United States Court of Appeals
For the First Circuit
No. 05-1100
STEPHEN WAWERU,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.
Ilana Etkin Greenstein, Harvey Kaplan, Maureen O'Sullivan,
Jeremiah Friedman and Kaplan, O'Sullivan & Friedman, LLP on brief
for petitioner.
Thomas P. Colantuono, United States Attorney, and Aixa
Maldonado-Quiñones, Assistant United States Attorney, on brief for
respondent.
February 13, 2006
BOUDIN, Chief Judge. Stephen Waweru, a Kenyan national
born in 1972, immigrated to the United States on a valid student
visa in September 1992. He applied for asylum in November 1993 and
was placed into deportation proceedings in December 1996. Waweru
conceded deportability but sought asylum and withholding of removal
on the grounds that he had previously suffered persecution in Kenya
because of his political beliefs and reasonably feared future
persecution should he return. See 8 C.F.R. § 208.13 (2005).
For reasons not fully explained, the proceedings dragged
on through a series of hearings from 1997 to 2000, followed by
another delay in 2002 for Waweru to obtain new counsel. For the
final hearing, held in September 2003, a new immigration judge
replaced the original immigration judge who had presided at the
earlier proceedings.
After Kenya gained its independence in December 1963, a
de facto (and later de jure) one-party state was established under
the first president, Jomo Kenyatta, and continued under his
successor, Daniel arap Moi. After a change to the constitution in
1991, multi-party elections were held in 1992 and 1997, but Moi won
reelection both times and his party, the Kenya African National
Union ("KANU"), remained dominant. Waweru testified that his
mother was active in an opposition party, the Forum for the
Restoration of Democracy ("FORD"), and convinced him to join in
1988.
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Waweru testified that after he began to take an active
part in FORD, he was subjected to threats, intimidation and--in
1991 and 1992--multiple arrests and beatings because of his
opposition to Moi. Waweru says that his mother was also accosted
and beaten by police and by youth gangs loyal to the KANU party.
After Waweru's last arrest in May 1992, he secured a U.S. student
visa and left the country for the United States in September. That
same year FORD split into two factions: FORD-Kenya and FORD-Asili
(to which Waweru and his family adhered).
In October 2001, Moi said he would not run again (his
term was scheduled to end in 2003) and thereafter a number of
opposition parties formed an alliance, the National Rainbow
Coalition ("NARC"), to challenge KANU and its candidate for
president. The alliance included, according to Waweru, the FORD-
Kenya party and a break-away faction of KANU. In December 2002,
the NARC's candidate defeated Moi's designated successor and the
new regime took over the government. Waweru's final hearing, in
September 2003, understandably focused upon the recent political
changes in Kenya, acknowledged in the U.S. State Department's
country report.1
1
The Board of Immigration Appeals is entitled to rely on the
State Department's country reports as proof of country conditions
described therein, although it must also consider evidence in the
record that contradicts the State Department's descriptions and
conclusions. See, e.g., Zarouite v. Gonzales, 424 F.3d 60, 63-64
(1st Cir. 2005).
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At the hearing the immigration judge ("IJ") asked Waweru
why, "[c]onsidering that Moi is no longer in power, the KANU party
is no longer in power," he "would . . . be afraid to go back to
Kenya now?" Waweru responded:
One reason is because as--since there
was a new president, I've spoken--you know,
called people back home. . . . I've spoken to
them about . . . is there any changes now that
we have a new president? They say that he's
been--according to what he's telling people,
he's out for good. He is out to bring change,
but the things that--you know, that were
happening before is still happening. People
are getting killed. People are getting killed
for no reason.
When pressed by the IJ as to why the new government of
Kenya would want to harm him, Waweru responded that he "believe[s]
there are members of the police and the security called KANU youth-
wingers who are still there now," and they knew he left and would
want to hurt him again. He explained that this was so because he
would be active . . . in the politics again. .
. . I would get into their hands whatever part
of the country I would be in, and if something
came to be known--well, one reason would be
that if I got arrested, it would be for the
reasons of being against the government.2
Thereafter the IJ ruled that Waweru had adequately shown
past persecution based on his political opinions, which gives rise
2
The IJ asked Waweru why he would remain in opposition "if .
. . the opposition took power." Waweru responded that he was
"always going to be on the side of human rights and the proper
government, democracy, and funds going to where they're supposed to
be going, schools and all that, and not being used by leaders."
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to a presumption of a well-founded fear of future persecution. 8
C.F.R. § 208.13(b)(1). Such a presumption, unless rebutted,
establishes eligibility for asylum, 8 U.S.C. § 1101(a)(42)(A)
(2000); but rebuttal may be based on a showing that "[t]here has
been a fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution in [his] country
of nationality." 8 C.F.R. § 208.13(b)(1)(i)(A).
