Mzenga Wanyama v. Eric H. Holder, Jr. ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1104
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Mzenga Aggrey Wanyama, Mary Namalwa Mzenga,
Willy Levin Mzenga, and Billy Masibai Mzenga
lllllllllllllllllllllPetitioners
v.
Eric H. Holder, Jr., Attorney
General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 15, 2012
Filed: November 1, 2012
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Before RILEY, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Mzenga Aggrey Wanyama, his wife, and his children petition for review of an
order of the Board of Immigration Appeals (“BIA”) affirming the immigration
judge’s (“IJ”) denial of their application for asylum and rejecting their due process
claim. We deny the petition.
Wanyama, a citizen and native of Kenya, first entered the United States as a J-1
nonimmigrant exchange visitor in 1992. His wife, Mary Namalwa Mzenga, and their
children, Willy Levin Mzenga and Billy Masibai Mzenga, followed in 1995. Upon
expiration of his visa in 2005, Wanyama conceded removability and applied for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”) on behalf of himself and his family.
Wanyama testified before the IJ that he fears persecution if he returns to Kenya
primarily on account of an article he wrote in 2004 criticizing the government of
Kenyan President Mwai Kibaki and praising his Orange Democratic Movement
opponent Raila Odinga. The article appeared in The East African Standard, a widely
read Kenyan daily newspaper. Wanyama believes the Kenyan government began to
harass his family members in Kenya after the article was published. His brother was
fired as managing director of a public development corporation, and a local member
of parliament made “suspicious remarks” to Wanyama’s mother, questioning her
about his activities and whereabouts. Several other family members sent e-mails to
Wanyama telling him he should not return to Kenya for safety reasons.
After the article was published, Wanyama believes the Kenyan government
intensified its focus on him as a political opponent based on his involvement with an
American political group that supported Odinga. Additionally, as his removal
proceedings progressed, Wanyama wrote two more articles supporting Odinga’s
candidacy for the Standard in 2007. To illustrate the danger of being identified as a
political opponent, he testified about two of Kibaki’s opponents that he believes
suffered persecution at the hands of the government. His cousin, Michael Wamalwa,
was vice president under Kibaki but died in 2003 under “suspicious circumstances.”
Wanyama theorized that Kibaki’s government was responsible because Wamalwa
was slated to succeed Kibaki as president pursuant to a memorandum of
understanding. He also testified about a professor from the University of Nairobi
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whom he believes was murdered for proposing to transfer some power from the
presidency to a new prime minister position.
After a hearing in April 2008, the IJ closed the proceedings but asked the
parties to submit additional documentation. In December 2009, the IJ reopened the
case to allow the parties to submit additional evidence, which included evidence of
improved country conditions as a result of the formation of a coalition government
in Kenya. Though the IJ found Wanyama’s testimony credible to establish a
subjective fear of persecution, the IJ determined that Wanyama failed to show an
objectively reasonable fear of future persecution. Wanyama appealed the denials to
the BIA, where he also claimed the IJ violated his due process rights by delaying his
decision and reopening the case sua sponte in December 2009, thereby allowing the
Government to present evidence of recently improved country conditions. The BIA
affirmed the IJ’s decision because it found that Wanyama’s testimony could not
support an objectively reasonable fear of future persecution, and it denied Wanyama’s
due process claim. Wanyama now petitions for review pursuant to 8
U.S.C. § 1252(b), arguing he is eligible for asylum under 8 U.S.C. § 1158 and
renewing his due process claim.1
“We review the BIA’s decision, as it is the final agency decision; however, to
the extent that the BIA adopted the findings or reasoning of the IJ, we also review the
IJ’s decision as part of the final agency action.” Davila-Mejia v. Mukasey, 531 F.3d
624, 627 (8th Cir. 2008). “We review the BIA’s denial of an application for asylum
. . . using the deferential substantial evidence standard.” Sow v. Mukasey, 546 F.3d
953, 956 (8th Cir. 2008). Under the substantial evidence standard, we affirm “unless
the evidence was so compelling that no reasonable factfinder could fail to find the
1
Wanyama does not argue the IJ improperly denied his withholding of removal
or CAT claims. Therefore, we consider these claims waived. Alyas v. Gonzales, 419
F.3d 756, 760 (8th Cir. 2005).
