Wanjiku v. Barr , 918 F.3d 215 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1675
ROSEMARY WANJIKU,
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.
Duane M. Hamilton, Esq. on brief for petitioner.
Joseph H. Hunt, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, and Corey L. Farrell,
Attorney, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, 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 15, 2019
STAHL, Circuit Judge. Petitioner Rosemary Wanjiku, a
native and citizen of Kenya, seeks review of an order by the Board
of Immigration Appeals ("BIA") denying her motion to reopen removal
proceedings based on changed country conditions. Wanjiku was first
ordered removed to Kenya in 2013, but she did not leave the country
at that time. More than three years later, in 2016, she sought to
reopen proceedings, claiming that conditions within Kenya had
changed since her prior removal proceedings and now supported a
claim for asylum. An Immigration Judge ("IJ") denied her motion,
concluding that the conditions complained of were continuing, not
changed, and the BIA affirmed that decision on June 22, 2018.
After careful review, we find the BIA did not abuse its discretion
and deny the petition accordingly.
I.
On or about March 19, 2000, Wanjiku entered the United
States at Newark, New Jersey, with authorization to remain for a
temporary period, not to exceed September 18, 2000.1 Wanjiku
remained in the country well past that date and, on July 19, 2010,
she married a U.S. citizen. Shortly thereafter, the couple filed
papers to adjust Wanjiku's status to that of a permanent resident
1 We draw the facts as set forth below from the administrative
record, including sworn statements and other documents that
Wanjiku presented in support of her application. See Tota v.
Gonzales, 457 F.3d 161, 163 (1st Cir. 2006).
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alien. The Department of Homeland Security ("DHS") notified
Wanjiku's spouse of its intent to deny the application, and the
couple sought to withdraw their respective petitions in June 2012.
On July 16, 2012, DHS issued Wanjiku a Notice to Appear
(the "Notice"), which charged Wanjiku with removability for
remaining in the United States beyond the term authorized by her
visa in violation of 8 U.S.C. § 1227(a)(1)(B). The Notice
separately alleged that Wanjiku's marriage was a sham and
constituted a fraudulent attempt to procure an immigration
benefit, and so charged her with removability under 8 U.S.C
§§ 1182(a)(6)(C)(i) and 1227(a)(1)(A). Wanjiku conceded
removability for overstaying her visa, but denied any fraud.
At a hearing held on April 22, 2013, DHS withdrew the
fraud charge, electing to seek Wanjiku's removal only for
overstaying her visa. Wanjiku did not file an application for
relief or seek adjustment of her status, however, and at the
conclusion of the hearing, the IJ ordered Wanjiku removed to Kenya.
Wanjiku did not preserve her appeal and took no further action at
that time.
Wanjiku remained in the United States despite the
removal order and, on September 28, 2016, she filed a motion to
reopen removal proceedings to pursue "asylum and related
humanitarian claims based on changed circumstances and country
conditions." See 8 C.F.R. §§ 1003.2(c)(2); 1003.23(b)(4)(i).
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Wanjiku alleged that a confluence of factors, including an attack
on her daughters (who remained in Kenya), had made her fearful of
returning there and thus, for the first time, eligible for asylum.
The following discussion provides an overview of the factual claims
Wanjiku presented in support of her motion.
Wanjiku belongs to a sub-clan "governed by a council of
elders who make important decisions for [her] people." "[I]ts
over [2,000] members can be found all over Kenya," and "the elders
can mobilize sub-clan members throughout the nation to carry out
[their] wishes." In 1985, contrary to prevailing custom that
allows only men to inherit land, Wanjiku's grandfather left
Wanjiku and her daughters a land inheritance. Her uncle was
"furious" with the bequest and has allegedly disputed and
encroached on Wanjiku's claim to the parcel since 1987. Wanjiku
also asserted that land values in Kenya have been on the rise in
recent years and implied that this trend may have animated her
uncle's displeasure with her inheritance.
On April 14, 2016, Wanjiku's uncle called Wanjiku and
stated that he wanted to sell her property. At her request, two
of Wanjiku's daughters traveled in person to see if the uncle was
in fact going to sell the land. When they arrived, however,
Wanjiku's uncle "chased" them away. While Wanjiku's daughters
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thereafter sought intercession by local elders, the uncle2
interfered with those efforts, sending "gangs" to attack her
daughters and threatening the sub-clan's chief.
