Sheya Mandebvu v. Eric Holder, Jr.

755 F.3d 417, 2014 WL 2743608, 2014 U.S. App. LEXIS 11399
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 18, 2014
Docket11-3969
StatusPublished
Cited by36 cases

This text of 755 F.3d 417 (Sheya Mandebvu v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheya Mandebvu v. Eric Holder, Jr., 755 F.3d 417, 2014 WL 2743608, 2014 U.S. App. LEXIS 11399 (6th Cir. 2014).

Opinions

MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined. MERRITT, J. (pg. 434), delivered a separate concurring opinion. McKEAGUE, J. (pp. 434-38), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

For more than two decades, Robert Mugabe has exercised power as the repressive head of state of Zimbabwe. Although he has permitted official national elections in recent years, Mugabe’s Zimbabwe African National Union-Patriotic Front (“ZANU-PF”) party has maintained control of the political process through violence and corruption, specifically targeting members of the opposition for killings, abductions, and other forms of abuse. Sheya and Mtanda-zo Mandebvu are two individuals who spoke out in criticism of ZANU-PF and Mugabe’s government. After traveling to the United States with their two children, Tinotenda and Tatenda,1 the Mandebvus eventually sought asylum and withholding of removal because they fear that they will be persecuted for their opposition to ZANU-PF if they are forced to return to Zimbabwe.

The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s (“IJ”) denial of the Mandebvus’ applications for asylum and withholding of removal. Because the IJ’s decision that the [421]*421asylum applications were untimely was infected by legal error, we GRANT the Mandebvus’ petition with respect to their asylum claims and REMAND the ease to the BIA for reconsideration. With respect to the claims for withholding of removal, we likewise GRANT the Mandebvus’ petition because the record evidence compels the conclusion that it is more likely than not that the Mandebvus will be persecuted on the basis of their political opinion or tortured if forced to return to Zimbabwe.

I. BACKGROUND

In 1999, Sheya and Mtandazo Mandebvu married in Zimbabwe. A.R. 168 (Hr’g Tr. at 51). They were both schoolteachers. Neither Sheya nor Mtandazo were official members of any political party in Zimbabwe, but both were openly critical of ZANU-PF and the Mugabe government. Sheya criticized the government to his students and his fellow teachers, prompting several reprimands from the headmaster of his school. Id. at 172, 174-75 (Hr’g Tr. at 55, 57-58). He was also forced to attend several political rallies in support of ZANU-PF. Id. at 171 (Hr’g Tr. at 54). On July 2, 1999, Sheya left Zimbabwe and entered the United States on a student visa. Id. at 169 (Hr’g Tr. at 52). From 1999 to 2006, he attended two universities in Ohio, earning a Masters in Marketing and Communication and an MBA in Entrepreneurship. Id. at 170 (Hr’g Tr. at 53). He has never returned to Zimbabwe. Id.

When Sheya immigrated to the United States, Mtandazo stayed in Zimbabwe with their children and continued teaching. Like Sheya, she was openly critical of the government and was forced to attend ZANU-PF rallies. Id. at 274-76 (Hr’g Tr. at 157-59). After Mtandazo refused to attend one rally in August 2000, ZANU-PF Youth Brigade (“Youth Brigade”) members came looking for her on suspicion that she supported the Movement for Democratic Change (“MDC”) party, an opposition party. Id. at 286-87 (Hr’g Tr. at 169-70). Mtandazo feared that she would be killed because at that time newspapers were reporting that ZANU-PF members had begun visiting schools and rounding up teachers suspected of opposing ZANU-PF. Id. at 285 (Hr’g Tr. at 168). Mtanda-zo and her children went into hiding for several days before Mtandazo would return to her job. Id.; see also id. at 180-81 (Hr’g Tr. at 63-64).

