Muhoro v. Barr ( 2019 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 18-1325
JAMES NJOGU MUHORO,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Souter,** Associate Justice,
and Stahl, Circuit Judge.
Jeffrey B. Rubin and Rubin Pomerleau PC on brief for
petitioner.
Joseph H. Hunt, Assistant Attorney General, Civil Division,
Emily Anne Radford, Assistant Director, and Aric A. Anderson, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
William P. Barr has been substituted for former Attorney General
Jefferson B. Sessions, III as the respondent.
** Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
March 13, 2019
STAHL, Circuit Judge. Petitioner James Njogu Muhoro
seeks review of a Board of Immigration Appeals ("BIA") order
denying him asylum, withholding of removal, and protection under
the Convention Against Torture ("CAT"). The BIA affirmed the
Immigration Judge's ("IJ") rulings that Muhoro failed to timely
file his application for asylum and, separately, that he
demonstrated neither the past persecution or probability of future
persecution required for withholding of removal nor the likelihood
of torture required for CAT-based relief. After careful
consideration, we dismiss Muhoro's claim for asylum and deny his
claims for withholding of removal or relief under the CAT.
I.
Muhoro is a native and citizen of Kenya, and a member of
the Kikuyu tribe.1 In 1992, conflict broke out between the Kikuyu
and another tribe, the Kalenjin. According to Muhoro, when he was
eighteen years old, leaders from his community brought about fifty
to sixty young people to a meeting, ostensibly for the purpose of
devising a defense against Kalenjin attacks. Once there, however,
the leaders revealed that the meeting's true purpose was to be an
initiation ceremony for the Mungiki, a self-organized Kikuyu
militant group formed to defend against Kalenjin incursions.
1 We draw the relevant facts from the IJ's written order
and from the administrative record. See Aguirre v. Holder, 728
F.3d 48, 50 (1st Cir. 2013).
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Muhoro claims that the Mungiki representatives, armed with knives
and machetes, required attendees to take part in an initiation
ritual, and threatened them with death if they did not do so.
Muhoro testified that, although he participated in the
initiation, on the following day, he fled his hometown rather than
remain with the Mungiki. He later learned that two of his cousins
who remained with the militants were killed by members of that
group when they retreated from a skirmish with the Kalenjin.
For the next seven years, Muhoro lived with an aunt,
whose home was roughly a five-hour drive away from his hometown.
He testified that he limited his social interactions and did not
return home during that time, as he feared being identified as a
Mungiki "defector" and killed. He further claimed that, after he
fled, unidentified persons broke into his parents' home and left
notes stating "Mungiki defectors will be killed."
In 1999, Muhoro completed college in Kenya and, on
June 9, 1999, entered the United States on a J-1 exchange visa,
which allowed him to remain here legally until September 14, 1999.
He originally attended a cultural exchange program in Texas and
then travelled to Massachusetts, where Muhoro claims he consulted
with immigration attorney Clark Siddiqui2 regarding his fear of
returning to Kenya. Muhoro alleges that Siddiqui told him that he
2 Several different spellings of Siddiqui's name appear in
the record and briefs.
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would not be able to extend his visa and would need to return to
Kenya unless he married a U.S. citizen. Muhoro conceded, however,
that he never signed a retainer agreement or other contract
formalizing an attorney-client relationship with Siddiqui.
On December 9, 2003, Muhoro married a U.S. citizen, and
he subsequently used that marriage as the basis for obtaining
lawful permanent resident status on February 21, 2006. Thereafter,
in 2007, Muhoro traveled to Kenya for a roughly two-and-a-half
week trip. While there, he claims to have stayed in a "high-
security hotel" in Nairobi, which he says he rarely left because
of his fear of the Mungiki.
United States law enforcement officials eventually
determined that Muhoro's marriage was a sham and, on February 1,
2011, he was charged with one count of conspiracy to defraud the
United States in violation of 18 U.S.C. § 371. Following his
guilty plea to the charge, the district court sentenced Muhoro to
two months' imprisonment.
On August 20, 2012, the Department of Homeland Security
served Muhoro with a Notice to Appear, which charged him with being
removable for, first, overstaying his original visa and, second,
for violating or attempting or conspiring to violate 18 U.S.C.
