniya did not participate in the hostilities during the
civil war, but he provided food and water to supporters of
Gamsakhurdia when they were in his village. In 1994, Gabuniya
and his wife joined a local group formed in opposition to the
Shevardnadze regime. The group, which had no formal name,
was formed by Dato Datiashvili, a supporter of Gamsakhurdia
who had fought in the civil war, and eventually grew to about
200 members. The group met in Datiashvili’s house, where
members would plan demonstrations and the distribution of
leaflets. Gabuniya participated in two or three demonstrations
before August of 1995.
3
Civil unrest continued throughout Shevardnadze’s time as
president, and opponents of the Shevardnadze regime were
specifically targeted by the government. On August 29, 1995,
there was an assassination attempt on Shevardnadze’s life,
followed by government reprisals. Datiashvili was arrested and
never seen or heard from again. Datiashvili’s anti-Shevardnadze
group ceased activities from August 1995 to January 1996 out of
fear of persecution. In January 1996, the group resumed its
activities, this time with Murtaz Dzavakhia as its new leader.
Gabuniya and his wife again became active members. Though
the group opposed the assassination attempt and ended their
support for followers of Gamsakhurdia, it continued to support
democratic reforms and to oppose the Shevardnadze regime.
The group engaged in peaceful protests and distributed leaflets
advocating that the Georgian people more actively defend their
democratic rights.
According to Gabuniya, a few months after the group
resumed activities Georgian police descended upon a peaceful
demonstration with rubber clubs and tear gas. Gabuniya was
struck on the shoulder, forced into a police bus, and taken to the
police station. At the station, he was interrogated and told that
he must cease holding “anti-governmental meetings of this kind”
or else face severe consequences. Gabuniya nonetheless
continued to engage in activities with the group after his arrest,
distributing leaflets and approaching people to encourage
dialogue about democratic reform.
One year later, Gabuniya and his wife took part in a large
demonstration that the police violently dispersed using rubber
clubs and fire hoses.1 Gabuniya and his wife were detained and
taken to the police station, where Gabuniya was brought to a
small room and beaten by two policemen. Three hours later, he
was interrogated about his activities with the group and the
group’s objectives and membership. Gabuniya’s inability to
provide more than a few names angered the officer interrogating
him, and the officer told him that he would be put on a list of
1
Gabuniya alleges that there were approximately 5000
participants in the demonstration.
4
politically unreliable persons and enemies of Georgia. After two
hours, he was beaten again. The next day Gabuniya was brought
before the officer who had previously interrogated him and who
now told him that, although he would be released, he would be
in “big trouble” if he did not stop his activities with the group.
Gabuniya was released and found his wife, who had been
interrogated but not beaten. The next month, Gabuniya and his
wife began receiving threatening phone calls. The callers used
obscene language and demanded that Gabuniya and his wife stop
their activities or they would be sorry.
On February 9, 1998, about nine months after Gabuniya’s
second arrest, there was a second assassination attempt on
Shevardnadze. Six days later, two State Security Services
(“SSS”) agents came to Gabuniya’s home and took Gabuniya to
an SSS headquarters in Kutaisi. There, a man who identified
himself as Koba Darsavelidze questioned Gabuniya and accused
him of having links with those who planned the assassination
attempt. Darsavelidze waived documents in front of Gabuniya
that he claimed provided proof of Dzavakhia’s involvement in
the assassination attempt. Darsavelidze demanded Gabuniya
confess and sign a statement that Gabuniya was not permitted to
read. Gabuniya refused and insisted he had done nothing illegal.
He was taken into a separate room and beaten by two men. He
was again asked to sign the statement and again refused. The
SSS agents told Gabuniya that sooner or later he would be
forced to sign a statement and that, if he did not do so
voluntarily, he would be implicated in the assassination attempt.
The agents released Gabuniya after seven hours in the SSS
office. For months after the incident, Gabuniya received
threatening phone calls telling him that he would have to
“comply with the request to make a certain statement.”
