Mirisawo v. Holder
| Citation | 599 F.3d 391 |
| Decision Date | 17 March 2010 |
| Docket Number | No. 08-1704.,08-1704. |
| Parties | Rosemary MIRISAWO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
COPYRIGHT MATERIAL OMITTED
ARGUED: Virginia Leigh Hudson Nesbitt, McGuire-Woods, LLP, Richmond Virginia, for Petitioner. Paul Thomas Cygnarowicz, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, Daniel E Goldman, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C for Respondent.
Before NIEMEYER, GREGORY, and DAVIS, Circuit Judges.
Petition denied by published opinion. Judge NIEMEYER wrote the opinion, in which Judge DAVIS joined. Judge DAVIS wrote a separate concurring opinion. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.
Rosemary Mirisawo, a native and citizen of Zimbabwe, filed this petition for review of the Board of Immigration Appeals' decision affirming an immigration judge's removal order, ordering her removed from the United States to Zimbabwe.
A few months before Mirisawo's G-5 visa was about to expire, she sought to forestall her removal from the United States by claiming asylum and withholding of removal under the Immigration and Nationality Act ("INA") and protection under the Convention Against Torture ("CAT"). She based her claims on past economic persecution because her house in Zimbabwe had been substantially destroyed by the government as part of Operation Restore Order and on a likelihood of future persecution because of the possibility that the political opinions of family members and those living in her neighborhood would be imputed to her.
The immigration judge and the Board of Immigration Appeals ("BIA") denied Mirisawo's claims, holding that the destruction of her house did not rise to the level of economic persecution and that the lack of recent persecution of any of her close family members suggested that Mirisawo would not herself be subjected to persecution upon her return to Zimbabwe. From the BIA's decision, she filed this petition for review.
Because we conclude that the BIA's conclusions are sup-ported by substantial evi-dence, we deny Mirisawo's petition for review.
Rosemary Mirisawo was born in Harare Zimbabwe, in 1966 and lived there until she came to the United States in 1999. She came to the United States on a nonimmigrant G-5 visa to work as a housekeeper, leaving her children with family members in Zimbabwe. Mirisawo has worked as a housekeeper, both in Zimbabwe and the United States, since she was 20 and during this time, has lived in the homes of her employers. She has four children, as well as two brothers and eight sisters. The oldest of Mirisawo's children is a daughter named Tsitsi, who was born out of a rape by Mirisawo's uncle when Mirisawo was 14 years old. Since Tsitsi's birth, Mirisawo has been married twice. Her first marriage, which ended in divorce after two years, produced a daughter Mukhile. Her second marriage, which ended when her husband died in 1996, produced a son Teddy and a daughter Emily. All of her children now live with family members in Harare, Zimbabwe.
Mirisawo remained in the United States, employed as a housekeeper, until August 2002, when she returned to Zimbabwe for a month to visit family and to provide better accommodations for her children and brother, Tobias. A few months prior to her visit—in March 2002—Tobias had been severely beaten by supporters of the Zimbabwean government because he was an active member of the Movement for Democratic Change ("MDC"), a political party that opposed Robert Mugabe, the leader of the ZANU-PF party and the president of Zimbabwe for the last 29 years. Tobias was hospitalized following the beating and continues to receive medical treatment for his injuries. To avoid being associated with Tobias and his politi cal activities during her visit, Mirisawo stayed with her sister Maggie. During her stay, she purchased a home in Mabvuku, a suburb of Harare, for Tobias and her children.
While in Zimbabwe during this visit, Mirisawo did not experience any difficulties with the government—she was not stopped, questioned, harassed, or beaten. When she returned to the United States, she was again admitted on a nonimmigrant G-5 domestic employee visa, which authorized her to remain in the United States until November 8, 2005.
