Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-13-2007
Macharashvili v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1363
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1363
MERAB MACHARASHVILI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,
Respondents
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A79-299-156
Immigration Judge: Miriam K. Mills
Submitted Under Third Circuit LAR 34.1(a)
May 21, 2007
Before: BARRY, CHAGARES, and TASHIMA,* Circuit Judges
(Opinion Filed: June 13, 2007)
OPINION
*
The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
BARRY, Circuit Judge
Merab Macharashvili petitions for review of an order of the Board of Immigration
Appeals (“BIA”) upholding the Immigration Judge’s (“IJ”) denial of asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). We will deny the
petition.
I.
Macharashvili is a citizen and native of Georgia who entered the United States, via
Mexico, on February 23, 2000. On February 20, 2001, he applied for asylum,
withholding of removal, and CAT protection. He alleged, as the basis for relief, his
Ossetian nationality and his outspoken opposition to the Georgian nationalist policies of
then-President Eduard Shevardnadze. An asylum interview was conducted on March 20,
2001. The asylum officer determined that Macharashvili’s application was timely, but
that he was ineligible for asylum because his testimony lacked credibility and failed to
describe acts rising to the level of persecution. The matter was referred to an IJ for a
hearing.
An IJ held hearings on March 11, 2002 and April 16, 2002, and Macharashvili
testified with the aid of Russian and Georgian translators, respectively. He testified that
he is half Ossetian and half Georgian, and that his wife is Georgian. He claimed that after
fighting broke out in Ossetia in 1991 and he began to criticize the nationalist policies of
President Shevardnadze, he was frequently persecuted because of his nationality and
political views. Specifically, he testified, he lost his job on three occasions between 1995
2
and 1998, was assaulted twice, and received threatening phone calls. Although he sought
help from the police, he claimed that they refused to investigate because he was Ossetian.
In December 1996, he stated, he and his wife moved to the region known as South
Ossetia, where he continued to be persecuted because of his wife’s Georgian nationality.
In July 1997, he moved to Moscow while his wife remained in Georgia. After the
Chechen war broke out in 1998, he claimed that he was persecuted for being from the
Caucasus region, and for not having proper identification. He stated that he returned to
his wife in August 1999, but after learning that he was still in danger, he obtained a
Mexican visa and “took off to Mexico.” (App. vol. II at 173-74.) His wife and two
children, both daughters, purportedly remain in Georgia.
At the conclusion of the April 16, 2002 hearing, the IJ made an adverse credibility
determination and denied relief. On appeal, the BIA found the IJ’s findings speculative
and remanded for further findings consistent with Third Circuit caselaw. The BIA
specifically instructed the IJ to permit the parties to present evidence regarding current
country conditions, and to afford Macharashvili the opportunity to explain any
discrepancies in his testimony.
On remand, the matter was assigned to a new IJ, who, on February 20, 2004, held
a new hearing. The government submitted evidence of a change of political leadership in
Georgia following the resignation of President Shevardnadze in November 2003 and the
election of a new president in January 2004. Macharashvili again testified with the aid of
a Georgian interpreter. At the end of the hearing, the IJ denied relief, finding
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Macharashvili’s claim not credible. She specifically cited his failure to provide reliable
proof of his Ossetian nationality, his lack of any independent corroboration from his wife,
and his inability to provide credible explanations for his lack of proof.
Macharashvili appealed to the BIA, which, on December 27, 2005, issued a
detailed opinion affirming the IJ’s findings and denial of relief. The BIA found, based on
its independent review of the record, that a negative credibility finding was warranted. It
noted, specifically, that Macharashvili had submitted insufficient documentation of his
nationality and no corroborative evidence from his wife with respect to the claimed
incidents of persecution. The BIA also cited evidence in the record that political
conditions in Georgia changed after the 2004 presidential elections, and found that
Macharashvili had been afforded an opportunity to address each of these concerns. This
petition followed.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. §
1252, and we review adverse credibility determinations of the IJ or BIA for substantial
evidence. Chen v. Ashcroft, 376 F.3d 215, 221-22 (3d Cir. 2004). The BIA performed an
independent review of the record, but also relied substantially on the IJ’s “specific, cogent
reasons for her adverse credibility finding.” (App. vol. I at 6.) Accordingly, we review
both the IJ and BIA’s opinions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We
must uphold the BIA and IJ’s adverse credibility determination unless the evidence of
Macharashvili’s credibility is so strong “that in a civil trial he would be entitled to
4
judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
There is substantial evidence in the record to support the findings of the IJ and the
BIA that Macharashvili lacked credibility, particularly as it relates to the question of his
Ossetian nationality. At the heart of his claim is his assertion that he is “half
Ossetian”—a fact that allegedly resulted in his being persecuted at the hands of Georgian
nationalists, but that fails to withstand scrutiny. He testified that he was born in Georgia
and speaks only Georgian, having not learned the Ossetian language either in his youth or
during the period when he and his wife resided in South Ossetia. His father, also born in
Georgia, is himself “half Ossetian,” while his mother is Georgian; and his paternal
grandfather is “half Ossetian.” (App. vol. I at 57.) These ratios, it must be noted, would
make Macharashvili no more than one quarter Ossetian. He conceded that he has a
Georgian last name, but maintained that “everyone” in Georgia knows that it is derived
from Ossetian. (Id. at 42.) Yet, from 1985 to 1995, he was a star performer in the
Georgian National Dance Company, and was fired in 1995, four years after fighting broke
out between Georgian and Ossetian nationalists, allegedly because he refused to join the
Georgian Citizens Union. He acknowledged that union leaders wanted him to join.
