Tengiz Sevoian v. John Ashcroft, Attorney General of the United States

PRECEDENTIAL
Filed May 8, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2369
TENGIZ SEVOIAN,
Petitioner
v.
JOHN ASHCROFT,* ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
Argued: April 5, 2001
Before: SCIRICA, AMBRO, and GIBSON,**
Circuit Judges.
(Filed May 8, 2002)
Davis Polk & Wardwell
James I. Rim (Argued)
450 Lexington Avenue
New York, N.Y. 10017
Attorney for Petitioner
_________________________________________________________________
* Substituted for Janet Reno pursuant to Fed. R. App. P. 43(c)(2).
** The Honorable John R. Gibson, United States Court of Appeals for the
Eighth Circuit, sitting by designation.
David W. Ogden
Assistant Attorney General
Civil Division
Emily Anne Radford
Assistant Director
Papu Sandhu (Argued)
Senior Litigation Counsel
Terri J. Scadron
John M. McAdams, Jr.
Office of Immigration Litigation
Civil Division, Department of Justice

-- 1 of 16 --

P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
GIBSON, Circuit Judge:
Tengiz Sevoian, a citizen of the Republic of Georgia,
petitions for review of the refusal of the United States Board
of Immigration Appeals to reopen his removal proceeding.
Sevoian originally sought asylum and withholding of
deportation on the grounds that he would face religious and
ethnic persecution if returned to Georgia. After a hearing,
the Immigration Judge and then the Board of Immigration
Appeals denied those claims. Sevoian then moved to reopen
his case in order to raise a new claim: that he is entitled to
withholding of removal because his deportation would
violate the United Nations Convention Against Torture as
adopted by the United States. The Board denied Sevoian’s
motion to reopen, concluding that he had failed to establish
a prima facie case for relief under the Convention Against
Torture and its implementing regulations. Sevoian’s petition
for judicial review of that decision raises a threshold
question concerning the proper standard of review for a
denial, on prima facie case grounds, of a motion to reopen
immigration proceedings under the Convention. We
conclude that we must review the Board’s ultimate decision
to determine whether it was arbitrary, capricious, or an
2
abuse of discretion, and any findings of fact to determine
whether they were supported by substantial evidence.
Applying these standards, we deny Sevoian’s petition.
Sevoian is a member of the Kurdish ethnic minority in
Georgia and follows the Yezidi religion, a small Kurdish sect
centered in Iraq and the Black Sea countries. See A New
Dictionary of Religions 565-66 (2d ed. 1995). In 1994 and
1995, Sevoian received draft notices from the Georgian
Army ordering him to report for military service. He later
testified to the Immigration Judge that he feared reporting
for military service because Kurdish soldiers were often
beaten by Georgian soldiers and forced to participate in
atrocities in Georgia’s ongoing ethnic civil war in the
Abkhazia region. Sevoian stated that in 1995 he fled his
home in Tbilisi to avoid serving in the army, hiding himself
at his uncle’s house in a small rural village. The Georgian
authorities opened a criminal proceeding against Sevoian
for evasion of military service. Sevoian remained in partial
seclusion in his uncle’s village until 1997, when Sevoian
decided that military patrols were drawing too near to his
hiding place. He then fled Georgia to avoid conscription.
Sevoian’s uncle bribed a Georgian official to obtain a
passport, and bribed an official at the airport to get Sevoian
past a military checkpoint.
Sevoian entered the United States in late September,

