Ndayshimiye v. Attorney General of U.S.

• Decision Date: 24 February 2009
• Docket Number: No. 07-3201.,07-3201.
• Citation: 557 F.3d 124
• Parties: Jean Bosco NDAYSHIMIYE; Speciose Murekatete, Petitioners v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

557 F.3d 124

Jean Bosco NDAYSHIMIYE; Speciose Murekatete, Petitioners v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 07-3201.

United States Court of Appeals, Third Circuit.

Argued: November 17, 2008.

Opinion Filed: February 24, 2009.

Kelly A. Carrero (Argued), Matthew V. Barter, William J. Hine, Jones Day, New York, NY, for Petitioners.

Julie M. Iversen (Argued), Allen W. Hausman, Margaret J. Perry, Jeffrey S. Bucholt, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Richard D. Steel, Deborah E. Anker, Harvard Immigration and Refugee Clinical Program, Cambridge, MA, Amicus Curiae for the Court.

Before: SCIRICA, Chief Judge, FUENTES, and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge:

Rwandan citizens Jean Bosco Ndayshimiye and his wife Speciose Murekatete sought asylum in the United States in 2006, alleging that they had suffered persecution at the hands of Ndayshimiye's aunt in Rwanda. They now petition for review of the Board of Immigration Appeals' ("BIA") decision rejecting their application for asylum. Petitioners asserted before the BIA that although their mistreatment was precipitated by a 2004 land dispute with Ndayshimiye's aunt, it was also caused by their status as recent immigrants to Rwanda from Burundi, where they had been born after their Rwandan parents fled there in the 1960s. Based on the fact that Ndayshimiye had a relatively peaceful relationship with his aunt for the eight years following Petitioners' return to Rwanda in 1996, the BIA concluded that any persecution occurring after 2004 was motivated solely by the land dispute. Although the BIA's interpretation of the statutory standard for analyzing possible "mixed motives" persecution was partially in error, its rationale that petitioners' Burundian background was at most incidental to other reasons for their persecution does support the Board's ultimate conclusion even under the corrected standard. Therefore, we will deny the petition.

I.

Petitioners Ndayshimiye and Murekatete were born in Burundi, but are Rwandan citizens since their parents were originally Rwandan but fled from that country in the 1960s. They are of Tutsi ethnicity. In 1996 they both returned to Rwanda along with several hundred thousand other Rwandan refugees who are known as "old case-load" refugees. These former refugees have different social status in Rwandan society depending on the country from which they have repatriated; those from Burundi apparently have very little influence or power and are resented by Rwandans who did not flee.

When Petitioners returned to Rwanda, Ndayshimiye made contact with some relatives who had remained in the country. One of them, his uncle Frederick Karuranga, deeded Ndayshimiye a parcel of land on which to build a home. Ndayshimiye put off construction for financial reasons.

In 2004, two years after Karuranga's death, Petitioners began building a home on the lot. Ndayshimiye's aunt, Primitive Musabwasoni, contested their right to the land, telling Ndayshimiye that he was not a member of the family and that he should go back to Burundi. She also attempted to sell the land to someone else for a significant sum of money. Musabwasoni is well-connected in Rwandan society; among her children are Reverien Claude Rugwizangoga ("Reverien"), a major in the Rwandan national police, John Fayinzoga, the chairman of a commission to demobilize the Rwandan army, and Gilbert Twgirunukiza, an executive in the president's office.

Ndayshimiye filed a complaint concerning the land dispute before a community tribunal, which resolved the matter in his favor in November 2004. Around March 2005, Ndayshimiye began receiving anonymous phone calls several times a week on his work phone in which he was told that he was not Rwandan, was stealing land that did not belong to him, and must return to Burundi. Ndayshimiye recognized the voice on some of the phone calls as his aunt's son, Reverien. In one call, the speaker said that if Ndayshimiye's family did not return to Burundi on their own they would be thrown into the Akagera River to return there. Petitioners construe this threat as a reference to the 1994 Rwandan genocide, during which massacred Tutsis were dumped into the Akagera. These phone calls lasted through June 2006. Murekatete also received calls in June 2006, at Petitioners' home, on which she identified Reverien's voice.

