United States Court of Appeals For the First Circuit
Nos. 25-1340, 25-1544
WALTER WAMBUGU MUCHIRI,
Petitioner,
v.
TODD BLANCHE, Acting United States Attorney General,*
Respondent.
PETITIONS FOR REVIEW OF ORDERS OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge, Howard and Rikelman, Circuit Judges.
Chelsea Eddy, with whom Gilles Bissonnette, SangYeob Kim, and American Civil Liberties Union of New Hampshire were on brief, for petitioner. Andrea N. Gevas, Trial Attorney, Civil Division, U.S. Department of Justice, with whom Brett A. Shumate, Assistant Attorney General, Civil Division, and John S. Hogan, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Todd Blanche is automatically substituted for former Attorney General Pamela J. Bondi as appellee. June 3, 2026 BARRON, Chief Judge. Walter Wambugu Muchiri ("Muchiri")
petitions for review of two orders from the Board of Immigration
Appeals ("BIA"). The first, issued on March 7, 2025, dismissed
Muchiri's appeal of an order denying his application for asylum,
humanitarian asylum, and withholding of removal. The second,
issued on June 4, 2025, granted Muchiri's motion to reconsider the
BIA's March 7 ruling but then dismissed his appeal. We grant the
petitions for review and vacate and remand the BIA orders.
I.
On May 3, 2024, the U.S. Department of Homeland Security
("DHS") served Muchiri, a Kenyan native, with a notice to appear
at removal proceedings. The notice to appear charged Muchiri with
being subject to removal under § 237(a)(1)(B) of the Immigration
and Nationality Act for overstaying his visa. See 8 U.S.C.
§ 1227(a)(1)(B). Muchiri was ordered to appear at removal
proceedings in Chelmsford, Massachusetts, on June 3, 2024.
On September 11, 2024, the Immigration Judge ("IJ")
assigned to Muchiri's case held removal proceedings to consider
Muchiri's application for asylum, humanitarian asylum, withholding
of removal, and protection under the Convention Against Torture
("CAT"). The IJ denied the application in full.
To succeed on a claim for asylum, an applicant must show
that he "is unable or unwilling to return or to avail [himself] of
the protection of [his] own country 'because of [past] persecution
- 3 - or a well-founded fear of [future] persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.'" De Pena-Paniagua v. Barr, 957 F.3d 88, 92
(1st Cir. 2020) (quoting 8 U.S.C. § 1101(a)(42)(A)). An applicant
"must establish that he either suffered past persecution (which
creates a rebuttable presumption of future persecution) or has a
well-founded fear of future persecution." Alexandrescu v.
Mukasey, 537 F.3d 22, 25 (1st Cir. 2008).
The presumption of a well-founded fear of future
persecution "can be rebutted by a showing that conditions in the
applicant's native country have so changed that he no longer has
a well-founded fear of future persecution" such that the
"presumption disappears and the applicant is not entitled to
asylum." Chreng v. González, 471 F.3d 14, 21 (1st Cir. 2006). In
the absence of a showing of past persecution that gives rise to
the rebuttable presumption of future persecution, an applicant can
also show an "independent likelihood of future persecution."
Rodríguez-Villar v. Barr, 930 F.3d 24, 27 (1st Cir. 2019).
An applicant "who has shown past persecution but failed
to show a well-founded fear of future persecution," Escobar v.
Garland, 122 F.4th 465, 469 n.3 (1st Cir. 2024) (citation
modified), may be eligible nonetheless for humanitarian asylum.
Ordonez-Quino v. Holder, 760 F.3d 80, 93-94 (1st Cir. 2014)
(describing the "humanitarian exception"). To qualify, the
- 4 - applicant must show either "compelling reasons for being unwilling
or unable to return to the country arising out of the severity of
the past persecution" or "a reasonable possibility that he or she
may suffer other serious harm upon removal to that country." Id.
at 94 (citing 8 C.F.R. § 1208.13(b)(1)(iii)(A)-(B)).
An applicant seeking withholding of removal must show "a
clear probability that, if returned to his homeland, he will be
persecuted on account of a statutorily protected ground."
Sanchez-Vasquez v. Garland, 994 F.3d 40, 46 (1st Cir. 2021).
