Ambartsoumian v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

11-1-2004

Ambartsoumian v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-1961

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STEVEN P. BARSAMIAN (ARGUED)

PRECEDENTIAL 2021 Locust Street

Philadelphia, PA 19103

UNITED STATES COURT OF Attorney for Petitioner

APPEALS

FOR THE THIRD CIRCUIT

_____________________ PETER D. KEISLER

Assistant Attorney General, Civil

NO. 03-1961 Division

______________________ ANTHONY W. NORWOOD

Senior Litigation Counsel

GAREGIN AMBARTSOUMIAN; JENNIFER A. LEVINGS (ARGUED)

NADIA AMBARTSOUMIAN; United States Department of Justice

KARINA AMBARTSOUMIAN; Office of Immigration Litigation

RIMMA AMBARTSOUMIAN, Ben Franklin Station

Petitioners P.O. Box 878

Washington, DC 20044

v.

Attorneys for Respondent

JOHN ASHCROFT, ATTORNEY

GENERAL ________________________

OF THE UNITED STATES OF

AMERICA, OPINION OF THE COURT

Respondent ________________________

______________________

BECKER, Circuit Judge.

On Petition for Review of Orders of the

Board of Immigration Appeals This is a petition by Garegin

(Board Nos. A75-006-540; Ambartsoumian (“Garegin”), his wife

A75-006-541; Nadia Ambartsoumian (“Nadia”), and their

A75-006-543; A75-559-426) two children, for review of an order of the

________________________ Board of Immigration Appeals (BIA)

denying them asylum, withholding of

Argued October 5, 2004 removal, and protection under the

Convention Against Torture. It is, in a

Before: SLOVITER, BECKER and way, a tale of two countries—the Ukraine

STAPLETON, Circuit Judges and Georgia. Garegin is a Georgian citizen

of Armenian and Ossetian parentage.

(Filed: November 1, 2004) Nadia is a Ukrainian citizen and a Baptist.

The Ambartsoumians married in the

Ukraine in 1989, and spent much of the

next three years shuttling back and forth Abkhazia and South Ossetia.1 The record

between their two native countries. They contains evidence that in 1989 the

arrived in the United States in 1996, after Ambartsoumians received death threats

a sojourn in Canada, and applied for from Georgian nationalists; that in 1990

asylum, claiming that they had faced both Nadia and Garegin were badly

persecution in both Ukraine and Georgia beaten; and that in 1992, upon his return

and would be persecuted in either country from Ukraine, an attempt was made to

if obliged to return. conscript Garegin into the Georgian army.

However, the Ambartsoumians’ principal

The case for persecution in the

contention before us, supported by an

Ukraine is extremely weak. It is largely

expert witness— a professor specializing in

predicated on events that took place, and

the history and politics of the region—is

on policies and attitudes that existed,

that ethnic hostility toward Armenians and

before the breakup of the Soviet Union

and the establishment of an independent

Ukraine. Except for an alleged beating in

1

1991 and a putative attempt to kidnap the Abkhazia is a region in northwest

Ambartsoumians’ children in 1992, the Georgia, along the coast of the Black Sea

record includes nothing more than and the Russian border. It declared

sporadic veiled threats and a lack of independence in 1992, and was the scene

economic opportunity in the Ukraine. The of a bloody war in 1992-1993. See A

Ambartsoumians did adduce evidence that Matter of Russian Honour—Russia, The

the climate in the Ukraine is inhospitable Economist, Aug. 21, 2004, available at

to Armenians. However, the record, 2004 WL 62019076. South Ossetia is in

including State Department reports on north-central Georgia, bordering on the

country conditions, reflects a total change North Ossetia region of Russia. It

in the governmental policies of the declared independence from Georgia in

Ukraine since 1991, and nothing in the 1990, intending to reunite with North

record suggests that the Ambartsoumians Ossetia; this sparked a war lasting until

would now be persecuted in the Ukraine 1992. See Fact Sheet: Georgia, Dep’t St.

