Rosemary Mirisawo v.  ERIC H. HOLDER, JR., Attorney General

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ROSEMARY MIRISAWO,
Petitioner,
v. No. 08-1704 
ERIC H. HOLDER, JR., Attorney
General,
Respondent. 
On Petition for Review of an Order of
the Board of Immigration Appeals.
Argued: December 1, 2009
Decided: March 17, 2010
Before NIEMEYER, GREGORY, and DAVIS,
Circuit Judges.
Petition denied by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Davis joined. Judge Davis wrote
a separate concurring opinion. Judge Gregory wrote a sepa-
rate opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Virginia Leigh Hudson Nesbitt, MCGUIRE-
WOODS, LLP, Richmond, Virginia, for Petitioner. Paul
Thomas Cygnarowicz, UNITED STATES DEPARTMENT

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OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Tony West, Assistant Attorney General, Civil Divi-
sion, Daniel E. Goldman, Senior Litigation Counsel, Office of
Immigration Litigation, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.
OPINION
NIEMEYER, Circuit Judge:
Rosemary Mirisawo, a native and citizen of Zimbabwe,
filed this petition for review of the Board of Immigration
Appeals’ decision affirming an immigration judge’s removal
order, ordering her removed from the United States to Zimba-
bwe.
A few months before Mirisawo’s G-5 visa was about to
expire, she sought to forestall her removal from the United
States by claiming asylum and withholding of removal under
the Immigration and Nationality Act ("INA") and protection
under the Convention Against Torture ("CAT"). She based
her claims on past economic persecution because her house in
Zimbabwe had been substantially destroyed by the govern-
ment as part of Operation Restore Order and on a likelihood
of future persecution because of the possibility that the politi-
cal opinions of family members and those living in her neigh-
borhood would be imputed to her.
The immigration judge and the Board of Immigration
Appeals ("BIA") denied Mirisawo’s claims, holding that the
destruction of her house did not rise to the level of economic
persecution and that the lack of recent persecution of any of
her close family members suggested that Mirisawo would not
herself be subjected to persecution upon her return to Zimba-
bwe. From the BIA’s decision, she filed this petition for
review.
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Because we conclude that the BIA’s conclusions are sup-
ported by substantial evidence, we deny Mirisawo’s petition
for review.
I
Rosemary Mirisawo was born in Harare, Zimbabwe, in
1966 and lived there until she came to the United States in
1999. She came to the United States on a nonimmigrant G-5
visa to work as a housekeeper, leaving her children with fam-
ily members in Zimbabwe. Mirisawo has worked as a house-
keeper, both in Zimbabwe and the United States, since she
was 20 and, during this time, has lived in the homes of her
employers. She has four children, as well as two brothers and
eight sisters. The oldest of Mirisawo’s children is a daughter
named Tsitsi, who was born out of a rape by Mirisawo’s uncle
when Mirisawo was 14 years old. Since Tsitsi’s birth, Miri-
sawo has been married twice. Her first marriage, which ended
in divorce after two years, produced a daughter Mukhile. Her
second marriage, which ended when her husband died in
1996, produced a son Teddy and a daughter Emily. All of her
children now live with family members in Harare, Zimbabwe.
Mirisawo remained in the United States, employed as a
housekeeper, until August 2002, when she returned to Zimba-
bwe for a month to visit family and to provide better accom-
modations for her children and brother, Tobias. A few months
prior to her visit—in March 2002—Tobias had been severely
beaten by supporters of the Zimbabwean government because
he was an active member of the Movement for Democratic
Change ("MDC"), a political party that opposed Robert
Mugabe, the leader of the ZANU-PF party and the president
of Zimbabwe for the last 29 years. Tobias was hospitalized
following the beating and continues to receive medical treat-
ment for his injuries. To avoid being associated with Tobias
and his political activities during her visit, Mirisawo stayed
with her sister Maggie. During her stay, she purchased a home
in Mabvuku, a suburb of Harare, for Tobias and her children.