§ 1546.3 Muhoro admitted the facts alleged in the Notice and
3 Section 1546 defines various offenses relating to fraud and
misuse of visas, 18 U.S.C. § 1546, and aliens convicted of either
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conceded removability. He initially sought only withholding of
removal. However, on September 25, 2012, he applied for asylum,
withholding of removal, and protection under the regulations
implementing the CAT. Thereafter, the IJ granted Muhoro's motion
to amend his petition to include the additional bases for relief.
On December 27, 2016, the Immigration Court in Boston
held an individual hearing to address Muhoro's case. Muhoro was
the only witness at that hearing, and he testified as to the facts
set forth above, including his "initiation" into the Mungiki and
subsequent flight. He further testified regarding his sister's
death in 2014, which he attributed directly to his decision to
flee from the Mungiki. Specifically, Muhoro stated that shortly
before her death, his sister's then-boyfriend, a member of the
Mungiki, began mistreating her after he discovered that Muhoro had
left the Mungiki. In his testimony, Muhoro claimed that, though
his sister's cause of death was officially listed as "cerebral
malaria," he and his family believed her boyfriend poisoned her.
Muhoro attested that his suspicions regarding his sister's cause
of death reinforced his fear of returning to Kenya.
In addition to his oral testimony, Muhoro submitted
country reports and news articles concerning Mungiki activity in
violating or attempting or conspiring to violate that section are
deportable, 8 U.S.C. § 1227(a)(3)(B)(iii). The parties agree that
the overt acts described in Muhoro's indictment meet the elements
of 18 U.S.C. § 1546.
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Kenya and the Kenyan government's failure to rein in that group
and, separately, an affidavit from his father corroborating his
account of events in Kenya.
On April 25, 2017, the IJ issued an oral decision denying
all of Muhoro's claims. After noting that Muhoro failed to seek
asylum within one year of his last entry into the United States in
2007 (following his visit to Kenya), as required by statute, the
IJ determined that he failed to demonstrate changed or
extraordinary circumstances that would justify extending that
deadline. In this regard, the IJ found that Muhoro did not
sufficiently corroborate his claim that his sister had been
murdered because of his status as a Mungiki deserter. The IJ also
rejected Muhoro's ineffective assistance of counsel argument based
on Siddiqui's purported advice that he could only remain in the
country through marriage to a U.S. citizen, concluding that Muhoro
failed to corroborate that advice or the existence of a formal
attorney-client relationship.
Separately, the IJ rejected Muhoro's claims for
withholding of removal and CAT-based relief based on her conclusion
that Muhoro could not demonstrate either past persecution or a
clear probability of future persecution. While the IJ found that
Muhoro presented compelling evidence of the Mungiki's
dangerousness and risks posed to defectors from that organization,
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she did not credit Muhoro's assertion that his claimed "initiation"
was in fact sufficient to make him a member of that group.
On review, the BIA adopted almost the entirety of the
IJ's findings and opinion and dismissed the appeal. The only area
in which the BIA's decision deviated from that of the IJ came in
its discussion of Muhoro's membership in the Mungiki. Rather than
assessing the credibility of Muhoro's testimony that he joined
that organization, the BIA concluded only that Muhoro failed to
demonstrate past persecution or "a clear possibility of future
persecution in Kenya today."
Muhoro timely appealed the BIA's order dismissing his
appeal.
II.
"We review the BIA's legal conclusions de novo, with
appropriate deference to the agency's interpretation of the
underlying statute in accordance with administrative law
principles." Toribio-Chavez v. Holder, 611 F.3d 57, 62 (1st Cir.
2010) (internal quotation marks and citation omitted). In
addition, "[this court] review[s] the agency's factual findings,
including credibility determinations, under the substantial
evidence standard, and may overturn those findings only if any
reasonable adjudicator would be compelled to conclude to the
contrary." Id. (quotation marks, alteration, and citation
omitted). "When, as here, the BIA adopts and affirms part of the
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IJ's ruling and further justifies the IJ's conclusions, we review
both the BIA's and IJ's opinions." Nako v. Holder, 611 F.3d 45,
48 (1st Cir. 2010); see also Sunoto v. Gonzales, 504 F.3d 56, 59-60
(1st Cir. 2007)("When the BIA adopts and affirms an IJ's decision,
we review the IJ's decision to the extent of the adoption, and the
BIA's decision as to any additional ground." (internal quotation
marks and citation omitted)).
Muhoro argues that the BIA and IJ erred in their
determinations that he did not demonstrate "extraordinary" or
"changed" circumstances meriting extension of the asylum filing
deadline and, separately, failed to establish past persecution or
a well-founded fear of future persecution or torture. We examine
these claims of error in turn.