-- 2 of 16 --

1997, with a nonimmigrant visa that permitted him to stay
until October 31, 1997. Intending to settle in Canada, he
traveled to that country and applied for refugee status, but
his claims were denied. The Canadian government deported
Sevoian to the United States on June 11, 1998. The
Immigration and Naturalization Service then promptly
commenced its own removal proceeding against Sevoian for
overstaying his visa. See 8 U.S.C. S 1227(a)(1)(B) (Supp. IV
1998).
Sevoian conceded that his visa was expired, making him
"removable" under S 1227(a)(1)(B). He applied for asylum in
the United States on the ground that he faced religious and
ethnic persecution in Georgia as a Kurd and a Yezid, and
brought a second claim for mandatory withholding of
removal on the same ground. Sevoian claimed to have
experienced incidents of abuse and discrimination in
3
Georgia based on his ethnic and religious background, as
part of an increase in nationalist sentiment among ethnic
Georgians after Georgia’s independence from the former
Soviet Union. He claimed that these incidents of
harassment, together with the likelihood that he would be
physically abused by Georgian police if he were arrested for
evading the draft, added up to a well-founded fear of future
persecution if he returned to Georgia. Sevoian testified at
his asylum hearing and entered a number of exhibits to
throw light on his claims, including the State Department
Country Report on human rights conditions in Georgia and
similar materials prepared by non-governmental human
rights organizations.
The Immigration Judge denied Sevoian’s claims for relief.
She held that Sevoian had failed to meet his required
burden of proof to show either past persecution or a well-
founded fear of future persecution. As a threshold matter,
the Judge expressed some doubts about Sevoian’s
credibility when testifying. She declined to enter an adverse
credibility finding, but noted several gaps or inconsistencies
in his testimony, and suggested that she did not find
Sevoian "completely credible." Next, the Judge reasoned
that the descriptions of human rights problems in Georgia
found in the State Department report did not support
Sevoian’s claims of persecution. Rather, they showed that
nationalist sentiment in Georgia had declined significantly
since the early 1990s and was no longer a part of
government policy. She further reasoned that the possibility
that Sevoian would be punished for illegally evading the
draft if he returned to Georgia did not, without more,
support his claims of persecution.
The Board of Immigration Appeals affirmed, holding that
Sevoian had failed to meet his evidentiary burden for
establishing a well-founded fear of persecution. The Board
noted that persecution for failure to serve in the military is
a difficult claim to establish; it may succeed in rare cases
when punishments for the crime are disproportionately

-- 3 of 16 --

severe, or when conscripts are required to engage in
inhuman acts or atrocities as a necessary part of military
service.
4
Sevoian then filed a motion requesting the Board to
reopen his case to consider whether he was entitled to
withholding of removal on a basis he had not asserted
during his removal hearing: that deporting him to Georgia
would violate the Convention Against Torture. Sevoian’s
motion to reopen asserted that he faced imprisonment in
Georgia due to his failure to serve in the military and that
Georgian police commonly used torture against suspects
and prisoners. Therefore, Sevoian argued, if he returned to
Georgia he was likely to be tortured in violation of the
Convention.
The Board denied the motion to reopen, holding that
Sevoian had failed to make out a prima facie case for relief,
because insufficient evidence supported his claim that he
would face torture in Georgia.1 It concluded that the State
Department report, which formed part of the record below,
indicated that official torture of prisoners was used "for the
most part" to extract confessions. Therefore, the Board
reasoned, torture would not be used in a case involving
Sevoian, who had simply avoided conscription. Hence,
Sevoian had not met his burden to establish a prima facie
case for relief under the Convention.
Sevoian petitioned this court for review of the Board’s
denial of reopening. See Khourassany v. INS, 208 F.3d
1096, 1100 (9th Cir. 2000) (holding that the Board’s denial
of a motion to reopen is reviewable by the federal courts of
appeals).
I.
A.
The Supreme Court has identified three principal
grounds on which the Immigration Judge or the Board may
deny a motion to reopen immigration proceedings. First, it
may hold that the movant has failed to establish a prima
facie case for the relief sought -- the ground at issue here.
_________________________________________________________________
1. The Board did not address whether Sevoian had met the procedural
requirement of presenting new, material evidence to support his motion
for reopening, as required by 8 C.F.R. S 3.2(c).
5
Second, it may hold that the movant has failed to introduce
previously unavailable, material evidence that justifies
reopening, as required by regulation. See 8 C.F.R. S 3.2(c).
Third, in "cases in which the ultimate grant of relief [being
sought] is discretionary (asylum, suspension of deportation,

