United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3304
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James Kinyanjui Gitimu; Florence *
Wangori Mugi; Samuel Gitimu *
Kinyanjui, *
*
Petitioners, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Eric H. Holder, Jr., Attorney *
General of the United States,1 * [PUBLISHED]
*
Respondent. *
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Submitted: June 9, 2009
Filed: September 22, 2009
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Before BYE, HANSEN, and BENTON, Circuit Judges.
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HANSEN, Circuit Judge.
James Kinyanjui Gitimu, his wife Florence Wangori Mugi, and their child
Samuel Gitimu Kinyanjui (Petitioners), petition for review of the Board of
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr. is automatically substituted for former Attorney General Michael
B. Mukasey as the respondent in this case.
Immigration Appeals' (BIA) order denying them asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). We deny the petition.
I.
The Petitioners are natives and citizens of Kenya who were admitted into the
United States as nonimmigrant visitors in September 2001, with permission to remain
in the United States until March 27, 2002. The Petitioners remained in the United
States longer than permitted and, in August 2002, applied for asylum. Removal
proceedings commenced in October 2002. The Petitioners conceded removability but
requested asylum, withholding of removal, and relief under the CAT. Their requests
were based on assertions of past persecution and a well-founded fear of future
persecution, both due to James's political affiliations and activism. At a hearing
before an immigration judge (IJ) on May 24, 2007, James and Florence both testified
regarding hardships they suffered in Kenya prior to arriving in the United States.
James testified that after obtaining a college education in India he returned to
Kenya and started a secondhand clothing business in 1988. In 1992, he joined the
Democratic Party of Kenya. Then, in 1993, his clothing business was destroyed by
an early morning fire that James believes to have been arson. After his business was
destroyed, he earned a living overseeing a farm owned by various family members.
During this time, James was also involved in a political group advocating the release
of political prisoners in Kenya. His cousin was a prisoner, and James would
demonstrate outside the jail.
In July 1993, James participated in a political rally of 10,000 to 20,000 people,
representing multiple opposition political parties. Police descended on the rally, fired
tear gas, and wielded clubs to disperse the rally participants. James estimates 1,000
people were arrested, and he was among them. Police held him for one month and
gave him no food for the first two days.
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In September 2000, James's brother died in India and was buried in Kenya.
According to custom, Kenyans often give money to the surviving family members of
the deceased. Shortly after the brother was buried, approximately ten masked men
arrived at the family home demanding money. When the family told them there was
no money, the men exhumed the brother's body, brought it to the family home, and
demanded money for its safe return. When the family again told the masked men
there was no money, the men left the body and the family interred it a second time.
James testified that he believes the masked men were motivated by the customary
funeral donations.
Less than a year later, in July of 2001, another group of masked men arrived at
the family home. The men broke a window in James's mother's bedroom and entered
the house through the broken window. When James answered his mother's screams
for help, the men threw rocks at him and began to beat him. The men told James that
a politician sent them to kill him and his family. The intruders did not reveal the name
of their political boss. When the men began assaulting James, his wife Florence
interceded and begged the men not to kill her husband. Having drawn the intruders'
ire, Florence was brutally sexually assaulted by each of the men.
Florence also testified before the IJ. She recounted how she begged the men
not to kill her husband and was then sexually assaulted by each of the men. She
remembers the men saying they were there to punish her husband for his political
involvement.
Neither James nor Florence could identify the masked men—either by name or
as members of a particular political or social group. The men were not wearing
uniforms but looked like regular Kenyans. After the incident, the family alerted the
police, Florence underwent a documented medical examination, and a police report
was completed. The police report makes no mention of the intruders' political
motivations.
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Two United States State Department documents were also admitted into the
record before the IJ. One of those documents, the 2006 Country Report on Human
Rights Practices for Kenya (the country report), indicates "no reports that the
government or its agents committed politically motivated killings" in 2006. (Pet'rs'
App. at 348.) There were also no reports of political prisoners or detainees. The
report details instances of mob violence in the form of vigilante justice, but the great
majority of the victims of mob violence were suspected of criminal activity. The
report notes freedom of speech and assembly are guaranteed by Kenya's constitution,
and there was a diminishing number of reports that the government restricted the right
to assemble in 2006. According to the report, Kenyan law also protects the rights of
workers to join labor unions. Approximately 600,000 workers exercised that right,
and there were no reports of human rights abuses of labor union leaders in 2006.
