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Akhvlediani v. Holder

United States Court of Appeals, Sixth Circuit

July 19, 2013

EKA AKHVLEDIANI, Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General Respondent. ZAKRO KBILASHVILI, Petitioner,

NOT RECOMMENDED FOR PUBLICATION

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before: SILER, CLAY, and GIBBONS, Circuit Judges.

SILER, Circuit Judge.

Eka Akhvlediani and Zakro Kbilashvili seek review of an order issued by an Immigration Judge ("IJ"), and affirmed by the Board of Immigration Appeals ("BIA"), denying their application for asylum and withholding of removal and their request for relief under the Convention Against Torture ("CAT"). They also seek review of the BIA's order denying their subsequent motion to reopen their applications. Because the BIA's decisions are supported by substantial evidence and fall squarely within its broad discretion, we deny the petitions for review of both orders.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioners, husband and wife, are citizens of the country of Georgia. They currently reside in the United States and have two children who remain in Georgia. Kbilashvili began working as a policeman in 1993 in the Ministry of Internal Affairs. By 1995, he was promoted to inspector of the criminal department in Tbilisi, Georgia and later learned of some internal corruption whereby Ministry officials were collecting payments from local businessmen in exchange for taking no action regarding illegal sales. In 1998, he repeatedly called these businessmen and forbade them from giving any money to the police. As a result, Ministry superiors shunned him and he began receiving anonymous threatening phone calls. Kbilashvili was eventually asked to resign by his supervisor, but he refused.

Over the next several years, Petitioners claim to have been harassed, threatened, and attacked as a result of Kbilashvili's open opposition to governmental corruption. The tension perhaps climaxed when he was approached one day by a gunman, ordered out of his car, and shot in the hand. A few days later, Akhvlediani received an anonymous phone call warning her that "the second bullet w[ould] be the final for [Kbilashvili] and he w[ould] be killed." The shooting and related phone call convinced Kbilashvili to resign from his position, but he alleges that the threats persisted despite his withdrawal. Approximately six months after he resigned, he accepted a job as deputy director of a correctional facility in Rustavskaya. There, he battled narcotics smuggling and his wife again began receiving threatening phone calls.

By 2000, Akhvlediani was still receiving threatening phone calls from anonymous people who claimed to know where Petitioners lived and where their children went to school. Akhvlediani claimed she was followed to and from school. Kbilashvili again requested to transfer jobs and was moved to a correctional facility in Tbilisi. He soon learned that criminals housed in the facility were paying managers to obtain contraband, special visitation rights, and drugs. He reported his finding and again received threatening anonymous phone calls. After another short relocation to Mayakovsky in 2002, during which Petitioners suspected they were being followed and heard gunshots near their new neighborhood, they left their two children in Georgia and traveled to the United States.

Petitioners were admitted to the United States in 2002 as non-immigrant tourist visitors with authorization to remain for six months. Since then, their two children have lived at all times with either their uncle or grandparent and have relocated frequently throughout Georgia. By late 2002, Petitioners decided to remain in the United States. At the advice of a friend, they traveled to Miami, Florida and met with an immigration consultant, Elmar Melikiganov, who indicated that Kbilashvili was eligible for a work visa. Petitioners believed Melikiganov to be an attorney and deposited a partial payment in cash for him to file the appropriate application on Kbilashvili's behalf. Several months later, Melikiganov called requesting additional payment but Kbilashvili refused because he had not received any documents or other evidence of Melikiganov's progress. Since then, Kbilashvili has been unable to contact Melikiganov.

In March 2003, an asylum application in Akhvlediani's name was filed with the Immigration and Naturalization Service. Four months later, the Department of Homeland Security initiated removal proceedings and served Petitioners with separate Notices to Appear ("NTAs"), charging them with being removable pursuant to Sections 237(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B). Petitioners claim they did not receive the NTAs and therefore failed to appear, resulting in their both being ordered removed in absentia.

In 2008, DHS officers detained Kbilashvili and he then learned that an I-589 application had been filed on his behalf. Through counsel, Petitioners moved to reopen their removal proceedings and rescind their in absentia removal orders as they claimed the I-589 application was a product of fraud. The IJ granted the motions and Petitioners subsequently admitted the factual allegations in the NTAs, conceded their removability, formally withdrew the March 2003 asylum application, and indicated that they each intended to apply for asylum, withholding of removal, and protection under the CAT. In 2009, they submitted these applications and request for relief. Although Petitioners each submitted separate applications, their claims for relief were essentially the same and were based on past threats and physical harm they faced in Georgia between 1997 and 2002, as well as threats to their family members since Petitioners arrived in the United States. They specifically claim that their son, Emzar Kbilashvili, has been physically attacked on more than one occasion as revenge for his father's activities. During one such attack in 2009, Emzar was beaten by several people and stabbed with a knife. He was attacked again later that year and was treated for multiple injuries to his face and body.

After multiple merits hearings, the IJ found Petitioners ineligible for asylum because their application was untimely and concluded they had not met their burdens of proving eligibility for withholding of removal or CAT protection because they failed to sufficiently corroborate their claims. The BIA affirmed the IJ's decision. Petitioners then filed a motion to reopen and submitted additional evidence of Emzar's 2009 attacks and evidence of a recent 2011 attack on their daughter, Nino Kbilashvili. The BIA denied the motion after concluding that the 2009 evidence was not new or previously ...


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