-- 4 of 16 --

and adjustment of status, but not withholding of
deportation)," the Board can "leap ahead . . . over the two
threshold concerns (prima facie case and new
evidence/reasonable explanation) and simply determine
that even if they were met, the movant would not be
entitled to the discretionary grant of relief." INS v. Abudu,
485 U.S. 94, 105 (1988).
The preliminary question before this court is what
standard of review applies to a denial of reopening on the
first of the three grounds just listed -- failure to make a
prima facie case for relief. The Supreme Court has held that
denials on the second and third grounds above must be
reviewed for abuse of discretion. Id. But it has avoided
deciding what standard courts should apply to denials
based on failure to make a prima facie case. See INS v.
Doherty, 502 U.S. 314, 323 (1992); Abudu, 485 U.S. at 100-
04 & nn. 6-9.2
Several circuits have applied abuse of discretion review to
denials of reopening for failure to establish a prima facie
case. See Mansour v. INS, 230 F.3d 902, 906-07 (7th Cir.
2000); M.A. v. INS, 899 F.2d 304 (4th Cir. 1990) (en banc);
Bahramnia v. INS, 782 F.2d 1243 (5th Cir. 1986). Two other
circuits have recently reviewed such decisions for both
substantial evidence and an abuse of discretion, in cases
involving the prima facie case requirement for reopening
under the Convention Against Torture. In Najjar v. Ashcroft,
257 F.3d 1262 (11th Cir. 2001), the Eleventh Circuit held
that the Board of Immigration Appeals’ denial on prima
facie case grounds of a motion for reopening under the
_________________________________________________________________
2. The Court’s opinion in Abudu went to some length to avoid this issue.
Though both the questions presented and the opinion of the court of
appeals below stated that the sole issue in the case was whether the
petitioner had made out a prima facie case, the Court in Abudu
concluded that the issue was not before it. See 485 U.S. at 100-04 & nn.
6-9.
6
Convention Against Torture was "supported by substantial
evidence and well within the broad discretion of the
[Board]." Id. at 1304. So also in Kamalthas v. INS, 251 F.3d
1279 (9th Cir. 2001), the Ninth Circuit reviewed for abuse
of discretion the Board’s decision to deny reopening for
failure to make out a prima facie case, while reviewing its
factual findings for substantial evidence. See id. at 1281.
This court has not yet decided the issue. Etugh v. INS,
921 F.3d 36, 38 (3d Cir. 1990).3 We are persuaded, as we
explain below, that the Board’s findings of fact should be
reviewed for substantial evidence, while its ultimate
decision to reject Sevoian’s motion to reopen should be
reviewed for an abuse of discretion.
B.

-- 5 of 16 --

In some cases the Board or Immigration Judge’s decision
whether a given motion to reopen raises a prima facie case
may turn on a discrete issue of fact. Recently, in reviewing
the Board’s determination on the merits that an alien was
not "firmly resettled" for purposes of the asylum laws, this
court held that factual findings such as "firm resettlement"
are reviewed using the deferential version of the substantial
evidence standard set out in INS v. Elias-Zacarias, 502 U.S.
478 (1992). See Abdille v. Ashcroft, 242 F.3d 477, 483-84
(3d Cir. 2001). Under this standard, an alien seeking
judicial reversal of findings of fact by an immigration
agency must show that the evidence was "so compelling
that no reasonable factfinder could fail to find" in his favor.
Elias-Zacarias, 502 U.S. at 483-84. Abdille points to using
the same standard to review agency factfinding in other
immigration proceedings, such as the Board’s consideration
of Sevoian’s motion to reopen.
Congress has also spoken on this issue. The Illegal
Immigration Reform and Immigrant Responsibility Act of
_________________________________________________________________
3. However, in Katsis v. INS, 997 F.2d 1067, 1071 n.3 (3d Cir. 1993),
this court stated, in conceded dictum, that it would apply abuse of
discretion review to an agency decision to deny, for failure to make a
prima facie case, a motion to reopen a removal proceeding in which an
alien sought a discretionary waiver of deportation.
7
1996 (which is often referred to as "IIRIRA," but we "believe
clarity is served by referring to it . . . as the Reform and
Responsibility Act," Pinho v. INS, 249 F.3d 183, 186 (3d Cir.
2001)) requires federal courts in proceedings commenced
after April 1, 1997, to review findings of fact by an
immigration agency in a final order of removal to determine
whether "any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. S 1252(b)(4)(B) (2000).
The Reform and Responsibility Act codifies the language the
Supreme Court used in Elias-Zacarias to describe the
substantial evidence standard in immigration cases. See
502 U.S. at 483-84.
The Board’s denial of Sevoian’s motion to reopen is a
final order of removal for purposes of S 1252(b)(4)(B) of the
Reform and Responsibility Act. See Khourassany , 208 F.3d
at 1100 (accepting INS’s contention that the Board’s denial
of a motion to reopen asserting a claim under the
Convention is a final order of removal). Thus, there is also
a strong statutory ground for applying substantial evidence
review to findings of fact that are the basis for the Board’s
denial of Sevoian’s motion to reopen.
Review of the agency’s ultimate decision to grant or deny
reopening involves separate considerations. Sevoian argues
that we should apply de novo review to the Board’s ultimate
decision, while the government argues that abuse of
discretion should be the standard.4 We observe at the
_________________________________________________________________