Withholding of removal is a more difficult standard to meet because
"[u]nlike asylum, withholding of removal requires 'a clear
probability of persecution,' as opposed to 'a well-founded fear.'"
Espinoza-Ochoa v. Garland, 89 F.4th 222, 230 (1st Cir. 2023)
(quoting Barnica-Lopez v. Garland, 59 F.4th 520, 528 (1st Cir.
2023)).
In its oral decision denying asylum to Muchiri, the IJ
found that Muchiri was credible and had successfully established
that he had suffered past persecution "on account of family." The
IJ based that finding on evidence that Muchiri put forward to show
that while in Kenya he suffered abuse at the hands of his father,
who is "a Mungiki," which is described throughout the record as a
movement, cult, tribe, gang, clan, and minority religion. The IJ
further found, however, that the government had overcome the
presumption of a well-founded fear of future persecution based on
- 5 - evidence that showed that Muchiri is an adult who is no longer
subject to his father's control and country conditions in Kenya
have changed, such that the police are now making an effort "to
combat the Mungiki group."
The IJ also denied Muchiri's claim for humanitarian
asylum. It did so on the ground that Muchiri failed to show the
required severity of past harm or a reasonable possibility of other
serious harm to warrant humanitarian asylum. The IJ further
explained that, even if Muchiri were eligible for asylum and
humanitarian asylum, he would have been denied such relief on
discretionary grounds due to his past encounters with law
enforcement in the United States.
The IJ next determined that Muchiri's failure to
establish eligibility for asylum necessarily precluded him from
meeting the higher standard for withholding of removal. The IJ
did note that, in any event, Muchiri failed to show what was
required "with respect to," in its words, "government unwilling
and unable for future harm."
On October 7, 2024, Muchiri, represented by new counsel,
appealed the IJ's order to the BIA. In his brief to the BIA,
Muchiri requested that the BIA reverse the IJ's decision denying
his various claims or remand for further proceedings if necessary.
On March 7, 2025, the BIA dismissed the appeal.
- 6 - On March 12, 2025, Muchiri filed a motion for
reconsideration of the BIA's March 7 decision and a request for an
emergency stay of removal. But, on April 7, 2025, and so before
the BIA ruled on his motion for reconsideration of its March 7
order dismissing the appeal of the IJ's order denying his various
claims for relief, Muchiri timely filed a petition for review with
this Court of the BIA's March order.1
On June 4, 2025, while Muchiri's petition for review of
that BIA order was pending in our Court, the BIA granted Muchiri's
motion for reconsideration but dismissed the appeal. The BIA
explained that it had erred in finding that Muchiri had only been
harmed by his father, "as the record shows [Muchiri] also suffered
harm from other members of the Mungiki movement." The BIA
determined, however, that all the incidents in which Muchiri had
been subjected to harm while in Kenya occurred when he was a child.
The BIA thus determined that these incidents did not undermine the
BIA's original decision to affirm the IJ's ruling based on its
"ultimate determination" that Muchiri's age and the country
conditions "support a fundamental change in circumstances
rebutting his well-founded fear of future persecution."
In ruling on the motion for reconsideration, the BIA
also declined to disturb its prior rulings affirming the IJ's
The case in which the petition for review of the BIA's 1
March 7 order was filed is number 25-1340.
- 7 - denial of Muchiri's claims for humanitarian asylum and CAT
protection. The BIA explained that, although Muchiri had suffered
harm from his father, "age mates" (whom Muchiri defined as people
his age who had already joined the Mungiki), and "other Mungiki
members," he had not established "compelling reasons relating to
this past harm or a reasonable possibility of other serious harm
warranting a grant of humanitarian asylum." (Citing Matter of
L-S-, 25 I. & N. Dec. 705, 710-14 (BIA 2012) (citation modified)).
Similarly, the BIA found that Muchiri had failed to explain how
the sources of past harm that the BIA overlooked in its first
decision, such as the other Mungiki members and Muchiri's age
mates, made Muchiri eligible for protection under the CAT because
he still had not demonstrated that he was more likely than not to
be tortured by or with the acquiescence of public officials.
