Gurgen Tkhelidze v. Attorney General United States ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 17-2470
GURGEN TKHELIDZE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A059-977-740)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 19, 2018
Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges
(Opinion filed: January 23, 2018)
OPINION ∗
KRAUSE, Circuit Judge.
Petitioner Gurgen Tkhelidze, a native and citizen of Georgia, petitions for review
of an order of the Board of Immigration Appeals (BIA), which affirmed the order of
removal and denial by the Immigration Judge (IJ) of his requests for asylum, withholding
of removal, and protection under the Convention Against Torture (CAT).
Petitioner was ordered removed based on his guilty plea to retail theft and
possession of cocaine, and the IJ and BIA rejected his claims that he qualifies for relief
based on a stabbing he suffered in 2007 while living in Georgia, and on persistent
harassment he allegedly experienced at school during his childhood—both of which he
contends were due to his Ossetian ethnicity.
Because the BIA committed no errors of law, we will deny the petition for review.
I. Jurisdiction and Standard of Review
The BIA had jurisdiction over Petitioner’s appeal from the IJ’s removal order
under 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction over his petition for review of the
BIA’s final order of removal under 8 U.S.C. § 1252(a)(1). “When the BIA issues a
separate opinion . . . we review the BIA’s disposition and look to the IJ’s ruling only
insofar as the BIA defers to it.” Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010).
∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
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Because Petitioner is removable on account of a conviction for possession of cocaine, we
may not review the BIA’s factual or discretionary determinations. 8 U.S.C.
§ 1252(a)(2)(C); Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010). We review the
BIA’s legal conclusions de novo. Alimbaev v. Att’y Gen., 872 F.3d 188, 194 (3d Cir.
2017).
II. Discussion
Petitioner raises a number of challenges to the rulings of the IJ and BIA, but the
thrust of his petition is that the IJ and BIA misapplied the pertinent legal tests and
standards of review. As explained below, however, these arguments misapprehend the
actual rulings of the IJ and BIA and the relevant framework of analysis. Petitioner’s
remaining claims also fail, as they either fail to raise a cognizable legal issue or exceed
the scope of our review.
A. Claims That Rest on Misapprehensions of the Record
Petitioner claims that the IJ and BIA erred in denying asylum and withholding of
removal without first rebutting a presumption of future persecution, and that the IJ and
BIA erred in finding that Petitioner did not meet his burden under the CAT. These
arguments each rely on the premise that the IJ made required predicate factual findings—
respectively, that Petitioner had suffered past persecution, and that some ill was likely to
be perpetrated against Petitioner upon his return to Georgia—but the record reflects that
the IJ, in fact, made neither.
To demonstrate eligibility for asylum, an applicant must establish either “past
persecution or a well-founded fear of future persecution,” Kibinda v. Att’y Gen., 477 F.3d
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113, 119 (3d Cir. 2007) (citing 8 U.S.C. § 1158(b)(1)), and to obtain withholding of
removal, an applicant must show that “it is more likely than not that [the applicant] would
be subject to persecution,” Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (internal
quotation marks omitted). As Petitioner correctly notes, an IJ’s finding that an applicant
suffered past persecution creates a rebuttable presumption that the applicant will suffer
future persecution if removed to his home country, 8 C.F.R. §§ 1208.13(b)(1) (asylum);
1208.16(b)(1)(i) (withholding of removal), and to establish persecution, the applicant
must show “(1) an incident, or incidents, that rise to the level of persecution; (2) that is on
account of one of the statutorily-protected grounds [such as race or ethnicity]; and (3) is
committed by the government or forces the government is either unable or unwilling to
control,” Camara v. Att’y Gen., 580 F.3d 196, 202 (3d Cir. 2009) as amended (Nov. 4,
2009) (internal quotation marks omitted).
Petitioner contends he is entitled to the rebuttable presumption of future
persecution based on the IJ’s finding that he suffered past persecution. But that conflates
the factual and legal aspects of asylum and withholding of removal claims, and misstates
the facts actually found by the IJ. True, the IJ found that Petitioner “was attacked
because of his race or ethnicity,” but the IJ then explicitly found that Petitioner was
“unable to establish . . . that his government was unable or unwilling to protect him.”
