Joyce Mushayahama v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0436n.06
FILED
No. 10-3874
Apr 24, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JOYCE MUSHAYAHAMA, )
)
Petitioner, )
) ON PETITTION FOR REVIEW
v. ) FROM THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General, )
) OPINION
Respondent. )
)
Before: COLE and MERRITT, Circuit Judges, and VARLAN, District Judge.*
THOMAS A. VARLAN, District Judge. Petitioner Joyce Mushayahama (“Mushayahama”)
seeks review of a decision of the Board of Immigration Appeals (“BIA”) affirming the decision of
the Immigration Judge (“IJ”). Mushayahama, a native and citizen of Zimbabwe, entered the United
States as an authorized visitor on November 17, 1999. She remained in the United States after her
authorization ended on May 16, 2000, and she applied for asylum with the Department of Homeland
Security (“DHS”) on February 1, 2006. After conducting a hearing, Immigration Judge Brian M.
O’Leary issued a decision, ordering that Mushayahama’s application for asylum be denied as
untimely, her application for withholding of removal under the Immigration and Nationality Act
(“INA”) § 241(b)(3) be denied, and her application for withholding of removal under the Convention
*
The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
Against Torture (“CAT”) be denied. The IJ granted her application for voluntary departure in the
alternative of removal, pursuant to INA § 240B(b), ordering that she depart within sixty (60) days.
The BIA affirmed the IJ’s decision, dismissing Mushayahama’s appeal. Mushayahama then timely
filed this petition for review. For the reasons set forth below, we DENY the petition for review of
the BIA’s denial of Mushayahama’s application for asylum and withholding of removal claims under
the INA, but we GRANT the petition as to the CAT claim and REMAND to the BIA for further
proceedings.
I. BACKGROUND1
Mushayahama was born in Harare, Zimbabwe in 1958. Mushayahama entered the United
States as a non-immigrant visitor on November 17, 1999, with authorization to remain in the country
until May 16, 2000. Mushayahama remained in the United States after 2000 without authorization
from the DHS. Mushayahama is single and has one son, who lives in Chigungwiza, Zimbabwe, with
Mushayahama’s parents. Mushayahama has two brothers and two sisters, and she had a third
brother, who is now deceased.
In Zimbabwe, Mushayahama and her family were forced to join the Zimbabwe African
National Union-Patriotic Front (“ZANU-PF”), the ruling party in Zimbabwe. Despite the fact that
she does not support the party, Mushayahama joined the ZANU-PF in 1981, paying membership
dues and obtaining a membership card. Mushayahama felt compelled to attend meetings because
1
The factual background is based upon Mushayahama’s testimony at the July 18, 2007
hearing before the IJ, which he expressly found credible. The IJ found Mushayahama’s testimony
about the events sufficiently “detailed, plausible, and consistent with her application and with known
background conditions in Zimbabwe,” and “sufficient to meet [her] burden of proof.” (A.R. at 62);
see also INA § 240(c)(4)(C); 8 C.F.R. § 1208.13(a). Accordingly and because neither party
challenges the facts as testified by Mushayahama, we accept this factual background for purposes
of this petition.
2
the ZANU-PF took attendance at its meetings and remained informed of which individuals attended
the meetings, intimidating or harming the person or property of those who were absent. While
attending meetings, Mushayahama “did not speak out in opposition to the ruling party or question
the political leaders.” (A.R. at 57). ZANU-PF officials were not aware that Mushayahama did not
support the party while she lived in Zimbabwe, as she continued to attend party meetings and pay
her party membership dues.
In 1977, prior to Mushayahama’s personal membership in the ZANU-PF, four armed men
dressed in uniforms knocked on the door of Mushayahama’s family’s home late at night. The men
forcibly entered her home, pointing guns at the family and using batons to force the family out of
their home. When the family got outside, they noticed that one of Mushayahama’s brothers was not
with them. As her brother came out of the house, the soldiers had firearms pointed at him.
Mushayahama’s family pleaded with the men not to shoot, and the soldiers warned her brother to
be careful next time the soldiers came to the house. Without any kind of search or arrest warrants,
the men searched the house while the family waited on the ground outside. The men eventually left
and warned the family not to report the incident to the police. Mushayahama believes that her
parents were already members of the ZANU-PF at the time of the incident. While she was away at
school, Mushayahama’s parents’ home had been searched in a similar manner four times previous
to the incident in 1977.
While Mushayahama was away at teacher training college, her brother, Ricky, died under
mysterious circumstances at the age of nineteen. Mushayahama’s family informed her that her
mother woke up late at night and discovered that Ricky was not inside the house. Mushayahama’s
mother and the other members of her family searched for Ricky, and Mushayahama’s sister
3
discovered his dead body in the toolshed. Ricky’s body was standing on the floor with a rope
attached to the ceiling of the shed and loosely hanging on him, with blood on his private parts. The
positioning of the body led Mushayahama’s family to believe that he was murdered and did not
commit suicide. No one was ever arrested as responsible for Ricky’s death, and Mushayahama does
not know who killed Ricky. Mushayahama’s family suspected that he was murdered by ZANU-PF
supporters because the police did not rigorously investigate the case.
In 1987, Mushayahama was raped by an unidentified man, who threatened her with a knife
and threatened her family if she reported the incident. Mushayahama’s family moved because of the
rape, and she became pregnant and gave birth to her son as a result of the attack. Mushayahama does
not know who committed the rape, but she believes the individual to have been a ZANU-PF
supporter because party supporters often committed crimes and hid behind the ruling government.
Mushayahama was employed as a certified primary school teacher for over eighteen years
in Zimbabwe, from 1981 until 1999. On her first day teaching at a school in Nyanwandoro,
Zimbabwe, a man came into the school’s office with an empty beer bottle, closed the door with
Mushayahama and the school’s deputy headmaster inside, and recited the ZANU-PF party slogan.
The man then broke the bottle on a table and injured the deputy headmaster with it. The deputy
headmaster sustained injuries, which led to his hospitalization. Mushayahama believes that the
police took no action after they were called, such as arresting or prosecuting the man, because he was
a ZANU-PF supporter.