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While in Zimbabwe during this visit, Mirisawo did not
experience any difficulties with the government—she was not
stopped, questioned, harassed, or beaten. When she returned
to the United States, she was again admitted on a nonimmi-
grant G-5 domestic employee visa, which authorized her to
remain in the United States until November 8, 2005.
In May 2005, the Mugabe government began implementing
Operation Restore Order, pursuant to which it destroyed thou-
sands of homes and buildings in Harare for the officially
stated purpose of cleaning out urban slums. It was widely
believed, however, that the operation was retributive, target-
ing areas known by the government to have voted for the
opposition in presidential and parliamentary elections. In the
course of Operation Restore Order, the government bulldozed
three of the four rooms in the house that Mirisawo had pur-
chased for Tobias and her children. Tobias and Mirisawo’s
son continued to live in the remaining room, while her other
children went to live with Mirisawo’s sister, Maggie.
According to the country report prepared by the United
States Department of State in 2006, the human rights record
of the Zimbabwean government was "very poor." The report
noted that persons perceived to be opposition supporters were
tortured, raped, and abused by government-sanctioned youth
militia and ruling-party supporters and that the government
"routinely used selective violence to achieve its political
objectives."
Despite these conditions, Tobias, Mirisawo’s daughter
Tsitsi, and Mirisawo’s sister Maggie continue to be members
of the MDC. Since his beating in 2002, Tobias has not experi-
enced any further threats or abuses. Tsitsi has never been
harmed, but she was threatened into purchasing a ZANU-PF
identification card. Maggie also has never been harmed or
even threatened, although she keeps her membership in the
MDC secret and does not live in the area of Harare where
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Mirisawo claims the government presumes all residents to be
MDC members.
On August 3, 2005, some three months before her G-5 visa
was to expire, Mirisawo filed an application for asylum with
the Department of Homeland Security ("DHS"). After her
visa expired, however, the DHS served her with a notice to
appear, charging her with removability pursuant to 8 U.S.C.
§ 1227(a)(1)(B) as an alien present in the United States in vio-
lation of law.
At the removal proceedings before an immigration judge,
Mirisawo acknowledged that she was removable, but she
claimed eligibility for asylum on the grounds that she had suf-
fered past persecution in that her house was destroyed and
that she was likely to suffer future persecution upon return to
Zimbabwe because the political opinions of her family mem-
bers and of persons in her neighborhood would be imputed to
her.* Mirisawo also claimed that she was eligible for with-
holding of removal for the same reasons. Finally, she
requested protection under CAT.
The immigration judge held that the destruction of Mirisa-
wo’s house did not amount to past persecution because Miri-
sawo had never lived in the house nor depended on it for her
livelihood. The immigration judge also held that she was not
likely to face future persecution because she had not been
harassed upon her return to Zimbabwe in 2002 and because
none of her family members who remained in Zimbabwe had
been harmed since Tobias’ beating in 2002. Because Miri-
sawo had not satisfied the lower standard for claiming asy-
*Neither party raised as an issue the fact that Mirisawo did not file her
application for asylum within one year of her arrival in the United States,
as required by 8 U.S.C. § 1158(a)(2)(B). Because she filed her application
before the expiration of her nonimmigrant status, the immigration judge
found that she met the "extraordinary circumstances exception" of 8
U.S.C. § 1158(a)(2)(D) and considered her application for asylum.
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lum, the immigration judge held that she did not meet the
higher standard for withholding of removal. Finally, the
immigration judge dismissed Mirisawo’s CAT claim, as she
did not show that it was probable that the government would
torture her "for any reason." Accordingly, by order dated
October 24, 2006, the immigration judge ordered Mirisawo
removed from the United States to Zimbabwe.
On appeal to the BIA, Mirisawo argued only her asylum
and withholding of removal claims. By decision dated May
29, 2008, the BIA affirmed the immigration judge’s determi-
nations and order. Mirisawo filed this petition for review of
the BIA’s decision.
II
The Attorney General is authorized to grant asylum to any-
one who is a "refugee" within the meaning of 8 U.S.C.
