Winnie Kemboi, et al v. Eric Holder, Jr.

Filing

OPINION filed : AFFIRMED, decision not for publication. Karen Nelson Moore, Circuit Judge; Ronald Lee Gilman, Circuit Judge and Raymond M. Kethledge, AUTHORING Circuit Judge.

Case: 11-4206

Document: 006111494477

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1164n.06
No. 11-4206
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
WINNIE NJERI KEMBOI, JOHN CHERUIYOT
KEMBOI,
Petitioners,
v.
ERIC H. HOLDER, JR., United States Attorney
General,
Respondent.

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Nov 08, 2012
DEBORAH S. HUNT, Clerk

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

Before: MOORE, GILMAN, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Winnie Njeri Kemboi and her husband, John, both natives
and citizens of Kenya, petition for review of an order of the Board of Immigration Appeals denying
their applications for asylum and withholding of removal, and her application for protection under
the United Nations’ Convention Against Torture. We deny the petition.
I.
Kemboi and John entered the United States as non-immigrant students in 2002 and 2003,
respectively. They married in 2004. By 2008, they were no longer students. Kemboi applied for
asylum and withholding of removal the following year, and included John on her application as a
derivative beneficiary. Kemboi testified to the following during her removal hearing.

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Kemboi is a member of the Kikuyu tribe, and John is a member of the Kalenjin tribe.
Kemboi’s marriage to a Kalenjin is common knowledge in Kenya because her family held a marriage
celebration. Her inter-tribal marriage was not a problem until 2007, when tensions between the two
tribes arose as a result of a disputed presidential election. In February 2009, members of the
Mungiki, a sect of the Kikuyu, went to Kemboi’s father’s home and threatened him. Kemboi’s
nephew Brian was present and witnessed the threats. The Mungiki accused Kemboi’s father of
betraying the Kikuyu by letting his daughter marry a Kalenjin. According to Kemboi’s asylum
application, the Mungiki left her father and nephew unharmed after her father paid them 20,000
shillings (about $235).
In April 2009, someone burned down Kemboi’s father’s grocery shop. No one saw who did
it, but her family suspected the Mugiki. After that, Kemboi’s father received an anonymous note that
threatened her. It said “Winnie! Winnie! the betrayer . . . we are waiting for you . . . . Whenever
you come back we will circumcise you in the market place and leave you there to die as a lesson to
the Kikuyu women . . . that none of our women should be married [to a Kalenjin.]” And on
December 23, 2009, someone stole her family’s goat. Goats are important to holiday celebrations
such as Christmas. Thus, her family believed that the Mungiki stole the goat to remind the family
that they should not be happy.
Kemboi testified that she first learned about the February 2009 incident in April 2009, when
she received a notarized letter from her sister Marcy. Kemboi explained that her family did not
mention it sooner because they did not want to break up her marriage.

