Garegin Ambartsoumian; Nadia Ambartsoumian; Karina Ambartsoumian; Rimma Ambartsoumian v. John Ashcroft, Attorney General of the United States of America

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
_____________________
NO. 03-1961
______________________
GAREGIN AMBARTSOUMIAN;
NADIA AMBARTSOUMIAN;
KARINA AMBARTSOUMIAN;
RIMMA AMBARTSOUMIAN,
Petitioners
v.
JOHN ASHCROFT, ATTORNEY
GENERAL
OF THE UNITED STATES OF
AMERICA,
Respondent
______________________
On Petition for Review of Orders of the
Board of Immigration Appeals
(Board Nos. A75-006-540;
A75-006-541;
A75-006-543; A75-559-426)
________________________
Argued October 5, 2004
Before: SLOVITER, BECKER and
STAPLETON, Circuit Judges
(Filed: November 1, 2004)
STEVEN P. BARSAMIAN (ARGUED)
2021 Locust Street
Philadelphia, PA 19103
Attorney for Petitioner
PETER D. KEISLER
Assistant Attorney General, Civil
Division
ANTHONY W. NORWOOD
Senior Litigation Counsel
JENNIFER A. LEVINGS (ARGUED)
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
Attorneys for Respondent
________________________
OPINION OF THE COURT
________________________
BECKER, Circuit Judge.
This is a petition by Garegin
Ambartsoumian (“Garegin”), his wife
Nadia Ambartsoumian (“Nadia”), and their
two children, for review of an order of the
Board of Immigration Appeals (BIA)
denying them asylum, withholding of
removal, and protection under the
Convention Against Torture. It is, in a
way, a tale of two countries—the Ukraine
and Georgia. Garegin is a Georgian citizen
of Armenian and Ossetian parentage.
Nadia is a Ukrainian citizen and a Baptist.
The Ambartsoumians married in the
Ukraine in 1989, and spent much of the

-- 1 of 14 --

2
next three years shuttling back and forth
between their two native countries. They
arrived in the United States in 1996, after
a sojourn in Canada, and applied for
asylum, claiming that they had faced
persecution in both Ukraine and Georgia
and would be persecuted in either country
if obliged to return.
The case for persecution in the
Ukraine is extremely weak. It is largely
predicated on events that took place, and
on policies and attitudes that existed,
before the breakup of the Soviet Union
and the establishment of an independent
Ukraine. Except for an alleged beating in
1991 and a putative attempt to kidnap the
Ambartsoumians’ children in 1992, the
record includes nothing more than
sporadic veiled threats and a lack of
economic opportunity in the Ukraine. The
Ambartsoumians did adduce evidence that
the climate in the Ukraine is inhospitable
to Armenians. However, the record,
including State Department reports on
country conditions, reflects a total change
in the governmental policies of the
Ukraine since 1991, and nothing in the
record suggests that the Ambartsoumians
would now be persecuted in the Ukraine
for either their ethnicity or their religious
beliefs.
The case for persecution in Georgia
seems more complicated in light of the
fluid political situation in the North
Caucasus and the continuing tensions in
Abkhazia and South Ossetia.1 The record
contains evidence that in 1989 the
Ambartsoumians received death threats
from Georgian nationalists; that in 1990
both Nadia and Garegin were badly
beaten; and that in 1992, upon his return
from Ukraine, an attempt was made to
conscript Garegin into the Georgian army.
However, the Ambartsoumians’ principal
contention before us, supported by an
expert witness— a professor specializing in
the history and politics of the region—is
that ethnic hostility toward Armenians and
1Abkhazia is a region in northwest
Georgia, along the coast of the Black Sea
and the Russian border. It declared
independence in 1992, and was the scene
of a bloody war in 1992-1993. See A
Matter of Russian Honour—Russia, The
Economist, Aug. 21, 2004, available at
2004 WL 62019076. South Ossetia is in
north-central Georgia, bordering on the
North Ossetia region of Russia. It
declared independence from Georgia in
1990, intending to reunite with North
Ossetia; this sparked a war lasting until
1992. See Fact Sheet: Georgia, Dep’t St.
Dispatch, May 9, 1994, at 296, available
at 1994 WL 2848944. Currently, Russian
and UN peacekeepers maintain truces in
Abkhazia and South Ossetia, see CIA
World Factbook—Georgia, at
http://www.cia.gov/cia/publications/factb
ook/geos/gg.html, but the government of
Georgia still does not control those areas,
see Putting Out More Flags— Georgia,
The Economist, July 24, 2004, available
at 2004 WL 62018768.