Later while teaching, in 1997, Mushayahama was called to the headmaster’s office at the
school where she taught because a first-grade student had drowned, and the parents of a fourth-grade
student, who were strong supporters of the ZANU-PF, reported that Mushayahama had encouraged
4
their son to drown the first-grader. The headmaster was aware that Mushayahama had no
involvement in the drowning, but he encouraged her to sign a statement admitting responsibility,
Mushayahama believes, because he feared the fourth-grade student’s family’s connections to the
ZANU-PF. Mushayahama refused to sign a statement, and although they did not physically harm
or threaten her, the parents of the fourth-grade student harassed her about the situation for three
months.
Additionally, in 1998, a clerk from the same school was beaten by what Mushayahama
believed to be a mob of ZANU-PF supporters. The other teachers and students hid and were
frightened by the incident, and no members of the mob were ever arrested or prosecuted.
Mushayahama believes that her status as a teacher makes her more likely to be harmed in Zimbabwe
because teachers are targeted by the ZANU-PF.
Mushayahama obtained a travel and visitor’s visa through a travel agent and left Zimbabwe
for the United States in November 1999. Mushayahama never extended her visa and has remained
in the United States since her initial entry into the country in 1999. Mushayahama did not return to
Zimbabwe when her six-month visa ended because she was frightened that she would be tortured
if she went back. Shortly after her arrival in the United States, Mushayahama lived with a family
who represented that they wanted to assist her, but they required her to work for them without
payment.
In May 2002, Mushayahama attempted to apply for political asylum while she was living in
a shelter.2 She met a pastor, who claimed that he would assist her, and she paid him $560.00 to do
2
Mushayahama did not provide a copy of the 2002 asylum application. She informed the IJ
that her former attorney retained her copy of the application.
5
so. After the pastor mailed the application for her, the application was returned because it contained
insufficient information. When Mushayahama informed the pastor that the application was returned,
he informed her that he would need $5,000.00 more to continue assisting her. Mushayahama did not
have sufficient funds to pay the pastor for his continued assistance, and she did not attempt to apply
for asylum again until 2005. She claims that the delay between the 2002 attempt and the current
application, filed in 2006, is attributable to the fact that she had no one to assist her, and she believed
at the time that she needed someone to obtain the asylum application for her. Mushayahama is able
to read and write English.
Mushayahama fears returning to Zimbabwe because she has watched the news from
Zimbabwe while in the United States, and she has seen reports that opposition supporters are tortured
by ZANU-PF party members. Mushayahama fears being beaten, raped, electrocuted, or killed, if she
returns. She will not be allowed to criticize the government if she returns to Zimbabwe, and she
believes the fact that she has been absent from the country for so long will raise the ZANU-PF party
members’ suspicions. Mushayahama believes the government monitors telephone and other forms
of communication in Zimbabwe, and she thus does not speak with her family members remaining
in Zimbabwe about the ruling party over the telephone. Mushayahama believes she would not be
safe in any part of Zimbabwe because the ZANU-PF presence is everywhere, and political violence
occurs throughout the country.
The IJ addressed the following issues in his April 14, 2009 decision: “1) the one-year bar;
2) past persecution; 3) clear probability of future persecution; 4) nexus; 5) relief under CAT; and 6)
voluntary departure.” (A.R. at 53). First, the IJ found that Mushayahama’s testimony regarding the
searches of her home, her brother’s death, the events related to the schools in which she worked, and
6
her rape was “detailed, plausible, and consistent with her application and with known background
conditions in Zimbabwe.” (A.R. at 62; see INA § 240(c)(4)(C)). Because the DHS did not point to
a specific reason to doubt Mushayahama’s testimony and because her testimony contained only
minor inconsistencies insufficient to undermine her credibility, the IJ found her “testimony credible
and sufficient to meet [her] burden of proof.” (Id. (citing 8 C.F.R. § 1208.13(a)).
As to the one-year deadline for filing an application for asylum, the IJ addressed
Mushayahama’s argument that “extraordinary circumstances” should excuse the delay in the filing
of her application. The IJ found that given Mushayahama’s experiences in Zimbabwe and the fact
that she was living in shelters and as an “unpaid domestic servant in an exploitative situation” when
she arrived in the United States, Mushayahama’s “unique situation constitutes ‘extraordinary
circumstances’” under 8 C.F.R. § 1208.4(5). (A.R. at 63). The IJ found, however, that
Mushayahama did not sufficiently explain why she delayed so long in re-applying for asylum from
the return of her May 2002 application until the end of 2005, when she started working with an
attorney on her instant claim, particularly given her knowledge of the application process for asylum,
which the IJ determined she gained form her “original exposure to the system.” (Id.). The IJ thus
found that Mushayahama did not re-apply within a reasonable time, as required, and that she is
ineligible to apply for asylum because her present claim was not timely filed.
The IJ next addressed Mushayahama’s application for withholding of removal pursuant to
INA § 241(b)(3). Mushayahama sought withholding of removal by claiming that she suffered past,
and is likely to suffer future, persecution in Zimbabwe on account of her imputed political opinion,
because she was not an ardent ZANU-PF supporter, and because of her membership in two particular
social groups: “female teachers who are not active party supporters” and “citizen[s] returning to
7
Zimbabwe after a long residence abroad.” (Id.). The IJ determined that Mushayahama’s experiences
in Zimbabwe did constitute past persecution, by cumulatively rising to the required level of directly
threatening Mushayahama’s life and freedom. However, the IJ found that Mushayahama was
“unable to demonstrate that she was harmed on account of her imputed political opinion” because
she did not satisfactorily explain why the government would believe that she was reluctant to support
the ZANU-PF, when she never spoke out in opposition to the government or openly took actions
against it. (Id. at 64). The IJ then went through each of the instances in Zimbabwe and described
how Mushayahama did not sufficiently demonstrate that the instances happened because she or her
family were targeted by the ZANU-PF. Accordingly, the IJ did not find a sufficient nexus between
Mushayahama’s imputed political opinion and the past persecution she suffered for purposes of
withholding of removal under INA § 241(b)(3).
