Abulashvili v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 08-2756 & 09-2560

_____________

VASIL ABULASHVILI & TEONA KLIBADZE

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES

Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(BIA Nos. A98-769-333 & A98-769-334)

(U.S. Immigration Judge: The Honorable Annie S. Garcy)

Argued February 28, 2011

Before: McKEE, Chief Judge, AMBRO, Circuit Judge,

and CHAGARES, Circuit Judge

(Opinion Filed: November 15, 2011)

Jon Landau (argued)

Baumann, Landau & Simon

510 Walnut Street, Suite 1340

Philadelphia, PA 19106

Michael P. DiRaimondo

DiRaimondo & Masi LLP

401 Broadhollow Road, Suite 302

Melville, NY 11747

Attorney for Petitioners

1

Lindsay B. Glauner (argued)

Thomas W. Hussey

Ari Nazarov

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

OPINION

McKEE, Chief Judge.

Petitioners Vasil Abulashvili and Teona Klibadze seek review

of an order of the Board of Immigration Appeals dismissing their

application for withholding of removal and protection under the

Convention Against Torture (“CAT”) and an order of the BIA

denying their motion to reopen. For the reasons explained below,

we hold that the BIA erred in dismissing the Petitioners‟ application

for asylum because the agency‟s adverse credibility determination is

not supported by substantial evidence. We also hold that the BIA

abused its discretion in denying the motion to reopen. Finally, we

hold that Petitioners‟ due process rights were violated when

Immigration Judge Annie S. Garcy completely took over the cross-

examination for government‟s counsel, and thereby ceased

functioning as a neutral arbiter. We will therefore grant the petition

for review, vacate the BIA‟s orders, and remand the case to the BIA

for further proceedings.

I. Factual Background and Procedural History

Vasil Abulashvili and his wife, Teona Klibadze, are citizens

of Georgia, a former U.S.S.R. republic. They entered the United

States on visitor visas in 1999 and remained longer than authorized.

On December 20, 2004, Abulashvili filed an affirmative application

for asylum, withholding of removal, and protection under the CAT.

Klibadze was included in the application as a derivative beneficiary

2

of Abulashvili's asylum claim.1 Abulashvili was thereafter placed

in removal proceedings, where he renewed and updated his

application for asylum.

A. Asylum Application

In his asylum application, Abulashvili claimed that he had

been persecuted in Georgia on account of his membership in the

opposition Labor Party of Georgia (“LPG”). He explained that his

troubles began in September of 1998, when the passenger minibus

he was driving was flagged down by some armed men at the side of

the road. He asserted that one of the men said that his car had

broken down and asked that he and his passenger be taken to the

home of Koba Buchukuri, the head of the Dusheti district.

Abulashvili believed that the passenger of the car was a foreigner,

and that the driver was his interpreter. Abulashvili claimed that he

had no choice but to comply because the interpreter appeared visibly

afraid of the foreigner and told Abulashvili that the foreigner was a

“real crook.” (A.R. 347). Both individuals got into Abulashvili‟s

minibus.

Abulashvili stated that he drove the foreigner and his

interpreter to Buchukuri‟s mansion, where Abulashvili waited (as

requested) until they returned from their meeting. He claimed that,

as he waited, he photographed two individuals leaving the mansion.

Abulashvili stated in his application that he had heard that

Buchukuri and his wife Martina Moldinin, who was a member of the

Georgian Parliament, were corrupt and he wanted to record who had

been in the mansion.

Abulashvili stated that the foreigner and his interpreter

returned from the meeting together with a man of Chechen descent.2

As Abulashvili resumed driving, he heard the Chechen and the

foreigner conversing in Arabic. Abulashvili stated that, at some

point during the conversation, the foreigner pulled out a gun and

began threatening the Chechen, causing the other passengers to

panic. Abulashvili stopped the minibus at that point and several

passengers jumped out. Abulashvili claimed that the foreigner then

1

Because Abulashvili is the lead petitioner and Klibadze is

only seeking coverage as a dependent spouse, we will use

Abulashvili‟s name alone when referring to the petitioners.

2

Abulashvili claimed that he also picked up additional

passengers en route to Akhmeta.

3

fired several shots at the Chechen, who fled the scene. One of the

shots hit an 18-year- old female passenger.

According to the asylum application, Abulashvili drove the

bleeding girl to a nearby hospital in Akhmeta. The interpreter

accompanied Abulashvili to the hospital, and told Abulashvili that

he would not testify about the shooting because Buchukuri and other

members of the government were likely involved and he was

worried about his safety. Abulashvili asserted that the girl never

regained consciousness and later died in the hospital.