A.
As a threshold matter, a person seeking asylum is
generally required to "demonstrate[] by clear and convincing
evidence" that he or she applied for that relief within a year of
arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). Where
the applicant fails to do so, his or her application may yet be
considered if the applicant demonstrates "changed circumstances
which materially affect the applicant's eligibility for asylum or
extraordinary circumstances relating to the delay in filing an
application." Id. § 1158(a)(2)(D).
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Here, the untimeliness of Muhoro's application is not in
dispute, as Muhoro concedes that he failed to seek asylum within
a year of his most recent entry into the United States in 2007.
See 8 C.F.R. § 1208.4(a)(2)(ii) (specifying that the one-year
period for timely filing of an asylum claim "shall be calculated
from the date of the alien's last arrival in the United States or
from April 1, 1997, whichever is later."). Rather, he contends
that the death of his sister and the erroneous legal advice he
claims to have received from Siddiqui4 constituted "changed" and
"extraordinary" circumstances, respectively, and argues that the
IJ and BIA erred in finding otherwise.
Muhoro's challenge ignores the limitations on our
review. "This Court lacks jurisdiction to review an agency's
findings regarding timeliness or its application of the
'extraordinary circumstances' exception . . . unless an alien
identifies a legal or constitutional defect in the decision."
Olmos-Colaj v. Sessions, 886 F.3d 168, 174-75 (1st Cir. 2018)
4 Muhoro also argues that his then-attorney's failure to
include a claim for asylum in his initial responsive pleading in
the immigration court constituted ineffective assistance of
counsel. As noted above, however, the IJ subsequently permitted
Muhoro to amend his initial pleading to reflect, inter alia, his
asylum claim. Muhoro provides no explanation as to how that
oversight continues to impact or prejudice his rights, and so we
do not address it further. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) ("It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to
do counsel's work, create the ossature for the argument, and put
flesh on its bones.").
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(internal quotation marks, alterations, and citations omitted).
The same rule applies to the agency's application of the "changed
circumstances" exception. See 8 U.S.C. § 1158(a)(3); see also
Chahid Hayek v. Gonzales, 445 F.3d 501, 506-07 (1st Cir. 2006)
(per curiam). "[F]indings as to timeliness and changed [or
extraordinary] circumstances are usually factual determinations,"
Chahid Hayek, 445 F.3d at 507 (internal quotation marks and
citation omitted), and the IJ's rulings here were no exception.
The IJ found that evidence concerning the circumstances of Muhoro's
sister's death was insufficient to substantiate his claim that she
was murdered, noting documentary evidence contradicting that
conclusion and inconsistencies within Muhoro's own account of her
death. The IJ likewise found little evidence to substantiate
Muhoro's claim that attorney Siddiqui advised him to marry a U.S.
citizen for purposes of obtaining immigration status, emphasizing
the lack of corroboration of any formal attorney-client
relationship and Muhoro's "vague" testimony concerning his
interaction with Siddiqui.5
5The IJ and BIA also found that Muhoro's ineffective
effective assistance of counsel claim was not supported by the
evidence demanded by Matter of Lozada, 19 I & N Dec. 637 (BIA
1998), which requires:
(1) an affidavit explaining the petitioner's
agreement with counsel regarding legal
representation; (2) evidence that counsel has
been informed of the allegations of
ineffective assistance and has had an
opportunity to respond; and (3) if it is
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Muhoro does not point to any legal or constitutional
error in these determinations, but merely contends that he
presented evidence and testimony that supports his claims and
contradicts the agency's contrary conclusions. However, those
arguments are just "another way of saying that the agency got the
facts wrong, which is simply a factual claim . . . that [] cannot
defeat the operation of the jurisdiction-stripping provision."
Rashad v. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009). Accordingly, we
lack jurisdiction to review the agency's determination that
Muhoro's asylum application was untimely, and we move on to his
remaining claims.
B.
Muhoro next contends that the agency erred in denying
his petition for withholding of removal. "To prove an entitlement
to withholding of removal, an alien bears the burden of
demonstrating a clear probability that her life or freedom would
be threatened in her homeland on account of her race, religion,
nationality, membership in a particular social group, or political
opinion." Arévalo-Girón v. Holder, 667 F.3d 79, 82
asserted that counsel's handling of the case
involved a violation of ethical or legal
responsibilities, a complaint against the
attorney filed with disciplinary authorities
or, in the alternative, an explanation for why
such a complaint has not been filed.