In this instance, the IJ found that "the prior basis of
[Waweru's] claim was the government of President Moi which is no
longer in power. The Court simply finds that [Waweru] no longer
has a well-founded fear of persecution on account of his political
opinion . . . ." The IJ also found that Waweru did not qualify for
humanitarian asylum, 8 C.F.R. § 208.13(b)(1)(iii)(A), for
withholding of removal under former section 143(h) of the
Immigration and Nationality Act ("INA"),3 or for withholding of
removal under the United Nations Convention Against Torture. See
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, § 2242, 112 Stat. 2681, 2681-821; see also 8 C.F.R. §
208.16(c).
3
INA section 143(h), formerly codified at 8 U.S.C. § 1253(h),
was repealed by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, § 307,
110 Stat. 3009, 3009-613 to 3009-614, but under IIRIRA transitional
rules, its repeal does not apply to proceedings (such as Waweru's)
begun before IIRIRA's April 1, 1997, effective date. Id. § 309(c),
110 Stat. 3009, 3009-625 to 3009-626.
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Waweru appealed to the Board of Immigration Appeals
("BIA"), arguing inter alia that the IJ's decision failed to link
changed conditions in Kenya to his situation. The BIA summarily
affirmed based on the IJ's decision and, accordingly, it is the
IJ's decision that we review. Albathani v. INS, 318 F.3d 365, 373
(1st Cir. 2003). We review findings of fact "under a deferential
'substantial evidence standard,'" Alvarez-Flores v. INS, 909 F.2d
1, 3 (1st Cir. 1990), and defer to the BIA's (or, here, the IJ's)
reasonable inferences in evaluating evidence, Martinez v. INS, 970
F.2d 973, 975 (1st Cir. 1992).
The main issue in this case is simply stated but less
easily resolved: it is whether the IJ rationally concluded that the
government, relying on evidence of changed country conditions, had
rebutted the presumption that Waweru retained a "well-founded" fear
of future persecution. Cases turning on changed country conditions
are not uncommon, and the cases contain a certain amount of
pertinent general language;4 but very little of it helps decide
concrete cases like this one which tend to turn on reasoning about
specific facts.
Some of our decisions suggest that changed country
conditions cannot suffice without a more particularized showing,
4
See, e.g., Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 24-25
(1st Cir. 2004); Quevedo v. Ashcroft, 336 F.3d 39, 44-45 (1st Cir.
2003); Yatskin v. INS, 255 F.3d 5, 10 (1st Cir. 2001); Fergiste v.
INS, 138 F.3d 14, 19-20 (1st Cir. 1998).
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see, e.g., Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 24-25 (1st
Cir. 2005), and some suggest the contrary, see, e.g., Quevedo v.
Ashcroft, 336 F.3d 39, 44 (1st Cir. 2003); but the reconciling (and
most accurate) proposition is that changed country conditions "do
not automatically trump" the applicant's specific evidence.
Fergiste v. INS, 138 F.3d 14, 19 (1st Cir. 1998) (emphasis added);
see also Palma-Mazariegos v. Gonzales, 428 F.3d 30, 36 (1st Cir.
2005). The surrender of the British at Yorktown in 1781 did not
negate the potential threat to Tories; it probably did as to the
Patriots.
Here, one might think it plain that Waweru's fear of
persecution at the hands of the Moi regime, on account of his
political opposition to it, would cease to be reasonable once Moi
had been defeated and replaced by a democratic government. But
Waweru offers three counters: that some of Moi's own former
followers are part of the successful anti-Moi coalition; that many
lower level functionaries (e.g., individual policemen) are still in
their original roles and behaving brutally; and that he (Waweru)
will oppose this government, too.
The question, then, is whether the IJ rationally found
such arguments unpersuasive in concluding that the change of regime
did overcome Waweru's once well-founded fear. True, the IJ did not
separate the strands and discuss them individually; but it is
enough if we can perceive from the evidence and the arguments how
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his mind would naturally have run. See Rodriguez-Rodriguez v.
Ortiz-Velez, 391 F.3d 36, 40 (1st Cir. 2004); Tang v. State of
R.I., Dep't of Elderly Affairs, 120 F.3d 325, 326 (1st Cir. 1997).
In this case, it is easy enough to discern the line of reasoning.
The victorious anti-Moi coalition plainly included former
Moi followers. One of its components is a break-away faction of
KANU itself. But the coalition opposed and defeated Moi's hand-
picked successor supported by the main KANU party. The IJ could
reasonably reject, as weak and unsupported, an inference that the
present government is dominated or heavily influenced by those whom
Waweru once opposed. In addition, news reports relied on by the
government (and submitted to the IJ by Waweru prior to his final
hearing below) suggest that the new regime is genuinely opposed to
Moi's style of governance--as does Waweru's own testimony at his
final hearing.
