Gichema v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 6, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

LOISE NJERI GICHEMA,

Petitioner,

v. No. 04-9536
(Agency No. A96-00-909)
ALBERTO R. GONZALES, * Attorney (Petition for Review)
General of the United States,

Respondent.

ORDER AND JUDGMENT **

Before TACHA , Chief Judge, HENRY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
respondent in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 Petitioner Loise Njeri Gichema is a citizen of Kenya who faces removal

from this country. She seeks review of the decision of the Board of Immigration

Appeals (BIA) summarily affirming the decision of an Immigration Judge (IJ)

denying her application for asylum, withholding of removal, and relief under the

Convention Against Torture. 1
We affirm.

FACTS

Petitioner entered the United States on May 15, 2002 using a non-

immigrant visa that authorized her to remain in this country until November 14,

2002. She remained beyond that date without authorization and has conceded her

removability. On April 11, 2003, she testified concerning her application for

asylum and other forms of relief at a hearing before the IJ. The IJ found her

testimony credible.

Petitioner was born in Kenya in 1945. She is a member of the Kikuyu tribe

and a Protestant Christian. Historically, Kikuyu tradition called for girls of the

tribe to undergo female “circumcision” or clitoridectomy, a form of female genital

mutilation (FGM), as part of their initiation into adulthood. As a Christian,

however, petitioner never underwent this painful and dangerous tribal

1
Petitioner focuses her appellate arguments on the denial of her asylum
claim. See Aplt. Opening Br. at 32. Consequently, we do not address the
remaining bases for relief presented to the agency.

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circumcision rite. Nor did she or her husband require her daughters to undergo

FGM.

Petitioner lived for approximately twenty years in Kenya’s capital, Nairobi.

During her years in Nairobi, neither she nor her family was persecuted in any way

for her beliefs or ethnicity. Nor was she harassed there for her status as an

uncircumcised female. While the countryside in Kenya is essentially divided

between different tribes, petitioner testified that members of all the tribes live in

Nairobi in relative harmony.

Petitioner obtained a college-level education and is trained as a therapist.

She worked for the Kenyan government for 29 years. Her husband worked as an

accountant at a firm that was partially government sponsored. Petitioner asserts

that after a change in the government, she and her husband were eventually

compelled to retire. Their troubles began after they chose to relocate from

Nairobi to a previously-purchased home and five-acre farm in Thika in the

Central Province, part of a Kikuyu tribal area.

Petitioner and her husband, comparatively wealthy erstwhile city-dwellers,

felt they had little in common with their new, rustic neighbors, who were

impoverished and uneducated. Tensions increased greatly when petitioner’s

daughter made the unusual decision to marry an outsider from a different tribe.

Prior to the wedding, in accordance with tradition, petitioner and her husband met

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with members of the community and her clan to discuss matters concerning the

wedding and her daughter’s dowry. During these discussions, petitioner’s

husband disclosed with some pride that neither petitioner nor their daughters were

circumcised.

Petitioner’s husband evidently did not anticipate the firestorm that his

revelation would produce among his neighbors and future in-laws. Clan members

abruptly broke off the dowry discussions. Rumors began to spread among the

community of the “uncleanliness” of petitioner and her daughters. Petitioner’s

husband and son were ostracized in the community. At the market, petitioner

began receiving threats that she or her daughters would be forcibly circumcised or

killed if they resisted circumcision. Their family cattle were barred from grazing

in the common grazing area, and they had to close their small food kiosk because

no one would buy from them anymore.

A violent sect known as the “Mungiki” is active in the Central Province.

The Mungiki are traditionalists, who seek a return to pre-Christian Kenyan tribal

customs. They advocate FGM, and have been known to forcibly circumcise

unwilling females as an act of piety toward traditional Kenyan gods. Petitioner

asserts that after her status as a non-circumcised person became known, the

Mungiki targeted her family for threats and persecution.

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 On December 12, 2001, as petitioner’s husband was on his way home from

town, he encountered a group of men who pelted his car with rocks, severely

damaging it but not physically injuring him. The men identified themselves as

Mungiki, and stated they had been ordered by the gods to cast out the devil from

petitioner’s family. They threatened to forcibly circumcise petitioner, calling her

a “dirty woman.”

Between January 1999 and January 2002, petitioner’s three daughters left

Kenya and came to the United States on student visas. In January 2002, a group

of about thirty persons invaded petitioner’s homestead. Petitioner and her family

could hear them yelling that they were there for petitioner and that “today is the

day.” Guard dogs prevented the invaders from entering the family home. Two of

the dogs were poisoned and killed. The intruders left, promising to return.

