Victor Litanya v. Eric Holder, Jr. ( 2012 )

Case: 11-60166 Document: 00511780025 Page: 1 Date Filed: 03/07/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 7, 2012
No. 11-60166
Summary Calendar Lyle W. Cayce
Clerk
VICTOR KHASANDI LITANYA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088-297-719
Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner Victor Khasandi Litanya, a citizen of Kenya, petitions for review
of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal
of the Immigration Judge’s (IJ) decision denying his applications for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT)
and ordering his removal to Kenya. Litanya argues that he presented evidence
of past persecution and a well-founded fear of future persecution by the Mungiki
sect of Kenya that is both subjectively and objectively reasonable.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-60166
The BIA dismissed Litanya’s asylum application as untimely and, in the
alternative, addressed the merits of the asylum application and denied
withholding of removal. As Litanya concedes, we lack jurisdiction to review the
BIA’s decision agreeing with the IJ’s assessment of facts and circumstances
affecting the timeliness of Litanya’s asylum application. See Zhu v. Gonzales,
493 F.3d 588, 595–96 & n.31 (5th Cir. 2007).
To the extent that the BIA alternatively addressed the merits of Litanya’s
claim for asylum and denied withholding of removal, we will uphold the BIA’s
factual findings if the findings are supported by substantial evidence.
Silwany-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir. 1992). “The applicant
has the burden of showing that the evidence is so compelling that no reasonable
factfinder could reach a contrary conclusion.” Chen v. Gonzales, 470 F.3d 1131,
1134 (5th Cir. 2006). The Attorney General may grant asylum to aliens who
qualify as refugees. 8 U.S.C. § 1158(b); Chen, 470 F.3d at 1135. “The applicant
may qualify as a refugee either because he or she has suffered past persecution
or because he or she has a well-founded fear of future persecution.” 8 C.F.R. §
208.13(b). To prevail on a claim of past persecution, an alien must establish that
he suffered persecution at the hands of the “government or forces that a
government is unable or unwilling to control.” Tesfamichael v. Gonzales, 469
F.3d 109, 113 (5th Cir. 2006). “To establish a well-founded fear of future
persecution, an alien must demonstrate a subjective fear of persecution, and that
fear must be objectively reasonable.” Zhao v. Gonzales, 404 F.3d 295, 307 (5th
Cir. 2005) (internal quotation marks and citation omitted). “Persecution” is
defined as the “infliction of suffering or harm, under government sanction, upon
persons who differ in a way regarded as offensive (e.g., race, religion, political
opinion, etc.), in a manner condemned by civilized governments.” Abdel-Masieh
v. INS, 73 F.3d 579, 583 (5th Cir. 1996) (citation omitted).
The BIA agreed with the IJ’s determination that “the Kenyan government
previously outlawed the Mungiki and other militia groups” and that the Kenyan
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No. 11-60166
government “currently actively targets the Mungiki for the actions they
previously committed against citizens.” We cannot conclude that the Kenyan
government is unwilling or unable to control the Mungiki. See Adebisi v. INS,
952 F.2d 910, 914 (5th Cir. 1992); see also Kamau v. Holder, 398 F. App’x 57, 59
(5th Cir. 2010); Omondi v. Holder, 332 F. App’x 197, 199 (5th Cir. 2009).
Litanya has failed to show that the evidence compelled a conclusion other than
that reached by the IJ and BIA. See Chen, 470 F.3d at 1134.
Litanya has abandoned any challenge to the denial of relief under the CAT
by failing to argue the issue in his petition for review. See Soadjede v. Ashcroft,
324 F.3d 830, 833 (5th Cir. 2003); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
The petition for review is DENIED.
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