App. 10-11. Indeed, the IJ found the opposite, observing that Petitioner’s attacker was
“apprehended in short order,” subsequently investigated, and then “prosecuted and . . .
sentenced to jail for five years.” App. 11. Because Petitioner did not make the required
factual showing that the government was unable or unwilling to control his attackers, the
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IJ could not have made a finding of past persecution; and without a finding of past
persecution, there was no rebuttable presumption of future persecution. As a result,
Petitioner’s arguments that turn on the Government’s failure to rebut that presumption
cannot succeed.
Similarly, to meet his burden of proof under the CAT, Petitioner must show that it
is “more likely than not that he . . . would be tortured if removed to the proposed country
of removal,” 8 C.F.R. § 208.16(c)(2), a showing that requires him to establish, among
other elements, that public officials would “consent or acquiesce” to any mistreatment.
Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017). The acquiescence inquiry is two-
part: “First, the IJ makes a factual finding or findings as to how public officials will
likely act in response to the harm the petitioner fears.” Id. at 516. Second, the IJ makes
the legal determination of “whether the likely response from public officials qualifies as
acquiescence under the governing regulations.” Id. Here again, Petitioner conflates the
factual and legal components and fails to acknowledge the factual predicate is simply
absent: The IJ determined there was “no evidence” that the government would fail to
prosecute any future crimes; that, to the contrary, the Georgian government previously
“prosecuted his attacker”; and that in any event, no harm was likely because Petitioner
“was unharmed until the incident in 2007.” App. 13. Based on those facts, the IJ
concluded that Petitioner could not establish the government would be likely to consent
to his maltreatment. App. 13. The BIA found “no clear factual error or legal error” in
those determinations. App. 6. As Petitioner failed to show any likelihood of harm with
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the consent or acquiescence of a public official, the BIA and IJ correctly held he did not
sustain his burden under the CAT.
Given the IJ’s actual findings, Petitioner also fails in his argument that the BIA
misapplied the applicable standard of review. Petitioner contends that the BIA should
have reviewed de novo: (1) whether the Georgian government is unable or unwilling to
control any persecutors, and (2) whether Petitioner is likely to face persecution upon
return to Georgia. But the first question is the same factual predicate discussed above,
which the IJ explicitly refused to find, and which is a factual question subject to clear
error review. See Fiadjoe v. Att’y Gen., 411 F.3d 135, 153 (3d Cir. 2005) (describing the
finding of whether a government is “either unable or unwilling to control” a persecutor as
“factual”). And while the second question may present a legal issue that the BIA must
review de novo, the record indicates that the BIA here did just that, reviewing the well-
founded fear of persecution issue de novo, while properly applying clear error review to
the underlying factual predicates. 1 Specifically, the BIA prefaced each of the factual
1
We note that we have taken somewhat different approaches to the standard of
review that the BIA must apply to the IJ’s determination whether a petitioner is likely to
face persecution upon return to his or her country of origin. Compare Shardar v.
Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004) (describing whether a petitioner has
demonstrated a well-founded fear of future persecution as a “factual question”), with
Huang, 620 F.3d at 387 (describing the “well-founded fear determination” as a “question
of law” subject to de novo review). Similarly, while Petitioner does not challenge the
BIA’s application of the correct standard of review to the CAT, we also note the
inconsistency between the standard of review in asylum cases, where the BIA assesses
for clear error whether a government is able or willing to control persecutors, see
Fiadjoe, 411 F.3d at 153, and the standard of review in CAT cases, where the BIA
assesses de novo the arguably analogous question whether government conduct amounts
to acquiescence, see Myrie, 855 F.3d at 516. However, as the BIA applied the more
rigorous de novo standard to the well-founded fear inquiry, and the IJ never found the
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questions to which it applied clear error review—such as whether the person who
attacked Petitioner in 2007 was prosecuted and punished—with an unambiguous
statement that it was only reviewing for clear error. App. 5 (“The [IJ] further did not
clearly err in holding that . . . the evidence shows that the attacker was prosecuted . . . .”