-- 2 of 14 --

3
religious hostility toward non-Orthodox
Christians would now render the
Ambartsoumians subject to persecution in
Georgia.
The latest State Department
Country Report in the record, for 1998,
counters the expert’s opinion. We
therefore asked the parties to comment on
the adequacy of the administrative record,
given the current situation in Georgia, in
light of our opinions in Berishaj v.
Ashcroft, 378 F.3d 314, 328-31 (3d Cir.
2004), and Gambashidze v. Ashcroft, 381
F.3d 187, 193-94 (3d Cir. 2004). In these
cases, we expressed our concerns about
being forced to use stale administrative
records to decide petitions seeking to
avoid deportation to countries of origin
where asylum applicants might be
persecuted.
In response to our request for
comment, the Attorney General reported
that the Department of Justice has
responded to Berishaj by implementing a
new procedure pursuant to which the
Office of Immigration Litigation (OIL), in
consultation with its client agencies, now
screens out and seeks to remand cases
where records are out of date and not
appropriate for judicial review. All OIL
attorneys have been instructed to consider
whether the record in each case assigned to
them is so out of date as to justify a
remand. If the record is stale, the OIL
attorney is to bring the case to the attention
of the Director of OIL, who may seek a
remand as a matter of discretion. The
factors that OIL will use in assessing old
records include “(1) whether there have
been pertinent, intervening events in the
country of removal; and (2) whether the
issues on review are ‘time sensitive’ in that
changes in conditions over time may affect
the resolution of the issues.” The full text
of the procedures are set forth in the
Appendix to this opinion. We commend
the Attorney General and OIL on this
reform.
N o t w i t h s ta n d i n g t h e n e w
procedures, the OIL concluded that the
record in this case does not warrant a
remand to the BIA. Concomitantly, the
Ambartsoumians’ counsel, at oral
argument, agreed that the record before the
agency was sufficient for this Court to
consider, although he argued that it
compelled us to reject the IJ’s findings.
Since both parties seem to agree that the
staleness of the record does not present
any difficulties here, we reach the merits
of the persecution claims.
The government submits that the
record does not compel the conclusion that
there was past persecution, or that the
Ambartsoumians will face persecution if
returned to Georgia. For the reasons that
follow, we agree. As will appear,
important to this conclusion are the facts
that: (1) the Ambartsoumians’ expert, Dr.
Ronald Suny, was too general and broad-
brushed to overcome the 1998 Country
Report’s account of greatly improved
conditions for Armenians in Georgia; (2)
Suny acknowledged that the situation in
Georgia had significantly improved and
that the government was not a likely
persecutor; and (3) the real problem was
only that Georgia was a “weak state”

