In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-4144

SIPHATHISO MABASA, MAUREEN MABASA, and

SINOBUKHOSI MABASA,

Petitioners,

v.

ALBERTO R. GONZALES, Attorney General

of the United States,

Respondent.

____________

Petition for Review of Orders of the

Board of Immigration Appeals.

Nos. A95-399-173, A95-399-172 & A95-399-171

____________

ARGUED SEPTEMBER 13, 2005—DECIDED MARCH 15, 2006

AMENDED JULY 26, 2006

____________

Before BAUER, MANION, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Siphathiso Mabasa, a teacher from

Zimbabwe, applied for asylum on behalf of himself and his

wife and daughter, Maureen and Sinobukhosi Mabasa. The

Mabasas request review of a Board of Immigration Appeals

(“BIA”) order affirming the denial of their application for

asylum, withholding of removal, and protection under the

United Nations Convention Against Torture (“CAT”). For

the reasons set forth in this opinion, we affirm the decision

of the BIA.
2 No. 04-4144

I. Background

The Mabasas are natives and citizens of Zimbabwe.

Siphathiso Mabasa entered the United States as a

nonimmigrant visitor on December 28, 1999. His wife and

daughter, Maureen and Sinobukhosi, entered as nonimmigrant visitors approximately three months later, on

March 9, 2000.

In Zimbabwe, Mr. Mabasa was a schoolteacher and a

member of the Zimbabwe Teachers Association and the

Zimbabwe Congress of Trade Unions (“ZCTU”). An offshoot

of the ZCTU eventually became the Movement for Democratic Change (“MDC”), which is now the minority political

party in Zimbabwe.

Mr. Mabasa became an active member of the MDC in

September of 1999 by assisting in fund-raising and recruiting for the organization. He said that his MDC activities

made him fearful of staying in Zimbabwe. In November of

1999 he was verbally threatened by the Youth Chairman of

the Zimbabwe African National Union-Patriot Front (the

ruling party in Zimbabwe) and at that point felt he needed

to flee the country. In late December of 1999, over a month

after he had been threatened and three months after joining

the MDC, he left the country to come to the United States.

In 2001, he reactivated his MDC membership in the United

States and started to recruit new members and fund-raise

on behalf of a local Indiana chapter of the MDC. Mr.

Mabasa confirmed that one-third of Zimbabwe’s population

are members of the MDC and that the MDC controls 57 of

the 120 seats in Zimbabwe’s parliament.

According to the Mabasas’ affidavits, after Mr. Mabasa

left Zimbabwe, ruling party supporters came to their home

and to Mrs. Mabasa’s work to find out about her husband’s

activities and location. Mrs. Mabasa stated that during

the visits she was pushed around and threatened with

various forms of violence against her daughter and herself.
No. 04-4144 3

Further, Mrs. Mabasa claimed she began receiving threatening and harassing phone calls inquiring into her husband’s whereabouts. Mrs. Mabasa feared for her life and

left the Mabasas’ home to stay elsewhere. Finally, she and

Sinobukhosi left Zimbabwe to join her husband in the

United States on March 9, 2000.

Mr. Mabasa’s brother, Gibson Ncube Mabasa, explained

at the asylum hearing that he had received threats to his

brother’s life back in Zimbabwe. After visiting the Mabasas

in the United States, Gibson returned home to Zimbabwe

on October 24, 2001. A few days after Gibson returned

to Zimbabwe he said he was visited by men from the

Central Intelligence Organization (“CIO”) who questioned

him about his brother, Mr. Mabasa. The CIO officers told

Gibson that they would kill his brother when he returned to

Zimbabwe because of his MDC membership. The threat’s

timing coincided with Mr. Mabasa’s renewed fund-raising

and recruiting efforts on behalf of the MDC in Indiana. On

November 20, 2001, Gibson sent a letter to the Mabasas,

warning them that government authorities were looking for

Mr. Mabasa and that they wanted him “dead or alive.”

