Donald N. Ongori v. Michael Mukasey

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3172
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Donald Nyairo Ongori, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Michael B. Mukasey,1 *
Attorney General * [UNPUBLISHED]
of the United States of America, *
*
Respondent. *
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Submitted: December 28, 2007
Filed: January 9, 2008
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Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Kenyan citizen Donald Nyairo Ongori petitions for review of an order of the
Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ’s) denial
of asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). We deny the petition for the following reasons.
1
Michael B. Mukasey, now Attorney General of the United States, is substituted
as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
First, we lack jurisdiction to review the determination that Ongori’s asylum
application was barred as untimely filed. See 8 U.S.C. § 1158(a)(3); Ngure v.
Ashcroft, 367 F.3d 975, 988-89 (8th Cir. 2004). Second, we conclude that the denials
of withholding of removal and CAT relief are supported by substantial evidence in the
record. See Ming Ming Wijono v. Gonzales, 439 F.3d 868, 872, 874 (8th Cir. 2006)
(standard of review; withholding of removal requires showing of clear probability of
persecution, which is same as showing persecution is more likely than not to occur;
independent analysis of CAT claim is not required if claim was based upon same
factual basis as claim for withholding of removal). The incidents to which Ongori
testified--breakup of rallies by police, minor injuries incurred during those breakups,
two brief detentions, and temporary suspensions from school--do not amount to past
persecution. See Eusebio v. Ashcroft, 361 F.3d 1088, 1090-91 (8th Cir. 2004).
Further, since Ongori’s departure from Kenya, the government has changed, the party
he supported is represented in parliament, and his parents have continued to reside in
Kenya unharmed. See Waweru v. Gonzales, 437 F.3d 199, 204-05 (1st Cir. 2006)
(finding Kenyan citizen’s fear of future harm not reasonable in light of changed
country conditions); Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir. 2005)
(alien’s fear of persecution is reduced when family remains unharmed in native
country).
Accordingly, we deny the petition.
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