-- 3 of 14 --

4
where Armenians are not popular.
For these reasons, the Petition for
Review will be denied.
I. The Legal Framework
The Attorney General may, in his
discretion, grant asylum to any alien if he
determines that the alien is a refugee. 8
U.S.C. § 1158(b)(1). To demonstrate that
he or she is a refugee, an asylum applicant
must establish that he or she is unable or
unwilling to return to his or her native
country because of “persecution or a well-
founded fear of persecution on account of
race, religion, nationality, membership in
a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). A
showing of past persecution gives rise to a
rebuttable presumption of a well-founded
fear of future persecution. 8 C.F.R.
§ 1208.13(b)(1). The burden of proving
persecution is on the asylum applicant.
8 C.F.R. § 1208.13(a).
The Ambartsoumians’ application
for withholding of removal is based upon
8 U.S.C. § 1231(b)(3)(A), which forbids
removal if “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, the
applicant must show “that it is more likely
than not that he will face persecution if he
is deported.” Li Wu Lin v. INS, 238 F.3d
239, 244 (3d Cir. 2001) (citing INS v.
Cardoza-Fonseca, 480 U.S. 421, 430
(1987)). This standard is stricter than the
“well-founded fear” standard for asylum.
Because we find that the Ambartsoumians
are not eligible for asylum, we need not
consider their eligibility for withholding of
removal under this stricter standard. See
Shardar v. Ashcroft, 382 F.3d 318, 324 (3d
Cir. 2004).
The standard for CAT protection is
different from that for asylum or
withholding of removal; it requires proof
that the applicant is “more likely than not”
to be tortured, 8 C.F.R. § 1208.16(c)(2),
but does not require any showing that the
torture is on account of any protected
ground. See Lukwago v. Ashcroft, 329 F.3d
157, 183 (3d Cir. 2003).
The Immigration Judge denied the
Ambartsoumians’ requests for relief, but
granted them voluntary departure. The
Board of Immigration Appeals affirmed
without opinion, pursuant to 8 C.F.R.
§ 1003.1(e)(4).2 Therefore, we review only
the decision of the Immigration Judge.
Gao v. Ashcroft, 299 F.3d 266, 271 (3d
Cir. 2002). Our review is limited by the
“substantial evidence” standard, which
states that “the administrative findings of
fact are conclusive unless any reasonable
adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). The determination that an
asylum applicant faced past persecution, or
2In his brief, Ambartsoumian suggests
that the Board’s policy of affirming
without opinion denies him due process.
This argument is foreclosed by our recent
decision in Dia v. Ashcroft, 353 F.3d
228, 238-45 (3d Cir. 2003) (en banc).

-- 4 of 14 --

5
has a well-founded fear of future
persecution, is a factual conclusion subject
to this deferential review. Gao, 299 F.3d at
272. We therefore must uphold the IJ’s
findings if they are “supported by
reasonable, substantial, and probative
evidence on the record considered as a
whole.” INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992).
The Immigration Judge (IJ) heard
testimony from Garegin and Nadia
Ambartsoumian, and from their expert
witness, Dr. Suny. He also reviewed the
U.S. Department of State Country Reports
for Georgia and Ukraine for 1998, and the
State Department Asylum Profiles for
those countries. He relied heavily on the
“objective evidence” of these reports. This
reliance was justifiable, as we have held
that State Department reports may
constitute “substantial evidence” for the
purposes of reviewing immigration
decisions. Kayembe v. Ashcroft, 334 F.3d
231, 235 (3d Cir. 2003); cf. Lal v. INS, 255
F.3d 998, 1023 (9th Cir. 2001) (describing
State Department country reports as the
“most appropriate” and “perhaps best
resource” on country conditions).
Based on the record, the IJ
determined that the Ambartsoumians had
failed to establish a well-founded fear of
persecution in either Georgia or the
Ukraine. We examine his decision as to
each of these countries in turn.
II. The Ukraine
Nadia Ambartsoumian claims that
she was persecuted in the Ukraine because
of her Baptist faith. Her father, Nikolai
Boyko, was a Baptist preacher who was
imprisoned and exiled to Siberia during
the Soviet era. Nadia suffered for her
father’s beliefs: as a child, she was
interrogated by the KGB and abused by
her classmates, and she lived with her
father in Siberia for three years. Nikolai
Boyko was in Siberia until 1993.
Garegin and Nadia met in 1988 in
Odessa, Ukraine, Nadia’s birthplace, while
Garegin was on a work assignment. They
married in 1989, and returned to Garegin’s
homeland, but soon moved back to
Ukraine to escape ethnic tensions in
Georgia. Garegin at first found work in
Odessa, but alleges that he was harassed
and eventually fired because of his
nationality. He claims that the Ukrainian
courts refused to help him and that he was
unable to find any other permanent
employment. Ukraine, too, was suffused
with ethnic nationalism, and Garegin
claims that the family was repeatedly
threatened and insulted. In 1990, Garegin
was beaten by Ukrainian nationalists, and
decided to return to Georgia so as not to
put his family at risk.
He returned to the Ukraine later that
year. He claims that he stayed in hiding in
his wife’s house for two months,
apparently because he was in the Ukraine
illegally. Eventually, the police raided his
house, arrested him, beat him, and told him
that this treatment would continue unless
he left the Ukraine. He also claims that
someone attempted to kidnap the couple’s
two children, and that Nadia was beaten
and threatened because of her non-
Ukrainian husband. He once again