§ 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1). A "refugee" is
defined as a person who is "unable or unwilling to return to,
and is unable or unwilling to avail himself or herself of the
protection of, [the person’s home country] because of perse-
cution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). The
applicant for asylum bears the burden of establishing eligibil-
ity for asylum based on refugee status. 8 C.F.R. § 208.13(a);
Gonhasa v. INS, 181 F.3d 538, 541 (4th Cir. 1999).
Accordingly, to establish eligibility for asylum, the appli-
cant must demonstrate that she has suffered from past perse-
cution or that she has a well-founded fear of future
persecution. See 8 C.F.R. § 208.13(b); Abdel-Rahman v. Gon-
zales, 493 F.3d 444, 449 (4th Cir. 2007). And to establish a
well-founded fear of future persecution, the applicant must
demonstrate that "(1) a reasonable person in the circum-
stances would fear persecution; and (2) that the fear has some
basis in the reality of the circumstances and is validated with
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specific, concrete facts." Huaman-Cornelio v. BIA, 979 F.2d
995, 999 (4th Cir. 1992) (internal quotation marks omitted).
"In other words, an asylum applicant must demonstrate a sub-
jectively genuine and objectively reasonable fear of future
persecution on account of a statutorily protected ground."
Abdel-Rahman, 493 F.3d at 449.
While "persecution" is often manifested in physical vio-
lence, "the harm or suffering [amounting to persecution] need
not be physical, but may take other forms," so long as the
harm is of sufficient severity. H.R. Rep. No. 95-1452, at 5
(1978), reprinted in 1978 U.S.C.C.A.N. 4700, 4704. Among
the forms of nonphysical harm amounting to persecution is
that of "economic persecution," which includes the "deliberate
deprivation of basic necessities" and the "deliberate imposi-
tion of severe economic disadvantage." See In re T-Z-, 24 I.
& N. Dec. 163, 171 (BIA 2007). In both circumstances, how-
ever, the harm amounting to "economic persecution" must be
so severe that it threatens the life or freedom of the applicant.
See Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005)
("[E]conomic penalties ‘rise to the level of persecution’ only
if such ‘sanctions are sufficiently harsh to constitute a threat
to life or freedom’" (quoting Ahmed v. Ashcroft, 396 F.3d
1011, 1014 (8th Cir. 2005))); In re T-Z-, 24 I. & N. Dec. at
171 ("[E]conomic persecution may involve the deliberate
deprivation of basic necessities such that life or freedom is
threatened"). Thus, to establish "economic persecution," an
asylum applicant must demonstrate that, on account of one of
the statutorily enumerated grounds, see 8 U.S.C.
§ 1101(a)(42)(A), the applicant’s life or freedom has been
threatened by either (1) a deliberate and severe deprivation of
basic necessities or (2) a deliberate imposition of severe
financial disadvantage. It is important to emphasize that not
every economic deprivation or disadvantage makes a person
a "refugee." Rather, it must be a deprivation or disadvantage
so severe that it threatens the person’s very life or liberty.
Relief in the form of withholding of removal, which also is
based on persecution, "implicates a more demanding standard
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of proof than the ‘well-founded fear’ standard applicable to
asylum requests, in that a ‘[w]ithholding of removal is avail-
able only to an alien who can demonstrate a clear probability
of persecution on account of his race, religion, nationality,
membership in a social group, or political opinion.’" Abdel-
Rahman, 493 F.3d at 449 (emphasis added) (quoting Ngarurih
v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004)). Thus, an
applicant who fails to meet the lower standard for showing
eligibility for asylum will be unable to satisfy the higher stan-
dard for showing withholding of removal. Id.
