Dorcas Njenga v. Alberto Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3088
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Dorcas Tabitha Njenga, *
*
Petitioner, *
* Petition for Review of a Final
v. * Decision of the Board of
* Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, * [UNPUBLISHED]
*
Respondent. *
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Submitted: March 16, 2007
Filed: March 30, 2007
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Before MELLOY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Dorcas Tabitha Njenga, a native and citizen of Kenya, petitioned for asylum.
The Immigration Judge (IJ) denied the petition. The Board of Immigration Appeals
(BIA) affirmed. Njenga now seeks review. We deny the petition.
Njenga arrived in the United States on a temporary visa that authorized her to
stay until September 2001. She overstayed her visa and, in 2002, Njenga applied for
asylum, withholding of removal and relief under the Convention Against Torture
(CAT).
Njenga, now age 26, submitted four grounds in support of her petition. She
feared, if returned to Kenya, that: (1) her uncles and aunts would pressure her
immediate family to subject her to Female Genital Mutilation (FGM); (2) she would
be unable to receive a nursing education in Kenya; (3) she would become a victim of
the country's high crime rate and (4) her brothers would be unable to protect her from
the country's crime and her extended family's desire to subject her to FGM. Njenga
was the sole witness in her hearing. The IJ found that her fears were not objectively
reasonable and denied Njenga's petition. The BIA affirmed. Njenga appeals only the
denial of asylum.
Njenga is eligible for asylum if she establishes that she possesses "a
well-founded fear of persecution [based upon] race, religion, nationality, membership
in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).
Denial of asylum is reviewed for abuse of discretion; underlying factual
findings are reviewed for substantial support by the record. Manivong v. Dist. Dir.,
United States Dep't of Justice I.N.S., 164 F.3d 432, 433 (8th Cir.1999). An IJ's factual
determinations "must be upheld if supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Tang v. I.N.S., 223 F.3d 713, 718 (8th
Cir.2000). "[This] standard is a deferential one, requiring a reviewing court to uphold
a denial of asylum unless an alien demonstrates that the evidence he presented was so
compelling that no reasonable fact finder could fail to find the requisite fear of
persecution." Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir.2004) (internal quotation
and citation omitted).Where, as here, the BIA affirms the IJ opinion without
discussion, we review the IJ's opinion directly. Gebrehiwot v. Ashcroft, 374 F.3d 723,
725 (8th Cir. 2004).
Njenga submitted four grounds for her asylum petition. A lack of educational
opportunities and a generalized fear of crime are not permissible grounds for asylum.
Nyonzele v. I.N.S., 83 F.3d 975, 983 (8th Cir. 1996) (holding that "[f]ears of economic
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hardship or a lack of educational opportunities, however, do not establish a
well-founded fear of persecution"); Hapidudin v. Gonzales, 126 Fed. Appx. 406 (9th
Cir. 1005) (unpublished) (holding that generalized fear based upon crime is not a
ground for asylum or CAT relief). Therefore, Njenga's asylum petition must be rooted
in a well-founded fear of FGM.
A well-founded fear of future persecution must be both subjectively genuine
and objectively reasonable. Chay-Velasquez v. Ashcroft, 367 F.3d 751 (8th Cir. 2004).
The IJ assumed that Njenga had a credible and reasonable subjective fear of FGM.
However, the IJ determined that this fear was not objectively reasonable.
The IJ based its conclusion that Njenga's fear of FGM was not objectively
reasonable on several factual findings: (1) Njenga had managed to live in Kenya into
her twenties without being subjected to FGM; (2) Njenga admitted to her asylum
officer that FGM is rarely performed on adults; (3) Njenga's parents, grandparents,
and siblings all oppose FGM; (4) Njenga stated that if she were returned, then she
would most likely live in Nairobi, the Kenyan capital, where the practice of FGM is
rare; (6) only 38% of the Kenyan female population had undergone FGM, most of the
victims living in rural communities; and (7) the Kenyan government had outlawed the
practice of FGM.
Njenga does not dispute any of these findings. The IJ's determination that
Njenga lacked an objectively reasonable well-founded fear of future persecution is
amply supported by the record. Her petition is denied.
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