Wanjiku v. Barr

United States Court of Appeals
For the First Circuit

No. 18-1675

ROSEMARY WANJIKU,

Petitioner,

v.

WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,*

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Lynch, Circuit Judge,
Souter,** Associate Justice,
and Stahl, Circuit Judge.

Duane M. Hamilton, Esq. on brief for petitioner.
Joseph H. Hunt, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, and Corey L. Farrell,
Attorney, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, on brief for respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
William P. Barr has been substituted for former Attorney General
Jefferson B. Sessions, III as the respondent.
** Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
March 15, 2019
 STAHL, Circuit Judge. Petitioner Rosemary Wanjiku, a

native and citizen of Kenya, seeks review of an order by the Board

of Immigration Appeals ("BIA") denying her motion to reopen removal

proceedings based on changed country conditions. Wanjiku was first

ordered removed to Kenya in 2013, but she did not leave the country

at that time. More than three years later, in 2016, she sought to

reopen proceedings, claiming that conditions within Kenya had

changed since her prior removal proceedings and now supported a

claim for asylum. An Immigration Judge ("IJ") denied her motion,

concluding that the conditions complained of were continuing, not

changed, and the BIA affirmed that decision on June 22, 2018.

After careful review, we find the BIA did not abuse its discretion

and deny the petition accordingly.

I.

On or about March 19, 2000, Wanjiku entered the United

States at Newark, New Jersey, with authorization to remain for a

temporary period, not to exceed September 18, 2000.1 Wanjiku

remained in the country well past that date and, on July 19, 2010,

she married a U.S. citizen. Shortly thereafter, the couple filed

papers to adjust Wanjiku's status to that of a permanent resident

1 We draw the facts as set forth below from the administrative
record, including sworn statements and other documents that
Wanjiku presented in support of her application. See Tota v.
Gonzales, 457 F.3d 161, 163 (1st Cir. 2006).

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alien. The Department of Homeland Security ("DHS") notified

Wanjiku's spouse of its intent to deny the application, and the

couple sought to withdraw their respective petitions in June 2012.

On July 16, 2012, DHS issued Wanjiku a Notice to Appear

(the "Notice"), which charged Wanjiku with removability for

remaining in the United States beyond the term authorized by her

visa in violation of 8 U.S.C. § 1227(a)(1)(B). The Notice

separately alleged that Wanjiku's marriage was a sham and

constituted a fraudulent attempt to procure an immigration

benefit, and so charged her with removability under 8 U.S.C

§§ 1182(a)(6)(C)(i) and 1227(a)(1)(A). Wanjiku conceded

removability for overstaying her visa, but denied any fraud.

At a hearing held on April 22, 2013, DHS withdrew the

fraud charge, electing to seek Wanjiku's removal only for

overstaying her visa. Wanjiku did not file an application for

relief or seek adjustment of her status, however, and at the

conclusion of the hearing, the IJ ordered Wanjiku removed to Kenya.

Wanjiku did not preserve her appeal and took no further action at

that time.

Wanjiku remained in the United States despite the

removal order and, on September 28, 2016, she filed a motion to

reopen removal proceedings to pursue "asylum and related

humanitarian claims based on changed circumstances and country

conditions." See 8 C.F.R. §§ 1003.2(c)(2); 1003.23(b)(4)(i).

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Wanjiku alleged that a confluence of factors, including an attack

on her daughters (who remained in Kenya), had made her fearful of

returning there and thus, for the first time, eligible for asylum.

The following discussion provides an overview of the factual claims

Wanjiku presented in support of her motion.

Wanjiku belongs to a sub-clan "governed by a council of

elders who make important decisions for [her] people." "[I]ts

over [2,000] members can be found all over Kenya," and "the elders

can mobilize sub-clan members throughout the nation to carry out

[their] wishes." In 1985, contrary to prevailing custom that

allows only men to inherit land, Wanjiku's grandfather left

Wanjiku and her daughters a land inheritance. Her uncle was

"furious" with the bequest and has allegedly disputed and

encroached on Wanjiku's claim to the parcel since 1987. Wanjiku

also asserted that land values in Kenya have been on the rise in

recent years and implied that this trend may have animated her

uncle's displeasure with her inheritance.

On April 14, 2016, Wanjiku's uncle called Wanjiku and

stated that he wanted to sell her property. At her request, two

of Wanjiku's daughters traveled in person to see if the uncle was

in fact going to sell the land. When they arrived, however,

Wanjiku's uncle "chased" them away. While Wanjiku's daughters

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thereafter sought intercession by local elders, the uncle2

interfered with those efforts, sending "gangs" to attack her

daughters and threatening the sub-clan's chief.