On a petition for review, the BIA’s determination that an
alien is not eligible for asylum or withholding of removal
must be upheld unless it is "manifestly contrary to law and an
abuse of discretion." 8 U.S.C. § 1252(b)(4)(D). Moreover, the
BIA’s decision is deemed conclusive "if supported by reason-
able, substantial and probative evidence on the record consid-
ered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (internal quotation marks omitted); Abdel-Rahman,
493 F.3d 448. We review legal issues de novo, Blanco de Bel-
bruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004), but we
treat findings of fact "as conclusive unless the evidence before
the BIA was such that any reasonable adjudicator would have
been compelled to conclude to the contrary," Haoua v. Gon-
zales, 472 F.3d 227, 231 (4th Cir. 2007) (emphasis added)
(citing 8 U.S.C. § 1252(b)(4)(B)).
III
Mirisawo contends that she is eligible for asylum and with-
holding of removal because she suffered past economic perse-
cution when the government destroyed her house during
Operation Restore Order. She claims that the destruction of
her house constituted economic persecution either because a
house is a basic necessity for survival or because its destruc-
tion caused her to suffer severe financial disadvantage. She
also argues that the BIA misunderstood the standard for
showing economic persecution by conflating the two bases for
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establishing it into one and requiring that both be shown to
demonstrate economic persecution.
Addressing first the procedural issue raised by Mirisawo—
that the BIA misapplied the standard for establishing eco-
nomic persecution—we have reviewed the record and con-
clude that the BIA did not err in the way Mirisawo claims.
Rather, the BIA’s focus on the financial impact of the destruc-
tion of Mirisawo’s house was due to the fact that Mirisawo’s
brief filed with the BIA relied primarily on this ground in
arguing that she had suffered economic persecution.
With respect to Mirisawo’s first substantive point on appeal
— that the BIA erred in concluding that she had failed to
demonstrate that the destruction of her house was a deliberate
and severe deprivation of a basic necessity of life—we con-
clude that the BIA’s judgment is supported by substantial evi-
dence. At the time of the government’s partial destruction of
her house, Mirisawo had never lived in the house and was liv-
ing and working in the United States as a live-in housekeeper.
Nor is it likely that Mirisawo will ever need to live in the
house, as she will likely continue to be employed as a live-in
housekeeper if she returns to Zimbabwe. Mirisawo focuses on
the facts that the property destroyed was a house and that the
effect of Operation Restore was to deprive many Harare resi-
dents of the shelter necessary for their survival. But when
evaluating the significance of the partial destruction of her
house, we must focus not on the effect the government action
had on the house itself or on others impacted by the govern-
ment action, but on the effect the action had on Mirisawo’s
life and liberty. In this case, the record supports the conclu-
sion that the destruction of Mirisawo’s house in no way inter-
fered with her ability to provide housing for herself, and
therefore we cannot say that she was deprived of a basic
necessity that threatened her "life or freedom." See In re
T–Z-, 24 I. & N. Dec. at 171 ("In one sense, economic perse-
cution may involve the deliberate deprivation of basic neces-
sities such that life or freedom is threatened").
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With respect to Mirisawo’s contention that the destruction
of her house was "the deliberate imposition of severe eco-
nomic disadvantage," see id., the BIA found that the destruc-
tion of Mirisawo’s house did not impose sufficiently severe
financial harm to constitute economic persecution, mainly
because Mirisawo did not depend on her house for her liveli-
hood. Mirisawo spent her career employed as a housekeeper,
and the destruction of her house in no way interfered with her
ability to continue in this type of employment. Moreover, she
never attempted to live in the house nor expressed any inten-
tion to live there. While the partial destruction of her house
undoubtedly resulted in an investment loss, Mirisawo did not
rely on that investment for current or future income and did
not, nor does not, need a return on that investment to continue
working as a housekeeper and living as she has. In these cir-
cumstances, we cannot say that the BIA erred in concluding
that the harm imposed was not sufficiently severe to consti-
tute a threat to Mirisawo’s life or freedom. See id. at 174 (not-
ing that the "availability of other sources of income has been
a key factor in assessing the impact of economic sanctions");
Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000)
(finding support for the BIA’s conclusion that the alien was
not subject to past persecution when the government forced
him to close one of his businesses because he was still able
to operate other businesses); Ubau-Marenco v. INS, 67 F.3d
750, 755 (9th Cir. 1995) (same), overruled on other grounds
by Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996); see also
Li, 405 F.3d at 178 (holding that a fine equivalent to more
than one year’s wages was not so severe as to compel a con-
clusion that it threatened the applicant’s life or freedom).
