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Jishiashvili v. Attorney General of the United States

April 1, 2005

KOTE JISHIASHVILI, PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review of an Order of the Immigration and Naturalization Service Board of Immigration Appeals (BIA No. A79-314-091)

The opinion of the court was delivered by: Rendell, Circuit Judge

PRECEDENTIAL

Argued November 29, 2004

Before: RENDELL, ALDISERT, and MAGILL *fn1, Circuit Judges.

OPINION OF THE COURT

Kote Jishiashvili, a native and citizen of Georgia, was charged with removability for being present in the United States without admission or parole. Jishiashvili has conceded removability and applied for relief in the form of asylum, withholding of removal, and relief under the Convention Against Torture, claiming that he has been persecuted and has a reasonable fear of future persecution based on his ethnicity.

At his asylum hearing, Jishiashvili presented a significant amount of evidence supporting internally consistent testimony that was also generally consistent with his asylum application. The Immigration Judge ("IJ") found that his testimony was detailed and his demeanor gave no indication of any fabrication. However, the IJ found the testimony to be implausible in certain respects and denied all relief based on an adverse credibility determination. Jishiashvili appealed to the Board of Immigration Appeals, which summarily affirmed the IJ's decision under its streamlining regulations. This petition for review followed.

I. Factual Background

Jishiashvili claims he has been persecuted and he has a reasonable fear of future persecution for his mixed ethnicity, his mother being Abkhazian and his father being Georgian. He was the only witness at his April 25, 2001 asylum hearing, and he testified to the following facts. Jishiashvili's history of persecution began in November 1993, when he was conscripted into two years of service in the Georgian military. In August 1992, the people of Abkhazia, a region in northwest Georgia, attempted to declare their independence from Georgia. Fueled by a difference in ethnic background and language, the hostility in the Abkhazia region developed into war. Although the war had largely subsided by September 1993, there were still uprisings in the region when Jishiashvili was called, on two occasions, to serve in the Georgian army. Because of his Abkhazian heritage, Jishiashvili was opposed to fighting in the region, and when he refused to serve when he was called, he was punished. His punishment consisted of being put in solitary confinement in a small, cold, underground cell for four to five days, with no room to sit or lie down and very little to drink or eat. During this time he was also kicked and beaten with batons by officers who would yell at him, insult his intelligence, and degrade him for his Abkhazian ethnicity. When he was not detained, Jishiashvili worked in a kitchen and patrolled the Georgian-Abkhazian border once or twice. Jishiashvili's asylum application, filed February 2001, did not mention these detentions or beatings. Jishiashvili also testified that he discussed his views on the war with other Georgian soldiers of Abkhazian ethnicity, but was not aware of any more than one other soldier who was detained during the same time that he was.

After he was discharged from the military in November 1995, Jishiashvili returned to his home city of Rust'avi and started a bodybuilding business, where he was an instructor and had forty to forty-five trainees. He operated a fitness club that was located on the second floor of a building that also housed a library on the first floor and businesses on the third and fourth floors.

In February 1996, Georgian federal service agents came to Jishiashvili's club during their investigation of an August 29, 1995 assassination attempt on then Georgian President Eduard Shevardnadze. The agents showed Jishiashvili pictures of two men who they believed were involved in the assassination attempt, and Jishiashvili recognized the men as patrons of his club. In his testimony, Jishiashvili gave the names of these men as Gia Abas Jishiashvili and David Luca Jishiashvili, but claimed to know nothing more about them. The federal agents searched the club and told Jishiashvili that they would like to speak to the men pictured in the photographs. When Jishiashvili told them he had nothing to do with the men, the agents believed he was lying to them and brought up his disobedience during his military career as evidence of his own anti-government views and political unreliability.

Jishiashvili testified that after this encounter he began receiving two to three threatening telephone calls per week, each degrading him and insulting his ethnicity. On February 9, 1998, a second assassination attempt was made on the president, and on April 15, 1998, the same federal agents paid an early morning visit to Jishiashvili at his home. *fn2 He testified that the agents took him in their car to a federal facility in Tbilisi, the Georgian capital. During the thirty-minute drive, Jishiashvili was seated in the backseat, with an agent on either side of him, enduring insults and degradation regarding his ethnicity. When they arrived at the facility, Jishiashvili was taken to a small room and interrogated by a Major Giakaji, who showed him the same photographs the agents had shown him previously and asked Jishiashvili to identify the same two men. After Jishiashvili identified the men and again stated that he knew them only as patrons of his club, he testified that he was taken from the room, pushed down a flight of stairs, beaten and insulted by agents, and then returned to the room where he was again asked about the two men. He was led to a one-way mirror, shown the two men in a lineup, and was again asked to identify them. The agents asked Jishiashvili to sign a statement implicating the men in the assassination attempts. When he refused, the agents took him from the room, beat him again, and then released him.

Thereafter, Jishiashvili continued to receive threatening phone calls, in which the callers insisted that he sign a statement implicating the men. Around this time he also noticed that people were lurking around his home and club, apparently monitoring his movements. On March 7, 1999, he was beaten and insulted by three men as he was returning from his club in the evening. He was hospitalized for two weeks for the injuries he sustained; on this point, his testimony was corroborated by a hospital record. He testified that when he reported the incident to the police, they took no action, explaining that they did not have the ability to guard every Abkhazian in Georgia.

Three months later, on June 6, 1999, the building where Jishiashvili's club was located was burned. The damage was largely concentrated in his club, with the other floors sustaining less damage. He testified that the firefighters found traces of gasoline and a large canister and concluded that the fire was the result of arson, but when Jishiashvili reported it to the police, they did not take any action.

Six months later, on the evening of December 15, 1999, Jishiashvili was beaten again by a group of men as he was returning home from the grocery store. He testified that the beating lasted approximately five minutes and most likely ended because his assailants feared being identified by witnesses. Before they left, the assailants threatened to kill Jishiashvili the next time they saw him.

On December 31, 1999, fearing for his life, Jishiashvili went to live with a cousin in Moscow, and on January 27, 2000, he flew from Russia to Mexico, on a Mexican visa. From Mexico, he walked to Nogales, Arizona and subsequently arrived in Philadelphia on February 25, 2000.

II. Procedural History: The IJ's Opinion and the BIA's Affirmance

Jishiashvili submitted a significant amount of evidence in support of his testimony, including a military record, a report of the fire in his gym, a birth certificate, a passport, medical records, written statements by his sister, father, and mother, a letter from his mother, and background evidence on the conditions ...


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