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requisite fear of persecution.” Osuji v. Holder, 657 F.3d 719, 720 (8th Cir. 2011)
(quoting Ladyha v. Holder, 588 F.3d 574, 577 (8th Cir. 2009)).
To qualify for asylum, an applicant must demonstrate that he or she is a
“refugee.” 8 U.S.C. § 1158(b)(1)(A). Refugees are aliens that are unable or
unwilling to return home “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Where, as here, an applicant
attempts to establish a well-founded fear of future persecution without having shown
past persecution, “the applicant must show the fear is both subjectively genuine and
objectively reasonable.” Karim v. Holder, 596 F.3d 893, 897 (8th Cir. 2010) (quoting
Uli v. Mukasey, 533 F.3d 950, 955 (8th Cir. 2010)). To establish an objectively
reasonable fear of future persecution, “an alien must present credible, direct, and
specific evidence of facts that show a reasonable person in the alien’s position would
fear persecution if returned to the alien’s native country.” Litvinov v. Holder, 605
F.3d 548, 553 (8th Cir. 2010) (quoting Loulou v. Ashcroft, 354 F.3d 706, 709 (8th
Cir. 2003)).
Wanyama first claims the BIA erred by finding no particularized threat of
persecution based on the publication of his 2004 article and his political affiliation,
citing the Kenyan government’s treatment of his family as well as its alleged
treatment of other political opponents. We conclude that substantial evidence
supports the BIA’s decision. While Wanyama’s brother was fired from his
government-associated position in 2004, even assuming that he was fired in
retaliation for Wanyama’s article, his firing would not rise to the level of persecution.
See Lopez-Amador v. Holder, 649 F.3d 880, 884 (8th Cir. 2011) (“‘Persecution is an
extreme concept’ that ‘does not include low-level intimidation and harassment.’”
(quoting Zakirov v. Ashcroft, 384 F.3d 541, 546 (8th Cir. 2004))). Similarly, the
“suspicious remarks” the member of parliament made to Wanyama’s mother fail to
rise to the level of persecution. See Quomsieh v. Gonzales, 479 F.3d 602, 606 (8th
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Cir. 2007) (holding that incidents of harassment and unfulfilled threats of injury are
not persecution absent physical harm). Wanyama concedes that no family member
has suffered physical harm at the hands of the government and that his mother
obtained a passport and traveled to the United States without impediment after the
2004 article was published. Cf. Quiñonez-Perez v. Holder, 635 F.3d 342, 344 (8th
Cir. 2011) (finding even isolated violent attacks on family members insufficient to
establish persecution “absent a pattern of persecution tied to the applicant” (quoting
Surya v. Gonzales, 454 F.3d 874, 878 (8th Cir. 2006))).
Similarly, Wanyama’s allegations that the Kenyan government will persecute
him, as he alleges it persecuted other political opponents, fail to support an
objectively reasonable fear of future persecution. Wanyama presents no evidence to
suggest foul play in the death of his cousin, Michael Wamalwa, except to speculate
that Wamalwa died under “suspicious circumstances.” Wanyama also testified about
a Kenyan professor who was murdered in his home, but again Wanyama provides
only speculation that the murder was politically motivated. Even assuming these two
deaths were attributable to the Kenyan government as acts taken against political
opponents, Wanyama fails to establish that he is in a similar position with respect to
the current government. In fact, the three articles Wanyama authored praised Raila
Odinga, who is now Prime Minister of Kenya. Wanyama presented no evidence
beyond speculation to establish that the current coalition government would persecute
an individual for writing an article that praises its own prime minister.
