Prokofi Nozadze v. Jefferson Sessions, III ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0327n.06
No. 17-3587
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
PROKOFI NOZADZE, Jul 02, 2018
DEBORAH S. HUNT, Clerk
Petitioner,
v.
ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS, III,
APPEALS
Attorney General,
Respondent.
BEFORE: MOORE, CLAY, and KETHLEDGE, Circuit Judges.
CLAY, Circuit Judge. Petitioner Prokofi Nozadze seeks review of a decision by the
Board of Immigration Appeals (“BIA”) denying his application for asylum pursuant to 8 U.S.C. §
1158 and 8 C.F.R. § 1208.13(b)(1)(iii); withholding of removal, pursuant to § 241(b)(3) of the
Immigration and Nationality Act; and withholding of removal under Article III of the United
Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46 (“CAT”). For the following reasons, we DENY the petition for
review.
No. 17-3587, Nozadze v. Sessions
BACKGROUND
These proceedings have been underway for nearly fifteen years. The factual background
was set forth succinctly in the administrative proceedings below, as follows:
[Petitioner] was a minibus driver in Georgia. While driving his routes, he began to
notice what he believed to be corrupt activities between Georgian soldiers and
Chechen “bandits.” He voiced his concerns to other members of his political party,
the Citizens’ Union of Georgia (“CUG”). When his concerns were ignored,
[Petitioner] wrote a letter detailing what he had seen to the government’s “Regional
Security Chief.” [Petitioner] was summoned to the security office on September 3,
2001. Upon arrival, he was told to “be quiet” about what he had witnessed during
his bus routes, and that it was none of his business. [Petitioner], however, continued
to insist that the government should prevent the acts of corruption between rebels
and the military. [Petitioner] was subsequently taken to a cell and beaten. He
testified that he was not fed and that he was so badly injured that he could not get
off the floor of his cell. [Petitioner] was released three days later. . . .
Next, in February 2002, [Petitioner]’s life was threatened. He testified that one day,
two Chechens and one Georgian soldier boarded his minibus after storing a small
mysterious package in the vehicle’s luggage compartment. A “monitoring group”
consisting of five individuals stopped the bus soon thereafter. Before [Petitioner]
had a chance to speak with the monitors, the Georgian soldier told [Petitioner] not
to reveal that he and the Chechens were responsible for placing the small package
in the luggage compartment. [Petitioner] felt that he “could not lie” to the monitors,
and when asked, identified the soldier and his Chechen associates as the owners of
the package. The five patrollers then arrested the two Chechens, and “ordered the
Georgian military person to go with them.” Before leaving, the Georgian soldier
turned to [Petitioner] and threated to kill him.
Two months later, in April 2002, [Petitioner] was driving his minibus route when
three soldiers and one officer in a Georgian military jeep stopped him. [Petitioner]
was instructed to get off the bus. Upon exiting, he was dragged into the woods and
beaten until he could not move. Two of the soldiers then set [Petitioner]’s minibus
on fire. [Petitioner] postulated that the attack was meant to make good on the threat
the Georgian soldier made in February, as [Petitioner] was still driving the same
van with the same license plate and markings. Fortunately, [Petitioner] was found
by a road patrol the next day and taken to the hospital, where he remained for three
days. [Petitioner] reported the incident to the police at the hospital; he was told that
an investigation would follow, but nothing came of his report.
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[Petitioner] ultimately left the CUG in June 2002. He had attended a party meeting
during which the president of Georgia spoke and indicated that some CUG
members had been interfering with government work. [Petitioner] believed that this
comment was directed at him. After hearing the president’s speech, [Petitioner]
scheduled a meeting with the head of the CUG. [Petitioner] expressed his
“surprise[] and disappoint[ment]” that his own party members did not support him
in his quest to fight corruption at the border. He then informed that head of the CUG
that he was withdrawing his membership in the CUG. [Petitioner] was told that his
leaving “would cause a lot of problems,” and that it would be “interesting” if
[Petitioner] were to leave the party. Nonetheless, [Petitioner] turned in his
membership card and certificate, confirming that he was no longer a member.