Petitioner reported both this instance and the stoning incident to the

authorities. She described the official response as follows:

A. We reported to the area, area administration and he said he is also
in fear, he was also in fear that he, his life was also in fear so he was
unable to take action, but he said they are going to investigate and
that was the end of it.

[. . .]

Q. Did he say who he was in fear of?

A. Of the group of Mangiki [sic] because they are too many in the
area and they, when they take their cases to the meetings they are
told to investigate.

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Admin. R. at 77-78.

Although the Kenyan government opposes the Mungiki and the practice of

forced FGM, petitioner stated that it will be difficult to stop the Mungiki because

they have protectors in the government and are deeply rooted in society.

Petitioner presented evidence that certain government officials are suspected of

aiding and protecting the Mungiki.

On May 14, 2002, petitioner left Kenya and came to the United States. Her

husband has subsequently informed her that the Mungiki have returned to their

house several times looking for uncircumcised women.

ANALYSIS

1. Summary and standard of review

The IJ denied petitioner’s application for asylum on several grounds. First,

he found that she failed to demonstrate persecution on the basis of political

opinion or her membership in a social group. Second, the incidents she described

failed to rise to the level of past persecution. Third, she failed to show that the

threat of persecution existed country-wide. Finally, he found that the Kenyan

government was not unwilling or unable to control the Mungiki. The IJ also

noted that petitioner’s family members, including her husband, son, sisters,

brother, and mother, continued to live in Kenya without any apparent evidence of

persecution.

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 “Since the BIA summarily affirmed the IJ’s decision, we review the IJ’s

analysis as if it were the BIA’s.” Estrada-Escobar v. Ashcroft , 376 F.3d 1042,

1045 (10th Cir. 2004). We review the IJ’s factual findings for substantial

evidence in the record. Nguyen v. INS , 991 F.2d 621, 625 (10th Cir. 1993). The

IJ’s findings of fact are conclusive unless the record demonstrates that “any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B).

To be eligible for asylum, an alien must first show that she is a “refugee.”

Wiransane v. Ashcroft , 366 F.3d 889, 893 (10th Cir. 2004). To establish refugee

status, the applicant must demonstrate that she has suffered past persecution or

has “a well-founded fear of [future] persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A). “Persecution” under this section includes persecution

by a non-governmental group that the government is “unwilling or unable to

control.” Batalova v. Ashcroft , 355 F.3d 1246, 1253 (10th Cir. 2004) (quotation

omitted). “Aliens basing their asylum claims upon a well-founded fear of future

persecution must show both a genuine, subjective fear of persecution, and an

objective basis by credible, direct, and specific evidence in the record, of facts

that would support a reasonable fear of persecution.” Wiransane , 366 F.3d at 893

(quotation omitted). We will not reverse the agency’s decision unless the

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evidence compels the conclusion that petitioners have a well-founded fear of

persecution based on one of the protected grounds. INS v. Elias-Zacarias ,

502 U.S. 478, 481 n.1 (1992).

In this petition for review, petitioner contends that the evidence compels

conclusions (1) that she suffered past persecution and has a well-founded fear of

future persecution on account of her membership in a particular social group; (2)

that it would not be reasonable to expect her to relocate within Kenya to avoid

future persecution by the Mungiki; and (3) that the government of Kenya is

unable or unwilling to control the Mungiki sect.

Giving the required level of deference to the agency decision, we conclude

that petitioner has failed to show her entitlement to asylum. The evidence shows

that she could relocate within Kenya to avoid persecution. Specifically, our

analysis is as follows. Even assuming that petitioner has shown that she is a

member of a recognized “social group,” and that the Mungiki are a group that the

Kenyan government is unable to control, she fails to show past persecution. On

the question of future persecution, the evidence also shows that petitioner could

avoid being persecuted by relocating to Nairobi. Consequentially, the burden

shifts to petitioner to show that it would be unreasonable for her to relocate to

Nairobi to escape any future persecution she might face upon her return to Kenya.

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Petitioner fails to meet this burden. She therefore does not qualify as a “refugee”

within the meaning of the Act.

