Lucy Maina v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2018
• Docket: 14-71630
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUCY WANGARI MAINA, No. 14-71630

Petitioner, Agency No. A087-828-905

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted July 10, 2018** Seattle, Washington

Before: FERNANDEZ and NGUYEN, Circuit Judges, and RAKOFF,*** District Judge.

Lucy Maina, a native and citizen of Kenya, petitions for review of a Board

of Immigration Appeals (BIA) decision affirming the denial of her application for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. asylum. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the

petition.

1. Substantial evidence supports the BIA’s finding that Maina did not

suffer past persecution. Maina does not claim to have been physically harmed in

Kenya but argues that her arrest and detention by Kenyan police and her mother

fleeing due to threats from the village elders and the Mungiki were psychologically

traumatizing. While these experiences were undoubtedly scary, especially for a

thirteen year old girl, the record does not compel the conclusion that they gave rise

to the type of “extreme” and “offensive” “suffering or harm” that constitutes

persecution. See Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc).

Maina testified that “nothing bad” happened to her during her arrest, and there is

no evidence that Maina witnessed anyone threatening or harming her mother. See

Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001) (finding substantial evidence

supported the BIA’s finding of no past persecution where the petitioner “was

detained for a period of five or six days” but “was not beaten, tortured, or

threatened” during the detention); cf. Hernandez-Ortiz v. Gonzales, 496 F.3d 1042,

1044–46 (9th Cir. 2007) (reversing the BIA’s finding of no past persecution where

“soldiers came in the night” to the petitioners’ house when they were young and

beat and kidnapped their father).

2. The evidence does not compel the conclusion that Maina has a well-

2 founded fear of future persecution. Maina fears she will be subjected to female

genital mutilation (FGM) by the Mungiki because she is a Christian Kikuyu

woman and in retaliation for her mother’s teachings. FGM has been outlawed in

Kenya, not all Kikuyu men believe in the practice, about one-third of Kikuyu

women have undergone FGM, and it is traditionally performed on young girls.

This evidence supports the BIA’s conclusion that Maina is unlikely to be subjected

to FGM because she is a Kikuyu Christian woman. And, there is no evidence to

suggest that the Mungiki would target Maina in retaliation for her mother’s

activism since they have never threatened or harmed her before and she is no

longer in contact with her mother.

3. Maina is not eligible for asylum if she “could avoid future persecution

by relocating to another part of” Kenya and “it would be reasonable to expect [her]

to do so.” 8 C.F.R. § 208.13(b)(1)(i)(B), (2)(ii). The BIA’s finding that Maina

could reasonably relocate within Kenya is supported by the record because after

her mother fled, Maina lived with friends in Nairobi without incident.

4. Maina could have, but did not, present to the BIA her claim that the

immigration judge’s failure to consider her age at the time she was arrested and her

mother fled violated her due process rights. We thus lack jurisdiction over that

claim on appeal. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).

PETITION DENIED.