Abulashvili also claimed that when police subsequently

questioned him about the shooting, he explained what had happened

but did not reveal that he had taken photographs while waiting

outside Buchukuri‟s home. Abulashvili was held in the police

station overnight and, upon his release, the police chief warned him

that he should forget everything that had happened.

According to the asylum application, Abulashvili gave the

film containing the pictures he had taken outside of Buchukuri‟s

home to the LPG Chairman, Shalva Natelashvili. Shortly afterward,

an unknown individual called Abulashvili, questioned his visit to the

LPG office, and urged him to mind his own business. The

application also noted that the police stopped Abulashvili on October

6, 1998 while he was driving his minibus route and interrogated him

about his visit to the LPG office. Abulashvili stated that during the

ensuing detention, officers held him upside down, beat him, and

threatened to kill him if he revealed what had happened during the

September 1998 incident. He was released three days later.

Abulashvili claimed that he moved out of his apartment after

his arrest because he feared that the police would continue to harass

him. Abulashvili also asserted that in March of 1999 the Ministry of

State Security came to his former apartment and arrested Guram

Kraveishvili, Abulashvili‟s former roommate and fellow LPG

member.3 Abulashvili alleged that members of the militia demanded

that Kraveishvili tell them about Abulashvili‟s whereabouts, and that

they beat Kraveishvili when he refused to reveal any information.

3

As will be explained later in our opinion, Kraveishvili‟s last

name has also been spelled as “Kravia Shvili” in the record.

4

Three months later, on June 5, 1999, Abulashvili married

Klibadze. On the day of their wedding, Abulashvili claimed that he

spotted the interpreter who had been in his minibus during the

September 1998 shooting. The asylum application also states that

the interpreter and another man tracked Abulashvili down six weeks

after the wedding. They threatened to inform the police about

Abulashvili‟s whereabouts unless he gave them $10,000. According

to the application, the men beat Abulashvili severely after he told

them he could not pay that amount of money.

Abulashvili claimed that he later learned from a television

news report that his former roommate (Kraveishvili) had been found

dead. Upon hearing this news, Abulashvili decided to leave Georgia

permanently because it was no longer safe for him or his wife to

remain there. They left the country on August 20, 1999.

B. Proceedings Before Immigration Judge

On March 24, 2006, the Department of Homeland Security

(“DHS”) initiated removal proceedings against Abulashvili for

remaining in the United States without proper authorization. At a

hearing before an Immigration Judge, Abulashvili conceded the

charge of removability, but argued that he was entitled to relief

based upon past persecution and fear of future persecution on

account of his membership in the LPG opposition party, and his

knowledge of government corruption as determined from the events

in September 1998. Abulashvili testified that he had a close

association with the LPG party. He also claimed that he had been

involved in recruiting for the LPG and that the party had helped him

establish his minibus service. He stated that his father had been an

active LPG member and had experienced trouble with government

officials. Abulashvili testified further that he believed that he would

be harassed by those who had created problems for his father,

including Koba Buchukuri, the once-head of the Dusheti district who

was now the governor of Mtskheta-Tianeti. Abulashvili stated that

he feared that he would lose his life as well as his family if he

returned to Georgia.

On cross-examination, an attorney for the government who

had not been present at the first merits hearing began questioning

Abulashvili.4 That attorney was apparently not familiar with the

4

The first merits hearing took place on May 4, 2006 but did

not resume until August 15, 2006. An Assistant Chief

5

record and woefully unprepared. He therefore confined his

questioning to the number of times Abulashvili had been stopped by

the police while living in the United States. A few minutes into the

questioning, the IJ took over the cross-examination after determining

that the government‟s attorney was not prepared.

C. The Immigration Judge’s Decision

The IJ denied Abulashvili‟s asylum application on August 15,

2006. She determined that the application was untimely and that

Abulashvili had failed to demonstrate that he qualified for an

exception to the time limitation. The IJ further held that even if

Abulashvili had timely filed the application, he was still ineligible

for relief because his claims were not credible. The IJ defended her

decision to take over Abulashvili‟s cross-examination by noting that

the government‟s attorney had not been prepared. She explained

that “[t]he Court is certain that in order to afford the respondent with

due process and an opportunity to explain why his testimony in

Court is different from his written application, someone needed to

ask the respondent about it.” (A.R. 89).