The final incident occurred in August 2002. [Petitioner] was dropping off a patron
at a railroad station in his new minibus when three CUG members approached him
and forced him into a vehicle, threatening to shoot him for noncompliance. They
drove him approximately twenty minutes away and beat him with batons. They
called him names and said that he “can’t leave the party that easy.” After beating
him, the CUG members forced him to call his wife and have her deliver the
equivalent of $10,000 to the CUG headquarters. [Petitioner] was held until the
members received confirmation that the money had been received. [Petitioner] was
hospitalized for three days as a result of his injuries. [Petitioner] testified that he
did not file a police report because, based on his past experience filing a report, he
felt his complaint would be ignored.
(A.R. 261–63 (internal citations omitted).)
Following the above-described events, Petitioner and his wife came to the United States.
On August 14, 2003, the government initiated removal proceedings. Petitioner conceded that he
was unlawfully living in the United States, and he applied to remain in the country through various
means, including asylum, withholding of removal, and the CAT. The government eventually held
removal proceedings in May 2012 and issued a denial of Petitioner’s application on all grounds
later that year. Petitioner appealed to the BIA, which remanded for additional proceedings.
Following these proceedings, however, the government again denied Petitioner’s application, and
it ordered Petitioner’s removal to Georgia. Petitioner again appealed to the BIA, but this time the
BIA dismissed his appeal in a written decision. Petitioner then filed this timely request for review.
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DISCUSSION
Standard of Review
This Court reviews the decision of the BIA as the final agency determination under the
substantial evidence standard where, as here, “the BIA issues its own opinion rather than
summarily adopt[ing] the findings of the IJ.” Bi Xia Qu v. Holder, 618 F.3d 602, 605 (6th Cir.
2010) (citing Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)). “To the extent the BIA
adopted the immigration judge’s reasoning, however, this Court also reviews the immigration
judge’s decision.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citing Patel v. Gonzales,
470 F.3d 216, 218 (6th Cir. 2006)). The substantial evidence standard requires that this Court
uphold the BIA’s decision unless it is “manifestly contrary to the law.” Bi Xia Qu, 618 F.3d at
605 (quoting Castellano–Chacon v. INS, 341 F.3d 533, 552 (6th Cir. 2003)); see also Koulibaly v.
Mukasey, 541 F.3d 613, 619 (6th Cir. 2008). This Court will uphold administrative findings of
fact unless the Court finds that “any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see also I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992);
Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006). Meanwhile, “[t]his Court reviews legal
conclusions of the BIA de novo but defers to the agency’s reasonable interpretations of its own
precedents.” Bi Xia Qu, 618 F.3d at 606 (internal citations omitted).
Refugee Asylum
Petitioner first requests review of the BIA’s denial of his application for refugee asylum.
The Attorney General has discretion to grant asylum to an alien who qualifies as a refugee under
the Immigration and Nationality Act (the “Act”), 8 U.S.C. § 1101, et seq. See Elias-Zacarias, 502
U.S. at 481; Bi Xia Qu, 618 F.3d at 606. As relevant to this case, the Act defines a refugee as an
alien who is unable or unwilling to return to his or her home country because of “a well-founded
fear of persecution on account of race, religion, nationality, membership in a particular social
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group, or political opinion.” See 8 U.S.C. § 1101(a)(42)(A); Elias-Zacarias, 502 U.S. 478 at 481;
Bi Xia Qu, 618 F.3d at 606. A petitioner is presumed to have a well-founded fear of future
prosecution if the petitioner shows that he or she has suffered such persecution in the past. 8 C.F.R.
§ 208.13(b)(1); see Bi Xia Qu, 618 F.3d at 606. The government “may rebut this presumption by
showing, by a preponderance of the evidence, that conditions in the country have changed so
fundamentally that the applicant no longer has a well-founded fear of future persecution.”