-- 5 of 14 --

6
returned to Georgia in 1992, but quickly
came back to the Ukraine to avoid serving
in the Georgian army. On Garegin’s return,
neighbors again attacked and threatened
the Ambartsoumians, and Nadia suffered a
miscarriage after one such attack.
The Ambartsoumians left the
Ukraine for Canada in 1992. While in
Canada, they applied for refugee status.
They left Canada for the United States in
1996, before Canadian officials had taken
final action on their asylum application.
They surren dered to imm igratio n
authorities in Champlain, NY, and
requested asylum.
The above facts and allegations
suggest two possible bases for the claim of
persecution in the Ukraine, each of which
the IJ rejected.
First, Nadia claims that she suffered
persecution because of her religious
background. The IJ agreed that Nadia’s
family was persecuted during the Soviet
era. But he found that Nadia herself did
not suffer the same degree of persecution
as her father, and that the post-Communist
Ukraine was much more hospitable to
Baptists.
There is substantial evidence in the
record to support this conclusion. The
State Department Asylum Profile states
that the Communists repressed Evangelical
Christians, but that “[w]ith the overthrow
of the Communist regime in 1991,
Evangelicals are no longer denied religious
freedom and they worship without
interference.” Ukraine 1997 Asylum
Profile 8. The Country Report notes some
instances of discrimination against
Evangelicals, but nothing that would rise
to the level of persecution. Ukraine 1998
Country Report 1589. And Nadia
Ambartsoumian admitted during the
asylum hearing that her parents and four of
her siblings still live in the Ukraine and
practice the Baptist faith, and presented no
evidence that they are currently persecuted
for their beliefs. In fact, though she said
that her father had not received permission
to buy a house of prayer, she admitted that
he currently has a church in Odessa.
Reading the record as a whole, we find no
compelling reason to reverse the IJ’s
finding that Nadia Ambartsoumian does
not have a well-founded fear of
persecution in the Ukraine.3
Second, Garegin claims that he and
his family suffered persecution because he
was not a native Ukrainian. The only
e v i d e n c e f o r t h i s w a s t h e
Ambartsoumians’ own testimony. The IJ
3The IJ did not clearly state whether he
had found that Nadia had not suffered
past persecution, or whether he found
that she had suffered such past
persecution, but that the presumption of
future persecution was rebutted by
evidence of a change in country
conditions since the fall of the Soviet
Union. See 8 C.F.R. § 1208.13(b)
(1)(i)(A). Such a failure to make specific
findings generally makes review more
difficult, but in the instant case we find
that either conclusion would be
supported by substantial evidence, so we
do not inquire further.

