Besik Gambashidze v. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES Petition for Review of Orders…

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
_________________________________
NO. 03-2218
____________
BESIK GAMBASHIDZE;
ANNA BZVANELI;
ANNA GAMBASHIDZE;
NIKOLOZ GAMBASHIDZE;
ZURAB GAM BASHIDZE;
BEKA GAM BASHIDZE,
Petitioners
v.
JOHN ASHCROFT, ATTORNEY
GENERAL OF THE UNITED STATES
Petition for Review of Orders of the
Board of Immigration Appeals
(Board Nos. A78-198-931, A78-198-932,
A78-198-933, A78-198-934,
A78-198-935, A78-198-936)
_________________________________
Argued May 3, 2004
Before: SLOVITER, FUENTES and
BECKER, Circuit Judges
(Filed: August 26, 2004)
JON LANDAU (ARGUED)
ERICA S. GONZALEZ
Baumann, DeSeve & Landau
437 Chestnut Street
The Lafayette Building
Philadelphia, PA 19106
Attorneys for Petitioners
PETER KEISLER
Assistant Attorney General, Civil
Division
EMILY A. RADFORD
Assistant Director
LINDA S. WERNERY
ALLEN W. HAUSMAN
Senior Litigation Counsel
JOHN D. WILLIAMS
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
JONATHAN COHN (ARGUED)
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Attorneys for Respondent
________________________
OPINION OF THE COURT
________________________
BECKER, Circuit Judge.
Besik Gambashidze, a native of the
Republic of Georgia, petitions for review
of a decision of the Board of Immigration
Appeals (BIA) denying him withholding
of removal. The applications of his wife,
Anna, and their four children are

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dependent on his application. This case
requires us to address for the first time a
recently codified regulation, 8 C.F.R.
§ 208.16(b)(1)(i)(B), which controls how
the possibility of relocation within the
proposed country of removal affects the
claim of an alien who seeks withholding of
removal based on past persecution.
Gambashidze was politically active in
Georgia in the 1990s following its
independence from the Soviet Union in
1991, ultimately joining a group known as
the Round Table, which opposed Georgian
President Eduard Shevardnadze. For this
activity, Gambashidze was allegedly
persecuted by the police, both in Tbilisi
(the capital of Georgia) and in his
hometown of Rustavi, a city thirty-five
kilometers southeast of Tbilisi. The
persecution lasted from early 1996 to mid-
1997, at which time Gambashidze and his
family moved to another home in Tianeti,
a city fifty kilometers north of Tbilisi.
Details of his stay in Tianeti are scant, but
he did not encounter the police in his eight
months there.
In early 1998, Gambashidze came to
the United States on a tourist visa, and the
rest of his family followed over the next
eighteen months. Gambashidze applied
for various forms of relief to avoid being
removed to Georgia, but was unsuccessful
on all claims before the immigration judge
(IJ) and on appeal before the BIA. On this
petition for review he challenges only the
BIA’s disposition of his claim for
withholding of removal. The BIA
assumed, arguendo, that Gambashidze had
demonstrated past persecution, and was
therefore entitled to a presumption of a
likelihood of future persecution. See 8
C.F.R. § 208.16(b)(1)(i). The Board
nonetheless held him ineligible for
withholding of removal because he had
“not met his burden of proof in
demonstrating that he has a well founded
fear of persecution upon return to Georgia
because he and his family were able to
internally relocate and live unmolested for
several months prior to entering the United
States.”
The BIA invoke d 8 C .F.R .
§ 208.16(b)(1)(i)(B) to reach this result.
The regulation envisions a two-part
inquiry: whether relocation would be a
successful means of escaping persecution,
and whether relocation would be
reasonable. While there is ample evidence
that it would be reasonable for
Gambashidze to relocate to Tianeti, the
record discloses next to nothing about the
true viability of Tianeti as persecution-free
zone for Gambashidze. Since the burden
of proof in an internal-relocation rebuttal
is on the government, 8 C.F.R.
§ 208.16(b)(1)(ii), the slim record on this
critical point cannot support the BIA’s
decision. Because there is not substantial
evidence in the administrative record for
the BIA’s conclusion regarding internal
relocation, we will grant the petition for
review.
I. The Administrative Record and the
BIA’s Decision
The administrative record consists
principally of G amb ashidze’s live