In sum, the BIA’s decision that Mirisawo did not suffer an
economic deprivation sufficient to constitute past persecution
is amply supported by the evidence. Certainly, we cannot con-
clude that an objective adjudicator would be compelled to dis-
agree with the BIA’s findings. See 8 U.S.C. § 1252(b)(4)(B).
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IV
Mirisawo also contends that she has a well-founded fear of
future persecution based on "a political opinion that may be
imputed to her by virtue of her family ties or her status as an
impoverished land-owner in Harare." She claims that the Zim-
babwean government will believe that she is a member of the
MDC because her brother Tobias, daughter Tsitsi, and sister
Maggie are all members of the MDC and because it is widely
believed that most of the residents of her neighborhood are
members of the MDC.
While the BIA accepted Mirisawo’s claim that she had a
subjective fear of persecution, it rejected the notion that her
fear was objectively reasonable. It reached its conclusion
based in part on the fact that when Mirisawo returned to Zim-
babwe in 2002, she faced no persecution of any type. It also
noted that neither her oldest daughter nor her sister had ever
suffered any persecution and that her brother Tobias, while
having been beaten in 2002, has continued to live in Zimba-
bwe without further incident. We conclude that these facts
provide substantial evidence to support the BIA’s conclusion.
The fact that family members whose political opinions Miri-
sawo fears will be imputed to her have not themselves faced
harm fatally undermines her claim that she will suffer perse-
cution because of her association with them. Moreover, the
fact that she herself suffered no acts of persecution when she
returned to Zimbabwe in 2002, shortly after her brother
Tobias had been beaten, is highly probative.
For the foregoing reasons, we affirm the decision of the
BIA and deny Mirisawo’s petition for review.
PETITION DENIED
DAVIS, Circuit Judge, concurring:
I join the majority opinion in full and write briefly to
amplify certain truths.
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Of course, all members of the panel "are acutely aware that
our job as a reviewing court is not to reweigh the evidence
before the IJ." Baharon v. Holder, 588 F.3d 228, 233 (4th Cir.
2009) (Gregory, J.). Yet, our evaluation of the BIA’s interpre-
tation of the partial destruction of a house owned by Peti-
tioner, under the applicable deferential standard of review,
divides us, in part.1 President Robert Mugabe’s once promis-
ing tenure as the leader of Zimbabwe has been marred in
recent years by election-rigging, arson, kidnappings, killings,
and general violence against the opposition.2 But the issue in
this case is not whether Mugabe is an insufferable tyrant. We
are not asked to determine the extent to which Zimbabweans
suffer, generally, under his regime. The issue before us is
whether the BIA abused its discretion in its assessment of
whether a particular citizen of Zimbabwe— Petitioner Mirisa-
wo— was able to show that she is "unable to or unwilling to
return to . . . [her home] country because of persecution or a
well-founded fear of persecution on account of . . . member-
ship in a particular social group, or political opinion." 8
U.S.C. § 1101(a)(42)(A).
In our effort to determine whether the BIA acted irratio-
nally when it determined that Petitioner does not fit within the
statutory definition of "refugee," we must assess whether the
BIA grossly erred in determining that Petitioner had not suf-
fered persecution in the past. Abdel-Rahman, 493 F.3d at 449
(citing 8 C.F.R. § 208.13(b)). The majority opinion correctly
holds that economic penalties may constitute "persecution"
where such "sanctions are sufficiently harsh to constitute a
1The partial dissent concurs in the holding that the BIA did not err or
commit an abuse of discretion in affirming the IJ’s finding that Petitioner
failed to establish a reasonable fear of future persecution.