for either their ethnicity or their religious Dispatch, May 9, 1994, at 296, available

beliefs. at 1994 WL 2848944. Currently, Russian

and UN peacekeepers maintain truces in

The case for persecution in Georgia

Abkhazia and South Ossetia, see CIA

seems more complicated in light of the

World Factbook—Georgia, at

fluid political situation in the North

http://www.cia.gov/cia/publications/factb

Caucasus and the continuing tensions in

ook/geos/gg.html, but the government of

Georgia still does not control those areas,

see Putting Out More Flags— Georgia,

The Economist, July 24, 2004, available

at 2004 WL 62018768.

2

religious hostility toward non-Orthodox been pertinent, intervening events in the

Christians would now render the country of removal; and (2) whether the

Ambartsoumians subject to persecution in issues on review are ‘time sensitive’ in that

Georgia. changes in conditions over time may affect

the resolution of the issues.” The full text

The latest State Department

of the procedures are set forth in the

Country Report in the record, for 1998,

Appendix to this opinion. We commend

counters the expert’s opinion. We

the Attorney General and OIL on this

therefore asked the parties to comment on

reform.

the adequacy of the administrative record,

given the current situation in Georgia, in N o t w i t h s ta n d i n g the new

light of our opinions in Berishaj v. procedures, the OIL concluded that the

Ashcroft, 378 F.3d 314, 328-31 (3d Cir. record in this case does not warrant a

2004), and Gambashidze v. Ashcroft, 381 remand to the BIA. Concomitantly, the

F.3d 187, 193-94 (3d Cir. 2004). In these Ambartsoumians’ counsel, at oral

cases, we expressed our concerns about argument, agreed that the record before the

being forced to use stale administrative agency was sufficient for this Court to

records to decide petitions seeking to consider, although he argued that it

avoid deportation to countries of origin compelled us to reject the IJ’s findings.

where asylum applicants might be Since both parties seem to agree that the

persecuted. staleness of the record does not present

any difficulties here, we reach the merits

In response to our request for

of the persecution claims.

comment, the Attorney General reported

that the Department of Justice has The government submits that the

responded to Berishaj by implementing a record does not compel the conclusion that

new procedure pursuant to which the there was past persecution, or that the

Office of Immigration Litigation (OIL), in Ambartsoumians will face persecution if

consultation with its client agencies, now returned to Georgia. For the reasons that

screens out and seeks to remand cases follow, we agree. As will appear,

where records are out of date and not important to this conclusion are the facts

appropriate for judicial review. All OIL that: (1) the Ambartsoumians’ expert, Dr.

attorneys have been instructed to consider Ronald Suny, was too general and broad-

whether the record in each case assigned to brushed to overcome the 1998 Country

them is so out of date as to justify a Report’s account of greatly improved

remand. If the record is stale, the OIL conditions for Armenians in Georgia; (2)

attorney is to bring the case to the attention Suny acknowledged that the situation in

of the Director of OIL, who may seek a Georgia had significantly improved and

remand as a matter of discretion. The that the government was not a likely

factors that OIL will use in assessing old persecutor; and (3) the real problem was

records include “(1) whether there have only that Georgia was a “weak state”

3

where Armenians are not popular. Because we find that the Ambartsoumians

are not eligible for asylum, we need not

For these reasons, the Petition for

consider their eligibility for withholding of

Review will be denied.

removal under this stricter standard. See

I. The Legal Framework Shardar v. Ashcroft, 382 F.3d 318, 324 (3d

Cir. 2004).

