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Ndayshimiye v. Attorney General of the United States

February 24, 2009

JEAN BOSCO NDAYSHIMIYE; SPECIOSE MUREKATETE, PETITIONERS
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Review of a Decision of the Board of Immigration Appeals (BIA No. A97-529-530 and A97-529-529) Immigration Judge: Mirlande Tadal.

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Argued November 17, 2008

Before: SCIRICA, Chief Judge, FUENTES, and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

Rwandan citizens Jean Bosco Ndayshimiye and his wife Speciose Murekatete sought asylum in the United States in 2006, alleging that they had suffered persecution at the hands of Ndayshimiye's aunt in Rwanda. They now petition for review of the Board of Immigration Appeals' ("BIA") decision rejecting their application for asylum. Petitioners asserted before the BIA that although their mistreatment was precipitated by a 2004 land dispute with Ndayshimiye's aunt, it was also caused by their status as recent immigrants to Rwanda from Burundi, where they had been born after their Rwandan parents fled there in the 1960s. Based on the fact that Ndayshimiye had a relatively peaceful relationship with his aunt for the eight years following Petitioners' return to Rwanda in 1996, the BIA concluded that any persecution occurring after 2004 was motivated solely by the land dispute. Although the BIA's interpretation of the statutory standard for analyzing possible "mixed motives" persecution was partially in error, its rationale that petitioners' Burundian background was at most incidental to other reasons for their persecution does support the Board's ultimate conclusion even under the corrected standard. Therefore, we will deny the petition.

I.

Petitioners Ndayshimiye and Murekatete were born in Burundi, but are Rwandan citizens since their parents were originally Rwandan but fled from that country in the 1960s. They are of Tutsi ethnicity. In 1996 they both returned to Rwanda along with several hundred thousand other Rwandan refugees who are known as "old case-load" refugees. These former refugees have different social status in Rwandan society depending on the country from which they have repatriated; those from Burundi apparently have very little influence or power and are resented by Rwandans who did not flee.

When Petitioners returned to Rwanda, Ndayshimiye made contact with some relatives who had remained in the country. One of them, his uncle Frederick Karuranga, deeded Ndayshimiye a parcel of land on which to build a home. Ndayshimiye put off construction for financial reasons.

In 2004, two years after Karuranga's death, Petitioners began building a home on the lot. Ndayshimiye's aunt, Primitive Musabwasoni, contested their right to the land, telling Ndayshimiye that he was not a member of the family and that he should go back to Burundi. She also attempted to sell the land to someone else for a significant sum of money. Musabwasoni is well-connected in Rwandan society; among her children are Reverien Claude Rugwizangoga ("Reverien"), a major in the Rwandan national police, John Fayinzoga, the chairman of a commission to demobilize the Rwandan army, and Gilbert Twgirunukiza, an executive in the president's office.

Ndayshimiye filed a complaint concerning the land dispute before a community tribunal, which resolved the matter in his favor in November 2004. Around March 2005, Ndayshimiye began receiving anonymous phone calls several times a week on his work phone in which he was told that he was not Rwandan, was stealing land that did not belong to him, and must return to Burundi.

Ndayshimiye recognized the voice on some of the phone calls as his aunt's son, Reverien. In one call, the speaker said that if Ndayshimiye's family did not return to Burundi on their own they would be thrown into the Akagera River to return there.Petitioners construe this threat as a reference to the 1994 Rwandan genocide, during which massacred Tutsis were dumped into the Akagera. These phone calls lasted through June 2006. Murekatete also received calls in June 2006, at Petitioners' home, on which she identified Reverien's voice.

Frightened of the possible consequences, Ndayshimiye did not resume construction on the land despite his legal victory. Nor did he seek protection from the authorities, believing that the influence of Musabwasoni and her sons in the government, along with his own low social status, would render that attempt futile. Ndayshimiye and Murekatete remained in a rental property about thirty minutes away from the disputed land.

Despite their inaction regarding the land, on three occasions in May and June 2006 Reverien came to Petitioners' residence at night in his police uniform, armed and accompanied by other armed police officers. Each time, he identified himself as a member of the police and asked for Ndayshimiye. Upon being told that Ndayshimiye was working, Reverien told Murekatete that her husband was Burundian, not Rwandan, and must go back.On the ...


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