Rose Mwaniki v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 8, 2019
• Docket: 18-70172
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 08 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSE WANJIKU MWANIKI, No. 18-70172

Petitioner, Agency No. A208-933-180

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted April 10, 2019 Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District Judge.

Rose Mwaniki (Mwaniki), a native and citizen of Kenya, petitions for

review of a decision of the Board of Immigration Appeals (the Board) dismissing

her claims for asylum, cancellation of removal, withholding of removal, and relief

under the Convention Against Torture (CAT); and denying her remand motion.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and review the Board’s factual

findings for substantial evidence. See Lai v. Holder, 773 F.3d 966, 970 (9th 2014),

as amended. To reverse the Board, “we must determine that the evidence not only

supports a contrary conclusion, but compels it.” Ling Huang v. Holder, 744 F.3d

1149, 1152 (9th Cir. 2014) (citation, alteration, and internal quotation marks

omitted) (emphases in the original).

1. Mwaniki failed to address in her opening brief the denial of her asylum

claim, thereby waiving this argument. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3

(9th Cir. 2011).

2. We lack jurisdiction to review the Board’s denial of cancellation of

removal because Mwaniki raised no cognizable legal or constitutional questions

concerning the Board’s action. See Fernandez v. Gonzales, 439 F.3d 592, 596 (9th

Cir. 2006). The Board utilized the correct legal standard, and evaluated Mwaniki’s

asserted rehabilitation. See Coronado v. Holder, 759 F.3d 977, 987 (9th Cir.

2014), as amended (noting that discussion of failure of rehabilitation was

sufficient).

3. Substantial evidence supported the Board’s denial of withholding of

removal. A petitioner may demonstrate eligibility for withholding of removal by:

(1) establishing past persecution, or (2) demonstrating that it is more likely than

2 not that future persecution will occur. See Viridiana v. Holder, 646 F.3d 1230,

1239 (9th Cir. 2011). Mwaniki failed to address whether she suffered past

persecution in her opening brief, thereby waiving this argument. See Rizk, 629

F.3d at 1091 n.3.

Substantial evidence supported the Board’s conclusion that Mwaniki lacked

an objective, well-founded fear of future persecution. A petitioner may establish

an objectively reasonable fear of future persecution if: (1) it is more likely than not

that her life or freedom would be threatened upon return to that country, or (2) a

pattern or practice of persecution exists against a similarly-situated, protected

group. See Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009).

Substantial evidence supported the determination that Mwaniki is unlikely to

be subjected to future persecution because: she was not subject to past persecution

and has never been personally threatened by the Mungiki; she has not been to

Kenya in over 20 years; and some members of her family have successfully moved

to other parts of Kenya to avoid violence. See Tamang v. Holder, 598 F.3d 1083,

1094 (9th Cir. 2010). In particular, Mwaniki’s ability to relocate to Meru,

Kenya—where her mother hid from the Mungiki for over a year—undermined her

withholding of removal claim. See id. at 1091.

4. Substantial evidence supported the Board’s denial of CAT relief.

3 There was no evidence of past torture against Mwaniki, and she could relocate to

avoid any potential future torture. See Wakkary, 558 F.3d at 1068 (denying CAT

relief where showing of torture was inadequate).

5. The Board sufficiently addressed the remand motion by noting that

Mwaniki’s post-hearing evidence did not establish changed country conditions.

See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).

DISMISSED in part and DENIED in part.