United States Court of Appeals For the First Circuit No. 18-1470
MICHAEL MACHARIA ZHAKIRA,
Petitioner,
v.
WILLIAM P. BARR, United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge, Souter, Associate Justice, and Lipez, Circuit Judge.
John J. Loscocco, with whom Ashley M. Barkoudah and Barker, Epstein & Loscocco were on brief, for petitioner. Sharon M. Clay, with whom Joseph H. Hunt, Assistant Attorney General; Carl McIntyre, Assistant Director, U.S. Department of Justice, Office of Immigration Litigation; and Nancy E. Friedman, Senior Litigation Counsel, U.S. Department of Justice, Office of Immigration Litigation, were on brief, for appellee.
October 2, 2020
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. LIPEZ, Circuit Judge. Petitioner Michael Macharia
Zhakira, a native and citizen of Kenya, seeks review of a final
order of the Board of Immigration Appeals ("BIA") denying his
applications for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"). An immigration judge
("IJ") concluded that Zhakira failed to establish either a well-
founded fear of persecution based on a protected ground, as
required for asylum and withholding of removal, or the likelihood
of officially sanctioned torture, required for CAT relief. The
BIA dismissed the appeal and, after granting Zhakira's motion for
reconsideration, reaffirmed its initial ruling. Zhakira asserts
that the IJ and BIA erred, inter alia, in finding that terror
attacks in Kenya by the group Al-Shabaab constituted generalized
violence and in rejecting his proposed social group of
westernized/Americanized Christian Kenyans who oppose Al-Shabaab.
Finding Zhakira's contentions unavailing, we deny his petition for
review.
I.
A. Factual Background
Zhakira arrived in the United States in 2005 to
participate in a dairy farming exchange program. He overstayed
his visa after completing the program because he could not afford
to travel home. Zhakira is not married, but he has three children
who are United States citizens.
- 2 - In 2014, after Zhakira was placed in removal
proceedings, he sought asylum, withholding of removal, and
protection under the CAT.1 In an affidavit submitted with his
application, Zhakira stated that he sought asylum "because I fear
political and religious persecution in Kenya by Al-Shabaab
terrorists on account of my Christianity and my support for the
efforts of Kenya and the US against Al-Shabaab." He further noted
that, "[a]s a person present in the US for over ten years, who has
American children, I will be closely associated with the USA,
further increasing the risk of my being harmed by Al-Shabaab
terrorists."
At his immigration hearing in 2016, Zhakira reported
that he grew up as a Presbyterian Christian, regularly attending
church, and that he continued to practice his religion in the
United States. He became worried about returning to Kenya after
a series of widely publicized terrorist attacks by Al-Shabaab.
Zhakaira testified that in at least two of the attacks -- at a
Nairobi mall, where sixty-seven people were killed, and at a
college in Garissa, where roughly 150 people died -- the only
individuals spared were Muslims who could recite verses from the
1 Although Zhakira's application for asylum was untimely because it was filed more than a year after his entry into the United States, see 8 U.S.C. § 1158(a)(2)(B), the IJ excused the tardiness because of changed country conditions, see id. § 1158(a)(2)(D) -- specifically, the escalating terrorist activity by the group Al-Shabaab.
- 3 - Koran. Zhakira reported that his family members who remain in
Kenya and practice Christianity "live in constant fear" of Al-
Shabaab. Oral Decision of the IJ, at 3.2
B. The IJ's Decision
The IJ found Zhakira credible, but she concluded that
his fear of being targeted by Al-Shabaab was not well-founded.
The IJ noted that Zhakira's parents and sister had not been harmed
despite their practice of Christianity, and she observed that
"general conditions of violence and civil unrest affecting Kenya
as a whole are not cognizable grounds for persecution claims."
The IJ rejected Zhakira's contention that he would be targeted
because he had been in the United States for ten years and had
U.S.-citizen children. The IJ found that those characteristics do
not define a particular and distinct social group within Kenyan
society sufficient to warrant protection under the Immigration and
Naturalization Act ("INA"). Accordingly, the IJ held that Zhakira
had not established either a well-founded fear of persecution based
on a protected ground, disqualifying him for asylum, or the clear
probability of future persecution required for withholding of
removal.
2 Zhakira reported, however, that his father was badly beaten and his home was burned in 2008 when he was attacked by the Mungiki group -- unrelated to Al-Shabaab -- "because of his Christianity."
- 4 - The IJ further concluded that Zhakira had not
established that it was more likely than not that he would be
subject to torture, "let alone that the Kenyan government would
instigate, consent, acquiesce, or turn a blind eye to such
torture," as required by the CAT. Although acknowledging Al-
Shabaab's terrorist activity, the IJ noted that the Department of
State's Human Rights Report stated that security forces had
attempted to drive Al-Shabaab militants out of Kenya. The IJ thus
determined that Zhakira is not entitled to protection under the
CAT.