The IJ found the hardships suffered by the Petitioners were acts of crime—not
motivated by politics—and therefore did not amount to past persecution. The IJ also
found, in the alternative, that the Petitioners do not have a well-founded fear of future
persecution because the political party in which James claims membership controlled
the presidency of Kenya at the time of the hearing. Additionally, the IJ found the
Petitioners could relocate within Kenya and avoid future persecution. As a result, the
IJ denied the Petitioners' application for asylum. The IJ also denied the Petitioners'
requests for withholding of removal and relief under the CAT because those forms of
relief must meet more demanding burdens of proof of future persecution than an
asylum claim. The BIA adopted the IJ's decision and affirmed. The Petitioners now
seek review of the BIA's order adopting and affirming the decision of the IJ.
II.
"Any alien who is physically present in the United States . . . may apply for
asylum . . . ." 8 U.S.C. § 1158(a)(1). To qualify for asylum, an alien shoulders the
burden of establishing he is a refugee, as that term is defined in 8 U.S.C. §
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1101(a)(42). Id. § 1158(b)(1). Under § 1101(a)(42)(A), a refugee includes "any
person who is outside any country of such person's nationality . . . and who is unable
or unwilling to return to, and is unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a well-founded fear of
persecution on account of . . . membership in a particular social group, or political
opinion . . . ." Thus, an alien petitioning for asylum must prove past persecution or
a well-founded fear of future persecution due to one of the bases enumerated in the
statute. 8 C.F.R. § 1208.13(a). Even where past persecution is shown, an immigration
judge must deny asylum when a preponderance of the evidence shows "[t]here has
been a fundamental change in circumstances such that the applicant no longer has a
well-founded fear of persecution in the applicant's country of nationality . . . ." Id. §
1208.13(b)(1)(i)(A).
The BIA affirmed the IJ's findings that the Petitioners did not suffer past
persecution and, due to changed circumstances in Kenya, do not suffer a well-founded
fear of future persecution. The Petitioners challenge those findings. "Where the BIA
adopts the IJ's reasoning, we review the IJ's decision as well." Banat v. Holder, 557
F.3d 886, 889 (8th Cir. 2009). We review the IJ's decision denying the Petitioners'
request for asylum for abuse of discretion. Cooke v. Mukasey, 538 F.3d 899, 904 (8th
Cir. 2008). We analyze questions of law de novo, according "substantial deference
to the agency's interpretations of the statutes and regulations it administers." Id. The
IJ's "findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). Thus, to reverse
the IJ's findings related to past and future persecution we would have to hold that the
evidence presented by the Petitioners was "so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution." I.N.S. v. Elias-Zacarias, 502 U.S.
478, 484 (1992).
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III.
The Petitioners advance two challenges to the IJ's finding that they did not
suffer past persecution on account of political opinion or membership in a particular
social group. First, the Petitioners argue the record evidence compelled a finding of
past persecution. They argue that, in the absence of an explicit adverse credibility
determination, James's and Florence's testimony and supporting documentary
evidence would lead any reasonable factfinder to determine the home invasion was
politically motivated. The Petitioners also advance a separate legal argument related
to the claimed past persecution—they claim the IJ erroneously required further
substantiation of the Petitioners' testimonial assertions supporting the claim of past
persecution.
At the same time, the Petitioners argue the evidence would compel any
reasonable adjudicator to find they have a well-founded fear of future persecution
should they return to Kenya. They argue the country report does not support the IJ's
finding of changed circumstances but actually demonstrates the reasonableness of
their fear of future persecution. In a related argument, the Petitioners claim their
constitutional right to due process was violated to the extent the IJ took administrative
notice of changed country conditions in Kenya without providing the Petitioners
advance notice of, and an opportunity to respond to, his reliance on administrative
notice to make factual findings.
Although the IJ found no past persecution, he alternatively held that changed
circumstances—including the fact that the leader of James's political party controlled
the presidency of Kenya—meant the Petitioners could not have a well-founded fear
of future persecution. Even where there is a finding of past persecution—and the
resulting presumption of a well-founded fear of future persecution, 8 C.F.R. §
1208.13(b)(1)—an alien is not entitled to asylum when the government shows by a
preponderance of the evidence that "[t]here has been a fundamental change in
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circumstances such that the applicant no longer has a well-founded fear of persecution
. . . ." Id. § 1208.13(b)(1)(i); see also Cooke, 538 F.3d at 906-08 (noting a finding of
past persecution "does not end the matter" and affirming IJ's denial of asylum based
on factual finding that petitioners had no well-founded fear of future persecution).
