Judges: Wood
Filed: Feb. 13, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-2157 LUCY SIBANDA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals. No. A89-703-604 _ ARGUED NOVEMBER 19, 2014 — DECIDED FEBRUARY 13, 2015 _ Before WOOD, Chief Judge, and KANNE and TINDER, Circuit Judges. WOOD, Chief Judge. After fleeing from her native Zimbabwe to the United States, Lucy Sibanda applied for asylum and
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-2157 LUCY SIBANDA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals. No. A89-703-604 _ ARGUED NOVEMBER 19, 2014 — DECIDED FEBRUARY 13, 2015 _ Before WOOD, Chief Judge, and KANNE and TINDER, Circuit Judges. WOOD, Chief Judge. After fleeing from her native Zimbabwe to the United States, Lucy Sibanda applied for asylum and ..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2157
LUCY SIBANDA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A89‐703‐604
____________________
ARGUED NOVEMBER 19, 2014 — DECIDED FEBRUARY 13, 2015
____________________
Before WOOD, Chief Judge, and KANNE and TINDER, Circuit
Judges.
WOOD, Chief Judge. After fleeing from her native
Zimbabwe to the United States, Lucy Sibanda applied for
asylum and other relief from removal. She fears that if she is
repatriated, her brother‐in‐law will exercise his rights under
a tribal custom that deems her, his brother’s widow, his
property and will attempt to rape her as he has done before.
2 No. 14‐2157
The immigration judge denied Sibanda’s application, in part
for lack of corroboration of the alleged custom and the
attempted rapes. The Board of Immigration Appeals found
her account credible, but it dismissed her appeal because of
insufficient corroboration for her story.
The Board did not, however, adequately consider wheth‐
er more corroborating information was reasonably available
to Sibanda, and it appears to us that it was not. We therefore
grant the petition for review and remand to the agency for
further proceedings.
I
Arriving in the United States on a non‐immigrant visa,
Sibanda sought asylum in 2009. In her application Sibanda
stated that, after her husband died, her brother‐in‐law at‐
tempted to rape her and force her to marry him. The brother‐
in‐law was enforcing the custom of “bride‐price” or lobola, as
practiced by several tribes in Zimbabwe. After she applied
for asylum, the government started removal proceedings.
At her removal hearing, Sibanda testified that she had
married her husband, Aaron Sibanda, in 1984. Aaron paid
Sibanda’s father a bride‐price to marry her, as prescribed by
the customs of both their tribes, the Ndebele and the Shona.
His payment of money and goods, valued at 5,000 Zimba‐
bwean dollars (a considerable sum at the time), effected the
transfer of Sibanda from her father to him and his family.
One term of this transfer was that, in the event of his death,
she would become the property of her husband’s family.
That provision was triggered when Aaron died in 2002.
His brother, Major Takaza Sibanda (whose title appears to
reflect a previous military role) demanded his “property.”
No. 14‐2157 3
He insisted that he rightfully controlled his brother’s estate
(which included two houses and livestock) as well as
Sibanda herself, who he asserted was required to marry him
under the bride‐price custom. Opposed to this arrangement,
Sibanda went to court and received a “Letter of Administra‐
tion” appointing her the “Executrix Dative” of Aaron’s es‐
tate. Major Sibanda paid no heed to the court’s action. In‐
stead, he sold one of Aaron’s homes and insisted that
Sibanda marry him (and thereby become his second wife).
When she refused, Major Sibanda entered her bedroom one
night and attempted to rape her. He did so on other occa‐
sions as well, and when she fought him off, he beat her.
Once he brought a gun and threatened to put Sibanda’s old‐
er son, Brian, in jail when the son attempted to intervene.
Sibanda testified that Zimbabwean law did not protect
her from Major Sibanda. Major Sibanda and her husband’s
other brother operated above the law, she explained, be‐
cause of their status as war veterans who fought for the lib‐
eration of Zimbabwe. When Sibanda sought help from the
police on two occasions, they told her that they would not
intervene in a family matter. When she turned to her own
family for assistance, her pleas fell on deaf ears. Her brothers
told her that she should marry Major Sibanda so that their
family would not have to repay the bride‐price.
Sibanda received temporary assistance from her cousin,
Zimbabwe’s Ambassador to Cuba, but Major Sibanda con‐
tinued to pursue her. The cousin offered her employment as
a housekeeper at the Zimbabwean Embassy in Cuba.
