Mambwe v. Holder

• Decision Date: 16 July 2009
• Docket Number: No. 08-1224.,08-1224.
• Citation: 572 F.3d 540
• Parties: Rose MAMBWE, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

572 F.3d 540

Rose MAMBWE, Petitioner, v. Eric H. HOLDER, Jr.,¹ Attorney General of the United States, Respondent.

No. 08-1224.

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2009.

Filed: July 16, 2009.

Herbert Igbanugo, argued, Katie Ann DeGrio, on the brief, Minneapolis, MN for petitioner.

Aliza Bessie Alyeshmerni, OIL, USDOJ, argued, Brendan P. Hogan, OIL, USDOJ, Washington, DC, on the brief, for respondent.

Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Rose Mambwe, a native and citizen of Angola, petitions for review of a decision of the Board of Immigration Appeals ("BIA") denying her application for asylum, withholding of removal, and protection under Article 3 of the Convention Against Torture ("CAT"). For the following reasons, we deny Mambwe's petition.

I. BACKGROUND

Mambwe entered the United States on or about June 10, 2000, as a nonimmigrant visitor with authorization to stay in this country until December 9, 2000. Although Mambwe is a citizen of Angola, she entered the United States using a Zambian passport, which she has since admitted was obtained by fraud. On September 25, 2000, Mambwe filed an application for asylum, withholding of removal, and protection under Article 3 of the CAT.

The former Immigration and Naturalization Service determined that Mambwe was not eligible for asylum and referred her application to an immigration judge ("IJ") to commence removal proceedings. In her master calendar hearing before the IJ, Mambwe admitted that she was removable under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States after December 9, 2000, without authorization. Mambwe sought relief based on allegations that she suffered past persecution in her native country of Angola as well as in Zambia, where she lived for more than fifteen years as a refugee. We have drawn the following narrative of events leading up to Mambwe's arrival in the United States from her testimony before the IJ, supplemented in places with details that appear only in her written application.

Mambwe was born in Lewa, Angola, on October 10, 1979. At the time, Angola was in the midst of a civil war between the Popular Movement for the Liberation of Angola ("MPLA") and the National Union for the Total Independence of Angola ("UNITA"), which would last for another twenty-three years. Mambwe reports that her ethnic or tribal group, the Mbundu, was known to be "aligned" with the MPLA.

In 1984, UNITA forces attacked Mambwe's village. Mambwe has not heard from her father or brothers since the attack, so she presumes that they were either conscripted into UNITA's military or killed. Mambwe and her mother fled Angola and eventually settled in the Meheba Refugee Camp near Solwezi, Zambia. Three years later, Mambwe's mother went to Angola to search for the rest of her family, leaving Mambwe in the care of a friend. Mambwe's mother never returned.

In 1991, Mambwe was raped by persons who she describes as "boys from the refugee camp." Soon thereafter, Mambwe learned that she was pregnant. On January 28, 1992, Mambwe gave birth to a daughter, Norah. Hoping to continue her schooling, Mambwe left Norah in the care of a Pentecostal minister named Tony Choni and went to live with two members of Choni's church, Matthew and Paula Chishemba, whom she calls foster parents. Mambwe's foster parents did not permit her to go to school; instead, they forced her to work on their farm in Zambezi, Zambia, and sometimes physically abused her. At some point in 1993, Mambwe ran away from her foster parents' farm and returned to Meheba, where she spent the next four years enrolled in the Meheba Secondary School for Refugees. After graduating from secondary school in 1997, Mambwe moved back to the farm.

In December 1997, Zambezi was attacked by a group of eight to ten men. Mambwe identified the attackers as members of UNITA's military because they were wearing camouflage pants and speaking languages that are common in Angola but rare in Zambia. During the attack, the UNITA soldiers decapitated Matthew Chishemba and cut off Paula Chishemba's hands. The soldiers then kidnapped Mambwe and took her across the border into Angola. Mambwe was held captive, along with several other women from Angola and Zambia, for two to three weeks. During that time, Mambwe was repeatedly raped and beaten. Mambwe and the other captives finally managed to escape into Zambia with the help of one of the soldiers.

