In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4144
SIPHATHISO MABASA, MAUREEN MABASA,
and SINOBUKHOSI MABASA,
Petitioners,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of Orders of the
Board of Immigration Appeals.
Nos. A95-399-173, A95-399-172 & A95-399-171
____________
ARGUED SEPTEMBER 13, 2005—DECIDED MARCH 15, 2006
____________
Before BAUER, MANION, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Siphathiso Mabasa, a teacher from
Zimbabwe, applied for asylum on behalf of himself and his
wife and daughter, Maureen and Sinobukhosi Mabasa. The
Mabasas request review of a Board of Immigration Appeals
(“BIA”) order affirming the denial of their application for
asylum, withholding of removal, and protection under the
United Nations Convention Against Torture (“CAT”). For
the reasons set forth in this opinion, we affirm the decision
of the BIA.
2 No. 04-4144
I. Background
The Mabasas are natives and citizens of Zimbabwe.
Siphathiso Mabasa entered the United States as a
nonimmigrant visitor on December 28, 1999. His wife and
daughter, Maureen and Sinobukhosi, entered as
nonimmigrant visitors approximately three months later,
on March 9, 2000.
In Zimbabwe, Mr. Mabasa was a schoolteacher and a
member of the Zimbabwe Teachers Association and the
Zimbabwe Congress of Trade Unions (“ZCTU”). An offshoot
of the ZCTU eventually became the Movement for Demo-
cratic Change (“MDC”), which is now the minority political
party in Zimbabwe.
Mr. Mabasa became an active member of the MDC in
September of 1999 by assisting in fund-raising and recruit-
ing for the organization. He said that his MDC activities
made him fearful of staying in Zimbabwe. In November of
1999 he was verbally threatened by the Youth Chairman of
the Zimbabwe African National Union-Patriot Front (the
ruling party in Zimbabwe) and at that point felt he needed
to flee the country. In late December of 1999, over a month
after he had been threatened and three months after joining
the MDC, he left the country to come to the United States.
In 2001, he reactivated his MDC membership in the United
States and started to recruit new members and fund-raise
on behalf of a local Indiana chapter of the MDC. Mr.
Mabasa confirmed that one-third of Zimbabwe’s population
are members of the MDC and that the MDC controls 57 of
the 120 seats in Zimbabwe’s parliament.
According to the Mabasas’ affidavits, after Mr. Mabasa
left Zimbabwe, ruling party supporters came to their home
and to Mrs. Mabasa’s work to find out about her husband’s
activities and location. Mrs. Mabasa stated that during the
visits she was pushed around and threatened with various
forms of violence against her daughter and herself. Further,
No. 04-4144 3
Mrs. Mabasa claimed she began receiving threatening and
harassing phone calls inquiring into her husband’s where-
abouts. Mrs. Mabasa feared for her life and left the
Mabasas’ home to stay elsewhere. Finally, she and
Sinobukhosi left Zimbabwe to join her husband in the
United States on March 9, 2000.
Mr. Mabasa’s brother, Gibson Ncube Mabasa, explained
at the asylum hearing that he had received threats to his
brother’s life back in Zimbabwe. After visiting the Mabasas
in the United States, Gibson returned home to Zimbabwe
on October 24, 2001. A few days after Gibson returned to
Zimbabwe he said he was visited by men from the Central
Intelligence Organization (“CIO”) who questioned him about
his brother, Mr. Mabasa. The CIO officers told Gibson that
they would kill his brother when he returned to Zimbabwe
because of his MDC membership. The threat’s timing
coincided with Mr. Mabasa’s renewed fund-raising and
recruiting efforts on behalf of the MDC in Indiana. On
November 20, 2001, Gibson sent a letter to the Mabasas,
warning them that government authorities were looking for
Mr. Mabasa and that they wanted him “dead or alive.”
The Mabasas explained that, in the past, members of
their family who were involved in the MDC were tortured
or killed by the ruling party. Mrs. Mabasa’s father was
killed by government supporters on December 18, 2000 and
her uncle, a commander in the military, was tortured by
President Robert Mugabe’s government in the mid-1980’s
and died of his injuries.
