United States 2nd Circuit Court of Appeals Reports
IVANISHVILI v. U.S. DEPT. OF JUSTICE, 433 F.3d 332 (2nd Cir.
2006) Giuli IVANISHVILI, Petitioner, v. UNITED STATES
DEPARTMENT OF JUSTICE & Attorney General Gonzales,[fn*]
Respondent. Docket No. 03-4166. United States Court of
Appeals, Second Circuit. Argued May 16, 2005. Decided
January 5, 2006.
[fn*] Attorney General Alberto R. Gonzales is substituted
for former Attorney General John Ashcroft as Respondent.
See Fed.R.App.P. 43(c)(2).
Petition for review Board of Immigration Appeals. Page 333
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 334
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 335
Bruno Joseph Bembi, Hempstead, New York, for Petitioner.
Mark E. Salter, Assistant United States Attorney, Sioux
Falls, South Dakota (Michelle G. Tapken, Acting United
States Attorney, District of South Dakota, Sioux Falls,
South Dakota, of counsel), for Respondent.
Before: CARDAMONE and KATZMANN, Circuit Judges, and
KRAVITZ,[fn**] District Judge.
[fn**] Hon. Mark R. Kravitz, United States District Court
for the District of Connecticut, sitting by designation.
CARDAMONE, Circuit Judge.
Giuli Ivanishvili (Ivanishvili or petitioner) petitions
for review of a decision of the Board of Immigration
Appeals (BIA or Board) that summarily affirmed an
immigration judge’s (IJ’s) decision rejecting her
application for asylum as untimely and denying her
application for statutory withholding of removal and her
request for withholding under the Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, U.N. Doc.
A/39/51 (1984) (CAT or Convention). She alleges she was
persecuted in her country of origin because she is a member
of an ethnic and religious minority group and asserts that,
if returned, she will face further persecution and possibly
torture. We believe the facts of petitioner’s case merit
more careful attention by the immigration court than has
been afforded thus far, and we therefore remand for
reconsideration.
BACKGROUND
Petitioner is a 54-year-old woman from the Republic of
Georgia. Although her mother is Georgian, petitioner’s
father was originally from South Ossetia, a region along
the border of Georgia and Russia, and petitioner considers
herself ethnically Ossetian. Following Georgia’s
independence from the Soviet Union in 1991, South Ossetia
attempted to secede from Georgia, which led to a civil war
and the eventual occupation of South Ossetia by a regional
peacekeeping force in 1992. As a result of the danger to
Ossetians in Georgia during this period, petitioner changed
her name to Ivanishvili (her mother’s maiden name) from
Gagloshvili (her father’s name) to avoid identification as
an Page 336 Ossetian. Petitioner became a Jehovah’s
Witness in 1994.
Ivanishvili entered the United States on December 3, 1996
on a valid non-immigrant visa that permitted her to remain
lawfully in the United States until June 2, 1997. She
overstayed this visa. In January 1998, she allegedly paid
$2,000 to an individual named Alexey Alabushev to file an
application for asylum on her behalf. According to
Ivanishvili, Alabushev did not file the application and
disappeared without providing her with any receipts or
correspondence. In September 1998, Ivanishvili allegedly
paid another $2,000 to one Tony Lan to file an asylum
application on her behalf. Lan provided petitioner with
unsigned receipts, but filed a fraudulent application for a
student visa instead of an asylum application. Ivanishvili
obtained reputable legal counsel in 2000 and filed an
application for asylum and withholding of removal on July
18, 2000.
In her application, Ivanishvili asserted that she suffered
“severe mistreatment and physical abuse [in Georgia] for
being a Jehovah’s Witness and Ossetian,” and stated that
she feared “future harm and torture in the event of my
return to Georgia.” Specifically, petitioner contended
that, due to her ethnicity, she suffered “humiliation,
harassment and even beatings” and was denied educational
and employment opportunities to which she was entitled.
During the civil war in Ossetia, petitioner alleged her
family was subjected to violence and intimidation at the
hands of Georgian nationalists and soldiers, and that
Georgian nationalists vandalized her home by throwing rocks
through her windows. She also stated that as late as August
1996, shortly before leaving Georgia for the United States,
her neighbors assaulted her and threatened further harm if
she did not leave Georgia and move to Ossetia.