2. Past persecution

We begin with the issue of past persecution. The relevant inquiry before

the agency was whether petitioner had shown that she suffered (a) past

persecution (b) by a group the Kenyan government was unwilling or unable to

control (c) on account of her membership in a cognizable social group. We must

determine, giving appropriate deference to the agency’s findings, whether the IJ

erred in determining that petitioner did not meet any of these criteria. Having

carefully examined the record, we conclude that even if petitioner has made an

adequate showing concerning the last two elements of this equation, the incidents

on which she relies did not rise to the level of “past persecution.”

a. Kenyan government’s ability to control Mungiki

The evidence demonstrates that the government of Kenya is not unwilling

to challenge FGM or the Mungiki. The IJ found that “the government is

constantly arresting [the Mungiki], fighting them, and basically after them. So

the Court feels that the government is, in fact, trying to control these individuals

and to arrest them and to convict them for the crimes that they have committed.”

Admin. R. at 50-51. This characterization is supported by evidence in the country

reports. The 2002 Country Report for Kenya states that Kenya’s former president

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called for action against the Mungiki, and that the police forcibly disrupted some

of its meetings and arrested several Mungiki members in 2001. Admin. R. at 123,

127, 135, 136-37. FGM has been banned by the former president of Kenya and

government-controlled hospitals and clinics are prohibited from practicing it. Id.

at 143. It is illegal to perform FGM on women under eighteen years of age in

Kenya. Id.

The evidence is less substantial, however, on the issue of whether the

government is able to control the Mungiki. The Mungiki has been described in

newspaper articles as “increasingly difficult to control.” Id. at 194. It is said that

when the Mungiki strikes, it leaves the authorities “apparently helpless.” Id. The

group is apparently becoming more violent, and the African Church Information

Service notes that authorities seem to have trouble eradicating the Mungiki. Id. at

218.

The strongest evidence of the government’s inability to control the Mungiki

comes from the fact that when petitioner and her husband reported the incidents

described in her petition to the authorities, the authorities promised to investigate

but stated they were themselves intimidated by the Mungiki and apparently did

nothing to bring the perpetrators to justice. This is a strong indicator of a group

that the government is unable or unwilling to control. See Singh v. INS , 94 F.3d

1353, 1360 (9th Cir. 1996) (noting that petitioner had “reported each assault and

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threat to the police and that, although [he] identified his assailants by name, the

police failed to respond to any of his crime reports. This failure by the authorities

to protect [the petitioner] and his family clearly indicates that the police either

could not or would not control the ethnic Fijians who threatened [petitioner] and

his family.”).

The IJ did not discuss this factor when he concluded that the government

was “trying” to control the Mungiki. At most, his decision supports a conclusion

that the government is “willing” to control the Mungiki, not that it is “able” to do

so. We will therefore assume that petitioner has made an adequate showing that

the Kenyan government is “unable” to control the Mungiki.

b. Cognizable social group

Before the BIA, petitioner argued that she belonged to a social group

consisting of “members of the same family who are uncircumcized Kikuyu women

who have been specifically identified and thus targeted by the Mungiki for

forcible FGM.” Admin R. at 16. In her brief on appeal, she attempts to modify

the defined group somewhat, to “Christian, educated Kikuyu women who have not

been subjected to ritual circumcision and who have not subjected their daughters

to the ritual.” Aplt. Opening Br. at 19. The IJ concluded that petitioner failed to

show that she had been persecuted as part of a recognized “social group.” There

is some authority that women who fear FGM do constitute a “social group” within

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the meaning of § 1101(a)(42)(A). See, e.g., Abay v. Ashcroft , 368 F.3d 634, 638-

40 (6th Cir. 2004). We will assume for the purposes of this decision that

petitioner does belong to a cognizable “social group” within the meaning of the

statute.

c. Incidents described as past persecution

Since petitioner arguably satisfies the other two elements of the past

persecution inquiry, the key element now becomes whether the incidents she has

described rise to the level of “past persecution.” The Act does not define

“persecution” and does not specify what sort of acts constitute “persecution.”

This court has stated that “a finding of persecution requires the infliction of

suffering or harm upon those who differ (in race, religion, or political opinion) in

a way regarded as offensive and must entail more than just restrictions or threats

to life and liberty.” Wiransane , 366 F.3d at 893 (quotations omitted). The

offensive treatment must be extreme. Korablina v. INS , 158 F.3d 1038, 1044 (9th

Cir. 1998). More than mere harassment is required. Tamas-Mercea v. Reno ,

222 F.3d 417, 424 (7th Cir. 2000).

“The key question is whether, looking at the cumulative effect of all the

incidents a petitioner has suffered, the treatment she received rises to the level of

persecution.” Korablina , 158 F.3d at 1044. Petitioner describes a number of

threats she and her husband received. Threats alone, however, typically do not

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constitute past persecution. See Yuk v. Ashcroft , 355 F.3d 1222, 1234 (10th Cir.