As to the social groups that Mushayahama claimed membership in, the IJ rejected both. The
IJ determined that the proposed group of “female teachers who are not party supporters,” while
sufficiently well-defined to delimit membership,3 lacks a shared immutable or fundamental
characteristic because the group members could change their profession to avoid persecution and
lacks social visibility because the group members would not be identified in the community at large,
while outside the classroom, as members of the group. (A.R. at 65). Moreover, the IJ found that
Mushayahama’s opposition to the ZANU-PF would not be recognizable to society at-large in
Zimbabwe because she was a member of the party, attended meetings, and never manifested her
3
While the IJ’s decision first, in a dismissive fashion, lists that this social group is not “clearly
delimited” as a reason supporting his finding that the group is insufficient for purposes of INA §
241(b)(3), the IJ later writes that the social group is sufficiently particularized to delimit
membership. (A.R. at 65, 66).
8
opposition to the party. The IJ likewise determined that “citizens returning to Zimbabwe after a long
residence abroad” was an insufficient social group to confer eligibility for withholding of removal
under INA § 241(b)(3). (Id. at 66–67). This finding was based on the fact that while this group
shares the immutable characteristic that members cannot change the fact that they have lived abroad,
Mushayahama did not demonstrate that this proposed group is sufficiently socially visible and
delimited because Mushayahama did not suggest a length of time away or a manner of return to
Zimbabwe necessary to qualify for membership in the group.
As the IJ determined that Mushayahama did not establish past persecution on account of a
protected ground, he found that she did not enjoy a regulatory presumption of a clear probability of
future persecution and that she bore the burden of proving a clear probability of future persecution
on the basis of a protected ground. The IJ found that Mushayahama did not meet her burden because
she did not propose a legally cognizable social group. The IJ also rejected Mushayahama’s
arguments that there was a clear probability of future persecution based on her imputed political
opinion opposing the ruling party, which she argued the ZANU-PF would be aware of because of
her secret exit from Zimbabwe, her over ten-year residence in the United States, and the fact that she
has been missing the ZANU-PF meetings during the period she has been abroad.
The IJ further determined that the Department of State Country Report for Zimbabwe in 2007
(the “Country Report”), in the record before the IJ, which Mushayahama attached as an exhibit in
support of her claim that her citizenship would be revoked upon her return under the Zimbabwe
Citizenship Act (the “Citizenship Act”), did not apply to her in the way that she asserted it did. The
IJ found that “[t]he Country Report strongly suggests that citizens are subject to denaturalization
after a five-year absence from the country only if they also hold foreign citizenship.” (A.R. at 67).
9
The IJ pointed out that Mushayahama did not provide evidence of any instance where a citizen of
Zimbabwe had her citizenship stripped, and further noted that Zimbabwe may regulate its citizenship
as long as its regulations remain consistent with international law. Therefore, Mushayahama could
not show that she would be subject to the Citizenship Act and stripped of her Zimbabwean
citizenship upon her return.
The IJ rejected Mushayahama’s claim that she is eligible for withholding of removal under
the CAT because she did not “prove that it is more likely than not that she will be detained.” (Id.
at 68). Mushayahama claimed that she would be detained, arrested, or tortured if she returns to
Zimbabwe. The IJ’s conclusion rested on the fact that Mushayahama did not offer any evidence to
show that she would be detained at the airport upon arrival or that the government in Zimbabwe
regularly detains individuals returning from the United States or other countries. The IJ thus
determined that Mushayahama did not show any reason why the ZANU-PF would have an interest
in her specifically after her long absence.
Finally, the IJ granted Mushayahama’s application for voluntary removal because
Mushayahama had been of good moral character for the requisite period, because the IJ had no
reason to believe she was an aggravated felon or a danger to the United States, and because she
indicated that she was willing and able to depart if so required.
Applying a de novo standard of review, the BIA affirmed the IJ’s finding that although she
showed “extraordinary circumstances,” Mushayahama did not adequately show that the delay in
filing her application for asylum was reasonable. (A.R. at 3). The BIA likewise affirmed the IJ’s
finding that Mushayahama did not show that “any past persecution was, or future persecution would
be, on account of a protected ground under the Act.” (Id.). Specifically, the BIA found that
10
Mushayahama did not demonstrate that she would be targeted on account of her political opinion as
she admitted that she was never detained or tortured by the ZANU-PF, she provided no evidence to
indicate that the incidents that she described as having occurred in Zimbabwe were politically
motivated, she did not show that the ruling party would think of her as an opposition supporter, and
she did not show that she would more likely than not be harmed upon her return.
Additionally, like the IJ, the BIA found that the social groups proposed by Mushayahama
were not sufficiently recognizable in society and that Mushayahama did not sufficiently show that
it is more likely than not that she would be persecuted on the grounds of her membership in the
proposed groups. The BIA dismissed the proposed group of female teachers opposed to the
government for lack of evidence that the government would see her as a member of that group. With
respect to the proposed social group of those returning after long stays abroad, the BIA addressed
the Citizenship Act and cited to an online copy of the act to show that Mushayahama does not fall
into the category of those who lose citizenship under it, primarily because she was born in Zimbabwe
and attained her Zimbabwean citizenship through birth. Finally, as to the CAT claim, the BIA found
that “the record does not indicate that it is more likely than not that [Mushayahama] will face torture
by or with the acquiescence (to include the concept of willful blindness) of a member of the
government of Zimbabwe upon her return to that country.” (A.R. at 5 (citing Amir v. Gonzales, 467
F.3d 921, 927 (6th Cir. 2006); 8 C.F.R. §§ 1208.16-12.08.18)).
This petition for review from the BIA’s decision followed.
II. ANALYSIS
A. Standard of Review
11
Where the BIA reviews the IJ’s decision and issues a separate opinion instead of summarily
affirming the IJ’s decision, we review the BIA’s decision as the final agency determination. See
Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citing Morgan v. Keisler, 507 F.3d 1053, 1057
(6th Cir. 2007)). However, to the extent the BIA adopts the IJ’s reasoning, we also review the IJ’s
decision. Patel v. Gonzales, 470 F.3d 216, 218 (6th Cir. 2006). We review questions of law de
novo, with substantial deference given “to the BIA’s interpretation of the INA and accompanying
regulations.” Morgan, 507 F.3d at 1057 (citing Sad v. I.N.S., 246 F.3d 811, 814 (6th Cir. 2001)).