The same day that the BIA issued its order granting
Muchiri's motion for reconsideration but dismissing his appeal,
Muchiri petitioned for review of that order to this Court.2 As a
result, there were then pending in our Court two separate
petitions, the first concerning the BIA's initial ruling
dismissing his appeal and the second concerning the BIA's ruling
granting Muchiri's motion for reconsideration of the earlier
2 The case in which the petition for review of the BIA's June 4 order was filed is number 25-1544.
- 8 - ruling but dismissing the appeal again. On June 25, 2025, this
Court consolidated the two petitions for review.
II.
"Although our review is focused on the final decision of
the BIA, to the extent that the BIA deferred to or adopted the
IJ's reasoning, we review those portions of the IJ's decision as
well." Mijangos v. Bondi, 167 F.4th 539, 544 (1st Cir. 2026)
(citation modified). Under the substantial evidence standard, we
"uphold factual findings . . . unless the record compels a
contrary conclusion." Ferreira v. Garland, 97 F.4th 36, 46 (1st
Cir. 2024). We review the BIA's legal conclusions de novo. Id.
III.
In his petitions for review, Muchiri contends that the
BIA erred in affirming the IJ's denial of his claims for asylum,
humanitarian asylum, and statutory withholding of removal.3 He
identifies a long list of ways in which the BIA erred;4 at bottom,
though, each asserted flaw rests on a common contention.
3 The BIA affirmed the denial of Muchiri's claim for CAT protection, but Muchiri does not challenge that ruling in his petition. 4 Muchiri identifies the following legal errors: (1) limiting
the source of the presumptive well-founded fear of future persecution to the same sources as those of past persecution; (2) incorrectly finding that DHS rebutted his well-founded fear of future persecution; (3) failing to remand to the IJ to determine whether there was past persecution on account of his ethnicity and/or imputed Mungiki membership; (4) confining its consideration of "other serious harm" to which Muchiri could be exposed, in its
- 9 - The common contention is that the BIA failed to address
his claim that he reasonably feared future persecution by Kenyan
government officials on account of either his family status or his
ethnicity. Muchiri identifies two distinct arguments within that
claim that the BIA erred by failing to address. The first is that
he could show a reasonable fear of future persecution from the
Kenyan police based on evidence in the record that the police would
presume that he was Mungiki "because of his father" and then
persecute him on that basis. The second is that he could show a
reasonable fear of persecution because the record suffices to show
that the Kenyan police would presume that he was Mungiki based on
his status as ethnically Kikuyu and then persecute him in
consequence.
A.
The government urges us to reject the petitions for
review on the straightforward ground that Muchiri simply failed to
make either the family-status-based or the ethnicity-based
consideration of humanitarian asylum, to the sources of past harm; (5) failing to consider Muchiri's claim that there was a reasonable possibility he would be seriously harmed by Kenyan officials; and (6) failing to address whether Muchiri's claims about the dangers of being presumed Mungiki formed a basis for an independent well-founded fear of future harm, even in the absence of qualifying past harm. Muchiri also argues that, even if there was no legal error, the record compels conclusions contrary to those arrived at by the BIA in determining that his family status was no longer an objective reason to fear persecution and in determining that there is no reasonable possibility that other serious harms could befall Muchiri upon his return to Kenya.
- 10 - argument for finding that he reasonably feared future persecution
from the Kenyan police and so cannot complain that the BIA did not
address either one. Generally, however, "a reviewing court should
judge the action of an administrative agency based only on
reasoning provided by the agency, and not based on grounds
constructed by the reviewing court." Yatskin v. INS, 255 F.3d 5,
9 (1st Cir. 2001). And here, because the BIA did not refer to
either argument in ruling as it did, we simply cannot tell from
the BIA's rulings whether the BIA overlooked the arguments in
question or declined to consider them because Muchiri inadequately
developed them or otherwise failed to raise them properly.