Sibanda accepted the offer and worked there from 2003 until
March 2008, when the government removed the cousin from
his post for allegedly joining a political party opposed to
4 No. 14‐2157
President Mugabe. During her time in Cuba, Sibanda re‐
turned to Zimbabwe approximately once a year, staying for
about a month each time. During these visits, she tried to
take control of her husband’s estate and distribute his re‐
maining assets. But each time she returned, Major Sibanda
would find her, foil her attempts to control the assets, insist
again that she must marry him, and reinforce the demand
with sexual abuse. During one attack, Major Sibanda tore
her bra; another time, when she refused him, he smashed
her kitchen window. With no help from either her family or
the police, she appealed to a chief of the Ndebele tribe. But
the chief told her that she had to marry Major Sibanda under
the rules of the tribe.
By the time her cousin lost the Cuban ambassadorship,
Sibanda was afraid to travel to Zimbabwe. Major Sibanda
had in 2007 sold the remaining house from her husband’s
estate, and so Sibanda no longer had a place to take shelter.
With Major Sibanda, her brothers, and the tribal chief insist‐
ing that she was bound by the bride‐price custom, she fled to
the United States in 2008 and sought asylum a year later.
Before hearing Sibanda’s testimony, the IJ had specifical‐
ly requested that she provide corroborating evidence of her
claim. To help her do so, the judge delayed the hearing for
almost two years so that she could find and file supporting
documents by the time the IJ specified—a month before the
hearing. She was not able, however, to come up with much,
and what she had, she presented only at the hearing itself.
She relied on her original handwritten asylum application, a
two‐page handwritten statement, birth certificates for herself
and her two children, her marriage certificate, a certificate of
death for her husband, a letter from her cousin regarding her
No. 14‐2157 5
employment at the Cuban embassy, and the letter of admin‐
istration that she obtained from a Zimbabwean court. Siban‐
da also submitted a letter from her younger son, Njabulo.
She had received this letter after she arrived in the United
States; in it, Njabulo stated that if she returns, Major Sibanda
and his brother intend to kill her for “reporting them to the
police.” She said that she also had another letter from Njabu‐
lo informing her that Major Sibanda was still intent on mar‐
rying her, but that she did not have it with her. Finally,
Sibanda submitted an article about her husband’s other
brother, Jabulani Sibanda, who had threatened violence to
opponents of the Mugabe regime.
This was not enough to satisfy the IJ, who denied
Sibanda’s application for relief. He found that she credibly
had testified that a bride‐price had been paid for her mar‐
riage. He did not, however, resolve the question whether her
testimony about her duties to and attacks by Major Sibanda
was credible. Instead, he concluded that Sibanda’s failure
adequately to corroborate her testimony meant that she had
not demonstrated past persecution. The IJ observed that she
had not presented a country report or “any statements from
any authority or anyone else who was aware” of the attacks
or his demands. The IJ also concluded that Sibanda had not
demonstrated a well‐founded fear of future persecution be‐
cause she had not had contact with Major Sibanda since she
came to the United States. Finally, the IJ concluded that
Sibanda’s asserted social group (women of the Ndebele tribe
subject to the bride‐price custom) was insufficient because it
did not appear that the “custom establish[ed] an immutable
characteristic.”
6 No. 14‐2157
The Board dismissed Sibanda’s appeal. It deemed
Sibanda’s testimony credible in light of the IJ’s failure to
make an explicit credibility determination, as required by
8 U.S.C. § 1158(b)(1)(B)(iii). Nonetheless the Board rejected
Sibanda’s request for relief on the ground that she failed to
comply with the IJ’s reasonable request for corroborating ev‐
idence, such as “country conditions” reflecting her specific
bride‐price obligations, or “letters or affidavits” or “a police
report” confirming her attacks.
II
An IJ is within her rights to ask for corroborating evi‐
dence, but there are limits to that authority. The statute pro‐
vides that “[w]here the trier of fact determines that the ap‐
plicant should provide evidence that corroborates otherwise
credible testimony, such evidence must be provided unless
the applicant does not have the evidence and cannot reasonably
obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis
added); see Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir.
2010); Krishnapillai v. Holder, 563 F.3d 606, 618 (7th Cir. 2009).
