Temu v. Holder

• Decision Date: 16 January 2014
• Docket Number: No. 13–1192.,13–1192.
• Citation: 740 F.3d 887
• Parties: Tumaini Geofrey TEMU, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

740 F.3d 887

Tumaini Geofrey TEMU, Petitioner,

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

No. 13–1192.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 29, 2013.

Decided: Jan. 16, 2014.

ARGUED:Katie Bukrinsky, Thomas Joseph Tynan, McDermott, Will & Emery, LLP, Washington, D.C., for Petitioner. Woei–Tyng Daniel Shieh, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Paul M. Thompson, Steven Hannes, McDermott, Will & Emery LLP, Washington, D.C.; Stephen Dekovich, Capital Area Immigrants' Rights Coalition, Washington, D.C., for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Francis W. Fraser, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before KING, GREGORY, and AGEE, Circuit Judges.

Petition for review granted, order vacated, and case remanded for further consideration consistent with this published opinion. Judge GREGORY wrote the majority opinion, in which Judge KING joined. Judge AGEE wrote a dissenting opinion.

GREGORY, Circuit Judge:

Tumaini Temu is a Tanzanian national who suffers from severe bipolar disorder. In his home country, Mr. Temu was tortured by nurses and prison guards because of his illness. After entering the United States, he applied for asylum, arguing that he was persecuted because of his membership in a particular social group. The Board of Immigration Appeals (“BIA”) denied his application, finding that Mr. Temu was not a member of a social group under the Immigration and Nationality Act (“INA”), and even if he was, Mr. Temu did not show that he was persecuted because of membership in this group. Because we agree with Mr. Temu that the BIA's opinion rests on factual and legal errors, we grant Mr. Temu's petition for review, vacate the BIA's order, and remand for further proceedings consistent with this opinion.

I.

The facts presented below are based on Mr. Temu's testimony, as well as testimony from two expert witnesses who discussed Mr. Temu's diagnosis and the conditions that individuals with mental illness face in Tanzania. The IJ credited the testimony of all three witnesses, and neither the BIA nor the government dispute any of the facts presented.

Mr. Temu's troubles began during his final year at the University of Dares Salaam, when his mother died in a car accident. This spurred a mental breakdown that forced Mr. Temu to leave school, and he experienced a series of similar episodes that were later diagnosed as manifestations of bipolar disorder. During his manic episodes, Mr. Temu believes he has superhumanpowers. He is visibly erratic and often walks into busy intersections to direct traffic because he thinks he has the ability to prevent car accidents. This behavior caught the attention of Tanzanian officials who took him to Muhimbili Hospital in Dares Salaam, Tanzania, in 2003.

Mr. Temu's admission to Muhimbili Hospital kicked off years in asylums and prisons during which Mr. Temu suffered violent physical abuse. At his asylum hearing, an expert witness testified that Tanzanians consider mental illness to be shameful. In Tanzanian culture, severe mental illness with visibly erratic behavior is seen as a manifestation of demonic possession. Tanzanians even have a label for the group, referring to those with visibly severe mental illness as “mwenda wazimu,” which means demon-possessed. The expert witness testified that even medical professionals in Tanzania believe that severe mental illness accompanied by erratic behavior is caused by demonic possession. Laymen and doctors alike believe that demonic possession is contagious. For this reason, even though friends and family visited Mr. Temu during his first hospitalization, they deserted him within months.

The nurses at Muhimbili Hospital treated Mr. Temu with violence and abuse. Nurses tied Mr. Temu's hands and feet for five to seven hours a day, four days per week. When Mr. Temu's condition worsened, his “treatment” became more inhumane, as he was bound and beaten with leather straps for eight hours per day, five or six days per week. Hospital stints turned into prison stints, and the abuse continued. Prison guards beat Mr. Temu with a club about his elbows and feet four days per week. The beatings were so severe that he could not walk.

The record is unequivocal about what motivated the nurses' and guards' behavior. Throughout all his hospitalizations, the nurses referred to Mr. Temu as “mwenda wazimu.” The record also shows that while binding Mr. Temu and beating him with leather straps, the nurses said on multiple occasions, “this is how we treat people who are mentally ill like you.” J.A. 135. In prison, the guards also referred to Mr. Temu as “mwenda wazimu.” All prisoners were beaten, but Mr. Temu received worse beatings. However, other prisoners who also suffered from severe mental illness were beaten as much as Mr. Temu.

