Siphathiso Mabasa, Maureen Mabasa, and Sinobukhosi Mabasa v. Alberto R. Gonzales, Attorney General of the United States

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’ conclusion that Mr. Mabasa failed to show he likely will be harmed by the Zimbabwean ruling party if he is deported. 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 petitioner 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). Similarly, 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 re*748turned to Zimbabwe. Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir.2005).

The majority concludes that, despite un-controverted 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 employed 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 redistribution 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. Maba-sa 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 whereabouts; and, perhaps most persuasive, Mr. Mabasa received a clear murder threat (vis-a-vis his brother) from government intelligence officers warning that he would be killed if he returned to Zimbabwe.

The majority discounts the likelihood that 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 hierarchy.

Even more puzzling given the outcome here, the immigration judge found Mr. Mabasa to be credible, noting that “there are no significant discrepancies between the testimony 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. *7492005), 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 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 Ma-basas 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. Ma-basa’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 petitioner 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 establishes a presumption of clear probability of future persecution and torture. IJ Order at 6. Furthermore, the Government 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 circumstances in Zimbabwe that would justify the untimeliness of the Mabasas’ asylum claim. The record of evidence, documenting the political climate in Zimbabwe and Mr. Ma-basa’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.

. "[Pjersecution means punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate ... including] ... 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).

. “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 *748other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).