§ 208.13(b)(1); see Bi Xia Qu, 618 F.3d at 606 (citing Singh v. Ashcroft, 398 F.3d 396, 401 (6th
Cir. 2005)). One example of a fundamental change is the ouster of the political regime responsible
for the petitioner’s prior political persecution. See Liti v. Gonzales, 411 F.3d 631, 639 (6th Cir.
2005) (citing cases), superseded by statute on other grounds as stated in Marikasi v. Lynch, 840
F.3d 281 (6th Cir. 2016).
Absent a presumption created by past persecution, or where the government rebuts such a
presumption, the applicant has the burden of proof to establish that he or she has a well-founded
fear of future persecution based on current circumstances. See 8 C.F.R. § 208.13(b) (allowing an
applicant to qualify for asylum “either because he or she has suffered past persecution or because
he or she has a well-founded fear of future persecution” (emphases added)); Liti, 411 F.3d at 639.
This Court has previously described this burden as follows:
An alien may establish a well-founded fear of future persecution by demonstrating:
(1) that he has a fear of persecution in his home country on account of race, religion,
nationality, membership in a particular social group, or political opinion; (2) that
there is a reasonable possibility of suffering such persecution if he were to return
to that country; and (3) that he is unable or unwilling to return to that country
because of such fear. A well-founded fear of persecution thus has both a subjective
and an objective component: an alien must actually fear that he will be persecuted
upon return to his country, and he must present evidence establishing an “objective
situation” under which his fear can be deemed reasonable. A well-founded fear of
persecution does not require the applicant to show that he probably will be
persecuted if he is deported; one can certainly have a well-founded fear of an event
happening when there is less than a 50% chance of the occurrence taking place.
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Pilica v. Ashcroft, 388 F.3d 941, 950–51 (6th Cir. 2004) (citing and quoting 8 C.F.R.
§ 208.13(b)(2)(i); Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998); and Perkovic v. INS,
33 F.3d 615, 620–21 (6th Cir. 1994)) (internal quotation marks and alterations omitted).
In this case, the BIA’s denial of Petitioner’s application for refugee asylum is supported by
substantial evidence. The BIA first found that Petitioner is entitled to a rebuttable presumption of
a well-founded fear of future persecution. The BIA noted that Petitioner “twice suffered a
deprivation of liberty, was badly beaten three times, he was extorted, his minibus was destroyed,
and his life was threatened.” (A.R. 263.) Further, Petitioner was “(1) harmed and detained by the
government because of his report to the Regional Security Chief; (2) harmed and kidnapped by
the CUG in part for his decision to leave the party; and (3) assaulted by members of the Georgian
military based upon what may have been a random act of violence.” (Id. (quoting prior BIA
decision).) The BIA concluded that each of these incidents was motivated at least in part by
Petitioner’s political opinion insofar as Petitioner had voiced his opposition to corruption. The
BIA also addressed “the somewhat perplexing identity of [Petitioner]’s persecutors,” concluding
that both the CUG and the Georgian government could be described as responsible for the
persecution against Petitioner because the two entities “were effectively one and the same” at the
time of Petitioner’s persecution.1 (A.R. 266–67.) Neither party contests these findings of fact or
1
Petitioner raises several arguments based on the premise that he “was found to have been
persecuted not only by CUG but also, separately . . . that he was persecuted by the Georgian
government.” (See, e.g., Pet. Br. 15.) All of these arguments fail for the same reason: the BIA
did not find that Petitioner was persecuted by two distinct entities; it found that a single entity—
comprised of the CUG acting as the Georgian government—was responsible for Petitioner’s
persecution.
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the BIA’s corresponding legal conclusion that Petitioner is entitled to a rebuttable presumption of
a well-founded fear of future persecution.
