Joseph Njoroge v. Jefferson B. Sessions III , 709 F. App'x 380 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4322
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Joseph Charagu Njoroge
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 24, 2017
Filed: December 14, 2017
[Unpublished]
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Before WOLLMAN, LOKEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Kenyan citizen Joseph Charagu Njoroge petitions for review of an order of the
Board of Immigration Appeals (BIA) dismissing his appeal from the decision of an
immigration judge (IJ), which denied him asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). The record reveals that
Njoroge was placed in removal proceedings in 2011 for attempting to procure an
immigration benefit by fraud. After an IJ sustained the charge of removability, and
Njoroge submitted an asylum application in 2014, claiming that he was a Christian
who had opposed the Mungiki – a Kenyan criminal gang that practiced the traditional
Kikuyu religion – and that the gang had threatened him in the 1990s because he
resisted recruitment.
The IJ who had determined that Njoroge was removable retired in June 2015,
and so the decision denying immigration relief was of necessity issued by a different
IJ, who stated that he had considered all of the record evidence, both documentary
and testimonial, and that he had found that Njoroge’s evidence was not credible
because of certain discrepancies between his testimony and other evidence. With
respect to the merits of Njoroge’s claims for relief, the second IJ determined that,
among other things, Njoroge had not (1) demonstrated that he had suffered any harm
in Kenya, (2) shown a nexus between any alleged harm and a protected ground, (3)
established that his fear of future persecution by the Mungiki was subjectively real
or objectively reasonable, or (4) met his burden of proof for withholding of removal
or CAT relief.1 Njoroge, through new counsel, appealed to the BIA, raising several
due-process arguments, including one based on the fact that the IJ who issued the
denial was not present at Njoroge’s merits hearing.
The BIA addressed both Njoroge’s due-process arguments and the merits of
his application, and based its determinations on Njoroge’s own testimony, without
mentioning Njoroge’s credibility. It found no evidence to suggest that Njoroge was
deprived of his right to a full and fair removal hearing. It found no clear factual error
in the determinations that (1) Njoroge had failed to establish past persecution or a
1
Because Njoroge’s brief does not meaningfully challenge the determination
that his asylum claim was time-barred, or the BIA’s reasons for affirming the IJ’s
denial of his applications for immigration relief on the merits, he has forfeited review
as to those issues. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir.
2004).
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well-founded fear of future persecution on the basis of a protected ground; (2) had
failed to show a nexus between threats from the Mungiki and his religion or any other
protected ground; and (3) had failed to establish that it was more likely than not that
he would be tortured by, or at the instigation of, or with the consent or acquiescence
of, the government.
Njoroge contends that he was denied due process and that several regulatory
and statutory requirements were violated by reason of the second IJ’s credibility
determinations made in the absence of an opportunity to observe Njoroge’s demeanor
in a face-to-face setting. He further asserts that the BIA addressed only his
constitutional right to procedural due process and thus did not consider whether the
credibility determination violated the REAL ID Act’s “totality of the circumstances”
test, or the BIA’s own precedents.2 He argues that the Act and BIA precedent require
an IJ to base his credibility determination at least in part on an alien’s demeanor.
We conclude that Njoroge was not deprived of due process, nor were the
REAL ID Act and BIA precedent violated by reason of the reassignment of his case
of a successor IJ, because it was the BIA’s decision that constituted the final
reviewable agency action, which did not rely on the credibility determination when
it analyzed the merits of Njoroge’s claims. See Matul-Hernandez v. Holder, 685 F.3d
707, 710-11 (8th Cir. 2012) (court reviews BIA’s decision as it is final agency
decision, and, to extent that BIA adopted IJ’s findings or reasoning, also reviews IJ’s
determination as part of final agency action); cf. INS v. Bagamasbad, 429 U.S. 24,
25 (1976) (per curiam) (holding that courts and agencies are not required to make
findings on issues the determination of which are not necessary to disposition).
2
See 8 U.S.C. § 1158(b)(1)(B)(iii) (permitting a judge, “[c]onsidering the
totality of the circumstances and all relevant factors,” to base credibility determination
on a non-exhaustive list of relevant factors).
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The petition is denied. See 8th Cir. R. 47B.
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