2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-28-2008

Zodelava v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2588

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2588

 

LEVANI ZODELAVA; MAKA ZODELAVA; LUKA ZODELAVA

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES

 Respondent

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A96-021-863; -864; -865)

Immigration Judge: Honorable Donald V. Ferlise

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 13, 2008

Before: AMBRO, FISHER and JORDAN, Circuit Judges

(Opinion filed: August 28, 2008)

 

OPINION

 

PER CURIAM

Petitioners seek review of the Board of Immigration Appeals’ (“BIA”) order

dismissing their appeal from the Immigration Judge’s (“IJ”) order of removal. For the

reasons set forth below, we will deny the petition. 
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I.

Petitioners, Maka and Levani Zodelava, and their son, Luka, are citizens of

Georgia who entered the United States in February 2003 without valid travel documents. 

Maka Zodelava seeks asylum, withholding of removal, and relief under the CAT on the

ground that she was persecuted in Georgia for being a Jehovah’s Witness. Levani and

Luka have submitted derivative applications. 

At Petitioners’ removal hearing, Mrs. Zodelava testified that she became a 

Jehovah’s Witness in May 2001. Mrs. Zodelava explained that, as her practice came to

be known in the community, her Christian Orthodox neighbors started to treat her with

hostility, and her son was harassed at school. Mrs. Zodelava then recounted four specific

acts of aggression that she attributes to Christian Orthodox extremists. First, in

September 2002, her husband’s car was bombed while parked in a lot in their home town. 

According to Mrs. Zodelava, one of the parking lot attendants told her that he had

witnessed two young men throw a bomb at the car, shouting “you deserve it.” (A.R.

000172.) Mrs. Zodelava explained that the police arrived at the scene of the explosion,

but never conducted an investigation. A second incident took place in November 2002

when a group of approximately 20-30 people raided a Jehovah’s Witnesses meeting

taking place at a friend’s home. During the raid, Mrs. Zodelava was hit with a stick but

was not seriously injured. Next, in December 2002, a group of individuals accosted her

husband in the hallway outside of their apartment, punched him in the face, and told him
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to leave town. Several days later, someone threw a stone through the window of the

Zodelavas’s apartment. Attached to the stone was a note reading, “You Jehovah’s

Witnesses[,] you traitors of god get out of here.” (A.R. 000172.) Mrs. Zodelava testified

that she did not speak to the police about these latter incidents because she did not think

they would help her family.

Mr. Zodelava also testified at the hearing. He described the events surrounding the

raid in November 2002 and the altercation he had in his hallway the following month.

Zodelava also provided his account of the car bombing, and stated that the police

informed him that they would attempt to make an arrest, but failed to do so.

Following the hearing, the IJ denied Petitioners’ applications for relief. The IJ

found that Petitioners were not credible because their stories contradicted each other,

themselves, and their affidavits. The IJ further found that, even assuming that the

Petitioners were credible, Mrs. Zodelava failed to meet her burden of proof with respect

to her applications for asylum, withholding of removal, or relief under the CAT. By order

issued April 30, 2007, the BIA affirmed the IJ’s decision insofar as it held that Mrs.

Zodelava failed to meet her burden of proof; the BIA did not address the IJ’s adverse

credibility determination. The present petition for review followed. 

II.

We have jurisdiction to review final orders of removal pursuant to 8 U.S.C.

§ 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001). We review the
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BIA’s decision for substantial evidence. See Abdille v. Ashcroft, 242 F.3d 477, 483-84

(3d Cir. 2001). Under this standard, we will uphold the Board’s findings unless the

evidence not only supports a contrary conclusion, but compels it. See id. 

An applicant may demonstrate eligibility for asylum by showing either past

persecution or a well-founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion. 8 U.S.C.

§ 1101(a)(42)(A); 8 U.S.C. § 1158. To establish past persecution, an applicant must

show: “(1) one or more incidents rising to the level of persecution; (2) that is ‘on account

of’ one of the statutorily-protected grounds; and (3) is committed either by the

government or by forces that the government is either unable or unwilling to control.” 