The Attorney General may, in his

discretion, grant asylum to any alien if he The standard for CAT protection is

determines that the alien is a refugee. 8 different from that for asylum or

U.S.C. § 1158(b)(1). To demonstrate that withholding of removal; it requires proof

he or she is a refugee, an asylum applicant that the applicant is “more likely than not”

must establish that he or she is unable or to be tortured, 8 C.F.R. § 1208.16(c)(2),

unwilling to return to his or her native but does not require any showing that the

country because of “persecution or a well- torture is on account of any protected

founded fear of persecution on account of ground. See Lukwago v. Ashcroft, 329 F.3d

race, religion, nationality, membership in 157, 183 (3d Cir. 2003).

a particular social group, or political

The Immigration Judge denied the

opinion.” 8 U.S.C. § 1101(a)(42)(A). A

Ambartsoumians’ requests for relief, but

showing of past persecution gives rise to a

granted them voluntary departure. The

rebuttable presumption of a well-founded

Board of Immigration Appeals affirmed

fear of future persecution. 8 C.F.R.

without opinion, pursuant to 8 C.F.R.

§ 1208.13(b)(1). The burden of proving

§ 1003.1(e)(4).2 Therefore, we review only

persecution is on the asylum applicant.

the decision of the Immigration Judge.

8 C.F.R. § 1208.13(a).

Gao v. Ashcroft, 299 F.3d 266, 271 (3d

The Ambartsoumians’ application Cir. 2002). Our review is limited by the

for withholding of removal is based upon “substantial evidence” standard, which

8 U.S.C. § 1231(b)(3)(A), which forbids states that “the administrative findings of

removal if “the alien's life or freedom fact are conclusive unless any reasonable

would be threatened in that country adjudicator would be compelled to

because of the alien’s race, religion, conclude to the contrary.” 8 U.S.C.

nationality, membership in a particular § 1252(b)(4)(B). The determination that an

social group, or political opinion.” To asylum applicant faced past persecution, or

qualify for withholding of removal, the

applicant must show “that it is more likely

than not that he will face persecution if he 2

In his brief, Ambartsoumian suggests

is deported.” Li Wu Lin v. INS, 238 F.3d

that the Board’s policy of affirming

239, 244 (3d Cir. 2001) (citing INS v.

without opinion denies him due process.

Cardoza-Fonseca, 480 U.S. 421, 430

This argument is foreclosed by our recent

(1987)). This standard is stricter than the

decision in Dia v. Ashcroft, 353 F.3d

“well-founded fear” standard for asylum.

228, 238-45 (3d Cir. 2003) (en banc).

4

has a well-founded fear of future Boyko, was a Baptist preacher who was

persecution, is a factual conclusion subject imprisoned and exiled to Siberia during

to this deferential review. Gao, 299 F.3d at the Soviet era. Nadia suffered for her

272. We therefore must uphold the IJ’s father’s beliefs: as a child, she was

findings if they are “supported by interrogated by the KGB and abused by

reasonable, substantial, and probative her classmates, and she lived with her

evidence on the record considered as a father in Siberia for three years. Nikolai

whole.” INS v. Elias-Zacarias, 502 U.S. Boyko was in Siberia until 1993.

478, 481 (1992).

Garegin and Nadia met in 1988 in

The Immigration Judge (IJ) heard Odessa, Ukraine, Nadia’s birthplace, while

testimony from Garegin and Nadia Garegin was on a work assignment. They

Ambartsoumian, and from their expert married in 1989, and returned to Garegin’s

witness, Dr. Suny. He also reviewed the homeland, but soon moved back to

U.S. Department of State Country Reports Ukraine to escape ethnic tensions in

for Georgia and Ukraine for 1998, and the Georgia. Garegin at first found work in

State Department Asylum Profiles for Odessa, but alleges that he was harassed

those countries. He relied heavily on the and eventually fired because of his

“objective evidence” of these reports. This nationality. He claims that the Ukrainian

reliance was justifiable, as we have held courts refused to help him and that he was

that State Department reports may unable to find any other permanent

constitute “substantial evidence” for the employment. Ukraine, too, was suffused

purposes of reviewing immigration with ethnic nationalism, and Garegin

decisions. Kayembe v. Ashcroft, 334 F.3d claims that the family was repeatedly

231, 235 (3d Cir. 2003); cf. Lal v. INS, 255 threatened and insulted. In 1990, Garegin

F.3d 998, 1023 (9th Cir. 2001) (describing was beaten by Ukrainian nationalists, and

State Department country reports as the decided to return to Georgia so as not to

“most appropriate” and “perhaps best put his family at risk.

resource” on country conditions).

