Mushayahama v. Holder, 10-3874
| Decision Date | 25 April 2012 |
| Docket Number | No. 10-3874,10-3874 |
| Parties | JOYCE MUSHAYAHAMA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
File Name: 12a0436n.06
FROM THE BOARD OF
IMMIGRATION APPEALS
OPINIONBefore: 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 ConventionAgainst 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.
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 becausethe 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 sisterdiscovered 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 encouragedtheir 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 doso. 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)...
To continue reading
Request your trial