To be sure, the government argues that it is unsurprising
that the BIA did not refer in its decisions to Muchiri's claim
based on his fear of future persecution by the Kenyan police
because, in the government's view, Muchiri's briefs to the BIA did
not provide any inkling that he was pursuing such a claim. Thus,
the government contends, there can be no basis for concluding that
the BIA overlooked arguments that were never made at all. But we
cannot say that the record compels the conclusion that Muchiri in
fact waived either argument or otherwise improperly raised it,
such that we could infer, on that basis, that the BIA did not
reference either argument because of a failure in making it that
is attributable to Muchiri himself. See Hurtado v. Lynch, 810
F.3d 91, 93 (1st Cir. 2016) ("We review the denial of a motion to
- 11 - reconsider for abuse of discretion. Because the new arguments
raised in Hurtado's motion to reconsider were previously available
but not previously asserted, the BIA did not abuse its discretion
in denying his motion." (citation omitted)); see also Prabhudial
v. Holder, 780 F.3d 553, 555-56 (2d Cir. 2015) (noting both that
"[i]f the BIA elects to consider an argument that was not raised
before an IJ, we can review the argument" and that "the BIA may
refuse to consider an issue that could have been, but was not,
raised before an IJ," in which case "review is limited to whether
the BIA erred in deeming the argument waived"); cf. Sigaran v.
Barr, 970 F.3d 1, 6 (1st Cir. 2020) ("In the ordinary case, after
all, the BIA generally has substantial sua sponte authority, which
allows it to choose to address the merits of even an issue not
raised by the parties and reopen previously-decided cases.").
To that last record-based point, the record shows that
Muchiri had the following to say in the proceedings below
pertaining to the family-status-based argument for reasonably
fearing future persecution by the Kenyan police. For starters,
the record shows that, in his affidavit in support of his asylum
application, Muchiri explained that the "police who should protect
[him] are mostly involved in unlawful unrest, abductions, killings
and disappearance of citizens" and that "[t]here is no safe place
and [he] fear[s] for [his] life." It then further shows that,
during the subsequent proceedings in front of the IJ, when asked
- 12 - whom he was afraid of in addition to his father, Muchiri responded
"[his] family, [his] family relative[s], the community, and even
the police."
When we turn to what the record reveals about the
administrative appeal, we find that in his brief to the BIA,
Muchiri expressly asserted that the IJ "did not know about the
challenges that the Kenyan government faces in controlling the
Mungiki, nor the police roundups (without due process) of perceived
Mungiki, especially for political reasons around election time,
and how [he] fears that he would be presumed Mungiki because his
father forced him to attend ceremonies and drink animal blood."
And he went on in that same brief to explain that the IJ
"misunderstood not only the power of this cult . . . but
misunderstood the threats to [him] that give rise to numerous
[particular social groups] and bases for relief," and specifically
noted that "the IJ failed to recognize that the police themselves
may harm" him, which "also gives rise to that brand new [particular
social group] of perceived/presumed Mungiki."
As to what the record shows about what Muchiri had to
say in the proceedings below about the ethnicity-based argument
for reasonably fearing future persecution by the Kenyan police, we
start once again with his affidavit in support of his asylum
application. Muchiri explained in it that he is ethnically Kikuyu
and that he was expected to strictly follow Kikuyu tradition.
- 13 - Then, in his appeal to the BIA, Muchiri explained in his brief
that "[d]uring the current wave of Mungiki reemergence, police
crackdowns have included violence and unlawful detention of
imputed Mungiki members, including young men like [Muchiri] who
have been targeted as ethnic Kikuyus."
The record goes on to show that in his motion for
reconsideration to the BIA, Muchiri argued that "there has been no
fundamental change in personal circumstances around his family
status" because becoming an adult did not change his "fear" that
he would be "wrongly accused of being Mungiki on account of his
Kikuyu ethnicity" by the Kenyan police. The record also shows
that in that same motion, he argued that the country conditions
"call into question whether the government is targeting people
with false allegations of Mungiki status as a political pretext
and on account of their ethnicity." He argued in that motion that
the article the IJ cited in support of the conclusion that the
police were combatting Mungiki "calls into question . . . whether
the arrests [of suspected Mungiki] were politically motivated."
The article included allegations from a lawyer that the arrests
"were politically motivated" and that his clients "have been
criminali[z]ed just because they are young Kikuyu men."
Given these parts of the record, we cannot say that the
BIA would be barred from considering either of the arguments about
future persecution that Muchiri contends that the BIA wrongly
- 14 - failed to address. We make no ruling, however, as to whether, if,
after considering the record, the BIA properly could decide that
neither argument was adequately developed or otherwise properly
raised. We think it prudent at this stage of the proceedings to
address any dispute that may arise in that regard only after the
BIA itself has made a ruling one way or the other.
B.
