Jane Ndungu v. Eric Holder, Jr.

Case: 12-60216 Document: 00512198970 Page: 1 Date Filed: 04/05/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 5, 2013
No. 12-60216
Summary Calendar Lyle W. Cayce
Clerk
JANE WAKIURU NDUNGU,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A099 155 099
Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
Jane Wakiuru Ndungu, a native and citizen of Kenya, petitions this court
for review of the Board of Immigration Appeals’s (BIA’s) decision holding her
ineligible for asylum and withholding of removal. The BIA determined that she
had failed to establish a well-founded fear of future persecution on account of her
membership in the Kikuyu tribe. Ndungu argues that this finding was
erroneous based on evidence of civil unrest and interethnic violence in her native
Kenya.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-60216 Document: 00512198970 Page: 2 Date Filed: 04/05/2013
No. 12-60216
We review the BIA’s decision and the decision of the immigration judge to
the extent that it influenced the BIA. Rana v. Holder, 654 F.3d 547, 549 (5th
Cir. 2011). Whether an alien has demonstrated eligibility for asylum or
withholding of removal is a factual determination reviewed for substantial
evidence. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). To establish
her eligibility for asylum, Ndungu is required to demonstrate past persecution
or a well-founded fear of future persecution on account of her race, religion,
nationality, membership in a particular social group, or political opinion.
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444-45 (5th Cir. 2001). “To establish a
well-founded fear of future persecution, [she] must demonstrate a subjective fear
of persecution, and that fear must be objectively reasonable.” Zhao v. Gonzales,
404 F.3d 295, 307 (5th Cir. 2005) (internal quotation marks and citation
omitted).
The issue whether Ndungu demonstrated past persecution is waived by
virtue of her failure to brief it. See Calderon-Ontiveros v. INS, 809 F.2d 1050,
1052 (5th Cir. 1986). On the issue whether she had a well-founded fear of future
persecution, the record discloses that the interethnic violence following Kenya’s
2007 presidential election ended in February 2008 with the formation of a
coalition government. Ndungu’s immediate family still resides in Kenya, and
she did not testify that they have experienced violence or persecution on account
of their tribal affiliation. She has adduced no evidence of current widespread
violence or unrest, and her stated fear of future violence or persecution is purely
speculative and not objectively reasonable. Consequently, the evidence does not
compel reversal of the BIA’s decision that she is ineligible for asylum. See Zhao,
404 F.3d at 307. Having failed to satisfy the requirements for asylum, she has
also failed to satisfy the requirements for withholding of removal under the
Immigration and Nationality Act. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th
Cir. 2002).
PETITION DENIED.
2