Mambwe returned to Meheba once more, this time to live with Tony Choni and her daughter Norah. When Choni was transferred to Kitwe, Zambia, in early 1998, Mambwe went with him. Mambwe spent the next two years living in Kitwe with Norah, Choni, and Choni's wife, Christine. According to Mambwe, Choni made arrangements for her to travel to the United States in June 2000 using a Zambian passport that he acquired by falsely identifying Mambwe as a native and citizen of Zambia. Mambwe testified that when she left Zambia on or about June 8, 2000, she intended to stay in the United States.

The IJ denied Mambwe's application for asylum, withholding of removal, and protection under Article 3 of the CAT. After summarizing Mambwe's version of the facts and many of the documents contained in the administrative record, the IJ noted that there was "conflicting evidence" concerning Mambwe's credibility. Notwithstanding several potential red flags in the record, the IJ found that Mambwe's testimony was "generally credible." On the merits of Mambwe's claim for asylum, the IJ found that Mambwe met her initial burden by proving that UNITA's attack on her village in 1984 constituted past persecution on account of a protected ground. Although this meant that Mambwe was presumed to have a well-founded fear of future persecution in Angola, the IJ found that the Department of Homeland Security ("DHS")² rebutted the presumption by proving that there had been a fundamental change in circumstances in Angola: namely, the end of the civil war between the MPLA and UNITA in 2002. The IJ went on to find that the 1984 attack did not rise to the level of severity required to support a grant of "humanitarian asylum" in the absence of a well-founded fear of future persecution and that Mambwe was not eligible for asylum based on the other incidents that she described—the rape perpetrated by "boys from the refugee camp" in 1991 and the attack and kidnapping carried out by UNITA soldiers in 1997— because they did not involve persecution on account of Mambwe's race, religion, nationality, membership in a particular social group, or political opinion. Having denied Mambwe's claim for asylum, the IJ held that Mambwe failed to meet the higher burden of proof required to establish her eligibility for withholding of removal. Finally, the IJ found that Mambwe did not qualify for protection under the CAT because she failed to present any evidence tending to show that she would be tortured by or with the acquiescence of the Angolan government if she returned to Angola.

Mambwe appealed to the BIA, arguing that she suffered past persecution in Angola and Zambia, that changed conditions in Angola did not negate her fear of future persecution, and that even if she lacked a well-founded fear of future persecution she would still merit humanitarian relief. The BIA dismissed Mambwe's appeal in its entirety. First, the BIA agreed that Mambwe suffered past persecution in Angola, noting that the DHS had not challenged the IJ's finding that Mambwe met her initial burden by proving that UNITA's attack on her village in 1984 constituted past persecution on account of a protected ground. But the BIA found no clear error in the IJ's conclusion that the end of the civil war between the MPLA and UNITA in 2002 amounted to a fundamental change in circumstances that rebutted the presumption that Mambwe had a well-founded fear of future persecution in Angola. The BIA went on to hold that Mambwe was not eligible for humanitarian asylum because she "failed to establish compelling reasons for being unwilling or unable to return to Angola because of any harm that she suffered there on account of a protected ground." In particular, the BIA agreed with the IJ's finding that the 1984 attack did not rise to the level of severity required to support a grant of humanitarian asylum. With respect to the other incidents that Mambwe described, the BIA adopted the IJ's determination that the rape perpetrated by "boys from the refugee camp" in 1991 and the attack and kidnapping carried out by UNITA soldiers in 1997 did not involve persecution on account of Mambwe's race, religion, nationality, membership in a particular social group, or political opinion. The BIA therefore concluded that those incidents could not support a grant of humanitarian asylum. While the BIA noted that Mambwe "raise[d] no other arguments on appeal," it summarily affirmed the IJ's denial of her application for withholding of removal and protection under the CAT for the reasons identified by the IJ. The BIA granted Mambwe sixty days to voluntarily depart the United States before its alternate order of removal took effect.

Mambwe filed a timely petition for review of the BIA's decision, arguing that the denial of her application for asylum, withholding of removal, and protection under the CAT was erroneous in numerous respects.

II. DISCUSSION

Mambwe first challenges the denial of her claim for asylum. To establish her eligibility for asylum, Mambwe bore the burden of proving that she qualifies as a "refugee." See 8 U.S.C. § 1158(b)(1)(B). In this context, "refugee" is a term of art which refers to a person who is unable or unwilling to return to her country of nationality "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." Id. § 1101(a)(42)(A). Because the statutory definition makes the...