-- 6 of 16 --

4. Sevoian and the government recapitulate arguments that were
presented, but not resolved, in this court’s earlier decision of Etugh v.
INS, 921 F.3d 36 (3d Cir. 1990). Both parties’ arguments, however, have
been eroded by statutory and case law developments. Like Etugh,
Sevoian suggests that the Ninth Circuit case of Ghadessi v. INS, 797
F.2d 804 (9th Cir. 1986), provides precedential support for exercising de
novo review here. However, in Ghadessi there were three divergent
opinions from the judges who heard the case. Whatever Ghadessi stands
for, it has been superseded by the Ninth Circuit’s recent decision in
Kamalthas v. INS, which applied the abuse of discretion standard to the
Board’s ultimate decision in a prima facie case determination. See 251
F.3d at 1281.
The government, in turn, emphasizes the Fourth Circuit’s decision in
M.A. v. INS, 899 F.2d 304 (4th Cir. 1990) (en banc), in arguing for abuse
8
outset that motions to reopen immigration proceedings are
"traditionally disfavored . . . for the same reason we
disfavor ‘petitions for rehearing and motions for a new
trial,’ " namely, the need for finality in litigation. Xu Yong Lu
v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001) (quoting
Doherty, 502 U.S. at 323). There is a "strong public interest
in bringing litigation to a close as promptly as is consistent
with" a fair opportunity to present claims. Abudu, 485 U.S.
at 107. This is particularly true when dealing with motions
to reopen removal proceedings, since "as a general matter,
every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States." Xu, 259
F.3d at 131 (quoting Doherty, 502 U.S. at 323). This
concern for finality suggests that we should review
deferentially the Board’s decision not to reopen Sevoian’s
case.
Sevoian offers a statutory argument suggesting that his
motion to reopen should receive heightened review. He
points out that the claim for relief underlying his motion to
reopen is mandatory, not subject to the Attorney General’s
discretion to grant. Sevoian’s claim arises under the
Convention Against Torture, and Congress, in adopting the
Convention, stated: "It shall be the policy of the United
States not to . . . effect the involuntary return of any person
to a country in which there are substantial grounds for
believing the person would be in danger of . . . torture."
Foreign Affairs Reform and Restructuring Act of 1998, Pub.
L. No. 105-277, S 2242(a). See also 8 C.F.R. S 208.16(c)(4)
(stating that if the INS reaches the merits of a claim under
the Convention and decides the alien meets the
requirements of the relevant statutes and regulations, the
alien is "entitled" to withholding or deferral of removal).
_________________________________________________________________
of discretion review. However, one important reason offered in M.A. for
adopting abuse of discretion review is no longer valid. The en banc
majority in M.A. emphasized that "the immigration statutes do not
require or even contemplate reopening procedures"; rather, reopening
was created by the INS in the exercise of its discretion to administer the

-- 7 of 16 --

statutes. 899 F.2d at 307. The 1996 enactment of the current 8 U.S.C.
S 1229a(c)(6) changed this aspect of the legal landscape by creating a
statutory provision for motions to reopen.
9
Sevoian argues that this mandatory language implies that
the Board has less discretion in adjudicating motions to
reopen that assert claims under the Convention than it
does in handling motions to reopen that raise claims for
relief that the Attorney General has discretion to grant or
deny (such as asylum on the ground that the alien has
shown a "well-founded fear of persecution" in his country of
origin, 8 U.S.C. SS 1101(a)(42)(A), 1158(b)(1) (2000)).
We are not so persuaded. Motions to reopen implicate
important finality concerns even when they seek to raise an
underlying claim for relief, such as relief under the
Convention Against Torture, that is not committed to the
Attorney General’s discretion. The Supreme Court held so
in Doherty, which dealt with denials of reopening on the
ground of failure to produce new and material evidence. See
Doherty, 502 U.S. at 323 ("[T]he abuse-of-discretion
standard applies to motions to reopen ‘regardless of the
underlying basis of the alien’s request [for relief].’ ") (quoting
Abudu, 485 U.S. at 99 n.3). As we have said, the Supreme
Court likens immigration motions to reopen to petitions for
rehearing and motions for a new trial, describing all as
proceedings that are "disfavored" for reasons of finality. See
Doherty, 502 U.S. at 323.
Another issue deserves consideration. In 1996, Congress
amended the removal statute, which previously made no
provision for reopening, to allow for the filing of one motion
to reopen, including a deadline and other provisions that
now govern such motions. See 8 U.S.C. S 1229a(c)(6)
(2000). Several previous courts, including the Supreme
Court, have used the absence of any statutory provision for
reopening as a premise for arguing that reopening decisions
should be reviewed for abuse of discretion. See Doherty,
502 U.S. at 322 ("[T]here is no statutory provision for
reopening of a deportation proceeding, and the authority for
such motions derives solely from regulations promulgated
by the Attorney General"); M.A., 899 F.2d at 307; Achacoso-
Sanchez v. INS, 779 F.2d 1260, 1264 (7th Cir. 1985) (using
same reasoning). That premise is no longer true. We must
consider the effect of this statutory change, which could be
viewed as raising an argument against deferential review of
Sevoian’s motion, although the parties do not discuss the
point.
10
We are not persuaded that this change alters the
conclusion that abuse of discretion review is proper. While
the revised statute now allows a motion to reopen, it does
not change the substantive standards that the INS has
promulgated to govern the granting of motions to reopen,

