Linah Tallam v. Eric Holder, Jr.
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: A088-307-398. Copies to all parties and the district court/agency. [999062426]. [11-1893]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1893
LINAH JEROTICH TALLAM,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued:
December 5, 2012
Decided:
March 13, 2013
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Petition denied by unpublished opinion.
Judge Niemeyer wrote
the opinion, in which Judge Wilkinson and Judge Gregory joined.
ARGUED:
William Payne, PAYNE & ASSOCIATES, Washington, D.C.,
for Petitioner.
Nicole J. Thomas-Dorris, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON
BRIEF:
Tony West, Assistant Attorney General, Civil Division,
Jennifer L. Lightbody, Senior Litigation Counsel, UNITED STATES
DEPARTMENT
OF
JUSTICE,
Office
of
Immigration
Litigation,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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NIEMEYER, Circuit Judge:
Linah Jerotich Tallam, a native and citizen of Kenya, filed
this petition for review of an order of the Board of Immigration
Appeals
(“BIA”)
dismissing
her
appeal
from
an
immigration
judge’s order denying her application for asylum, withholding of
removal,
and
(“CAT”).
protection
under
the
Convention
Against
Torture
The BIA agreed with the immigration judge that Tallam
had not established her eligibility for relief.
Because the
record does not compel us to conclude otherwise, see INS v.
Elias-Zacarias,
502
U.S.
478,
483-84
(1992),
we
deny
the
petition for review.
I
Linah Tallam entered the United States in August 2001 on a
student
visa
that
authorized
her
to
remain
through
the
completion of her studies or, at the latest, December 13, 2007.
In December 2007, as she was preparing to return to Kenya with
her American daughter, the country erupted in ethnic violence
following the presidential election, held on December 27, 2007.
According to a March 2008 report by Human Rights Watch, the
opposition
candidate’s
disappeared
as
the
one-million
final
votes
were
vote
being
lead
mysteriously
counted,
and
the
incumbent candidate, Mwai Kibaki, a member of the Kikuyu tribe,
was suddenly declared the winner on December 30, 2007.
2
J.A.
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After the results were announced, “[m]obilized opposition
supporters -- especially in the Rift Valley and the slums of
Nairobi
--
attacked
those
whom
they
assumed
had
voted
for
Kibaki, and his [political party], in large part the Kikuyu.
This
assigned
an
ethnic
dimension
Kikuyu then fought back.”
the
violence
that
to
J.A. 178.
engulfed
Kenya
the
violence
and
angry
“The scale and speed of
following
the
controversial
presidential election . . . shocked both Kenyans and the world
at large.
Two months of bloodshed left over 1,000 dead and up
to 500,000 internally displaced persons . . . .”
J.A. 176.
According to Tallam, her family was tragically affected by
these events.
Tallam states that she learned by phone from her
brother Moses that members of the Kikuyu tribe had attacked all
of the members of the Kalenjin tribe living in her home village
of Benonin, which is located outside the town of Eldama Ravine
in Kenya’s Rift Valley in a predominately Kikuyu area.
130-32, 155, 296.
Kikuyu
men
nearby
homes
Moses told her that on January 5, 2008,
burned
of
J.A.
down
two
of
their
mother’s
their
other
family to flee to other parts of Kenya.
home,
along
brothers,
with
causing
J.A. 296-97.
the
their
She later
found out from Moses that on February 14, 2008, members of the
Kikuyu tribe murdered her sister Lydia and raped one of her
cousins.
J.A. 297.
3
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Based on this information, on April 8, 2008, Tallam filed
an application for asylum, withholding of removal, and relief
under the CAT, claiming a fear of persecution on account of her
membership in the Kalenjin tribe.
grant
Tallam’s
Immigration
application
Court.
The
subsequently
initiated
charging
with
her
being
and
An asylum officer declined to
instead
Department
removal
subject
referred
of
Homeland
proceedings
to
it
to
Security
against
removal
under
the
Tallam,
8
U.S.C.
§ 1227(a)(1)(B) for having overstayed her non-immigrant visa.
Appearing before an immigration judge in June 2009, Tallam
conceded her removability but renewed her requests for asylum,
withholding of removal, and CAT protection.
requested voluntary departure.
Alternatively, she
After hearing Tallam’s testimony
and reviewing the documentary evidence submitted by both sides,
the immigration judge denied Tallam’s application.
First, the
judge ruled that Tallam’s asylum application was time barred, as
it was filed more than one year after she last entered the
United States and neither of the exceptions that would excuse an
untimely filing applied.
judge
proceeded
to
After making this initial ruling, the
articulate
an
alternative,
rationale for denying Tallam’s application.
merits-based
Although the judge
found Tallam’s testimony credible and found that Tallam had a
genuine subjective fear of persecution, the judge found that she
had not demonstrated an objectively reasonable basis for that
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In this regard, the judge noted that the reports in the
record on conditions in Kenya indicated that the acute period of
election-related violence had ended.
Moreover, the judge found,
even though some inter-ethnic violence still existed in Kenya,
Tallam
had
not
demonstrated
that
she
could
not
reasonably
relocate within Kenya, especially given her testimony that many
of her family members had relocated to other areas in Kenya and
that two of her siblings had even returned to Eldama Ravine.