The Mabasas filed for asylum, withholding of removal,
and for protection under the CAT. The filing of their
application was not within the one-year statutory deadline,
as required by 8 U.S.C. § 1158(a)(2)(B) to be considered
timely. The Mabasas do not contest the tardiness of their
motion. They do argue, however, that there are three
factors that make their situation one of changed circum-
4 No. 04-4144
stances, which can excuse the late filing. See 8
U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4). First, the
Mabasas cite Mr. Mabasa’s renewed efforts on behalf of the
MDC, which began three months before he sought asylum.
Second, the Mabasas underscore the deterioration of the
Zimbabwe political climate in the months before they filed
for asylum. Finally, the Mabasas point to the Zimbabwe
government’s recent interest in Mr. Mabasa’s activities in
the United States.
II. Analysis
Asylum applications must be filed within one year after
the date of the asylum seeker’s arrival in the United States.
8 U.S.C. § 1158(a)(2)(B). Here, the Mabasas filed for asylum
two years too late. To overcome this statutory bar they must
demonstrate either the existence of changed circumstances
that materially affect their eligibility for asylum or extraor-
dinary circumstances relating to the delay in filing the
petition, 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4), (5).
Pursuant to 8 U.S.C. § 1158(a)(3), courts have no jurisdic-
tion to review a determination that an asylum application
is barred due to noncompliance with the statutory time
limit or the denial of one of the statutorily allowed excuses.
However, the REAL ID Act of 2005, among other legal
changes, conferred explicit jurisdiction on this court for
appellate review of constitutional claims and questions of
law. See REAL ID Act of 2005, § 106 (a)(1)(ii), amending 8
U.S.C. § 1252(a)(2). Pub. L. No. 109-13, 119 Stat. 231, 310-
11 (2005).
In this case, the Mabasas allege a due process violation in
their appeal to the BIA. The Mabasas contend that they
were not afforded a meaningful opportunity to be heard
since the BIA wrongly analyzed their claim as one of
extraordinary circumstances when, in fact, they have
argued all along that their case is one of changed circum-
No. 04-4144 5
stances. Given the BIA’s error, under the REAL ID Act we
have jurisdiction to consider the Mabasas’ claim. While the
BIA mistakenly characterized the Mabasas’ excuse as one
of extraordinary circumstances, the Immigration Judge
(“IJ”) properly addressed their petition as one claiming
changed circumstances. We review claims for asylum,
withholding of removal, and relief under CAT using the
substantial evidence standard. Ahmed v. Ashcroft, 348 F.3d
611, 615 (7th Cir. 2003). With this standard, we assess
whether the BIA’s determination was “supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” Id. (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). We overturn the BIA’s
decision only if “the record compels a contrary result.”
Brucaj v. Ashcroft, 381 F.3d 602, 606 (7th Cir. 2004) (citing
Georgis v. Ashcroft, 328 F.3d 962, 967-68 (7th Cir. 2003)).
We review the BIA’s legal conclusions de novo. Ahmed, 348
F.3d at 615. Aside from the BIA’s mistaken characterization
of the Mabasas’ claim, it summarily adopted the IJ’s
conclusions and its ultimate decision. As a result we will
review the IJ’s decision directly under the same standards
set forth for the BIA. See Balogun v. Ashcroft, 374 F.3d 492,
498 (7th Cir. 2004).
While it is true that the BIA was careless in wording its
decision that affirmed the IJ’s opinion in this case, the error
was harmless as the IJ was correct in denying the Mabasas’
asylum application. Thus, under either of the statutorily
provided excuses, extraordinary circumstances or changed
circumstances, the Mabasas would have lost their asylum
claim. Mr. Mabasa asserts that his situation constitutes
changed circumstances because the political climate in
Zimbabwe worsened since he was in the United States and
because members of the ruling party have recently become
interested in Mr. Mabasa’s efforts on behalf of the MDC in
Indiana. These events, however, do not constitute changed
circumstances under the statutory meaning of the term.
