Peris Kamau, et al v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [09-60448 Affirmed ] Judge: EMG , Judge: FPB , Judge: MAC Mandate pull date is 12/06/2010 [09-60448]

Peris Kamau, et al v. Eric Holder, Jr.

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Case: 09-60448

Document: 00511261784

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Date Filed: 10/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 13, 2010 N o . 09-60448 Lyle W. Cayce Clerk

P E R I S WANJIRU KAMAU; JAMES KAMAU MEREKA, P e titio n e rs v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e t itio n for Review of an Order of the Board of Immigration Appeals BIA Nos. A94-889-025; A94-889-026

Before GARZA and BENAVIDES, Circuit Judges, and CRONE, District Judge.* P E R CURIAM:* * P e r is Wanjiru Kamau, a native and citizen of Kenya, petitions for review o f the decision of the Board of Immigration Appeals ("BIA") adopting and a ffir m in g the Immigration Judge's ("IJ") denial of her application for asylum, w it h h o ld in g of removal, and protection under the Convention Against Torture (" C A T " ). Kamau's claims are based on her fear of being forcibly circumcised by

*

District Judge for the Eastern District of Texas, sitting by designation.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

**

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No. 09-60448 t h e Mungiki sect, a political and religious group which advocates female genital m u t ila tio n ("FGM").1 T h is court reviews the BIA's legal conclusions de novo and its findings of fa c t , including its determination that an alien is not eligible for withholding of r e m o v a l, for substantial evidence. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5 t h Cir. 2006). Under the substantial evidence standard, this court will affirm t h e BIA's determination unless the evidence compels a contrary conclusion. See C a r b a ja l-G o n z a le z v. INS, 78 F.3d 194, 197 (5th Cir. 1996). E x h a u s tio n Kamau argues that she is entitled to asylum and withholding of removal b a s e d on past persecution and a well-founded fear of future persecution because o f: (1) her religion and political opinion; and (2) her membership in a particular s o c ia l group, "consisting of women who have not had FGM." The respondent a r g u e s that this court lacks jurisdiction to address her second argument because K a m a u failed to exhaust it before the BIA. Judicial review of a final removal o r d e r is available only if the applicant has exhausted all administrative r e m e d ie s as of right. 8 U.S.C. § 1252(d)(1). Failure to exhaust administrative r e m e d ie s creates a jurisdictional bar to this court's consideration of an issue. Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001). Kamau challenges the respondent's assertion that she failed to exhaust h e r claim of persecution on account of membership in a particular social group. She argues that the IJ discussed and considered the issue in his oral decision a n d that she raised the issue in her brief before the BIA. However, the IJ's d e c is io n addressed her claim in terms of religion and political opinion only. Moreover, although her brief before the BIA listed membership in a particular

In Kamau's application for asylum, withholding of removal, and relief under CAT, she named her husband as a derivative applicant. This opinion's reference to Kamau encompasses both applicants.

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No. 09-60448 s o c ia l group as a basis for relief generally, she did not expressly argue that she w a s a member of a particular social group. The BIA's decision adopted and a f f i r m e d the IJ's decision. Because Kamau failed to exhaust her claim of past p e r s e c u t io n or a well-founded fear of future persecution on the basis of m e m b e r s h ip in a particular social group before the BIA, this court lacks ju r is d i c t io n to address the claim. See Claudio v. Holder, 601 F.3d 316, 317-19 (5 t h Cir. 2010). Although the respondent also argues that Kamau failed to e x h a u s t her claim for relief under CAT, because the BIA considered this claim in its opinion, this court has jurisdiction to address the denial of relief under C A T . Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010) (holding that " [i]f the BIA deems an issue sufficiently presented to consider it on the merits, s u c h action by the BIA exhausts the issue as far as the agency is concerned and t h a t is all that [8 U.S.C.] § 1252(d)(1) requires to confer our jurisdiction" (quoting S id a b u ta r v. Gonzales, 503 F.3d 1116, 1119 (10th Cir. 2007))). ASYLUM As previously set forth, Kamau argues that she is entitled to asylum and w it h h o ld in g of removal based on past persecution and a well-founded fear of fu t u r e persecution by the Mungiki because of her religion and political opinion. To obtain asylum, an alien must prove that she is a "refugee." 8 C.F.R.

