Nakibuka v. Gonzales

• Citation: 421 F.3d 473
• Decision Date: 26 August 2005
• Docket Number: No. 04-1809.,04-1809.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Parties: Mary Proscovia NAKIBUKA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

421 F.3d 473

Mary Proscovia NAKIBUKA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-1809.

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2005.

Decided August 26, 2005.

Godfrey Y. Muwonge (argued), Milwaukee, WI, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Paul Fiorino (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before CUDAHY, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

Mary Proscovia Nakibuka worked in Uganda as a housekeeper for a politically active family that openly opposed the governing regime. During the 2001 presidential campaign, soldiers loyal to the government attacked her employer's house, beat Nakibuka, and threatened to rape and kill her. After the opposition candidate for president was defeated, conditions for political dissidents in Uganda worsened, and Nakibuka fled with the family to the United States. Although the family that employed her was granted asylum, Nakibuka's application was denied in a separate proceeding. An immigration judge (IJ) found that she neither suffered past persecution nor established a likelihood of future persecution if she were to return to Uganda. The Board of Immigration Appeals (BIA) affirmed without an opinion and Nakibuka petitioned this court for review. We conclude that the IJ's decision is not supported by substantial evidence and accordingly grant Nakibuka's petition for review.

I

James Babumba was a vocal opponent of Ugandan President Yoweri Kaguta Museveni. He was married to Fiona Babumba, and Nakibuka worked as the family's maid. In 1996, Mr. Babumba had unsuccessfully challenged a Museveni supporter for a seat in the Ugandan parliament. His candidacy, which angered supporters of President Museveni, led to his being beaten and jailed during his campaign. After the 1996 election, the Museveni government continued actively to suppress the activities of potential rivals. For a time, the Babumba family lowered its political profile. In October 2000, however, Dr. Kizza Besigye announced that he would challenge Museveni in the March 2001 presidential election, and Mr. Babumba became Besigye's regional campaign manager. Nakibuka joined other members of the Babumba family in campaigning for Besigye. On her days off, she volunteered in Mr. Babumba's campaign office. She also distributed literature, attended rallies, and helped organize women to support Besigye.

These political activities attracted the attention of the Museveni administration. On the night of February 10, 2001, while Mr. Babumba was working in his campaign office, five men dressed in military uniforms broke into the Babumbas' house. The soldiers dragged Nakibuka and Mrs. Babumba into a bedroom and tied them both up using a particularly painful technique known as the "kandoya" style, in which the arms are pulled behind the back and the elbows are forced together in a way that subjects the chest to intense stretching and can dislocate the shoulders. While addressing both women by name, the soldiers beat them and demanded that they stop supporting Besigye. One soldier put a gun to Nakibuka's head and cocked the hammer as she pleaded with him that she was only a maid. Another soldier unzipped his pants and threatened to rape Nakibuka, but the group's leader ordered him to stop. The soldiers then demanded information about Besigye's campaign activities and threatened to return if the women and Mr. Babumba did not stop supporting Besigye. Eventually the soldiers left the house, leaving the two women tied up until a gardener discovered them the following morning. Several days after the attack, Sergeant Majid Seganne, a man the Babumbas knew as a member of Museveni's Uganda Peoples' Defense Force (UPDF), began bragging to Mr. Babumba and other Besigye supporters that he had led the attack on the Babumba household. Sergeant Seganne boasted about what his men had done to Nakibuka and Mrs. Babumba and threatened other Besigye supporters with similar fates.

A few weeks later, Museveni defeated Besigye in the presidential election. After his victory, Museveni attempted to locate and punish supporters of Besigye, and the police soon arrested and interrogated Mr. Babumba. Once he was released, Mr. Babumba left Uganda for several weeks to attend an international conference, but he returned in April. Political conditions continued to worsen, causing the Babumbas and Nakibuka to fear additional reprisal by the UPDF. Besigye fled Uganda in August. His flight triggered an increased government crackdown on his supporters. In December, Mr. Babumba sent Nakibuka, his wife, and children to Mbarara, over 100 miles away from their home in the suburbs of the capital city of Kampala. There, they were threatened by a military leader and told that they would be arrested if they remained in Uganda. Nakibuka and the Babumba family members in Mbarara arranged through a Besigye supporter to depart for the United States in January 2002. Mr. Babumba was arrested again, but managed to leave for the United States three months later. Mr. Babumba was granted asylum, and his wife and children were approved derivatively.