The Mabasas explained that, in the past, members of

their family who were involved in the MDC were tortured

or killed by the ruling party. Mrs. Mabasa’s father was

killed by government supporters on December 18, 2000, and

her uncle, a commander in the military, was tortured by

President Robert Mugabe’s government in the mid-1980’s

and died of his injuries.

The Mabasas filed for asylum, withholding of removal,

and for protection under the CAT. The filing of their

application was not within the one-year statutory deadline,

as required by 8 C.F.R. § 1158(a)(2)(B) to be considered

timely. The Mabasas do not contest the tardiness of their

motion. They do argue, however, that there are three

factors that make their situation one of changed circum-
4 No. 04-4144

stances, which can excuse the late filing. See 8

U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4). First, the

Mabasas cite Mr. Mabasa’s renewed efforts on behalf of the

MDC, which began three months before he sought asylum.

Second, the Mabasas underscore the deterioration of the

Zimbabwe political climate in the months before they filed

for asylum. Finally, the Mabasas point to the Zimbabwe

government’s recent interest in Mr. Mabasa’s activities in

the United States.

II. Analysis

Asylum applications must be filed within one year after

the date of the asylum seeker’s arrival in the United States.

8 C.F.R. § 1158(a)(2)(B). Here, the Mabasas filed for

asylum two years too late. To overcome this statutory bar

they must demonstrate either the existence of changed

circumstances that materially affect their eligibility for

asylum or extraordinary circumstances relating to the delay

in filing the petition, 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R.

§ 1208.4(a)(4), (5).

Pursuant to 8 U.S.C. § 1158(a)(3), courts have no jurisdiction to review a determination that an asylum application

is barred due to noncompliance with the statutory time

limit or the denial of one of the statutorily allowed excuses.

However, the REAL ID Act of 2005, among other legal

changes, conferred explicit jurisdiction on this court for

appellate review of constitutional claims and questions of

law. See REAL ID Act of 2005, § 106 (a)(1)(ii), amending 8

U.S.C. § 1252(a)(2). Pub. L. No. 109-13, 119 Stat. 231, 310-

11 (2005).

In this case, the Mabasas allege a due process violation in

their appeal to the BIA. The Mabasas contend that they

were not afforded a meaningful opportunity to be heard

since the BIA wrongly analyzed their claim as one of

extraordinary circumstances when, in fact, they have
No. 04-4144 5

argued all along that their case is one of changed circumstances. Given the BIA’s error, under the REAL ID Act

we have jurisdiction to consider the Mabasas’ claim.

While the BIA mistakenly characterized the Mabasas’

excuse as one of extraordinary circumstances, the Immigration Judge (“IJ”) properly addressed their petition as one

claiming changed circumstances. We review claims

for asylum, withholding of removal, and relief under the

CAT using the substantial evidence standard. Ahmed v.

Ashcroft, 348 F.3d 611, 615 (7th Cir. 2003). With this

standard, we assess whether the BIA’s determination

was “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. (quoting

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). We

overturn the BIA’s decision only if “the record compels a

contrary result.” Brucaj v. Ashcroft, 381 F.3d 602, 606 (7th

Cir. 2004) (citing Georgis v. Ashcroft, 328 F.3d 962, 967-68

(7th Cir. 2003)). We review the BIA’s legal conclusions

de novo. Ahmed, 348 F.3d at 615. Aside from the BIA’s

mistaken characterization of the Mabasas’ claim, it summarily adopted the IJ’s conclusions and its ultimate

decision. As a result we will review the IJ’s decision directly

under the same standards set forth for the BIA. See

Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004).

