Mirisawo v. Holder
2010 U.S. App. LEXIS 5516, 599 F.3d 391, 2010 WL 963200 (2010)
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Rule of Law:
For economic harm to constitute persecution under the Immigration and Nationality Act, it must be so severe as to threaten the applicant's life or freedom. The destruction of property that an applicant has never lived in and does not depend on for their livelihood does not rise to this level.
Facts:
- Rosemary Mirisawo, a citizen of Zimbabwe, came to the United States in 1999 on a G-5 nonimmigrant visa to work as a live-in housekeeper.
- In March 2002, Mirisawo's brother, Tobias, was severely beaten in Zimbabwe by government supporters because of his active membership in the opposition political party, the Movement for Democratic Change (MDC).
- In August 2002, Mirisawo visited Zimbabwe for a month and purchased a house in Mabvuku, a suburb of Harare, for her children and brother Tobias to live in. She did not experience any harassment from the government during this trip.
- Mirisawo returned to the United States and continued her employment as a live-in housekeeper.
- In May 2005, the Zimbabwean government initiated 'Operation Restore Order,' targeting areas known for supporting the opposition party.
- During this operation, the government bulldozed and destroyed three of the four rooms of the house that Mirisawo had purchased.
- Mirisawo never personally resided in the house, and her career consisted of working as a live-in housekeeper both in Zimbabwe and the U.S.
- After the destruction, her brother and son continued to live in the one remaining room of the house.
Procedural Posture:
- On August 3, 2005, Rosemary Mirisawo filed an application for asylum with the Department of Homeland Security.
- After her visa expired, the DHS initiated removal proceedings against her.
- In a hearing before an immigration judge (court of first instance), Mirisawo conceded removability but requested asylum, withholding of removal, and protection under the Convention Against Torture.
- On October 24, 2006, the immigration judge denied all of Mirisawo's claims and ordered her removed to Zimbabwe.
- Mirisawo (appellant) appealed the denial of her asylum and withholding of removal claims to the Board of Immigration Appeals (BIA), an administrative appellate body.
- On May 29, 2008, the BIA affirmed the immigration judge's decision.
- Mirisawo (petitioner) filed a petition for review of the BIA's decision in the U.S. Court of Appeals for the Fourth Circuit.
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Issue:
Does the government's destruction of an asylum applicant's house constitute economic persecution sufficient to establish asylum eligibility when the applicant has never lived in the house and does not depend on it for her livelihood?
Opinions:
Majority - Niemeyer, Circuit Judge
No. The government's destruction of the applicant's house does not constitute economic persecution because the harm was not so severe as to threaten her life or freedom. To establish economic persecution, an applicant must show either a deliberate deprivation of basic necessities or a deliberate imposition of severe economic disadvantage, where the harm from either is so severe that it threatens the applicant's life or freedom. The destruction of the house did not deprive Mirisawo of a basic necessity, as she never lived there and her employment as a live-in housekeeper provided her with shelter. Similarly, it did not impose a severe economic disadvantage threatening her life, as she did not depend on the property for her livelihood. The court also found her fear of future persecution was not objectively reasonable because her politically active family members had not suffered recent harm and she was not harassed during her 2002 visit.
Concurring - Davis, Circuit Judge
No. The Board of Immigration Appeals (BIA) did not abuse its discretion in concluding that Mirisawo had not suffered past persecution. While the actions of the Zimbabwean government were unjust, the legal standard for persecution is exacting and does not encompass all unfair or unlawful treatment. The majority correctly applies the 'threat to life or freedom' standard, which is consistent with the law in other circuits. The BIA's determination that the destruction of a house Mirisawo never lived in did not rise to this level was a rational conclusion based on the specific record, and the court's role is to review for abuse of discretion, not to reweigh the evidence.
Concurring-in-part-and-dissenting-in-part - Gregory, Circuit Judge
Yes. The destruction of Mirisawo's home constitutes past economic persecution. Shelter is a basic necessity of life, and its intentional deprivation by the government constitutes persecution. The majority misinterprets precedent by requiring that the harm actually threaten the applicant's life, and it makes unwarranted factual assumptions that Mirisawo was forever consigned to being a live-in domestic and had no plans to live in the home she purchased as an investment for her future. The destruction of the most significant investment a person has ever made, which is also a necessity of life, is persecution as a matter of law, regardless of whether she had yet moved into the property.
Analysis:
This case refines the standard for 'economic persecution' in the Fourth Circuit by clarifying that any claimed economic harm, whether through deprivation of necessities or financial disadvantage, must meet the high threshold of threatening the applicant's life or freedom. The ruling establishes a highly individualized and fact-specific inquiry, focusing on the actual, concrete impact on the specific applicant's life rather than the nature of the government's act in the abstract. This precedent makes it significantly more difficult for asylum applicants to succeed on claims based solely on the destruction of property that they did not personally use for shelter or depend on for their livelihood.