In May 2005, the Mugabe government began implementing Operation Restore Order, pursuant to which it destroyed thou sands of homes and buildings in Harare for the officially stated purpose of cleaning out urban slums. It was widely believed, however, that the operation was retributive, targeting areas known by the government to have voted for the opposition in presidential and parliamentary elections. In the course of Operation Restore Order, the government bulldozed three of the four rooms in the house that Mirisawo had purchased for Tobias and her children. Tobias and Mirisawo's son continued to live in the remaining room, while her other children went to live with Mirisawo's sister, Maggie.
According to the country report prepared by the United States Department of State in 2006, the human rights record of the Zimbabwean government was "very poor." The report noted that persons perceived to be opposition supporters were tortured, raped, and abused by government-sanctioned youth militia and rulingparty supporters and that the government "routinely used selective violence to achieve its political objectives."
Despite these conditions, Tobias, Mirisawo's daughter Tsitsi, and Mirisawo's sister Maggie continue to be members of the MDC. Since his beating in 2002, Tobias has not experienced any further threats or abuses. Tsitsi has never been harmed, but she was threatened into purchasing a ZANU-PF identification card. Maggie also has never been harmed or even threatened, although she keeps her membership in the MDC secret and does not live in the area of Harare where Mirisawo claims the government presumes all residents to be MDC members.
On August 3, 2005, some three months before her G-5 visa was to expire, Mirisawo filed an application for asylum with the Department of Homeland Security ("DHS"). After her visa expired, however, the DHS served her with a notice to appear, charging her with removability pursuant to 8 U.S.C. § 1227(a)(1)(B) as an alien present in the United States in violation of law.
At the removal proceedings before an immigration judge, Mirisawo acknowledged that she was removable, but she claimed eligibility for asylum on the grounds that she had suffered past persecution in that her house was destroyed and that she was likely to suffer future persecution upon return to Zimbabwe because the political opinions of her family members and of persons in her neighborhood would be imputed to her.* Mirisawo also claimed that she was eligible for withholding of removal for the same reasons. Finally, she requested protection under CAT.
The immigration judge held that the destruction of Mirisawo's house did not amount to past persecution because Mirisawo had never lived in the house nor depended on it for her livelihood. The immigration judge also held that she was not likely to face future persecution because she had not been harassed upon her return to Zimbabwe in 2002 and because none of her family members who remained in Zimbabwe had been harmed since Tobias' beating in 2002. Because Mirisawo had not satisfied the lower standard for claiming asylum, the immigration judge held that she did not meet the higher standard for withholding of removal. Finally, the immigration judge dismissed Mirisawo's CAT claim, as she did not show that it was probable that the government would torture her "for any reason." Accordingly, by order dated October 24, 2006, the immigration judge ordered Mirisawo removed from the United States to Zimbabwe.
On appeal to the BIA, Mirisawo argued only her asylum and withholding of removal claims. By decision dated May 29, 2008, the BIA affirmed the immigration judge's determinations and order. Mirisawo filed this petition for review of the BIA's decision.
The Attorney General is authorized to grant asylum to any one who is a "refugee" within the meaning of 8 U.S.C § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1). A "refugee" is defined as a person who is "unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [the person's home 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). The applicant for asylum bears the burden of establishing eligibility for asylum based on refugee status. 8 C.F.R. § 208.13(a); Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir.1999).
Accordingly, to establish eligibility for asylum, the applicant must demonstrate that she has suffered from past persecution or that she has a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b); Abdel-Rahman v. Gonzales, 493 F.3d 444, 449 (4th Cir.2007). And to establish a well-founded fear of future persecution, the applicant must demonstrate that "(1) a reasonable person in the circumstances would fear persecution; and (2) that the fear has some basis in the reality of the circumstances and is validated with specific, concrete facts." Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir.1992) (internal quotation marks omitted). "In other words, an asylum applicant must demonstrate a subjectively genuine and objectively reasonable fear of future persecution on account of a statutorily protected ground." Abdel-Rahman, 493 F.3d at 449.
While "persecution" is often manifested in physical violence, "the harm or suffering [amounting to persecution] need not be physical, but may take...
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