Six months later, Gabuniya and his wife were leaving a
friend’s home when four men approached them. Gabuniya
recognized one of them as a man who had beaten him at the SSS
office. One of the men chastised Gabuniya for continuing his
“anti-government activities” despite the warning and
“forgetting” to sign a statement, and told Gabuniya that they
would “refresh his memory.” The men began to beat him.
When his wife cried for help, she was beaten as well. She fell
5
and hit her head on the curb, losing consciousness. Soon
thereafter, the attackers fled as other people approached the
scene. As they left, Gabuniya’s attackers threatened to kill him
when they saw him next. Gabuniya and his wife were taken to a
hospital, where he was treated for an injury to his elbow. His
wife, who suffered a skull fracture as a result of the attack, never
regained consciousness and died a few days later.
Gabuniya fled the area, first traveling to Mestia,
approximately 25 miles from his home town of Geguti. In the
summer of 1999, he arranged to get a passport without appearing
in person at the appropriate Georgian office. After obtaining a
passport, he applied for a visa to travel to the United States, but
was denied. He then traveled to the Ukraine, where he arranged
to obtain an illegal passport and visa to travel to Mexico. In
February of 2000, Gabuniya traveled to Mexico by way of
Turkey, and remained there for almost a year. While working in
Mexico, he contacted Eka Barbakadze, a friend from Georgia
who was living in the United States. With Barbakadze’s
assistance, Gabuniya was able to raise sufficient funds to pay a
guide to help him cross the United States border.
Gabuniya entered the United States illegally on January
27, 2001. He reached Philadelphia, where Barbakadze was
living, on February 10, 2001. While in Philadelphia, Gabuniya
continued to contact his friends and family in Georgia. His
parents informed him that they had received threatening phone
calls inquiring about Gabuniya’s whereabouts. Vitaly Siradze, a
member of the group to which Gabuniya belonged in Georgia,
informed Gabuniya that he had also received threatening phone
calls claiming that Gabuniya was a suspect wanted by the
authorities and demanding to know Gabuniya’s whereabouts.
As a result of these threats, Siradze went into hiding. Gabuniya
also learned that other group members had disappeared under
mysterious circumstances and, as a result, the group had ceased
to operate.
On May 3, 2002, Gabuniya applied for asylum,
withholding of removal, and protection under the Convention
Against Torture (the “CAT”). After an asylum officer denied
6
the application, the INS issued a Notice to Appear charging him
with removability and placed Gabuniya in removal proceedings.
In a hearing before Judge Donald V. Ferlise, the Immigration
Judge (“IJ”), Gabuniya conceded removability, and indicated his
intent to seek asylum, withholding of removal, and protection
under the CAT. After holding a merits hearing, the IJ denied the
application on December 3, 2003, finding that Gabuniya had
embellished his testimony and was not credible. The IJ also
found that, even if Gabuniya were credible, the events that
Gabuniya alleged took place in Georgia did not amount to
persecution or torture. In addition, the IJ found that, even if past
persecution had been established, the change in country
conditions rebutted any presumption that Gabuniya would be
persecuted or tortured if he returned to Georgia. Gabuniya
timely appealed the IJ’s decision to the Board of Immigration
Appeals (“BIA”) in January 2004.
While Gabuniya’s appeal was pending before the BIA, he
won the Diversity Immigrant Visa2 lottery, which required him
to file an application to adjust his status.3 In July of 2004, seven
months after filing his appeal from the IJ’s decision, Gabuniya
moved for a remand so that he could adjust his status. Two
months later, he married Barbakadze. Barbakadze, though not a
United States citizen, was the beneficiary of an approved I-130
application filed by her previous husband during their marriage.
In September 2004, Gabuniya submitted an amended I-485
application for asylum, attaching a copy of Barbakadze’s
2
The Diversity Immigrant Visa Program makes available
annually 50,000 permanent resident visas to randomly selected
persons who meet strict eligibility requirements and are from
countries with low rates of immigration to the United States. See
http://travel.state.gov/visa/immigrants/types/types_1322.html.