Petitioner also alleged severe abuse and mistreatment
because of her religion. She reported three separate
occasions in 1995 and 1996 when military or police
officials accosted her and her fellow worshipers during
religious meetings. The officers reportedly beat
petitioner, called the worshipers “[d]amn [s]ectarians,”
and threatened to kill them. Petitioner also alleged that
unknown parties vandalized her place of worship in 1996,
painting “Death to Sectarians!” on the wall.
The Immigration and Naturalization Service (INS)[fn1]
initiated removal proceedings against petitioner by a Notice
to Appear served on August 28, 2000. At her hearing before
the IJ, Ivanishvili conceded removability but sought
asylum, withholding of removal, and relief under CAT for
the reasons stated in her application. In support,
Ivanishvili submitted numerous documents to the IJ,
including articles from news sources and non-governmental
organizations detailing the adverse treatment to which
Ossetians and religious minorities have been subjected in
Georgia and the U.S. State Department’s 2000 Country Report
(Country Report) on human rights practices in Georgia.
Ivanishvili’s testimony regarding religious persecution
was consistent with the statements in her asylum
application. Petitioner did not testify in detail about the
reported incidents of ethnic persecution, but did relate an
incident from September 1992 when armed Georgian soldiers
allegedly broke into her apartment, beat her with clubs,
and threatened to kill her if she did not leave Georgia and
move to Ossetia. Page 337 As a result of this incident,
Ivanishvili testified that she moved in with her mother and
sought out the Jehovah’s Witnesses for spiritual guidance.
The IJ issued an oral decision on December 13, 2001
denying petitioner’s application for asylum and withholding
of removal and her request for relief under CAT and
granting her voluntary departure from the United States.
The IJ ruled petitioner’s asylum application was not timely
and that she could not prove extraordinary circumstances
justifying her failure to timely file. The IJ further
concluded that petitioner’s application for statutory
withholding of removal was without merit. He questioned
Ivanishvili’s testimony because it was “relatively general,”
and because she failed to include the most severe incident
of harm based on her ethnicity — the September 1992
attack by Georgian soldiers — in her asylum
application. While conceding that the documentary evidence
submitted by petitioner, including the State Department’s
Country Report, demonstrated that “severe problems” exist
for Ossetians in Georgia, the IJ nonetheless concluded that
“the harassment that has been indicated would not
constitute persecution within the meaning of the
Immigration and Nationality Act.” Finally, the IJ found no
evidence that Ivanishvili faced a likelihood of torture if
returned to Georgia and denied her CAT claim.
Petitioner appealed to the BIA on January 4, 2002. In
support of her appeal, Ivanishvili submitted additional
affidavits and news reports substantiating her accounts of
abuse, discrimination, and violence against Ossetians and
Jehovah’s Witnesses in Georgia. She did not address the
IJ’s adverse decision on her CAT claim. The Board affirmed
the IJ’s decision without opinion on January 8, 2003, and
Ivanishvili petitioned this Court for review.
DISCUSSION
I Standard of Review
Ordinarily we review BIA decisions, but when the BIA
summarily adopts an IJ’s decision as the final agency
determination, we review the IJ’s decision directly.
Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003).
An IJ’s factual determinations are upheld if supported by
substantial evidence, see, e.g., Zhang v. INS, 386 F.3d 66,
73 (2d Cir. 2004), a standard that is “slightly stricter”
than the clear-error review we apply to the factual
determinations of district courts, but nonetheless one that
allows only very narrow grounds for reversal. Qiu v.
Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003); see Melgar de
Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (describing
the scope of such review as “exceedingly narrow”). Indeed,
we will overturn the IJ’s or BIA’s factual determinations
only if a reasonable factfinder would be compelled to
conclude to the contrary. See Zhang, 386 F.3d at 73.
Despite these limitations, we retain substantial authority
to vacate BIA or IJ decisions and remand for
reconsideration or rehearing if the immigration court has
failed to apply the law correctly or if its findings are
not supported by record evidence. See Qiu, 329 F.3d at 149.