While it is true that the BIA was careless in wording

its decision that affirmed the IJ’s opinion in this case, the

error was harmless as the IJ was correct in denying the

Mabasas’ asylum application. Thus, under either of the

statutorily provided excuses, extraordinary circumstances

or changed circumstances, the Mabasas would have lost

their asylum claim. Mr. Mabasa asserts that his situation

constitutes changed circumstances because the political

climate in Zimbabwe worsened since he was in the United

States and because members of the ruling party have

recently become interested in Mr. Mabasa’s efforts on behalf

of the MDC in Indiana. These events, however, do not
6 No. 04-4144

constitute changed circumstances under the statutory

meaning of the term. The Mugabe government and the

oppressive climate that it engenders is the same today

as when the Mabasas left Zimbabwe. The State Department

Country Report for 2004 suggests that since President

Mugabe and his undemocratic regime have been in power

for 25 years, their control over the government through an

election that was deemed to be neither free nor fair is not a

new or a changed circumstance, but rather (and unfortunately) business as usual.

Further, the fact that Mr. Mabasa became active again in

the MDC does not support a finding of changed circumstances since it was his very activity in the MDC that made

him flee Zimbabwe originally. The proper time for Mr.

Mabasa to file his asylum claim was in the year 2000. His

contentions do not represent changed circumstances.

Instead, they appear to be the same circumstances. Therefore, we affirm the BIA’s denial of the Mabasas’ asylum

claim.

The Mabasas next argue that the BIA erred in finding

that they were not entitled to withholding of removal or

for protection under the CAT. Because the BIA summarily

affirmed the IJ’s decision, it constitutes the final agency

determination for purposes of our review. Balogun, 374 F.3d

at 498. The Court reviews agency decisions to deny requests

for withholding of removal under the highly deferential

substantial evidence standard. Uwase v. Ashcroft, 349 F.3d

1039, 1041 (7th Cir. 2003). For the Court to reverse the IJ’s

decision, Mr. Mabasa must show that “the evidence not only

supports that conclusion, but compels it.” INS v. EliasZacarias, 502 U.S. 478, 481 n.1.

To establish eligibility for withholding of removal, an

applicant must show that his or her “life or freedom would

be threatened” in the proposed country of removal. INA

§ 241(b)(3)(A), 8 U.S.C. § 1208.16(b). The INA does not

require withholding if an applicant “ ‘might’ or ‘could’ be

subject to persecution.” INS v. Stevic, 467 U.S. 407, 422
No. 04-4144 7

(1984). In fact, an applicant must establish a “clear probability” of persecution to avoid deportation. Id. at 413. A clear

probability can be shown if the applicant can demonstrate

that ‘it is more likely than not that the alien would be

subject to persecution.’ ” INS v. Cardoza-Fonseca, 480 U.S.

421, 423 (1987) (quoting INS v. Stevic, 467 U.S. 407, 429-

430).

The BIA agreed with the IJ’s finding that Mr. Mabasa

failed to establish a clear probability of persecution under

either the requirements for showing individual or group

persecution. The record contains substantial evidence to

support the IJ’s determination that there is not a clear

probability that Mr. Mabasa will face persecution in

Zimbabwe. While Mabasa presented some compelling

evidence, such as the threats he and his wife have received from the ruling party supporters, the persecution of

Mrs. Mabasa’s father and uncle by the ruling party, and Mr.

Mabasa’s involvement in the MDC in both Zimbabwe and

Indiana, the IJ determined that substantial evidence from

the record undermined Mr. Mabasa’s claim of individual

persecution.

The IJ decided that compelling evidence weighed against

a finding that the Mabasas would face a clear probability of

persecution. Specifically, the IJ relied on the fact that when

Mr. Mabasa left Zimbabwe, the government did not detain

him, but stamped his passport instead. Further, after ruling

party supporters threatened and pushed Mrs. Mabasa at

the Mabasas’ home in search of her husband, and despite

Mr. Mabasa’s political activities, the Zimbabwean government did not retaliate against Mrs. Mabasa by terminating

or even changing her position at the government-run bank.

Also, once Mrs. Mabasa decided to leave Zimbabwe, the

government did not detain her or question her about Mr.