2See Eliot Tofa & Moses Tofa, Zimbabwe and Mugabe’s Politicization
of State and Civic Institutions, 13 GEO. PUB. POL’Y REV. 87 (2007-2008);
see also Robert G. Meadow, Political Violence and the Media, 93 MARQ.
L. REV. 231, 238 (2009); John Norris, Getting It Right: What the United
States Can Do to Prevent Genocide and Crimes Against Humanity in the
Twenty-First Century, 27 YALE L. & POL’Y REV. 417, 425 (2009).
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threat to life or freedom." Li, 405 F.3d at 177. Here, it is clear
that the BIA acted rationally when it concluded that Petitioner
had failed to make such a showing.
In dissent, our good colleague reprises the argument that
this circuit’s substantive standard for determining the exis-
tence of "persecution" is too exacting. See id. at 180-84
(Gregory, J., dissenting). My view is that our standard fits
comfortably within the mainstream of those standards applied
by our sister circuits. See, e.g., Zehatye v. Gonzalez, 453 F.3d
1182, 1186 ("We have held that substantial economic depriva-
tion that constitutes a threat to life or freedom can constitute
persecution.") (emphasis added). Although the dissent seeks
solace for its view in Li v. Attorney General, 400 F.3d 157,
168 (3rd Cir. 2005), the Third Circuit recently reaffirmed its
standard in Camara v. Attorney General, 580 F.3d 196 (3rd
Cir. 2009):
In Fatin v. I.N.S., we defined persecution as
"threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to
life or freedom." 12 F.3d 1233, 1240 (3d Cir. 1993).
Importantly, "the concept of persecution does not
encompass all treatment that our society regards as
unfair, unjust, or even unlawful or unconstitutional."
Id.
Id. at 202 (emphasis added). This standard tracks our own. No
doubt, "unfair" and "unjust" are only mild descriptions of
what the government did to Petitioner and her property in
Zimbabwe. But, for the reasons fully explained in the major-
ity opinion, the conclusion is inescapable that neither the IJ
nor the BIA abused their discretion in finding and concluding
that such "mistreatment [did not] sink[ ] to the level of perse-
cution." Baharon, 588 F.3d at 232 (Gregory, J.) (alterations
added).3
3 To be sure, I share the dissent’s manifest discomfort at our apparent
powerlessness to right wrongs; we federal judges well know that this feel-
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The dissent’s allegation that the majority opinion rests on
an "unwarranted[ ]" "assum[ption[ ]" that "Mirisawo was not
planning on returning to the home she purchased," Dissenting
Op. at 17, is itself warranted by nothing in the record or in the
majority opinion itself. Determinations of where Mirisawo
will live upon her return to Zimbabwe and what work she will
do there were not and are not a part of the adjudication of this
case at any level. Nor has any decision-maker in this case
claimed knowledge of her intentions in these regards. Equally
unwarranted is another of the dissent’s seeming suggestions:
the majority opinion precludes as a matter of law a future
determination by an IJ or the BIA that an alien may support
a claim of past persecution with proof of the destruction of a
residence in which she never lived. The majority opinion does
no such thing.
It is a record we assess here, not a hypothetical. The plain
truth is that the BIA did not abuse its discretion, and we prop-
erly affirm its order. Accordingly, I join the majority opinion
in its entirety.
ing of powerlessness is an occupational hazard with which we must live
daily. The fact is, as the First Circuit has aptly noted:
The Immigration and Nationality Act does not define persecu-
tion, and we have said that the term "is a protean word, capable
of many meanings." Bocova v. Gonzáles, 412 F.3d 257, 263 (1st
Cir. 2005). Generally, persecution is more than discrimination
and rises above unpleasantness, harassment, and even basic suf-
fering.
Kadri v. Mukasey, 543 F.3d 16, 21 (1st Cir. 2008) (emphasis added).
Thus, in this area of the law as in others, we encounter "discrimination . . .
unpleasantness, harassment, and even basic suffering," id., which, in the
absence of an abuse of discretion by other decision-makers, we are not
authorized to remedy. So it is.