We review the factual findings of both the IJ and the BIA under a substantial evidence
standard. Khalili, 557 F.3d at 435 (citing Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007)).
Accordingly, the factual findings “are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary . . . .” 8 U.S.C. § 1252(b)(4)(B).
B. Eligibility to for Asylum4
As set out in Almuhtaseb v. Gonzales, we are barred from reviewing asylum applications
denied for untimeliness when the petition seeks review of discretionary or factual questions. 453
F.3d 743, 748 (6th Cir. 2006). We have jurisdiction to review appeals for denials of untimely
asylum applications only when the appeal involves “constitutional claims or matters of statutory
construction.” Id. In this case, the BIA agreed with the IJ’s finding that Mushayahama had
4
Pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, Mushayahama submitted
a supplemental letter and citation on February 23, 2012. See Fed. R. App. P. 28(j). In this letter,
Mushayahama, citing Matter of L-S-, 29 I. & N. Dec. 705 (BIA 2012), for the first time asserts that
she is entitled to “humanitarian asylum” under 8 C.F.R. § 1208.13(b)(1)(iii)(A) or (B), if the court
finds that she is ineligible for all other requested forms of relief. Because we find that her asylum
claim is time barred and because Mushayahama raises this argument for the first time in
supplemental briefing after oral argument on her appeal, we cannot consider this argument. Liti v.
Gonzales, 411 F.3d 631, 641 (6th Cir. 2005).
12
sufficiently shown “extraordinary circumstances,” which could excuse her failure to file an
application for asylum within one year of arriving in the United States, pursuant to INA §
208(a)(2)(B), (D), 8 U.S.C. § 1158(a)(2)(D). The BIA also agreed with the IJ, however, that
Mushayahama did not sufficiently show that “the alien filed the application within a reasonable
period given those circumstances.” (A.R. 3, 63; see also 8 C.F.R. § 1208.4(a)(5)).
Mushayahama admits that the issue of the reasonableness of the delay as determined by the
BIA and IJ “is beyond the review of this Court,” but “she maintains her eligibility for asylum for the
record and includes the information on asylum [in her brief] because it is so closely linked to the
related request for withholding of removal, which the Court can review.” (Pet’r Br. 22, n.2).
Respondent correctly argues that Mushayahama makes no constitutional or statutory construction
claim related to her application for asylum in her petition for review and that this Court lacks the
jurisdiction to review the BIA’s dismissal of Mushayahama’s application for asylum for failure to
file it within a reasonable time given the “extraordinary circumstances” she faced. See Almuhtaseb,
453 F.3d at 748. Accordingly, we do not have jurisdiction to consider Mushayahama’s claim insofar
as it relates to asylum, and Mushayahama’s petition for review is denied with respect to her asylum
claim.
C. Withholding of Removal under the INA
Mushayahama argues that the BIA and the IJ improperly denied her application for
withholding of removal pursuant to INA § 241(b)(3). Withholding of removal is mandatory if the
applicant establishes that her “life or freedom would be threatened in [the proposed country of
removal] on account of race, religion, nationality, membership in a particular social group, or
political opinion.” I.N.S. v. Stevic, 467 U.S. 407, 411 (1984) (citing 8 U.S.C. § 1253(h)(1)). As to
13
the burden of proof for establishing eligibility for withholding of removal under INA § 241(b)(3),
“[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without
corroboration.” 8 C.F.R. § 1208.16(b). Section 8 C.F.R. 1208.16(b)(1)(i) further provides:
If the applicant is determined to have suffered past persecution in the proposed
country of removal on account of race, religion, nationality, membership in a
particular social group, or political opinion, it shall be presumed that the applicant’s
life or freedom would be threatened in the future in the country of removal on the
basis of the original claim.
If the fear of future threat to life or to an individual’s freedom did not result from past
persecution, or if the applicant has not suffered past persecution, an applicant may still establish that
it is “more likely than not that he or she would be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion” if removed back to the country. 8
C.F.R. § 1208.16(b)(2). An applicant is not required to prove that she would be singled out
individually if the applicant “establishes that in that country there is a pattern or practice of
persecution of a group of persons similarly situated to the applicant on account of race, religion,
nationality, membership in a particular social group, or political opinion,” and that establishes her
inclusion in and identification with the group to the extent that it is more likely than not that her life
or freedom would be threatened if she returns to the country. 8 C.F.R. § 1208.16(b)(2).
Mushayahama claims that the BIA’s and IJ’s decisions were based on “an erroneous view
of the law and upon factual conclusions unsupported by substantial evidence.” (Pet’r Br. 22).
1. Political Opinion
Mushayahama argues that she was persecuted on account of her political opinion and that this
is evidenced by the fact that every incident of persecution she suffered was “either suspected or
confirmed to be at the hands of the government or supporters of the ZANU-PF.” (Pet’r Br. 27).
14
Mushayahama claims that her lack of additional support for the ZANU-PF beyond what was required
of her was visible and caused an “anti-ZANU-PF” political opinion to be imputed to her.
Mushayahama argues that because attendance is taken at the ZANU-PF party meetings, and she has
been away from Zimbabwe for over a decade, any suspicion that the government may have
previously had about her anti-ZANU-PF sentiments has been confirmed, and she will suffer
persecution on account of her political opinion in the future. Mushayahama also iterates that she
need only show that her political opinion, imputed or otherwise, was “one central reason” for the
persecution, and she contends that she has shown that. (Id. at 29 (citing INA § 1208(b)(1)(B)(i), 8
U.S.C. § 1158(b)(1)(B)(i))). Respondent argues that Mushayahama failed to establish that she
suffered past persecution on account of either her actual or imputed political opinion and that she
was “an unfortunate victim of criminal activity.” (Resp’t Br. 22, 27).
In demonstrating that an applicant has been persecuted on account of a political opinion or
membership in a particular social group, it is not enough for the applicant to present evidence that
she had the political opinion or was a member of that social group. See 8 U.S.C. § 1101(a)(42)(A).