Mabasa’s whereabouts. Rather, the government stamped

her passport and allowed her to leave. Additionally, three

of Mr. Mabasa’s siblings, who are also MDC members, live
8 No. 04-4144

in Zimbabwe unharmed. These three siblings were not

questioned about Mr. Mabasa’s whereabouts. One of the

siblings is a government employee. Mr. Mabasa’s parents

also live in Zimbabwe unharmed.

Although Mrs. Mabasa’s father was apparently killed

by regime supporters in 2000 and her uncle was similarly

killed in the 1980s, the record indicates that the two were

men of high position: an influential businessman/landowner

and a military commander, respectively. Thus, there were

other reasons to target these two relatives. Mr. Mabasa is

not similarly situated, and the Mabasa family is not, in and

of itself, a specific target of persecution. Mr. Mabasa’s

involvement in the MDC, in comparison, is minor and he

has not described himself as an influential businessman or

landowner in Zimbabwe. Although persecution of an applicant’s family may be relevant in determining whether an

applicant’s fear of persecution is well-founded, this court

has held that a claim of “derivative persecution,” without

additional evidence that a respondent himself or herself

would be subjected to future persecution, does not establish

a well-founded fear of persecution. See Tamas-Mercea v.

Reno, 222 F.3d 417, 424 (7th Cir. 2000); Najafi v. INS, 104

F.3d 943, 947 (7th Cir. 1997).

Mr. Mabasa also cannot meet the requirements for group

persecution. To obtain withholding of removal based on

group persecution, an applicant must prove that there is a

pattern or practice of persecution against a group of persons

on account of race, religion, nationality, membership in a

particular social group or political opinion. The applicant

must then establish his or her own inclusion in and identification with such a group of persons such that it is more

likely than not that his or her life or freedom would be

threatened upon return to that country. 8 C.F.R.

§ 1208.16(b)(2)(I) and (ii). Mr. Mabasa has indeed proven

his membership in the MDC, but the MDC is an enormous

political organization. The MDC holds 57 of 120 seats in
No. 04-4144 9

Zimbabwe’s parliament and one-third of the Zimbabwe

population belongs to the MDC. While the 2004 State

Department Country Report details oppression of MDC

political opposition, Mr. Mabasa has not demonstrated that

the group persecution is so severe that every member’s life

or freedom is at serious risk. In fact, in light of his siblings

who are MDC members and are unharmed in Zimbabwe,

Mr. Mabasa’s case showed that not every member is at risk.

Given such evidence, Mr. Mabasa failed to meet the standard for withholding of removal under the group persecution requirements as well.

Further, after thorough analysis, the IJ concluded that

Mr. Mabasa had failed the lower burden of proof required

for asylum. Thus, it logically follows that the Mabasas

failed to satisfy the more stringent clear probability of

persecution standard required for withholding of removal.

See Marquez v. INS, 105 F.3d 374, 382 (7th Cir. 1997).

Consequently, we affirm the BIA’s decision denying the

Mabasas’ application for withholding of removal.

Finally, the Mabasas argue they are eligible for withholding of removal under the CAT. An applicant for withholding

of removal under the CAT bears the burden of proving that

it is “more likely than not that he or she would be tortured

if removed to the proposed country of removal.”

8 C.F.R. § 1208.16(c)(2). Torture is defined as “any act by

which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person . . . with the consent or

acquiescence of a public official.” Rashiah v. Ashcroft, 388

F.3d 1126, 1131 (7th Cir. 2004) (citing 8 C.F.R.

§ 1208.18(a)(1)). Acquiescence requires that the public

official have prior awareness of the activity and thereafter

breach his or her legal responsibility to intervene to prevent

such activity. 8 C.F.R. § 1208.18(a)(7).

The IJ found that Mr. Mabasa did not present sufficient

evidence to support his claim that he would be tortured.
10 No. 04-4144

She held that Mr. Mabasa did not meet the standard of

showing that it is “more likely than not” that he would be

tortured if removed to Zimbabwe. Therefore, the BIA

was correct in affirming the denial of Mr. Mabasa’s request for withholding of removal under the CAT.