García v. Lynch, 821 F.3d 178, 180 n.2 (1st Cir. 2016).
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(1st Cir. 2012). A petitioner may satisfy this burden by showing
either that he or she has "already suffered such persecution in
[his or her country of removal], thereby creating a rebuttable
presumption that [he or she] will suffer the same upon removal,"
or by demonstrating that, "more likely than not, his [or her] life
or freedom will be threatened on account of" one of the enumerated
protected grounds. Ruiz-Escobar v. Sessions, 881 F.3d 252, 259
(1st Cir. 2018) (internal quotation marks and citations omitted).
"Persecution is a fluid term, not defined by statute[,]"
Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014), and
"courts usually assess whether harm rises to the level of
persecution on a case-by-case basis," id. at 88. This court's
previous rulings make clear, however, that "persecution requires
more than unpleasantness, harassment, and even basic suffering."
de Zea v. Holder, 761 F.3d 75, 80 (1st Cir. 2014) (internal
quotation marks and citation omitted). Rather, "[t]o show past
persecution, the discriminatory experiences must have reached a
fairly high threshold of seriousness, as well as occurred with
some regularity and frequency." Martínez-Pérez v. Sessions, 897
F.3d 33, 39-40 (1st Cir. 2018) (internal quotation marks and
citation omitted).
Muhoro's claims of both past and future persecution are
predicated on his claimed status as a "Mungiki defector." For
purposes of this analysis, we follow the lead of our sister
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circuits and assume that Mungiki defectors constitute a
"particular social group" within the statute's protection. See,
e.g., Gatimi v. Holder, 578 F.3d 611, 616-17 (7th Cir. 2009);
Gathungu v. Holder, 725 F.3d 900, 907-08 (8th Cir. 2013). Even
taking that fact in Muhoro's favor arguendo, however, we still
find that the agency's decision was supported by substantial
evidence.
1. Past Persecution
Turning first to the claimed past persecution, we find
more than sufficient evidence in the record to support the IJ's
conclusion that no such persecution had occurred. As the IJ noted,
following the initiation ceremony, Muhoro continued to reside in
Kenya for seven years, during which time he attended high school
and college without suffering any apparent harm. Moreover, Muhoro
does not claim to have suffered any harm when he returned to the
country for two weeks in 2007. In fact, outside of the initiation
ceremony itself, Muhoro does not point to any action taken against
him by the Mungiki.
Recognizing this shortcoming, Muhoro turns to Mungiki
acts targeting his family. He points first to the threatening
notes allegedly left in his parents' house. Despite his insistence
that those threats, alone, are sufficient to satisfy his burden,
"[d]eath threats rise to the level of persecution only when so
menacing as to cause significant actual suffering or
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harm." Hernandez-Lima v. Lynch, 836 F.3d 109, 114 (1st Cir. 2016)
(internal quotation marks and citation omitted). While it is not
necessary to show that the threats resulted in actual or attempted
follow through, "the presence or absence of physical harm (and,
indeed, the degree of harm inflicted) remains a relevant factor in
determining whether mistreatment rises to the level of
persecution." Martínez-Pérez, 897 F.3d at 41 (internal quotation
marks and citations omitted); see also Touch v. Holder, 568 F.3d
32, 40 (1st Cir. 2009) (holding that finding of no past persecution
was not undermined by death threat that was not accompanied by
actual harm). Here, we see nothing in the record that shows those
notes resulted in "actual suffering or harm," Hernandez-Lima, 836
F.3d at 114, and so do not view those threats as compelling
reversal of the IJ's decision.
Muhoro also directs our attention to the deaths of his
cousins, allegedly at the hands of the Mungiki. However, there is
no suggestion that those deaths were in any way tied to Muhoro or
any targeting of him, and so they are irrelevant to whether Muhoro
himself was persecuted.6
6 Muhoro does not assert that his sister's death, if credibly
attributed to her then-boyfriend, constitutes an act of past
persecution against him. Instead, he merely argues that the IJ
erred in finding his testimony on her death incredible. However,
for purposes of their withholding analysis, both the IJ and BIA
assumed Muhoro's credibility on that point and still found that he
failed to establish past persecution. Muhoro does not identify
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Accordingly, we find ample basis in the record to support
the agency's conclusion that Muhoro did not suffer past
persecution, and the facts on which he relies do not "point[]
unerringly in the opposite direction." Lumataw v. Holder, 582
F.3d 78, 91 (1st Cir. 2009) (internal quotation marks and citations
omitted).