§ 1208.13(a). A refugee is defined as a person unable to return to her country " b e c a u s e of persecution or a well-founded fear of persecution on account of race, r e lig io n , nationality, membership in a particular social group, or political o p in io n ." 8 U.S.C. § 1101(a)(42)(A). Past persecution involves harm inflicted on t h e alien because of a statutorily enumerated ground by the government or fo r c e s that a government is unable or unwilling to control. Adebisi v. INS, 952 F .2 d 910, 913­14 (5th Cir. 1992). A well-founded fear of persecution results w h e n a reasonable person in the same circumstances would fear persecution if d e p o r t e d . Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994). 3

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No. 09-60448 A fte r a hearing, the IJ found Kamau to be a credible witness. Nonetheless, the IJ denied the application for asylum, finding, among other t h in g s that the "record does show that the government of Kenya is aggressively p u r s u in g Mungiki and is attempting to bring them under control." In other w ord s, the IJ concluded that Kamau had not shown that the Kenyan government w a s unable or unwilling to control the Mungiki. After reviewing the record and t h e briefs, we conclude that the evidence in the record does not compel a c o n c lu s io n contrary to that reached by the IJ and BIA. See Omondi v. Holder, 3 3 2 F. App'x 197, 199 (5th Cir. 2009) (declining to find the Kenyan government u n w illin g or unable to control the Mungiki based on evidence showing that K e n y a "is actively fighting the Mungiki"). Kamau also challenges the denial of withholding of removal. Because she h a s not established a claim for asylum, she cannot meet the higher standard for w it h h o ld in g of removal. See Eduard v. Ashcroft, 379 F.3d 182, 186 n. 2 (5th Cir. 2 0 0 4 ). C A T claim K a m a u asserts that the BIA wrongly held that she was not eligible for p r o t e c t io n under CAT. Kamau asserts that she has substantial grounds for b e lie v in g that she would be tortured if she returned to Kenya. In Article 3, CAT p r o v id e s that "[n]o State Party shall expel, return . . . or extradite a person to a n o t h e r State where there are substantial grounds for believing that he would b e in danger of being subjected to torture." Efe v. Ashcroft, 293 F.3d 899, 907 (5 t h Cir. 2002). Instead of requiring proof of persecution, CAT requires the h ig h e r showing of torture. Id. Torture is the intentional infliction of severe m e n ta l or physical pain by a public official (or with the consent or acquiescence o f a public official) for the purpose of obtaining information, intimidation, p u n is h m e n t , or discrimination. See 8 C.F.R. § 208.18(a)(1). Torture is defined a s "an extreme form of cruel and inhuman treatment." § 208.18(a)(2). The 4

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No. 09-60448 p e t it io n e r has the burden of proving that she will likely be tortured if she is r e m o v e d . 8 C.F.R. § 208.16(c)(2). I n light of the evidence in the Country Report that the Kenyan g o v e r n m e n t has banned membership in the Mungiki, the evidence in the record d o e s not compel a finding that Kamau, more likely than not, would suffer harm " i n f l ic t e d by or at the instigation of or with the consent or acquiescence of a p u b lic official or other person acting in an official capacity." § 208.18(a)(1); see T a m a r a -G o m e z v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006) (agreeing "with o t h e r circuits that neither the failure to apprehend the persons threatening the a lie n , nor the lack of financial resources to eradicate the threat or risk of torture c o n s t it u t e sufficient state action for purposes of the Convention Against T or tu r e "). The petition for review of the BIA's decision is DENIED.

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