The applicant must present evidence suggesting that she was persecuted on account of or because
of the political opinion. Id.; see also I.N.S. v. Elias-Zacarias, 502 U.S. 478, 479 (1992); Marku v.
Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004). The applicant need not provide direct proof of the
persecutor’s motive, but must show some evidence, either direct or circumstantial, indicating that
she was persecuted on account of her political opinion. Elias-Zacarias, 502 U.S. at 483; Marku, 380
F.3d at 987. The applicant “must show that ‘she acted based on a political opinion’ and that her
actions were ‘interpreted . . . as such’ by her alleged persecutors.” Bu v. Gonzales, 490 F.3d 424, 430
(6th Cir. 2007) (quoting Marku, 380 F.3d at 987). Although the Supreme Court has not decided
15
whether imputed political opinion can be a protected ground for purposes of withholding of removal,
this Court has held that it is one. Haider v. Holder, 595 F.3d 276, 284 (6th Cir. 2010).
While Mushayahama suffered through many horrible events while in Zimbabwe, she has not
proven that the past persecution she suffered was on account of or because of her political opinion,
either imputed or actual. The IJ found that Mushayahama’s experiences in Zimbabwe “rise to the
level of past persecution.” (A.R. at 63). However, no evidence was presented to suggest that the
ZANU-PF would have ever perceived Mushayahama as holding a political opinion opposed to the
ruling party. As the IJ and BIA both pointed out, by her own admission, Mushayahama never openly
opposed the ZANU-PF or spoke out against it. Given her lack of open opposition to the ruling party,
combined with her active membership in the party, paying dues and attending meetings, there is no
indication that the ZANU-PF would have had any inclination that Mushayahama did not support the
party. In fact, Mushayahama testified that she did not participate in demonstrations or organize
against the government because she knew that participating “was not right” and she “didn’t support
what [the demonstrators] were doing.” (A.R. at 99). When asked why she believes the government
would consider her an individual who did not support the government given her lack of open
opposition, she responded only that “they just suspect me as not a strong supporter.” (Id. at 99–100).
Whether Mushayahama privately and internally opposed the ZANU-PF is irrelevant if the ZANU-PF
themselves did not perceive her as a member of the opposition. See Adhiyappa v. I.N.S., 58 F.3d
261, 267 (“[T]he motives of the asylum seeker are relevant only to the extent that they illuminate the
motives of the alleged persecutors.”). Moreover, Mushayahama has not publicly opposed the
ZANU-PF in the more than a decade that she has resided in the United States.
16
That Mushayahama and her family suspected that many of the events that occurred in
Zimbabwe were politically-motivated is not sufficient to show that Mushayahama was persecuted
on account of her political opinion. Mushayahama presented no evidence that the search of her
family’s home was conducted for any reason in particular or that her family was singled out for such
an event; instead, Mushayahama testified that the soldiers were going “house to house to house”
because there was a “food riot” going on. (A.R. at 73). She likewise put forth no evidence, other
than personal suspicions, that her brother was killed by ZANU-PF supporters, particularly given that
he was not politically active, or that she was raped because of any political opinion she may have
had. (A.R. at 64). Mushayahama further testified that she had no knowledge of her rapist’s identity,
and nothing in the record leads to the conclusion that he was a government actor or ZANU-PF party
member. Moreover, while Mushayahama testified that the family who accused her of soliciting their
child to drown another student5 were strong ZANU-PF supporters, she presented no evidence to
indicate that the family had any knowledge of or reason to believe that she was not a ZANU-PF
supporter, or that the family singled her out to blame because of her lack of party support.
Accordingly, substantial evidence supports both the IJ and the BIA’s findings that Mushayahama has
not adequately demonstrated that she suffered past persecution on account of her actual or imputed
political opinion.
As to Mushayahama’s claim that she is more likely than not to suffer future persecution on
account of her political opinion, the Country Report indicates that “the government or its agents
5
While the IJ correctly characterized the evidence related to the incident involving the
student’s drowning (A.R. at 65), the BIA improperly wrote that “the couple who accused her of the
drowning death of their child,” (A.R. at 4). Mushayahama’s testimony indicated that she was
accused of encouraging the couple’s son to drown another student, rather than of drowning their son.
(A.R. at 111–15).
17
committed politically motivated killings during the year,” as well as “unlawful killings against
demonstrators,” and “politically motivated abductions.” (A.R. at 198–99). Most of the politically-
motivated crimes, however, appear to have been perpetrated against the Movement for Democratic
Change (the “MDC”)6 supporters. Mushayahama does not claim to support the MDC or that she has
ever publicly supported the MDC. While the current conditions in the country indicate that
Mushayahama is likely to encounter violence upon her return to Zimbabwe, as discussed below, she
has not proved that it is “more likely than not that [she] would be persecuted on account of . . . [her]
political opinion” if removed back to the country. 8 C.F.R. § 1208.16(b)(1)(ii); (b)(2). Additionally,
while she is not required to prove that she would be singled out individually if she can “establish[]
that in that country there is a pattern or practice of persecution of a group of persons similarly
situated to the applicant on account of [ ] political opinion,” such that it is more likely than not that
her life or freedom would be threatened if she returns, the Country Report’s indication that there is
widespread violence against MDC members does not assist Mushayahama with regard to persecution
on account of her political opinion, as she has not claimed membership in that group. See 8 C.F.R.
§ 1208.16(b)(2).
2. Proposed Social Groups
A social group is a group of persons who share a “common, immutable” and fundamental
characteristic that “either cannot [be] change[d], or should not be required to be change[d] because
it is fundamental to [the members’] individual identities or consciences.” Castellano–Chacon v.
6
The MDC is a political party in Zimbabwe, which opposes the ZANU-PF and the current
president, Robert Mugabe, promotes democratic elections, and has a current power sharing
arrangement with the ZANU-PF. (A.R. at 57, 100–101); see also Gotosa v. Mukasey, 286 F. App’x
292, 293 (6th Cir. July 11, 2008).
18
I.N.S., 341 F.3d 533, 546–47 (6th Cir. 2003) (internal quotation marks and alterations omitted).
