Diana Mwangi v. John Ashcroft, Attorney General of the United States

388 F.3d 623, 2004 U.S. App. LEXIS 23460, 2004 WL 2534027
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 10, 2004
Docket02-3825
StatusPublished
Cited by10 cases

This text of 388 F.3d 623 (Diana Mwangi v. John Ashcroft, Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diana Mwangi v. John Ashcroft, Attorney General of the United States, 388 F.3d 623, 2004 U.S. App. LEXIS 23460, 2004 WL 2534027 (8th Cir. 2004).

Opinion

BYE, Circuit Judge.

Diana Mwangi, a native and citizen of Kenya, petitions for review of the Board of Immigration Appeal’s (BIA) order affirming without opinion an immigration judge’s (IJ) denial of her application for asylum, withholding of removal and protection under the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT). We find the decision supported by substantial evidence, thus we deny the petition for review.

I

Ms. Mwangi entered the United States in March 1997 on a student visa to attend North Hennepin College in Minneapolis, Minnesota. Ms. Mwangi, however, never attended school in the United States and acknowledged that she never had any intention of doing so. Ms. Mwangi now claims she entered the United States to seek asylum.

The Immigration and Naturalization Service (INS) commenced removal proceedings against Ms. Mwangi, pursuant to 8 U.S.C. § 1227(a)(1)(B), charging her with failing to maintain or comply with conditions of her non-immigrant status. She conceded her removability, but sought asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3), and protection under Article III of CAT, Dec. 10, 1984, art. 3, S. Treaty Doc. No 100-20, 20, 1465 U.N.T.S. 85, 113. Ms. Mwangi claimed she would suffer persecution upon her return to Kenya because of her participation in a drama club that performed a play for a Kenyan opposition group.

At the asylum hearing, Ms. Mwangi was the sole witness to testify on her behalf. According to Ms. Mwangi, a couple years after graduating from high school she enrolled in the Paip Computer Institute, a college in Nairobi where she joined the drama club, and later served as its chairperson. Ms. Mwangi testified that, in February 1995, her drama group performed a play entitled “Things Fall Apart” before the FORD-Asili group, a Kenyan *626 opposition party. 1 She stated that, at the conclusion of the performance, government authorities broke up the meeting as an unlicensed gathering. Upon returning to the school the following day, Ms. Mwangi testified she learned the government had arrested her drama teacher, school principal and a few of her fellow students for participation in the play.

According to Ms. Mwangi, the entire student population of more than 4,000, along with members of the public and students of other schools, protested the arrests in the streets of Nairobi. When the police arrived to quell the protests, the protesters including Ms. Mwangi, began throwing stones. At some point, as the protestors approached the parliament building, the police began firing upon the crowd, and Ms. Mwangi fled and returned to her home.

Ms. Mwangi testified she did not return to school and, in fact, the government closed the schools involved in the protests for two months after the incident. Ms. Mwangi also testified that, shortly after the demonstration, she received a letter from the High Court of Kenya requesting that she appear to testify about the incident. Ms. Mwangi testified she feared she would be arrested, so instead of appearing she went to live with her grandmother in Muranga, a town in Kenya approximately twelve hours from Nairobi. She reported no additional contact with the government during her two year stay in Muranga. 2

During her stay in Muranga, Ms. Mwan-gi twice traveled to Nairobi where she obtained a passport and a student visa. She filled out the visa application at the United States embassy in Nairobi and did not mention any fear of remaining in Kenya during an interview conducted at the time. On March 4, 1997, Ms. Mwangi departed Nairobi, Kenya, for the United States. Her passport contains an exit stamp indicating she was granted permission by local authorities to depart.

During the asylum hearing, the IJ ex-presséd concern that none of the country and human rights reports concerning conditions in Kenya reported a large demonstration in which thousands of students protested and as a result major universities had been closed. The IJ stated that “the existence of such widespread student demonstrations, or even strikes or shutdowns at schools should be something that is of public record somewhere.” The IJ also questioned Ms. Mwangi’s inability to produce the letters demanding her appearance at the High Court, especially in light of the fact she testified she intended to apply for asylum upon arriving in the United States.

To address the IJ’s concerns, the IJ provided Ms. Mwangi with five additional months to produce objective documentary evidence of her claims. Despite the five-month extension, Ms. Mwangi failed to submit any additional material to corroborate her claims. The INS did, however, submit additional evidence relevant to Ms. Mwangi’s claims. The INS produced various governmental and non-governmental reports showing student demonstrations in 1997 and 1999 while Ms. Mwangi was in the United States, but these reports contained no mention of student protests or *627 school closings in 1995 as claimed by Ms. Mwangi.

With Ms. Mwangi’s failure to produce additional objective documentary evidence of her claims, the IJ denied her request for asylum. The IJ found Ms. Mwangi had not been persecuted by the government of Kenya in the past and she has no well-founded fear of persecution in the future. Because Ms. Mwangi failed to establish eligibility for asylum, the IJ denied her request for withholding of removal, which has a higher burden of proof. The IJ further denied Ms. Mwangi’s request for relief under CAT, finding she failed to establish she would be tortured by the Kenyan government. The IJ granted Ms. Mwangi the privilege of voluntarily departing the United States. Ms. Mwangi thereafter sought review before the BIA. The BIA affirmed the IJ’s decision without opinion. This appeal follows.

II

Because the BIA affirmed without opinion, the IJ’s decision is the final agency decision for purposes of review. Wondmneh v. Ashcroft, 361 F.3d 1096, 1097 (8th Cir.2004). We review the IJ’s findings of fact, including her decision that the applicant has failed to establish eligibility for asylum, eligibility for withholding of removal or eligibility for protection under CAT using a standard equivalent to the substantial-evidence standard. Zakirov v. Ashcroft, 384 F.3d 541, 545 (8th Cir.2004). We reverse the IJ’s decision only if we find no reasonable fact-finder could arrive at the conclusions reached by the IJ. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); 8 U.S.C. §

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388 F.3d 623, 2004 U.S. App. LEXIS 23460, 2004 WL 2534027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diana-mwangi-v-john-ashcroft-attorney-general-of-the-united-states-ca8-2004.