Mukamusoni v. Ashcroft

• Decision Date: 01 December 2004
• Docket Number: No. 03-1723.,03-1723.
• Citation: 390 F.3d 110
• Parties: Allen MUKAMUSONI, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

390 F.3d 110

Allen MUKAMUSONI, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-1723.

United States Court of Appeals, First Circuit.

Heard October 6, 2004.

Decided December 1, 2004.

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Daniel F. Cashman, with whom Cashman & Lovely, P.C. and Susanna L. Shafer were on brief, for petitioner.

Jamie M. Dowd, Attorney, Office of Immigration Litigation, with whom Peter D. Keisler, Assistant Attorney General, and David V. Bernal, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before LYNCH, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

LYNCH, Circuit Judge.

Allen Mukamusoni, a woman native to Uganda and a citizen of both Uganda and Rwanda, entered the United States at Houston, Texas, on May 5, 1998 as a non-immigrant visitor for pleasure, with authorization to remain until November 4, 1998. Mukamusoni remained in the United States beyond November 4, 1998, and the Immigration and Naturalization Service (INS)¹ charged her with removability. Before Mukamusoni was charged with removability, she submitted an application for asylum, withholding of removal, protection under the Convention Against Torture (CAT), and voluntary departure. The Immigration Judge (IJ) granted voluntary departure but denied her all other forms of relief on January 24, 2001, and the Board of Immigration Appeals (BIA) dismissed her appeal on April 22, 2003. Mukamusoni then petitioned this court for review. We vacate the BIA's order and remand.

I.

We recount the facts as they are presented in Mukamusoni's oral testimony before the IJ and in documentation submitted in support of her application for asylum.

Mukamusoni was born to Rwandan refugee parents on May 17, 1977, in a Rwandan refugee camp in Uganda. Her mother was a Tutsi while her father was a Hutu, and she had six siblings. She had "always considered [her]self Rwandese." Her father worked for a Ugandan family in Mbarara, Uganda, and that family told government officials that Mukamusoni was their daughter so that she could attend school in Uganda. Mukamusoni was thus able to attend St. Mary's, a Catholic boarding school, and lived with the nuns of St. Mary's at their convent in Uganda.

Mukamusoni's family lived in Uganda until 1993, when every member of the family except Mukamusoni returned to Rwanda. Mukamusoni explained that at that time, many Rwandans in Uganda decided to return to Rwanda in order to "fight for their rights." The Rwandan migration was also partly due to Uganda's policy, which advocated the repatriation of Rwandan refugees to Rwanda. Mukamusoni herself stayed behind in Uganda to continue high school at St. Mary's.

In 1994, civil war broke out in Rwanda. According to the 1999 Human Rights Watch Report for Rwanda (which was admitted into evidence), in 1994 "the Rwandan Patriotic Front (RPF), composed largely of Tutsi refugees who had spent decades in exile, defeated the Rwandan government, made up primarily of Hutu, who form the great majority of the Rwandan population.... [T]he [Hutu-dominated] government and army carried out a genocide of more than half a million Tutsi until they were stopped by the RPF." After their defeat, members of the former government became leaders of the Hutu rebels, and "[s]ome of the insurgents, including several senior officers who led the 1994 genocide, seemed ready to continue annihilating the Tutsi."

During the genocide of the Tutsi in Rwanda, Mukamusoni's father was originally in the army of the Rwandan Patriotic Front (RPF), but after some time he decided to desert the RPF and joined the Hutu rebels because he was Hutu himself. Mukamusoni's eldest brother joined her father with the Hutu rebel forces during the war, and he was killed in Kigali, Rwanda in 1994. Mukamusoni's other siblings and her mother lived in a refugee camp at Mutara, Rwanda during this time. Mukamusoni said that even though a Hutu law required "a Hutu man married to a Tutsi woman to kill his wife," Mukamusoni's father refused to kill his wife because he was in love with her. But later, a Hutu death squad came to the refugee camp and slaughtered Mukamusoni's mother and her remaining siblings, along with many other refugees.

Through most of the genocide, Mukamusoni was in Uganda. She returned to Rwanda in 1995, when the civil war in Rwanda slowed down, to take the university entrance exams and to be with her family. While in Rwanda preparing for the exams, she received news of the massacre of her mother and siblings. Mukamusoni decided to attend the funeral for her mother, siblings, and other victims of the massacre, even though it was very dangerous for her because of her Hutu heritage and the fact that most of the people there were Tutsi. Mukamusoni testified that at the funeral there were "[s]o many people" dead and the bodies were "cut in pieces" and "mixed up" and buried in the same grave yard, such that one "couldn't tell who is who." In fact, Mukamusoni was unable to identify the remains of her youngest sibling.