-- 8 of 16 --

and those standards are restrictive. 8 C.F.R. S 3.2(a)
provides: "The Board has discretion to deny a motion to
reopen even if the party moving has made out a prima facie
case for relief." The section describing motions to reopen, 8
C.F.R. S 3.2, is "framed negatively; it directs the Board not
to reopen unless certain showings are made." Abudu, 485
U.S. at 105 (quoting INS v. Jong Ha Wang, 450 U.S. 139,
144 n.5 (1981) (per curiam)). See 8 C.F.R.S 3.2(c). No
statute or regulation creates any circumstance in which a
motion to reopen must be granted. This implies that
motions to reopen remain "discretionary" motions, INS v.
Phinpathya, 464 U.S. 183, 188 n.6 (1984), which the Board
or Immigration Judge has "broad discretion" to grant or
deny, INS v. Rios-Pineda, 471 U.S. 444, 449 (1985).
As a final consideration, analyzing Sevoian’s case in light
of background principles of administrative law also
suggests that it is appropriate to use the deferential abuse
of discretion standard to review the immigration agency’s
decision whether his motion to reopen raised a prima facie
case.
The requirement of a prima facie case for reopening
appears in several INS regulations,5 but the term "prima
facie case" does not appear in the immigration statutes. The
INS has given meaning to the requirement through
decisions of the Board of Immigration Appeals. The Board’s
decisions reveal that in the immigration context,"prima
facie" scrutiny of a motion to reopen means an evaluation
of the evidence that accompanies the motion as well as
_________________________________________________________________
5. For example, a deportable alien who files prior to June 21, 1999,
receives a "free" motion under the Convention Against Torture to reopen
past removal proceedings, but the alien must establish a "prima facie
case" for withholding or deferral of removal or the motion cannot
succeed. 8 C.F.R. S 208.18(b)(2)(ii). Other regulations provide that the
Board has authority to deny motions to reopen even if the movant
establishes a "prima facie case." 8 C.F.R.S 3.2(a). The Immigration Judge
may do the same. See 8 C.F.R. S 3.23(b)(3).
11
relevant evidence that may exist in the record of the prior
hearing, in light of the applicable statutory requirements for
relief. The question is whether the "evidence reveals a
reasonable likelihood that the statutory requirements [for
relief] have been satisfied." In re S-V-, Int. Dec. 3430, 2000
WL 562836 (BIA May 9, 2000) (en banc). The Board has
stated that "no hard and fast rule can be laid down as to
what constitutes a sufficient showing of a prima facie case
for reopening. Much depends on the nature of the case and
the force of the evidence already appearing in the record
sought to be reopened." Matter of Sipus, 14 I. & N. Dec.
229, 1972 WL 27443 (BIA Nov. 10, 1972). The decision
involves "both a factual and a legal determination." Matter
of Ige, 20 I. & N. Dec. 880, 885, 1994 WL 520996 (BIA
1994).