We agree with the IJ and the BIA that these circumstances cast considerable doubt
on Macharashvili’s Ossetian identity, and raise the need for corroboration. See In re Y-B,
21 I. & N. Dec. 1136, 1139 (BIA 1998) (“[T]he weaker an alien’s testimony, the greater
the need for corroborative evidence.”). Corroboration here, however, is virtually
nonexistent. Despite having had three years to gather documentary support for his claim,
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the only evidence that Macharashvili has produced of his Ossetian identity is his father’s
reissued, unauthenticated birth certificate, showing “Ossetian” as the nationality of his
paternal grandfather.1 Macharashvili testified that in Georgia, ethnic identity is derived
from one’s father, but he has produced nothing to substantiate this claim, nor to
corroborate his assertion that “everyone” in Georgia knows Macharashvili is an Ossetian
name. See 8 C.F.R. § 208.13(a) (placing burden of proving eligibility for asylum and
withholding on applicant); Obale v. Attorney Gen., 453 F.3d 151, 163 (3d Cir. 2006)
(acknowledging the applicant’s burden to produce corroborating evidence).
Meanwhile, Macharashvili has failed to produce a copy of his own birth certificate
or those of his children, and has failed to produce a copy of his marriage certificate—all
documents that might corroborate his nationality. Even more troublesome, he has failed
to produce any corroborating affidavits from friends or family members. He contends
that he cannot contact his parents, and that his wife is afraid to use the mails, but we find
such justifications unpersuasive in light of the fact that his wife and parents, who reside
some 150 kilometers apart, are not subject to the same intrusive local authorities, and that,
in any event, he has had several years to make alternative arrangements. The absence of
any affidavit from his wife is all the more glaring in light of her central role in
Macharashvili’s narrative as the sole eyewitness to many of the alleged acts of
1
Although certification pursuant to 8 C.F.R. § 287.6 is not strictly required, see Liu v.
Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004), we note that Macharashvili offers no
explanation for the lack of certification here, and attempts to prove the birth certificate’s
authenticity “through other means,” id.
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persecution, and as the ostensible reason for his being targeted for persecution in South
Ossetia. See Zhang v. I.N.S., 386 F.3d 66, 78-79 (2d Cir. 2004) (faulting petitioner for
failing to obtain corroborative affidavit from wife or credibly demonstrate that such
affidavit was unavailable).
Macharashvili’s testimony is implausible in other respects, as well. He conceded
that ethnic conflict between Georgians and Ossetians reached its peak in 1991, but that he
was not fired from his job until 1995, the year when State Department reports indicate
that conditions began to stabilize. At his first asylum hearing, he admitted that he
experienced no incidents of persecution during the year prior to his departure for Mexico,
and no physical violence since 1996. His wife and daughters admittedly have suffered no
persecution in his absence, and he is unaware of any persecution experienced by his “half
Ossetian” father and Georgian mother, who continue to reside together in Georgia. See
Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (noting that a petitioner’s claim may be
diminished or undercut when family members remain in petitioner’s native country
without suffering harm). It is also noteworthy that President Shevardnadze is no longer in
office, and that early reports indicate that “[c]onsiderable progress has been made in
negotiations on the Ossetian-Georgian conflict.” (App. vol. II at 259.) Finally, we
struggle, as did the IJ, with Macharashvili’s somewhat incredible story of his South
Ossetian neighbors learning the ethnic identity of his wife from his one-year, seven-
month-old daughter, who allegedly told them her mother’s last name.
The scant corroborating evidence that Macharashvili has provided is, at best,
7
inconclusive. He has submitted a copy of his passport, indicating that he is a citizen of
the Republic of Georgia, and a letter from Lufthansa, indicating that he was a passenger
aboard a February 13, 2000 flight. Neither fact is contested. He has submitted a
photograph and a certificate from the Georgian Ministry of Culture, issued on April 24,
2001, indicating that he was a member of the State Honored Folk Song and Dancing
Troupe of Georgia from December 16, 1985 until November 12, 1995; this fact is also
uncontested. Most relevant to his claim of past persecution is an uncertified extract from
his official Medical Card, issued on February 1, 2001, indicating that he “got trauma” and
was treated on May 10, 1996. Although this document is consistent with his claim that he
was assaulted on that date by Georgian nationalists, there is no indication of the cause of
the trauma or of Macharashvili’s nationality, and, therefore, nothing to corroborate his
claim that this was an act of state-condoned ethnic persecution. Meanwhile, he has
submitted no evidence that he continues to be, or ever was, wanted by the Georgian
authorities for speaking out against the policies of former President Shevardnadze—or,
for that matter, for any reason.
In light of these circumstances, we conclude that there is substantial evidence in
the record to support the IJ and BIA’s adverse credibility finding. Despite having had
ample time to do so, Macharashvili has failed to produce any evidence to corroborate the
more problematic and less credible aspects of his testimony, such as his alleged Ossetian
nationality, his marital status, and his blacklisting by Georgian authorities. As these
aspects go to the heart of his claim for asylum and withholding of removal, see Gabuniya
8
v. Attorney Gen., 463 F.3d 316, 321 (3d Cir. 2006), we find substantial evidence
supporting the IJ and BIA’s denial of relief.
III.
For the foregoing reasons, we will deny Macharashvili’s petition for review of the
order of the BIA denying him asylum, withholding of removal, and relief under the CAT.
9