Nakibuka, however, had to file a separate application for asylum, which she did in May 2002. In it, she claimed that she would be arrested or tortured if she returned to Uganda because she was associated with Mr. Babumba, whom she characterized as "an enemy of the government." At her removal hearing, the immigration judge did not make a specific credibility finding. But he denied Nakibuka's application, finding that she had not suffered past persecution because the attack in February 2001 was not sufficiently serious or, alternatively, that she was not attacked for political reasons. The IJ also found in the alternative that the government had rebutted the presumption that she would suffer future persecution, which would have applied had she demonstrated past persecution. The BIA affirmed without an opinion and Nakibuka filed this petition for review.

II

Where, as here, the BIA summarily affirms the decision of the immigration judge, we review the IJ's decision as if it were that of the BIA. Brucaj v. Ashcroft, 381 F.3d 602, 606 (7th Cir.2004). We will not disturb the IJ's decision provided that it is supported by substantial evidence. Id.

Nakibuka first argues that the IJ erred when he found that the harm she suffered was too mild to constitute past persecution. Persecution is defined as "punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate." Liu v. Ashcroft, 380 F.3d 307, 312 (7th Cir.2004) (internal citation and quotation omitted). An asylum applicant need not show that her life or freedom were threatened, but the harm she suffered must rise above the level of "mere harassment" and must result from more than unpleasant or even dangerous conditions in her home country. Id. (internal citations and quotation omitted). Past persecution may be shown through even a single episode of detention or physical abuse, if it is severe enough. See Dandan v. Ashcroft, 339 F.3d 567, 573 (7th Cir.2003); Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.1997). Here, the IJ found that Nakibuka was detained and tied up overnight during the soldiers' invasion of the Babumbas' home and that she was slapped and kicked but not severely harmed or beaten continuously. But, as Nakibuka points out, the IJ said nothing about her testimony that one of the soldiers pressed a gun to her head and threatened to kill her while another unzipped his pants and threatened to rape her, and that she was tied in the excruciating "kandoya" style.

The testimony that the IJ ignored was central to Nakibuka's claim of persecution. A death threat, especially one that is accompanied by an attacker pressing a gun to the victim's head, is a serious factor supporting a finding of persecution. See Boykov v. INS, 109 F.3d 413, 416 (7th Cir.1997) (threats "of a most immediate and menacing nature" may constitute past persecution); Mitev v. INS, 67 F.3d 1325, 1331 (7th Cir.1995) (noting severity of death threat "emanating directly from the secret police"). The IJ also minimized Nakibuka's complaints about the attempted rape, noting that "another soldier intervened and prevented such an attack." But we are unwilling to dismiss so casually a threat of imminent rape. The threatened rape was one way for the soldiers to express their domination and control over both Nakibuka and Mrs. Babumba, see Ali v. Ashcroft, 394 F.3d 780, 787 (9th Cir.2005), as well as a way to send a message to the women about what might happen if they and Mr. Babumba did not stop supporting Besigye, see Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir.1996) (rape is a form of persecution if done on account of victim's actual or imputed political opinion). The IJ failed to consider these possibilities. Nakibuka also correctly notes that the IJ's use of the term "tied up" for what happened to Mrs. Babumba and herself was euphemistic at best, given the reality of the "kandoya" technique. Nakibuka explained in her affidavit that their "elbows were made to touch and a rope was tied around both hands, causing [their] chests to stretch out and causing an unimaginable amount of pain." Their feet were also bound together in front of them. The IJ did not even address these complaints of "unimaginable" pain.

Although Nakibuka focused her arguments primarily on the single attack in February 2001, she also pointed to other evidence that the IJ ignored concerning events that took place after that time. The IJ found that the February 2001 incident had not been as serious as Nakibuka claimed because she "did not flee Uganda after this attack, but remained in the same home working as a household keeper until December 2001." But an asylum...