C. Appeal to the BIA
1. Petitioner's Claims of Error
In his brief on appeal to the BIA, Zhakira identified
three primary errors by the IJ: (1) the failure to address his
claim that he has a well-founded fear of persecution based on his
political opinion, (2) mistaken reliance on his family's lack of
harm in finding that Zhakira's fear of religious persecution was
not well-founded, and (3) mischaracterization of his religious
persecution claim as a claim based on membership in a "social group
of individuals present in the US for ten years who have US citizen
children."
Zhakira emphasized that, in both his application and
testimony before the IJ, he consistently stated his fear that he
would be targeted as a supporter of "the alliance of countries,
- 5 - including Kenya, that are actively opposing Al-Shabaab's campaign
to impose Sharia law on Somalia," and he argued that the evidence
in the record "documents that a political motive is at least one
central reason for the harm feared." He noted that he is not
required to show that he would be singled out for persecution
because the record shows a pattern or practice of persecution
against those similarly situated to him, i.e., individuals "who
oppose [Al-Shabaab's] activities in Somalia as well as those
associated with Christian and western interests." Moreover, he
asserted, voluminous evidence in the record detailing Al-Shabaab's
attacks throughout Kenya "demonstrate[s] that the government is
unable to control Al-Shabaab." Zhakira asserted that his family's
avoidance of violence thus far -- despite their practice of
Christianity -- does not undermine his claim to a well-founded
fear of future persecution based on his own religious practice.
Zhakira also objected to the IJ's characterization of
his claim as based on a particular social group and stated that
his reliance on his U.S. connections simply "informed the asylum
claims he made based on his actual political opinions and those
that would be imputed to him, as well as on the basis of his
Christianity." Zhakira nonetheless went on to argue that, "even
analyzed under the particular social group theory, he has asserted
a well-founded fear of persecution."
- 6 - 2. The BIA's Initial Decision
In affirming the IJ's ruling, the BIA largely echoed the
IJ's reasoning. Despite Zhakira's assertion that he had not
claimed fear of persecution based on a social group, the BIA
concluded that he had done so, in effect, by arguing that he would
be targeted by Al-Shabaab "due to his western manner, his time in
the United States and his United States citizen children." The
BIA agreed with the IJ that such a social group lacks both the
requisite particularity and social distinction to be cognizable.
However, in its discussion of the social group claim, the BIA
erroneously included a sentence that is plainly inapplicable to
Zhakira's circumstances, stating that the evidence does not
support the social distinction of a group comprised of "Kenyan
women who lack the presence of an adult male, such as a boyfriend,
husband, or father, to offer protection."
With respect to Zhakira's religion-based claim, the BIA
acknowledged Al-Shabaab's terrorist activity in Kenya aimed at
non-Muslims, but it noted that 82 percent of Kenya's population is
Christian and that "the isolated attacks, though horrific, do not
support the respondent's claim that he will face persecution or
that there is a pattern or practice of persecution of Christians
in Kenya." The panel also found that the record "does not show
the inability or an unwillingness on the part of the government to
stop" the "large number of attacks" by Al-Shabaab.
- 7 - The BIA found no error in the IJ's failure to address
Zhakira's political opinion as a basis for asylum, concluding that
he did not develop such a claim separate from his religion-based
claim. Moreover, the BIA stated, the record lacks evidence that
Zhakira has been politically active against Al-Shabaab "or that
the terrorists have any interest in him in this regard." Finally,
the BIA agreed with the IJ that Zhakira had not shown eligibility
for CAT relief.
3. Zhakira's Motion to Reconsider
Acquiescing to the agency's determination that he had
presented a social-group claim, Zhakira argued in his motion to
reconsider that the BIA had clearly erred in finding that his
proposed group was not cognizable under the INA. He noted the
clear misstatement concerning females who lack male support and
disputed the BIA's characterization of his social group as limited
to westernized males with or without U.S.-citizen children.
Rather, he argued, his application and testimony established that
he fears persecution on account of being a
"westernized/Americanized Christian who supports the international
campaign against the Al Shabaab terrorists." He asserted that
"[t]he record . . . is replete with examples of Al-Shabaab
targeting for attack those associated with Western education, with
Christianity, with being unable to recite Koranic verses, with
- 8 - believing in the UN mission in Somalia against Al-Shabaab in which
Kenya plays a vital role."
Zhakira also challenged the agency's rejection of his
evidence showing that Al-Shabaab was engaging in a pattern or
practice of persecuting Christians, its finding that he fears
generalized violence rather than targeted harm, and its
determination that he failed to show that the Kenyan government is
unwilling or unable to protect him from Al-Shabaab. On the latter
point, he noted that, despite international efforts to stop Al-
Shabaab, the group has been able to increase its attacks against
non-Muslim and western targets in Kenya. Finally, Zhakira argued
that the BIA clearly erred in stating that he had insufficiently
developed a claim based on his political opinion.