Upon coming to the United States, Mr. Temu applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. § 208.16. Mr. Temu argued that under 8 U.S.C. § 1101(a)(42), he faced severe persecution because of his membership in the social group of individuals with bipolar disorder who exhibit erratic behavior. The immigration judge (“IJ”) denied Mr. Temu's asylum and withholding claims. In a finding adopted by the BIA, the IJ concluded that Mr. Temu's proposed group lacks the elements of immutability, particularity and social visibility necessary to qualify as a particular social group under the INA. In addition, both the IJ and BIA concluded that even accepting Mr. Temu's proposed group, he did not show that he was persecuted because of his membership in this group. However, the IJ granted Mr. Temu CAT relief. In doing so, the IJ and BIA found that Mr. Temu was tortured by nurses and prison guards because he was mentally ill.

Mr. Temu filed a timely appeal of the BIA's decision, arguing that it committed error in denying him asylum and withholding of removal. We have jurisdiction to hear his case under 8 U.S.C. § 1252.

II.

Individuals qualify for asylum if they were persecuted “on account of ... membership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A).¹ This appeal raises two questions. First, we must analyze whether Mr. Temu's proposed group of “individuals with bipolar disorder who exhibit erratic behavior” qualifies as a “particular social group.” Second, we ask whether Mr. Temu was persecuted because of membership in his proposed group. Under Chevron, we give deference to the BIA's interpretation of the phrase “particular social group.” See Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir.2010) (citing Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). However, in reviewing whether a group meets the BIA's definition of “particular social group,” we overturn a denial of asylum if it is “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D); see Zelaya v. Holder, 668 F.3d 159, 165 (4th Cir.2012); Crespin–Valladares v. Holder, 632 F.3d 117, 124–126 (4th Cir.2011). We uphold factual findings unless no rational factfinder could agree with the BIA's position. Crespin–Valladares, 632 F.3d at 124.

III.

We first consider the BIA's conclusion that Mr. Temu was not persecuted because of membership in his proposed group. Because this is a factual finding, our task is not to decide how we would rule in the first instance. Rather, we must uphold the BIA's finding unless no rational factfinder could reach the same conclusion. See Crespin–Valladares, 632 F.3d at 124. In spite of this stringent standard of review, we are compelled to vacate because the BIA's finding on nexus contains two logical contradictions that no rational factfinder could hold.

First, it is impossible to square the BIA's conclusion with the undisputed facts of the case. The BIA credited Mr. Temu's testimony in its entirety, J.A. 151, and he testified not only that nurses beat and bound him, but also that they explicitly told him that “[t]his is how we treat people who are mentally ill like you.” J.A. 135. Mr. Temu testified that in prison, the guards beat all prisoners, but Mr. Temu was singled out for worse beatings, and other prisoners with mental illness were beaten as much as Mr. Temu. J.A. 137. Throughout his time in prisons and hospitals, the nurses and guards referred to him as “mwenda wazimu.” J.A. 135–37. We fail to see how a rational factfinder could simultaneously credit these facts and also conclude that Mr. Temu was not persecuted because of his mental illness and its manifestations. It is difficult to imagine evidence that is more persuasive and unequivocal than a persecutor directly telling a victim, “[t]his is how we treat mentally ill people like you.” J.A. 135.

Second, the BIA's nexus finding and CAT finding are at logical loggerheads. The BIA adopted the IJ's finding that “there is no nexus between the respondent's mistreatment and his defined particular social group, which is defined in part by bipolar disorder.” J.A. 74. That is, even accepting Mr. Temu's proposed group, the BIA concluded that his beatings were due to his erratic behavior, not his bipolar disorder per se. Mere pages later, however, the IJ granted CAT relief, finding that Mr. Temu “was singled out for more frequent beatings because he was mentally ill.” J.A. 156. ² We struggle to see how a rational factfinder could conclude both that Mr. Temu was not persecuted because of his membership in the group of individuals with bipolar disorder who exhibit erratic behavior, and also that he was singled out for beatings because of his mental illness. It might be possible to reconcile these conflicting findings, but it would demand logical acrobatics, and the BIA makes no attempt to explain how it can believe that...