The IJ made precisely such a finding in this case. Thus, even if we assume that the
Petitioners suffered past persecution, we cannot interfere with the IJ's order if the
record provides sufficient support for the IJ's factual finding that changed country
conditions mean the Petitioners do not have a well-founded fear of future persecution.2
State Department country reports can support a factual finding of changed
conditions to rebut a presumption of a well-founded fear of future persecution. See,
e.g., Uli v. Mukasey, 533 F.3d 950, 957 (8th Cir. 2008) (noting evidence of changed
circumstances in country reports and concluding "the record evidence does not compel
a reversal"). Use of country reports cannot substitute for an analysis of the unique
facts of each applicant's case. Yang v. Gonzales, 427 F.3d 1117, 1121 (8th Cir. 2005).
In this case, the IJ considered the country report as part of an analysis of the
Petitioners' individual circumstances. Ultimately, the IJ found that the preponderance
of the evidence showed no well-founded fear of future persecution. We cannot say
the evidence compels a contrary finding. See 8 U.S.C. § 1252(b)(4)(B)
("administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary").
The country report notes that Kenya is a republic dominated by a strong
presidency. The country report also relates that the people of Kenya elected a former
opposition leader, Mwai Kibaki, as president in 2002. As James testified at the
hearing before the IJ, Mr. Kibaki leads the political party in which James claims
membership. The country report also states that there were no reported politically
2
The same principle applies to the other legal issue related to past persecution:
whether the IJ erred by requiring additional substantiation.
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motivated killings in Kenya in 2006. Although there were incidences of mob
violence, the violence usually consisted of vigilante acts against suspected criminals.
Further, the State Department recorded no reports of political prisoners or detainees.
There were fewer reports of government restriction of the constitutionally mandated
freedom of assembly. The country report also notes a legal right for workers to join
labor unions, a right exercised by approximately 600,000 workers. Despite the level
of union membership, "[t]here were no human rights abuses of union leaders reported
by the government." (Pet'rs' App. at 367.) Finally, the country report does not suggest
the existence of discrimination against members of James's political party or
proponents of farmers' rights.
Apart from the country report, the IJ's finding is supported by testimony at the
hearing. James testified he has numerous family members living in Kenya who have
not suffered persecution. See Alyas v. Gonzales, 419 F.3d 756, 761 (8th Cir. 2005)
(noting that an alien's fear of future persecution is diminished when the alien's family
members continue to reside unharmed in the alien's native country). Additionally,
both James and Florence testified they do not know the identity of the assailants in
either the 2000 or 2001 incidents. See Menendez-Donis v. Ashcroft, 360 F.3d 915,
919 (8th Cir. 2004) (analyzing a record lacking "clear evidence as to the identity of
[alien's] attackers" and concluding the record supported a factual finding of lack of
well-founded fear of future persecution). Based on the record as a whole, we cannot
say no reasonable factfinder would agree with the IJ. While a different factfinder may
have reasonably found in the Petitioners' favor, that is not enough to require reversal
of the IJ. The record evidence does not compel a reversal of the IJ's decision to deny
asylum.
The Petitioners also argue their due process rights were violated because the IJ
took administrative notice of changed country conditions. In this case, the IJ's factual
findings regarding country conditions were explicitly based on the country report.
The country report was part of the record, and the Petitioners had ample opportunity
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to rebut that evidence before the IJ and the BIA. The Petitioners' due process rights
were not violated.
Where the asylum seekers fail to establish eligibility for asylum, as the
Petitioners do in this case, "they necessarily cannot meet the more rigorous standard
of proof for withholding of removal." Khrystotodorov v. Mukasey, 551 F.3d 775, 784
(8th Cir. 2008). The Petitioners' request for relief under the CAT suffers the same fate
because it is based on the same factual basis and must likewise meet a more
demanding burden of proof than their asylum claim. Cooke, 538 F.3d at 908.
IV.
Accordingly, we affirm the BIA order adopting and affirming the decision of
the IJ and deny the petition for review.
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