Mandebvu v. Holder

• Decision Date: 18 June 2014
• Docket Number: No. 11–3969.,11–3969.
• Citation: 755 F.3d 417
• Parties: Sheya MANDEBVU; Mtandazo Mandebvu; Tinotenda Mandebvu; Tatenda Mandebvu, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

755 F.3d 417

Sheya MANDEBVU; Mtandazo Mandebvu; Tinotenda Mandebvu; Tatenda Mandebvu, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–3969.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 4, 2012.

Decided and Filed: June 18, 2014.

ARGUED:Scott E. Bratton, Margaret Wong & Associates Co., LPA, Cleveland, Ohio, for Petitioners. Daniel I. Smulow, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Margaret Wong, Margaret Wong & Associates Co., LPA, Cleveland, Ohio, for Petitioners. Daniel I. Smulow, United States Department of Justice, Washington, D.C., for Respondent.

Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined. MERRITT, J. (pg. 434), delivered a separate concurring opinion. McKEAGUE, J. (pp. 434–38), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

For more than two decades, Robert Mugabe has exercised power as the repressive head of state of Zimbabwe. Although he has permitted official national elections in recent years, Mugabe's Zimbabwe African National Union–Patriotic Front (“ZANU–PF”) party has maintained control of the political process through violence and corruption, specifically targeting members of the opposition for killings, abductions, and other forms of abuse. Sheya and Mtandazo Mandebvu are two individuals who spoke out in criticism of ZANU–PF and Mugabe's government. After traveling to the United States with their two children, Tinotenda and Tatenda,¹ the Mandebvus eventually sought asylum and withholding of removal because they fear that they will be persecuted for their opposition to ZANU–PF if they are forced to return to Zimbabwe.

The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge's (“IJ”) denial of the Mandebvus' applications for asylum and withholding of removal. Because the IJ's decision that the asylum applications were untimely was infected by legal error, we GRANT the Mandebvus' petition with respect to their asylum claims and REMAND the case to the BIA for reconsideration. With respect to the claims for withholding of removal, we likewise GRANT the Mandebvus' petition because the record evidence compels the conclusion that it is more likely than not that the Mandebvus will be persecuted on the basis of their political opinion or tortured if forced to return to Zimbabwe.

I. BACKGROUND

In 1999, Sheya and Mtandazo Mandebvu married in Zimbabwe. A.R. 168 (Hr'g Tr. at 51). They were both schoolteachers. Neither Sheya nor Mtandazo were official members of any political party in Zimbabwe, but both were openly critical of ZANU–PF and the Mugabe government. Sheya criticized the government to his students and his fellow teachers, prompting several reprimands from the headmaster of his school. Id. at 172, 174–75 (Hr'g Tr. at 55, 57–58). He was also forced to attend several political rallies in support of ZANU–PF. Id. at 171 (Hr'g Tr. at 54). On July 2, 1999, Sheya left Zimbabwe and entered the United States on a student visa. Id. at 169 (Hr'g Tr. at 52). From 1999 to 2006, he attended two universities in Ohio, earning a Masters in Marketing and Communication and an MBA in Entrepreneurship. Id. at 170 (Hr'g Tr. at 53). He has never returned to Zimbabwe. Id.

When Sheya immigrated to the United States, Mtandazo stayed in Zimbabwe with their children and continued teaching. Like Sheya, she was openly critical of the government and was forced to attend ZANU–PF rallies. Id. at 274–76 (Hr'g Tr. at 157–59). After Mtandazo refused to attend one rally in August 2000, ZANU–PF Youth Brigade (“Youth Brigade”) members came looking for her on suspicion that she supported the Movement for Democratic Change (“MDC”) party, an opposition party. Id. at 286–87 (Hr'g Tr. at 169–70). Mtandazo feared that she would be killed because at that time newspapers were reporting that ZANU–PF members had begun visiting schools and rounding up teachers suspected of opposing ZANU–PF. Id. at 285 (Hr'g Tr. at 168). Mtandazo and her children went into hiding for several days before Mtandazo would return to her job. Id.; see also id. at 180–81 (Hr'g Tr. at 63–64).

The confrontation over the political rally was not Mtandazo's last encounter with ZANU–PF. A week later, the Youth Brigade erected a road block and stopped the car in which Mtandazo and two other teachers were passengers. They questioned Mtandazo about her political activities and accused her of working for MDC. They also confiscated her cell phone on the suspicion that she was using it to communicate with MDC members. Id. at 183, 289 (Hr'g Tr. at 66, 172). Although the Youth Brigade allowed Mtandazo to leave unharmed, they took the other two teachers to a camp, where they were beaten and forced to repeat ZANU–PF slogans. Id. at 184, 291 (Hr'g Tr. at 67, 174). Fearing for her life, in September 2000 Mtandazo took her children and joined Sheya in the United States. Id. at 185 (Hr'g Tr. at 68).