-- 6 of 14 --

7
again relied on the State Department
reports, which indicate that the Ukraine’s
nationality policy “meet[s] international
standards required for the protection of
minority groups,” Ukraine 1997 Asylum
Profile 3, although they also describe
“[f]requent harassment of rac ial
minorities,” especially dark-skinned Asian
and African minorities. Ukraine 1998
Country Report 1590. While this State
Department evidence may be equivocal,
the IJ was entitled to draw from it the
conclusion that Armenians do not face
persecution in the Ukraine, see Kayembe,
334 F.3d at 236-37, and there is no
significant evidence in the record to the
contrary.
Moreover, the IJ found that
Garegin’s troubles in the Ukraine stemmed
not from his ethnicity but from his lack of
official permission to live and work in that
country. This finding, too, is well
supported. Both Garegin’s and Nadia’s
own testimony could be read as indicating
that Garegin was unable to work, and was
harassed by the police, mainly because he
had failed to obtain proper legal
documents and permissions. Garegin
testified that he was fired from his job
“[b]ecause I’m not [a] permanent resident
of the Ukraine. And plus, I am Armenian.”
He later testified that he lived in hiding in
his wife’s house because people had told
him that he was in the Ukraine illegally.
Nadia gave several reasons for her
husband’s inability to get a job, including
that he speaks no Ukrainian and that he
lacked a propiska, or residency permit.
From this testimony the IJ could
reasonably have concluded that Garegin
was not persecuted for his nationality, but
rather that he had legal difficulties due to
his own failure to obtain the proper
permissions. There is no evidence in the
record to suggest that Garegin ever sought
legal status in the Ukraine, as explained in
the margin, or that he would have been
prevented from doing so because of his
nationality.4 Garegin’s difficulties with his
employers and with the police certainly do
not amount to ethnic persecution if they
4The Ambartsoumians introduced into
the record evidence of the Ukrainian law
of citizenship, apparently to prove that
Garegin is currently ineligible for
Ukrainian citizenship. This, however,
does not prove that Garegin is ineligible
for permission to live and work in the
Ukraine. In fact, the citizenship law
requires that candidates demonstrate
“continuous residence on legal grounds
on the territory of Ukraine throughout the
past five years.” This requirement
naturally suggests that non-citizens may
live legally in the Ukraine.
We also note that, even if Garegin
Ambartsoumian did face difficulties in
obtaining the proper work and residency
permits, this fact alone would not
necessarily rise to the level of
persecution. Cf. Ahmed v. Ashcroft, 341
F.3d 214, 218 (3d Cir. 2003) (holding
that a stateless Palestinian in Saudi
Arabia did not suffer persecution due to
his difficulty in obtaining work and
residency permits).

-- 7 of 14 --

8
were due only to his own failure to follow
Ukrainian residency and labor laws. See
Janusiak v. INS, 947 F.2d 46, 48 (3d Cir.
1991). Thus the evidence as a whole does
not compel the conclusion that Garegin
suffered persecution in the Ukraine.
III. Georgia
To prove that they were
persecuted in Georgia, the
Ambartsoumians presented their own
testimony and that of an expert witness.
Their testimony indicates that they faced
serious difficulties during the (generally
short) periods that they spent in Georgia.
Garegin was born in Tbilisi,
Georgia, and is a Georgian citizen. He is
ethnically Armenian and Ossetian, and is
an Armenian Christian, but he has visited
Armenia only once, as a child. He claims
that, because of his Armenian heritage,
he was harassed and beaten while
growing up in Georgia, and while
serving as a conscript in the Soviet army.
After meeting Nadia in the Ukraine,
Garegin returned with her to Tbilisi in
1989. With ethnic tensions on the rise in
Georgia, the couple claims that they
received death threats, and that Nadia
was beaten by neighbors because they
were not ethnic Georgians. As discussed
above, they left for the Ukraine, but
Garegin returned to Georgia in 1990
because of difficulties he encountered
during his short time in the Ukraine.
When he returned to Georgia,
Garegin found a nation divided by the
civil war in the region of South Ossetia.
As his mother was Ossetian by
nationality, his family was in hiding,
apparently afraid of anti-Ossetian feeling
among Georgians. Fearful for his own
safety, Garegin returned to the Ukraine.
Again, his stay in the Ukraine did not last
long, and Garegin once again returned to
Georgia early in 1992. This time, when
he arrived at the Tbilisi airport, he was
conscripted into the Georgian army to
fight in the civil war in the Abkhazia
region. He immediately was put on a bus
to the front, but managed to escape that
night, and fled back to the Ukraine.
The Ambartsoumians also
presented the report and testimony of Dr.
Ronald Suny, a professor at the
University of Chicago and an expert on
modern Georgian and Armenian history
and politics. Dr. Suny testified that
President Zviad Gamsakhurdia’s policy
of “Georgia for the Georgians” had led to
serious problems for Armenians in the
early 1990s.5 He also noted that
5Gamsakhurdia, an ethnic nationalist,
ruled Georgia from 1990 through 1992.
He was overthrown in January 1992, and
replaced by the more moderate Eduard
Shevardnadze. See Georgia 1995 Asylum
Profile 4. Though it is not in the
administrative record, we take judicial
notice of the fact that President
Shevardnadze stepped down in
November 2003, after the final BIA
action in this case. He was replaced by
Mikhail Saakhasvili, the current
president. See The Comicopera Ends,
The Economist, May 8, 2004, available
at 2004 WL 62017854.