Abulashvili appealed to the BIA, challenging the IJ‟s adverse

credibility finding and contending that the IJ‟s role in questioning

him violated his due process right to a neutral arbiter. The BIA

dismissed the appeal on May 30, 2008. Like the IJ, the BIA was

troubled that Abulashvili‟s asylum application did not claim that the

root of his problems in Georgia could have been due to his father‟s

political activism. The BIA also rejected Abulashvili‟s claim that

his due process rights had been violated. The BIA concluded that

the IJ was “ferreting out . . . the facts” and “acquiring clarity in

[Abulashvili‟s] testimony.” (A.R. 421)

We thereafter granted Abulashvili‟s motion to stay removal.

Abulashvili then filed a motion to reopen with the BIA based on

Counsel for DHS was present for Abulashvili‟s direct

examination at the first hearing, but did not attend the

subsequent hearing in August. Instead, a different DHS

attorney attended the August hearing in Yu‟s place. The IJ

noted that this switch in counsel was due to a “genuine mix

up,” but it is unclear from the record why this mix up

occurred. (A.R. 64)

6

changed country conditions, which the BIA denied because it was

untimely.5

This petition for review followed. The petition apparently

does not challenge the denial of Abulashvili‟s untimely asylum

application. (See Pet.‟s Brief, at 11).6 Rather, Abulashvili only

challenges the denial of his claim for withholding of removal and

relief pursuant to the CAT.

II. Jurisdiction and Standard of Review

The BIA has jurisdiction over motions to reopen removal

proceedings pursuant to 8 C.F.R. § 1003.2(a). We have jurisdiction

over Abulashvili‟s petition for review pursuant to 8 U.S.C. § 1252.

“We review a final order of the BIA denying a motion to

reopen for abuse of discretion.” Mahmood v. Gonzales, 427 F.3d

248, 250 (3d Cir. 2005) (citation omitted). Under this standard, we

may reverse the BIA‟s denial of a motion to reopen if it is “arbitrary,

irrational, or contrary to law.” Zheng v. Att’y Gen., 549 F.3d 260,

265 (3d Cir. 2008).

Because the BIA‟s original order of removal adopted the

findings of the IJ and discussed the reasons behind the IJ‟s decision,

we review the decisions of both the IJ and the BIA. See Zheng v.

Gonzales, 417 F.3d 379, 381 (3d Cir. 2005). “Adverse credibility

determinations are factual findings subject to substantial evidence

review.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003).

We will defer to and uphold the IJ‟s adverse credibility

5

Pursuant to 8 C.F.R. § 1003.2(c)(2), Abulashvili should

have filed his motion to reopen within 90 days of when the

administrative decision became final, or by August 30, 2008.

He did not file the motion until November 14, 2008.

However, the 90-day time bar does not apply when, as here,

an applicant alleges changed country conditions. Filja v.

Gonzales, 447 F.3d 241, 252 (3d Cir. 2006).

6

Pursuant to 8 U.S.C. § 1158(a)(3), an alien has one year

from time of entry to file for asylum absent “extraordinary

circumstances,” which are not alleged here. Tarrawally v.

Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). That time bar

does not apply to requests for withholding of removal or

relief under the CAT.

7

determination if it is “supported by reasonable, substantial, and

probative evidence on the record considered as a whole,” INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992), but such findings must be

based on inconsistencies and improbabilities that “go to the heart of

the asylum claim.” Id.; see also Gao v. Ashcroft, 299 F.3d 266, 272

(3d Cir. 2002). 7

III. Discussion

A. The Motion to Reopen

Although Abulashvili‟s motion to reopen was untimely, the

BIA may nonetheless consider the motion if it was “based on

changed country conditions arising in the country of nationality.” 8

CFR § 1003.2(c)(2). Under these circumstances, an alien must: (1)

produce evidence demonstrating that conditions have changed in his

country of nationality; (2) demonstrate that this evidence is material;

and (3) establish that the evidence was not available and could not

have been presented at the previous proceeding. Id.; see also Zheng

v. Att’y Gen., 549 F.3d 260, 265 (3d Cir. 2008).

Here, the BIA found that Abulashvili had met the first and

third factors, but not the second. Specifically, the BIA determined

there were changed circumstances in Georgia resulting from the

August 2008 conflict between Georgian and Russian forces, and

acknowledged that this evidence could not have been presented at

the previous proceeding. However, the BIA concluded that the

evidence was not material because major discrepancies between

Abulashvili‟s asylum application and his hearing testimony

established that his testimony was not credible.