3
Contrary to Gabuniya’s assertion that he won the
Diversity Visa lottery while his appeal before the BIA was
pending, the Government alleges that Gabuniya won the
Diversity Visa lottery in May 2003, before the Immigration
Judge issued his decision. We need not resolve this discrepancy
because the timing of this event has no bearing on our decision.
7
approved I-130, but no evidence that she obtained a visa or
adjusted her status.
On June 10, 2005, the BIA affirmed the IJ’s denial of
Gabuniya’s application for asylum, withholding of removal, and
protection under the CAT, finding that the IJ correctly ruled that
Gabuniya was not credible and failed to meet his burden of
proof. The BIA also denied the motion for a remand as being
without merit, but provided no further explanation.
II. Analysis
A. Applicable law
The Attorney General may “not remove an alien to a
country if the Attorney General decides that the alien’s life or
freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular
social group, or political opinion.”4 8 U.S.C. § 1231. In order to
be eligible for withholding of removal, Gabuniya must
demonstrate a clear probability of persecution–in other words,
that it is more likely than not that he will be persecuted if he
returns to Georgia. See Toure v. Attorney Gen., 443 F.3d 310,
317 (3d Cir. 2006). Similarly, to qualify for relief under the
4
We consider only Gabuniya’s petitions for withholding
of removal and protection under the CAT because we lack the
jurisdiction to review his petition for asylum. It is undisputed
that Gabuniya failed to file an application for asylum within one
year of his entry to the United States. The IJ denied his
application on the ground that, absent extraordinary
circumstances, an alien may not apply for asylum after he has
been in the country for more than one year. 8 U.S.C. §
1158(a)(2)(B), (D). Because we lack jurisdiction “to review an
IJ's determination that an asylum petition was not filed within
the one year limitations period, and that such period was not
tolled by extraordinary circumstances,” we must deny
Gabuniya’s petition for review of the BIA’s denial of his asylum
claim. Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.
2003); see 8 U.S.C. § 1158(a)(3).
8
CAT, Gabuniya must demonstrate that it is more likely than not
that he will be tortured if he is removed to Georgia. 8 C.F.R. §
208.16(c)(2) (2006); Toure, 443 F.3d at 317.
Gabuniya argues that he is entitled to withholding of
removal and protection under the CAT because of the
persecution he faced at the hands of the Georgian government.
An applicant who establishes past persecution is entitled to a
presumption that his life or freedom will be threatened if he
returns. See 8 C.F.R. § 208.16(b)(1). We have defined
persecution as “‘threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to
life or freedom.’” Li v. Attorney Gen., 400 F.3d 157, 167 (3d
Cir. 2005) (citation omitted). Similarly, evidence that the
applicant has been tortured in the past is to be considered in an
application for protection under the CAT. 8 C.F.R. §
208.16(c)(3)(i). Torture is defined as
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or
her or a third person information or a confession,
punishing him or her for an act he or she or a third
person has committed or is suspected of having
committed, or intimidating or coercing him or her
or a third person, or for any reason based on
discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public
official or other person acting in an official
capacity.
8 C.F.R. § 208.18(a)(1) (2006). The testimony of the applicant
alone, if credible, may be sufficient to sustain the applicant’s
burden of proof for demonstrating past persecution and torture.
8 C.F.R. § 208.16(b), (c)(2).
B. The adverse credibility finding
The IJ found that Gabuniya’s claims of past persecution
9
were not credible.5 We review adverse credibility
determinations under the substantial evidence standard. See Gao
v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). We cannot
overturn a credibility finding simply because we would reach a
different opinion; rather, we must find that “any reasonable
adjudicator would be compelled to conclude the contrary.”
Shadar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004) (quoting 8
U.S.C. § 1252(b)(4)(B). Although our review of a credibility
finding is generally deferential, “that deference is expressly
conditioned on support in the record, and deference is not due
where findings and conclusions are based on inferences or
presumptions that are not reasonably grounded in the record.”
Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc)
(internal citations and quotation marks omitted); see also Caushi
v. Attorney Gen., 436 F.3d 220, 226 (3d Cir. 2006).
