                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4128
                                   ___________

Olivia Nabulwala,                     *
                                      *
             Petitioner,              *
                                      *
       v.                             *    Petition for Review from the Board
                                      *    of Immigration Appeals.
Alberto R. Gonzales, Attorney General *
of the United States of America,      *
                                      *
             Respondent.              *
                                      *
                                 ___________

                             Submitted: October 20, 2006
                                Filed: March 21, 2007
                                 ___________

Before MELLOY, BENTON, and SHEPHERD, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       Olivia Nabulwala challenges the final order of the Board of Immigration
Appeals (BIA) denying her claim for asylum, withholding of removal, and relief under
the Convention Against Torture. Having jurisdiction under 8 U.S.C. § 1252(a)(2)(D),
this court grants the petition and remands.
                                            I.


       Nabulwala, a Ugandan citizen, first realized she was a lesbian while attending
high school in Uganda. In 1994, during her senior year, she admitted this fact to her
parents. Her father became very mad. A family meeting was called. An aunt
physically abused her; her family urged her to marry but eventually decided to send
her to a co-ed school, hoping she would stop being a lesbian.


       In June 1999, while attending a university, Nabulwala became a member of
"Wandegeya," a lesbian organization advocating gay rights. In November, during a
Wandegeya meeting of about 15 people, an angry mob of about 20 people attacked
the group, throwing stones and hitting them with sticks.1 Nabulwala was hospitalized
overnight with scratches on her arms and bruises on her head and body. The
Wandegeya organization eventually disbanded.

      In March 2001, Nabulwala's family found out that she was still a lesbian; her
parents were very upset.2 After another family meeting, two relatives forced her to
have sex with a stranger. She was then expelled from her clan. Disowned by her
family, she moved into the YMCA.



      1
        According to Nabulwala, the Ugandan Human Rights Commission also arrived
and told Wandegeya to dissolve and stop engaging in homosexual activity. Also,
according to Nabulwala, the assaults occurred in the presence of the officers of the
UHRC. The Immigration Judge had "problems with the credibility of that statement,"
and "great doubts that the Ugandan human rights commission had anything to do with
this incident."
      2
        Nabulwala testified that her father assaulted her at this time. The IJ had
"concerns about" the allegation because she stated in her visa application that her
father was the source of her financial support (she later inconsistently testified that her
mother gave her the money to come to the United States).

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      In June 2001, Nabulwala entered the United States on an exchange visitor visa.
When she overstayed her visa, the Immigration and Naturalization Service
commenced removal proceedings. Nabulwala conceded removability, but countered
by asserting asylum, withholding of removal, and protection under the Convention
Against Torture.

       The Immigration Judge found Nabulwala "to be generally credible,"
emphasizing that her testimony was generally consistent with a long affidavit attached
to her application. The IJ did "not doubt that the respondent did suffer in Uganda
because of her sexual orientation." Although the IJ concluded that this is a "difficult
case," and that he "is sympathetic to the respondent's situation," he denied Nabuwala's
application and designated Uganda as the country for removal. The BIA adopted and
affirmed the IJ's decision, adding some of its own reasoning. Thus, this court reviews
both decisions. See Eta-Ndu v. Gonzales, 411 F.3d 977, 982 (8th Cir. 2005), quoting
Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir. 2004).

                                          II.

       Under the Immigration and Nationality Act, the Attorney General may grant
asylum to any alien who is a "refugee." 8 U.S.C. § 1158(b)(1). A "refugee" is any
person unable or unwilling to return to her country because of persecution 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 IJ explicitly (and the BIA implicitly) recognized that homosexuals may be
a member of a "particular social group" under the statute. See Karouni v. Gonzales,
399 F.3d 1163, 1171 (9th Cir. 2005) (the BIA and Attorney General adopt the position
that homosexuals are a protected class under the statute); Amanfi v. Ashcroft, 328
F.3d 719, 730 (3d Cir. 2003); In re Toboso-Alfonso, 20 I. & N. Dec. 819 (B.I.A.
1990) (recognizing homosexuals as a protected class). Cf. Kimumwe v. Gonzales, 431

                                         -3-
F.3d 319, 322 (8th Cir. 2005); Molathwa v. Ashcroft, 390 F.3d 551, 554 (8th Cir.
2004) ("We will assume, for purposes of [petitioner's] appeal, homosexuals are a
particular social group eligible for relief").

       The IJ found that Nabulwala did not establish past persecution that met the level
reflected in the Toboso case: "The Court does not doubt that the respondent did suffer
in Uganda because of her sexual orientation. However, the Court does not believe that
the state of law under the Toboso-Alfonso precedent reaches this claim." Toboso
upheld relief for a homosexual who was detained by government officials for days and
subjected to serious verbal and physical mistreatment. See Toboso, 20 I. & N. Dec.
at 823.