The first of these alleged discrepancies pertains to

Abulashvili‟s testimony about his former roommate, Guram

7

The REAL ID Act provides that an adverse credibility

determination can be based on inconsistencies, inaccuracies,

and other factors, irrespective of whether they go to the heart

of an applicant's claim. 8 U.S.C. § 1158(b)(1)(B)(iii).

However, the REAL ID Act provisions governing credibility

determinations do not apply here because Abulashvili‟s

asylum application was filed on December 20, 2004, before

the Act went into effect on May 11, 2005. See Chukwu v.

Att'y Gen., 484 F.3d 185, 189 (3d Cir. 2007).

8

Kraveishvili. The IJ questioned why Abulashvili had testified that

the militia had tortured Kraveishvili when he refused to reveal

Abulashvili‟s whereabouts, yet never mentioned in his application

for asylum that Kraveishvili had been killed. The IJ considered this

omission to be a “very important” factor in her decision to deny

Abulashvili‟s application for asylum. (A.R. 98)

Even a cursory review of Abulashvili‟s asylum application

shows that the IJ was wrong. On the third page of Abulashvili‟s

statement in support of his written application, Abulashvili explained

that his roommate had been arrested, beaten and tortured. (A.R.

367). On the next page, Abulashvili wrote that Kraveishvili had

been “found dead at the wall of Alvabar cemetery” and Abulashvili

stated that it was then that he knew he had to leave Georgia “in order

to escape a death.” (A.R. 368). Thus, not only did Abulashvili state

that Kraveishvili had been killed, he added details such as where the

body was found.

Apparently, the IJ either never read Abulashvili‟s written

statement, or she overlooked part of it and concluded that a

nonexistent omission was "very important." Either explanation is

equally troubling. If the purported conflict between that statement in

his asylum application and Abulashvili‟s testimony was so critical to

resolving his claim, the fact that the IJ didn‟t make a sufficient effort

to determine what was actually in the application is both perplexing

and disconcerting.

Even worse, both the IJ and BIA were troubled by the

different spellings of the name of Abulashvili‟s former roommate in

the record. Abulashvili spelled the name as “Kraveishvili” in his

application, yet the person transcribing the hearing testimony spelled

the name as “Kravia Shvili.” This is hardly the kind of discrepancy

that a neutral fact finder would use to discredit one‟s testimony. The

explanation is so obvious that this purported “discrepancy” is hardly

worth commenting on. One does not need a doctorate in linguistics

to realize that “Kravia Shvili” is a phonetic spelling of

“Kraveishvili.” After all, Abulashvili did not produce the transcript

of his own hearing testimony; a stenographer almost certainly did. It

is also safe to assume that the stenographer was not fluent in

Georgian and that s/he did not have an ear that was accustomed to

Abulashvili‟s accent. It is hard to understand how anyone could

attach such importance to the two different spellings of the

9

roommate's name or conclude that it meant that Abulashvili was

referring to two different individuals.

Nonetheless, the BIA concluded that the two men were not

the same because “Kraveishvili is described in [Abulashvili‟s]

application as employing the services of the respondent‟s minibus.”

(A.R. 420). The BIA thought this inconsistent with Abulashvili‟s

statement in his asylum application that Kraveishvili was his former

roommate. However, we know of nothing that would prevent

someone‟s roommate from using certain services just because they

happened to be owned by the person he was rooming with. In his

asylum application, Abulashvili stated that the Ministry of State

Security “came for me in my former apartment in Tbilisi.” (A.R.

367). In the next sentence, Abulashvili discussed how members of

the Ministry “also arrested Guram Kraveishvili, member of LPG,

who took in employment my minibus.” (A.R. 367). Taken together,

these statements support an inference that Kraveishvili had been

Abulashvili‟s roommate at some point, an assertion that Abulashvili

made explicit at the hearing.

Third, the IJ and BIA took issue with Abulashvili‟s

description of where the

18-year old passenger was shot. The IJ pointed out that Abulashvili

explained in his application that the girl had been shot outside his

minibus, but testified at the hearing that the girl was shot inside and

that he did not find her until his minibus had been cleared of all

passengers.

Abulashvili stated in his asylum application that he “placed

[the girl] in minibus,” but never specified where the girl was shot.

(A.R. 366). Given the difficulty in comprehending much of

Abulashvili‟s application, which was written without the aid of an

interpreter, we are unclear whether placing the girl “in” the minibus

can fairly be interpreted to mean moving the girl “inside” the

minibus from outside. At the hearing, Abulashvili stated that, when

he had written that he placed the girl in the minibus, he simply

meant that he moved the girl to the front seat so that she could

receive more air and be more comfortable. (A.R. 185). There is

nothing inconsistent with that explanation and a statement that the

girl had in fact been shot inside the bus. Although we certainly

understand why this apparent inconsistency could fairly raise

questions, given all of the circumstances here, we have little

10

confidence that the IJ adequately considered Abulashvili‟s

explanation.