In making an adverse credibility determination, the IJ
must provide “‘specific, cogent reason[s]’” why the applicant is
not credible. Gao, 299 F.3d at 275-76 (citation omitted). Minor
discrepancies that do not go to “‘the heart of the . . . claim’” do
not merit an adverse credibility finding. Berishaj v. Ashcroft,
378 F.3d 314, 323 (3d Cir. 2004) (citation omitted). The IJ’s
conclusions must “‘flow in a reasoned way from the evidence of
record’” and cannot be “‘arbitrary and conjectural in nature.’”
Caushi, 436 F.3d at 226 (quoting Dia, 353 F.3d at 250).
The IJ based his adverse credibility determination on
inconsistencies in Gabuniya’s testimony with respect to the date
of his wife’s death, the date of his third arrest, and his
description of the injury he suffered when the police assaulted
him and his wife. The IJ also appears simply to have not
believed Gabuniya’s account of his third arrest. We address
these bases for the IJ’s credibility determination in turn.
As the IJ noted, although Gabuniya initially testified that
5
Because the BIA adopted the opinion of the IJ with
respect to the IJ’s credibility determination, we review the IJ’s
opinion. See Wang v. Attorney Gen., 423 F.3d 260, 267 (3d Cir.
2005).
10
his wife died immediately after being beaten by the police on
August 5, 1998, he later stated that she died three days later.
Gabuniya explained that, in his initial testimony, he had been
trying to emphasize the fact that the injury she sustained on
August 5, 1998, was the direct cause of her death. Gabuniya’s
testimony is supported by his wife’s certificate of death stating
the correct date of her death and the reason for her death as
“Hard trauma of skull-brain, beating of sinciput on the left,
beating of forehead on the left.”
The IJ’s credibility finding on this issue was not
supported by substantial evidence, given that, on August 5th,
Gabuniya’s wife sustained a fatal blow that rendered her in an
unconscious state from which she never recovered. More
important, however, is the fact that the alleged inconsistency has
nothing to do with whether or how Gabuniya’s wife actually
died; notably, the IJ did not express any doubt that she was
killed by the police.6 The inconsistency only calls into doubt the
date on which she died. We have stated that “minor
inconsistencies and minor admissions that reveal nothing about
an asylum applicant’s fear for his safety are not an adequate
basis for an adverse credibility finding. [Rather, t]he
discrepancies must involve the heart of the asylum claim.”
Berishaj, 378 F.3d at 323 (internal citations and quotation marks
omitted).7 We fail to see how inconsistency regarding the date
6
In fact, the IJ apparently did not believe that this
inconsistency revealed any specific lie or exaggeration on
Gabuniya’s part. The IJ only stated that the inconsistency
negatively affected Gabuniya’s credibility in general. We have
found no support for such a broad and vague mode of
impeaching the credibility of an applicant for asylum,
withholding of removal, or protection under the CAT.
7
The Real ID Act of 2005 changes the standards
governing credibility determinations, stating that those
determinations may be made “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” Pub. L. 109-13, div. B, § 101(a)(3), 119 Stat.
231, 303 (to be codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). This
11
of his wife’s death goes to the heart of Gabuniya’s claim that he
was persecuted in Georgia.
The IJ next pointed out that Gabuniya incorrectly stated
that his third arrest took place on February 9, 1998, when the
police came to his home after an assassination attempt on
Shevardnadze. Without being confronted with his error,
Gabuniya stopped to clarify that he had mistakenly provided the
date of the assassination attempt as the date of his arrest, and that
he was not arrested until a few days later, on February 15, 1998.
Based on this testimony, the IJ concluded that Gabuniya
“impeach[ed] . . . [his] own testimony within a rather short
period of time,” which “negatively impacted [his] own
credibility.” To the contrary, the fact that Gabuniya, without
being told of his error, took the initiative to correct himself and
clarify his testimony bolsters rather than undermines his
credibility. Furthermore, Gabuniya’s explanation for his error is
reasonable because there is a causal link between the date of the
assassination and his subsequent arrest. Moreover, Gabuniya’s
inconsistency with respect to the date of his arrest does not go to
the heart of his claim, particularly where it is followed
immediately by a reasonable explanation. See Gao, 299 F.3d at
273.
