NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

HARRISON GACHUKIA KAMAU ,

P etitioner ,
v. JEFFERSON B. SESSIONS, III , Attorney General, Respondent

. No. 13

- 7 4358 Agency No. A 089

- 303

- 39 7

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 6 , 2017 ** Seattle , Washington Before: HAWKINS, McKEOWN, and CHRISTEN , Circuit Judges: Harrison Gachukia Kamau , a native and citizen of Kenya , petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s (“IJ”) denial of his application for asylum, withholding of removal,

* 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). 

# FILED

DEC 13 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

humanitarian asylum, and protection under the Conve ntion Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny in part and dismiss in part the petition. Substantial evidence supports the BIA’s denial of relief based upon Kamau’s failure to establish both that he was a member of a particular social group and that his membership in that group was a central reason for his persecution. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b)(1). Kamau failed to explain how his identified particular social group

— Christian males from the Kikuyu tribe who oppose the Mungiki

— is recognizable in Kenyan society and, thus, has not shown that the group is socially visible and particular

. See Henriquez

- Rivas v. Holder , 707 F.3d 1081, 1088

– 91 (9th Cir. 2013) (en banc) (requiring that the shared characteristic be “generally . . . recognizable” by other members of the community and querying whether the group “can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons”)

. Even assuming that Kamau demonstrated that his group is socially visible, he has not shown that he was persecuted “on account of ” his membership in that group. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F. R. § 208.13 (b)(1). Specifically, substantial3

evidence supports the IJ’s conclusion that the Mungiki targeted him because of his economic status in the community as the owner of a matatu

— a type of minibus

. S ee Ayala v. Sessions , 855 F.3d 1012, 1020

– 21 (9th Cir. 2017) (noting that extortion qualifies as past persecution only when the extortion is motivated by a protected ground); see also Santos

- Lemus v. Mukasey , 54 2 F.3d 738, 747 (9th Cir. 2008) (“These [economic and personal] motivations do not cons titute persecution on account of political opinion.”), abrogated on other grounds by Henriquez

- Rivas , 707 F.3d at 1093

. For the same reason, substantial evidence supports the BIA’s conclusion that Kamau failed to established a well

- founded fear of future p ersecution on account of his membership in a particular group. See 8 C.F.R. § 208.13(b)(2)(i). The BIA reasoned that Kamau’s claim for withholding of removal failed because his asylum claim failed. That reasoning is inconsistent with Barajas

Romero v. Ly nch , 846 F.3d 351, 360 (9th Cir. 2017). But we need not remand because doing so would be “an idle and useless formality.” NLRB v. Wyman

– Gordon Co. , 394 U.S. 759, 766 n.6 (1969). Substantial evidence supports the agency’s f

inding that there was no nexus between Kamau’s persecution and his membership in a particular social group. Likewise, Kamau’s failure to establish past4

persecution and fear of future persecution means that his plea for humanitarian asylum also fails. 1 8 C

. F

. R

. § 208.13(b)(1)(iii); see also Hanna v. Keisler , 506 F.3d 933, 939 (9th Cir. 2007)

. Kamau has failed to carry his burden to show that it is more likely than not that he would be tortured if returned to Kenya. See Barajas

Romero , 846 F.3d at 363

– 64

. Finally, Kamau has waived his claim for persecution based on religion because he did not challenge the IJ’s decision regarding that claim when he appealed to the BIA

. C onsequently, we do not have jurisdiction to hear that claim

. See 8 U.S.C. § 1252(d)(1); Abebe v. Mukasey , 554 F.3d 1 203, 12 07

– 08 (9th Cir. 2009).
PETITION DENIED in part and DISMISSED in part .

1 Kamau argues that the BIA did not explicitly addr e ss his argument for humanitarian asylu m, but the BIA’s conclusion that Kamau failed to establish past persecution on account of a protected ground renders him ineligible for humanitarian asylum.