The BIA next found that the government is able to rebut this presumption. This
determination, which Petitioner challenges, is supported by substantial evidence. To show that
conditions in Georgia have undergone a fundamental change such that Petitioner’s fear of
persecution based on past persecution is no longer well-founded, the government offered evidence
that Georgia has undergone two major political transformations since Petitioner suffered
persecution at the hands of the CUG. The record shows that the CUG divided into several factions
in the early 2000s and no longer exists as a political party in Georgia. One of the factions, known
as the United National Movement (“UNM”), replaced the CUG as the governing party after
campaigning against the CUG’s corrupt and anti-democratic practices. The UNM was
subsequently ousted in 2012 by a “pro-NATO, western-oriented coalition” called the Georgian
Dream Movement (“GD”). (A.R. 186.) The record shows that Georgia has experienced the “near-
eradication of low-level corruption in state services” as a result of these political changes (A.R.
206–07) and that the transition from the UNM to the GD was the country’s “first peaceful transfer
of power through voting.” (A.R. 186). Indeed, 77% of Georgians now “believe their government
has been effective or extremely effective in fighting corruption.” (A.R. 206–07.) Substantial
evidence therefore supports the BIA’s conclusion that the CUG was ousted both in spirit and in
name.
The circumstances of this case are analogous to those that this Court encountered in Liti.
See Liti, 411 F.3d at 631. In Liti, two individuals fled communist Albania after being repeatedly
arrested and jailed for participating in anti-communist activities. See id. at 634–35. Albania’s
communist regime was then ousted, and the new leadership abandoned communism. See id. The
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two individuals applied for asylum and withholding of removal in the United States, asserting that
they feared persecution based on their past experience with the communist government. See id. at
635. The BIA denied the application for asylum because the applicants’ politically motivated
persecution was committed at the hands of a government that was no longer in power, and this
Court agreed that the government’s evidence of the fall of the Communist party was sufficient to
shift the burden back to the applicants to “demonstrate a well-founded fear of future persecution
notwithstanding the political change which has occurred in Albania since they left in 1990.” Id.
at 635, 639 (emphasis added). The government’s evidence of the CUG’s downfall in this case
leads to the same conclusion, shifting the burden back to Petitioner to show a well-founded fear of
future persecution notwithstanding the political change that has occurred in Georgia since he
experienced persecution in the past.
Petitioner insists that the BIA’s determination is not supported by substantial evidence
because “many senior [CUG] people are still in positions of power.” (Pet. Br. 16; see also id. at
20 (“The new government is filled with former CUG politicians.”).) But we rejected this same
argument in Liti, finding inconsequential the applicants’ unsupported assertion that Albania’s new
government was “comprised of the same people who were in power during the communist regime
or their descendants.” Liti, 411 F.3d at 635. Petitioner does not provide a persuasive basis to
differentiate his argument from that made in Liti; the record simply does not support Petitioner’s
argument that the new government is the “[s]ame people, different name.” (Pet. Br. 20.)
Finally, with the burden shifted back to Petitioner, the BIA found that Petitioner fails to
demonstrate a well-founded fear of future persecution despite the downfall of the CUG. This
determination, too, is supported by substantial evidence. An applicant might have a well-founded
fear of future persecution despite the collapse of the party responsible for his persecution if, for
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example, specific party leaders known to be hostile to the applicant continue to wield power in the
new government, or if the new government, despite reforming in other ways, has maintained the
prior regime’s practice of persecuting those who share the applicant’s political opinions. In this
case, however, Petitioner failed to submit any such evidence, and the record shows that the CUG’s
influence today is limited. Petitioner now makes the unsubstantiated assertions that the “CUG is
reconstituted in power but only not in the name ‘CUG,’” and “the country conditions are really not
changed[.]” (Pet. Br. 20.) Petitioner attempts to bolster this claim with record evidence showing
that senior positions in the Ministry of the Interior and in the Prosecutor General’s office of the
current government “went to figures known for their ties to some of the most corrupt and pro-
Russian politicians in the Shevardnadze [CUG] era.” (A.R. 126.) But rather than supporting
Petitioner’s position, this evidence demonstrates just how thoroughly the CUG-era government
has been dismantled; that is, very few senior government officials in Georgia today even have ties
to the former CUG. Petitioner further suggests that these officials “are the ones that persecuted
[Petitioner], members of Citizens’ Union of Georgia (CUG),” (Reply at 3), but there is no evidence
in the record to suggest that any of the current government officials—who merely have ties to the
former CUG—served in the CUG-era government or, more importantly, that such officials have
ever supported the persecution of citizens who, like Petitioner, oppose corruption. The record
supports the BIA’s finding that the party responsible for Petitioner’s persecution was ousted after
Petitioner came to the United States. Thus, Petitioner’s argument on appeal is unpersuasive, and
we decline to review the BIA’s determination with regard to Petitioner’s application for refugee
asylum.