At the funeral, she also saw her father, who could not stay long because the Tutsi in the RPF were looking for him. (By then the RPF was in control of the government of Rwanda.) He told her that he was leaving Rwanda for Zaire (now Congo) with the other Hutu rebels. According to the 1999 Human Rights Watch Report for Rwanda, after the RPF victory, the Hutu rebels led "some two million Rwandans into exile, more than half of them to Zaire."

Mukamusoni began her studies at the National University of Rwanda in Butare, Rwanda in May 1996. She introduced into evidence a copy of her Rwandan identity card and a copy of her student identity card at the National University of Rwanda. The RPF government posted soldiers, most of whom were Tutsi, at the entrances of the University in order to prevent a repeat of the Hutu rebels' massacre of the students, which had occurred in 1994 during the genocide. The soldiers and other students began to harass Mukamusoni because she was using her father's last name, Mukarazizi, which they recognized as the name of a known Hutu rebel. Mukamusoni studied journalism and was an outspoken proponent of ethnic reconciliation between the Hutu and the Tutsi. In response, the Tutsi soldiers and their student affiliates banned her from publishing letters in the school newspaper and told other students not to listen to her. She received letters from her father from time to time informing her that he was alive, but these letters were interpreted by the RPF soldiers as evidence of her espionage with a Hutu rebel. As a result, she was "pulled from class" and questioned by the soldiers.

At the end of her first semester, Mukamusoni was again taken from class to the RPF office, where her student ID and Rwandan passport were taken from her so that she could not travel and leave Rwanda. The soldiers interrogated her about her correspondence with her father and his whereabouts; although she showed them her father's letters and explained that she knew nothing about the plans of the rebels, the soldiers did not believe her and thought she was lying. She was arrested and taken to prison in Butare, Rwanda, where she was imprisoned for four months. During this time she was beaten every morning, interrogated twice per week, and tortured by various kinds of forced activity: rolling in dry grass in the mornings as a form of "wake up"; walking "miles and miles" to exhaustion; digging ditches; digging through giant anthills in hot weather to retrieve the queen ant while being beaten until she passed out; and doing other kinds of manual labor. Within the first week of her imprisonment she was raped by a Tutsi soldier at the prison. This was her first experience of sexual intercourse, and she was terrified that she would contract AIDS or become pregnant from the rape. During her imprisonment, she "wished for death" and "had no hope for the future." But, to her surprise, she was released when the RPF government realized that she had no information about her father. Her passport was returned to her, and she finished her first year at the University in 1997.

In 1997, after her release from prison, she received a letter from someone claiming to be a friend of her father's informing her that her father had been killed by the Tutsi in Kibeho, Zaire. Because the letter was from a Hutu rebel, it was not signed. From that point on, Mukamusoni received no further communications from her father.

According to the 1999 Human Rights Watch Report for Rwanda, "[i]n refugee camps [in Zaire], remnants of the defeated [rebel Hutu] army rearmed, recruited new forces, and began incursions into Rwanda. In 1996, [Tutsi] Rwandan troops ... dispers[ed] the camps, massacring tens of thousands of unarmed civilians, and killing thousands of soldiers and militia."

In her removal proceedings, the INS lawyer and the IJ both questioned Mukamusoni about whether she could present death certificates for her family. She testified that she "never even heard about ... death certificates.... They don't give out death certificates in [Rwanda]," especially not "during the genocide." Nor did she know if they gave out death certificates in Zaire, where her father had died, as she had never been there.

Mukamusoni spent the summer of 1997 back in Uganda at St. Mary's convent. She told Sister Catherine, a nun to whom she was very close, her fears of returning to Rwanda in light of her experiences there. However, Sister Catherine urged her to return to Rwanda to continue her studies. Because she had lost her entire family and had no means of economic support, Mukamusoni decided that she had to return to school in Rwanda.

When Mukamusoni started her second year at the University in 1997 she changed her last name on the student ID from her father's name (Mukarazizi) to her own (Mukamusoni), in the hope that the RPF soldiers would stop harassing her. Mukamusoni explained that in Africa it was not...