Toure v. Att’y Gen., 443 F.3d 310, 316-17 (3d Cir. 2006) (quoting Mulanga v. Ashcroft,

349 F.3d 123, 132 (3d Cir. 2003)). Our definition of persecution is narrow; it includes

“threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). 

Thus, “persecution does not encompass all treatment that our society regards as unfair,

unjust, or even unlawful or unconstitutional.” Id. 

To establish a “well-founded fear” of future persecution, an applicant must show

both a “subjectively genuine fear of persecution and an objectively reasonable possibility

of persecution.” Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006). To satisfy

the objective prong, an applicant must show that she would be individually singled out for
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persecution, or that there is a “pattern or practice” of persecution of similarly situated

persons. 8 C.F.R. § 208.12(b)(2)(iii)(A). To qualify as a “pattern or practice,” the

persecution must be “systemic, pervasive, or organized.” Lie v. Ashcroft, 396 F.3d 530,

537 (3d Cir. 2005).

Upon review of the record, we conclude that substantial evidence supports the

BIA’s finding that Mrs. Zodelava failed to demonstrate either past persecution or a wellfounded fear of future persecution. First, with respect to her claim of past persecution,

the BIA correctly concluded that none of the incidents described above is severe enough

to rise to the level of persecution under the INA. See Voci v. Gonzales, 409 F.3d 607,

615 (3d Cir. 2005) (“[O]ur cases suggest that isolated incidents that do not result in

serious injury do not rise to the level of persecution.”); Lie, 396 F.3d at 536 (holding that

“two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the

theft of some personal property and a minor injury, [are] not sufficiently severe to be

considered persecution”). Moreover, as the BIA explained, even assuming that the most

extreme incident, the car bombing, did amount to an act of persecution, there was no

evidence that it was religiously motivated; the fact that the parking lot attendant allegedly

heard the car-bombers yelling “you deserve it” does not establish that the attack was “on

account of” Mrs. Zodelava’s religion. For these reasons, we conclude that the BIA’s

determination that Mrs. Zodelava failed to demonstrate past persecution is supported by

substantial evidence.
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We also conclude that substantial evidence supports the BIA’s finding that Mrs.

Zodelava failed to prove that she has a well-founded fear of future persecution, as she did

not allege that she would be singled out for persecution, and the evidence in the record

does not establish that there is a pattern or practice of persecution of Jehovah’s Witnesses

in Georgia. See Ghebrehiwot, 467 F.3d at 351. Although the record suggests that there is

some discrimination and harassment against Jehovah’s Witnesses in Georgia, the 2004

County Report on Georgia states that there was a general decline in violence against the

religion, and that the government officially promotes religious tolerance. Moreover, this

violence appears to have been primarily wrought by fellow citizens and not the result of

governmental action or acquiescence. See Lie, 396 F.3d at 537 (explaining that “violence

or other harm perpetrated by civilians against the petitioner’s group does not constitute

persecution unless such acts are committed by the government or forces the government

is either unable or unwilling to control”) (internal quotations omitted). In light of these

considerations, we are not compelled to find that the record establishes a pattern or

practice of persecution against Jehovah’s Witnesses. 

Given that Mrs. Zodelava has failed to establish either past persecution or a wellfounded fear of future persecution, the BIA correctly determined that she necessarily

failed to meet the higher burden required for withholding of removal. See GomezZuluaga v. Att’y Gen., 527 F.3d 330, 348-49 (3d Cir. 2008). The BIA also correctly

determined that Mrs. Zodelava did not meet the criteria for relief under the CAT because
7

she failed to establish that it was more likely than not that she would be tortured if

removed to Georgia. 8 C.F.R. § 208.16(c)(2). 

For the foregoing reasons, and because we conclude that Mrs. Zodelava’s

remaining arguments are without merit, we will deny the petition for review.