Harrison Kamau v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

HARRISON GACHUKIA KAMAU, No. 13-74358

Petitioner, Agency No.
A089-303-397
v.

JEFFERSON B. SESSIONS, III, Attorney
General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted December 6, 2017**
Seattle, Washington

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges:

Harrison Gachukia Kamau, a native and citizen of Kenya, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration

judge’s (“IJ”) denial of his application for asylum, withholding of removal,

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
humanitarian asylum, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny in part

and dismiss in part the petition.

Substantial evidence supports the BIA’s denial of relief based upon Kamau’s

failure to establish both that he was a member of a particular social group and that

his membership in that group was a central reason for his persecution. See 8 U.S.C.

§ 1101(a)(42)(A); 8 C.F.R. § 208.13(b)(1). Kamau failed to explain how his

identified particular social group—Christian males from the Kikuyu tribe who

oppose the Mungiki—is recognizable in Kenyan society and, thus, has not shown

that the group is socially visible and particular. See Henriquez-Rivas v. Holder, 707

F.3d 1081, 1088–91 (9th Cir. 2013) (en banc) (requiring that the shared

characteristic be “generally . . . recognizable” by other members of the community

and querying whether the group “can accurately be described in a manner

sufficiently distinct that the group would be recognized, in the society in question,

as a discrete class of persons”).

Even assuming that Kamau demonstrated that his group is socially visible, he

has not shown that he was persecuted “on account of” his membership in that group.

See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b)(1). Specifically, substantial

2
evidence supports the IJ’s conclusion that the Mungiki targeted him because of his

economic status in the community as the owner of a matatu—a type of minibus. See

Ayala v. Sessions, 855 F.3d 1012, 1020–21 (9th Cir. 2017) (noting that extortion

qualifies as past persecution only when the extortion is motivated by a protected

ground); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008)

(“These [economic and personal] motivations do not constitute persecution on

account of political opinion.”), abrogated on other grounds by Henriquez-Rivas, 707

F.3d at 1093.

For the same reason, substantial evidence supports the BIA’s conclusion that

Kamau failed to established a well-founded fear of future persecution on account of

his membership in a particular group. See 8 C.F.R. § 208.13(b)(2)(i).

The BIA reasoned that Kamau’s claim for withholding of removal failed

because his asylum claim failed. That reasoning is inconsistent with Barajas-

Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). But we need not remand

because doing so would be “an idle and useless formality.” NLRB v. Wyman–

Gordon Co., 394 U.S. 759, 766 n.6 (1969). Substantial evidence supports the

agency’s finding that there was no nexus between Kamau’s persecution and his

membership in a particular social group. Likewise, Kamau’s failure to establish past

3
persecution and fear of future persecution means that his plea for humanitarian

asylum also fails.1 8 C.F.R. § 208.13(b)(1)(iii); see also Hanna v. Keisler, 506 F.3d

933, 939 (9th Cir. 2007). Kamau has failed to carry his burden to show that it is

more likely than not that he would be tortured if returned to Kenya. See Barajas-

Romero, 846 F.3d at 363–64.

Finally, Kamau has waived his claim for persecution based on religion

because he did not challenge the IJ’s decision regarding that claim when he appealed

to the BIA. Consequently, we do not have jurisdiction to hear that claim. See 8

U.S.C. § 1252(d)(1); Abebe v. Mukasey, 554 F.3d 1203, 1207–08 (9th Cir. 2009).

PETITION DENIED in part and DISMISSED in part.

1
Kamau argues that the BIA did not explicitly address his argument for
humanitarian asylum, but the BIA’s conclusion that Kamau failed to establish past
persecution on account of a protected ground renders him ineligible for
humanitarian asylum.