(emphasis added)). But it gave no such qualifier when resolving whether Petitioner has
established a well-founded fear of future persecution, indicating it instead reviewed that
question de novo. And because Petitioner failed to establish the factual predicates for
that legal claim—that is, any indication that the Georgian government was unable or
unwilling to control would-be persecutors—the BIA did not err in concluding on plenary
review that Petitioner’s asylum and withholding of removal claims lacked merit.
B. Claims Failing to Establish Legal Error or Exceeding Our Review
We may dispose quickly of Petitioner’s three remaining claims. First, Petitioner
asserts that the IJ violated his due process rights by refusing to allow all of his witnesses
to present oral testimony. Those rulings, however, fall well within an IJ’s discretion to
conduct trial proceedings. Due process requires “a full and fair hearing that allows [the
alien threatened with removal] a reasonable opportunity to present evidence,” Cabrera-
Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir. 2006) (per curiam), but “IJs are entitled to
broad (though not uncabined) discretion over the conduct of trial proceedings,” and due
process will only be violated if the proceedings “amount to a denial of . . . fundamental
fairness,” Muhanna v. Gonzales, 399 F.3d 582, 587 (3d Cir. 2005) (internal quotation
required factual predicates for either asylum or relief under the CAT, these issues are not
squarely presented before us in this case. We leave their resolution for another day.
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marks omitted). The witnesses that Petitioner wished to present—the attorney who
represented him after he was stabbed in 2007, an expert on country conditions in Georgia,
Petitioner’s sister, and his ex-wife—had either already submitted written statements into
the record, or, in the ex-wife’s case, by Petitioner’s counsel’s own admission, would have
testified to duplicative material. The IJ also admitted statements from both of Petitioner’s
parents, as well as a country conditions report, and made clear that he had considered
both Petitioner’s own testimony, as well as the documents submitted, in rendering his
decision. On this record, we cannot say that Petitioner was denied “fundamental
fairness.” Muhanna, 399 F.3d at 587.
Second, Petitioner asserts his due process rights were violated and that the IJ
abused its discretion when the IJ refused to hear testimony and argument related to his
criminal convictions and then denied asylum as a matter of discretion on the basis of
those same convictions. But those IJ determinations were not relevant to the BIA’s
decision to affirm the IJ. As noted, we only review the IJ’s ruling “insofar as the BIA
defers to it,” Huang, 620 F.3d at 379, and the BIA explicitly refused to “reach the
Immigration Judge’s denial of asylum in the exercise of discretion and [Petitioner’s]
related arguments,” instead affirming on the basis that Petitioner had failed to show the
Georgian government would be unable to control would-be persecutors. App. 5.
Because the BIA did not rely on the IJ’s exercise of discretion, we have no occasion to
review that part of the IJ’s ruling. See Huang, 620 F.3d at 379.
Finally, Petitioner contends that the IJ and BIA misapplied 8 C.F.R.
§ 208.16(b)(2), which prohibits IJs from requiring applicants “to provide evidence that he
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or she would be singled out individually for . . . persecution.” However, that regulation
only applies if the applicant can show: (1) “a pattern or practice of persecution of a group
of persons similarly situated to the applicant,” and (2) “his or her own inclusion in and
identification with such group of persons.” Id. Here, there is no indication in the record
that the IJ or BIA found either requirement satisfied. Although Petitioner argues
forcefully that the IJ should have made these findings, the facts he did find we are
without jurisdiction to review. 8 U.S.C. § 1252(a)(2)(C); Kaplun, 602 F.3d at 265.
* * *
In sum, we conclude that each of Petitioner’s claims misapprehends the record,
fails to demonstrate the IJ or BIA committed legal error, or is beyond the scope of our
review. Accordingly, the petition for review will be dismissed in part and denied in part.
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