Subsequent to those events, Wanjiku alleges that her

uncle spread rumors that Wanjiku is (or has become) a lesbian and

threatened Wanjiku's daughters with female genital mutilation

("FGM"). Wanjiku asserts that the increasing threats to lesbian,

gay, bisexual and transgender ("LGBT") individuals in Kenya

"give[] people like [her] uncle new cover and justification" for

violence. Further, she claims that stigma will allow her uncle to

"beat [] and possibly kill" her with impunity, if not with

assistance from the police and community. Wanjiku specifically

alleges that her uncle, aided by the rumors of her sexuality, has

the influence to leverage the Mungiki warriors -- "a

traditionalist, religious and political group" -- against her.

Wanjiku also alleges that she faces a risk of persecution

based on her religion. In support, she cites the increasing

violence by al-Shabaab, an East African Islamist insurgent group,

against Kenyan Christians.

Wanjiku supported her motion to reopen with her own

affidavit attesting to the above facts, evidence of her

2
Some of the supporting documents regarding these incidents
refer to threats by Wanjiku's "grandfather," rather than her uncle.
Neither party addresses this disparity, nor do they attach any
significance to that point.

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grandfather's death and her uncle's status as "proprietor" of the

Kenyan land, and documents evidencing the attacks against her

daughters. Wanjiku also provided State Department and media

reports on conditions in Kenya, including reporting on anti-LGBT

rhetoric from powerful political and religious leaders, rising

land prices which have caused sometimes violent disputes, and al-

Shabaab's 2014 declaration that Kenya is a "war zone" and its role

in a series of terrorist attacks.

On November 28, 2016, the IJ denied Wanjiku's motion to

reopen. The IJ began by noting that Wanjiku's motion, filed more

than three years after entry of the order of removal, was untimely.

See 8 U.S.C. § 1229a(c)(7)(C)(i) (requiring motions to reopen to

be filed within 90 days of removal order, subject to certain

exceptions); 8 C.F.R. § 1003.2(c)(2) (same). The IJ then concluded

that her motion and evidence failed to demonstrate changed country

conditions which might excuse her non-compliance with that

limitations period. 8 C.F.R. § 1003.2(c)(3)(ii). Instead, the IJ

found that Wanjiku's motion was "predominantly based on changed

personal circumstances" and failed to demonstrate any meaningful,

relevant change in Kenya's country conditions. In particular, the

IJ concluded that Wanjiku's evidence of climbing land prices (and

resultant disputes), anti-LGBT discrimination, and al-Shabaab

violence demonstrated a continuation of conditions already in

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existence at the time of her prior hearing.3 The IJ further

declined to reopen the proceedings sua sponte and denied the motion

accordingly.

Wanjiku appealed the IJ's decision and, on May 15, 2017,

the BIA issued a decision that affirmed the IJ's denial of the

motion on discretionary grounds only without reaching the IJ's

other findings. Following appeal to this court, the Government

made an unopposed motion to remand the case to the BIA to allow it

to "more fully address all of the [IJ's] grounds for denying

Wanjiku's motion." On October 11, 2017, this court granted the

Government's motion, vacated the May 15, 2017 BIA decision, and

remanded for further proceedings.

On remand, the BIA again affirmed the IJ's denial of the

motion to reopen. It concluded that "the IJ did not reversibly

err in finding [that] the [] country conditions" cited by Wanjiku

"were examples of continuing conditions, rather than changed

country conditions." Though noting that Wanjiku's changed

"personal circumstances may place her at increased risk of harm,"

the BIA concluded that this potential future harm remained

"grounded in continuing country conditions, rather than material

changed country conditions." Accordingly, the BIA dismissed

Wanjiku's appeal.

3
The IJ relied on the same bases to conclude that Wanjiku
failed to demonstrate a prima facie case for asylum relief.

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 II.

In her present appeal, Wanjiku argues that the agency's

decisions erred in finding that conditions within Kenya had not

changed since her prior hearing in 2013. Specifically, she argues

that both the BIA and IJ overlooked two statements evidencing

increased threats to LGBT persons and from al-Shabaab violence,

and misconstrued her argument concerning violence resulting from

land value increases.4 Before delving into the details of those

contentions, we begin by introducing the framework against which

the agency's decision is evaluated and the standards we apply in

undertaking that evaluation.

A.

As a general matter, motions to reopen immigration

proceedings must be filed "within 90 days of the date of entry of

a final administrative order of removal." 8 U.S.C.