-- 9 of 16 --

Neither party to this case questions the validity of the
gloss the Board has given to "prima facie case" in its
administrative decisions. Nor do we.
The reopening decision is made, as in this case, without
the benefit of an evidentiary hearing on the new issues
raised in the motion to reopen. Indeed, the very purpose of
a motion to reopen is to win a hearing. The determination
to be made is whether the facts articulated are likely to
meet the relevant statutory or regulatory standards. There
are sound reasons for applying the abuse of discretion level
of review to an informal decision in this context. We are
poorly positioned to review mixed factual and legal
determinations by immigration agencies. Deference is
appropriate when reviewing decisions like the one here,
which turn on both the totality of the circumstances and
the applicable legal standards for relief. See Najjar, 257
F.3d at 1278 ("It is axiomatic that immigration courts are
better suited than a reviewing court to make factual
determinations regarding an alien’s status."); Mitev v. INS,
67 F.3d 1325, 1331 (7th Cir. 1995) (acknowledging the
"superior expertise of the agencies that administer our
immigration law"). The need for such deference is magnified
when, as here, there is not a trial-type evidentiary record
on the merits of the underlying claim to guide the court’s
review of an administrative decision. Therefore, in addition
to the concerns about finality discussed above, analogy
12
with practice in other informal administrative contexts
likewise suggests that it is appropriate to apply the abuse
of discretion level of judicial review to the Board’s ultimate
decision.
For the foregoing reasons, we hold that when the Board
or an Immigration Judge denies reopening on prima facie
case grounds, the ultimate decision should be reviewed for
an abuse of discretion, while findings of fact should be
reviewed for substantial evidence. Accord Kamalthas, 251
F.3d at 1281; see also Najjar, 257 F.3d at 1304 (applying
both substantial evidence and abuse of discretion
standards).
We see further support for this bifurcated approach to
review of the prima facie case decision on reopening in
Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 745 F.2d 677 (D.C. Cir.
1984) (Scalia, J.). The court there concluded that when the
Administrative Procedure Act (APA)’s "arbitrary, capricious,
or an abuse of discretion" standard of judicial review is
applied to a factual issue in an informal administrative
decision, it is functionally equivalent to the substantial
evidence standard. The court stated:
When the arbitrary or capricious standard is
performing that function of assuring factual support,
there is no substantive difference between what it
requires and what would be required by the

-- 10 of 16 --

substantial evidence test, since it is impossible to
conceive of a "nonarbitrary" factual judgment
supported only by evidence that is not substantial in
the APA sense.
Id. at 683-84.
Having determined our standard of review, we turn to the
Board’s ruling on Sevoian’s motion.
II.
A.
Under the abuse of discretion standard, the Board’s
decision must be reversed if it is "arbitrary, irrational, or
13
contrary to law." Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
1994) (quotation marks omitted).
An applicant for relief on the merits under the
Convention Against Torture bears the burden of
establishing "that it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal." 8 C.F.R. S 208.16(c)(2). The United States Senate
specified this standard, as well as many of the other
standards that govern relief under the Convention, in the
several "understandings" that it imposed on the United
States’ ratification of the Convention Against Torture. See
136 Cong. Rec. 36192, 36198 (1990); In re J-E-, 23 I. & N.
Dec. 291, 296, 2002 WL 481156 (BIA Mar. 22, 2002) (en
banc). The standard for relief "has no subjective
component, but instead requires the alien to establish, by
objective evidence" that he is entitled to relief. Id. at 302.
Logically, then, the prima facie case standard for a motion
to reopen under the Convention requires the applicant to
produce objective evidence showing a "reasonable
likelihood," S-V-, 2000 WL 562836 at *3, that he can
establish that he is more likely than not to be tortured.
Under that standard, and in light of our deferential scope
of review, we do not think the Board acted arbitrarily or
contrary to law when it decided that Sevoian had failed to
make a prima facie showing of probable torture.
Torture, under the regulations, is defined as acts done
"by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in
an official capacity," by means of which "severe pain and
suffering, whether physical or mental, is intentionally
inflicted" for purposes such as obtaining confessions,
punishment, intimidation or coercion. 8 C.F.R.
S 208.18(a)(1); see also 136 Cong. Rec. at 36198. It is
significant that even cruel and inhuman behavior by
government officials may not implicate the torture
regulations. "Torture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of
cruel, inhuman or degrading treatment or punishment that

-- 11 of 16 --

do not amount to torture." 8 C.F.R. S 208.18(a)(2). Decision-
makers evaluating claims under the Convention should pay
attention to "evidence of past torture inflicted upon the
14
applicant," 8 C.F.R. S 208.16(c)(3)(i), as well as considering
all other relevant evidence, 8 C.F.R. S 208.16(c)(3).
Sevoian argues that several pieces of evidence establish
his prima facie eligibility for relief under the Convention.
First is the State Department Report on human rights
conditions in Georgia. It states that prisoners in Georgia
are subjected to physical abuse "on a routine basis," but
"usually . . . to extract confessions." Further, Georgian
security forces have in the past tortured defendants in
"politically sensitive cases." The Board viewed the record as
showing that "for the most part torture is used[in Georgia]
to extract confessions from prisoners, which would not be
the case" with Sevoian.6 It concluded that insufficient
evidence supported Sevoian’s claim that he would face
torture in Georgia, and that therefore he had failed to set
forth a prima facie case. The Board’s reference to
"insufficient evidence" indicates that it weighed the
evidence and found it lacking, and thus made a factual
finding about Sevoian’s claim. Applying the substantial
evidence test enunciated above to this finding, we cannot
conclude that a reasonable factfinder would be compelled to
find to the contrary.
In further support of the government’s position, we note
that the report does not suggest whether much, or any, of
the "beat[ing] and abuse" that occurs in Georgian jails rises
to the extreme level that violates the Convention Against
Torture.
Next, Sevoian offers documents prepared by private
human rights groups describing conditions in Georgia.
These documents include a number of anecdotes reported
by political prisoners, describing inhumane government
practices that would, very likely, qualify as torture under
the Convention. These anecdotes, however, supply no basis
for concluding that Sevoian, simply for avoiding
conscription, would be subjected to the sort of political
torture employed on enemies of the regime.
_________________________________________________________________
6. The Board’s reasoning suggests a permissible inference that the
authorities would not need a confession from Sevoian because he would
be readily convicted for his refusal to serve in the military.
15
Other human-rights group documents presented by
Sevoian state that detainees in Georgia, "particularly
political opponents," are often "ill-treated or tortured"
during interrogation. Again, this evidence suggests that

