Lesbian from Uganda wins rehearing of asylum petition in Eighth Circuit Oliva Nabulwala v. Alberto Gonzales U.S. Court of Appeals Case 054128P.pdf 03/21/2007 Immigration & Naturalization Service Ugandan citizen discovered she was a lesbian in high school. Family members beat her and forced her to attend a coed school. When the schooling assignment failed to straighten her out, the family forced to have sex with a man. She joined a gay rights organization that the Ugandan government disbanded. When her visa expired she sought refugee status. The immigration judge denied her application because she could not prove government oppression. She petitions for review denial of asylum, withholding or removal and Convention against Torture relief. Eighth Circuit Court of Appeals holds that homosexuality is a "particular social group" that could qualify the applicant for asylum. The Immigration judges failed to determine if the Ugandan government was unable or unwilling to control persons who had harmed petitioner, and Board made impermissible fact finding of the foreign governments efforts. Eighth Circuit grants petition for review and remands for additional proceedings. 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 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 To the extent that the BIA is finding facts about the government's unwillingness, such fact finding is not authorized. 8 C.F.R. § 1003.1(d)(3)(iv)