He returned to the Ukraine later that

Based on the record, the IJ year. He claims that he stayed in hiding in

determined that the Ambartsoumians had his wife’s house for two months,

failed to establish a well-founded fear of apparently because he was in the Ukraine

persecution in either Georgia or the illegally. Eventually, the police raided his

Ukraine. We examine his decision as to house, arrested him, beat him, and told him

each of these countries in turn. that this treatment would continue unless

he left the Ukraine. He also claims that

II. The Ukraine

someone attempted to kidnap the couple’s

Nadia Ambartsoumian claims that two children, and that Nadia was beaten

she was persecuted in the Ukraine because and threatened because of her non-

of her Baptist faith. Her father, Nikolai Ukrainian husband. He once again

5

returned to Georgia in 1992, but quickly instances of discrimination against

came back to the Ukraine to avoid serving Evangelicals, but nothing that would rise

in the Georgian army. On Garegin’s return, to the level of persecution. Ukraine 1998

neighbors again attacked and threatened Country Report 1589. And Nadia

the Ambartsoumians, and Nadia suffered a Ambartsoumian admitted during the

miscarriage after one such attack. asylum hearing that her parents and four of

her siblings still live in the Ukraine and

The Ambartsoumians left the

practice the Baptist faith, and presented no

Ukraine for Canada in 1992. While in

evidence that they are currently persecuted

Canada, they applied for refugee status.

for their beliefs. In fact, though she said

They left Canada for the United States in

that her father had not received permission

1996, before Canadian officials had taken

to buy a house of prayer, she admitted that

final action on their asylum application.

he currently has a church in Odessa.

They surren dered to imm igratio n

Reading the record as a whole, we find no

authorities in Champlain, NY, and

compelling reason to reverse the IJ’s

requested asylum.

finding that Nadia Ambartsoumian does

The above facts and allegations not have a well-founded fear of

suggest two possible bases for the claim of persecution in the Ukraine.3

persecution in the Ukraine, each of which

Second, Garegin claims that he and

the IJ rejected.

his family suffered persecution because he

First, Nadia claims that she suffered was not a native Ukrainian. The only

persecution because of her religious evid e n c e f o r t h is w a s the

background. The IJ agreed that Nadia’s Ambartsoumians’ own testimony. The IJ

family was persecuted during the Soviet

era. But he found that Nadia herself did

3

not suffer the same degree of persecution The IJ did not clearly state whether he

as her father, and that the post-Communist had found that Nadia had not suffered

Ukraine was much more hospitable to past persecution, or whether he found

Baptists. that she had suffered such past

persecution, but that the presumption of

There is substantial evidence in the

future persecution was rebutted by

record to support this conclusion. The

evidence of a change in country

State Department Asylum Profile states

conditions since the fall of the Soviet

that the Communists repressed Evangelical

Union. See 8 C.F.R. § 1208.13(b)

Christians, but that “[w]ith the overthrow

(1)(i)(A). Such a failure to make specific

of the Communist regime in 1991,

findings generally makes review more

Evangelicals are no longer denied religious

difficult, but in the instant case we find

freedom and they worship without

that either conclusion would be

interference.” Ukraine 1997 Asylum

supported by substantial evidence, so we

Profile 8. The Country Report notes some

do not inquire further.