The IJ also noted Gabuniya’s testimony that he injured
his hand when the police assaulted him and his wife. When
asked why his asylum application stated that his elbow had been
injured, Gabuniya explained that he had used the Georgian word
for “arm,” which is also the Georgian word for “hand,” and that
his testimony was translated as “hand” when it could also have
been translated as “arm,” encompassing the elbow. The IJ asked
the translator if there was a separate word for “hand” and
“elbow,” and the translator responded that there was. However,
the IJ did not inquire into whether the word “hand” could also be
provision, however, only applies to aliens who applied for
asylum, withholding of removal, or other relief after May 11,
2005, the effective date of the Act. See id. § 101(h)(2), 119 Stat.
at 305. As Gubuniya applied for relief from removal in 2002,
this provision does not apply to our review of his claims.
12
translated as “arm,”and thus did not explore Gabuniya’s
explanation. (Id.) Regardless, even if this inconsistency could
not be explained by a translation error, it does not support an
adverse credibility finding given Gabuniya’s otherwise detailed,
consistent, and logical testimony. Cf. Gui Cun Liu v. Ashcroft,
372 F.3d 529, 534 (3d Cir. 2004) (remanding because “[a]bsent
the one glaring inconsistency,” evidence was insufficient to
support adverse credibility determination).
The IJ also appears to have simply not believed
Gabuniya’s account of his third arrest. Specifically, the IJ
expressed doubt that government agents would hold Gabuniya
for only seven or eight hours if they intended to coerce him to
admit involvement in the assassination attempt on Shevardnadze.
The IJ cited no facts or evidence to support this conclusion,
stating only that it was based on “the considered opinion of the
court.” As we have stated, “[a]dverse credibility findings based
on speculation or conjecture, rather than on evidence in the
record, are reversible.” Gao, 299 F.3d at 272. The IJ’s opinion
regarding how long Georgian police would have held Gabuniya
was purely speculative and was not a proper basis for an adverse
credibility determination. See Jishiashvili v. Attorney Gen., 402
F.3d 386, 393-94 (3d Cir. 2005) (stating that IJ’s conclusions
about “implausibility” of petitioner’s testimony about police
interrogations in Georgia had to be “properly grounded in the
record and, to that extent, informed by the conditions in the
petitioner’s country”) (internal quotation marks and citations
omitted).
We note with concern the IJ’s dogged determination to
make an adverse credibility finding by stringing together
whatever insignificant inconsistencies he could unearth from the
testimony and bolstering them with his own unsupported
conjecture. While we appreciate the difficulty an IJ must face in
vetting applications for asylum, withholding of removal, and
protection under the CAT, this responsibility is not license to
jump eagerly on each slip of the tongue or to demand that an
applicant be infallible in order to be credible. Here, it is plain
that “no reasonable fact finder could reach the same conclusion”
reached by Judge Ferlise. Chavarria v. Gonzalez, 446 F.3d 508,
517 (3d Cir. 2006). We therefore conclude that the IJ’s adverse
13
credibility determination was not supported by substantial
evidence.
While the IJ’s credibility determination focused on
irrelevant inconsistencies, his determination that Gabuniya’s
testimony, if credible, did not establish past persecution ignored
the wealth of detailed, logical, and consistent testimony
demonstrating that Gabuniya suffered significant abuse at the
hands of the Georgian authorities. Gabuniya testified that he
endured arbitrary arrest, detention, beatings, threats, coercive
attempts to extract a false confession, and the murder of his wife.