Moreover, it is not our task to search the record for
reasons why a decision of the IJ or BIA should be affirmed;
rather, the immigration court must adequately link its
decision to the record evidence in a reasoned opinion that
properly applies the law, id., and “if the IJ’s reasoning
proves inadequate for denying a petitioner’s claim, we will
not hesitate to reverse,” Secaida-Rosales, 331 F.3d at
305. Page 338
Ivanishvili asserts on appeal that the IJ erred in
rejecting her asylum application as untimely and in denying
her requests for statutory withholding of removal and
withholding under the CAT. She also contends the IJ erred
by not considering the documentary evidence she submitted
at her hearing and that the BIA abused its discretion by
failing to consider the additional documentary evidence
petitioner submitted on appeal.
In our view, the IJ’s denial of Ivanishvili’s application
for withholding of removal is based on reasoning that, in
light of the record, is insufficient for us to permit
meaningful review of the decision. We therefore vacate the
BIA’s decision insofar as it summarily affirmed the IJ’s
denial of petitioner’s application for withholding and
remand to the BIA with instructions to vacate that portion
of the decision and remand it to the IJ for further
proceedings consistent with this opinion. In all other
respects, we affirm the IJ’s decision.
II Petitioner’s Application for Asylum
We turn first to the IJ’s rejection of Ivanishvili’s
asylum application. An alien seeking asylum must apply
within one year of her last arrival in the United States or
April 1, 1997, whichever is later. See 8 U.S.C. §
1158(a)(2)(B); 8 C.F.R. § 208.4(a)(2)(ii). Because
Ivanishvili arrived in the United States on December 3,
1996, she was entitled to have the one-year limit run from
April 1, 1997 and should have filed her asylum application
by April 1, 1998. Petitioner’s asylum application was not
filed until July 18, 2000, more than two years after the
regulatory deadline. The IJ thus rejected the application
as untimely.[fn2] We conclude that petitioner’s claim
cannot succeed because she has not complied with the
procedural requirements for asserting that “extraordinary
circumstances” excuse her failure to timely file.
Ineffective assistance of counsel is one such extraordinary
circumstance, see 8 C.F.R. § 208.4(a)(5)(iii), but
in order to make such a claim, an alien must: (1) file an
affidavit “setting forth in detail the agreement that was
entered into with counsel with respect to the actions to be
taken and what representations counsel did or did not make
to the respondent in this regard”; (2) inform counsel of
the allegations and allow him an opportunity to respond; and
(3) file a complaint against counsel “with appropriate
disciplinary authorities,” or explain why she has not done
so. Id.
Ivanishvili contends that she paid Alexey Alabushev $2,000
to file an asylum application on her behalf in January
1998, before the regulatory deadline, but Alabushev did not
file the application and absconded with her money.
Petitioner therefore contends that her failure to timely
file was the result of ineffective assistance of counsel.
Her supporting affidavit, however, simply states that in
January 1998 she went to an office called “Immigration
Service” in Brooklyn, New York to seek help with filing an
asylum application, that she paid Alabushev $2,000, and
that she discovered in April or May 1998 that Page 339 the
office was closed and no application had been filed. The
affidavit does not contain details about petitioner’s
arrangement with Alabushev, including what services he
promised, when he intended to file the application, or what
evidence petitioner provided to Alabushev in support of the
application.
Moreover, in her testimony and supporting affidavit,
Ivanishvili offered no evidence that she attempted to
determine Alabushev’s whereabouts after he disappeared or
attempted to inform him of her ineffective assistance
claim. She also did not file a complaint with any
disciplinary authority and her proffered reason for not
doing so — that she “was illegal here and . . . was
afraid of doing any move [sic]” — if accepted, would
effectively excuse all illegal aliens from the complaint
requirement. Petitioner did not satisfy the prerequisites
for bringing an ineffective assistance of counsel claim and
therefore could not demonstrate “extraordinary
circumstances” excusing her failure to timely file.
III Petitioner’s Application for Withholding of Removal
When an applicant is ineligible to apply for asylum due to
the time restrictions set forth in 8 U.S.C. §
1158(a)(2)(B), the “asylum application [is] construed as an
application for withholding of removal.” 8 C.F.R. §
208.3(b). To qualify for withholding, the applicant must
establish that her “life or freedom would be threatened in
[the] country [of removal]” on the basis of one of five
statutory grounds, “race, religion, nationality, membership
in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A); see 8 C.F.R. §
208.16(b); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
Cir. 2004). If the applicant establishes that she “suffered
past persecution” on the basis of one such statutory
ground, eligibility for withholding is presumed, subject to
rebuttal. 8 C.F.R. § 208.16(b)(1); see
Secaida-Rosales, 331 F.3d at 306. The applicant
alternatively may qualify for withholding if she can show
“that it is more likely than not” that she “would be
persecuted” on the basis of a statutory ground. 8 C.F.R.