2004). Nor does the ostracism and loss of common grazing privileges petitioner

endured necessarily implicate past persecution. While petitioner describes an

incident in which her husband’s car was pelted with rocks, her husband was not

physically harmed and petitioner fails to show that she personally suffered any

violence from the Mungiki. Admittedly, petitioner was present during the

unsuccessful attack on her house. Even this form of harassment, however, fails to

rise so clearly to the level of persecution that we would be justified in overturning

the IJ’s findings. These incidents taken cumulatively are insufficient to compel a

finding of “past persecution” within the meaning of the Act.

3. Relocation to avoid future persecution

Even if petitioner has failed to establish past persecution, she can still

qualify as a refugee, and hence obtain asylum, by establishing that she has a

“well-founded fear of future persecution.” 8 C.F.R. § 1208.13(b). The

regulations state, however, that an applicant for asylum “does not have a well-

founded fear of persecution if the applicant could avoid persecution by relocating

to another part of the applicant’s country of nationality . . . [and] if under all the

circumstances it would be reasonable to expect the applicant to do so.” Id. §

1208.13(b)(2)(ii) (emphasis added). Moreover, if the petitioner has not

established past persecution, and if the alleged future persecution would not be by

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a government or be government-sponsored (which it would not be here), the

petitioner bears the burden of establishing that it would be unreasonable for her

to relocate to escape persecution. Id. § 1208.13(b)(3)(i).

There are thus two issues involving relocation to be considered here. First,

could petitioner avoid persecution by relocating to Nairobi? Second, would it be

unreasonable for her to do so? We note that the regulations specifically place the

burden of proof on the second issue on petitioner under the circumstances of this

case.

a. Persecution in Nairobi

As we have already noted, the evidence showed that Kenyans of all tribal

backgrounds lived together in relative peace in Nairobi. While there was some

evidence of Mungiki activity there, there was not the type of coercion to become

circumcised that petitioner recounted in the countryside. Petitioner lived in

Nairobi for many years without incident. She admitted that she “[didn’t] know

what would happen” if she returned to Nairobi. Admin. R. at 108. In sum, the

evidence supports the IJ’s finding that petitioner could relocate to Nairobi to

escape persecution.

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 b. Reasonableness of relocation

The IJ found that petitioner “very easily could have relocated to another

area of Kenya.” Admin. R. at 51. Agency regulations outline a number of factors

that go into the inquiry of whether relocation would be reasonable:

[A]djudicators should consider, but are not limited to considering,
whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country;
administrative, economic, or judicial infrastructure; geographical
limitations; and social and cultural constraints, such as age, gender,
health, and social and familial ties. Those factors may, or may not,
be relevant, depending on all the circumstances of the case, and are
not necessarily determinative of whether it would be reasonable for
the applicant to relocate.

8 C.F.R. § 1208.13(b)(3).

Petitioner complains that the IJ failed to consider these factors expressly in

concluding that relocation was a reasonable option for her. It was her burden,

however, to present affirmative evidence concerning the unreasonableness of

relocation. The regulation states that the individual factors identified “may, or

may not, be relevant, depending on all the circumstances of the case.” Id.

Petitioner should have presented evidence that would have shown the relevance of

the factors she wished to have considered. Petitioner presented insufficient

evidence to affirmatively show that her age, gender, health, and social and

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familial ties would make relocation to Nairobi unreasonable. 2
As to civil strife

and other harm in Nairobi, petitioner asserts in her brief that the Mungiki are

active there, but her evidence on this point is far from compelling with regard to

FGM, the threat she cites as her reason for seeking asylum. Petitioner and her

husband lived in Nairobi for many years. She has failed to show, particularly

given her burden on this issue, that the evidence compels a finding that it would

be unreasonable for her to relocate to Nairobi.

The petition for review is DENIED.

Entered for the Court

Terrence L. O’Brien
Circuit Judge

2
The fact that petitioner’s daughters already live in the United States, and
that one of them was granted asylum on the same facts on which petitioner’s
application is based, see Aplt. Opening Br. at 4, n.1, tends to show that “familial
ties” may be affected by relocation. See Melkonian v. Ashcroft , 320 F.3d 1061,
1071 (9th Cir. 2003). By itself, however, this is insufficient to show that
relocation would be unreasonable.

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