Maryline Maritim v. Eric Holder, Jr. , 507 F. App'x 558 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1259n.06
No. 12-3259
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Dec 06, 2012
DEBORAH S. HUNT, Clerk
MARYLINE CHEPKORIR MARITIM, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
ERIC H. HOLDER, JR., Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
BEFORE: GUY, SUTTON, and COOK, Circuit Judges.
PER CURIAM. Maryline Chepkorir Maritim petitions for review of an order of the Board
of Immigration Appeals (BIA) dismissing her appeal from an immigration judge’s (IJ) decision
denying her application for asylum, withholding of removal, and protection under the Convention
Against Torture (CAT) and ordering her removal to Kenya. We deny Maritim’s petition.
Maritim, a native and citizen of Kenya, entered the United States in January 2004 as a
nonimmigrant student to attend Fontbonne University in St. Louis, Missouri. Maritim last attended
the university in April 2004. After Maritim provided a counterfeit social security card to apply for
an Ohio driver’s license, the Department of Homeland Security served her with a notice to appear
on December 10, 2007, charging her with removability under section 237(a)(1)(C)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(C)(i), for failing to maintain or comply with
No. 12-3259
Maritim v. Holder
the conditions of her nonimmigrant status. In a hearing before an IJ, Maritim admitted the factual
allegations in the notice to appear and conceded removability as charged.
On January 26, 2009, Maritim filed an application for asylum, withholding of removal, and
protection under the CAT, asserting that, if she returned to Kenya, she would be required to live with
her father’s tribe (the Kipsigis, a subgroup of the Kalenjin) and forced to undergo female genital
mutilation (FGM). After an evidentiary hearing, the IJ denied Maritim’s application and ordered her
removal to Kenya. The IJ found that Maritim was “a generally credible witness” but discounted her
expert witness’s testimony. The IJ went on to conclude that Maritim’s application for asylum was
timely based on her demonstration of changed circumstances affecting her eligibility for asylum.
With respect to that eligibility, the IJ determined that a verbal threat to subject Maritim to FGM in
1993 did not amount to past persecution. The IJ found that Maritim had a subjective fear of
returning to Kenya based on her membership in a particular social group: unmarried females from
the Kipsigis tribe in Kenya who have not undergone FGM. But the IJ found that Maritim’s fear was
not an objectively reasonable one and therefore denied her asylum application. The IJ also
determined that Maritim failed to establish eligibility for withholding of removal or protection under
the CAT.
Maritim appealed the IJ’s decision to the BIA. Dismissing the appeal, the BIA upheld the
IJ’s decision denying Maritim’s application. This timely petition for review followed.
Maritim contends that the BIA summarily affirmed the IJ’s decision without conducting an
individualized review of the record and her legal arguments. To the contrary, the BIA issued a three-
page order discussing the evidence in the record and addressing Maritim’s arguments. Where, as
-2-
No. 12-3259
Maritim v. Holder
here, “the BIA reviews the immigration judge’s decision and issues a separate opinion, rather than
summarily affirming the immigration judge’s decision, we review the BIA’s decision as the final
agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). “To the extent the BIA
adopted the immigration judge’s reasoning, however, this Court also reviews the immigration
judge’s decision.” Id.Maritim’s brief refers to various standards of review, such as clear error, abuse of discretion,
and manifestly contrary to law. We review the agency’s factual determination as to whether an
asylum applicant qualifies as a refugee for substantial evidence. Yu v. Ashcroft, 364 F.3d 700, 702
(6th Cir. 2004). Under that standard, “the administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Maritim challenges the agency’s determination that she failed to demonstrate an objectively
reasonable fear of FGM if returned to Kenya. An asylum applicant bears the burden of proving
refugee status by demonstrating either past persecution or a well-founded fear of future persecution
on account of a protected ground. 8 C.F.R. § 1208.13(a)-(b); see also Ndrecaj v. Mukasey, 522 F.3d
667, 674 (6th Cir. 2008). A well-founded fear of future persecution “must be both subjectively
genuine and objectively reasonable.” Mapouya v. Gonzales, 487 F.3d 396, 412 (6th Cir. 2007)
(citation omitted).
Here, the BIA agreed with the IJ that Maritim failed to establish that her fear of being forced
to undergo FGM was objectively reasonable, noting that: (1) Maritim’s mother and sisters were
never subjected to FGM; (2) her parents, who still live in Kenya, support her opposition to FGM and
have protected her from such harm for her entire life; (3) her mother now lives in Kisumu with her
-3-
No. 12-3259
Maritim v. Holder
own parents, who are members of the Luo tribe which does not practice FGM; (4) even if Maritim
were forced to live with her father’s tribe, her father would be present to protect her from such harm
as he has always done in the past; (5) even within her father’s tribe, only 48 percent of girls have
undergone FGM; (6) Kenya has outlawed FGM; and (7) although FGM is still practiced, the
Department of State country reports indicate that the practice is on the decline and occurs mainly in
rural areas. The BIA further held that Maritim failed to meet her burden to establish that relocation
within Kenya to a more urban area was not reasonable. See 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3)(i);
Cruz-Samayoa v. Holder, 607 F.3d 1145, 1155 & n.6 (6th Cir. 2010). As the BIA noted, Maritim
admitted that she would probably be safe in a large city and that she might be able to live with her
mother. Although Maritim claimed that her father’s family would come for her if she relocated
within Kenya, she acknowledged that there are laws against kidnapping, and the record reflects that
the Kenyan government does not support or sponsor FGM. The record does not compel a conclusion
contrary to the agency’s determination that Maritim failed to establish an objectively reasonable fear
of future persecution and therefore failed to demonstrate eligibility for asylum.
Maritim does not challenge the agency’s denial of withholding of removal and protection
under the CAT, thus forfeiting those claims. See Abdurakhmanov v. Holder, 666 F.3d 978, 981 n.2
(6th Cir. 2012). Regardless, because substantial evidence supports the agency’s determination that
Maritim failed to establish eligibility for asylum, she cannot satisfy the more stringent standards for
withholding of removal and protection under the CAT. See Ramaj v. Gonzales, 466 F.3d 520, 532
(6th Cir. 2006).
For the foregoing reasons, we deny Maritim’s petition for review.
-4-