Nakibuka, Mary P. v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1809
MARY PROSCOVIA NAKIBUKA,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
No. A95-575-900
ARGUED MARCH 29, 2005—DECIDED AUGUST 26, 2005
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 threat-
ened 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
2 No. 04-1809
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 parlia-
ment. His candidacy, which angered supporters of President
Museveni, led to his being beaten and jailed during his
campaign. After the 1996 election, the Museveni govern-
ment 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 campaign-
ing 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
No. 04-1809 3
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. Eventu-
ally 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
4 No. 04-1809
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 persecu-
tion because the attack in February 2001 was not suffi-
ciently 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
No. 04-1809 5
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 testi-
mony 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)
6 No. 04-1809
(rape is a form of persecution if done on account of victim’s
actual or imputed political opinion). The IJ failed to con-
sider 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 applicant’s decision
not to flee her home country immediately does not mean
that she was not persecuted. See Niam v. Ashcroft, 354 F.3d
652, 658 (7th Cir. 2004) (asylum applicant waited three
years before fleeing). Moreover, Nakibuka’s last ten months
in Uganda were marked by increasing threats against the
Babumbas—threats that were so severe that Mr. Babumba
was forced to live apart from his family to avoid the author-
ities, and Nakibuka, Mrs. Babumba, and the children
sought refuge in Mbarara with only limited success.
Furthermore, we cannot agree with the IJ’s finding that
Mr. Babumba’s return in April 2001 to Uganda from the
international conference showed that neither the February
attack nor the additional threats against the family “were
serious enough to constitute past persecution.” Mr.
Babumba explained that he returned to Uganda in April
because he did not want to abandon his family and because
No. 04-1809 7
he had hoped the political situation would improve after
President Museveni’s reelection in March. But Mr.
Babumba’s hopes for political calm were later dashed; the
situation became so dangerous for opposition supporters
that their leader, Besigye, fled the country, Mr. Babumba
went into hiding, and Nakibuka fled to Mbarara with the
rest of the Babumba family. Mr. Babumba was later
arrested, beaten, and threatened with execution, and the
rest of the family was threatened in Mbarara by a military
officer because of their support for Besigye. Mrs. Babumba
explained in her affidavit that Nakibuka was “identified” as
a member of the Babumba family and that she “faced the
same harassment” and “was as vulnerable as all of us were”
because of her personal involvement with the family and
the Besigye campaign.
Neither the IJ nor the BIA considered the severity of the
attack against Nakibuka or the escalating nature of the
events that followed it. In our view, Nakibuka presented
ample evidence that the harm she suffered was serious
enough to characterize as past persecution, rather than
mere harassment. See Liu, 380 F.3d at 312.
Nakibuka next challenges the IJ’s alternative finding that
she was not persecuted for political reasons. It was indeed
her burden to show that the reason for her persecution was
one recognized by the statute—that is, it was “for political,
religious, or other reasons that this country does not
recognize as legitimate.” See Bace v. Ashcroft, 352 F.3d
1133, 1137 (7th Cir. 2003); see also Tolosa v. Ashcroft, 384
F.3d 906, 910 (7th Cir. 2004) (asylum applicant may show
that persecutor imputed a political opinion to her). The IJ
inferred from the record that Nakibuka was merely “in the
wrong place at the wrong time.” The IJ also found it
significant that she “admitted to her attackers that she was
only the maid.”
The IJ’s finding that Nakibuka’s statement that she was
8 No. 04-1809
“only the maid” somehow negated a finding of persecution
is troubling for a number of reasons. First, the IJ seized
upon her comment completely out of context. According to
her testimony, she referred to herself as only a maid while
she was at gunpoint in the midst of the attack by the
soldiers: “They beat us up repeatedly and they asked us
why we supported Besigye. I appealed to them, explaining
that I was just a worker. Then another man come out with
a gun and (indiscernible) on my head, and said what are
you talking about?” Under such life-threatening circum-
stances, it was hardly unreasonable for her to downplay her
affiliation with the Babumbas or her opposition to the
ruling regime. The relevant question here is whether
Museveni’s supporters perceived—correctly or not—
Nakibuka as a political opponent. See De Brenner v.
Ashcroft, 388 F.3d 629, 635-36 (8th Cir. 2004) (inquiry must
focus on whether persecutor, rightly or wrongly, attributes
a political opinion to victim); Vasquez v. INS, 177 F.3d 62,
65 (1st Cir. 1999) (same); Sangha v. INS, 103 F.3d 1482,
1489 (9th Cir. 1997) (same). Mrs. Babumba’s affidavit
states that “we consider and treat her, as she does us, as
family” and that Ugandan authorities consider Nakibuka a
dissident “based upon her connection to Dr. Kizza Besigye
through my husband.” The IJ gave no reasons for why he
found Mrs. Babumba’s explanation of the attackers’ motives
to be incredible, nor did he address whether Museveni’s
supporters saw Nakibuka as a political opponent. These
omissions were error and must be corrected.