6

again relied on the State Department reasonably have concluded that Garegin

reports, which indicate that the Ukraine’s was not persecuted for his nationality, but

nationality policy “meet[s] international rather that he had legal difficulties due to

standards required for the protection of his own failure to obtain the proper

minority groups,” Ukraine 1997 Asylum permissions. There is no evidence in the

Profile 3, although they also describe record to suggest that Garegin ever sought

“ [ f ] r e q u ent harassment of rac ial legal status in the Ukraine, as explained in

minorities,” especially dark-skinned Asian the margin, or that he would have been

and African minorities. Ukraine 1998 prevented from doing so because of his

Country Report 1590. While this State nationality. 4 Garegin’s difficulties with his

Department evidence may be equivocal, employers and with the police certainly do

the IJ was entitled to draw from it the not amount to ethnic persecution if they

conclusion that Armenians do not face

persecution in the Ukraine, see Kayembe,

334 F.3d at 236-37, and there is no 4

The Ambartsoumians introduced into

significant evidence in the record to the

the record evidence of the Ukrainian law

contrary.

of citizenship, apparently to prove that

Moreover, the IJ found that Garegin is currently ineligible for

Garegin’s troubles in the Ukraine stemmed Ukrainian citizenship. This, however,

not from his ethnicity but from his lack of does not prove that Garegin is ineligible

official permission to live and work in that for permission to live and work in the

country. This finding, too, is well Ukraine. In fact, the citizenship law

supported. Both Garegin’s and Nadia’s requires that candidates demonstrate

own testimony could be read as indicating “continuous residence on legal grounds

that Garegin was unable to work, and was on the territory of Ukraine throughout the

harassed by the police, mainly because he past five years.” This requirement

had failed to obtain proper legal naturally suggests that non-citizens may

documents and permissions. Garegin live legally in the Ukraine.

testified that he was fired from his job We also note that, even if Garegin

“[b]ecause I’m not [a] permanent resident Ambartsoumian did face difficulties in

of the Ukraine. And plus, I am Armenian.” obtaining the proper work and residency

He later testified that he lived in hiding in permits, this fact alone would not

his wife’s house because people had told necessarily rise to the level of

him that he was in the Ukraine illegally. persecution. Cf. Ahmed v. Ashcroft, 341

Nadia gave several reasons for her F.3d 214, 218 (3d Cir. 2003) (holding

husband’s inability to get a job, including that a stateless Palestinian in Saudi

that he speaks no Ukrainian and that he Arabia did not suffer persecution due to

lacked a propiska, or residency permit. his difficulty in obtaining work and

From this testimony the IJ could residency permits).

7

were due only to his own failure to follow nationality, his family was in hiding,

Ukrainian residency and labor laws. See apparently afraid of anti-Ossetian feeling

Janusiak v. INS, 947 F.2d 46, 48 (3d Cir. among Georgians. Fearful for his own

1991). Thus the evidence as a whole does safety, Garegin returned to the Ukraine.

not compel the conclusion that Garegin Again, his stay in the Ukraine did not last

suffered persecution in the Ukraine. long, and Garegin once again returned to

Georgia early in 1992. This time, when

III. Georgia

he arrived at the Tbilisi airport, he was

To prove that they were conscripted into the Georgian army to

persecuted in Georgia, the fight in the civil war in the Abkhazia

Ambartsoumians presented their own region. He immediately was put on a bus

testimony and that of an expert witness. to the front, but managed to escape that

Their testimony indicates that they faced night, and fled back to the Ukraine.

serious difficulties during the (generally

The Ambartsoumians also

short) periods that they spent in Georgia.

presented the report and testimony of Dr.

Garegin was born in Tbilisi, Ronald Suny, a professor at the

Georgia, and is a Georgian citizen. He is University of Chicago and an expert on

ethnically Armenian and Ossetian, and is modern Georgian and Armenian history

an Armenian Christian, but he has visited and politics. Dr. Suny testified that

Armenia only once, as a child. He claims President Zviad Gamsakhurdia’s policy

that, because of his Armenian heritage, of “Georgia for the Georgians” had led to

he was harassed and beaten while serious problems for Armenians in the

growing up in Georgia, and while early 1990s. 5 He also noted that

serving as a conscript in the Soviet army.

