Thuri v. Ashcroft , 380 F.3d 788 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 7, 2004
Charles R. Fulbruge III
Clerk
No. 03-60391
ANNIE NDUTA THURI
Petitioner
v.
JOHN ASHCROFT, US ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:
Petitioner Annie Nduta Thuri seeks review of an order of the
Board of Immigration Appeals, which summarily affirmed the
Immigration Judge’s decision ordering that Thuri be removed.
Because we agree that Thuri is not eligible for asylum or
withholding of removal, we deny the petition for review.
Police officers in Thuri’s native country of Kenya raped and
physically abused Thuri after her father reported the officers to
local authorities for hijacking a truckload of goods that he was
driving. Fearing further abuse, Thuri fled Kenya in November
1999. While en route to the United Kingdom, she passed through
Dallas, Texas. When she subsequently arrived in the U.K.,
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British immigration authorities determined that she had passed
through a safe third country (the United States) during her
journey there. Thuri was sent back to Dallas, where the INS
detained her.
In February 2000, the government instituted removal
proceedings against Thuri. She admitted entering the country
without proper documentation, as proscribed by § 212 of the
Immigration and Nationality Act (INA), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), thereby conceding her inadmissibility and
her removability. Thuri sought asylum under INA § 208, 8 U.S.C.
§ 1158, which confers discretion on the Attorney General to grant
asylum to “refugees.” 8 U.S.C. § 1158(b)(1). A refugee is an
individual who is outside of her country and is unable or
unwilling to return “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.”
Id. § 1101(a)(42)(A). In addition, Thuri requested withholding
of removal under § 241 of the INA, 8 U.S.C. § 1231(b)(3)(A),
which is available on similar grounds but requires a more
stringent showing that the alien will probably be persecuted if
removed to a certain country, see Efe v. Ashcroft, 293 F.3d 899,
906 (5th Cir. 2002). Finally, Thuri applied for relief under
Article 3 of the United Nations Convention Against Torture and
Other Forms of Cruel, Inhuman or Degrading Treatment or
Punishment, as implemented by 8 C.F.R. §§ 208.16-.18, which
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relief is available to one who can demonstrate that she will
probably be tortured in the country of removal. Id.
§ 208.16(c)(2).
In September 2000, the IJ denied Thuri’s applications for
asylum and withholding of removal and her request for relief
under the Convention Against Torture. While the IJ found Thuri’s
testimony of the events surrounding her rape to be credible, he
concluded that she should not be granted asylum or withholding of
removal because she had not established that the officers
persecuted her “on account of” any political opinion held by her
or imputed to her. In the IJ’s view, Thuri’s rapists were
criminals motivated by personal reasons unrelated to any
political belief held by Thuri or her father. Further, the IJ
rejected Thuri’s claim under the Convention Against Torture
because she had not shown that it is more likely than not that
she will be tortured if she returns to Kenya.
The IJ ordered that Thuri be removed to Kenya. In April
2003, a single judge of the Board of Immigration Appeals affirmed
without opinion, in accordance with 8 C.F.R. § 1003.1(e)(4).
Thuri filed a petition for review of the BIA’s final order under
INA § 242(a), 8 U.S.C. § 1252(a) (providing for judicial review
of orders of removal).
“Although this Court generally reviews decisions of the BIA,
not immigration judges, it may review an immigration judge’s
decision when, as here, the BIA affirms without additional
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explanation.” Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.
2003). “In either case, this Court must affirm the decision if
there is no error of law and if reasonable, substantial, and
probative evidence on the record, considered as a whole, supports
the decision’s factual findings.” Id. Moreover, under INA
§ 242, “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).
In Thuri’s initial brief to this court, she contends that
the IJ’s determination that she was not persecuted “on account of
. . . political opinion” is a legal conclusion, which this court
should review de novo. This assertion is inaccurate. As a
general matter, the determination that an alien is not eligible
for consideration for asylum is a factual conclusion reviewed
under the substantial-evidence standard. See Zamora-Morel v.
INS, 905 F.2d 833, 838 (5th Cir. 1990); see also Ozdemir v. INS,
46 F.3d 6, 7-8 (5th Cir. 1994) (per curiam). Further, the more
specific question whether an alien has demonstrated the requisite
nexus between persecution and political opinion is a question of
fact reviewed for substantial evidence. See Ontunez-Tursios v.
Ashcroft, 303 F.3d 341, 350-51 (5th Cir. 2002).
In arguing to the contrary, Thuri cites the Ninth Circuit’s
decision in Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir.
2000). But, there, the court only held that what constitutes “a
particular social group” within the meaning of the definition of
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a refugee in the INA is a question of law. Id. at 1091. By
contrast, the Hernandez-Montiel court made clear that the issues
of whether the alien is a member of that social group and whether
he was persecuted on account of that membership are factual in
nature. Id. at 1091, 1095-97.
Apparently conceding that substantial-evidence review is
generally appropriate here, Thuri switches tactics in her
response to the government’s motion for summary denial. There,
she contends that the IJ employed an erroneous legal standard in
adjudicating her asylum application. According to Thuri, the IJ
required her to prove that she was persecuted exclusively because
of political belief. Instead, Thuri argues, she should be
eligible for asylum if her persecutors were motivated, at least
to some extent, by a political opinion held by her or imputed to
her, even if the officers were also motivated by other, more
personal reasons.