The principal question in the petition before us is whether
the IJ and the Board properly considered and applied the
part of the statute we have highlighted. We review the IJ’s
decision as supplemented by the Board, Mustafa v. Holder,
707 F.3d 743, 750 (7th Cir. 2013), and will reverse a finding
that corroboration was reasonably available only if a “rea‐
sonable trier of fact is compelled to conclude that such cor‐
roborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4)(D);
see Raghunathan, 604 F.3d at 379.
The Board assumed, and so will we, that Sibanda is cred‐
ible. We thus turn immediately to the question whether the
record compels the conclusion that (more) corroborating ev‐
No. 14‐2157 7
idence was not reasonably available. The answer, we con‐
clude, is yes. Under the circumstances, Sibanda could not be
expected to furnish a supporting “letter or affidavit” from
her own family or tribe. Her brothers and the local chief both
have sided with Major Sibanda, and so they have no reason
to help her elude him through asylum. See Zhang v. Gonzales,
434 F.3d 993, 999 (7th Cir. 2006) (holding that an affidavit
from an applicant’s wife was unavailable where the appli‐
cant credibly testified that his wife was hostile to him). Let‐
ters from Sibanda’s two sons recounting past attacks were
also not reasonably available. Based on the record now be‐
fore us, it appears that only the older son had witnessed an
attack, and he was threatened by his gun‐wielding uncle
when he tried to intervene. Compare Hor v. Gonzales,
421 F.3d 497, 501 (7th Cir. 2005) (concluding that applicant’s
co‐workers would be unlikely to submit affidavits when
they knew of persecutors’ “murderous potential”).
It was also unreasonable for the Board to expect that a
police report about the attacks would exist. Sibanda testified
that the police twice told her that they would not help her.
Why would the police write a report documenting their in‐
difference? Sibanda did corroborate that she had contacted
the police: she produced a letter from her younger son,
Njabulo, stating that her two brothers‐in‐law were going to
try to kill her for reporting them to the police. The Board
discounted this letter because the son did not mention the
attack that it thought he had witnessed. But the Board con‐
fused one of Sibanda’s sons for the other. The letter was
written by Sibanda’s younger son, not her older son, Brian,
the one who witnessed the assault.
8 No. 14‐2157
In addition to the hostility, intimidation, or indifference
of family, friends, and the police, a third reason explains the
lack of corroboration: the absence of eyewitnesses. A letter
corroborating an attack is reasonable to expect only when
the witness independently saw the events. See, e.g., Weiping
Chen v. Holder, 744 F.3d 527, 530, 533 (7th Cir. 2014) (expect‐
ing corroboration from fellow merchants was reasonable
where their shops, together with applicant’s shop, were de‐
stroyed by government in the same incident); Krishnapillai,
563 F.3d at 619 (expecting corroboration from wife was rea‐
sonable where she had witnessed applicant’s persecution);
cf. Raghunathan, 604 F.3d at 380 (dismissing as insufficient
corroboration a letter from applicant’s mother because “his
mother did not witness the events in question, but merely
retold [Applicant’s] version of events”). But the only witness
to Major Sibanda’s attacks whom Sibanda mentions is her
older son, Brian—the one Major Sibanda threatened when he
attempted to help his mother.
The IJ and Board also unreasonably demanded that
Sibanda furnish reports of country conditions. In fact,
somewhat irregularly, the record indicates that the IJ had
access to some outside information. During the hearing, he
quizzed Sibanda about the custom of bride‐price, comparing
her answers to a Wikipedia article he had in front of him.
But we have no way of knowing what that article said or
how reliable it was, and it appears that the IJ never shared
the article with Sibanda. Asylum regulations and case law
invite IJs to consider reports produced by the State Depart‐
ment and other credible sources in evaluating country condi‐
tions. See 8 C.F.R. § 208.12(a); compare Hui Lin Huang v.
Holder, 677 F.3d 130, 138 (2d Cir. 2012) (“State Department
reports are … usually the best available source of infor‐
No. 14‐2157 9
mation on country conditions” (internal citations and quota‐
tion marks omitted)) to Singh v. Holder, 720 F.3d 635, 643–44
(7th Cir. 2013) (chiding the same IJ as in this case for finding
facts through Wikipedia). Although the IJ was not required
to obtain country reports on his own initiative, see Meghani
v. INS, 236 F.3d 843, 848 (7th Cir. 2001), in this case, because
the IJ already had found the Wikipedia entry, he could just
as easily have retrieved more reliable country reports and
properly put them into the record. In practice, the “reasona‐
bly available” requirement ensures that an IJ is supplied
with evidence that is reasonably available to the applicant
and that corroborates an applicant’s particular situation.