After meeting Nadia in the Ukraine,

5

Garegin returned with her to Tbilisi in Gamsakhurdia, an ethnic nationalist,

1989. With ethnic tensions on the rise in ruled Georgia from 1990 through 1992.

Georgia, the couple claims that they He was overthrown in January 1992, and

received death threats, and that Nadia replaced by the more moderate Eduard

was beaten by neighbors because they Shevardnadze. See Georgia 1995 Asylum

were not ethnic Georgians. As discussed Profile 4. Though it is not in the

above, they left for the Ukraine, but administrative record, we take judicial

Garegin returned to Georgia in 1990 notice of the fact that President

because of difficulties he encountered Shevardnadze stepped down in

during his short time in the Ukraine. November 2003, after the final BIA

action in this case. He was replaced by

When he returned to Georgia,

Mikhail Saakhasvili, the current

Garegin found a nation divided by the

president. See The Comicopera Ends,

civil war in the region of South Ossetia.

The Economist, May 8, 2004, available

As his mother was Ossetian by

at 2004 WL 62017854.

8

Armenians became unpopular during the Gamsakhurdia regime of 1990-1992,

Georgia’s civil conflict in Abkhazia, he concluded that there was no evidence

because they were perceived as having of discrimination against non-Georgians

sided with the Abkhazians. But Dr. Suny since then, and that, under the rule of

acknowledged that conditions in Georgia President Shevardnadze, Armenians no

had improved since the Gamsakhurdia longer faced discrimination or

years, although he noted that the persecution.

Shevardnadze government, see supra

These conclusions are fully

note 5, was too weak to keep order and

supported by the State Department

protect ethnic minorities. He asserted that

reports. While the Asylum Profile for

the central government had effective

Georgia noted that, during the

control only of Tbilisi, the capital city,

Gamsakhurdia era, “acts against

and that even within Tbilisi the

Armenians on a personal basis may have

government had only limited control over

taken place,” it concluded that there was

its citizens, and even over its police

no evidence of “actions taken against

forces. As a result, he represented that

Armenians on the basis of their

there were a number of incidents of

ethnicity” during that period. Georgia

unofficial violence against Armenians

1995 Asylum Profile 5 (emphasis added).

even since Shevardnadze came to power.

More importantly, it noted that “from

However, Dr. Suny confessed that 1993 we have seen no evidence of

he had no real familiarity with the governmental discrimination against the

Ambartsoumians’ situation, but stated non-Georgian population.” Id. at 4.

that Garegin would have difficulty

In evaluating the evidence offered

getting travel documents to return to

by the Ambartsoumians and Dr. Suny,

Georgia, that he would face economic

the IJ found that it did not establish that

troubles upon his return, and that the

the Ambartsoumians experienced past

government and police would not be

persecution in Georgia. He did not

zealous in protecting him from other

explicitly make an adverse credibility

Georgians.

finding, though he concluded that some

Having heard all this testimony, aspects of the Ambartsoumians’

the IJ determined that the testimony were “inaccurate.”

Ambartsoumians had not suffered Importantly, he noted that Dr. Suny had

persecution in Georgia on account of agreed that relations between Georgians

their ethnicity. He relied heavily on the and Armenians had historically been

State Department reports, noting that amicable, and that the Shevardnadze

they showed a “historic amity between government had largely restored those

Armenians and Georgians.” While he relations after the Gamsakhurdia

conceded that there was some troubles. The IJ also found that Suny’s

discrimination against Armenians during concerns about the dangers facing

9

Armenians were not supported by “the civil war against the region of Abkhazia.

weight of objective evidence.” He But conscription by a sovereign nation

determined that, even during the cannot constitute persecution under 8

Gamsakhurdia years, there was little or U.S.C. § 1101(a)(42). Lukwago v.

no government-sponsored persecution of Ashcroft, 329 F.3d 157, 168-69 (3d Cir.

Armenians, and that the Ambartsoumians 2003). Thus the facts that life in Georgia

“avoided the excesses of the was difficult due to a civil war, and that

Gamsakhurdia regime by relocating to Garegin Ambartsoumian was conscripted

Ukraine.” to fight in that war, do not in themselves

establish past persecution.