Frightened of the possible consequences, Ndayshimiye did not resume construction on the land despite his legal victory. Nor did he seek protection from the authorities, believing that the influence of Musabwasoni and her sons in the government, along with his own low social status, would render that attempt futile. Ndayshimiye and Murekatete remained in a rental property about thirty minutes away from the disputed land.

Despite their inaction regarding the land, on three occasions in May and June 2006 Reverien came to Petitioners' residence at night in his police uniform, armed and accompanied by other armed police officers. Each time, he identified himself as a member of the police and asked for Ndayshimiye. Upon being told that Ndayshimiye was working, Reverien told Murekatete that her husband was Burundian, not Rwandan, and must go back. On the third visit, Reverien said, "If you don't want to go back when it's good, you're going back badly." (A.R. 229.)

Because of these threats, Petitioners sought to leave Rwanda. They did not want to return to Burundi because of ongoing ethnic tensions there and the possibility of civil conflict. Ndayshimiye, who worked as a driver at the United States embassy, was invited by a U.S. citizen to visit his home in Virginia and obtained tourist visas for himself, his wife, and their children to go to the United States. During Reverien's second visit to Petitioners' house, he searched Murekatete's purse and found her American visa. At that point Reverien asked Murekatete if she had told Ndayshimiye yet that he must return to Burundi.

Petitioners entered the United States on September 11, 2006. Upon arrival, they were informed that their visas had been cancelled in June 2006, apparently because a co-worker of Ndayshimiye's at the U.S. embassy in Rwanda had told the State Department that Petitioners were selling off their belongings and were not planning to return to Rwanda when their visas expired. That co-worker reportedly also worked with the Rwandan national police. Ndayshimiye and Murekatete believed Musabwasoni and Reverien had orchestrated the cancellation of their visas through the co-worker. They were afraid to return to Rwanda because of the possibility of further persecution and thus sought refuge in the United States. They applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

To be granted asylum, Petitioners were required to show that they were "unable or unwilling" to return to Rwanda "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." 8 U.S.C. § 1101(a)(42). After a merits hearing, an Immigration Judge ("IJ") denied Petitioners' applications on January 4, 2007. That ruling rested primarily on the IJ's finding that Ndayshimiye and Murekatete had failed to show that Musabwasoni's past persecution was motivated by their imputed nationality or social group. The IJ reviewed Petitioners' case under the statutory "mixed-motives" standard of the Immigration and Nationality Act ("INA") § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). That provision was enacted in 2005 as part of the REAL ID Act to permit asylum for an applicant who could establish that, even if a persecutor had more than one motive, "race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." Id. The IJ concluded that nationality and/or social group had played no part in the threats against Petitioners. She found that the land conflict alone, a simple "family dispute," instigated the friction between Ndayshimiye and his aunt. (A.R.68.) The IJ's opinion included no conclusion as to Ndayshimiye's or Murekatete's credibility.

Petitioners appealed this decision to the BIA on January 18, 2007. The BIA affirmed in a published precedential opinion. In re J—B— N— & S— M—, 24 I. & N. Dec. 208 (B.I.A.2007). In interpreting § 208, the BIA reasoned that, though "central" may be defined as "having dominant power, influence, or control," Congress's use of the phrase "one central reason" rather than "the central reason" indicated that under § 208 a protected ground need not be the single dominant reason for an applicant's persecution. Id. at 212-13. Next, the BIA turned to the conference report for the REAL ID Act, which states that a protected ground is not a "central" reason if it is simply "incidental or tangential to the persecutor's motivation." Id. at 213 (quoting H.R.Rep. No. 109-72, at 163 (2005)). Relying on dictionary definitions of "incidental" and "tangential," the BIA construed § 208 to require an applicant for asylum to show that a protected ground is more than "incidental, tangential, superficial, or subordinate to another reason for harm." In re J— B— N— & S— M—, 24 I. & N. Dec. at 213.

Based on this reading of the statute, the BIA held that, even taking Petitioners' testimony as true, Ndayshimiye's conflict with his aunt was "fundamentally a personal dispute" motivated by Musabwasoni's desire to obtain Ndayshimiye's land and sell it for a profit, with any prejudice related to Petitioners' Burundian background playing an "incidental" role. Id. at 215-16. Therefore, the BIA dismissed Petitioners' appeal as to the asylum ruling, also concluding that they were not entitled to withholding of removal or relief under CAT. Id. at 217. On July 23, 2007, Pe...