Humanitarian Asylum
Petitioner next requests review of the BIA’s denial of his application for humanitarian
asylum. In the absence of a well-founded fear of future persecution, an applicant may nevertheless
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be eligible for a discretionary grant of humanitarian asylum if he or she “has suffered under
atrocious forms of persecution.” Ben Hamida v. Gonzales, 478 F.3d 734, 740 (6th Cir. 2007)
(quoting Matter of Chen, 20 I. & N. Dec. 16, 19 (BIA 1989)). This rule is set forth in immigration
regulations, which provide:
An applicant described in paragraph (b)(1)(i) of this section who is not barred from
a grant of asylum under paragraph (c) of this section, may be granted asylum, in
the exercise of the decision-maker’s discretion, if:
(A) The applicant has demonstrated compelling reasons for being unwilling
or unable to return to the country arising out of the severity of the past
persecution; or
(B) The applicant has established that there is a reasonable possibility that
he or she may suffer other serious harm upon removal to that country.
8 C.F.R. § 1208.13(b)(1)(iii). Under the first prong, “humanitarian asylum grants on account of
past persecution are reserved for only the most severe cases and should only be granted if the ‘past
persecution was so severe that returning the alien to his or her native country would be inhumane.’”
Lleshi v. Holder, 460 F. App’x 520, 525 (6th Cir. 2012) (quoting Klawitter v. I.N.S., 970 F.2d 149,
153 (6th Cir. 1992)). Examples of severe cases where discretionary asylum may be granted under
the first prong of § 1208.13(b)(1)(iii) include, among others, “the German Jews, the victims of the
Chinese ‘Cultural Revolution’, [and] survivors of the Cambodian genocide.’” Id. (quoting Hana
v. Gonzales, 157 Fed. App’x. 880, 884 (6th Cir. 2005)). Meanwhile, discretionary grants of asylum
under the second prong of the regulation are reserved for “cases where it is appropriate to offer
protection to applicants who have suffered persecution in the past and who are at risk of future
harm that is not related to a protected ground.” Liti, 411 F.3d at 642 (quoting 63 Fed. Reg. 31945,
31947 (June 11, 1998)). Thus, “other serious harm” in this context means “harm that is not
inflicted on account of race, religion, nationality, membership in a particular social group, or
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political opinion, but is so serious that it equals the severity of persecution.” 65 Fed. Reg. 76121–
01, 76127 (Dec. 6, 2000) (emphasis added).