-- 8 of 14 --

9
Armenians became unpopular during
Georgia’s civil conflict in Abkhazia,
because they were perceived as having
sided with the Abkhazians. But Dr. Suny
acknowledged that conditions in Georgia
had improved since the Gamsakhurdia
years, although he noted that the
Shevardnadze government, see supra
note 5, was too weak to keep order and
protect ethnic minorities. He asserted that
the central government had effective
control only of Tbilisi, the capital city,
and that even within Tbilisi the
government had only limited control over
its citizens, and even over its police
forces. As a result, he represented that
there were a number of incidents of
unofficial violence against Armenians
even since Shevardnadze came to power.
However, Dr. Suny confessed that
he had no real familiarity with the
Ambartsoumians’ situation, but stated
that Garegin would have difficulty
getting travel documents to return to
Georgia, that he would face economic
troubles upon his return, and that the
government and police would not be
zealous in protecting him from other
Georgians.
Having heard all this testimony,
the IJ determined that the
Ambartsoumians had not suffered
persecution in Georgia on account of
their ethnicity. He relied heavily on the
State Department reports, noting that
they showed a “historic amity between
Armenians and Georgians.” While he
conceded that there was some
discrimination against Armenians during
the Gamsakhurdia regime of 1990-1992,
he concluded that there was no evidence
of discrimination against non-Georgians
since then, and that, under the rule of
President Shevardnadze, Armenians no
longer faced discrimination or
persecution.
These conclusions are fully
supported by the State Department
reports. While the Asylum Profile for
Georgia noted that, during the
Gamsakhurdia era, “acts against
Armenians on a personal basis may have
taken place,” it concluded that there was
no evidence of “actions taken against
Armenians on the basis of their
ethnicity” during that period. Georgia
1995 Asylum Profile 5 (emphasis added).
More importantly, it noted that “from
1993 we have seen no evidence of
governmental discrimination against the
non-Georgian population.” Id. at 4.
In evaluating the evidence offered
by the Ambartsoumians and Dr. Suny,
the IJ found that it did not establish that
the Ambartsoumians experienced past
persecution in Georgia. He did not
explicitly make an adverse credibility
finding, though he concluded that some
aspects of the Ambartsoumians’
testimony were “inaccurate.”
Importantly, he noted that Dr. Suny had
agreed that relations between Georgians
and Armenians had historically been
amicable, and that the Shevardnadze
government had largely restored those
relations after the Gamsakhurdia
troubles. The IJ also found that Suny’s
concerns about the dangers facing