The Mandebvus' family members also drew the attention of ZANU–PF. All five of Sheya's brothers were confronted by ZANU–PF members regarding their suspected support of MDC. Thomas participated in demonstrations against the government and organized community activities to encourage support for MDC. Id. at 187–88 (Hr'g Tr. at 70–71). ZANU–PF members beat him and confiscated his truck because they believed he was “being used by white farmers.” Id. at 188–89, 321 (Hr'g Tr. at 71–72, 204). Efraim also recruited for MDC. ZANU–PF members threatened to kill him and took him to a “reeducation” camp, where he was beaten and treated “in a degrading way.” Id. at 197 (Hr'g Tr. at 80). Enywear organized rallies and recruited members for MDC. Youth Brigade members beat him and forced him to recite ZANU–PF slogans. Id. at 209 (Hr'g Tr. at 92). Kennedy also organized rallies for MDC. ZANU–PF members warned him to stop supporting MDC, but it is not clear whether they physically harmed him. Id. at 211, 326 (Hr'g Tr. at 94, 209). Onward was monitored by government agents because they believed that he was using his position at the University to influence students against ZANU–PF. Id. at 201 (Hr'g Tr. at 84). All of Sheya's brothers and sisters, except for Kennedy, have since fled the country or gone into hiding. Id. at 189, 198, 201, 206, 209 (Hr'g Tr. at 72, 81, 84, 89, 92).

The Mandebvus' parents have also been harassed by ZANU–PF members. In 2008, the Youth Brigade stopped a bus on which Sheya's mother, Edith, was a passenger. They demanded that the passengers produce ZANU–PF membership cards, and passengers who could not do so were taken away to “reeducation” camps. Edith did not have a membership card. Youth Brigade members took her to a camp where she was beaten so severely with iron rods and sticks that she later died from her injuries. Id. at 202–05, 327–28 (Hr'g Tr. at 85–88, 210–11). Mtandazo heard that her mother was also beaten to death after she complained to ZANU–PF war veterans about being removed from food distribution lists. Id. at 216, 299–300 (Hr'g Tr. at 99, 182–83).

ZANU–PF members have been monitoring the Mandebvus and encouraging their return since they fled to the United States. Beginning in 2000, the Youth Brigade started harassing Mtandazo's mother, Edna, asking where Mtandazo was living and instructing Edna to encourage Mtandazo to return to Zimbabwe. Id. at 295 (Hr'g Tr. at 178). In December 2005, Sheya's father, Samuel, visited Sheya to celebrate his graduation. Id. at 191–92 (Hr'g Tr. at 74–75). When Samuel returned to Zimbabwe in April 2006, he was detained and questioned by government officers, who wanted to know Sheya's address in the United States. Id. at 192 (Hr'g Tr. at 75). ZANU–PF officers removed Samuel from his position as head of the village and confiscated his cattle. Id. at 193–95 (Hr'g Tr. at 76–78). Mtandazo's father was similarly questioned regarding her whereabouts and activities when he returned to Zimbabwe from visiting her in the United States. Id. at 220, 305 (Hr'g Tr. at 103, 188). During this encounter, ZANU–PF members beat Mtandazo's father. Id. at 307 (Hr'g Tr. at 190). As late as the summer of 2009, Mtandazo's father reported that government agents continued to search for her. Id. at 304–06 (Hr'g Tr. at 187–89).

As they grew more concerned with deteriorating conditions in Zimbabwe, Sheya and Mtandazo became active with an arm of MDC in the United States. Id. at 212–13 (Hr'g Tr. at 95–96). Eventually, both Sheya and Mtandazo became official members ² and began recruiting other new members and organizing meetings. Id. at 213 (Hr'g Tr. at 96). In 2004 or 2005, concluding that conditions in Zimbabwe were not improving, the Mandebvus decided that they would seek asylum. Id. at 220–21, 331 (Hr'g Tr. at 103–04, 214). They attempted to file for asylum in 2005 but, through no fault of their own, the applications were never filed. Id. at 221–27 (Hr'g Tr. at 104–10). They did not make another attempt to file their applications at that time.

The Mandebvus were served with notices that they were subject to removal for overstaying their visas in August 2007. They filed applications for asylum and withholding of removal on September 12, 2008. At a hearing regarding their applications, both Sheya and Mtandazo testified about the abuses perpetrated against family members who had remained in Zimbabwe. Sheya explained that he feared for his own safety and for that of his family if he were to be forced to return to Zimbabwe after so many years:

I fear that I would be picked up right at the airport. I fear that I would disappear or be imprisoned without trial. I fear that I return to a country that is still under Mugabe's regime. I fear that Mugabe's agents will come after me. I even fear that they might kill me.

...

... [T]hey don't view people that come back from America as people that would be for the government and so I fear that I would ... [be]...