The second argument in Waweru's favor is somewhat
stronger. It is possible, perhaps likely, that many of those who
served in the police in the Moi years are still in their accustomed
roles. It is also quite plausible, as Waweru specifically claimed
in the final hearing, that police brutality and corruption remain
high; it takes a long time to alter attitudes ingrained over a
period of despotism, especially in circumstances of poverty that
afflict much of the world. Waweru, like others in his country,
doubtless faces very real risks.
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Lacking, however, is any reason to think that Waweru is
at risk--even from these same officers who earlier arrested and
beat him--because of Waweru's opposition to the Moi regime. Even
if certain officers still prefer Moi's one-party state, their
central motive for hostility to Waweru was his active opposition to
the Moi government. That government is gone; so, one would think,
is the motive. The IJ was not rationally obliged to accept
Waweru's inference that the threat of political persecution
continued.
This brings us finally to Waweru's claim that he would
oppose the new government. We will assume arguendo that Waweru
could make out a claim of persecution even if he chose deliberately
to put himself in harm's way; sometimes this view might be
justified, sometimes not. Nor is his position necessarily captious
or unworthy of being credited: we take it from context that he may
regard the new government, even if better motivated than Moi's, as
one that still falls far short of Waweru's expectations.
Still, the new government took power by beating Moi at
the polls; according to the news reports, it professes democratic
ideals and promises reforms. The notion that it would treat
Waweru's renewed peaceful opposition with the repressive brutality
of the Moi regime is not compelling, or at least not an inference
so strong that the IJ had to accept it. See Yatskin v. INS, 255
F.3d 5, 10 (1st Cir. 2001); see also In re N-M-A-, 22 I. & N. Dec.
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312, 320-21 (B.I.A. 1998) (asylum applicant persecuted by prior
regime cannot retain presumption of well-founded fear of future
persecution after regime change unless the new leaders "harbor the
same animosities as the old").
As for Waweru's other claims of error, the first sought
reversal of the BIA's rejection of his request for withholding of
removal under the INA. A request for asylum and a request for
withholding of removal require petitioners to meet different
evidentiary burdens: withholding of removal requires a petitioner
to prove "a clear probability of persecution" upon removal to the
country in question, as contrasted with the less burdensome "well-
founded fear of persecution" requirement for asylum eligibility.
Aguilar-Solis v. INS, 168 F.3d 565, 569 n.3 (1st Cir. 1999).
But whereas proof of a well-founded fear of persecution
merely earns a petitioner eligibility for asylum, leaving the
ultimate decision to the Attorney General's discretion, Romilus v.
Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004), a petitioner who meets the
requirements for the (since-repealed) withholding of removal
provision of the INA generally cannot (with very few exceptions) be
removed to the country at issue. INS v. Aguirre-Aguirre, 526 U.S.
415, 419 (1999); Romilus, 385 F.3d at 8. In any event, since we
uphold in this case the IJ's ruling that Waweru has not established
a well-founded fear of future persecution in Kenya, he certainly
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cannot show a "clear probability of persecution" if he is returned
to Kenya. See id.; Hernandez-Barrera, 373 F.3d at 26 n.14.
Waweru also sought protection under the U.N. Convention
Against Torture. Under the Convention, a showing that a
petitioner, if deported, will "more likely than not" be tortured by
or with the consent or acquiescence of a public official gives a
petitioner mandatory protection from removal to the country in
question. Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004)
(citing 8 C.F.R. § 208.16(c)(2); In re J-E-, 23 I. & N. Dec. 291,
297 (BIA 2002)). The petitioner need not prove that the probable
torture will be motivated by one of the limited classes of reasons
applicable to asylum and withholding of removal claims.
In this case, even if we were to assume that Waweru's
earlier beatings by the police amounted to torture under the
Convention's definition--a proposition that is far from clear--we
cannot say that the IJ's decision lacked "substantial evidence" to
support it. Alvarez-Flores, 909 F.2d 3. As we stated above, the
IJ was not compelled on the evidence submitted to accept the
inference that Waweru would be targeted for persecution (torture or
otherwise) upon return, since the only apparent motive for such
persecution (at the hands of police or the Moi government) no
longer exists.
Finally, the IJ did not abuse his discretion in rejecting
Waweru's request for humanitarian asylum; this is granted only in
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cases of "extraordinary suffering," Zarouite v. Gonzales, 424 F.3d
60, 64 (1st Cir. 2005), and the arbitrary arrests and beatings
alleged by Waweru do not rise to this level.
The petition for review is denied.
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