Subsequent to those events, Wanjiku alleges that her
uncle spread rumors that Wanjiku is (or has become) a lesbian and
threatened Wanjiku's daughters with female genital mutilation
("FGM"). Wanjiku asserts that the increasing threats to lesbian,
gay, bisexual and transgender ("LGBT") individuals in Kenya
"give[] people like [her] uncle new cover and justification" for
violence. Further, she claims that stigma will allow her uncle to
"beat [] and possibly kill" her with impunity, if not with
assistance from the police and community. Wanjiku specifically
alleges that her uncle, aided by the rumors of her sexuality, has
the influence to leverage the Mungiki warriors -- "a
traditionalist, religious and political group" -- against her.
Wanjiku also alleges that she faces a risk of persecution
based on her religion. In support, she cites the increasing
violence by al-Shabaab, an East African Islamist insurgent group,
against Kenyan Christians.
Wanjiku supported her motion to reopen with her own
affidavit attesting to the above facts, evidence of her
2
Some of the supporting documents regarding these incidents
refer to threats by Wanjiku's "grandfather," rather than her uncle.
Neither party addresses this disparity, nor do they attach any
significance to that point.
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grandfather's death and her uncle's status as "proprietor" of the
Kenyan land, and documents evidencing the attacks against her
daughters. Wanjiku also provided State Department and media
reports on conditions in Kenya, including reporting on anti-LGBT
rhetoric from powerful political and religious leaders, rising
land prices which have caused sometimes violent disputes, and al-
Shabaab's 2014 declaration that Kenya is a "war zone" and its role
in a series of terrorist attacks.
On November 28, 2016, the IJ denied Wanjiku's motion to
reopen. The IJ began by noting that Wanjiku's motion, filed more
than three years after entry of the order of removal, was untimely.
See 8 U.S.C. § 1229a(c)(7)(C)(i) (requiring motions to reopen to
be filed within 90 days of removal order, subject to certain
exceptions); 8 C.F.R. § 1003.2(c)(2) (same). The IJ then concluded
that her motion and evidence failed to demonstrate changed country
conditions which might excuse her non-compliance with that
limitations period. 8 C.F.R. § 1003.2(c)(3)(ii). Instead, the IJ
found that Wanjiku's motion was "predominantly based on changed
personal circumstances" and failed to demonstrate any meaningful,
relevant change in Kenya's country conditions. In particular, the
IJ concluded that Wanjiku's evidence of climbing land prices (and
resultant disputes), anti-LGBT discrimination, and al-Shabaab
violence demonstrated a continuation of conditions already in
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existence at the time of her prior hearing.3 The IJ further
declined to reopen the proceedings sua sponte and denied the motion
accordingly.
Wanjiku appealed the IJ's decision and, on May 15, 2017,
the BIA issued a decision that affirmed the IJ's denial of the
motion on discretionary grounds only without reaching the IJ's
other findings. Following appeal to this court, the Government
made an unopposed motion to remand the case to the BIA to allow it
to "more fully address all of the [IJ's] grounds for denying
Wanjiku's motion." On October 11, 2017, this court granted the
Government's motion, vacated the May 15, 2017 BIA decision, and
remanded for further proceedings.
On remand, the BIA again affirmed the IJ's denial of the
motion to reopen. It concluded that "the IJ did not reversibly
err in finding [that] the [] country conditions" cited by Wanjiku
"were examples of continuing conditions, rather than changed
country conditions." Though noting that Wanjiku's changed
"personal circumstances may place her at increased risk of harm,"
the BIA concluded that this potential future harm remained
"grounded in continuing country conditions, rather than material
changed country conditions." Accordingly, the BIA dismissed
Wanjiku's appeal.
3
The IJ relied on the same bases to conclude that Wanjiku
failed to demonstrate a prima facie case for asylum relief.
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II.
In her present appeal, Wanjiku argues that the agency's
decisions erred in finding that conditions within Kenya had not
changed since her prior hearing in 2013. Specifically, she argues
that both the BIA and IJ overlooked two statements evidencing
increased threats to LGBT persons and from al-Shabaab violence,
and misconstrued her argument concerning violence resulting from
land value increases.4 Before delving into the details of those
contentions, we begin by introducing the framework against which
the agency's decision is evaluated and the standards we apply in
undertaking that evaluation.
A.
As a general matter, motions to reopen immigration
proceedings must be filed "within 90 days of the date of entry of
a final administrative order of removal." 8 U.S.C.