The Mugabe government and the oppressive climate that it
6 No. 04-4144
engenders is the same today as when the Mabasas left
Zimbabwe. The State Department Country Report for 2004
suggests that since President Mugabe and his undemocratic
regime have been in power for 25 years, their control over
the government through an election that was deemed to be
neither free nor fair is not a new or a changed circum-
stance, but rather (and unfortunately) business as usual.
Further, the fact that Mr. Mabasa became active again in
the MDC does not support a finding of changed circum-
stances since it was his very activity in the MDC that made
him flee Zimbabwe originally. The proper time for Mr.
Mabasa to file his asylum claim was in the year 2000. His
contentions do not represent changed circumstances.
Instead, they appear to be the same circumstances. There-
fore, we affirm the BIA’s denial of the Mabasas’ asylum
claim.
The Mabasas next argue that the BIA erred in finding
that they were not entitled to withholding of removal or for
protection under the CAT. Because the BIA summarily
affirmed the IJ’s decision, it constitutes the final agency
determination for purposes of our review. Balogun, 374 F.3d
at 498. The Court reviews agency decisions to deny requests
for withholding of removal under the highly deferential
substantial evidence standard. Uwase v. Ashcroft, 349 F.3d
1039, 1041 (7th Cir. 2003). For the Court to reverse the IJ’s
decision, Mr. Mabasa must show that “the evidence not only
supports that conclusion, but compels it.” INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992) (emphasis in origi-
nal).
To establish eligibility for withholding of removal, an
applicant must show that his or her “life or freedom would
be threatened in the proposed country of removal.” INA
§ 241(b)(3), 8 C.F.R. § 1208.16(b). The INA does not require
withholding if an applicant “ ‘might’ or ‘could’ be subject to
persecution.” INS v. Stevic, 467 U.S. 407, 422 (1984). In
No. 04-4144 7
fact, an applicant must establish a “clear probability” of
persecution to avoid deportation. Id. at 413. A clear proba-
bility can be shown if the applicant can demonstrate that “‘it
is more likely than not that the alien would be subject to
persecution.’ ” INS v. Cardoza-Fonseca, 480 U.S. 421, 423
(1987) (quoting Stevic, 467 U.S. at 429-30).
The BIA agreed with the IJ’s finding that Mr. Mabasa
failed to establish a clear probability of persecution. Mr.
Mabasa, while establishing that some of his family mem-
bers were harmed by the government on account of their
MDC membership, does not show that he likewise would be
harmed by the government on account of his political
opinion. The Mabasas’ family that was harmed by the
government were either leaders in the MDC or influential
business and landowners, not just members in the MDC.
Mr. Mabasa’s involvement in the MDC, in comparison, is
minor and he has not described himself as an influential
businessman or landowner in Zimbabwe. Although persecu-
tion of an applicant’s family may be relevant in determining
whether an applicant’s fear of persecution is well-founded,
this court has held that a claim of “derivative persecution,”
without additional evidence that a respondent himself or
herself would be subjected to future persecution, does not
establish a well-founded fear of persecution. See Tamas-
Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000); Najafi v.
INS, 104 F.3d 943, 947 (7th Cir. 1997).
Further, after thorough analysis, the IJ concluded that
Mr. Mabasa had failed the lower burden of proof required
for asylum. Thus, it logically follows that the Mabasas
failed to satisfy the more stringent clear probability of
persecution standard required for withholding of removal.
See Marquez v. INS, 105 F.3d 374, 382 (7th Cir. 1997).
Consequently, we affirm the BIA’s decision denying the
Mabasas’ application for withholding of removal.
Finally, the Mabasas argue they are eligible for withhold-
ing of removal under the CAT. An applicant for withholding
8 No. 04-4144
of removal under the CAT bears the burden of proving that
it is “more likely than not that he or she would be tortured
if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). Torture is defined as “any act by
which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person . . . with the consent or
acquiescence of a public official.” Rashiah v. Ashcroft, 388
F.3d 1126, 1131 (7th Cir. 2004) (citing 8 C.F.R.