Nakibuka also argues that the IJ improperly rejected her
related argument that she was persecuted based on her own
political opinion in addition to the political opinion she says
the attackers imputed to her. Nakibuka testified that she
volunteered on Besigye’s campaign, attended meetings, and
specifically worked to rally women to support him. Both
Babumbas verified that Nakibuka freely joined the cam-
paign, worked in the office, and participated in campaign
No. 04-1809 9
events. The IJ, however, dismissed this evidence, saying
that Nakibuka’s testimony was “vague and confusing” and
that “[t]his court believes that the respondent’s activities
were exaggerated and that she simply worked as a house-
hold maid for her employer.” But the IJ never made an
adverse credibility finding with respect to either Nakibuka
or the Babumbas; any passing reference implying doubt
about Nakibuka’s testimony is not an adequate substitute
for an explicit credibility finding. See Iao v. Gonzales, 400
F.3d 530, 534 (7th Cir. 2005); Mendozo Manimbao v.
Ashcroft, 329 F.3d 655, 661 (9th Cir. 2003). Finally, even if
he had made a credibility finding, the IJ never explained
why he rejected not only Nakibuka’s testimony, but also
that of her two corroborating witnesses, that she cam-
paigned for Besigye. The IJ’s unwillingness to believe that
Nakibuka personally engaged in campaign activities is
unsupported by the record and thus could not have provided
the basis for an adverse credibility finding. See Huang v.
Gonzales, 403 F.3d 945, 949-50 (7th Cir. 2005); Lin v.
Ashcroft, 385 F.3d 748, 755-56 (7th Cir. 2004).
Nakibuka next argues that the IJ improperly found that
even if she had suffered past persecution on account of a
political opinion, her claim still failed because the govern-
ment rebutted the presumption that she would suffer future
persecution. See Bace, 352 F.3d at 1137 (finding of past
persecution creates a rebuttable presumption of future
persecution). The IJ gave three reasons for finding that the
government met its burden, but all are speculative and
unsupported by the record. First, the IJ said that Nakibuka
cannot have an objective fear of persecution because her
immediate family remains in Uganda and has not been
targeted by the UPDF. Even though evidence that an
asylum applicant’s family members remain unharmed in
their home country may support a finding that the appli-
cant is unlikely to suffer future persecution, see Ambati v.
Reno, 233 F.3d 1054, 1061 (7th Cir. 2000); Bhatt v. Reno,
10 No. 04-1809
172 F.3d 978, 982 (7th Cir. 1999), in this case there was no
evidence that Nakibuka’s relatives supported Besigye’s
candidacy or that Museveni’s supporters identified any of
those relatives as associates of the Babumbas. That
Nakibuka’s relatives—who as far as the record reflects are
neither politically active nor closely associated with known
opponents of the government—have not been harassed does
not mean that Nakibuka herself will be safe in Uganda.
Next, the IJ said that Nakibuka would be unlikely to face
persecution because Besigye and the Babumbas have all
fled Uganda and she would thus no longer be associated
with a political enemy of the government. The government
interprets these facts to mean that Nakibuka has nothing
to fear in Uganda because she was not a prominent sup-
porter of Besigye and would only be “recognized as the
former housekeeper of Mr. Babumba.” We cannot agree
with this assessment. Mrs. Babumba’s affidavit states that
the soldiers “knew who we [Nakibuka and Mrs. Babumba]
were because they used our names when insulting and
interrogating us that night.” The soldiers’ knowledge of
Nakibuka’s name suggests that she was already more than
Mr. Babumba’s maid. Moreover, the record does not contain
any information suggesting that the UPDF is any more
tolerant of political opponents now than it was in 2001.
Finally, it seems odd for the IJ to believe that an opponent
of an oppressive government will somehow be safer simply
because the government has been so successful in cracking
down on its opposition that all higher-level political allies
have been forced out of the country. See Osaghae v. INS,
942 F.2d 1160, 1164 (7th Cir. 1991) (“Asylum is not limited
to the notorious.”).
Last, we note that the IJ opined that the Ugandan
government’s issuance of a visa to Nakibuka shows that it
has no interest in persecuting her. Nakibuka does not
address this point in her brief, but we reiterate our recent
No. 04-1809 11
observation that oppressive governments that want to
eliminate their political opponents may find that allowing
them to leave the country is easier than having them jailed
or killed. See Grupee v. Gonzales, 400 F.3d 1026, 1027 (7th
Cir. 2005). Nakibuka’s ability to obtain a visa thus tells us
nothing about the likelihood that she will be persecuted in
the future.
III
The IJ’s decision is not supported by substantial evidence.
Nakibuka presented credible and corroborated testimony
that she suffered harm severe enough to constitute past
persecution because of either her own political opinion or an
imputed political opinion. The government did not rebut the
presumption that she will suffer future persecution in
Uganda. On remand, the BIA must re-evaluate her claim
for asylum in light of these facts, as well as anything else it
deems relevant at this point. Accordingly, we GRANT
Nakibuka’s petition for review and VACATE the order of
removal.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-26-05