Individuals in a proposed social group “must share a narrowing characteristic other than their risk
of being persecuted.” Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005).
a. Female Teachers Who Oppose the ZANU-PF
Mushayahama asserts that she was persecuted in the past on account of her membership in
the proposed social group of “female teachers who are not ZANU-PF supporters.” (Pet’r Br. 29).
Mushayahama argues that the IJ’s finding that the group is not sufficiently visible is not supported
by substantial evidence in the record. Mushayahama contends that female teachers opposing the
ZANU-PF are “clearly visible,” despite the finding by the IJ that her status as a teacher would not
be readily recognizable outside of the classroom, because female teachers are a distinct group
recognizable in Zimbabwe and because her lack of support for the ruling party is “visible by negative
implication” to those who expect great support for the party. (Id. at 30). Mushayahama also
disagrees with the IJ’s ruling that her profession as a teacher is not fundamental or immutable and
that she should be required to change it. By discussing the importance of the profession of an
educator, Mushayahama attempts to distinguish her case from the case of In re Acosta, where the
BIA found that the applicant could be required to change his occupation as a taxi driver. 19 I. & N.
Dec. 211 (BIA 1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (BIA
1987).
Respondent asserts that the BIA was correct in finding that Mushayahama has not previously,
nor will she in the future, be seen as opposing the ZANU-PF because she is a member of the party
and did not assert her opposition to the party while in Zimbabwe. Respondent points out that only
one of the incidents involving her position as a teacher, the family accusing her of involvement in
19
the drowning of a student, was directed at Mushayahama. Respondent discounts this event as
unrelated to Mushayahama’s membership in this proposed social group because “it appears [the
parents] were looking for a scape-goat for the other child’s death and likely chose her because of her
role as a teacher, which necessarily includes the supervision of students.” (Resp’t Br. 41).
Respondent further argues that the fact that Mushayahama was not personally harmed in the attack
on the deputy headmaster of her school or during the 1998 beating of the individual who worked at
her school shows that the incidents have no bearing on whether she was a member of her proposed
social group or was targeted because of that membership. Respondent takes the position, and we
agree, that we need not determine whether “female teachers opposed to the government or ruling
party” is a cognizable social group for purposes of withholding of removal because Mushayahama
has not demonstrated that she is a member of the group. (See id. at 42 n.9).
Because Mushayahama has not demonstrated that she openly opposed or spoke out against
the ZANU-PF in any way while in Zimbabwe, she has not established that she fits into her proposed
social group of female teachers opposed to the ruling party. Mushayahama’s traits of her gender and
political opinions opposing the ruling party are certainly immutable characteristics, which she either
cannot or should not be required to alter. While Mushayahama testified that she would be more
likely to suffer harm in Zimbabwe because of her profession as a teacher and described incidents
which took place either at a school where she worked or involved individuals with whom she
worked, Mushayahama provided no evidence that the events occurred because the victims were
teachers, because of their genders, or because they opposed the ZANU-PF. In fact, both the school
deputy who was attacked and the school clerk who was beaten were males, and Mushayahama did
not describe either of them as teachers. Accordingly, the only incident Mushayahama described
20
which deals with possible persecution of a female teacher is the accusation that she was involved in
the drowning of the first-grade student and, as described above, no evidence other than
Mushayahama’s testimony that the accusing couple were strong ZANU-PF supporters indicates that
the event was politically-motivated.
Even assuming, arguendo, unlike the IJ found, that this proposed group is sufficiently
socially visible as teachers and the possible group members’ profession is sufficiently immutable not
to require change, like the BIA found, Mushayahama still has not established that she either was
previously or would be in the future seen as a member of this group. She instead appeared to be a
party supporter while in Zimbabwe and thus would not have been seen in the past or would likely
be seen in the future by the ZANU-PF as a member of the proposed social group of female teachers
opposed to the government.
b. Citizens Returning to Zimbabwe After Long Stays Abroad
Mushayahama additionally argues that she is more likely than not to suffer future persecution
because her actions in fleeing the country without the knowledge or permission of the government
in Zimbabwe and applying for political asylum in the United States will show the ZANU-PF that she
is ideologically opposed to it if she returns. The IJ found that this proposed social group has the
immutable characteristic that the individuals are returning from long stays abroad, but determined
that the group is not sufficiently delimited or socially visible for purposes of withholding of removal.
Mushayahama contends that the group is delimited in terms of time to include only
Zimbabweans who remain outside of Zimbabwe for five years or longer. Mushayahama uses this
time restriction based on “the length of time after which the Zimbabwean government revokes the
citizenships of persons who have left the country.” (Pet’r Br. 34 (citing A.R. at 207)).
21
Mushayahama also argues that the group is sufficiently visible because those who return to
Zimbabwe after five years no longer retain citizenship, and those lacking citizenship are visible as
a distinct element of society.
As stated above, a “social group,” as defined by the BIA, must be a group of people sharing
a common, immutable characteristic, and the common defining characteristic must be one that the
individual members either cannot change or that is so fundamental to their identities that they should
not be required to change. In re Acosta, 19 I. & N. Dec. at 233; see also Castellano-Chacon, 341
F.3d at 546 (adopting the BIA’s definition of a “social group”). Sweeping and general classifications
will not usually constitute a social group for purposes of asylum or withholding of removal. See
Rreshpja, 420 F.3d at 555.
In this case, the BIA’s decision also discusses the importance of the element of “visibility”
and of being recognizable to others in the country at issue. (A.R. at 4). The BIA found that
Mushayahama did not adequately show that “she and other citizens returning to Zimbabwe after long
absences abroad would be ‘highly visible and recognizable’ by others in Zimbabwean society.” (Id.).
The BIA went on to find that even if she had proved that the group was sufficiently visible,
Mushayahama did not show that “it is more likely than not that she would be persecuted on such
ground, whether through the nation’s citizenship revocation law or through other means.” (Id.).
