Lucy Maina v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUCY WANGARI MAINA, No. 14-71630
Petitioner, Agency No. A087-828-905
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2018**
Seattle, Washington
Before: FERNANDEZ and NGUYEN, Circuit Judges, and RAKOFF,*** District
Judge.
Lucy Maina, a native and citizen of Kenya, petitions for review of a Board
of Immigration Appeals (BIA) decision affirming the denial of her application for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
asylum. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the
petition.
1. Substantial evidence supports the BIA’s finding that Maina did not
suffer past persecution. Maina does not claim to have been physically harmed in
Kenya but argues that her arrest and detention by Kenyan police and her mother
fleeing due to threats from the village elders and the Mungiki were psychologically
traumatizing. While these experiences were undoubtedly scary, especially for a
thirteen year old girl, the record does not compel the conclusion that they gave rise
to the type of “extreme” and “offensive” “suffering or harm” that constitutes
persecution. See Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc).
Maina testified that “nothing bad” happened to her during her arrest, and there is
no evidence that Maina witnessed anyone threatening or harming her mother. See
Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001) (finding substantial evidence
supported the BIA’s finding of no past persecution where the petitioner “was
detained for a period of five or six days” but “was not beaten, tortured, or
threatened” during the detention); cf. Hernandez-Ortiz v. Gonzales, 496 F.3d 1042,
1044–46 (9th Cir. 2007) (reversing the BIA’s finding of no past persecution where
“soldiers came in the night” to the petitioners’ house when they were young and
beat and kidnapped their father).
2. The evidence does not compel the conclusion that Maina has a well-
2
founded fear of future persecution. Maina fears she will be subjected to female
genital mutilation (FGM) by the Mungiki because she is a Christian Kikuyu
woman and in retaliation for her mother’s teachings. FGM has been outlawed in
Kenya, not all Kikuyu men believe in the practice, about one-third of Kikuyu
women have undergone FGM, and it is traditionally performed on young girls.
This evidence supports the BIA’s conclusion that Maina is unlikely to be subjected
to FGM because she is a Kikuyu Christian woman. And, there is no evidence to
suggest that the Mungiki would target Maina in retaliation for her mother’s
activism since they have never threatened or harmed her before and she is no
longer in contact with her mother.
3. Maina is not eligible for asylum if she “could avoid future persecution
by relocating to another part of” Kenya and “it would be reasonable to expect [her]
to do so.” 8 C.F.R. § 208.13(b)(1)(i)(B), (2)(ii). The BIA’s finding that Maina
could reasonably relocate within Kenya is supported by the record because after
her mother fled, Maina lived with friends in Nairobi without incident.
4. Maina could have, but did not, present to the BIA her claim that the
immigration judge’s failure to consider her age at the time she was arrested and her
mother fled violated her due process rights. We thus lack jurisdiction over that
claim on appeal. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).
PETITION DENIED.
3