In this case, Petitioner argues that the BIA erred in two ways when it denied his application
for humanitarian asylum. Neither argument has merit. First, Petitioner argues that the BIA
erroneously denied his application under the first prong, which permits a grant of discretionary
asylum based on “the severity of the past persecution.” § 1208.13(b)(1)(iii)(A). Specifically,
Petitioner argues that the BIA elevated the regulation’s requirements, requiring Petitioner to show
that he was the victim of a “systemic genocide-type atrocity as what occurred to the German Jews,
the Cultural Revolution and the Cambodian genocide,” rather than conducting an “individualized
analysis of what occurred personally to [Petitioner].” (Pet. Br. 23.) Petitioner’s argument fails
because it relies on a mischaracterization of the BIA’s decision. The BIA conducted precisely the
type of individualized review that Petitioner requests, and it applied the correct standard when
doing so. In reviewing Petitioner’s application for humanitarian asylum, the BIA examined
Petitioner’s past persecution in Georgia, noting that it consisted of “beatings, threats, extortion,
and deprivation of liberty during separate incidents,” before reasonably concluding that such
persecution “does not reach the level of severity described by the Board in our precedent decisions
or by the Sixth Circuit in their discussion of this issue.” (A.R. 6 (citing cases).) Although some
of the prior cases that the BIA cited refer to victims of “systemic atrocities,” the BIA correctly
noted that humanitarian asylum “is discretionary,” “is reserved for extreme cases,” and “is only
granted where it would be ‘inhumane’ to return the alien to his native country.” (A.R. 62.)
Petitioner’s argument that the BIA applied an incorrect legal standard under
§ 1208.13(b)(1)(iii)(A) therefore fails.
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Second, Petitioner argues that the BIA should have granted him asylum under the second
prong of the regulation, which permits a discretionary grant of asylum upon a showing of “a
reasonable possibility that [the applicant] may suffer other serious harm upon removal to that
country.” § 1208.13(b)(1)(iii)(B). Petitioner argues that he would be subject to “other serious
harm” based on his political beliefs if he were removed to Georgia because “corruption is still a
huge problem.” (Pet. Br. 25.) In support, Petitioner cites reports of “violence against dissenting
political opinions” in Georgia. (Id.) But the BIA correctly found this argument to be inapposite.
Petitioner misapprehends § 1208.13(b)(1)(iii)(B), treating it as another mechanism by which he
might demonstrate a well-founded fear of future persecution based on his political beliefs. The
regulation instead codifies the government’s discretion to provide asylum to those who may suffer
“other serious harm”—that is, “harm that is not inflicted on account of . . . political opinion.” 65
Fed. Reg. 76121–01, 76127 (Dec. 6, 2000) (emphases added); see Liti, 411 F.3d at 642.
Accordingly, Petitioner’s argument under § 1208.13(b)(1)(iii)(B) has no merit, and we decline to
review the BIA’s denial of Petitioner’s application for humanitarian asylum.
Convention Against Torture
Finally, Petitioner asserts that he is entitled to withholding of removal under the CAT. The
standard for obtaining protection under the CAT differs from that of asylum in that it “is not
conditioned on proof that the alien would be persecuted on a protected ground.” Kamar v.
Sessions, 875 F.3d 811, 820 (6th Cir. 2017) (emphasis added). Instead, an applicant must make a
separate showing that “it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
Petitioner failed to properly invoke the CAT below. Petitioner asserted that the very same
evidence that purportedly demonstrated his well-founded fear of political persecution also
provided grounds for withholding of removal under the CAT. But political persecution may or
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may not involve torture. Therefore, evidence of political persecution, regardless of its
persuasiveness, is insufficient to support relief under the CAT. See Kamar, 875 F.3d at 820. In
order to succeed under the CAT, Petitioner was required to make an independent showing that he
would likely be tortured upon removal. Id. Petitioner failed to do so.
Petitioner now raises a different argument, asserting that CAT relief is warranted “as a
matter of law” because the record evidence “is replete with examples of torture by the Georgian
government” and because “public officials in Georgia are complicit in or are willfully blind to the
torture of political or other opponents.” (Pet. Br. 29–30.) But Petitioner forfeited this argument
in his administrative proceedings by failing to raise it, and this Court therefore has no discretion
to entertain it. Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004) (“[F]ailure to raise, on such
an appeal, a particular question concerning the validity of the order constitutes a failure to exhaust
administrative remedies with regard to that question, thereby depriving a court of appeals of
jurisdiction to consider that question.”). We therefore deny Petitioner’s request for review of the
BIA’s denial of relief under the CAT.
CONCLUSION
We DENY Petitioner’s request for review.
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