We do recognize that the government makes what appears
to be a fallback argument as to why we must deny Muchiri's
petitions for review. Here, the government appears to contend
that even if Muchiri did properly raise an argument that he
contends that the BIA wrongly ignored, "the Agency already
addressed that possible argument in its discussion of the country
conditions in Kenya."5
To support that contention, the government argues as
follows. It contends that the BIA's discussion of the country
conditions -- specifically, those relating to the government's
crackdown on Mungiki members -- "illustrate[s] how the police and
Kenyan government are actively combatting the Mungiki members and
group," which the government maintains "undermine[s] Muchiri's
5 "We refer to the BIA and the IJ collectively as the 'agency.'" Murillo Morocho v. Garland, 80 F.4th 61, 63 n.1 (1st Cir. 2023).
- 15 - claim that the Agency did not consider the police in its
decisions."
The government fails to explain, though, how the BIA's
consideration of the police's efforts to combat Mungiki or its
references to police crackdowns on Mungiki members addresses the
arguments that Muchiri contends that the BIA erred by not
addressing -- that he reasonably fears future persecution based on
being presumed to be Mungiki due to either his family or ethnic
status.
The government does say that Muchiri's opposition to the
Mungiki undermines his claim that he would be targeted by the
police. But this response fails to grapple with the key portion
of the arguments that Muchiri claims that he made to the BIA but
that the BIA overlooked -- namely, that the record supportably
shows that he reasonably fears being mistakenly presumed to be
Mungiki.
The government separately asserts that the "numerous
country conditions articles do not suggest that someone like
Muchiri would be a target for the police based on the facts he
presented." But the government does not point to the BIA itself
having considered the claim that Muchiri would be targeted by the
Kenyan police. Nor are we persuaded that, if the BIA were to treat
this claim as properly before it, the record would compel the BIA
to reject it on evidentiary grounds. Cf. Silva v. Ashcroft, 394
- 16 - F.3d 1, 4-5 (1st Cir. 2005) (noting that under the substantial
evidence standard of review, "we will set aside the BIA's findings
only if, and to the extent that, 'the record evidence would compel
a reasonable factfinder to make a contrary determination'"
(quoting Aguilar-Solis v. INS., 168 F.3d 565, 569 (1st Cir.
1999))).
The government also argues that Muchiri is
simultaneously -- and so inconsistently -- "claiming that the
Kenyan government is not doing enough to combat the Mungiki" and
that "the government is doing too much in targeting the Mungiki,
which he could be considered a member of through his father." But
here, too, our underlying concern is that the BIA has not passed
on that question of imputed Mungiki membership, even though,
according to Muchiri, he asked that it do so. If Muchiri were
right on his imputed-membership claim, we do not think that
asserted inconsistency would be the kind that would compel the BIA
to reject Muchiri's claim insofar as it was properly presented.
And so, the government's argument fails to convince us that we
need not remand to the BIA so that it can clear up whether it
understands Muchiri to have made the arguments in question or not
and to give its reasons for reaching such a conclusion.
Finally, we recognize that in its March 7 decision, the
BIA stated that, because its rulings on the matters it did address
were dispositive, it was "declin[ing] to address [Muchiri's]
- 17 - remaining appellate arguments concerning the forms of relief and
protection for which [Muchiri] applies." But that statement does
not reveal whether the "remaining appellate arguments" it had in
mind were the arguments that Muchiri contends he made to the BIA
but that the BIA did not address. And, given the reasons set forth
above for our uncertainty about why the BIA made no mention of
those arguments in either of the rulings at issue, we do not see
how the BIA's orders can stand.
IV.
In sum, we conclude that the BIA's orders do not explain
the basis for rejecting the arguments about future persecution
that Muchiri contends the BIA wrongly failed to address. See Halo
v. Gonzalez, 419 F.3d 15, 18 (1st Cir. 2005) (noting that "[w]e
may remand . . . if the BIA's opinion fails to 'state with
sufficient particularity and clarity'" its reasons for denying
relief, and proceeding to vacate the BIA's order and remand the
case (quoting Gailius v. INS, 147 F.3d 34, 46 (1st Cir. 1998))).
The BIA's March 7, 2025, order, in case number 25-1340, and the
June 4, 2025, order, in case number 25-1544, are vacated and the
case is remanded to the BIA for consideration consistent with this
decision.
- 18 -