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testimony before the IJ, very brief live
testimony by his wife, the State
Department’s 1999 Country Report on
Georgia (the “Country Report”), and the
affidavits and statements submitted by
Gambashidze in connection with his
application. Since neither the IJ nor the
BIA rested their decisions on information
in the Country Report, we will not discuss
it. As for Gambashidze’s testimony and
written submissions, the IJ found him not
credible, but the BIA did not rest its
decision on credibility grounds; therefore,
for ease of exposition we will present
Gambashidze’s testimony as truthful.
A. Gambashidze’s Testimony
As we have already noted,
Gambashidze was politically active as an
opponent of Georgian President Eduard
Shevardnadze. Gambashidze had been a
supporter of Georgia’s first post-Soviet
president, Zviad Gamsakhurdia, who was
removed after less than a year in office in
the coup d’état that resulted in
Shevardnadze’s control of Georgia.
Gambashidze remained loyal to pro-
Gamsakhurdia factions, and opposed
Shevardnadze; this political activity
consisted mainly of his membership and
participation in a group known as the
Round Table. He participated in Round
Table demonstrations and rallies and gave
the group financial assistance.
Gambashidze’s testimony and written
submissions do not suggest that he was
persecuted for his political activity from
1991 to 1995, but a series of encounters
with police based on his Round Table
activity began in 1996. In February 1996,
he participated as a speaker at a rally in
Tbilisi, representing his hometown of
Rustavi. A large number of police broke
up the demonstration, and Gambashidze
was taken to police headquarters. There,
he was beaten on his feet and stomach and
released after five hours. Then, in July of
1996, Gambashidze was summoned to
police headquarters in Rustavi, where he
was warned to cease participating in
demonstrations. He did not.
In September, four Rustavi policemen
came directly to his house at night and
took him away; he was beaten on his feet,
and again told to stop participating in
R o u n d T a b l e d e m o n s t r a t i o n s .
Gambashidze’s wife corroborated his
account of the police coming to the house,
and the foot injury that Gambashidze
sustained. In March of 1997, w hile on a
visit to Tbilisi, Gambashidze was
apprehended by a police patrol and
brought to police headquarters. He was
handcuffed to a pipe and beaten, and again
warned to stop participating in political
demonstrations. Two months later, in May
1997, police took him from his house in
Rustavi to the Rustavi office of the
Ministry of Internal Affairs, where a high-
ranking official tried to force him to
confess to participation in a recent attempt
to assassinate President Shevardnadze.
Gambashidze claimed he had no
involvement and would not confess; he
was severely beaten and the Internal
Affairs official threatened him and his
family.
At this point, in Gambashidze’s words,

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he “had reached the edge. . . . I started
making ready to get out of Georgia.” The
family moved to a summer house owned
by Gambashidze’s wife in Tianeti. While
Gambashidze lived there—from M ay 1997
until January 1998—he had no incidents
with the police. He was able to make at
least one trip to Tbilisi (to obtain a visa
from the American embassy) without
being stopped by the police. While none
of Gambashidze’s family had trouble with
the police in Tianeti, after Gambashidze
left for the United States in January 1998
police inquired of his mother as to his
whereabouts. It is not entirely clear
whether Gambashidze continued his
political activity while in Tianeti. He did
not specifically testify that he engaged in
political demonstrations while he was
living in Tianeti, but in response to a
general question at the beginning of his
testimony, “For how many years did you
engage in those political demonstrations?”
he answered, “I would say up to ’98.”
Gambashidze and his family came, two
at a time, to the United States during 1998
and 1999. He applied in late 1999 for
various forms of relief that would allow
him and his family to remain in the United
States.
B. The IJ’s Decision and the BIA’s
Affirmance
The IJ rejected all of Gambashidze’s
claims on various and multiple grounds,
most of which do not concern us here
since Gambashidze has petitioned for
review of only the denial of his claim for
withholding of removal. The IJ denied
him relief on that claim on two grounds:
first, that he had not supported his claim
with credible testimony, and second, that
even taking his testimony as true,
Gambashidze’s accounts of his life in
Georgia did not establish past persecution
or any probability of future persecution.
The BIA affirmed in a one-paragraph per
curiam opinion, in which it advanced a
different ground for denying the claim for
withholding of removal: that Gambashidze
could avoid any future persecution by
relocating within Georgia. Specifically,
the BIA stated:
[W]e find that the respondent failed
to meet his burden of proof in
demonstrating that he suffered past
persecution or has a well founded
fear of persecution upon return to
Georgia. Sp ecif ically, the
respondent has not met his burden
of proof in demonstrating that he
has a well founded fear of
persecution upon return to Georgia
because he and his family were able
to internally relocate and live
unmolested for several months
prior to entering the United States.
We have jurisdiction under 8 U.S.C.
§ 1252 over this timely petition for review
of this final determination of the BIA.
II. Discussion
A. Standard of Review
The BIA concluded that because
Gambashidze and his family “were able to
internally relocate and live unmolested for

