Mary Wachira v. William Barr

NOT FOR PUBLICATION FILED
FEB 10 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY MUTHONI WACHIRA, No. 18-71033
Petitioner, Agency No. A088-571-460
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2020**
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,***
District Judge.
Petitioner Mary Muthoni Wachira, a native and citizen of Kenya, petitions
for review of the Board of Immigration Appeals (“BIA”) Order dismissing her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.
appeal of the denial of her claim for asylum.1 We have jurisdiction under section
242(a)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a)(1).
We review the agency’s findings of fact under a substantial evidence standard, and
under this standard the agency’s findings “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Ren v. Holder, 648
F.3d 1079, 1083 (9th Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)(B)). We review
de novo the agency’s determinations of purely legal questions. Ali v. Holder, 637
F.3d 1025, 1028 (9th Cir. 2011). We deny Wachira’s petition for review.
Wachira attempted to establish her eligibility for asylum by demonstrating
that she had been persecuted on account of her membership in a “particular social
group.” Ali, 637 F.3d at 1029 (quoting 8 U.S.C. § 1101(a)(42)). For the purposes
of this case, we will assume that Wachira’s proposed social group of “married
Kenyan women who are unable to leave their relationship” is cognizable under the
INA. 2 Even so, we find that substantial evidence supports the agency’s
1
Wachira only challenges the agency’s determination that she failed to establish that she was a
member of her proposed social group. Thus, she has waived any other claims for asylum,
withholding of removal, or relief under the Convention Against Torture. See Martinez–Serrano
v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
2
The agency assumed that Wachira’s proposed particular social group was cognizable under the
framework established in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which found
cognizable the particular social group of “married women in Guatemala who are unable to leave
their relationship.” Id. at 393. For the purposes of deciding this petition for review, we have
no occasion to address or decide whether A-R-C-G- erred in finding cognizable the sorts of
proposed particular social groups covered by that decision. Cf. Matter of A-B-, 27 I&N Dec.
2
determination that Wachira failed to establish that she is a member of that social
group.3 Wachira argued was unable to leave her relationship because she feared
that her husband would harm her and their children. However, the agency found
that although Wachira was not formally divorced, she had been separated from her
husband for years. The record also contains evidence that Wachira’s children are
adults who live apart from her husband and have little to no contact with him. The
agency further found that Wachira had the financial means to leave her husband as
a result of her successful businesses, and that she was able to travel independently.
The record also supports the agency’s finding that Wachira had the social means to
leave her husband, because she had the support of her family.
On this record, we cannot say that any reasonable factfinder would be
compelled to conclude that Wachira was “unable to leave” her relationship with her
husband within the meaning of Matter of A-R-C-G-, 26 I&N Dec. at 393.
316 (A.G. 2018) (overruling A-R-C-G-); Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018)
(partially enjoining enforcement of A-B-), appeal docketed sub. nom Grace v. Barr, No. 19-5013
(D.C. Cir.); cf. also Gonzales-Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019) (upholding A-B-,
notwithstanding the Grace injunction).
3
Wachira cites to Ren v. Holder and argues that if the Immigration Judge had asked more
probing questions or elicited additional information, she might have provided additional facts
that might have led to a different outcome. Ren clarified the requirements of the REAL ID Act
and held that an immigration judge may not require corroborative evidence without giving the
applicant notice and opportunity to produce such evidence. 648 F.3d at 1093. Ren does not
apply here. The IJ did not need additional corroboration of the facts to which Wachira testified;
instead, he credited Wachira’s testimony and found that it pointed to a different legal conclusion.
3
PETITION DENIED.
4