Serah Karingithi v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 28, 2019
• Docket: 16-70885
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SERAH NJOKI KARINGITHI, No. 16-70885

Petitioner, Agency No. A087-020-992

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Argued and Submitted October 11, 2018 San Francisco, California

Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.

Serah Njoki Karingithi petitions for review of the Board of Immigration

Appeals’ (“BIA”) decision denying her applications for asylum and withholding of

removal. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and deny the petition.1

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 We address Karingithi’s contention that the Immigration Court lacked jurisdiction in this matter in an Opinion filed contemporaneously with this memorandum disposition. The BIA correctly found that Karingithi was ineligible for asylum because

her application was filed more than a year after she entered the United States. See

8 U.S.C. § 1158(a)(2)(B). Karingithi’s plan to obtain other lawful immigration

status was not an “extraordinary circumstance” excusing her late filing. See

8 U.S.C. § 1158(a)(2)(D). None of the examples of extraordinary circumstances

listed at 8 C.F.R. § 1208.4(a)(5) include planning to apply for a visa or adjustment

of status, nor is such a plan “of a similar nature or seriousness” as the enumerated

examples. Gasparyan v. Holder, 707 F.3d 1130, 1135 (9th Cir. 2013).

Substantial evidence supports the BIA’s conclusion that Karingithi was

ineligible for withholding of removal. See Sanjaa v. Sessions, 863 F.3d 1161,

1164 (9th Cir. 2017). At most, Karingithi established she was subject to

“unfulfilled threats,” which does not compel the conclusion that she was subject to

past persecution. Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000). And while there

is no doubt “that female genital mutilation constitutes persecution,” Benyamin v.

Holder, 579 F.3d 970, 976 (9th Cir. 2009), Karingithi has not shown a “clear

probability” that she will be subject to female genital mutilation upon return to

Kenya, see Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014).

PETITION DENIED.