§ 208.16(b)(2); see Melgar, 191 F.3d at 311 (stating
that withholding of removal requires a “clear probability
that [the applicant] will suffer persecution if returned to
[the country of removal], i.e., that it is more likely than
not that [she] would be subject to persecution”). It is
worth noting as well that the concept of persecution
inheres in the analysis of both asylum and withholding of
removal, but it is the burden of proving persecution that
differentiates the two, with the latter demanding the more
exacting standard. See Zhang, 386 F.3d at 71 (noting “the
two forms of relief are factually related but with a
heavier burden for withholding”); see also INS v. Stevic,
467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)
(establishing a “clear probability” standard for withholding
of removal claims); INS v. Cardoza-Fonseca, 480 U.S. 421,
441, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (distinguishing
between “the broad class of refugees” subject to
discretionary asylum relief and the “subcategory” of that
class “entitled to [withholding of removal] relief”).
While the REAL ID Act of 2005, Pub.L. No. 109-13, 119
Stat. 231, has amended both the withholding of removal and
asylum statutes explicitly by addressing burden of proof
and credibility determinations in their respective
contexts, see id. § 101(a), (c) (codified at 8
U.S.C. §§ 1158(b)(1)(B), 1231(b)(3)(C)),
these amendments do not affect petitioner’s application,
which was filed before their effective date, see id.
§ 101(h).
Petitioner alleged in the case before us two statutory
grounds for withholding of Page 340 removal, ethnic
persecution and religious persecution. Her primary
evidentiary support for ethnic persecution was her
testimony regarding past persecution at the hands of
Georgian nationalists and government officials and
documentary materials about human rights practices in
Georgia. Her primary evidentiary support for religious
persecution similarly consisted of her own testimony and
background documentary materials showing persecution of
Jehovah’s Witnesses in Georgia. Finding her evidentiary
support unpersuasive, the immigration court rejected both
of her claims.
With respect to ethnic persecution, the IJ found that her
testimonial evidence and her application were relatively
general, meaning that in his view they failed to give
sufficient detail about the alleged acts of ethnic
persecution. The IJ also questioned petitioner’s
credibility because her application failed to mention the
most severe incident of ethnic persecution, the September
1992 abuse by military officials. Finally, the IJ found
that although the documentary materials proved “that there
was, in fact, a war between Georgia and Ossetia” and that
“[t]here were severe problems” between the two ethnic
groups, nonetheless, “members of her ethnic group were able
to return to Georgia.” With regard to religious
persecution, relying on the U.S. State Department’s Country
Report and “other background evidence,” the IJ held that
although the documentary materials “establish[ed] that
there are problems with harassment of Jehovah’s Witnesses
in Georgia, . . . the harassment that has been indicated
would not constitute persecution within the meaning of the
Immigration and Nationality Act.” The IJ then denied,
without further discussion, petitioner’s claims under the
withholding of removal statute.
The IJ’s discussion of the important claims raised by
petitioner does not permit adequate review by this Court
and therefore requires a remand for further consideration.
As noted above, we will vacate the BIA’s or IJ’s
“conclusions[] as to the existence or likelihood of
persecution . . . insofar as the BIA either has not applied
the law correctly, or has not supported its findings with
record evidence.” Qiu, 329 F.3d at 149. This means that
errors found pursuant to our de novo review of the IJ’s
application of law are not necessarily excused because the
IJ’s decision might have been reasonable if the error had
not been made. It also means that our deferential review of
the IJ’s factual findings does not require us to seek
alternative grounds for affirmance where the grounds set
forth by the IJ are insufficient. Id. In this case, the IJ
failed both to support its findings with adequate record
evidence and to apply correctly the relevant law.
As to the IJ’s application of law, its opinion failed to
distinguish adequately between “harassment” and
“persecution,” that is, what “constitute[s] persecution
within the meaning of the Immigration and Nationality Act.”
While the confusion is somewhat understandable, since the
courts of appeals have not settled on a single, uniform
definition of persecution in this context, see
Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999)
(noting the courts’ failure to achieve a general consensus
on the definition of persecution), a clear understanding of
the meaning of persecution — a term not defined by
the Immigration and Nationality Act — is essential
to the analysis of withholding of removal.