§ 208.18(a)(1)). Acquiescence requires that the public
official have prior awareness of the activity and thereafter
breach his or her legal responsibility to intervene to prevent
such activity. 8 C.F.R. § 1208.18(a)(7).
The IJ found that Mr. Mabasa did not present sufficient
evidence to support his claim that he would be tortured.
She held that Mr. Mabasa did not meet the standard of
showing that it is “more likely than not” that he would be
tortured if removed to Zimbabwe. Therefore, the BIA was
correct in affirming the denial of Mr. Mabasa’s request for
withholding of removal under the CAT.
III. Conclusion
The IJ’s and BIA’s decisions regarding the Mabasas are
AFFIRMED and their petition for review is denied.
WILLIAMS, Circuit Judge, dissenting. I agree that,
notwithstanding the BIA’s mischaracterization of the
circumstances surrounding the Mabasas’ delayed asylum
efforts, their asylum claim was properly dismissed as
untimely. However, I disagree with my colleagues’ conclu-
sion that Mr. Mabasa failed to show he likely will be
harmed by the Zimbabwean ruling party if he is deported.
No. 04-4144 9
Because I believe the Mabasas are entitled to withholding
of removal or protection under the Convention Against
Torture (“CAT”), I respectfully dissent.
To establish a claim for withholding of removal, a peti-
tioner must demonstrate that his life or freedom would be
threatened in his home country on account of his race,
religion, nationality, membership in a particular social
group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A);
Cuevas v. INS, 43 F.3d 1167, 1171 (7th Cir. 1995). Simi-
larly, to obtain protection under the CAT, the petitioner
must “establish that it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 208.16(c)(2). In essence, to establish a
claim for withholding of removal or for protection under the
CAT, Mr. Mabasa must demonstrate that there is a clear
probability (more likely than not) he will be persecuted1 or
tortured2 if he is returned to Zimbabwe. Zheng v. Gonzales,
409 F.3d 804, 809 (7th Cir. 2005).
1
“[P]ersecution means punishment or the infliction of harm for
political, religious, or other reasons that this country does not
recognize as legitimate . . . includ[ing] . . . detention, arrest,
interrogation, prosecution, imprisonment, illegal searches,
confiscation of property, surveillance, beatings, or torture.”
Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th Cir. 2005)
(internal quotations omitted).
2
“Torture is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act he or
she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or a third
person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
10 No. 04-4144
The majority concludes that, despite uncontroverted
evidence documenting his family’s incidents of persecution
and torture at the hands of the Zimbabwean government,
Mr. Mabasa has failed to show that he would be harmed on
account of his political opinion. This is where my colleagues
and I disagree. Mr. Mabasa presented compelling evidence
that he likely will face persecution and torture if returned
to Zimbabwe.
First, as the majority acknowledges, political conditions
in Zimbabwe are oppressive. President Mugabe’s autocratic
regime has, over the course of 25 years, ruled the country
through intimidation and violence. In 2002, the United
States issued a State Department report describing political
conditions in Zimbabwe:
“[T]he Government of Zimbabwe developed and em-
ployed an aggressive strategy designed to cripple its
political opposition. This strategy was marked by a
collapse in the rule of law, serious human rights
abuses, and the subversion of democratic institutions
including the judiciary and independent media . . .
[T]he Government of Zimbabwe pursued economic
policies, including a violent and chaotic land redistribu-
tion program that resulted in Zimbabwe’s downward
economic spiral.”
Appellants’ Brief, Short Appendix at 33.
Second, Mr. Mabasa’s alignment with the political
minority has made him a target of government backlash: as
a result of his MDC membership, in 1999, Mr. Mabasa was
threatened by a Zimbabwean ruling-party official; after he
fled to the United States, government supporters assaulted
and threatened his wife in an effort to discover his where-
abouts; and, perhaps most persuasive, Mr. Mabasa received
a clear murder threat (vis-á-vis his brother) from govern-
ment intelligence officers warning that he would be killed
if he returned to Zimbabwe.