       In this case, the IJ reasoned that the incidents at school and at the Wandegeya
meeting were isolated and did not arise to that level of persecution. See Ngure v.
Ashcroft, 367 F.3d 975, 989-90 (8th Cir. 2004), quoting Regalado-Garcia v. INS, 305
F.3d 784, 787 (8th Cir. 2002) (persecution is the "the infliction or threat of death,
torture, or injury to one's person or freedom, on account of race, religion, nationality,
membership in a particular social group, or political opinion"). As for the family-
arranged rape, the IJ viewed it as "private family mistreatment." The IJ concluded that
Nabulwala's past persecution was "not in any way government-sponsored or
authorized abuse." See Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005);
Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006) (personal disputes are "not
usually grounds for a finding of past persecution").

       The IJ made findings only about "government involvement," that is,
government sponsorship or government authorization. The IJ thus erred in concluding
that to qualify for asylum, Nabulwala had to demonstrate persecution at the hands of
government officials. Persecution may be "a harm to be inflicted either by the
government of a country or by persons or an organization that the government was
unable or unwilling to control." See Suprun v. Gonzales, 442 F.3d 1078, 1080 (8th

                                          -4-
Cir. 2006)(emphasis added); see also Valioukevitch v. INS, 251 F.3d 747, 749 (8th
Cir. 2001) ("the harm [petitioner] endured must have been inflicted either by the
government of Belarus or by persons or an organization that the government was
unwilling or unable to control"); Menjivar, 416 F.3d at 921; Miranda v. INS, 139
F.3d 624, 627 (8th Cir. 1998).

      The IJ made no finding as to whether the government was unable or unwilling
to control persons who had harmed, or would harm, Nabulwala. Therefore, as to the
government's inability or unwillingness, there were no findings of fact determined by
the immigration judge. "Facts determined by the immigration judge" are the basis for
review by the BIA. See 8 C.F.R.§ 1003.1(d)(3)(i). Because further factfinding was
needed in this case, the BIA should have remanded to the IJ. See 8 C.F.R. §
1003.1(d)(3)(iv).

       Instead, the BIA, after adopting and affirming the IJ's decision, states:
"Concerning the issue of past persecution, the Immigration Judge correctly found that
the respondent failed to demonstrate . . . that the government was unwilling to protect
her." The BIA's statement is false. The IJ made no such finding.

       To the extent that the BIA is finding facts about the government's
unwillingness, such factfinding is not authorized. Since September 25, 2002, the BIA
does not have authority to engage in factfinding, except to take administrative notice
of commonly known facts. See 8 C.F.R. § 1003.1(d)(3)(iv) ("the Board will not
engage in factfinding in the course of deciding appeals"); 8 C.F.R. § 1003.3(f);
Ramirez-Peyro v. Gonzales, No. 06-1569, slip op. at 7 (8th Cir. Feb. 23, 2007)
(vacating the BIA's decision because it "engaged in its own factfinding in
contravention of its regulations by determining that any threat to Ramirez would be
restricted to the northern part of Mexico, making it possible for him to relocate
elsewhere. The IJ made no specific findings about the geographic reach of the Juarez
Cartel or other major drug trafficking networks"). See also Chen v. Bureau of

                                         -5-
Citizenship & Immigration Servs., 470 F.3d 509, 513 (2d Cir. 2006) ("the BIA is no
longer permitted to engage in de novo review of an IJ's factual finding"); Recinos De
Leon v. Gonzales, 400 F.3d 1185, 1194 (9th Cir. 2005) ("We will not guess at the
theory underlying the IJ's or the BIA's opinion. . . . the BIA may decide legal issues
. . . but the BIA may not, under 8 C.F.R. § 1003.1(d)(3), make factual determinations
in the first instance").

        The government contends that 8 C.F.R. § 1003.1(d)(3)(iv) is not applicable
because the regulation provides that a "party asserting that the Board cannot properly
resolve an appeal without further factfinding must file a motion to remand." First, the
government overlooks the next sentence of 8 C.F.R. § 1003.1(d)(3)(iv) that grants the
BIA power to remand if further factfinding is needed. See Ramirez-Peyro, slip op.
at 7. Second, when the IJ fails to find facts because the IJ applied an incorrect legal
test, a party's request for the correct legal test preserves the request for appropriate
factfinding. Third, the BIA may not find facts, as it attempted to do in this case.

                                          III.

       The IJ made no findings about the government's inability or unwillingness to
protect Nabulwala. The BIA's attempt to fill the gaps by finding facts is
impermissible. This court grants the petition for review and remands to the BIA for
further proceedings.
                      ______________________________




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