The circuits that have encountered this issue have
variously described the meaning of persecution. See, e.g.,
Karouni v. Gonzales, 399 F.3d 1163, 1171 (9th Cir. 2005)
(defining persecution as “the infliction Page 341 of
suffering or harm upon those who differ (in race, religion,
or political opinion) in a way regarded as offensive”);
Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005)
(same); Abdel-Masieh v. INS, 73 F.3d 579, 583-84 (5th Cir.
1996) (quoting Matter of Laipenieks, 18 I. & N. Dec. 433,
457 (BIA 1983)) (same); Rife v. Ashcroft, 374 F.3d 606, 612
(8th Cir. 2004) (defining persecution as the “infliction or
threat of death, torture, or injury to one’s person or
freedom on account of a statutory ground”); Bace v.
Ashcroft, 352 F.3d 1133, 1137 (7th Cir. 2003) (defining
persecution as “punishment or the infliction of harm for
political, religious, or other reasons that this country
does not recognize as legitimate”); Fatin v. INS, 12 F.3d
1233, 1240 (3d Cir. 1993) (defining persecution as “threats
to life, confinement, torture, and economic restrictions so
severe that they constitute a threat to life or freedom”).
We have explained that persecution “includes `more than
threats to life and freedom,'” Chen v. INS, 359 F.3d 121,
128 (2d Cir. 2004) (quoting Begzatowski v. INS, 278 F.3d
665, 669 (7th Cir. 2002)), and therefore encompasses a
variety of forms of adverse treatment, including
“non-life[-]threatening violence and physical abuse,” Chen,
359 F.3d at 128, or non-physical forms of harm such as “the
deliberate imposition of a substantial economic
disadvantage,” Guan Shan Liao v. U.S. Dep’t of Justice, 293
F.3d 61, 67 (2d Cir. 2002). In short, persecution is the
infliction of suffering or harm upon those who differ on
the basis of a protected statutory ground (a standard the
parties do not here dispute, see, e.g., In re S-A-, 22 I.
& N. Dec. 1328, 1336 (BIA 2000) (defining persecution as
“the infliction of suffering or harm upon those who differ
(in race, religion or political opinion) in a way regarded
as offensive”); Respondent’s Brief at 15 (same)).
Of course, as the IJ noted in its decision, persecution
does not encompass mere harassment. Chen, 359 F.3d at 128.
To “harass” is “to vex, trouble, or annoy continually or
chronically,” Webster’s 3d New Int’l Dictionary 1031
(1981), and “harassment” is “[w]ords, conduct, or action
(usu[ally] repeated or persistent) that, being directed at
a specific person, annoys, alarms, or causes substantial
emotional distress in that person and serves no legitimate
purpose.” Black’s Law Dictionary 721 (7th ed. 1999). And if
the immigration court, having correctly applied the
definition of persecution to the facts of this case, had
determined on the basis of the whole record that
petitioner’s mistreatment indeed constituted harassment, we
would have no quarrel with the decision; for we recognize
that the difference between harassment and persecution is
necessarily one of degree that must be decided on a
case-by-case basis. But this the immigration court did not
do. Instead, in rejecting petitioner’s religious
persecution claim, the IJ relied on the Country Report and
“other background evidence” to find that the “problems with
harassment of Jehovah’s Witnesses in Georgia” did not
amount to persecution. Yet in reaching this finding, the
immigration court did not even mention the substantial
testimony regarding petitioner’s alleged religious
persecution, nor did it explicitly find such testimony
incredible.
While we do not require the IJ to make individualized
credibility findings for each allegation, cf. Qiu, 329 F.3d
at 149 (noting that “fail[ure] to consider all factual
assertions in an applicant’s claim for eligibility” may be
excused “only where the evidence in support of a factor
potentially giving rise to eligibility is too insignificant
to merit discussion”), in the face of the substantial
testimony and corroborating documentation petitioner
submitted to Page 342 the IJ regarding her religious
persecution, we find it remarkable, not to mention
frustrative of judicial review, that the IJ did not in any
way analyze or weigh that testimony. See Chen, 359 F.3d at
127 (“What is troubling about this case is the undisputed
failure by the IJ and the BIA . . . to acknowledge, much
less evaluate, Chen’s testimony that he had been beaten” on
the basis of his religion). Assuming everything petitioner
said is true, it is not at all clear that the treatment she
suffered was harassment rather than persecution.