4. BIA Decision on Reconsideration
The BIA granted Zhakira's motion to reconsider and
corrected its obvious error in referencing Kenyan women. In all
other respects, however, it reaffirmed its earlier decision,
noting in a footnote that it declined to reconsider most of
Zhakira's arguments. However, the BIA readdressed the claim of a
particularized social group. It noted that Zhakira had complained
that the BIA's previous decision failed to consider a social group
that reflected his religion and opposition to Al-Shabaab as well
as his status as a westernized male. In response, the BIA first
observed that Zhakira had not specified any social group before
- 9 - the IJ or on appeal. It then explained that neither his religion
nor his political opposition to Al-Shabaab remedied the lack of
particularity or social distinction of his claimed social group.
Again referencing Kenya's 82-percent Christian population, the BIA
stated that Zhakira's religion does not make his proposed social
group sufficiently distinct or particular within Kenya, and his
lack of observable political activity there means that he would
not "be more noticeable than any other Christian Kenyan, either to
the group or to the population in general."
Accordingly, the BIA dismissed Zhakira's appeal and,
pursuant to the IJ's order, granted him voluntary departure.
II. Discussion
A. Standard of Review
Where, as here, the Board affirms "and further
justifies the IJ's conclusions," we review both the BIA's and IJ's
rulings. Ramírez-Pérez v. Barr, 934 F.3d 47, 50 (1st Cir. 2019)
(quoting Nako v. Holder, 611 F.3d 45, 48 (1st Cir. 2010)). We
assess the agency's legal determinations de novo and its "factual
findings under the deferential 'substantial evidence standard,'
meaning that we will not disturb such findings if they are
'supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Id. (quoting Rivas-Durán v.
Barr, 927 F.3d 26, 30 (1st Cir. 2019)).
- 10 - B. Asylum Relief
To establish eligibility for asylum, a petitioner must
prove that he is "unable or unwilling" to return to his home
country "because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A). The necessary showing is two-pronged: Zhakira
must establish both that he "genuinely fears future persecution"
based on a statutory ground and that his fear is objectively
reasonable. Martínez-Pérez v. Sessions, 897 F.3d 33, 39 (1st Cir.
2018) (quoting Carvalho-Frois v. Holder, 667 F.3d 69, 72 (1st Cir.
2012)).3
As noted above, Zhakira initially resisted the agency's
assessment that he had relied on membership in a social group as
one basis for relief. In his petition to this court, however,
Zhakira asserts eligibility for asylum based on three grounds: his
Christian religion, his political opposition to Al-Shabaab, and a
social group that includes both of those attributes --
westernized/Americanized Christians who support the international
campaign against Al-Shabab. We consider each in turn.
3A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. See Martínez-Pérez, 897 F.3d at 39. Zhakira does not claim that he was persecuted in the past.
- 11 - 1. Religion. Zhakira presented a considerable amount of
evidence showing that, in Al-Shabaab's terrorist attacks,
Christians were targeted and Muslims were spared. The IJ and BIA
nonetheless found that Zhakira had failed to show either a pattern
or practice of persecution of Christian Kenyans or "an
individualized risk on this basis." Zhakira has not reiterated a
pattern-or-practice argument to this court, and we therefore do
not consider that rationale.
With respect to the fear of targeted religious
persecution, we find no basis for overturning the IJ's and BIA's
conclusion that Zhakira failed to make a showing adequate to
warrant relief. The BIA stated that the IJ had properly considered
that Zhakira's family, "also Christians, live without problem in
[his] home town." The BIA further observed that 82 percent of
Kenyans are Christian "and, for the most part live without problems
with Al Shabaab."
We do not minimize Zhakira's and his family's ongoing
fear of a terrorist attack, which was acknowledged by the IJ.
Nonetheless, the IJ and BIA supportably found that, with respect
to his religion, Zhakira has not differentiated himself from his
family members who have not been directly threatened or harmed, or
from the majority of Kenyans who also are Christians and have
similarly experienced no persecution. See, e.g., Aguilar-Solis v.
INS, 168 F.3d 565, 573 (1st Cir. 1999) (noting that "petitioner
- 12 - has not provided a satisfactory differentiation of his situation
from that of his siblings," and that, "[w]ithout some explanation,
the fact that close relatives continue to live peacefully in the
alien's homeland undercuts the alien's claim that persecution
awaits his return"). Accordingly, we conclude that substantial
evidence supports the agency's rejection of Zhakira's petition for
asylum based on religion.
2. Political Opinion. Zhakira argues that his support
for governmental efforts to fight Al-Shabaab exposes him to a
likely risk of future persecution sufficient to render him eligible
for asylum. He maintains that, in addition to his actual
opposition to Al-Shabaab, the terrorist group will impute such a
political view to him because of his long residency in the United
States.