4 Wanjiku previously argued that she was entitled to relief
because changes in her personal circumstances that were outside of
her control rendered certain country conditions newly relevant to
her. In particular, she argued that her uncle's alleged spreading
of rumors concerning her sexuality and threatening of FGM made
discriminations along those lines pertinent to her case for the
first time. Both the IJ and BIA considered and rejected these
arguments, and Wanjiku does not on appeal press them again.
Accordingly, these arguments are waived, and we do not further
consider them here. See Silva v. Gonzales, 455 F.3d 26, 28 (1st
Cir. 2006) ("We have held, with a regularity bordering on the
monotonous, that litigants have an obligation to spell out their
arguments squarely and distinctly, or else forever hold their
peace." (internal quotation marks, alterations, and citation
omitted)). Wanjiku also makes no argument as to the denial of
sua sponte reopening.
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§ 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). The time
limit does not apply to motions to reopen in order to seek asylum
or withholding of removal, however, if the relevant motion "is
based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if
such evidence is material and was not available and would not have
been discovered or presented at the previous proceeding." 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). "It
is well-established that an applicant bears the burden of
establishing changed country circumstances for purposes of
§ 1003.2(c)(3)(ii)," Larngar v. Holder, 562 F.3d 71, 76 (1st Cir.
2009), and must "make a convincing demonstration" of the claimed
change, Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir. 2015)
(alteration omitted). Additionally, the petitioner's evidence
"must, at a bare minimum, establish a prima facie case sufficient
to ground a claim of eligibility for the underlying substantive
relief."5 Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007).
In evaluating a motion to reopen based on changed country
conditions, the BIA "compares the evidence of country conditions
5In an asylum claim, establishing a prima facie case requires
the movant to "produce objective evidence showing a reasonable
likelihood that he will face future persecution based on a
statutory ground." Smith v. Holder, 627 F.3d 427, 437 (1st Cir.
2010) (quoting Larngar, 562 F.3d at 78) (internal quotation marks
omitted). That is, persecution must be "on account of race,
religion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. § 1101(a)(42).
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submitted with the motion to those that existed at the time of the
merits hearing below." Haizem Liu v. Holder, 727 F.3d 53, 57 (1st
Cir. 2013) (quoting In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA
2007)) (internal quotation marks and alteration omitted).
"Crucially, this evidence must demonstrate the intensification or
deterioration of country conditions, not their mere continuation."
Tawardrous v. Holder, 565 F.3d 35, 38 (1st Cir. 2009). "[G]rave
conditions that remain grave do not equate to intensification of
conditions," and thus will not sustain a motion to reopen.
Sánchez-Romero v. Sessions, 865 F.3d 43, 46 (1st Cir. 2017).
"[T]he BIA enjoys considerable latitude in deciding
whether to grant or deny [motions to reopen] . . . and we review
the BIA's denial of a motion to reopen only for abuse of
discretion." Jutus v. Holder, 723 F.3d 105, 109-10 (1st Cir. 2013)
(internal quotation marks and citations omitted); see also Yong
Xiu Lin v. Holder, 754 F.3d 9, 14 (1st Cir. 2014) (applying abuse
of discretion review to denial of motion to reopen based on lack
of changed country conditions). Under that standard, we uphold
the BIA's decision "unless the petitioner can show that the BIA
committed an error of law or exercised its judgment in an
arbitrary, capricious, or irrational manner." Bbale v. Lynch, 840
F.3d 63, 66 (1st Cir. 2016). "When the BIA adopts the IJ's opinion
and discusses some of the bases for the IJ's decision, we have
authority to review both the IJ's and the BIA's opinions." Budiono
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v. Mukasey, 548 F.3d 44, 48 (1st Cir. 2008) (internal quotation
marks and citation omitted).
B.
Despite the uphill climb she faces in this review,
Wanjiku purports to identify abuses of discretion with respect to
the agency's review of each of her three alleged changed country
conditions. Specifically, she argues that the agency's decisions
entirely overlooked two statements -- one by a prominent Kenyan
politician equating homosexuality with "terrorism" and one by al-
Shabaab designating Kenya as a "war zone" -- and misconstrued her
evidence regarding "soaring" land values in Kenya. On review,
however, we see no abuse of discretion on any of these points.
Wanjiku's argument that the agency did not address (or,
at least, adequately address6) the cited quotes fails at its
inception. This court's prior decisions make clear that
[a]n agency is not required to dissect in
minute detail every contention that a
complaining party advances. It is enough if
the agency fairly considers the points raised
by the complainant and articulates its
decision in terms adequate to allow a
reviewing court to conclude that the agency
has thought about the evidence and the issues
and reached a reasoned conclusion.