The immigration judge also emphasized that the Kenyan government
had made significant efforts to quell the country’s inter-ethnic
violence.
Accordingly, the judge denied Tallam’s requests for
asylum, withholding of removal, and CAT protection, although the
judge granted her alternative request for voluntary departure.
By order dated July 18, 2011, the BIA affirmed, finding
that it need not decide whether Tallam’s asylum application was
timely filed because Tallam had not established a well-founded
fear of future persecution on account of a protected ground.
The BIA found that the “country condition evidence in the record
shows that inter-ethnic violence carried out by various ethnic
groups, including the Kalenjin, occurred for 2 months after the
2007 presidential election,” but that the country’s political
parties had responded to the crisis by reaching a power-sharing
agreement
political
that
also
violence,
established
an
a
Commission
Independent
5
Review
of
Inquiry
Committee
on
on
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elections, and a Truth, Justice, and Reconciliation Commission.
The BIA also agreed with the immigration judge that Tallam had
not
met
her
reasonable
burden
for
her
of
to
establishing
relocate
to
that
it
another
would
part
not
of
be
Kenya.
Because she had not demonstrated her eligibility for asylum, the
BIA
additionally
found
Tallam
could
not
satisfy
burden applicable to withholding of removal.
the
higher
Finally, the BIA
agreed that Tallam had not shown that it was more likely than
not that she would be tortured by the Kenyan government or with
the government’s consent or acquiescence and that she therefore
did
not
qualify
dismissed
for
Tallam’s
CAT
appeal
protection.
and
The
reinstated
the
BIA
accordingly
period
for
her
voluntary departure.
Tallam timely filed this petition for review of the BIA’s
decision.
II
The Immigration and Nationality Act authorizes the Attorney
General
to
grant
asylum
to
a
person
unable
or
unwilling
to
return to her native country “because of persecution or a wellfounded
fear
nationality,
of
persecution
membership
political opinion.”
in
on
a
account
particular
of
race,
social
religion,
group,
or
8 U.S.C. § 1101(a)(42)(A); id. § 1158(b).
The applicant “bear[s] the burden of proving eligibility for
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asylum.”
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Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006).
If the asylum applicant shows past persecution, she is presumed
to
have
a
well-founded
§ 1208.13(b)(1).
Without
fear
of
regard
persecution.
to
past
8
C.F.R.
persecution,
the
applicant has a well-founded fear of persecution if (1) she “has
a fear of persecution in . . . her country of nationality . . .
on
account
of
race,
religion,
nationality,
membership
in
a
particular social group, or political opinion;” (2) “[t]here is
a reasonable possibility of suffering such persecution if . . .
she were to return to that country;” and (3) “she is unable or
unwilling to return to, or avail . . . herself of the protection
of, that country because of such fear.”
The
well-founded
fear
standard
subjective and objective components.
be
satisfied
“by
presenting
Id. § 1208.13(b)(2)(i).
therefore
contains
both
The subjective element may
candid,
credible,
and
sincere
testimony demonstrating a genuine fear of persecution,” Chen v.
INS, 195 F.3d 198, 201 (4th Cir. 1999) (internal quotation marks
omitted), while the “objective element requires a showing of
specific, concrete facts that would lead a reasonable person in
like circumstances to fear persecution,” Ngarurih v. Ashcroft,
371 F.3d 182, 187-88 (4th Cir. 2004).
To establish a well-founded fear of persecution, an asylum
applicant need not show that she would be individually targeted
for persecution if she establishes that “there is a pattern or
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practice . . . of persecution of a group of persons similarly
situated to the applicant.”
such
a
case,
thorough
or
“[t]he
key
systematic
Chen, 195 F.3d at 203.
however,
if
she
8 C.F.R. § 1208.13(b)(2)(iii).
for
the
nature
of
applicant
the
is
to
persecution
show
he
In
the
fears.”
The applicant is ineligible for asylum,
“could
avoid
persecution
by
relocating
to
another part of [her] country of nationality . . . [and] if
under all the circumstances it would be reasonable to expect
[her]
to
applicant
feared
do
so.”
has
not
persecution
sponsored,
the
8
C.F.R.
§ 1208.13(b)(2)(ii).
established
would
applicant
be
past
by
“bear[s]
a
persecution
government
the
burden
or
of
If
or
the
that
the
governmentestablishing
that it would not be reasonable for . . . her to relocate.”
Id.
§ 1208.13(b)(3)(i).
A determination of the BIA must be supported by substantial
evidence, and we review its decision under a highly deferential
standard.
Under that standard, its factual determinations “are
conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
Thus,
we may reverse the BIA’s findings only if the evidence presented
was “so compelling that no reasonable factfinder could fail to
find the requisite fear of persecution.”
U.S. at 484; Ngarurih, 371 F.3d at 188.
Elias-Zacarias, 502
And “[t]he agency
decision that an alien is not eligible for asylum is ‘conclusive
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unless
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manifestly
discretion.’”
contrary
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to
the
law
and
an
abuse
of
Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir.