As noted above, the IJ’s reliance

on “objective evidence” in the form of We do not deny that the

State Department reports was justifiable Ambartsoumians’, and Dr. Suny’s,

under our decision in Kayembe. Upon descriptions of life in Georgia are

reviewing the testimony and affidavits troubling. But we do not believe that

presented by the Ambartsoumians, and these allegations rise to the level of

the State Department reports considered persecution required by § 1101(a)(42)

by the IJ, we are unable to conclude that and by Fatin. Thus, the record does not

the record would compel any reasonable compel us to set aside the IJ’s finding

adjudicator to reject the IJ’s findings. that the Ambartsoumians did not suffer

Even if we accept, as the IJ apparently persecution in Georgia, or his

did, that the Ambartsoumians determination that they had not

encountered difficult conditions in established a well-founded fear of future

Georgia, that would not necessarily persecution there.

support a finding of past persecution.

IV. The State of the Record

Certainly Georgia was, and continues to

be, involved in a number of civil The record in this case consists of

conflicts. In fact, the IJ specifically the Ambartsoumians’ testimony about

found that the Ambartsoumians’ events predating 1992, and of State

principal reason for leaving Georgia was Department reports from 1995 through

the civil war. But we have held that the 1998. Concerned about the long delay

standard for persecution is high, and that between this record and our review of the

“‘generally harsh conditions shared by case, we requested supplemental briefing

many other persons’ do not amount to on the issues raised by this Court in

persecution.” Fatin v. INS, 12 F.3d 1233, Berishaj v. Ashcroft, 378 F.3d 314, 328-

1240 (3d Cir. 1993) (quoting Matter of 31 (3d Cir. 2004), and reiterated in

Acosta, 19 I. & N. Dec. 211, 222 (BIA Gambashidze v. Ashcroft, 381 F.3d 187,

1985)). Ambartsoumian alleges that, on 193-94 (3d Cir. 2004). The government’s

his return to Georgia in 1992, he was submission in response to this request

pressed into military service in Georgia’s informed the Court of the new, and

10

salutary, screening policy described minorities than was the Shevardnadze

above (and set forth fully in the government. Both parties rely on the

Appendix). record before the IJ and the BIA, and we

are therefore satisfied that our concerns

The Department of Justice asserts

in Berishaj and Gambashidze are

that it has followed its screening policy

inapplicable here.

in this case, but has determined that

conditions have not changed significantly V. Conclusion

enough to make the record here obsolete

On reviewing all the evidence in

and require a remand. Mindful of our

the record, we are unable to conclude

obligation to base our review on the

that the evidence as a whole would

contents of the administrative record, see

compel any reasonable adjudicator to

Berishaj, 378 F.3d at 330, we are

find that the Ambartsoumians suffered

unwilling to take judicial notice of the

persecution in either Georgia or the

most recent State Department reports on

Ukraine, or that they have a well-

Georgia and the Ukraine, which are

founded fear of future persecution or

easily available on the Internet, see

torture in either of those countries.

http://www.state.gov/g/drl/rls/hrrpt/2003/

Therefore, we will deny the petition for

. Instead, we simply note that neither of

review.

the parties have provided any evidence or

argument that would counsel a remand to Appendix

open the record in this case. At oral

To clarify the new policy of the

argument, counsel for petitioners

Office of Immigration Litigation (OIL),

specifically disclaimed the argument that

we set forth, in full (including footnotes),

the administrative record in this case was

Part II of the government’s supplemental

insufficient because of staleness; instead,

memorandum in the instant case:

he argued that the evidence in the record

compels reversal. And petitioners have After receiving a copy of

not filed a motion to reopen the record the Court’s decision in

before the BIA, pursuant to 8 C.F.R. Berishaj, the Office of the

§ 1003.2(c). The government submits Attorney General and the

that no material changes have occurred in Civil Division immediately

Georgia or the Ukraine. started to consider how

best to address the Court’s

In short, no serious suggestion has

concerns. The Deputy

been made that conditions in the Ukraine

Assistant Attorney General

have changed, in any respect material to

for OIL consulted with the

asylum, since the BIA’s decision; while

Executive Office of

Georgia has a new president, see supra

Immigration Review

note 5, neither party has suggested that

(EOIR) (which includes the

the new regime is any worse for ethnic

11

Board of Immigration remands would add delay

Appeals (BIA) and the to the adjudication of some

Immigration Judges (IJ)) aliens’ claims, and

and the Department of although it is possible that

Homeland Security (DHS) a remanded case would

(which litigates cases in become stale again after

front of the BIA and IJs) 6 the record is supplemented,

to determine the reasons this proposal appeared to

for the stale records and to be a sound method for

explore possible solutions. improving the quality of

Based on these meetings records in appropriate

and OIL’s own analysis of cases. The Assistant

the issue, he proposed to Attorney General agreed,

the Assistant Attorney and so did the Office of the

General of the Civil Attorney General.

Division that, as a matter of

Accordingly, at the

“prosecutorial discretion,”

direction of the Deputy

the Government should

Assistant Attorney General

screen out and seek to

for OIL, the Director of

remand cases whose

OIL has informed all

records are out-of-date and

attorneys under his

not appropriate for judicial

supervision that, when a

review.7 Although such

case is assigned to them,

they should consider

6

After its creation, DHS assumed the whether the age and quality

responsibilities of the former of the record counsels in

Immigration and Naturalization Service, favor of a remand. If a

including the prosecution of cases before record is old and deficient,

the BIA and IJs. The Civil Division, the attorney should

through OIL, continues to defend the promptly bring it to the

BIA’s decisions in the federal courts. attention of the Director of

7

The decision to seek a remand in a

particular case would, of course, be conditions have improved, weakening

discretionary. The law does not require the alien’s claim). Rather, the prescribed

the Government to screen out and seek regulatory mechanism for responding to

remands in cases in which country stale records is the motion to reopen. See

conditions have gotten worse, 8 C.F.R. § 1003.2(c). If conditions in a

strengthening an alien’s asylum claim country worsen, the alien has the burden

(or, for that matter, cases in which of filing the motion to reopen. Id.

12

OIL, who, in consultation the alien was improperly

with the OIL’s client denied the opportunity to

agencies (EOIR and DHS), perfect and preserve the

will exercise his discretion record on his claims.8 OIL

on whether to seek a attorneys will consider

remand in the case. these factors in all

subsequent cases in light of

The Director of OIL

Berishaj.

also notified all OIL

attorneys of the factors that Moreover, EOIR

they should consider in has also taken steps to

assessing whether a record respond to the Court’s

is suitable for judicial concerns. Even before

review. Among these Berishaj, the BIA

factors are: (1) whether remanded cases from

there have been pertinent, countries where conditions

intervening events in the were fluid, thus enabling

country of removal; and (2) the parties to supplement

whether the issues on the record. After meeting

review are “time sensitive” with DHS and the Deputy

in that changes in Assistant Attorney General

conditions over time may for OIL, EOIR agreed to

affect the resolution of the continue to consider

issues. In addition, because additional remands.

OIL’s screening of cases Additionally, EOIR is

should not create a currently contemplating

windfall for aliens who other proposals, including,

have failed to meet their

burdens of proof or to

8

pursue the procedural These factors reflect the fact that an

opportunities available to old record is not necessarily a deficient

them, OIL attorneys should record. For example, country conditions

determine in each case may not have changed despite the

whether the alien bears the passage of time (conversely, a record

burden of proof, whether could be deficient even if not much time

the alien has made efforts has passed). Moreover, even if country

to perfect and preserve the conditions have changed, a remand might

record on his claims not be appropriate, if, say, none of the

through timely motions to issues in the case is time sensitive or if

the agency, and whether the other factors in the analysis counsel

against remand.

13

if an appropriate case

arises, having the BIA

issue a published decision

remanding a case with a

stale record. The Members

of the BIA have already

discussed en banc this

Court’s decision, and are

continuing to do so. The

Respondent will inform the

Court of any proposals that

are adopted.

14