Decided: January 16, 2014
The Fourth Circuit Court of Appeals vacated the Board of Immigration Appeals’ (“BIA”) order finding that a Tanzanian national who suffers from severe bipolar disorder was not a member of a social group, or persecuted for such membership, for asylum under the Immigration and Nationality Act (“INA”).
Tumaini Temu (“Temu”) first had a mental breakdown after his mother died in a car accident. Because of his behavior, Tanzanian officials took him to Muhimbili Hospital in Dar es Salaam, Tanzania, in 2003. In Tanzanian culture, severe mental illness with visibly erratic behavior is seen as a manifestation of demonic possession. Tanzanians even have a label for the group, “mwenda wazimu,” which means demon-possessed. The nurses at Muhimbili Hospital treated Temu with violence and abuse. When his condition worsened, his “treatment” became more inhumane. While binding and beating Temu with leather straps, the nurses said, “this is how we treat people who are mentally ill like you.” All prisoners were beaten, but Temu received worse beatings, and so did other prisoners who also suffered from severe mental illness.
Individuals qualify for asylum if they were persecuted on account of membership in a particular social group. On appeal, the Fourth Circuit addressed two questions: (1) whether Temu was persecuted because of membership in his proposed group and (2) whether Temu’s proposed group of “individuals with bipolar disorder who exhibit erratic behavior” qualifies as a “particular social group”.
Regarding the first question, the Fourth Circuit found that BIA’s conclusion that Temu was not persecuted because of membership in his proposed group was based on two logical contradictions that no rational fact finder could hold. First, it was impossible to square the BIA’s conclusion with the undisputed facts of the case. Nurses explicitly told Temu that “this is how we treat people who are mentally ill like you” and Temu was singled out for worse beatings, as were other prisoner with mental illness. Second, the BIA’s nexus finding and CAT finding were at logical loggerheads. The BIA concluded that Temu’s beatings were due to his erratic behavior, not his bipolar disorder per se. However, the IJ granted CAT relief, finding that Temu “was singled out for more frequent beatings because he was mentally ill.”
Regarding the second question about whether Temu’s proposed group qualified as a “particular social group,” the Fourth Circuit rejected the BIA’s conclusion that Temu’s proposed group did not qualify. The BIA has formulated a three-part test for a “particular social group:” (i) individuals share a common, immutable characteristic, (ii) the group has social visibility, and (iii) the group is defined with particularity.
Under the first-part of the test, the BIA improperly found no immutability, based on the fact that Temu’s erratic behavior could be controlled with medication. According to the Fourth Circuit, there is no cure for bipolar disorder. Therefore, Temu’s membership in his proposed group is not something he has the power to change. Further, the BIA itself has found that severe mental illness is immutable.
Next, the Fourth Circuit held that social visibility does not mean ocular visibility. Rather, it speaks to whether a group is in fact recognized as a group. The BIA found that while Tanzanian society unquestionably targets individuals who exhibit erratic behavior for serious forms of mistreatment, this mistreatment is not limited to those who have a diagnosis of bipolar disorder. Because the prosecutors used erratic behavior as an overbroad proxy for identifying victims, the persecutors did not view Temu’s proposed group as a group in the first place. However, the Fourth Circuit held this does not show that social visibility is lacking. Tanzanians still appear to view the “mwenda wazimu” as a group, and that is all that social visibility requires.
Finally, the BIA improperly concluded that Temu’s group lacked particularity, by breaking the proposed group into pieces and rejecting each piece, rather than analyzing his group as a whole. First, bipolar disorder is broad, covering a wide range of severity. Second, the definition of erratic behavior changes and has no precise, identifiable boundaries. However, Temu’s group is not “individuals with bipolar disorder” nor “individuals who exhibit erratic behavior.” Rather, Temu limits his group to those individuals with bipolar disorder who exhibit erratic behavior. Furthermore, the BIA itself has accepted individuals with bipolar disorder as a particular social group in the past.
– Sarah Bishop