2010) (quoting 8 U.S.C. § 1252(b)(4)(D)).
Tallam
argues
that
the
BIA’s
determination
that
she
is
ineligible for asylum is not supported by substantial evidence.
While
she
has
never
claimed
to
be
the
victim
of
past
persecution, she contends that “the egregious behavior inflicted
on her family by the Kikuyu tribe, unchecked by the government
in conjunction with the country conditions of ethnic violence,
gave her a well founded fear of persecution based on her social
group.”
We conclude, however, that the record evidence, taken
as a whole, does not compel the conclusion that Tallam had a
well-founded
fear
of
persecution
in
June
2009,
immigration judge considered her asylum application.
when
the
Instead,
as the BIA found, both of the primary reports in the record on
conditions in Kenya -- the U.S. Department of State 2007 Country
Report on Human Rights Practices, dated March 11, 2008; and a
March 2008 report by the Human Rights Watch entitled, “Ballots
to Bullets: Organized Political Violence and Kenya’s Crisis in
Governance”
--
indicate
that
the
acute
inter-ethnic
violence
that beset Kenya after the December 2007 election had largely
ended by the spring of 2008.
Tallam
attempts
pieces of evidence.
to
controvert
this
conclusion
with
two
First, she points to a U.N. News Service
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article,
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dated
October
24,
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2008.
But
that
article
simply
reports that a Deputy High Commissioner for Human Rights, when
visiting
issues
Kenya,
--
such
called
as
for
the
violations
nation’s
of
leaders
socio-economic
“to
address
rights,
land
issues, large disparities between classes, marginalization and
exclusion -- at the root of the [post-election] violence.”
377.
J.A.
If anything, this article actually supports the agency’s
finding that the violence had largely subsided by the time the
immigration judge considered Tallam’s asylum application.
Tallam also points to her testimony that the week before
her asylum hearing, she learned from her brother Moses that one
of their neighbors had been killed.
J.A. 144-45.
did
the
not
have
information
regarding
Her brother
circumstances
of
the
neighbor’s death, other than claiming that he “knew” that the
neighbor had been killed by a member of the Kikuyu tribe because
he had been decapitated.
J.A. 145.
But this isolated act of
lingering inter-ethnic violence does not compel the conclusion
that, at the time of the asylum hearing, there was “a pattern or
practice” in Kenya of persecuting the Kalenjin based on their
tribal membership so as to make Tallam’s fear of persecution
objectively
reasonable.
See
8
C.F.R.
§
1208.13(b)(2)(iii);
Chen, 195 F.3d at 203.
Additionally, Tallam completely fails to address the BIA’s
findings that the persecution she subjectively fears is neither
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by
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the
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government
nor
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government
sponsored.
In
that
circumstance, she “bear[s] the burden of establishing that it
would not be reasonable for . . . her to relocate,” 8 C.F.R.
§ 1208.13(b)(3)(i), a burden she failed to carry.
immigration
judge
and
the
BIA
emphasized,
As both the
Tallam’s
testimony
suggests that her mother and her eight living siblings have all
safely relocated within Kenya.
J.A. 133-37, 146-48.
Indeed,
Tallam testified that two months before her asylum hearing, two
of
her
siblings
had
without incident.
returned
to
Eldama
J.A. 136-37, 146-47.
Ravine,
apparently
The record is also
devoid of any recent affidavits or letters, from either Tallam’s
family members or other members of the Kalenjin tribe, reporting
that the Kalenjin are still being persecuted by the Kikuyu.
For these reasons, we conclude that substantial evidence
supports the BIA’s affirmance of the immigration judge’s denial
of Tallam’s application for asylum.
Turning
to
Tallam’s
request
for
withholding
of
removal
under 8 U.S.C. § 1231(b)(3), such relief is only available to
applicants
persecution,
who
a
are
“more
burden
of
likely
proof
founded fear standard for asylum.
than
more
not”
onerous
to
face
than
the
future
well-
8 C.F.R. § 1208.16(b)(2); see
also Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).
Because we affirm the BIA’s conclusion that Tallam failed to
establish a well-founded fear of future persecution, it follows
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her
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proof
also
fails
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to
establish
her
eligibility
for
withholding of removal.
Finally, we conclude that substantial evidence supports the
BIA’s denial of CAT relief.
The evidence in the record does not
compel the conclusion that Tallam will, more likely than not, be
tortured
by,
or
with
the
acquiescence
of,
Kenyan
government
officials, as is necessary to qualify for protection under the
CAT.
See
8
C.F.R.
§§
1208.16(c), 1208.18(a).
Rather,
the
objective record evidence indicates that the Kenyan government
has gone to significant lengths to respond to the severe interethnic
violence
election.
compel
a
sparked
by
the
December
2007
presidential
There is simply nothing in the record that would
reasonable
factfinder
to
agree
with
Tallam
that
government officials would, more likely than not, participate
in,
or
citizen.
be
complicit
in,
the
torture
of
a
returning
Kenyan
We accordingly affirm the BIA’s denial of Tallam’s
request for CAT protection.
For the foregoing reasons, we deny Tallam’s petition for
review.
PETITION DENIED
12
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