Nabulwala v. Gonzales, United States Court of Appeals for the 8th Circuit (21 March 2007)
The petitioner, a Ugandan citizen, challenged the final order of the Board of Immigration Appeals denying her claim for asylum, withholding of removal (a stay of the deportation order), and for relief under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The petitioner arrived in the United States in 2001. She eventually applied for asylum based on her past persecution as a lesbian. She had come out as a lesbian to her family in 1994, while she was a high school student. Her family was angry and urged her to marry a man. While attending university, she joined an organisation called Wandegeya, which advocated for LGBT rights. During a Wandegeya meeting, a mob attacked the group, throwing stones and hitting them with sticks. In 2001, after the petitioner’s family realised that she was still a lesbian, they forced her to have sex with a stranger. They also expelled her from the home and disowned her. The Immigration Judge found the petitioner credible but denied her application for asylum and the Board affirmed that decision. Although both the Immigration Judge and Board recognised that a lesbian might be a member of a “particular social group” under domestic refugee law (implementing the 1951 Convention Relating to the Status of Refugees), neither found her experiences rose to the level of persecution required.
Whether mistreatment at the hands of private actors could qualify as persecution under the Immigration and Nationality Act.
Immigration and Nationality Act.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
1951 Convention Relating to the Status of Refugees.
Reasoning of the Court
The Immigration Judge had denied the petitioner asylum after finding that the Wandegeya meeting was an isolated incident, that the family-arranged rape was “private family mistreatment”, and that the petitioner had not suffered past persecution that was “government-sponsored or authorised”.
The Court found that the Immigration Judge had erred in concluding that the petitioner must demonstrate persecution at the hands of government officials. It held that persecution could be a harm inflicted either by the government of a country or by persons or an organisation that the government was unable or unwilling to control. The Immigration Judge made no findings on whether the government was unable or unwilling to control the persons who had harmed the petitioner.
Since the Immigration Judge had made no findings about the government’s willingness or ability to protect the petitioner, the case was remanded to the Board of Immigration Appeals for further proceedings consistent with the Court’s opinion.
Nabulwala v. Gonzales, United States Court of Appeals for the 8th Circuit (full text of judgment, PDF)