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GREGORY, Circuit Judge, concurring in part and dissenting
in part:
Petitioner Rosemary Mirisawo came to the United States in
order to pursue a job; she had no illusions or desire that her
residency here would become permanent. Rather, she
accepted a G-5 visa and, for six years, worked as a household
domestic in this country. In preparation for her eventual return
to Zimbabwe, Mirisawo purchased a home in her native land.
Her disabled brother and some of her children inhabited the
house while she remained abroad. However, in 2005, the
home, the only one she had ever owned, was destroyed by the
Mugabe government in a show of force against the Movement
for Democratic Change opposition. Therefore, now that Miri-
sawo’s visa has not been renewed and she lacks status in this
country, she has no shelter to which she may return. Given
that destruction, Mirisawo has established past economic per-
secution and thus qualifies as a refugee for asylum purposes.
For this reason, I dissent.*
I.
In order to be considered eligible for asylum under the
Immigration and Nationality Act, a petitioner must show that
he or she is a refugee, someone who, because of past persecu-
tion or a reasonable fear of future persecution, cannot return
to his or her home country. 8 U.S.C. § 1101(a)(42)(A) (2006).
In determining whether a petitioner is a refugee, we look both
to the harm he or she has suffered in the past as well as the
situation to which he or she will have to return if not granted
asylum. Persecution is "not limited to physical harm or threats
of physical harm and may include threats of economic harm,
so long as the threats, if carried out, would be of sufficient
severity that they amount to past persecution." In re T-Z-, 24
I. & N. Dec. 163, 169 (B.I.A. 2007). Economic persecution
may qualify as past persecution if it constitutes either the "de-
*I concur with the majority that Mirisawo has not established a reason-
able fear of future persecution.
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liberate deprivation of basic necessities" or the "deliberate
imposition of severe economic disadvantage." Id. at 171. Of
the basic necessities of human life, shelter is certainly
included. Along with food and water, housing is one of the
components of fundamental human existence. Thus, its inten-
tional deprivation constitutes past persecution. Accord, Li v.
Attorney General, 400 F.3d 157, 168 (3d Cir. 2005) (holding
economic persecution may involve "the deprivation of liberty,
food, housing, employment, and other essentials of life" (cita-
tion and internal quotation marks omitted)).
The majority goes further, announcing for the first time that
in this Circuit, for economic persecution to be shown, it must
"be so severe that it threatens the life or freedom of the appli-
cant," citing Li v. Gonzalez, 405 F.3d 171 (4th Cir. 2005), as
support. Maj. Op. at 7. In Li, we held that "economic penalties
‘rise to the level of persecution’ only if such ‘sanctions are
sufficiently harsh to constitute a threat to life or freedom.’"
405 F.3d at 177 (quoting Ahmed v. Ashcroft, 396 F.3d 1011,
1012 (8th Cir. 2005); see also Chen v. INS, 195 F.3d 198, 204
(4th Cir. 1999) (mentioning that for economic harm to rise to
the level of persecution, it must "at least" be substantial). The
majority’s standard for economic persecution goes beyond
our prior holding in Li where we required that the economic
harm "constitute a threat," not that the harm itself actually and
currently threaten the individual’s life or liberty. Maj. Op at
7-8. Further, the majority’s requirement of a "severe" depriva-
tion of basic necessities goes beyond any of our prior prece-
dent which required only a "deliberate deprivation" of such
essentials. Therefore, I find scant support for the majority’s
new standard under our precedent and, in any case, would not
decide this issue because under either Li or the majority’s
standard, the destruction of Mirisawo’s home constitutes past
persecution.