-- 12 of 16 --

mistreatment is directed foremost at political prisoners.
Moreover, to the extent it supports Sevoian’s claim, we
think that the Board could reasonably give the non-
governmental sources of evidence offered by Sevoian less
weight than the State Department report -- which, as we
have said, is consistent with the Board’s ultimate decision.
Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir. 1995) (giving
strong evidentiary weight to State Department report,
describing it as "the most appropriate and perhaps the best
resource" on country conditions). Cf. Chang v. INS, 119
F.3d 1055, 1064 (3d Cir. 1997) (giving weight to private
human rights group’s report on country conditions in
China where such reports were "consistent with the State
Department report," but stating: "We do not suggest that
relief to an alien should be granted based solely on such
reports[,] particularly where they conflict with findings of
the Department of State.").7
Sevoian also testified personally about some incidents of
harassment and abuse that he experienced or heard of in
Georgia. Sevoian testified that in 1994, after participating
in a kick boxing tournament, he was attacked by a group
of young men, one of whom was armed with a metal rod,
and that the men beat him with the rod and bloodied him.
However, Sevoian presented no plausible evidence that this
attack was "inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity," as required by 8 C.F.R.
S 208.18(a)(1). Sevoian’s counsel tries to argue that the fact
that the police did not question Sevoian or his mother
about the assault after they reported it amounts to official
_________________________________________________________________
7. We need not decide whether to adopt the strict view of the en banc
Fourth Circuit in M.A., which stated that"[non-governmental]
organizations may have their own agendas and concerns, and their
condemnations are virtually omnipresent," and concluded that "[a]
standard of asylum eligibility based solely on the pronouncements of
private organizations . . . is problematic almost to the point of being non-
justiciable." 899 F.2d at 313.
16
"acquiescence" in the beating, but the regulations state
clearly that there is no "acquiescence" to torture unless the
relevant officials know about the torture before it occurs. 8
C.F.R. S 208.18(a)(7).
Sevoian also describes an incident in 1994 in which
police detained him for failure to carry identification, then
punched him in the face and head. While this reflects state
violence against Sevoian, it must be evaluated in light of
the standard promulgated by the INS, which defines torture
as "an extreme form of cruel and inhuman treatment [that]
does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to
torture." 8 C.F.R. S 208.18(a)(2). In view of that standard,
the Board could accept this evidence and deny reopening
without abuse of discretion.