In addition, the IJ was baffled by the “sensibility of

[Abulashvili] having moved the victim of a gunshot instead of

rushing her off to the hospital.” (A.R. 73). The IJ‟s reaction to this

portion of the testimony once again suggests that she either did not

pay attention to what Abulashvili said, or she simply ignored some

of the record. Abulashvili did in fact state that he transported the

girl to the hospital after the shooting both in his asylum application

and his testimony. (A.R. 144-45, 366). The fact that he took a few

minutes to rearrange the bleeding girl so that “she won‟t get any

broken bones” and to secure her seat belt before driving to the

hospital does not strike us as incredible. (A.R. 185). A neutral fact

finder could just as easily have concluded that the addition of such

seemingly inconsequential details made his testimony about the

incident more credible, not less so.

We recognize that there were some actual inconsistencies

between the asylum application and Abulashvili‟s testimony. For

example, the IJ and BIA were concerned that Abulashvili never

mentioned in his application that he feared returning to Georgia

because his father had been an active member of the LPG, yet relied

on this fact during the hearing. Abulashvili explained at the hearing

that he did not include this information in his application because he

was relying on a friend to help him complete it, his friend had only a

slightly better proficiency in English than he did, and that his friend

was pressed for time.

Abulashvili also explained that he did not mention this

information during his interview with the asylum officer because the

officer could not understand what Abulashvili was trying to say, cut

Abulashvili off when he tried to speak, and ended the interview very

early. Abulashvili did not realize at the time that he could have

brought along an interpreter, and stated that the officer never gave

him the option of rescheduling the interview so that an interpreter

could attend.

We certainly do not suggest that the IJ or the BIA had to

accept Abulashvili‟s explanations. However, given the problems

with the IJ‟s assessment of Abulashvili‟s testimony that we have

already discussed, it is exceedingly difficult for us to conclude that

Abulashvili‟s explanations were fairly considered.

11

The IJ and BIA also believed it was significant that

Abulashvili testified at the hearing that the police confiscated the

photos that he had taken outside of Buchukuri‟s mansion. However,

in his asylum application Abulashvili explained that he withheld the

photos from the police and gave them to the LPG Chairman, Shalva

Natelashvili. When questioned about this apparent inconsistency,

Abulashvili said that he meant that the police took his camera with

his other belongings and returned the camera to him without the

film. He explained that he did not realize that the film was missing

until he gave the camera to Natelashvili, who wanted to develop the

photos.

Finally, the IJ noted that there was an inconsistency between

the number of times Abulashvili stated that he had been arrested.

Abulashvili mentioned a third arrest at the hearing that he had not

included in his application. When the IJ pointed out the

inconsistency, Abulashvili explained that he did not include his last

arrest in the application because “it was not done by any kind of

militia” and therefore not a “legal or official arrest.” (A.R. 205).

Although unclear from the record, it appears that although the

individuals who seized Abulashvili during this last “arrest”

purported to be from the militia, they may have merely been thugs.

According to Abulashvili, these individuals took him to a building,

where they blindfolded him, held him upside down, and threatened

to kill him if he told anyone about the September 1998 events. As

we have just stated, the IJ did not have to accept this explanation.

However, at least she did have to consider it. Given the apparently

cavalier approach to evaluating Abulashvili‟s claims, we are not at

all sure that the explanation was given appropriate consideration.

An adverse credibility finding must be afforded substantial

deference so long as the finding is supported by sufficient, cogent

reasons. See Butt v. Gonzales, 429 F.3d 430, 434 (3d Cir. 2005).

We must evaluate whether the credibility determination was

“appropriately based on inconsistent statements, contradictory

evidences, and inherently improbable testimony . . . in view of the

background evidence of country conditions.” Chen v. Ashcroft, 376

F.3d 215, 223 (3d Cir. 2004). Thus, minor omissions or

inconsistencies that do not go to the heart of an asylum applicant's

claim cannot support an adverse credibility determination. See Kaita

v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008).

12

Here, the heart of Abulashvili‟s claim is that he would be

persecuted if he returned to Georgia because he was a member of the

LPG opposition party and knew about government corruption as

evidenced by the September 1998 events. Specifically, Abulashvili

claims that he witnessed a government official‟s potential collusion

with a Chechen insurgent and the killing of an innocent bystander.

