Sheya Mandebvu v. Eric Holder, Jr.
2014 U.S. App. LEXIS 11399
6th Cir.2014Background
- Robert Mugabe’s ZANU-PF has a long record of using violence and intimidation against political opponents in Zimbabwe; 2008 elections saw a marked escalation in politically motivated violence and torture.
- Sheya and Mtandazo Mandebvu are Zimbabwean teachers who publicly criticized ZANU-PF; they and their children fled to the U.S.; family members in Zimbabwe were harassed, beaten, and in one instance killed.
- The Mandebvus filed asylum and withholding-of-removal applications in 2008 after removal proceedings began; IJ found them credible but denied asylum as untimely and denied withholding of removal and CAT relief; BIA affirmed.
- The Sixth Circuit reviewed legal and statutory questions de novo and factual findings for substantial evidence; it accepted the IJ’s credibility findings for purposes of review.
- The Sixth Circuit held the IJ and BIA misinterpreted the "changed circumstances" exception to the one-year asylum filing deadline and remanded asylum; it also granted withholding of removal under the INA and remanded the CAT claim for further consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ/BIA erred in construing §1158(a)(2)(D) to require that changed circumstances render an applicant previously ineligible for asylum | Mandebvu: "Changed circumstances" may include worsening conditions that materially strengthen an already existing asylum claim; statute does not require prior ineligibility | Gov't/IJ: "Changed circumstances" must materially affect eligibility — i.e., produce a new basis such that applicant would not have been eligible before the change | Court: IJ/BIA applied an overly narrow interpretation; adopted Ninth Circuit approach that worsening conditions or additional evidence can qualify as "changed circumstances"; remanded asylum claim for reconsideration under correct standard |
| Whether Mandebvus are entitled to withholding of removal under the INA (clear-probability standard) on account of political opinion | Mandebvu: They were publicly critical of ZANU-PF, were perceived as opposition, were specifically monitored and targeted, and family history shows persecution is likely | Gov't/IJ: Evidence insufficient — no high-profile MDC positions, some opposition figures (e.g., witness Dr. Kaswoswe) were not harmed, so not more likely than not they would be persecuted | Court: IJ ignored key evidence and imposed improper requirement of formal party leadership; record compels finding that they would more likely than not be persecuted on political-opinion grounds — grant withholding of removal under INA |
| Whether Mandebvus are entitled to protection under the CAT (torture more likely than not) | Mandebvu: Widespread, documented torture of opposition during 2008 and later makes torture more likely than not if returned | Gov't/IJ: Decision concluded evidence insufficient to show "more likely than not" but did not analyze country report in detail | Court: BIA/IJ did not adequately address relevant country-condition evidence; remanded CAT claim for the BIA to consider the record and country reports fully |
| Jurisdiction to review timeliness denial as statutory construction question | Mandebvu: IJ’s interpretation of changed-circumstances provision is a question of statutory construction and therefore reviewable | Gov't: Determination of whether circumstances "materially affect" eligibility is factual and discretionary, not reviewable | Court: Jurisdiction exists because the challenge raises statutory-construction issue; court reviews and reverses the IJ/BIA legal interpretation |
Key Cases Cited
- Zoarab v. Mukasey, 524 F.3d 777 (6th Cir. 2008) (standard for reviewing BIA decisions that adopt and add to IJ reasoning)
- Haider v. Holder, 595 F.3d 276 (6th Cir. 2010) (withholding-of-removal burden and protected-ground analysis)
- Khozhaynova v. Holder, 641 F.3d 187 (6th Cir. 2011) (jurisdictional limits on reviewing untimely-asylum denials)
- Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008) (changed-circumstances exception can apply where fear predated the change; IJ may not deny solely because subjective fear existed earlier)
- Vahora v. Holder, 641 F.3d 1038 (9th Cir. 2011) (legislative purpose supports allowing applicants to wait until changed facts strengthen their claim)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (political opinion can be expressed by negative conduct as well as affirmative statements)
- Stserba v. Holder, 646 F.3d 964 (6th Cir. 2011) (examples of actions that can constitute persecution)