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Gabuniya v. Attorney General of United States

September 19, 2006


On Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A95-462-488) Immigration Judge: Donald V. Ferlise.

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


Argued June 8, 2006

Before: AMBRO, FUENTES, and NYGAARD, Circuit Judges.


Zaza Gabuniya, a native and citizen of the country of Georgia, entered the United States in 2001, and subsequently applied for asylum, withholding of removal, and protection under the Convention Against Torture. In support of his application, Gabuniya alleged that as a result of his support for democratic reforms in Georgia he was threatened, arrested, and beaten on numerous occasions, and that his wife was killed by government officials. The Immigration Judge ("IJ") ruled that: 1) Gabuniya was not credible; 2) even if credible, his allegations did not demonstrate past persecution or torture; 3) and, in any event, conditions in Georgia had changed since Gabuniya's departure such that he was not likely to face persecution or torture upon his return.

We find that substantial evidence does not support the IJ's finding that Gabuniya lacked credibility. We also find that substantial evidence does not support the IJ's finding that, even if credible, Gabuniya's allegations did not demonstrate evidence of past persecution. In addition, because the BIA did not rule on the IJ's conclusion that country conditions in Georgia have changed, we grant the petition for review and remand the case to the BIA.

I. Factual and Procedural Background

This immigration appeal concerns the oppressive tactics of Georgian police officials under the Shevardnadze regime, which governed Georgia after its independence from the Soviet Union and subsequent civil war. Georgia became an independent state on April 9, 1991 and, shortly thereafter, Zviad Gamsakhurdia was elected its first president. Petitioner Zaza Gabuniya ("Gabuniya") supported Gamsakhurdia, who began to carry out democratic reforms immediately after taking office. However, in December 1991, Gamsakhurdia was overthrown in a bloody coup d'etat, and the country entered into a civil war. In 1992, Eduard Shevardnadze, a Georgian who had been involved in Soviet politics, joined the leaders of the coup and was soon appointed the interim chairman of the Georgian state council. When the civil war ended in 1995, Shevardnadze was elected president of Georgia.

Gabuniya did not participate in the hostilities during the civil war, but he provided food and water to supporters of Gamsakhurdia when they were in his village. In 1994, Gabuniya and his wife joined a local group formed in opposition to the Shevardnadze regime. The group, which had no formal name, was formed by Dato Datiashvili, a supporter of Gamsakhurdia who had fought in the civil war, and eventually grew to about 200 members. The group met in Datiashvili's house, where members would plan demonstrations and the distribution of leaflets. Gabuniya participated in two or three demonstrations before August of 1995.

Civil unrest continued throughout Shevardnadze's time as president, and opponents of the Shevardnadze regime were specifically targeted by the government. On August 29, 1995, there was an assassination attempt on Shevardnadze's life, followed by government reprisals. Datiashvili was arrested and never seen or heard from again. Datiashvili's anti-Shevardnadze group ceased activities from August 1995 to January 1996 out of fear of persecution. In January 1996, the group resumed its activities, this time with Murtaz Dzavakhia as its new leader. Gabuniya and his wife again became active members. Though the group opposed the assassination attempt and ended their support for followers of Gamsakhurdia, it continued to support democratic reforms and to oppose the Shevardnadze regime. The group engaged in peaceful protests and distributed leaflets advocating that the Georgian people more actively defend their democratic rights.

According to Gabuniya, a few months after the group resumed activities Georgian police descended upon a peaceful demonstration with rubber clubs and tear gas. Gabuniya was struck on the shoulder, forced into a police bus, and taken to the police station. At the station, he was interrogated and told that he must cease holding "anti-governmental meetings of this kind" or else face severe consequences. Gabuniya nonetheless continued to engage in activities with the group after his arrest, distributing leaflets and approaching people to encourage dialogue about democratic reform.

One year later, Gabuniya and his wife took part in a large demonstration that the police violently dispersed using rubber clubs and fire hoses.*fn1 Gabuniya and his wife were detained and taken to the police station, where Gabuniya was brought to a small room and beaten by two policemen. Three hours later, he was interrogated about his activities with the group and the group's objectives and membership. Gabuniya's inability to provide more than a few names angered the officer interrogating him, and the officer told him that he would be put on a list of politically unreliable persons and enemies of Georgia. After two hours, he was beaten again. The next day Gabuniya was brought before the officer who had previously interrogated him and who now told him that, although he would be released, he would be in "big trouble" if he did not stop his activities with the group. Gabuniya was released and found his wife, who had been interrogated but not beaten. The next month, Gabuniya and his wife began receiving threatening phone calls. The callers used obscene language and demanded that Gabuniya and his wife stop their activities or they would be sorry.

On February 9, 1998, about nine months after Gabuniya's second arrest, there was a second assassination attempt on Shevardnadze. Six days later, two State Security Services ("SSS") agents came to Gabuniya's home and took Gabuniya to an SSS headquarters in Kutaisi. There, a man who identified himself as Koba Darsavelidze questioned Gabuniya and accused him of having links with those who planned the assassination attempt. Darsavelidze waived documents in front of Gabuniya that he claimed provided proof of Dzavakhia's involvement in the assassination attempt. Darsavelidze demanded Gabuniya confess and sign a statement that Gabuniya was not permitted to read. Gabuniya refused and insisted he had done nothing illegal. He was taken into a separate room and beaten by two men. He was again asked to sign the statement and again refused. The SSS agents told Gabuniya that sooner or later he would be forced to sign a statement and that, if he did not do so voluntarily, he would be implicated in ...

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