2. Future Persecution
Despite our conclusion that the IJ and BIA did not err
in finding no past persecution, Muhoro can still succeed if he
"can satisfy a two-part inquiry," demonstrating that he "genuinely
fears future persecution and that [his] fears are objectively
reasonable." Martínez-Pérez, 897 F.3d at 41 (internal quotation
marks and citation omitted).
While Muhoro argues that the decisions below failed to
make any finding about his likelihood of suffering future harm, we
disagree. We acknowledge that the IJ could have been clearer on
this point; however, her decision unmistakably concludes that
Muhoro did not face a sufficient risk of future persecution. After
acknowledging Muhoro's evidence that "ex-Mungiki members do face
serious harm, especially high-profile members," the IJ found that
this risk did not extend to Muhoro due to the limited duration of
any additional fault in the agency's determination, and so further
argument along those lines is waived.
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his purported affiliation with that group.7 The BIA approved of
this predictive finding and added its own observation that Muhoro
had not been subject to any retribution subsequent to his
"initiation," suggesting a low probability of future targeting.
We again find that these conclusions are supported by
substantial evidence. Our basis for doing so is largely the same
as that stated in the preceding section, which we need not reprise
here. Suffice it to say the evidence that Muhoro both lived,
undisturbed, in Kenya for seven years and later visited the country
without consequence provides a sufficient basis for the agency's
denial of withholding of removal. Cf. Chen Qin v. Lynch, 833 F.3d
40, 45 (1st Cir. 2016) (rejecting claim of future persecution where
petitioner was able to relocate safely to her brother's home in
her native country); Cabas v. Holder, 695 F.3d 169, 174 (1st Cir.
2012) (finding that petitioner's claim of future persecution was
"undermined by the fact that he returned to [his home country] for
a month . . . after the prior beating and threats to his safety").
7The IJ, relying on Cantarero v. Holder, 734 F.3d 82 (1st Cir.
2013), also concluded that Mungiki defectors were not a particular
social group protected by statute, providing an independent reason
for denying withholding of removal. Notwithstanding the analysis
in Cantarero, we assume arguendo that Mungiki defectors are a
qualifying group, and hold that the agency's conclusion that Muhoro
has not been and would not be persecuted based on his membership
therein is supported by substantial evidence.
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* * *
Accordingly, we find no error in the IJ and BIA's denial
of Muhoro's claim for withholding of removal and move to consider
his claim for relief under the CAT.
C.
In his final claim, Muhoro seeks relief under the CAT
based on his fear that the Mungiki will torture him if he returns
to the country and his claim that the Kenyan government is either
unable or unwilling to prevent them from doing so. "An applicant
for protection under [the] CAT bears the burden of proving that it
is more likely than not that [he or] she will be tortured if
returned to [his or] her country of origin." Costa v. Holder, 733
F.3d 13, 17 (1st Cir. 2013); see also 8 C.F.R. § 1208.16(c).
Unlike withholding claims, there is no need to show a nexus between
the torture and some protected status; however, the claimant must
show that the torture would be "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." Costa, 733 F.3d at
17 (quoting 8 C.F.R. § 1208.18(a)(1) (internal quotation marks
omitted)).
The same evidence that supports the agency's
determination that Muhoro failed to demonstrate a sufficient risk
of future persecution justifies its conclusion vis-à-vis his risk
of torture. Muhoro points to no additional evidence to support
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his claim, instead largely repeating his earlier arguments.8 Our
review, limited as it is, considers only whether the IJ's and BIA's
determinations were supported by substantial evidence, and we have
no difficulty in concluding that they were. Accordingly, Muhoro's
claim for relief under the CAT is denied.
III.
For the foregoing reasons, the petition for review is
dismissed as to the asylum claim and denied as to the claims for
withholding of removal and relief under the CAT.
8 Muhoro makes passing reference to "country conditions
evidence" in the record, which discusses the risks of torture in
Kenya generally. However, "[t]hese reports do not relieve him of
the obligation to point to specific evidence indicating that he,
personally, faces a risk of torture because of these alleged
shortcomings. Such specificity is a necessary element of a CAT
claim." Alvizures-Gomes v. Lynch, 830 F.3d 49, 55 (1st Cir. 2016).
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