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Kemboi’s husband and brother also testified during the hearing. They both said that Kemboi
knew about the February 2009 incident before April 2009. John testified that Kemboi knew about
the incident a “few weeks” after it had occurred. And Kemboi’s brother testified that he discussed
the incident with Kemboi less than two weeks after it.
In further support of her asylum application, Kemboi timely filed documentary evidence
consisting mostly of newspaper articles. She also submitted letters from her sister Judy, her nephew
Brian, and her brother-in-law Julius, but she did not file them until nine days after the filing deadline.
In a motion to file the letters late, Kemboi explained that the letters’ arrival was delayed due to
“unforeseen circumstances regarding international mail.” Two of the letters—the ones from Judy
and Brian—were addressed to New York, Ohio rather than Newark, Ohio. The IJ denied the motion,
concluding that Kemboi could have obtained the letters earlier had she been diligent.
The IJ denied Kemboi’s asylum application, reasoning that she did not provide sufficient,
credible evidence to prove past persecution, and that even if the February 2009 incident occurred as
alleged, it did not rise to the level of persecution. The IJ also found that Kemboi did not have a
reasonable fear of future persecution both because her testimony was not credible, and because there
was no evidence that her family has had any problems with the Mungiki since February 2009, when
her father paid them off. The IJ denied Kemboi’s application for withholding of removal because
she did not establish that it was more likely than not that her life or freedom would be threatened if
she returned to Kenya. Finally, the IJ denied Kemboi’s application for relief under the United
Nations’ Convention Against Torture because she did not prove that it was more likely than not that
she would be tortured if she returned to Kenya.
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Kemboi appealed to the Board of Immigration Appeals. Following the IJ’s reasoning, the
Board issued an opinion affirming the denial of all relief. This petition followed.
II.
Where, as here, the Board issues its own opinion, we review that opinion as the final agency
determination; but we also review the IJ’s decision to the extent the Board adopted its reasoning.
Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009). We review questions of law de novo and factual
findings, including credibility determinations, for substantial evidence, reversing only if the evidence
presented compels a contrary conclusion. Id. at 246–47.
Kemboi argues that the IJ and the Board erred in denying her relief. To prevail on her asylum
claim, Kemboi must establish that she is unable to return to Kenya because she either suffered past
persecution, or has a well-founded fear of future persecution, because of her inter-tribal marriage.
See 8 U.S.C. § 1158(b)(1)(B); Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004).
Kemboi argues that the IJ violated her right to due process by refusing to consider the three
letters that she filed nine days late. To establish a due process violation, Kemboi must show that
there was a defect in the removal proceeding, and that she was prejudiced by the defect. See
Abdallahi v. Holder, 690 F.3d 467, 472 (6th Cir. 2012).
There was no defect here. When a “document is not filed within the time set by the
Immigration Judge, the opportunity to file that . . . document [is] deemed waived.” Id. Kemboi
concedes that she filed the letters late. And the record contains substantial evidence to support the
IJ’s conclusion that Kemboi could have filed the letter on time. Although Kemboi applied for
asylum in June 2009, she did not request the letters from her family until over eight months
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later—just one month before the proceeding. Had she requested the letters earlier, there would have
been plenty of time to accommodate potential delivery problems. Kemboi therefore cannot show
that the IJ violated her right to due process. See Hassan v. Gonzales, 403 F.3d 429, 436 (6th Cir.
2005); Singh v. Ashcroft, 398 F.3d 396, 406 (6th Cir. 2005).
Kemboi also challenges the IJ’s finding that she was not credible, and as a result, that she did
not have a subjectively genuine fear of persecution. Specifically, Kemboi argues that the IJ should
not have discredited her testimony without first giving her an opportunity to address the
inconsistency between her testimony and that of her husband and brother regarding how she learned
of the February 2009 incident. But even if we assume Kemboi is correct on that point, her petition
still fails because she cannot show that the record compels the conclusion that her fear of persecution
was objectively reasonable.
“An applicant’s fear of persecution must be both subjectively genuine and objectively
reasonable.” Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998). “An applicant must therefore
actually fear that he will be persecuted upon return to his country, and he must present evidence
establishing an objective situation under which his fear can be deemed reasonable.” Id. (internal
quotation marks omitted). Here, after an extensive analysis, the IJ concluded that none of the
evidence proffered by Kemboi substantiated her claim that the Mungiki would actively seek out
Kemboi if she were to return to Kenya. The IJ discredited the written threat produced by Kemboi
based on concerns about its authenticity and chain of custody and gave limited weight to the
testimony of Kemboi’s husband and brother, as well as the two letters detailing the February 2009

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incident, due to their basis in hearsay. In addition, the IJ noted that Kemboi had not produced
evidence of any further threats from the Mungiki after the February 2009 incident.
Kemboi’s argument that the IJ afforded improper weight to these pieces of evidence is
unavailing under the highly deferential standard that we apply. Thus, we affirm the Board’s decision
on Kemboi’s application for asylum and withholding of removal.
Finally, Kemboi argues that the Board erred in affirming the IJ’s denial of protection under
the United Nations’ Convention Against Torture. To be eligible for Convention Against Torture
protection, an alien must prove that it is “more likely than not that . . . she would be tortured if
removed to” her home country. 8 C.F.R. § 1208.16(c)(2). Torture is defined as “any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . by or
at the instigation of or with the consent or acquiescence of a public official or other person acting
in an official capacity.” Id. § 1208.16(a)(1). Kemboi does not explain how the threat of Mungiki
violence amounts to an act “by or at the instigation of or with the consent or acquiescence of” a
government official. In fact, Kemboi asserts only that the government is unable to control the
Mungiki, not that the government has acquiesced to their violence. And during her testimony, she
acknowledged that Kenya has outlawed the Mungiki. Kemboi also submitted evidence showing that
Kenya has outlawed female genital mutilation, and that it is attempting to suppress the Mungiki.
Kemboi has not pointed to any evidence that compels us to conclude she is entitled to Convention
Against Torture protection.
The petition for review is denied.

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