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

PUBLISHED
Filed: August 26, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ROSEMARY MIRISAWO,
Petitioner,
v. No. 08-1704 
ERIC H. HOLDER, JR., Attorney
General,
Respondent. 
O R D E R
Petitioner filed a petition for rehearing and rehearing en
banc.
A member of the Court requested a poll on the petition for
rehearing en banc. Judge Gregory voted to grant rehearing en
banc. Chief Judge Traxler, and Judges Wilkinson, Niemeyer,
Motz, King, Shedd, Duncan, Agee, Davis, Keenan, and Wynn
voted to deny rehearing en banc. Judge Michael did not par-
ticipate in the vote.
The petition for rehearing is denied, and, because the poll
on rehearing en banc failed to produce a majority of judges
in active service in favor of rehearing en banc, the petition for
rehearing en banc is also denied. Judge Gregory wrote an
opinion dissenting from the denial of rehearing and rehearing
en banc.
Entered at the direction of Judge Niemeyer for the Court.

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For the Court
/s/ Patricia S. Connor
Clerk
GREGORY, Circuit Judge, dissenting from the denial of
rehearing and rehearing en banc:
Among the harshest lessons learned from the recent finan-
cial crisis is the profound harm done to the individual and to
society by the loss of one’s home. The loss of a home entails
a loss of basic shelter and security. For most Americans, it is
a loss of the largest investment they will ever make. It is the
loss of years of work intended to ensure a greater future return
for one’s children. For many, it may even embody the loss of
that intangible collection of aspirations that we have come to
call the American Dream.
Rosemary Mirisawo did not lose her home in an unforeseen
and unintended macroeconomic meltdown. She lost her home
when Robert Mugabe’s regime in Zimbabwe, as part of "Op-
eration Restore Order," deliberately bulldozed it in retaliation
for her family’s support of the opposition party, leaving all-
but-one room in ruins.
Yet, according to the panel majority, Mirisawo cannot
claim that the destruction of her home deprived her of a basic
necessity of life, because "Mirisawo had never lived in the
house and was living 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 Zim-
babwe." Mirisawo v. Holder, 599 F.3d 391, 397 (4th Cir.
2010). Never mind that there is no evidence suggesting that
she intended to or would even be allowed to work in someone
else’s home or reside at someone else’s pleasure. And never
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mind that the majority acknowledges, at least implicitly, that
the purpose and effect of "Operation Restore Order" was to
leave political opponents without shelter to protect against
torture, rape, and other forms of abuse by government-
sponsored militias. See id. at 394 & 397. Because Mirisawo
was once a live-in maid, the majority suggests, she cannot
aspire to an independent calling.
Likewise, the majority dismisses the continuing harm that
not having a home inflicts on Mirisawo and her family. We
view harm done to a petitioner’s close relatives as "an impor-
tant factor in deciding whether mistreatment sinks to the level
of persecution." Baharon v. Holder, 588 F.3d 228, 232 (4th
Cir. 2009). Yet not only does the majority brush aside the
beating received by Mirisawo’s brother at the hands of gov-
ernment officials, but it also claims that after having their
home destroyed, Mirisawo’s brother and children "continued
to live in Zimbabwe without further incident." Mirisawo, 599
F.3d at 398. In doing so, the majority ignores the fact that liv-
ing without a home is a continuing and profound injury, in
and of itself. This Circuit’s tolerance for the oppression of
some people is disheartening.
One of the biggest challenges that administrative judges
and reviewing courts typically face when evaluating persecu-
tion claims is how foreign the applicant’s experience often is
to our own reality. The pain and despair that come from being
held incommunicado or being tortured in a prison camp, for
example, differ so starkly from the average American experi-
ence that it can make the standard by which we judge whether
an applicant suffers from a "well-founded fear of future perse-
cution," 8 C.F.R. § 208.13(b), inaccessible. We can easily see,
though, the pain that comes when a person loses her home.
And if we choose to do so, it is not difficult to extrapolate
the desperate fear that results when that loss is caused by the
deliberate and violent actions of one’s own government.
We hardly need newspaper accounts or State Department
Reports to understand how Rosemary Mirisawo must feel
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about her impending return to the rubble where her home
once stood in Zimbabwe. We need only look to ourselves.
I respectfully dissent.
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