The government contends these incidents cannot give rise
to persecution because the officers may have acted out of
their own religious fervor, and not at the direction of the
Georgian government. We note, however, that even assuming
the perpetrators of these assaults were not acting on
orders from the Georgian government, it is well established
that private acts may be persecution if the government has
proved unwilling to control such actions. See, e.g.,
Karouni, 399 F.3d at 1171; Bace, 352 F.3d at 1138.
Ivanishvili testified that on three separate occasions in
1995 and 1996, military or police officers violently
attacked her and her fellow worshipers during religious
meetings, calling the worshipers “damn sectarians” and
threatening to kill them. Petitioner also alleged that
unknown parties vandalized her place of worship in 1996,
painting “Death to Sectarians!” on the wall. The
documentary evidence supports these allegations. The U.S.
State Department’s Country Report, for example, states that
religious minorities — particularly Jehovah’s
Witnesses — have repeatedly been subjected to
assaults and beatings by government agents and private
parties acting with impunity because “police and
prosecutors [have] refused to prosecute persons who
attacked members of Jehovah’s Witnesses.”
Where an alien, because of her membership in a statutorily
protected class, suffers physical abuse and violence at the
hands of government agents or private actors who behave
with impunity in the face of government reluctance to
intervene, such evidence is relevant to the alien’s claim
that she has been subjected to persecution or has a
well-founded fear of persecution. Chen, 359 F.3d at 128.
That evidence, if credible, may preclude a finding that the
conduct is mere harassment that does not as a matter of law
rise to the level of persecution, for violent conduct
generally goes beyond the mere annoyance and distress that
characterize harassment. The IJ in this case did not
evaluate, or even meaningfully acknowledge, petitioner’s
testimony that she had been beaten, and we must therefore
give the IJ opportunity to do so. See id. at 127 (vacating
and remanding the BIA’s decision affirming the IJ’s denial
of application for asylum and withholding of removal due to
the failure to acknowledge testimonial evidence). After
reconsidering whether the alleged treatment suffered by
petitioner constitutes persecution, the IJ will also have
the opportunity to consider whether petitioner has
satisfied the standard of proof relevant to withholding
applications, i.e., a “clear probability” that petitioner
will suffer persecution in the proposed country of removal.
See Melgar, 191 F.3d at 311. The immigration court did not
reach this question because it concluded that Ivanishvili
had not been persecuted and therefore did not qualify for
withholding.
In sum, because we find that the IJ “ignor[ed] a
significant aspect of [petitioner’s] testimony in support
of h[er] claims of past persecution and future
persecution,” Chen, 359 F.3d at 128, the BIA’s decision,
insofar as it summarily affirmed the IJ’s denial of
petitioner’s application Page 343 for withholding of
removal, must be vacated and the case remanded to the BIA
for further proceedings consistent with this opinion. On
remand, the IJ is instructed to apply the definition of
persecution set forth in this opinion and take full account
of the allegations of physical violence contained in
petitioner’s testimony and the supporting documentary
evidence, particularly with regard to her claim of
religious persecution. If the IJ concludes that, applying
these standards, Ivanishvili’s testimony constitutes
persecution, the IJ must then consider whether petitioner’s
evidence demonstrates a threat to life and freedom
sufficient to qualify for withholding of removal, i.e.,
whether there is a clear probability of such persecution.
If the IJ concludes that persecution was not proved because
petitioner’s testimony was not credible, the IJ’s analysis
should include “specific, cogent reasons” for rejecting
petitioner’s testimony, reasons which “bear a legitimate
nexus” to the adverse credibility finding. Secaida-Rosales,
331 F.3d at 307.
IV Petitioner’s Claim for Withholding of Removal Under the
Convention Against Torture
Ivanishvili next argues that the BIA erred in not
considering her CAT claim, even though she did not raise
the IJ’s rejection of that claim in her appeal. The
government, seizing on that failure, contends she has not
exhausted her administrative remedies as required by 8
U.S.C. § 1252(d)(1) and therefore the issue is not
properly before us.