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several months,” they could therefore
“avoid a future threat to . . . life or
freedom by relocating to another part of
the proposed country of removal,” 8
C.F.R. § 208.16(b)(1)(i)(B). We review
such a finding of fact under 8 U.S.C.
§ 1252(b)(4)(B), which provides that
“administrative findings of fact are
conclusive un les s any reasonable
adjudicator would be compelled to
conclude to the contrary.” As the en banc
Court explained in Dia v. Ashcroft, we
“have read this standard to require that the
agency support its findings with
substantial evidence, as articulated by the
Supreme Court in INS v. Elias-Zacarias,
502 U.S. 478, 481-84 [(1992)].” 353 F.3d
228, 247 (3d Cir. 2003) (en banc); see also
Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d
Cir. 2002) (“[The Illegal Immigration
Reform and Immigrant Responsibility Act]
codifies the language the Supreme Court
used in Elias-Zacarias to describe the
substantial evid ence standard in
immigration cases.”). We concluded in
Dia that
the question whether an agency
determination is supported by
substantial evidence is the same as
the question whether a reasonable
fact finder could make such a
determination based upon the
administrative record. If a
reasonable fact finder could make a
p a r t ic u l a r f i n d i n g o n t h e
administrative record, then the
finding is supported by substantial
evidence. Conversely, if no
reasonable fact finder could make
that finding on the administrative
record, the finding is not supported
by substantial evidence.
353 F.3d at 249.
B. Analysis of Gambashidze’s Claim
Gambashidze petitions for review of
the BIA’s denial of his claim for
withholding of removal. Under 8 U.S.C.
§ 1231(b)(3)(A), “the Attorney General
may not remove an alien to a country if the
Attorney General decides that the alien’s
life or freedom would be threatened in that
country because of the alien’s race,
religion, nationality, membership in a
particular social group, or political
opinion.” To qualify for withholding of
removal, an alien “must show a clear
probability that upon his return to [the
country of removal]” he would be
persecuted. Li Wu Lin v. INS, 238 F.3d
239, 244 (3d Cir. 2001) (citing Chang v.
INS, 119 F.3d 1055, 1066 (3d Cir. 1997)).
“Put differently, the standard is that he
must show that it is more likely than not
that he will face persecution if he is
deported.” Id. at 244 (citing INS v.
Cardoza-Fonseca, 480 U.S. 421, 430
(1987)). As is familiar, an alien who has
demonstrated past persecution is presumed
to face future persecution if removed. See
8 C.F.R. § 208.16(b)(1)(i). The same
regulation also codifies certain ways in
which the government may rebut this
presumption of future persecution. Here
we consider one such avenue, 8 C.F.R.
§ 208.16(b)(1)(i)(B), which contemplates
that it may be reasonable for an alien to
relocate within the country of removal to