The confrontation over the political rally was not Mtandazo’s last encounter with ZANU-PF. A week later, the Youth Brigade erected a road block and stopped the car in which Mtandazo and two other teachers were passengers. They questioned Mtandazo about her political activities and accused her of working for MDC. They also confiscated her cell phone on the suspicion that she was using it to communicate with MDC members. Id. at 183, 289 (Hr’g Tr. at 66, 172). Although the Youth Brigade allowed Mtandazo to leave unharmed, they took the other two teachers to a camp, where they were beaten and forced to repeat ZANU-PF slogans. Id. at 184, 291 (Hr’g Tr. at 67, 174). Fearing for her life, in September 2000 Mtandazo took her children and joined Sheya in the United States. Id. at 185 (Hr’g Tr. at 68).

The Mandebvus’ family members also drew the attention of ZANU-PF. All five of Sheya’s brothers were confronted by ZANU-PF members regarding their suspected support of MDC. Thomas participated in demonstrations against the government and organized community activities to encourage support for MDC. Id. at 187-88 (Hr’g Tr. at 70-71). ZANU-PF members beat him and confiscated his truck because they believed he was “being used by white farmers.” Id. at 188-89, 321 (Hr’g Tr. at 71-72, 204). [422]*422Efraim also recruited for MDC. ZANU-PF members threatened to kill him and took him to a “reeducation” camp, where he was beaten and treated “in a degrading way.” Id. at 197 (Hr’g Tr. at 80). Enywear organized rallies and recruited members for MDC. Youth Brigade members beat him and forced him to recite ZANU-PF slogans. Id. at 209 (Hr’g Tr. at 92). Kennedy also organized rallies for MDC. ZANU-PF members warned him to stop supporting MDC, but it is not clear whether they physically harmed him. Id. at 211, 326 (Hr’g Tr. at 94, 209). Onward was monitored by government agents because they believed that he was using his position at the University to influence students against ZANU-PF. Id. at 201 (Hr’g Tr. at 84). All of Sheya’s brothers and sisters, except for Kennedy, have since fled the country or gone into hiding. Id. at 189, 198, 201, 206, 209 (Hr’g Tr. at 72, 81, 84, 89, 92).

The Mandebvus’ parents have also been harassed by ZANU-PF members. In 2008, the Youth Brigade stopped a bus on which Sheya’s mother, Edith, was a passenger. They demanded that the passengers produce ZANU-PF membership cards, and passengers who could not do so were taken away to “reeducation” camps. Edith did not have a membership card. Youth Brigade members took her to a camp where she was beaten so severely with iron rods and sticks that she later died from her injuries. Id. at 202-05, 327-28 (Hr’g Tr. at 85-88, 210-11). Mtandazo heard that her mother was also beaten to death after she complained to ZANU-PF war veterans about being removed from food distri-button lists. Id. at 216, 299-300 (Hr’g Tr. at 99,182-83).

ZANU-PF members have been monitoring the Mandebvus and encouraging their return since they fled to the United States. Beginning in 2000, the Youth Brigade started harassing Mtandazo’s mother, Edna, asking where Mtandazo was living and instructing Edna to encourage Mtan-dazo to return to Zimbabwe. Id. at 295 (Hr’g Tr. at 178). In December 2005, Sheya’s father, Samuel, visited Sheya to celebrate his graduation. Id. at 191-92 (Hr’g Tr. at 74-75). When Samuel returned to Zimbabwe in April 2006, he was detained and questioned by government officers, who wanted to know Sheya’s address in the United States. Id. at 192 (Hr’g Tr. at 75). ZANU-PF officers removed Samuel from his position as head of the village and confiscated his cattle. Id. at 193-95 (Hr’g Tr. at 76-78). Mtandazo’s father was similarly questioned regarding her whereabouts and activities when he returned to Zimbabwe from visiting her in the United States. Id.

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755 F.3d 417, 2014 WL 2743608, 2014 U.S. App. LEXIS 11399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheya-mandebvu-v-eric-holder-jr-ca6-2014.