4 Wanjiku previously argued that she was entitled to relief
because changes in her personal circumstances that were outside of
her control rendered certain country conditions newly relevant to
her. In particular, she argued that her uncle's alleged spreading
of rumors concerning her sexuality and threatening of FGM made
discriminations along those lines pertinent to her case for the
first time. Both the IJ and BIA considered and rejected these
arguments, and Wanjiku does not on appeal press them again.
Accordingly, these arguments are waived, and we do not further
consider them here. See Silva v. Gonzales, 455 F.3d 26, 28 (1st
Cir. 2006) ("We have held, with a regularity bordering on the
monotonous, that litigants have an obligation to spell out their
arguments squarely and distinctly, or else forever hold their
peace." (internal quotation marks, alterations, and citation
omitted)). Wanjiku also makes no argument as to the denial of
sua sponte reopening.

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§ 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). The time

limit does not apply to motions to reopen in order to seek asylum

or withholding of removal, however, if the relevant motion "is

based on changed country conditions arising in the country of

nationality or the country to which removal has been ordered, if

such evidence is material and was not available and would not have

been discovered or presented at the previous proceeding." 8 U.S.C.

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). "It

is well-established that an applicant bears the burden of

establishing changed country circumstances for purposes of

§ 1003.2(c)(3)(ii)," Larngar v. Holder, 562 F.3d 71, 76 (1st Cir.

2009), and must "make a convincing demonstration" of the claimed

change, Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir. 2015)

(alteration omitted). Additionally, the petitioner's evidence

"must, at a bare minimum, establish a prima facie case sufficient

to ground a claim of eligibility for the underlying substantive

relief."5 Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007).

In evaluating a motion to reopen based on changed country

conditions, the BIA "compares the evidence of country conditions

5In an asylum claim, establishing a prima facie case requires
the movant to "produce objective evidence showing a reasonable
likelihood that he will face future persecution based on a
statutory ground." Smith v. Holder, 627 F.3d 427, 437 (1st Cir.
2010) (quoting Larngar, 562 F.3d at 78) (internal quotation marks
omitted). That is, persecution must be "on account of race,
religion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. § 1101(a)(42).

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submitted with the motion to those that existed at the time of the

merits hearing below." Haizem Liu v. Holder, 727 F.3d 53, 57 (1st

Cir. 2013) (quoting In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA

2007)) (internal quotation marks and alteration omitted).

"Crucially, this evidence must demonstrate the intensification or

deterioration of country conditions, not their mere continuation."

Tawardrous v. Holder, 565 F.3d 35, 38 (1st Cir. 2009). "[G]rave

conditions that remain grave do not equate to intensification of

conditions," and thus will not sustain a motion to reopen.

Sánchez-Romero v. Sessions, 865 F.3d 43, 46 (1st Cir. 2017).

"[T]he BIA enjoys considerable latitude in deciding

whether to grant or deny [motions to reopen] . . . and we review

the BIA's denial of a motion to reopen only for abuse of

discretion." Jutus v. Holder, 723 F.3d 105, 109-10 (1st Cir. 2013)

(internal quotation marks and citations omitted); see also Yong

Xiu Lin v. Holder, 754 F.3d 9, 14 (1st Cir. 2014) (applying abuse

of discretion review to denial of motion to reopen based on lack

of changed country conditions). Under that standard, we uphold

the BIA's decision "unless the petitioner can show that the BIA

committed an error of law or exercised its judgment in an

arbitrary, capricious, or irrational manner." Bbale v. Lynch, 840

F.3d 63, 66 (1st Cir. 2016). "When the BIA adopts the IJ's opinion

and discusses some of the bases for the IJ's decision, we have

authority to review both the IJ's and the BIA's opinions." Budiono

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v. Mukasey, 548 F.3d 44, 48 (1st Cir. 2008) (internal quotation

marks and citation omitted).

B.

Despite the uphill climb she faces in this review,

Wanjiku purports to identify abuses of discretion with respect to

the agency's review of each of her three alleged changed country

conditions. Specifically, she argues that the agency's decisions

entirely overlooked two statements -- one by a prominent Kenyan

politician equating homosexuality with "terrorism" and one by al-

Shabaab designating Kenya as a "war zone" -- and misconstrued her

evidence regarding "soaring" land values in Kenya. On review,

however, we see no abuse of discretion on any of these points.