The BIA aptly observed that Zhakira never fully
developed a distinct political-opinion claim separate from his
contention that he faced a likelihood of persecution as a Christian
with ties to the United States. That lack of development continues
in his briefing to this court. In a roughly one-page discussion,
Zhakira asserts that "he possesses the political opinion of
supporting the Kenyan government's unsuccessful attempts at
ridding the country of Al-Shabaab," Petitioner's Br. at 19, but he
acknowledges that he has taken "no actual political action," id.,
and he identifies no evidence indicating that Al-Shabaab would be
- 13 - aware of his political views and "target[] [him] for that reason."
Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010).
Accordingly, there is no basis for overturning the agency's
rejection of Zhakira's asylum claim based on his political opinion.
3. Social Group. To establish a right to asylum based
on membership in a social group, a petitioner must show that the
specified group is (1) composed of individuals "'who share a common
immutable characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question.'" Ramírez-
Pérez, 934 F.3d at 51 (quoting Rivas-Durán, 927 F.3d at 30-31).
"Particularity" means that "the group is 'discrete and ha[s]
definable boundaries -- it must not be amorphous, overbroad,
diffuse or subjective.'" Id. (alteration in original) (quoting
Paiz-Morales v. Lynch, 795 F3d 238, 244 (1st Cir. 2015)). The
"social distinction" requirement "refers to 'whether those with a
common immutable characteristic are set apart, or distinct, from
other persons within the society in some significant way.'" Id.
(quoting Rivas-Durán, 927 F.3d at 31).
As noted, Zhakira identifies his proposed social group
as "westernized/Americanized Christians supporting the
international campaign against Al-Shabaab." Petitioner's Br. at
15; see also id. at 4. The BIA concluded that this group possessed
neither particularity nor social distinction and, hence, is "too
amorphous to be cognizable under the INA." Zhakira's challenge to
- 14 - that determination could be deemed waived. After stating in his
brief that "[h]is westernized/Americanized Christian status cannot
be changed and is immutable," Zhakira summarily asserts: "This
status is also socially visible and sufficiently particular." Id.
at 23. We nonetheless briefly address the social-group claim,
which can be resolved based solely on Zhakira's failure to satisfy
the particularity requirement. See, e.g., Aguilar-De Guillen v.
Sessions, 902 F.3d 28, 36 (1st Cir. 2018) (holding that petitioner
does not qualify for asylum based on membership in a social group
"because she does not meet the particularity requirement").
Zhakira does not explain what attributes make an
individual "westernized" or "Americanized," and, as framed, the
proposed group is not limited to those who have lived in the United
States.4 The "westernized/Americanized" characteristic is thus
open to varying, subjective interpretations. See, e.g., Ahmed v.
Holder, 611 F.3d 90, 95 (1st Cir. 2010) ("Adjectives like
'secularized' and 'westernized' reflect matters of degree and, in
the last analysis, such adjectives call for subjective value
judgments."). Indeed, the classification could include both
grade-school children and retirees -- i.e., any Christian able to
4 At oral argument, Zhakira's counsel seemed to suggest that Zhakira's proposed group consists only of Christian Kenyans who return to Kenya after lengthy residency in the United States and who also have U.S.-citizen children. However, that is not the group he identifies in his brief and, accordingly, we do not consider those chacteristics.
- 15 - form an opinion opposing Al-Shabaab's violence who manifests, in
unspecified ways, "western" or "American" affinity. Briefly put,
Zhakira's proposed group "lacks definable boundaries and 'is by
definition too amorphous and overbroad to be particular.'"
Ramirez-Pérez, 934 F.3d at 51 (quoting Paiz-Morales, 795 F.3d at
244).
Hence, Zhakira has not demonstrated entitlement to
asylum based on a cognizable social group.
C. Withholding from Removal and CAT Relief
To be eligible for withholding of removal, Zhakira would
have to "show that it is 'more likely than not' that he would be
persecuted on account of a protected ground if repatriated." Yong
Gao v. Barr, 950 F.3d 147, 154 (1st Cir. 2020) (quoting 8 C.F.R.
§ 1208.16(b)(2)). We have repeatedly observed that "[a]
petitioner who cannot clear the lower hurdle for asylum will
necessarily fail to meet the higher bar for withholding of
removal." Paiz-Morales, 795 F.3d at 245. Our resolution of
Zhakira's asylum claim thus "also disposes of [his] withholding of
removal claim." Ramírez-Pérez, 934 F.3d at 52. Zhakira presents
essentially no argument on the denial of his request for CAT
protection, and we therefore deem that claim waived.
For the foregoing reasons, the petition for review is
denied. So ordered.
- 16 -