United States Court of Appeals
For the First Circuit
No. 08-2278
MARY WANGUI WARUI,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Carlos E. Estrada, on brief for petitioner.
Kristin A. Moresi, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Civil Division,
and Barry J. Pettinato, Assistant Director, Office of Immigration
Litigation, on brief for the respondent.
August 18, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
LYNCH, Chief Judge. Mary Wangui Warui, of Kenya,
petitions for review of the Board of Immigration Appeals ("BIA")
denial of her motion to reopen. The BIA denied her motion to
reopen and remand her case for further consideration of her claims
for withholding of removal and protection under the Convention
Against Torture ("CAT"). We deny the petition in part and dismiss
it in part.
I.
Warui entered the United States from Kenya on November
30, 2001 as a visitor, authorized to remain in the country until
May 29, 2002. She overstayed. On October 14, 2004, the Department
of Homeland Security filed a Notice to Appear ("NTA") in
Immigration Court, initiating removal proceedings against Warui.
Her husband, Leonard Karioki, also a native and citizen
of Kenya, entered the United States on April 6, 2004 and overstayed
his visa. He was placed in separate removal proceedings around the
same time as Warui. On January 7, 2005, Warui sought to
consolidate her case with that of her husband, admitting certain
allegations in the NTA and conceding removability. The cases were
subsequently consolidated.
On March 10, 2005, Karioki applied for asylum,
withholding of removal, and protection under the CAT. As part of
his application, he sought derivative asylum relief for Warui as
his spouse. Warui was ineligible for asylum in her own right
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because she had not filed a timely application. Warui did not make
independent claims for withholding of removal and CAT protection.
At a merits hearing held on May 8, 2006, Warui and
Karioki both testified in support of their claims. In their
testimony, they expressed fear that if they were removed to Kenya
Warui would be forced to undergo female genital mutilation ("FGM")
by a group called the Mungiki.
In his oral decision, the Immigration Judge ("IJ") first
found that Karioki and Warui did not testify credibly, based on
inconsistencies in their testimony. Even assuming the two had
testified credibly, the IJ found Karioki's and Warui's testimony
still insufficient to meet their burden for asylum for several
reasons. First, the IJ found that Karioki and Warui had testified
they had been harassed by the Mungiki for nearly thirty years but
they had never been harmed, and so their fear of harm seemed
"implausible." Second, the IJ found that they had failed to show
that the harm they feared was at the hands of a group which the
government was unable or unwilling to control, pointing to a State
Department report showing that the Kenyan government had banned the
Mungiki and were trying to enforce the law against them. Finally,
the IJ found the fear of future persecution inconsistent with the
fact that Karioki and Warui's sons, who remained in Kenya, were
married and their wives had not been forced to undergo FGM.
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The IJ denied their claim for asylum. He denied the
withholding of removal and CAT claims because these claims carry a
higher burden of proof than asylum and therefore Karioki and Warui
could not prove it more likely than not that they would undergo
persecution or torture if returned. The IJ granted voluntary
departure to Warui but denied it to Karioki.
Karioki and Warui filed a timely appeal to the BIA. On
May 28, 2008, the BIA denied them relief; it affirmed the IJ's
determination with respect to lack of credibility and his alternate
findings with respect to denial of asylum, withholding of removal,
and protection under the CAT.
Warui did not file a petition for review with this court.
Instead, she filed a motion to reopen with the BIA on June 25,
2008, seeking to apply individually for withholding of removal and
protection under the CAT. In this motion, she informed the BIA
that she and her husband were divorced and that Karioki had
returned to Kenya.
On September 15, 2008, the BIA denied her motion. The
BIA first held that Warui had failed to present any material new
facts that could be proven in a new hearing or previously
unavailable evidence. Second, the BIA pointed out that Warui had
failed to challenge the IJ's adverse credibility finding with
respect to both her and her husband. Based on this, the BIA could
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not "conclude that any application for relief is now reasonably
likely to succeed on the merits in order to warrant reopening."
II.
In general, motions to reopen removal proceedings are
not favored because "such motions are at odds with the compelling
public interests in finality and the expeditious processing of
proceedings." Beltre-Veloz v. Mukasey, 533 F.3d 7, 9 (1st Cir.
2008) (quoting Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st
Cir. 2007)). We review denials by the BIA of motions to reopen for
abuse of discretion.1 Kechichian v. Mukasey, 535 F.3d 15, 22 (1st
Cir. 2008). A decision by the BIA will survive review unless a
petitioner can show that it "committed an error of law or exercised
its judgment in an arbitrary, capricious, or irrational way." Id.
(quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)).
A motion to reopen may only be granted if it states "new
facts that will be proven at a hearing to be held if the motion is
granted." 8 C.F.R. § 1003.2(c)(1). Such a motion "shall not be
granted unless it appears to the Board that evidence sought to be
offered is material and was not available and could not have been
discovered or presented at the former hearing." Id. In addition,
"[a] motion to reopen must be denied unless petitioners' new
1
The parties have not argued that this court lacks
jurisdiction to consider the petition, cf. Oliveira v. Holder, 568
F.3d 275, 277 n.4 (1st Cir. 2009), and we assume that we do have
jurisdiction.