He claims that the Georgian government used its powers of

persuasion – including threats of death, beatings, and torture – to

discourage him from revealing information about these incidents to

fellow LPG party members, who could use that information to their

political advantage.

On this record, we cannot conclude that the discrepancies

highlighted by the IJ and BIA undermine Abulashvili‟s claim.

Indeed, as we have explained, some of the purported contradictions

that the IJ relied upon are not contradictions at all, but resulted from

misreading Abulashvili‟s application, reading only part of it, or

ignoring it. To the extent that some unexplained inconsistencies

remain, we are left questioning whether those inconsistencies were

fairly evaluated.

We also note that “asylum applicants are not required to list

every incident of persecution on their I-589 statements.” Pavlova v.

INS, 441 F.3d 82, 90 (2d Cir. 2006); see also Pop v. INS, 270 F.3d

527, 531-32 (7th Cir. 2001) (“We hesitate to find that one seeking

asylum must state in his or her application every incident of

persecution lest the applicant have his or her credibility questioned if

the incident is later elicited in direct testimony.”).

Before concluding this part of our discussion, we also think it

important to stress that the linguistic and cultural difficulties

endemic in immigration hearings may frequently result in statements

that appear to be inconsistent, but in reality arise from a lack of

proficiency in English or cultural differences rather than attempts to

deceive.8

8

We do not, of course, have any way of knowing all of the

dynamics at work in this or any other immigration hearing

based upon our review of a cold record. However, given

some of the very obvious and troubling problems that we

have pointed out here, we think it useful to remind those

involved in the process of these difficulties.

13

Ironically, it is quite possible that Abulashvili undermined his

own claim by testifying that he understood and spoke English.9

Later, when denying Abulashvili‟s asylum claim, the IJ stated, “The

fact that [Abulashvili] has spoken some English reassures the Court

that the respondent does have an understanding of the language, and

he testified to that effect as well.” (A.R. 87).

Yet the IJ should have realized that Abulashvili‟s purported

comprehension of English was not consistent with the difficulty he

had in communicating, and that observation would have required

neither familiarity with his language nor any particular expertise in

communication theory.

The IJ herself later explained that the majority of

Abulashvili‟s testimony was in Georgian, but that he “has peppered

his testimony with English now and then.” (A.R. 63). In addition,

portions of Abulashvili‟s asylum application are difficult to

comprehend and extremely garbled. For example, when describing

the incident where the 18-year old passenger was shot, he explained,

“I placed her in minibus and as crazy have gone aside nearby

hospital in Azhmeta. In car except of girl me a translator was.”

(A.R. 366). It is difficult to conclude that Abulashvili could

adequately express himself in English. That may explain why

portions of his application are unclear. Nevertheless, for all of the

reasons we have explained, we hold that the adverse credibility

determination is not supported by substantial evidence.

B. Due Process

Finally, Abulashvili argues that his due process rights were

violated when IJ Garcy took over the cross-examination at the

hearing after determining that the government was not adequately

prepared. Abulashvili contends that the IJ was no longer a neutral

arbiter once she assumed the role of counsel. As noted earlier, the

IJ explained that she took such an active role in questioning to

9

At the initial hearing, the IJ asked Abulashvili‟s counsel

what “your client‟s best language is,” to which Abulashvili

responded “I speak Georgian, Russian, English.” (A.R. 108).

Abulashvili‟s counsel then asked Abulashvili “Which one‟s

your best?,” to which Abulashvili responded “No, it‟s okay, I

speak English.” (A.R. 108). Abulashvili was later provided

a Georgian interpreter at the merits hearing.

14

ensure that Abulashvili could tell his side of the story and that she

was therefore trying to ensure his due process rights were protected.

(A.R. 421)

“[T]he Due Process Clause applies to all „persons‟ within the

United States including aliens, whether their presence here is lawful,

unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S.

678, 693 (2001). To establish a due process violation, Abulashvili

must show that he was denied “a full and fair hearing,” which

includes a “neutral and impartial arbiter of the merits of his claim

and a reasonable opportunity to present evidence on [his] behalf.”

See Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2008). “„No

person [may] be deprived of his interests in the absence of a

proceeding in which he may present his case with assurance that the

arbiter is not predisposed to find against him.‟” Wang v. Att’y Gen.,

423 F.3d 260, 269 (3d Cir. 2005) (quoting Marshall v. Jerrico, Inc.,

446 U.S. 238, 242 (1980)). We review alleged due process

violations in deportation proceedings de novo. Abdulrahman v.