6 While Wanjiku suggests at several points in her brief that
the agency failed altogether to address either of the quotes, both
the BIA and IJ decisions specifically cite each of those
statements.
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Raza, 484 F.3d at 128 (citations omitted). Here, the IJ's and
BIA's decisions clearly considered the relevant underlying
arguments and simply concluded that the proffered evidence was not
enough to show a real change of conditions. The IJ's discussion
of anti-LGBT activity -- subsequently endorsed by the BIA -- noted
evidence in the record indicating that homosexuality has been
illegal in that country since 1963 and discussed State Department
reports which described pre-2013 violence, harassment, and arrests
directed against Kenya's LGBT population. Similarly, both
discussions surveyed al-Shabaab's history of violence in Kenya,
noting record evidence showing that the group's attacks began at
least two years prior to Wanjiku's first hearing. Those decisions
found insufficient evidence to support Wanjiku's claim the group's
activities had in fact escalated, its declaration of Kenya as a
"war zone" notwithstanding. Wanjiku points to no substantive fault
with these observations, and her contention that the agency's
analysis did not sufficiently emphasize her cited evidence is
nothing more than "an objection to . . . factual determinations
and the evidentiary weight . . . accorded to competing pieces of
evidence," Xin Qiang Liu, 802 F.3d at 77. We therefore discern no
abuse of discretion based on this first set of challenges.
Wanjiku's challenge to the agency's evaluation of her
land value-based challenge fares no better. Both the BIA and IJ
decisions cited specific evidence in the record to support their
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shared conclusion that the admittedly dramatic increase in land
prices pre-dated Wanjiku's initial hearing by at least three years.
Wanjiku now claims that those orders "distorted the essence of
[her] argument," which was that the rise in land prices only
increased to the point of causing violence subsequent to her first
hearing. On appeal, however, she does not point to any portion of
her motion below that squarely presented such an argument.
Instead, she directs our attention to a 2014 news article in the
record which discusses, in general terms, violence resulting from
increased land prices "over the last few months." However, that
article also discusses violent land disputes going back as far as
1983, including a killing of 139 people arising from land disputes
in 2012. Even leaving aside whether that reference preserves or
squarely presented her argument to the agency -- and we doubt that
it does -- we could not conclude on the basis of this equivocal
evidence that Wanjiku carried her burden of making a "convincing
demonstration" that violence resulting from increased land value
is a changed, rather than continuing, condition within Kenya. Id.
at 76.7
7Wanjiku makes the further argument that evidence concerning
rising land values was not "available" to her in 2013 within the
meaning of Section 1229(a). She reasons that, at that time, her
uncle's threat to her land was not yet evident and so information
regarding land values was not relevant to the prior proceeding.
Because we conclude that her evidence does not demonstrate changed
country conditions on that point, we need not further address
whether the evidence was previously available to her. Cf. Haizem
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Accordingly, we find no abuse of discretion in the
agency's finding that Wanjiku failed to establish changed country
conditions. Because we find no abuse of discretion in the agency's
evaluation of the country conditions, it is not necessary to
further assess its conclusion that Wanjiku failed to make a prima
facie case for asylum eligibility.8 See Haizem Liu, 727 F.3d at
58.
III.
For the foregoing reasons, the petition is denied.
Liu, 727 F.3d at 56 (noting that evidence must both show changed
country conditions and, "[a]dditionally," must have been
"unavailable and undiscoverable at the time of the former
hearing").
8Wanjiku raises the separate argument that even continuing
country conditions may justify an asylum claim where the conditions
"ripen" to relevance as to the applicant. In support of this
argument, she points to the Ninth Circuit's decision in Fakhry v.
Mukasey, 524 F.3d 1057 (9th Cir. 2008). However, that case
considered an entirely separate statutory section, 8 U.S.C.
§ 1158(a)(2)(D), which extends the permissible time to seek asylum
based on "the existence of changed conditions which materially
affect the applicant's eligibility for asylum." In other words,
the issue was whether the circumstances identified had any bearing
on the merits of the applicant's underlying claim for asylum. See
Fakhry, 524 F.3d at 1063. As noted, our finding that the agency
did not abuse its discretion in concluding there were no changed
circumstances obviates any need to examine Wanjiku's eligibility
for asylum, and so we do not further consider this argument.
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