-- 9 of 14 --

10
Armenians were not supported by “the
weight of objective evidence.” He
determined that, even during the
Gamsakhurdia years, there was little or
no government-sponsored persecution of
Armenians, and that the Ambartsoumians
“avoided the excesses of the
Gamsakhurdia regime by relocating to
Ukraine.”
As noted above, the IJ’s reliance
on “objective evidence” in the form of
State Department reports was justifiable
under our decision in Kayembe. Upon
reviewing the testimony and affidavits
presented by the Ambartsoumians, and
the State Department reports considered
by the IJ, we are unable to conclude that
the record would compel any reasonable
adjudicator to reject the IJ’s findings.
Even if we accept, as the IJ apparently
did, that the Ambartsoumians
encountered difficult conditions in
Georgia, that would not necessarily
support a finding of past persecution.
Certainly Georgia was, and continues to
be, involved in a number of civil
conflicts. In fact, the IJ specifically
found that the Ambartsoumians’
principal reason for leaving Georgia was
the civil war. But we have held that the
standard for persecution is high, and that
“‘generally harsh conditions shared by
many other persons’ do not amount to
persecution.” Fatin v. INS, 12 F.3d 1233,
1240 (3d Cir. 1993) (quoting Matter of
Acosta, 19 I. & N. Dec. 211, 222 (BIA
1985)). Ambartsoumian alleges that, on
his return to Georgia in 1992, he was
pressed into military service in Georgia’s
civil war against the region of Abkhazia.
But conscription by a sovereign nation
cannot constitute persecution under 8
U.S.C. § 1101(a)(42). Lukwago v.
Ashcroft, 329 F.3d 157, 168-69 (3d Cir.
2003). Thus the facts that life in Georgia
was difficult due to a civil war, and that
Garegin Ambartsoumian was conscripted
to fight in that war, do not in themselves
establish past persecution.
We do not deny that the
Ambartsoumians’, and Dr. Suny’s,
descriptions of life in Georgia are
troubling. But we do not believe that
these allegations rise to the level of
persecution required by § 1101(a)(42)
and by Fatin. Thus, the record does not
compel us to set aside the IJ’s finding
that the Ambartsoumians did not suffer
persecution in Georgia, or his
determination that they had not
established a well-founded fear of future
persecution there.
IV. The State of the Record
The record in this case consists of
the Ambartsoumians’ testimony about
events predating 1992, and of State
Department reports from 1995 through
1998. Concerned about the long delay
between this record and our review of the
case, we requested supplemental briefing
on the issues raised by this Court in
Berishaj v. Ashcroft, 378 F.3d 314, 328-
31 (3d Cir. 2004), and reiterated in
Gambashidze v. Ashcroft, 381 F.3d 187,
193-94 (3d Cir. 2004). The government’s
submission in response to this request
informed the Court of the new, and

-- 10 of 14 --

11
salutary, screening policy described
above (and set forth fully in the
Appendix).
The Department of Justice asserts
that it has followed its screening policy
in this case, but has determined that
conditions have not changed significantly
enough to make the record here obsolete
and require a remand. Mindful of our
obligation to base our review on the
contents of the administrative record, see
Berishaj, 378 F.3d at 330, we are
unwilling to take judicial notice of the
most recent State Department reports on
Georgia and the Ukraine, which are
easily available on the Internet, see
http://www.state.gov/g/drl/rls/hrrpt/2003/
. Instead, we simply note that neither of
the parties have provided any evidence or
argument that would counsel a remand to
open the record in this case. At oral
argument, counsel for petitioners
specifically disclaimed the argument that
the administrative record in this case was
insufficient because of staleness; instead,
he argued that the evidence in the record
compels reversal. And petitioners have
not filed a motion to reopen the record
before the BIA, pursuant to 8 C.F.R.
§ 1003.2(c). The government submits
that no material changes have occurred in
Georgia or the Ukraine.
In short, no serious suggestion has
been made that conditions in the Ukraine
have changed, in any respect material to
asylum, since the BIA’s decision; while
Georgia has a new president, see supra
note 5, neither party has suggested that
the new regime is any worse for ethnic
minorities than was the Shevardnadze
government. Both parties rely on the
record before the IJ and the BIA, and we
are therefore satisfied that our concerns
in Berishaj and Gambashidze are
inapplicable here.
V. Conclusion
On reviewing all the evidence in
the record, we are unable to conclude
that the evidence as a whole would
compel any reasonable adjudicator to
find that the Ambartsoumians suffered
persecution in either Georgia or the
Ukraine, or that they have a well-
founded fear of future persecution or
torture in either of those countries.
Therefore, we will deny the petition for
review.
Appendix
To clarify the new policy of the
Office of Immigration Litigation (OIL),
we set forth, in full (including footnotes),
Part II of the government’s supplemental
memorandum in the instant case:
After receiving a copy of
the Court’s decision in
Berishaj, the Office of the
Attorney General and the
Civil Division immediately
started to consider how
best to address the Court’s
concerns. The Deputy
Assistant Attorney General
for OIL consulted with the
Executive Office of
Immigration Review
(EOIR) (which includes the