III. Conclusion

The IJ’s and BIA’s decisions regarding the Mabasas are

AFFIRMED and their petition for review is denied.

WILLIAMS, Circuit Judge, dissenting. I agree that,

notwithstanding the BIA’s mischaracterization of the

circumstances surrounding the Mabasas’ delayed asylum

efforts, their asylum claim was properly dismissed as

untimely. However, I disagree with my colleagues’ conclusion that Mr. Mabasa failed to show he likely will be

harmed by the Zimbabwean ruling party if he is deported.

Because I believe the Mabasas are entitled to withholding of removal or protection under the Convention Against

Torture (“CAT”), I respectfully dissent.

To establish a claim for withholding of removal, a petitioner must demonstrate that his life or freedom would be

threatened in his home country on account of his race,

religion, nationality, membership in a particular social

group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A);

Cuevas v. INS, 43 F.3d 1167, 1171 (7th Cir. 1995). Similarly, to obtain protection under the CAT, the petitioner
No. 04-4144 11

1 “[P]ersecution means punishment or the infliction of harm for

political, religious, or other reasons that this country does not

recognize as legitimate . . . includ[ing] . . . detention, arrest,

interrogation, prosecution, imprisonment, illegal searches,

confiscation of property, surveillance, beatings, or torture.”

Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th Cir. 2005)

(internal quotations omitted).

2 “Torture is defined as any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a person

for such purposes as obtaining from him or her or a third person

information or a confession, punishing him or her for an act he or

she or a third person has committed or is suspected of having

committed, or intimidating or coercing him or her or a third

person, or for any reason based on discrimination of any kind,

when such pain or suffering is inflicted by or at the instigation of

or with the consent or acquiescence of a public official or other

person acting in an official capacity.” 8 CFR § 208.18(a)(1).

must “establish that it is more likely than not that he or she

would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 208.16(c)(2). In essence, to establish a

claim for withholding of removal or for protection under the

CAT, Mr. Mabasa must demonstrate that there is a clear

probability (more likely than not) he will be persecuted1

 or

tortured2

 if he is returned to Zimbabwe. Zheng v. Gonzales,

409 F.3d 804, 809 (7th Cir. 2005).

The majority concludes that, despite uncontroverted

evidence documenting his family’s incidents of persecution and torture at the hands of the Zimbabwean government, Mr. Mabasa has failed to show that he would be

harmed on account of his political opinion. This is where my

colleagues and I disagree. Mr. Mabasa presented compelling

evidence that he likely will face persecution and torture if

returned to Zimbabwe.

First, as the majority acknowledges, political conditions

in Zimbabwe are oppressive. President Mugabe’s autocratic
12 No. 04-4144

regime has, over the course of 25 years, ruled the country

through intimidation and violence. In 2002, the United

States issued a State Department report describing political

conditions in Zimbabwe:

“[T]he Government of Zimbabwe developed and employed

an aggressive strategy designed to cripple its political

opposition. This strategy was marked by a collapse in the

rule of law, serious human rights abuses, and the subversion of democratic institutions including the judiciary and

independent media . . . [T]he Government of Zimbabwe

pursued economic policies, including a violent and chaotic

land redistribution program that resulted in Zimbabwe’s

downward economic spiral.”

Appellants’ Brief, Short Appendix at 33.

Second, Mr. Mabasa’s alignment with the political

minority has made him a target of government backlash: as

a result of his MDC membership, in 1999, Mr. Mabasa was

threatened by a Zimbabwean ruling-party official; after he

fled to the United States, government supporters assaulted

and threatened his wife in an effort to discover his whereabouts; and, perhaps most persuasive, Mr. Mabasa received

a clear murder threat (vis-a-vis his brother) from government intelligence officers warning that he would be killed

if he returned to Zimbabwe.