See, e.g., Weiping Chen, 744 F.3d at 533 (requiring corroborat‐
ing evidence about government’s demolition of applicant’s
store); Raghunathan, 604 F.3d at 380 (requiring corroborating
evidence about medical treatment applicant underwent fol‐
lowing assault); Eke v. Mukasey, 512 F.3d 372, 381 (7th Cir.
2008) (requiring corroborating evidence about applicant’s
sexual orientation).
Even if Sibanda had supplied the reports herself, they
would have shown only that her claim was plausible; they
could not have corroborated her specific experience with
bride‐price and the attacks by Major Sibanda. The State De‐
partment report from 2011 states only that “[d]espite legal
prohibitions, women remain vulnerable to entrenched cus‐
tomary practices, including … forcing widows to marry the
brothers of their late spouses.” U.S. DEP’T OF STATE, COUNTRY
REPORTS ON HUMAN RIGHTS PRACTICES FOR 2011: ZIMBABWE,
at 40–41 (2011), available at http://www.state.gov/documents/
organization/186469.pdf. A report from the Australian gov‐
ernment, which refers to the practice as “widow inheritance”
or kugara nhaka, offers only slightly more. It states that the
10 No. 14‐2157
practice is still quite common and that women who resist it
have few protections and are often subject to violence, espe‐
cially where, as here, the persecutors are connected with
Zimbabwe’s governing party. AUSTRALIAN GOV’T, REFUGEE
REVIEW TRIBUNAL, COUNTRY ADVICE: ZIMBABWE, ZWE37973,
at 1, 3, 5 (Jan. 14, 2010), available at http://www.refworld.
org/docid/505aff862.html.
Evidence of country conditions “cannot substitute for an
individualized determination of an asylum or withholding
claim,” Zheng v. Gonzales, 409 F.3d 804, 811 (7th Cir. 2005).
Sibanda, as we have explained, could not reasonably have
presented more corroborating evidence than she did. That
fact means that there can be no avoiding a careful assess‐
ment of her credibility. The IJ did only half of the job: he
found that the bride‐price was paid, but he bypassed the
question whether her account of the duties imposed by
bride‐price and the attacks she suffered was credible. The
Board assumed Sibanda’s credibility on all issues, but then it
unreasonably demanded corroboration. The IJ must deter‐
mine whether Sibanda’s account of her duties under local
law and custom to Major Sibanda is accurate and whether
her testimony about his attacks is credible. If he finds her
credible on these matters, that is enough to show past perse‐
cution.
Three other issues deserve brief comment. First, the IJ
concluded that Sibanda did not show that she was part of a
particular social group. The Board did not address this find‐
ing, and the government has thus requested that we refrain
from deciding it. We agree that this should be decided by the
Board in the first instance. See INS v. Ventura, 537 U.S. 12,
16–17 (2002). We note, however, that on the record presently
No. 14‐2157 11
before us, Sibanda’s proposed social group—married wom‐
en subject to the bride‐price custom—appears to fall easily
within this court’s established definition of particular social
group. See Cece v. Holder, 733 F.3d 662, 669–70 (7th Cir. 2013)
(en banc); see also Ngengwe v. Mukasey, 543 F.3d 1029, 1031–
32, 1034 (8th Cir. 2008) (concluding that a widow from Cam‐
eroon stated a claim for asylum as a member of a particular
social group where she resisted marrying her brother‐in‐law
and suffered persecution as a result). Second, neither the IJ
nor the Board decided whether the Zimbabwean govern‐
ment, because it is either “unable or unwilling” to stop Ma‐
jor Sibanda, see Halim v. Holder, 755 F.3d 506, 512 (7th Cir.
2014), is complicit in his conduct. That issue remains open
on remand. Finally, the Board, agreeing with the IJ, decided
that Sibanda did not show a well‐founded fear of future per‐
secution because she had no evidence of ongoing threats
from Major Sibanda. Because a finding of past persecution
would create a rebuttable presumption of persecution in the
future, see Stanojkova v. Holder, 645 F.3d 943, 946 (7th Cir.
2011), the relevance (if any) of this ruling may change on
remand.
III
We GRANT the petition and REMAND for further proceed‐
ings consistent with this opinion.