Finally, Wanyama claims the BIA erred in finding he did not establish a pattern
of persecution against journalists in Kenya to whom he claims to be similarly situated.
See 8 C.F.R. § 1208.13(b)(2)(iii)(A). The BIA determined that Wanyama was a
professor of literature, not a journalist, and therefore he could not claim to be
similarly situated to Kenyan journalists. We agree. According to his testimony,
Wanyama authored only three articles critical of the Kenyan government over the
span of several years while serving as a professor and while living in the United
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States. Based on this evidence, we are not persuaded that Wanyama is similarly
situated to Kenyan journalists. See Ngure v. Ashcroft, 367 F.3d 975, 991-92 (8th Cir.
2004); Feleke v. I.N.S., 118 F.3d 594, 598-99 (8th Cir. 1997).
In summary, after reviewing the record, we cannot say that “no reasonable
factfinder could fail to find the requisite fear of persecution.” Osuji, 657 F.3d at 720(quoting Ladyha, 588 F.3d at 577). As a result, we affirm the denial of Wanyama’s
petition for asylum on behalf of himself and his family.
We also affirm the denial of Wanyama’s due process claim. Aliens are entitled
to due process in removal proceedings, Reno v. Flores, 507 U.S. 292, 306 (1993), but
to succeed on a due process claim, a person must first demonstrate a protected liberty
or property interest. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (“Procedural
due process imposes constraints on governmental decisions which deprive individuals
of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of
the Fifth or Fourteenth Amendment.”). In Obleshchenko v. Ashcroft, we held that
aliens do not have a constitutionally protected liberty or property interest in receiving
asylum, because it is “statutorily created relief that is subject to the unfettered
discretion of a governmental authority.” 392 F.3d 970, 971 (8th Cir. 2004) (quoting
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Nativi-Gomez v. Ashcroft, 344 F.3d 805, 809 (8th Cir. 2003)).2 Therefore, Wanyama
has no protected interest at stake, and his due process claim fails.
In any event, Wanyama has not shown that he suffered the kind of fundamental
procedural error required to support a due process challenge. See Bracic v. Holder,
603 F.3d 1027, 1032 (8th Cir. 2010) (“To establish a due process violation,
[Wanyama] must ‘demonstrate both a fundamental procedural error and that the error
resulted in prejudice.’” (quoting Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir.
2003))). The IJ did not commit fundamental error when she received new evidence
of improved country conditions because this action falls within the IJ’s broad
discretion to admit and consider probative evidence. See 8 U.S.C. § 1229a(b)(1);
Ivanov v. Gonzales, 487 F.3d 635, 639 n.4 (8th Cir. 2007) (“[T]he regulations permit
an IJ to reopen removal proceedings at any time upon his or her own motion.”).
For these reasons, we deny Wanyama’s petition for review.
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2
Some decisions of this court reach the merits of an asylum applicant’s
procedural due process claim without addressing whether the applicant had a
protected interest in receiving asylum. See, e.g., Camishi v. Holder, 616 F.3d 883,
886 (8th Cir. 2010); Banat v. Holder, 557 F.3d 886, 890 (8th Cir. 2009); Ismail v.
Ashcroft, 396 F.3d 970, 974-75 (8th Cir. 2005). To the extent these decisions conflict
with Obleshchenko by implicitly finding a protected interest, we nevertheless follow
the rule announced in Obleshchenko—that an alien does not have a liberty or property
interest in receiving asylum—because it is our earliest case to reach the issue, Mader
v. United States, 654 F.3d 794, 800 (8th Cir. 2011), and because the cases that imply
a protected interest did not squarely address the issue, see Brecht v. Abrahamson,
507 U.S. 619, 630-31 (1993) (holding that stare decisis does not apply unless the
question at issue was “squarely addressed” in prior decisions).
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