No. 04-4144 11
The majority discounts the likelihood that Mr. Mabasa
will be harmed, stating that MDC leaders or organizers are
susceptible to persecution and torture, whereas MDC
members are not. However, the record does not support this
premise. To the contrary, Mr. Mabasa’s brother testified at
the immigration proceeding that, while attending an MDC
rally in 2002, ruling-party supporters “attacked the MDC
members.” IJ Order at 5. The brother testified that he was
beaten during the melee, and that his cousin was beaten
and tortured for two days. Nothing in the record indicates
that either of them was an MDC leader or organizer.
Instead, this testimony, which the IJ credited, suggests that
active MDC members are routine targets of ruling-party
violence, regardless of their place in the opposition hierar-
chy.
Even more puzzling given the outcome here, the immigra-
tion judge found Mr. Mabasa to be credible, noting that
“there are no significant discrepancies between the testi-
mony and the documentary evidence in support of the
application.” IJ Order at 6. In the normal course, “[t]he
testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.” 8 C.F.R.
§ 208.16(c)(2). In addition, corroborating evidence that is
relevant to the applicant’s burden of proving the possibility
of future torture may include evidence of past torture
inflicted on the applicant, evidence of “gross, flagrant or
mass violations of human rights within the country of
removal,” and other information regarding conditions in the
country of removal. 8 C.F.R. § 208.16(c)(3)(iii). For instance,
in Lhanzom v. Gonzales, 430 F.3d 833 (7th Cir. 2005), we
addressed a Tibetan petitioner’s claims for withholding of
removal and protection under the CAT, in which she alleged
being forced into a Chinese labor camp and having her
political activities monitored by the Chinese government. In
granting the petition for review, we acknowledged that if
the petitioner was credible, she would meet the requisite
12 No. 04-4144
standard for demonstrating persecution and torture. Id.
at 849.
It is, therefore, difficult to reconcile the IJ’s determination
that credible evidence existed that Zimbabwean government
officials directly threatened Mr. Mabasa’s life with her
ultimate conclusion that he is not entitled to withholding of
removal. To be sure, if we were solely reviewing the merits
of the Mabasas’ asylum claim, then the IJ’s discretionary
determination would arguably withstand this court’s
deferential standard of review. This case is different,
however, because we are also asked to review the IJ’s
determination that the Mabasas are not entitled to with-
holding of removal or protection under the CAT. “Unlike the
decision to grant asylum, which is discretionary even if the
criteria for asylum are met, the Attorney General must
withhold deportation if he determines ‘that the alien’s life
or freedom would be threatened . . . because of the alien’s
race, religion, nationality, membership in a particular social
group, or political opinion.’ ” Firmansjah v. Gonzales, 424
F.3d 598, 604-05 (7th Cir. 2005) (quoting 8 U.S.C.
§ 1231(b)(3)(A)) (emphasis in original).
At the end of the day, neither the IJ, the BIA, nor my
colleagues disbelieve Mr. Mabasa’s rendition of the facts.
Yet, his evidence still falls short, and it is unclear what
more the law requires. Where political oppression in a
petitioner’s home country is business as usual, the peti-
tioner receives a murder threat from government officials
on account of his political beliefs, and the immigration
judge concludes there is “no basis upon which to doubt the
lead respondent’s credibility,” I believe the record estab-
lishes a presumption of clear probability of future persecu-
tion and torture. IJ Order at 6. Furthermore, the Govern-
ment has not rebutted this presumption by demonstrating
a fundamental change in circumstances. See Firmansjah,
424 F.3d at 605. Indeed, the Government has done quite the
contrary, arguing that there have been no changed circum-
No. 04-4144 13
stances in Zimbabwe that would justify the untimeliness of
the Mabasas’ asylum claim. The record of evidence, docu-
menting the political climate in Zimbabwe and Mr.
Mabasa’s own run-ins with the government, paints a
compelling picture of political persecution that I believe
entitles him to withholding of removal or protection under
the CAT.
For these reasons, I respectfully dissent.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-15-06