Section 1252(d)(1) provides, in pertinent part, that
federal courts may review a final order of removal only if
“the alien has exhausted all administrative remedies
available to the alien as of right.” Statutory exhaustion
requirements are mandatory, and so, unlike with common law
exhaustion requirements, the “judicial discretion to employ
a broad array of exceptions that allow a plaintiff to bring
his case in district court despite his abandonment of the
administrative review process” does not apply in this
context. Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90, 94
(2d Cir. 1998); see Beharry v. Ashcroft, 329 F.3d 51, 56
(2d Cir. 2003). While we have recently noted potential
exceptions to our statutory exhaustion doctrine,
petitioner’s CAT claim does not come close to falling
within their reach. See Gill v. INS, 420 F.3d 82, 86-87 (2d
Cir. 2005) (considering certain subsidiary arguments purely
legal in nature despite failure to raise arguments before
the BIA); Marrero Pichardo v. Ashcroft, 374 F.3d 46, 52-53
(2d Cir. 2004) (considering alien’s habeas petition despite
failure to exhaust administrative remedies under 8 U.S.C.
§ 1252(d)(1) in order to avoid “manifest
injustice”). Petitioner’s failure to raise her CAT claim
before the BIA is inexcusable and, in any event, the claim
is meritless. While her allegations of adverse treatment
may rise to the level of persecution, none rises to the
level of torture. See 8 C.F.R. § 208.18(a)(1)
(defining torture as an “act by which severe pain or
suffering, whether physical or mental, is intentionally
inflicted on a person . . . by or at the instigation of or
with the consent or acquiescence of a public official” for
specified purposes such as punishment, intimidation,
discrimination, or obtaining information).
V Other Issues
Ivanishvili finally contends that the IJ failed to consider
the documentary evidence she submitted and that the BIA
similarly abused its discretion in failing to consider the
additional documentary evidence she appended to her appeal.
We find these claims to be wholly without merit. The record
provides no basis for petitioner’s Page 344 first
contention; indeed, the IJ’s oral decision acknowledged
that Ivanishvili submitted documentary evidence that
substantiated her testimony. There is also no authority
supporting petitioner’s contention that an IJ errs unless
he specifically discusses, evaluates, and accepts or
rejects each piece of documentary evidence submitted. See
Guan Shan Liao, 293 F.3d at 68.
As for petitioner’s second contention, when Ivanishvili
filed her appeal with the BIA, she submitted several news
reports and articles from NGOs that were not included in
the record before the IJ. She contends that she made a
motion to have these articles considered which was
unopposed by the government, and that the BIA abused its
discretion in failing to consider the documents.
Petitioner’s argument fails, however, because no such
motion was filed before the BIA. Rather, Ivanishvili simply
appealed the IJ’s decision and attached the documents to
her appeal. Ivanishvili cites no authority for the
proposition that the BIA is required to consider new
evidence in the absence of a motion to reopen, and
petitioner’s appeal on this ground is without merit.
CONCLUSION
We have considered petitioner’s remaining arguments and
find them all to be without merit. For the forgoing
reasons, the petition for review is granted. We vacate the
BIA’s summary affirmance of the IJ’s denial of petitioner’s
application for withholding of removal and remand to the
BIA with instructions to vacate that portion of the IJ’s
decision and remand to the IJ for further proceedings
consistent with this opinion. In all other respects, the
IJ’s decision is affirmed.
[fn1] Pursuant to the Homeland Security Act of 2002, Pub.L.
No. 107-296 § 441, 116 Stat. 2135, 2193, on March 1,
2003, the INS was abolished and its functions transferred
to the Department of Homeland Security. We refer to the INS
throughout this opinion, however, to avoid confusion.
[fn2] The government contends on appeal that 8 U.S.C.
§ 1158(a)(3) strips this Court of jurisdiction to
review that determination. We need not address the
jurisdictional issue. Our assumption of jurisdiction to
consider first the merits is not barred where the
jurisdictional constraints are imposed by statute, not the
Constitution, and where the jurisdictional issues are
complex and the substance of the claim is, as here, plainly
without merit. See Marquez-Almanzar v. INS, 418 F.3d 210,
216 n. 7 (2d Cir. 2005). Consideration of the merits is
especially appropriate because neither party has addressed
the complex question of whether the recent amendments to 8
U.S.C. § 1252 by the REAL ID Act of 2005, Pub.L. No.
109-13, 119 Stat. 231, impacts our jurisdiction in this
case. Page 905