As the IJ found, this proposed social group has the immutable characteristic of having spent
time periods abroad. Even assuming, arguendo, that the group is sufficiently delimited to include
only individuals having been abroad for more than five years, as suggested by Mushayahama, the
group still lacks the requisite visibility to the Zimbabwean society at-large to constitute a social
group for the purposes of withholding of removal. Mushayahama seeks to rely on the Citizenship
22
Act as proof of her claims related to the adequacy of this proposed social group and her inclusion
in it; however, she did not provide the contents of the Act for inclusion in the record. As the IJ and
the BIA found, the Country Report’s brief mention of the contents of the Citizenship Act suggests
that only those with claims to dual citizenship who have failed to return to the country within a five
year period shall lose their Zimbabwean citizenship under the law. Mushayahama provided no
evidence, such as the Citizenship Act itself or its legislative history, to rebut this finding, and she has
not demonstrated that she has a claim to dual citizenship. See Matter of Soleimani, 20 I. & N. Dec.
99, 106 (BIA 1989) (placing the burden of proving the relevant application of foreign law on the
party asserting it).
In her petition for review, Mushayahama now claims that her due process rights were violated
by the BIA’s discussion of the Citizenship Act and its citation to the contents of the Citizenship Act
on an internet website without affording her the opportunity to respond. Mushayahama thus argues
that the BIA improperly took administrative notice of a contested fact and requests that the case be
remanded to allow her to submit rebuttal evidence on this issue. Respondent cites several BIA
decisions standing for the proposition that a party who wishes to rely on a foreign law bears the
burden of proof as to the content of the law. (Id. at 36); see Soleimani, 20 I. & N. at 106; Matter of
Ho, 18 I. & N. Dec. 152, 155 (BIA 1981); Matter of Annang, 14 I. & N. Dec. 502, 502 (1973).
Mushayahama did not submit the text of the Citizenship Act and instead, relies on a passage from
the Country Report, which briefly references the law.
The petitioner must have exhausted all of her administrative remedies for a federal court to
have jurisdiction over an appeal from an order of removal. 8 U.S.C. 1252(d)(1). This Circuit has
interpreted the exhaustion requirement to mean that the petitioner must “first argue the claim before
23
the IJ or the BIA before an appeal may be taken.” Csekinek v. I.N.S., 391 F.3d 819, 822 (6th Cir.
2004); Coulibaly v. Gonzales, 220 F. App’x 400, 401 (6th Cir. 2007) (declining jurisdiction where
there was “no evidence in the record that petitioner ever presented these claims to either the
Immigration Judge or the Board of Immigration Appeals”). The purposes of the exhaustion
requirement of § 1252(d)(1) are: “(1) to ensure that the INS, as the agency responsible for construing
and applying the immigration laws and implementing regulations, has had a full opportunity to
consider a petitioner’s claims; (2) to avoid premature interference with the agency’s processes; and
(3) to allow the BIA to compile a record which is adequate for judicial review.” Ramani v. Ashcroft,
378 F.3d 554, 559 (6th Cir. 2004) (citations and internal quotation marks omitted). Mushayahama
did not file a motion to reopen the BIA’s proceedings, as is required before obtaining judicial review
of the decision. See Dokic v. I.N.S., 899 F.2d 530, 532 (6th Cir. 1990). Moreover, Mushayahama
has not shown that the BIA would have found her proposed social group cognizable or that its
decision would have been at all affected had the BIA not looked to the contents of the Citizenship
Act. See Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005) (requiring an applicant claiming a
due process violation in removal proceedings to show “error and substantial prejudice” (quotation
marks and citations omitted)). Accordingly, no error that may have been committed by the BIA7
affected the outcome of the proceedings, and a remand on such grounds is not appropriate.
Regardless of whether the Citizenship Act would apply to Mushayahama upon her return to
Zimbabwe, she has not sufficiently demonstrated that she would be persecuted on account of her
having been absent from the country for the past decade. As Mushayahama has not proven that she
7
This is not to say that the BIA did err in discussing the contents of the Citizenship Act, as
it is permitted to take “administrative notice of commonly known facts such as current events or the
contents of official documents[.]” 8 C.F.R. § 1003.1(d)(3)(iv).
24
suffered past persecution because of her membership in this proposed group in the past,
Mushayahama does not enjoy the presumption that she would suffer persecution on account of her
membership in the group in the future. See 8 C.F.R. § 1208.16(b)(1)(i). Mushayahama provided
no evidence of other similarly situated returnees suffering persecution when returning to Zimbabwe.
The evidence in the Country Report, when taken with her testimony and the other documents in the
record, does not show that it is more likely than not that Mushayahama will be persecuted on account
of her membership in the proposed social group of citizens returning after long stays abroad. See
8 C.F.R. § 1208.16(b)(1)(ii); (b)(2).
In sum, substantial evidence supports the BIA’s finding that Mushayahama has not
established that she suffered past, or is more likely than not to suffer future, persecution on account
of her political opinion, real or imputed, or on account of her membership in either of the proposed
social groups. Accordingly, we deny Mushayahama’s petition for review as to her claim for
withholding of removal under INA § 241(b)(3).
D. Withholding of Removal under the Convention Against Torture
Mushayahama contends that the BIA and IJ erred in determining that she is not entitled to
protection under the Convention Against Torture.8 The applicant’s burden of proof to obtain relief
under the CAT is to show “that it is more likely than not that he or she would be tortured if removed”
to the country. 8 C.F.R. § 1208.16(c)(2). “Torture” is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act he or she or a third
person has committed or is suspected of having committed, or intimidating or
8
See Ali v. Reno, 237 F.3d 591, 596–97 (6th Cir. 2001), for a full description of the
ratification and implementation of the Convention Against Torture in the United States.
25
coercing him or her or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is 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.
8 C.F.R. § 1208.18(a)(1). As set out by this court in Mostafa v. Ashcroft,
[i]n determining whether an alien is entitled to protection under the Convention
Against Torture, all evidence relevant to the possibility of future torture in the
proposed country of removal shall be considered, including, but not limited to: past
torture inflicted upon the applicant; evidence that the applicant could relocate to
another part of the country of removal where he or she is not likely to be tortured;
gross, flagrant, or mass violations of human rights; and other relevant information
regarding conditions in the country of deportation.
395 F.3d 622, 625 (6th Cir. 2005) (alteration in original) (quoting Matter of G-A-, 23 I. & N. Dec.
366, 367 (BIA 2002) (en banc)); see also 8 C.F.R. § 1208.16(c)(3).