We cannot agree with the IJ’s glib characterization of these
incidents as merely “the denial of the right of free speech and the
right to demonstrate.” A reasonable factfinder would be
compelled to conclude that these incidents fall within the
definitions of persecution and torture and that Gabuniya met his
burden of demonstrating that it is more likely than not that he
will face persecution or torture if he returns to Georgia. See
Voci v. Gonzales, 409 F.3d 607, 614 (3d Cir. 2005) (holding that
“multiple beatings from police, including beatings that caused
injury . . . all as a result of [the petitioner’s] political beliefs”
constituted persecution). We therefore find that substantial
evidence does not support the BIA’s holding that (i) Gabuniya
was not credible and (ii) did not establish a clear probability of
future persecution and torture based on past incidents of
persecution and torture.
C. Changed country conditions
The IJ found that, even if Gabuniya had demonstrated
past persecution, conditions in Georgia had changed such that he
was no longer more likely than not to be persecuted if he
returned there. When an applicant establishes a presumption of
future persecution based on evidence of past persecution, the
Government may rebut the presumption by demonstrating by a
preponderance of the evidence that “[t]here has been a
fundamental change in circumstances such that the applicant's
life or freedom would not be threatened . . . upon the applicant's
removal.” 8 C.F.R. § 208.16(b)(1)(i)(A), (b)(1)(ii).
A mere ten days before the IJ’s decision in this case,
14
Shevardnadze resigned in a bloodless change of regime known
as the “Rose Revolution.” Based solely on this fact, and without
any evidence in the record of changed conditions regarding the
practice of arbitrary arrest, torture, or corruption, or any
evidence that conditions had changed for those advocating
democratic reform, the IJ concluded that Gabuniya no longer
faced any threat of future persecution by the Georgian
government due to his political activities. The IJ then ordered
Gabuniya removed to Georgia on or before January 2,
2004–before the scheduled elections in Georgia and prior to any
democratic reforms.
In its order affirming the IJ’s order of removal, the BIA
explicitly stated its agreement only with the IJ’s credibility
finding and the IJ’s finding that Gabuniya had not met his
burden of proof. The BIA did not, however, consider the IJ’s
finding of changed country conditions. The BIA then stated that,
“[i]nasmuch as we are in agreement with the decision of the
Immigration Judge as noted above, we adopt and affirm his
decision.” (Id. (emphasis added).) Because the BIA did not
consider or adopt the IJ’s finding of changed country conditions,
we must remand this issue to the BIA.8 See Immigration and
8
We also remand because the BIA failed to provide any
explanation for its denial of Gabuniya’s motion to remand. We
review the BIA’s denial of a motion for abuse of discretion.
McAllister v. Attorney Gen., 444 F.3d 178, 185 & n.7, 190-91
(3d Cir. 2006). To ascertain whether the BIA abused its
discretion, we must determine whether it “followed proper
procedures and considered the material evidence before it.”
Korytnyuk v. Ashcroft, 396 F.3d 272, 293 (3d Cir. 2005)
(quotation marks and citation omitted). Here, there is no
indication that the BIA considered any of the evidence or
arguments concerning Gabuniya’s motion to remand. Where the
BIA provides no explanation for its denial of a motion, “[w]e are
not at liberty to search the law and the record for reasoning to
support the BIA's decision.” See Mickeviciute v. Immigration
and Naturalization Serv., 327 F.3d 1159, 1162-63 (10th Cir.
2003). We therefore remand the issue to the BIA for further
consideration.
15
Naturalization Serv. v. Ventura, 537 U.S. 12, 13-14, 16-17
(2002) (per curiam); Wang, 423 F.3d at 267 (noting that we
review only BIA decisions, except under limited circumstances
where BIA defers to or adopts IJ’s opinion); Gao, 299 F.3d at
271 (same).
III. Conclusion
For the aforementioned reasons, we conclude that the IJ’s
adverse credibility determination, and the IJ’s determination
that, if credible, Gabuniya’s testimony did not establish past
persecution, are not supported by substantial evidence.
Accordingly, we grant the petition for review. Because the BIA
has not yet considered the IJ’s conclusion that country
conditions had changed, we remand this case to the BIA for
further proceedings consistent with this opinion as to Gabuniya’s
claim for withholding of removal and protection under the CAT.
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