Ashcroft, 330 F.3d 587, 595 (3d Cir. 2003).

Here, IJ Garcy had every right to exercise her discretion to

question Abulashvili. See 8 USC § 1229a(b)(1). However, “"[a]n

immigration judge has a responsibility to function as a neutral,

impartial arbiter and must refrain from taking on the role of advocate

for either party." Elias v. Gonzales, 490 F.3d 444, 451 (6th Cir.

2007).

The Due Process Clause cannot tolerate a situation where a

supposedly neutral fact finder interjects herself into the proceedings

to the extent of assuming the role of opposing counsel and taking

over cross-examination for the government. In doing so here, this IJ

asked Abulashvili a total of 87 questions. Not surprisingly, once the

IJ began cross-examining Abulashvili, the government‟s attorney did

not follow up with a single question. (A.R. 209). Why would he

since an Immigration Judge was now doing his job for him? We

cannot imagine how the IJ could be deemed a neutral arbiter under

such circumstances. Moreover, even if she could somehow remain

neutral in fact, the appearance was clearly to the contrary. It is not

the IJ‟s function to protect the government by becoming its counsel

when its own counsel is not prepared.

IJs must “assiduously refrain from becoming advocates for

either party.” Abdulrahman, 330 F.3d at 596. Even if the IJ did not

intend to become an advocate for the government, “judicial conduct

15

[is] improper . . . whenever a judge appears biased, even if she

actually is not biased.” See In re Antar (SEC v. Antar), 71 F.3d 97,

101 (3d Cir. 1995). By stepping into the role of the attorney for the

government, the IJ gave the strong impression that she was on the

government‟s side. It is difficult to conclude that Abulashvili

received a “fair and full hearing” when the IJ ceased being the

“neutral arbiter” due process demands and assumed the role of an

advocate instead.

We readily acknowledge that an IJ‟s position is an impossibly

demanding and challenging one. This has become increasingly

obvious in recent years as IJs are confronted with an exponential

growth in their caseloads. The plight of immigration judges

shoveling back a sea of cases has been chronicled in several news

articles and law journals.10 In addition, it is often very difficult to

10

See, e.g., Casey Miner, Judges On the Verge of a Nervous

Breakdown, Mother Jones, Nov. 1, 2010 (explaining that one

immigration judge‟s docket in Minnesota was pushing 1,300

cases at any given time, and that the judge sometimes

conducted 50 hearings in a single day-one every eight

minutes); Peter L. Markowitz, Barriers to Representation for

Detained Immigrants Facing Deportation, Fordham L. Rev

545 (2009) (“One cannot exaggerate how overburdened and

under-resourced the immigration courts are and how pro se

cases tap those scarce resources disproportionately. In fiscal

year 2008, the nation‟s 214 immigration judges handled on

average over 1500 cases apiece. To assist them with this

enormous docket, immigration judges shared, on average, one

law clerk for every six judges.”); Howard Mintz, Immigration

Judges Struggling, Chi. Trib., Sept. 10, 2009 (“Immigration

courts have come under closer scrutiny in recent years as

caseloads exploded across the country. The number of

immigration cases jumped from more than 282,000 in 1998 to

a projected 385,000 this year, with only a modest increase in

the number of immigration judges.); Julia Preston, Study

Finds Immigration Courtrooms Backlogged , N.Y. Times,

June 18, 2009 (quoting Judge Dana L. Marks, president of the

National Association of Immigration Judges, who explained

that “[i]t‟s a system at its breaking point. How can a system

function properly when it is starved from the critical basic

resources it needs?”).

16

ascertain the veracity of an asylum applicant‟s testimony given

barriers of language and culture to which we have already alluded.

Perhaps this is why the BIA concluded that IJ Garcy was merely

engaged in a “ferreting out of the facts” and “acquiring clarity in

[Abulashvili‟s] testimony,” as we noted above. (A.R. 421).

However, that explanation and the IJ‟s own explanation would be far

more plausible if such interventions were as likely to favor the alien

as the government and if the record established that the IJ fairly

considered the entire record before making credibility

determinations. That does not appear to be the case.11

Moreover, it is one thing for an IJ to ask questions, and quite

another for an IJ to supplant the role of the government‟s attorney.

On this record, we can have no confidence that the IJ was merely

trying to ensure that Abulashvili had a full opportunity to tell his

story because, as noted above, the IJ ignored crucial parts of his

testimony in finding omissions that simply did not exist. The Due

Process Clause does not allow a neutral hearing officer to become

the functional equivalent of counsel for one of the parties; yet, that is

what appears to have happened here.