-- 11 of 14 --

12
Board of Immigration
Appeals (BIA) and the
Immigration Judges (IJ))
and the Department of
Homeland Security (DHS)
(which litigates cases in
front of the BIA and IJs)6
to determine the reasons
for the stale records and to
explore possible solutions.
Based on these meetings
and OIL’s own analysis of
the issue, he proposed to
the Assistant Attorney
General of the Civil
Division that, as a matter of
“prosecutorial discretion,”
the Government should
screen out and seek to
remand cases whose
records are out-of-date and
not appropriate for judicial
review.7 Although such
remands would add delay
to the adjudication of some
aliens’ claims, and
although it is possible that
a remanded case would
become stale again after
the record is supplemented,
this proposal appeared to
be a sound method for
improving the quality of
records in appropriate
cases. The Assistant
Attorney General agreed,
and so did the Office of the
Attorney General.
Accordingly, at the
direction of the Deputy
Assistant Attorney General
for OIL, the Director of
OIL has informed all
attorneys under his
supervision that, when a
case is assigned to them,
they should consider
whether the age and quality
of the record counsels in
favor of a remand. If a
record is old and deficient,
the attorney should
promptly bring it to the
attention of the Director of
6After its creation, DHS assumed the
responsibilities of the former
Immigration and Naturalization Service,
including the prosecution of cases before
the BIA and IJs. The Civil Division,
through OIL, continues to defend the
BIA’s decisions in the federal courts.
7The decision to seek a remand in a
particular case would, of course, be
discretionary. The law does not require
the Government to screen out and seek
remands in cases in which country
conditions have gotten worse,
strengthening an alien’s asylum claim
(or, for that matter, cases in which
conditions have improved, weakening
the alien’s claim). Rather, the prescribed
regulatory mechanism for responding to
stale records is the motion to reopen. See
8 C.F.R. § 1003.2(c). If conditions in a
country worsen, the alien has the burden
of filing the motion to reopen. Id.

-- 12 of 14 --

13
OIL, who, in consultation
with the OIL’s client
agencies (EOIR and DHS),
will exercise his discretion
on whether to seek a
remand in the case.
The Director of OIL
also notified all OIL
attorneys of the factors that
they should consider in
assessing whether a record
is suitable for judicial
review. Among these
factors are: (1) whether
there have been pertinent,
intervening events in the
country of removal; and (2)
whether the issues on
review are “time sensitive”
in that changes in
conditions over time may
affect the resolution of the
issues. In addition, because
OIL’s screening of cases
should not create a
windfall for aliens who
have failed to meet their
burdens of proof or to
pursue the procedural
opportunities available to
them, OIL attorneys should
determine in each case
whether the alien bears the
burden of proof, whether
the alien has made efforts
to perfect and preserve the
record on his claims
through timely motions to
the agency, and whether
the alien was improperly
denied the opportunity to
perfect and preserve the
record on his claims.8 OIL
attorneys will consider
these factors in all
subsequent cases in light of
Berishaj.
Moreover, EOIR
has also taken steps to
respond to the Court’s
concerns. Even before
Berishaj, the BIA
remanded cases from
countries where conditions
were fluid, thus enabling
the parties to supplement
the record. After meeting
with DHS and the Deputy
Assistant Attorney General
for OIL, EOIR agreed to
continue to consider
additional remands.
Additionally, EOIR is
currently contemplating
other proposals, including,
8These factors reflect the fact that an
old record is not necessarily a deficient
record. For example, country conditions
may not have changed despite the
passage of time (conversely, a record
could be deficient even if not much time
has passed). Moreover, even if country
conditions have changed, a remand might
not be appropriate, if, say, none of the
issues in the case is time sensitive or if
the other factors in the analysis counsel
against remand.

-- 13 of 14 --

14
if an appropriate case
arises, having the BIA
issue a published decision
remanding a case with a
stale record. The Members
of the BIA have already
discussed en banc this
Court’s decision, and are
continuing to do so. The
Respondent will inform the
Court of any proposals that
are adopted.

-- 14 of 14 --