Thuri is correct that the “on account of” language in the
INA’s definition of a refugee, § 1101(a)(42)(A), only “requires
the alien to prove some nexus between the persecution and the
five protected grounds.” Ontunez-Tursios, 303 F.3d at 349
(emphasis added); accord Girma v. INS, 283 F.3d 664, 667 (5th
Cir. 2002) (per curiam). But, here, the IJ did not expect Thuri
to prove that she was persecuted solely on account of political
belief. Rather, he correctly stated that Thuri needed to
“demonstrate a nexus to one of the five grounds” in the refugee
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definition. (emphasis added). He further explained that “[i]f
the evidence indicates purely personal motives, and no link to an
actual or imputed political opinion or other recognized ground,
the claim will fail.” (emphasis added). The IJ concluded as
follows:
In the case at bar, the Court, after having reviewed the
country conditions, reviewed the testimony of the
respondent, [sic] the Court cannot find that the
respondent has made a nexus connection to any ground
enumerated in the act, particularly the ground that she
asserts, imputed political belief. Her story is sad,
that went through [sic] some suffering as a result of the
actions by these rogue police officers, but this was
nothing more than a criminal act. The respondent failed
to show that these actions, taken against her or her
father, were a result of any association with Democratic
Party or the other parties that her relatives are members
of. She was not raped because of such association and
she has not suffered any punishment as a result of any
belief, direct or imputed.
(emphasis added). And the IJ also stated that “there is no
indication that the respondent was raped as a result of political
opinion.” (emphasis added). These portions of the IJ’s opinion
reveal that he did not improperly require Thuri to prove that her
persecutors’ sole motivation was a political opinion held by her
or imputed to her, and Thuri fails to identify any statement of
the IJ indicating to the contrary. Accordingly, we review the
IJ’s decision under the substantial-evidence standard.
Regarding the merits of her asylum claim, Thuri contends
that this court should grant her petition for review because the
evidence demonstrates some nexus between her persecution and a
political opinion. For us to reject the IJ’s conclusion that
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Thuri was not persecuted on account of political opinion, the
evidence presented by Thuri must have been so compelling that a
reasonable factfinder could not fail to find that her persecutors
were motivated, at least in part, by a political opinion held by
her or imputed to her. See Ontunez-Tursios, 303 F.3d at 351;
Girma, 283 F.3d at 667 (“The evidence presented . . . must compel
a reasonable fact-finder to conclude that the harm suffered by an
applicant was motivated, at least in part by, a protected
ground.”); see also § 1252(b)(4)(B).
The crux of Thuri’s position is that she was persecuted
because her father opposed institutional government corruption--
which (in her view) constitutes the expression of a political
opinion. By contrast, the IJ concluded, and the government
contends, that the officers’ retaliatory conduct was driven by a
criminal, non-political motive to punish Thuri’s father for
reporting the hijacking. Thuri has not identified any decisions
in this circuit that support her argument for refugee status. In
addition, even if the two Ninth Circuit cases on which Thuri
relies were binding precedent, it is not clear that the legal
standards those decisions announce would apply to Thuri’s case.
See Grava v. INS, 205 F.3d 1177, 1181 & n.3 (9th Cir. 2000)
(recognizing that “[p]urely personal retribution is, of course,
not persecution on account of political opinion,” but holding
that “[w]hen the alleged [government] corruption is inextricably
intertwined with governmental operation, the exposure and
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prosecution of such an abuse of public trust is necessarily
political”); Desir v. Ilchert, 840 F.2d 723, 727-29 (9th Cir.
1988) (concluding that refusal to comply with the extortionate
demands of members of a government security force constitutes the
expression of a political opinion where the refusal results in
“classification and treatment as a subversive”).
Before the IJ, Thuri presented evidence that criminal
activity by members of the Kenyan police force is not unusual.
But Thuri has not presented evidence that compels the conclusion
that her father was opposing a government policy of hijacking,
intimidation, and abuse. The IJ concluded that the persecution
of Thuri was the result of “criminal” actions by “rogue police
officers.” Although one might disagree with the IJ’s
determination that the officers were motivated by purely personal
reasons, we are not persuaded that a reasonable factfinder would
be compelled to conclude to the contrary. Consequently, we
uphold the IJ’s finding that Thuri was not persecuted “on account
of . . . political opinion,” and we therefore agree that she does
not qualify as a refugee under the INA.
The standard for withholding of removal under § 241 of the
INA is similar to the standard for refugee status: The alien must
demonstrate that she would be persecuted in the country of
removal “because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). Since Thuri has not established her
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eligibility for consideration for asylum, she necessarily cannot
succeed on her application for withholding of removal. Efe, 293
F.3d at 906; Girma, 283 F.3d at 667; Ozdemir, 46 F.3d at 8.
Finally, we observe that Thuri has waived her claim for
relief under Article 3 of the Convention Against Torture by
failing to raise it in her petition for review. See, e.g.,
Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986);
see also Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002)
(“As [the petitioner] did not brief his claim under the
Convention Against Torture on appeal, we consider the argument
waived.”).
Accordingly, we DENY the petition for review.
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