IV. The Appropriate Remedy

Where, as here, we reverse an adverse credibility

finding, “the proper course, except in rare circumstances, is to

remand to the agency for additional investigation or

explanation.” INS v. Orlando Ventura, 537 U.S. 12, 16

11

Unfortunately, this is not the first time that IJ Garcy‟s

conduct in a hearing has come to our attention. In Wang v.

Att’y Gen., 423 F.3d 261, 269 (3d Cir. 2005), we were deeply

troubled by her manner of questioning the asylum applicant

and noted that her “tone, the tenor, the disparagement, and the

sarcasm of the IJ seem more appropriate to a court television

show than a federal court proceeding.” Similarly, in Saleh v.

Gonzales, 172 Fed.Appx. 471, 474 (3d Cir. 2006)

(unpublished), we noted that “we would be remiss were we

not to point out the unprofessional and inappropriate conduct

of Judge Garcy, the IJ in this case. On numerous occasions

the Judge verbally attacked Mr. Saleh in a manner

unbecoming of a neutral and detached arbitrator.”

Here, unlike in other cases we have had to review, we

do not take issue with the manner in which this IJ questioned

Abulashvili. Rather, we are troubled by the fact that she took

over the cross-examination for the government.

17

(2002) (per curiam) (citation and quotation marks omitted);

Butt, 429 F.3d at 437. We will therefore vacate the BIA‟s

order dated May 30, 2008 dismissing Abulashvili‟s

application for withholding of removal and relief under the

CAT. We will also vacate the BIA‟s order dated April 30,

2009 denying Abulashvili‟s motion to reopen since that was

based on the BIA's affirmance of the IJ‟s adverse credibility

determination. In addition, we will remand the case to the

BIA and instruct the agency to assess Abulashvili‟s evidence

without considering the adverse credibility determination.

See Senathirajah v. I.N.S., 157 F.3d 210, 222 (3d Cir. 1998)

(remanding to BIA with instructions to remand to IJ for

decision on asylum and withholding application, but without

consideration of erroneous adverse credibility finding

reversed on appeal). 12

In the event that the BIA deems it appropriate to

further remand this case to an IJ for another hearing, we

strongly recommend that the agency refer the matter to a

different IJ in light of the concerns that have arisen in this

case, and the appearance of partiality that cannot now be put

“back into the tube.” See Cham v. Gonzales, 445 F.3d 683,

12

In its April 30, 2009 decision and accompanying order, the

BIA did not engage in any independent analysis with respect

to Abulashvili‟s CAT claim, and merely treated it in passing

at the end of its decision. When considering a motion to

reopen, the BIA must at the very least “actually consider the

evidence and argument that a party presents.” Abdulai v.

Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Abulashvili has

submitted a detailed report from Mr. Abdoumannob Poulatov,

a human rights advocate who has been widely recognized as

an expert on country conditions in the former Soviet Union.

According to the report, Poulatov opines that because of

Abulashvili‟s membership in the LPG opposition party, he

believes that Abulashvili “will most likely face possible

intimidation, attack, and possibly even incarceration and/or

torture, if he is forced to return to any part of Georgia.” (S.A.

29). Although we certainly do not suggest that the BIA must

accept Poulatov‟s conclusions, the agency should have at the

very least considered them. On remand, the BIA should

carefully consider the evidence presented in support of

Abulashvili‟s withholding of removal and CAT claims.

18

694 (3d Cir. 2006) (citing Sukwanputra v. Gonzales, 434 F.3d

627, 638 (3d Cir. 2006)). “[W]hile we „recognize that

assignment of an [IJ] is within the province of the Attorney

General,‟ if on remand an IJ‟s services are needed, we believe

„the parties would be far better served by the assignment to

those proceedings of a different IJ.‟” Korytnyuk v. Ashcroft,

396 F.3d 272, 287 (3d Cir. 2005) (quoting Paramasamy v.

Ashcroft, 295 F.3d 1047, 1055 n.4 (9th Cir. 2002)).

V. Conclusion

For the reasons set forth above, we hold that the BIA

erred in dismissing Abulashvili‟s application for withholding

of removal and protection under the CAT. We further hold

that the BIA abused its discretion in denying Abulashvili‟s

motion to reopen. Finally, we hold that Abulashvili‟s due

process rights were violated when the IJ assumed the role of

the government‟s attorney. We will therefore grant the

petition for review, vacate the orders of the BIA, and remand

the matter to the BIA for additional proceedings consistent

with this opinion.

19