-- 13 of 16 --

Finally, Sevoian offers second-hand testimony of official
abuse inflicted on a Kurdish friend of his serving in the
Georgian military (who, Sevoian testified, was beaten by his
fellow soldiers), and on a Kurdish neighbor who was beaten
by the police. The first incident is of questionable relevance
to Sevoian’s torture claim, which asserts that he will face
torture in the Georgian criminal justice system. The second
incident weakly supports the claim of Sevoian’s motion to
reopen, but it is not sufficient, in light of the other
evidence, to outweigh the deference that we give to the
Board’s resolution of these matters.
The record contains no other significant evidence that
favors reopening Sevoian’s Convention Against Torture
claim. The Board’s conclusion that Sevoian failed to
produce sufficient evidence of torture in Georgia was based
on substantial evidence. Its resolution of the merits of
Sevoian’s motion to reopen, in holding that Sevoian failed to
raise a prima facie case, was not "arbitrary, irrational or
contrary to law," Tipu, 20 F.3d at 582, and so was not an
abuse of discretion.
B.
In determining whether the Board abused its discretion,
we must also ask "whether the [B]oard followed proper
procedures and considered and appraised the material
17
evidence before it." Tipu, 20 F.3d at 583 (quoting Sotto v.
INS, 748 F.2d 832, 837 (3d Cir. 1984)). Sevoian argues that
the Board’s decision rejecting his motion to reopen dealt
with the record evidence in such a "minimalistic and non-
detailed manner," Mansour v. INS, 230 F.3d at 908, that it
constituted a procedural defect warranting reversal. We
reject Sevoian’s argument.
In Mansour, the Seventh Circuit vacated the Board’s
prima facie denial of an alien’s Convention Against Torture
claim and remanded for more careful consideration. The
court stated that the Board had improperly "allow[ed] a
negative credibility determination" in Mansour’s earlier
asylum proceeding to "wash over [his] torture claim"
instead of giving that claim independent consideration. Id.
at 907. The court held that the Board is required to
"consider the issues raised, and announce its decision in
terms sufficient to enable a reviewing court to perceive that
it has heard and thought and not merely reacted." Id. at
908 (internal quotation marks omitted).
Applying this requirement, the Seventh Circuit held that
the Board’s treatment of the details of Mansour’s torture
claim was too "minimalistic and non-detailed" to be
sustained. 230 F.3d at 908. It held the Board’s opinion
deficient in failing even to discuss the U.S. State
Department country report on Iraq, Mansour’s home
country, which detailed practices of abuse against the

-- 14 of 16 --

Assyrian Christian minority there. Secondly, the Board also
made a critical error in describing Mansour as a"Syrian
Christian," which would have indicated that he was of Arab
descent, when his whole torture claim was based on his
identity as an Assyrian, a member of a non-Arab ethnic
group subject to persecution in Iraq. Id. at 907-09. These
faults convinced the Seventh Circuit that the Board had not
"thoroughly explored" the basis of Mansour’s torture claim.
Id. at 909.
Here, the Board’s opinion adjudicating Sevoian’s motion
to reopen is brief, but it is more substantial than the one
held inadequate in Mansour. The Board analyzed Sevoian’s
torture claim as follows:
In [Sevoian’s] motion, he simply argues that he will be
jailed due to his refusal to serve in the military and
18
that torture is used against prisoners in Georgian jails.
We first note that the mere fact that the respondent
may be jailed for disobeying the law of his native
country is not a basis for relief under the Convention.
8 C.F.R. S 208.18(a)(3) [(stating that‘lawful sanctions’
do not normally constitute torture)]. Further, while
mistreatment may occur in Georgian prisons, it
appears from the record that for the most part torture
is used to extract confessions from prisoners (Exh. 11)
[(containing the State Department country report on
Georgia)], which would not be the case in the
respondent’s situation. . . . Insufficient evidence
supports the respondent’s claim that he will face
torture in Georgia.
This reasoning avoids the flaws deemed fatal in Mansour,
as it does not contain any material factual errors
concerning the record, and it specifically addresses the
State Department report on the petitioner’s country.
Sevoian argues, in effect, that the Board was required to
address explicitly each type of evidence that he presented in
order to justify its prima facie denial of his motion to
reopen. While the Board’s discussion of the issue could
have been more detailed, we hold it was sufficient. The
Board’s opinion recognized and addressed Sevoian’s key
contention under the Convention Against Torture-- that if
removed, Sevoian would end up in the Georgian criminal
justice system, and that suspects and criminals in Georgia
are tortured. The Board reasonably characterized the State
Department report, which states that prisoners in Georgia
are often subjected to physical abuse, but that such abuse
is "usually to extract confessions," while Georgian security
forces sometimes torture defendants in "politically sensitive
cases." The Board stated that it surveyed the record. The
State Department report apparently provided the chief basis
for the Board’s conclusions that Georgian police would not
need to seek a confession from Sevoian, and thus would
not torture him. While there is other evidence in the record

-- 15 of 16 --

that paints a darker picture than the qualified account in
the State Department report, we have concluded (in Part
II.A., supra) that the Board could reasonably credit the
State Department instead of the human rights groups or
19
Sevoian. Its citation and discussion show sufficiently that it
"comprehended and addressed [Sevoian]’s torture claim."
Mansour, 230 F.3d at 908. The Board "is not required to
write an exegesis on every contention," id. , but only to show
that it has reviewed the record and grasped the movant’s
claims. We conclude that requirement was met here.
III.
For the foregoing reasons, we deny Sevoian’s petition for
review of the decision of the Board of Immigration Appeals.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
20

-- 16 of 16 --