Amalemba v. Holder

444 F. App'x 94
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 1, 2011
DocketNo. 11-2118
StatusPublished
Cited by1 cases

This text of 444 F. App'x 94 (Amalemba v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amalemba v. Holder, 444 F. App'x 94 (7th Cir. 2011).

Opinion

ORDER

Patrick Amalemba, a native and citizen of Kenya, petitions for review of an order of the Board of Immigration Appeals upholding the immigration judge’s denial of his requests for asylum, withholding of removal, relief under the United Nations Convention Against Torture (CAT), cancellation of removal, voluntary departure, and adjustment of status. He also seeks review of the Board’s denial of his motion to reopen and remand removal proceedings. We deny the petition in part and dismiss it in part for lack of jurisdiction.

Amalemba came to the United States on a student visa in 1997 and overstayed. In 2001 he married a United States citizen. The government commenced removal proceedings against him in 2009, charging him as an overstay, see 8 U.S.C. § 1227(a)(1)(B). During a hearing before the IJ, Amalemba conceded removability and requested voluntary departure, cancellation of removal, and adjustment of status. The IJ denied Amalemba’s requests and ordered him removed. Amalemba appealed from the IJ’s decision; the BIA remanded the case because the IJ had not discussed Amalemba’s mental competency (which had been called into question by police reports that Amalemba had been investigated for resisting arrest, domestic violence, and threatening to bomb the University of Notre Dame and the South Bend [96]*96airport during a visit by the President of the United States). Based on a psychologist’s evaluation, the IJ found Amalemba competent.

While his case was on remand, Amalem-ba applied for asylum, withholding of removal, and CAT protection, indicating on his Form 1-589 that he sought such relief due to his “political opinion” and “membership in a particular social group.” During his second merits hearing, Amalemba— appearing pro se1 — testified that he is of Luhya ethnicity and that in 1996, while he was working as an election monitor for the Electoral Commission of Kenya, he was attacked by members of the violent Mun-giki sect, who are of Kikuyu ethnicity.2 Amalemba said that during this episode a group of Kikuyu-speaking men accosted and taunted him for belonging to the Kenya African National Union (KANU) and for being uncircumcised, as he said the Luhya typically are.3 The men then attacked him; he testified that they burned his leg, stabbed him in the arm, and “forcibly circumcised” him — spilling “blood all over” until he lost consciousness. He said he was taken by bystanders to the hospital, where he was operated upon and received skin grafting for a “gaping hole” in his “private area.” He said that newspapers reported on this attack.

After his arrival in the United States, Amalemba testified, his family members were killed due to “ethnic violence related to politics.” His uncle, he said, was poisoned in 1998 while staying in a Kikuyu area. His brother, he testified, was shot in 2000 by a policeman who mistook him for a Mungiki member due.to his dreadlocks (a hairstyle popular among Mungiki); the policeman who shot Amalemba’s brother was later prosecuted and convicted for this attack. Amalemba also testified that his aunt was beaten to death in 2003 in an area of Nairobi containing “active Mungiki members.” Finally, Amalemba testified that his father — who always wore a pin for the KANU political party on his lapel— was found dead in Nairobi’s city center with the pin ripped from the lapel. Ama-lemba stated that he feared returning to Kenya “because of the death that my fami[97]*97ly has faced because of the politics, and people involved in the politics threatening our family.” He also noted that his brother’s grave had been desecrated, that threats have been made on his mother’s life, and that his mother moved to a new home to escape the threat of violence.

Testimony was also presented by Father Patrick Wangai, Amalemba’s longtime friend from Kenya. Wangai — who saw Amalemba’s brother’s body at the morgue — testified that Amalemba’s brother had cut off his dreadlocks before he was killed. Wangai believed that Amalemba’s brother was killed by a policeman hired by his supervisors after he exposed corruption at his company. Wangai also stated that he had never seen Amalemba’s father wearing a KANU pin and that he could not “exclusively say” that Amalemba’s father belonged to any particular political party. He believed that Amalemba’s father was poisoned by villagers who were jealous of his modern brick home.

The IJ denied Amalemba’s requests for relief. In denying his requests for asylum and withholding of removal, the IJ found Amalemba not credible, noting material discrepancies between his and Wangai’s testimony over the circumstances surrounding his brother’s and father’s deaths. Because Amalemba failed to provide corroborating evidence — such as medical records and newspaper articles concerning his alleged 1996 attack, death certificates for his family members, transcripts from the trial of his brother’s murderer, or sworn affidavits from family members — despite earlier instructions to do so, the IJ concluded that Amalemba could not prove that he suffered harm in the alleged attack; that a “nexus” existed between past harm and a protected ground; or that he had a well-founded fear of future persecution. The IJ also denied CAT protection, finding no evidence that Amalemba would likely face torture if he were removed to Kenya. The IJ also denied Amalemba’s request for cancellation of removal on grounds that he had not shown that his wife would suffer “exceptional hardship” if he were removed. Alternatively, the IJ denied Amalemba’s request for cancellation, along with his applications for adjustment of status and voluntary departure, as an exercise of discretion in light of the police reports that he had been investigated for resisting arrest, domestic violence, and making threats.

Amalemba appealed to the BIA, primarily arguing that the IJ erred in finding him not credible and violated his due-process rights by considering the police reports. He subsequently submitted a motion to reopen and remand his case for consideration of new evidence — including transcripts from the trial of his brother’s murderer from the Kisumu High Court (Kenya), his brother’s autopsy report, his father’s death certificate, a sworn declaration from his mother, and newspaper articles about political conflict in Kenya — that he had submitted with his appeal brief. The BIA upheld the IJ’s rulings and denied Amalemba’s motion to reopen, concluding that Amalemba had not shown that any of this new evidence was previously unavailable, that it would alter the outcome of his case, or that it demonstrated prima facie eligibility for the relief sought.

In his petition for review, Amalemba first argues that the IJ and BIA erred in rejecting his claims for asylum and withholding of removal on the basis of an adverse credibility determination. He urges that the credibility assessment was based on “inadvertent” misstatements about his brother’s and father’s deaths and “easily explained discrepancies” between his and Wangai’s testimony, and he argues that he was not given a chance to explain these inconsistencies.

[98]*98We review deferentially the IJ’s and BIA’s credibility determinations, Hassan v. Holder, 571 F.3d 631

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Bluebook (online)
444 F. App'x 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amalemba-v-holder-ca7-2011.