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avoid future persecution.
The regulation provides that the
presumption of future persecution may be
rebutted upon a finding that “[t]he
applicant could avoid a future threat to his
or her life or freedom by relocating to
another part of the proposed country of
removal and, under all the circumstances,
it would be reasonable to expect the
applicant to do so.” Id. The IJ must make
such a finding by the preponderance of the
evidence, 8 C.F.R. § 208.16(b)(1)(i),
and—of some significance for the case
now before us—the burden of proof is on
t h e g o v e r n m e n t , 8 C . F . R .
§ 208.16(b)(1)(ii). In assessing the
reasonableness of internal relocation, the
regulation directs adjudicators to consider
“among other things, whether the applicant
would face other serious harm in the place
of suggested relocation; any ongoing civil
strife within the country; administrative,
economic, or judicial infrastructure;
geographical limitations; and social and
cultural constraints, such as age, gender,
health, and social and familial ties.” 8
C.F.R. § 208.16(b)(3). The regulation
envisions a totality of the circumstances
inquiry, noting that “[t]hese factors may or
may not be relevant, depending on all the
circumstances of the case, and are not
necessarily determinative of whether it
would be reasonable for the applicant to
relocate.” Id.
The notion of the internal-relocation
rebuttal has existed for some time in the
BIA’s decisions, see, e.g., Matter of
C—A— L—, 21 I. & N. Dec. 754 (BIA
1997), but the regulation was not codified
into its present form until relatively
recently, see 65 Fed. Reg. 76135 (Dec. 6,
2000). The regulation was effective
January 5, 2001, which is after the date of
the IJ’s decision. Nonetheless, the
regulation was in effect by the time of the
BIA’s decision, and the BIA expressly
cited the new regulation in its decision.
As the internal-relocation regulation is
a fairly recent codification, this Court has
not had occasion to address it in any detail.
Indeed, while several Courts of Appeals
have mentioned the regulation in passing,
it appears that only the Court of Appeals
for the Ninth Circuit has considered it at
any length.1 In Knezevic v. Ashcroft, 367
F.3d 1206 (9th Cir. 2004), that Court took
up the case of a septuagenarian ethnic Serb
and his ethnic Serb wife, both from
Bosnia-Herzegovina. The Court
determined, contra the IJ in that case, that
1One other Court of Appeals case,
Hagi-Salad v. Ashcroft, 359 F.3d 1044
(8th Cir. 2004), considers 8 C.F.R.
§ 208.13(b)(1)(i)(B), which is the
internal-relocation regulation used in
adjudicating asylum claims. It is
virtually identical to 8 C.F.R.
§ 208.16(b)(1)(i)(B), which is used in
adjudicating withholding of removal
claims and applications for relief under
the Convention Against Torture. Hagi-
Salad is not instructive here, though,
because the BIA decision under review
in that case wholly misinterpreted the
regulation, leaving the Court of Appeals
with little to do but grant the petition and
remand the case for proper consideration.

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the couple had demonstrated past
persecution at the hands of Croatians in the
region. See id. at 1211-12. It turned
therefore to the IJ’s alternative basis of
decision—that the Knezevics could avoid
future persecution by relocating within
B osnia-Herzegovina. The Court
concluded that “[t]he evidence . . .
indicates that the Knezevics could safely
relocate to the Serb-held parts of Bosnia-
Herzegovina without fear of the Croats or
Muslims.” Id. at 1214. Nonetheless, the
Court concluded that it would be
unreasonable to require them to do so:
If forced to relocate, [the
Knezevics] would have great
difficulty finding employment, and
the destruction of their business and
loss of all their possessions means
they would have no means of
s u p p o r t i n g t h e m s e l v e s .
Additionally, their family members
no longer reside in Bosnia-
Herzegovina.
. . . . To expect the Knezevics to
start their lives over again in a new
town, with no property, no home,
no family, and no means of earning
a living is not only unreasonable,
but exceptionally harsh.
Id.
Thus the regulation envisions a two-
part inquiry: whether relocation would be
successful, and whether it would be
r e a s o n a b l e . U n d e r 8 C . F . R .
§ 208.16(b)(1)(ii), the burden of proof on
both issues is on the government. In any
given case, of course, only one of these
questions may be at issue.2 In
Gambashidze’s case, for example, it is
undisputed that it would be reasonable for
him and his family to relocate to their
house in Tianeti; after all, the family is
apparently relatively well-to-do, Tianeti is
not a great distance from Rustavi, and the
family did in fact relocate to Tianeti for
eight months from mid-1997 to early 1998.
Gambashidze does take issue, however,
with the BIA’s conclusion that he could
successfu lly avoid persecution by
2Courts have undertaken— in full or in
part— this same bipartite inquiry even in
cases decided prior to the codification of
the internal-relocation regulation (i.e.,
cases decided under Matter of
C—A— L—). See, e.g., Melkonian v.
Ashcroft, 320 F.3d 1061, 1069-71 & n.3
(9th Cir. 2003) (noting new internal-
relocation regulations and vacating IJ’s
decision on the ground that while he
assessed whether internal relocation
within the Republic of Georgia would be
successful, he failed to address whether it
would be reasonable); Manzoor v. United
States Dep’t of Justice, 254 F.3d 342,
347-48 (1st Cir. 2001) (overturning BIA
decision on the ground that substantial
evidence did not show that relocation
within Pakistan would allow applicant to
escape persecution); Singh v. Ilchert, 63
F.3d 1501, 1510-12 (9th Cir. 1995)
(overturning BIA decision on the ground
that persecution of applicant by
government actors in India
presumptively made his relocation within
India futile).