The majority discounts the likelihood that Mabasa will be

harmed, stating that MDC leaders or organizers are

susceptible to persecution and torture, whereas MDC

members are not. However, the record does not support this

premise. To the contrary, Mr. Mabasa’s brother testified at

the immigration proceeding that, while attending an MDC

rally in 2002, ruling-party supporters “attacked the MDC

members.” IJ Order at 5. The brother testified that he was

beaten during the melee, and that his cousin was beaten

and tortured for two days. Nothing in the record indicates

that either of them was an MDC leader or organizer.
No. 04-4144 13

Instead, this testimony, which the IJ credited, suggests that

active MDC members are routine targets of ruling-party

violence, regardless of their place in the opposition hierarchy.

Even more puzzling given the outcome here, the immigration judge found Mr. Mabasa to be credible, noting that

“there are no significant discrepancies between the testimony and the documentary evidence in support of the

application.” IJ Order at 6. In the normal course, “[t]he

testimony of the applicant, if credible, may be sufficient

to sustain the burden of proof without corroboration.”

8 C.F.R. § 208.16(c)(2). In addition, corroborating evidence that is relevant to the applicant’s burden of proving

the possibility of future torture may include evidence of

past torture inflicted on the applicant, evidence of “gross,

flagrant or mass violations of human rights within the

country of removal,” and other information regarding

conditions in the country of removal. 8 C.F.R.

§ 208.16(c)(3)(iii). For instance, in Lhanzom v. Gonzales,

430 F.3d 833 (7th Cir. 2005), we addressed a Tibetan

petitioner’s claims for withholding of removal and protection under the CAT, in which she alleged being forced into

a Chinese labor camp and having her political activities

monitored by the Chinese government. In granting the

petition for review, we acknowledged that if the petitioner was credible, she would meet the requisite standard

for demonstrating persecution and torture. Id. at 849.

It is, therefore, difficult to reconcile the IJ’s determination

that credible evidence existed that Zimbabwean government

officials directly threatened Mr. Mabasa’s life with her

ultimate conclusion that he is not entitled to withholding of

removal. To be sure, if we were solely reviewing the merits

of the Mabasas’ asylum claim, then the IJ’s discretionary

determination would arguably withstand this court’s

deferential standard of review. This case is different,
14 No. 04-4144

however, because we are also asked to review the IJ’s

determination that the Mabasas are not entitled to withholding of removal or protection under the CAT. “Unlike the

decision to grant asylum, which is discretionary even if the

criteria for asylum are met, the Attorney General must

withhold deportation if he determines ‘that the alien’s life

or freedom would be threatened . . . because of the alien’s

race, religion, nationality, membership in a particular social

group, or political opinion.’ ” Firmansjah v. Gonzales, 424

F.3d 598, 604-05 (7th Cir. 2005)(quoting 8 U.S.C.

§ 1231(b)(3)(A)) (emphasis in original).

At the end of the day, neither the IJ, the BIA, nor my

colleagues disbelieve Mr. Mabasa’s rendition of the facts.

Yet, his evidence still falls short, and it is unclear what

more the law requires. Where political oppression in a

petitioner’s home country is business as usual, the petitioner receives a murder threat from government officials

on account of his political beliefs, and the immigration

judge concludes there is “no basis upon which to doubt the

lead respondent’s credibility,” I believe the record establishes a presumption of clear probability of future persecution and torture. IJ Order at 6. Furthermore, the Government has not rebutted this presumption by demonstrating

a fundamental change in circumstances. See Firmansjah,

424 F.3d at 605. Indeed, the Government has done quite the

contrary, arguing that there have been no changed circumstances in Zimbabwe that would justify the untimeliness of

the Mabasas’ asylum claim. The record of evidence, documenting the political climate in Zimbabwe and Mr.

Mabasa’s own run-ins with the government, paints a

compelling picture of political persecution that I believe

entitles him to withholding of removal or protection under

the CAT.

For these reasons, I respectfully dissent.
No. 04-4144 15

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-26-06