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evidence establishes a prima facie case for the underlying
substantive relief." Chikkeur v. Mukasey, 514 F.3d 1381, 1383 (1st
Cir. 2008).
Warui's motion to reopen requested an opportunity to
present her own claims for withholding of removal and protection
under CAT. It is not entirely clear from her briefs or from the
BIA's and IJ's opinions whether her derivative asylum application
purported to include "derivative" claims for withholding of removal
and protection under CAT. Unlike the statute governing asylum
applications, 8 U.S.C. § 1158, the statutes and regulations
covering withholding of removal and the CAT do not contain
provisions for derivative claims, 8 U.S.C. § 1231(b)(3); 8 C.F.R.
§ 1208.16(b), (c). This circuit has explicitly held that
derivative claims cannot be made for withholding of removal,
Kechichian, 535 F.3d at 22 n.4, and other circuits have held the
same with respect to the CAT, see, e.g., Martinez v. U.S. Att'y
Gen., No. 08-14398, 2009 WL 1109294, *3 (11th Cir. Apr. 27, 2009);
Oforji v. Ashcroft, 354 F.3d 609, 615 (7th Cir. 2003). We assume
in her favor that Warui has only made a derivative claim for asylum
and that withholding of removal and protection under CAT are the
new claims she seeks to submit through a motion to reopen. Even
so, we find that the BIA did not abuse its discretion in denying
the motion to reopen to let her present those claims on her own
behalf.
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As the BIA noted, Warui's motion did not state any new
facts material to her claims and it was not supported by any
previously unavailable evidence. Her motion stated as "new facts"
that she and her husband had been divorced and that he had departed
the United States, but she did not argue that this changed the
material facts which had been presented in support of the original
claims for relief. Rather, the motion simply requested the right
to make her own application for withholding of removal and CAT
protection -- a claim that would have been based on the same facts
previously presented to the IJ. Given that the standard for
withholding of removal places a higher burden on the applicant to
prove past or future persecution, the BIA did not abuse its
discretion in denying the motion to reopen the withholding of
removal claim. Usman v. Holder, 566 F.3d 262, 268 (1st Cir. 2009).
On those facts, she could not make a prima facie case for
withholding of removal.
The same is true of Warui's CAT claim, which requires a
finding that she will "more likely than not" experience torture if
removed. 8 C.F.R. § 1208.16(c)(4). She does not claim to have
already suffered torture. Since she could not meet the lower
standard of showing a well-founded fear she would suffer harm if
removed, the BIA did not abuse its discretion in finding that she
did not present a prima facie case for relief under the CAT.
Usman, 566 F.3d at 268.
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In her brief here, Warui makes a different argument. She
argues that the BIA should reopen her case based on changed
circumstances, specifically that her case was "in effect abandoned"
because of her divorce and Karioki's departure. Yet, as the BIA
found, the material facts which underlie Warui's purported new
claims for withholding of removal and protection under the CAT are
the same as those which led to denial of asylum. On this basis,
the BIA's decision not to reopen was not an abuse of discretion.
Further, as the BIA pointed out, Warui's motion to reopen
made no challenge to the credibility findings made against her by
the IJ. Warui now concedes that Karioki may not have testified
credibly and argues that she should be given an opportunity to
establish her own credibility. Yet Warui availed herself of just
such an opportunity in the original proceedings. She testified at
the May 8, 2006 merits hearing, and the IJ and BIA reached their
credibility finding based on inconsistencies in her own testimony
as well as those of her husband.
Warui argues to us that her case should be reopened
because the law regarding withholding of removal and CAT relief in
cases where a petitioner has been subjected to FGM has changed in
light of the Attorney General's recent decision in Matter of A-T,
24 I & N Dec. 617 (A.G. 2008).2 The facts of Matter of A-T easily
2
The decision was issued after the BIA's September 15,
2008 denial of Warui's motion to reopen. No party has argued that
this issue should be remanded to the BIA, nor in this instance
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distinguish it from this case. That case addressed whether a
woman's having undergone FGM could constitute past persecution for
purposes of a withholding of removal claim. Id. Here, the
petitioner has not undergone FGM and she was found not to have been
persecuted on other grounds. Thus Matter of A-T does not enable
her to present a prima facie case for relief.
Warui's brief improperly attempts to challenge the
findings of the BIA and the IJ regarding the original claims for
withholding of removal and protection under the CAT. A petition to
review those findings was not timely filed after the BIA's May 28,
2008 order of removal became final. 8 U.S.C. § 1252(b)(1)
(requiring that petitions for review be filed within thirty days of
a final order of removal); Ven v. Ashcroft, 386 F.3d 357, 359 (1st
Cir. 2004) ("A motion to reopen or reconsider does not toll the
period for filing a petition for judicial review of the underlying
order of deportation."). We accordingly lack jurisdiction to
consider them.
The petition for review of the denial of the motion to
reopen is denied; the attempt to challenge the BIA's May 28, 2008
order is dismissed.
would a remand be appropriate.
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