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relocating to Tianeti.
Gambashidze challenges the BIA’s
conclusion that he “has not met his burden
of proof in demonstrating that he has a
well founded fear of persecution upon
return to Georgia because he and his
family were able to internally relocate and
live unmolested for several months prior to
entering the United States.” Preliminarily,
we must note that this seems to be a
misstatement of the law, for upon
demonstrating past persecution (which the
BIA must have assumed here, since it
offered no comment on past persecution),
an applicant is presumed to face future
persecution and the burden shifts to the
government in rebuttal. See 8 C.F.R.
§ 208.16(b)(1)(i)-(ii). The BIA’s decision
could be read to have (incorrectly) placed
the burden on Gambashidze. We will,
however, indulge the view that the BIA’s
statement is simply a shorthand for saying
that Gambashidze failed to prevail on his
ultimate burden to show a likelihood of
future persecution because the government
carried its burden on its internal-relocation
rebuttal.
Thus the question is whether
substantial evidence supports the
conclusion that Gambashidze could avoid
persecution in Georgia by relocating to
Tianeti. All we know from the record is
that Gambashidze was able to live
unmolested in Tianeti for about eight
months, during which time he may have
engaged in some political activity, but we
know no other details. The record does
not disclose whether he was able to live
freely in Tianeti, or had to remain in
hiding underground. We do not know
whether his persecutors knew that he had
relocated. There is evidence of only one
trip into Tbilisi, where he had been
previously seized by police, but one trip to
a large city (Tbilisi had well over one
million inhabitants in 1997) is not likely to
attract the notice of the authorities.
Moreover, an eight-month period without
p o l i c e p e r s e c u ti o n u n d e r t h e se
circumstances is extremely weak evidence
that persecution had ceased entirely.
While he was living in Rustavi,
Gambashidze’s encounters with the police
came at intervals of 2 to 7 months, so an 8-
month hiatus while he was in Tianeti,
perhaps in hiding, is not enough of an
outlier to suggest that the pattern of
persecution had ended.
Overall, the record says virtually
nothing about whether moving his family
to Tianeti would be a successful way for
Gambashidze to permanently avoid his
persecutors. To be sure, what little
evidence there is in the record is consistent
with the government’s position. But the
record is so thin on the very matter that
formed the basis of the BIA’s decision that
no reasonable factfinder could soundly
reach the conclusion that the BIA did on
the limited evidence before it. The burden
is on the government, and we are
compelled to conclude that the government
did not meet that burden.
III. Conclusion
For the foregoing reasons, we will
grant the petition for review. On remand,

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the government is of course free to more
fully develop the factual basis for its
internal-relocation position, or to urge the
BIA to rest its decision on some other
ground. We also note that the
administrative record in this case, like so
many others this Court has recently seen,
is way out of date—both chronologically
and in terms of actual events on the ground
in Georgia. The testimony in this case is
over fifty months old, the most recent State
Department Country Report in the
administrative record is older still, and the
political climate in Georgia seems to have
undergone a sea change since the ouster of
Shevardnadze in late 2003. Perhaps on
remand the parties can heed the concerns
we recently expressed about stale
administrative records in Berishaj v.
Ashcroft, No. 03-1338, 2004 WL 1746299
(3d Cir. Aug. 5, 2004).

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