Wanjiku's argument that the agency did not address (or,

at least, adequately address6) the cited quotes fails at its

inception. This court's prior decisions make clear that

[a]n agency is not required to dissect in
minute detail every contention that a
complaining party advances. It is enough if
the agency fairly considers the points raised
by the complainant and articulates its
decision in terms adequate to allow a
reviewing court to conclude that the agency
has thought about the evidence and the issues
and reached a reasoned conclusion.

6 While Wanjiku suggests at several points in her brief that
the agency failed altogether to address either of the quotes, both
the BIA and IJ decisions specifically cite each of those
statements.

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Raza, 484 F.3d at 128 (citations omitted). Here, the IJ's and

BIA's decisions clearly considered the relevant underlying

arguments and simply concluded that the proffered evidence was not

enough to show a real change of conditions. The IJ's discussion

of anti-LGBT activity -- subsequently endorsed by the BIA -- noted

evidence in the record indicating that homosexuality has been

illegal in that country since 1963 and discussed State Department

reports which described pre-2013 violence, harassment, and arrests

directed against Kenya's LGBT population. Similarly, both

discussions surveyed al-Shabaab's history of violence in Kenya,

noting record evidence showing that the group's attacks began at

least two years prior to Wanjiku's first hearing. Those decisions

found insufficient evidence to support Wanjiku's claim the group's

activities had in fact escalated, its declaration of Kenya as a

"war zone" notwithstanding. Wanjiku points to no substantive fault

with these observations, and her contention that the agency's

analysis did not sufficiently emphasize her cited evidence is

nothing more than "an objection to . . . factual determinations

and the evidentiary weight . . . accorded to competing pieces of

evidence," Xin Qiang Liu, 802 F.3d at 77. We therefore discern no

abuse of discretion based on this first set of challenges.

Wanjiku's challenge to the agency's evaluation of her

land value-based challenge fares no better. Both the BIA and IJ

decisions cited specific evidence in the record to support their

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shared conclusion that the admittedly dramatic increase in land

prices pre-dated Wanjiku's initial hearing by at least three years.

Wanjiku now claims that those orders "distorted the essence of

[her] argument," which was that the rise in land prices only

increased to the point of causing violence subsequent to her first

hearing. On appeal, however, she does not point to any portion of

her motion below that squarely presented such an argument.

Instead, she directs our attention to a 2014 news article in the

record which discusses, in general terms, violence resulting from

increased land prices "over the last few months." However, that

article also discusses violent land disputes going back as far as

1983, including a killing of 139 people arising from land disputes

in 2012. Even leaving aside whether that reference preserves or

squarely presented her argument to the agency -- and we doubt that

it does -- we could not conclude on the basis of this equivocal

evidence that Wanjiku carried her burden of making a "convincing

demonstration" that violence resulting from increased land value

is a changed, rather than continuing, condition within Kenya. Id.

at 76.7

7Wanjiku makes the further argument that evidence concerning
rising land values was not "available" to her in 2013 within the
meaning of Section 1229(a). She reasons that, at that time, her
uncle's threat to her land was not yet evident and so information
regarding land values was not relevant to the prior proceeding.
Because we conclude that her evidence does not demonstrate changed
country conditions on that point, we need not further address
whether the evidence was previously available to her. Cf. Haizem

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 Accordingly, we find no abuse of discretion in the

agency's finding that Wanjiku failed to establish changed country

conditions. Because we find no abuse of discretion in the agency's

evaluation of the country conditions, it is not necessary to

further assess its conclusion that Wanjiku failed to make a prima

facie case for asylum eligibility.8 See Haizem Liu, 727 F.3d at

58.

III.

For the foregoing reasons, the petition is denied.

Liu, 727 F.3d at 56 (noting that evidence must both show changed
country conditions and, "[a]dditionally," must have been
"unavailable and undiscoverable at the time of the former
hearing").
8Wanjiku raises the separate argument that even continuing
country conditions may justify an asylum claim where the conditions
"ripen" to relevance as to the applicant. In support of this
argument, she points to the Ninth Circuit's decision in Fakhry v.
Mukasey, 524 F.3d 1057 (9th Cir. 2008). However, that case
considered an entirely separate statutory section, 8 U.S.C.
§ 1158(a)(2)(D), which extends the permissible time to seek asylum
based on "the existence of changed conditions which materially
affect the applicant's eligibility for asylum." In other words,
the issue was whether the circumstances identified had any bearing
on the merits of the applicant's underlying claim for asylum. See
Fakhry, 524 F.3d at 1063. As noted, our finding that the agency
did not abuse its discretion in concluding there were no changed
circumstances obviates any need to examine Wanjiku's eligibility
for asylum, and so we do not further consider this argument.

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