If an IJ determines that the applicant is more likely than not to be tortured upon return to the
country of removal, protection under the CAT should be granted. 8 C.F.R. § 1208.16(c)(4). Unlike
withholding of removal under the INA, no protected-ground nexus is required for relief under the
CAT. Almuhtaseb, 453 F.3d at 751. An application for relief under the CAT “focuses on the
particularized threat of torture,” rather than a link to race, nationality, religion, political opinion, or
membership in a social group, making it possible for a petitioner to succeed on her CAT claim
despite the denial of her INA-based claim for withholding of removal. Castellano-Chacon, 341 F.3d
at 551–52.
Mushayahama claims the IJ erred in denying her relief under the CAT because he misstated
her burden of proof under the CAT to say that she had to show that it was “more likely than not that
she will be detained” when she arrives in Zimbabwe, rather than that she must show that it is “more
likely than not” that she will be tortured in any way upon her return. (Pet’r Br. 38–39).
26
Mushayahama claims that the past persecution she was found to have suffered is equivalent to past
torture and that the past incidents are “great evidence of the likelihood of similar torture in the
future.” (Id. at 39 (citing 8 C.F.R. § 208.16(c)(3)). Mushayahama also points to her credible
testimony that she fears future torture in the form of beatings, rape, electrocution, or being killed if
she returns, as evidence that she will likely suffer torture. Mushayahama argues that her past
persecution, when taken together with the Country Report’s statements “that the government
engaged in serious and systematic violations of human rights,” that there were “politically-motivated
killings and disappearances,” and that “security forces regularly tortured detainees,” shows that it
is more likely than not that she will suffer torture if removed to Zimbabwe. (Id. at 39–40 (quoting
A.R. at 62)).
The panel in Mostafa found that the BIA failing to mention or discuss the relevant country
conditions outlined in the Country Reports in the record and discussed in an earlier BIA opinion, led
to the conclusion that the BIA “failed to analyze [the petitioner’s] Convention Against Torture claim
in light of relevant country conditions and applicable legal precedent.” 395 F.3d at 626. That panel
found that had the BIA considered “all evidence relevant to the possibility of future torture” in the
country, as the regulations require, the BIA may have decided the case differently. Id. (internal
quotation marks and citations omitted). The panel thus determined that it was appropriate to remand
the case to the BIA for proper consideration of the CAT claim. Id.(citing Zubeda v. Ashcroft, 333
F.3d 463, 477–78 (3d Cir. 2003); Kamalthas v. I.N.S., 251 F.3d 1279, 1283 (9th Cir. 2001); Mansour
v. I.N.S., 230 F.3d 902, 908 (7th Cir. 2000) (all opinions where the BIA’s failure to consider the
country conditions in its review of a torture claim required remand)); see also N’Diom v. Gonzales,
442 F.3d 494, 498 (6th Cir. 2006) (noting that “[t]here is no indication in the record before us that
27
the Immigration Judge or the Board took cognizance of the dire human rights situation in
Mauritania” and commenting that the BIA should explain its reasoning if it finds the “country reports
that explain torture, slavery, and other human rights violations” to be “unimportant or irrelevant to
the case”). Additionally, in Mapouya v. Gonzales, 487 F.3d 396, 414–15 (6th Cir. 2007), after
finding that the IJ erroneously made an adverse credibility determination, the panel addressed that
the IJ only briefly mentioned the petitioner’s CAT claim, stating that the evidence fell short of relief
under the CAT. In addition to the other errors in the IJ’s analysis related to the adverse credibility
finding, the Mapouya court found fault in the IJ’s failure to analyze the CAT claim “through the lens
of the four factors,” and determined that the claim needed to be remanded for proper analysis. Id.
at 415.
Here, the IJ found that Mushayahama suffered past persecution when he found her testimony
regarding her rape and other instances through which she was victimized to have been credible. The
widespread violations of human rights in the country of removal is a proper consideration when
determining whether relief under the CAT is appropriate, and the Country Report and other
documents in the record describe killings committed by the government or its agents, politically-
motivated abductions, excessive force by police in apprehending of detaining suspects, security
forces torturing citizens, arrests and beatings of civil protesters, reports of rapes by ZANU-PF
members, police, and military, abuse of prisoners, arbitrary arrests and detention by police, failure
by police to respond to vigilante violence, home searches and evictions by government security
forces without warrants or notice, and government restrictions on academic freedom. Nothing in the
record indicates that the conditions have improved since Mushayahama left Zimbabwe or since the
28
publication of the Country Report in the record, and respondent does not argue that the country
conditions have changed.
Despite the mass violations of human rights and other relevant evidence related to the
conditions in Zimbabwe contained in the record, neither the IJ nor the BIA discussed these
conditions in their analysis related to Mushayahama’s CAT claim. The BIA’s only mention of the
Country Report was in reference to Mushayahama’s attempted reliance on the Citizenship Act for
one of her proposed social groups for purposes of withholding of removal under the INA. While the
BIA’s brief dismissal of Mushayahama’s CAT claim suggests that it found the past persecution she
suffered insufficient to indicate that she is more likely than not to suffer torture in the future, this
determination did not take into account the conditions in the country of return which were in the
record for the BIA’s review. Moreover, not only did the IJ fail to discuss the relevant country
conditions, he also improperly misstated the appropriate CAT standard to imply that Mushayahama
must show that it is more likely than not that she will be detained upon arrival at the airport in
Zimbabwe.
We find that the BIA failed to consider “all evidence relevant to the possibility of future
torture” in Zimbabwe and that the BIA “might have adjudicated [Mushayahama’s] claim differently”
if it had. See Mostafa, 395 F.3d at 626 (quotation marks and citations omitted). Accordingly, it is
appropriate to remand Mushayahama’s claim to the BIA for proper consideration of all relevant
evidence related to future torture in the country of return.
We vacate the BIA’s denial of withholding of removal under the CAT and grant
Mushayahama’s petition for review as to this claim.
29
III. CONCLUSION
We DENY the petition for review with regard to Mushayahama’s claims for asylum and
withholding of removal under the INA, GRANT the petition with regard to Mushayahama’s claim
for CAT relief, and VACATE the decision of the BIA and REMAND for further proceedings.
30