In the majority’s opinion, however, Mirisawo cannot claim
the deprivation of her home simply because she never lived
there in the past. See Maj. Op. at 9 ("At the time of the gov-
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ernment’s partial destruction of her house, Mirisawo had
never lived in the house and was living and working in the
United States as a live-in housekeeper."). Furthermore, in
their view, because Mirisawo cannot demonstrate that she
would ever work as anything other than a live-in maid, she
cannot show that she would ever have lived in the house. Id.
at 10 ("Mirisawo spent her career employed as a housekeeper,
and the destruction of her house in no way interfered with her
ability to continue in this type of employment."). In essence,
for the majority, Mirisawo is considered a captive of her pre-
vious vocation and is unable to show that she has any other
path open to her, even when there was no evidence that she
would continue to work as a live-in maid were she to return
to Zimbabwe. Indeed, the majority assumes that Mirisawo is
satisfied with her condition and is in fact benefitted by it
because she will presumptively have a roof over her head. See
Id. at 9 ("In this case, the record supports the conclusion that
the destruction of Mirisawo’s house in no way interfered with
her ability to provide housing for herself."). The majority thus
concludes that Mirisawo suffered no past economic persecu-
tion because she did not depend on the home that she pur-
chased for shelter, rental, or income.
A.
There are two fundamental flaws in the majority’s argu-
ment, one factual and one conceptual, both demonstrating that
persecution was shown here. First, the majority unwarrantedly
assumes that Mirisawo was not planning on returning to the
home she purchased. Indeed, it assumes that Mirisawo was
forever consigned to her role as a live-in domestic, continu-
ally inhabiting the homes and lives of other people, unable to
forge her own way. See Maj. Op. at 9 ("Nor is it likely that
Mirisawo will ever need to live in the house, as she will likely
continue to be employed as a live-in housekeeper if she
returns to Zimbabwe."). Yet, there is direct evidence in the
record to the contrary showing that Mirisawo was actively
preparing for her return home. First and foremost, the record
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is completely devoid of evidence that Mirisawo had any
intention, or indeed any desire, to remain in the United States
permanently. This is not a case where a petitioner has applied
for asylum merely because his or her application for perma-
nent residency had been declined. Mirisawo never applied for
any type of permanent status in the United States. In fact, in
2002, the first and only time that Mirisawo returned to Zimba-
bwe during her time living in the United States, she purchased
a home. Further, there was no evidence presented that Miri-
sawo had any particular plans upon her return home to work
as a domestic. At bottom, the majority’s error is to assume
that Mirisawo preferred to live in her employers’ homes,
when the evidence points to the fact that at the fist chance she
had, she purchased a home of her own that would be available
for her return.
B.
The second flaw in the majority’s argument is more con-
ceptual. It is erroneous to conclude that as a matter of law an
individual who has not lived in his home cannot make out a
claim of economic persecution. The logical flaw of the major-
ity’s opinion is quite clear in the following example. Imagine
an alien in the United States who has secured a temporary
work visa and who has no interest or reason to seek perma-
nent resident status. As that person prepares to return home,
he contacts a friend in his home country and asks him to dig
a well at his house. In return, the alien will send him $1,000
via Western Union. The friend agrees, and within two weeks,
the well is completed and the money transferred. Unfortu-
nately, before the alien returns home, agents of the govern-
ment come to his house and pour poison in his well,
suspecting that he sympathizes with the opposition party, sup-
porters of which live in his neighborhood. In response, the
alien files an asylum claim in the United States, claiming past
economic persecution which deprives him of the necessities
of life: water. Confronted with that case, would this Court
hold that merely because the alien had yet to drink from the
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well, he was not persecuted? That result is counter to logic
and counter to law.
So too here the majority’s decision is without basis in law
or reason. Mirisawo was able to buy the house with her earn-
ings in the United States. Like so many temporary workers,
she used the money she earned abroad to provide for her
future at home. Unfortunately Mirisawo was never able to
enjoy the fruits of her labors because the house was bulldozed
before she inhabited it. Yet, merely from her inability to
occupy the house, how can we assume that Mirisawo never
intended to live there in the first place? Fundamentally, it is
without support in the law to hold that the destruction of the
most significant investment a person has ever purchased,
which is also a necessity of life, does not constitute persecu-
tion.
II.
The majority opinion evinces some knowledge of a maid’s
life, but betrays no understanding of her dream. I must dis-
sent.
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