United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 1, 2011*

Decided November 1, 2011

Before

DIANE P. WOOD, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 11‐2118

PATRICK AMALEMBA,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

Petition for Review of an Order of the Board

of Immigration Appeals.

No. A079 608 642

O R D E R

Patrick Amalemba, a native and citizen of Kenya, petitions for review of an order of

the Board of Immigration Appeals upholding the immigration judge’s denial of his requests

for asylum, withholding of removal, relief under the United Nations Convention Against

Torture (CAT), cancellation of removal, voluntary departure, and adjustment of status. He

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

*

After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.

34(a)(2)(C).
No. 11‐2118 Page 2

also seeks review of the Board’s denial of his motion to reopen and remand removal

proceedings. We deny the petition in part and dismiss it in part for lack of jurisdiction.

Amalemba came to the United States on a student visa in 1997 and overstayed. In

2001 he married a United States citizen. The government commenced removal proceedings

against him in 2009, charging him as an overstay, see 8 U.S.C. § 1227(a)(1)(B). During a

hearing before the IJ, Amalemba conceded removability and requested voluntary departure,

cancellation of removal, and adjustment of status. The IJ denied Amalemba’s requests and

ordered him removed. Amalemba appealed from the IJ’s decision; the BIA remanded the

case because the IJ had not discussed Amalemba’s mental competency (which had been

called into question by police reports that Amalemba had been investigated for resisting

arrest, domestic violence, and threatening to bomb the University of Notre Dame and the

South Bend airport during a visit by the President of the United States). Based on a

psychologist’s evaluation, the IJ found Amalemba competent.

While his case was on remand, Amalemba applied for asylum, withholding of

removal, and CAT protection, indicating on his Form I‐589 that he sought such relief due to

his “political opinion” and “membership in a particular social group.” During his second

merits hearing, Amalemba—appearing pro se1—testified that he is of Luhya ethnicity and

that in 1996, while he was working as an election monitor for the Electoral Commission of

Kenya, he was attacked by members of the violent Mungiki sect, who are of Kikuyu

ethnicity.2 Amalemba said that during this episode a group of Kikuyu‐speaking men

1 Amalemba was represented by counsel during earlier appearances before the IJ, but

his attorney moved to withdraw two months before the second merits hearing, explaining

that she could not build a defense for Amalemba due to the total lack of assistance from his

wife and others. The IJ granted the motion to withdraw and offered Amalemba the

opportunity to obtain other counsel before proceeding; Amalemba responded, “I will go

ahead, intelligently waive counsel, and I will represent myself.”

2 Amalemba’s tribe—the Luhya—is the second‐largest ethnic tribe in Kenya, trailing

only the Kikuyu tribe in size. See Kenya Defends Tribal Census Figures, BBC NEWS (Aug. 31,

2010), http://www.bbc.co.uk/news/world‐africa‐11143914. There has been a history of ethnic

conflict between the Luhya and Kikuyu tribes. See John O. Ouch, UNDERCURRENTS OF

ETHNIC CONFLICT IN KENYA 58 (2002). Members of the Mungiki, a sect whose name is a

Kikuyu word for “multitude,” are drawn primarily from the Kikuyu tribe and are known

for promoting female circumcision, controlling public transport routes, extorting money,

and beheading police informers; the Mungiki are believed to be linked to high‐profile

politicians. See Profile: Kenya’s Secretive Mungiki Sect, BBC NEWS (May 24, 2007),

(continued...)
No. 11‐2118 Page 3

accosted and taunted him for belonging to the Kenya African National Union (KANU) and

for being uncircumcised, as he said the Luhya typically are.3 The men then attacked him; he

testified that they burned his leg, stabbed him in the arm, and “forcibly circumcised”

him—spilling “blood all over” until he lost consciousness. He said he was taken by

bystanders to the hospital, where he was operated upon and received skin grafting for a

“gaping hole” in his “private area.” He said that newspapers reported on this attack.

After his arrival in the United States, Amalemba testified, his family members were

killed due to “ethnic violence related to politics.” His uncle, he said, was poisoned in 1998

while staying in a Kikuyu area. His brother, he testified, was shot in 2000 by a policeman

who mistook him for a Mungiki member due to his dreadlocks (a hairstyle popular among

Mungiki); the policeman who shot Amalemba’s brother was later prosecuted and convicted

for this attack. Amalemba also testified that his aunt was beaten to death in 2003 in an area

of Nairobi containing “active Mungiki members.” Finally, Amalemba testified that his

father—who always wore a pin for the KANU political party on his lapel—was found dead

in Nairobi’s city center with the pin ripped from the lapel. Amalemba stated that he feared

returning to Kenya “because of the death that my family has faced because of the politics,

and people involved in the politics threatening our family.” He also noted that his brother’s

grave had been desecrated, that threats have been made on his mother’s life, and that his

mother moved to a new home to escape the threat of violence.

Testimony was also presented by Father Patrick Wangai, Amalemba’s longtime

friend from Kenya. Wangai—who saw Amalemba’s brother’s body at the morgue—testified

that Amalemba’s brother had cut off his dreadlocks before he was killed. Wangai believed

that Amalemba’s brother was killed by a policeman hired by his supervisors after he

exposed corruption at his company. Wangai also stated that he had never seen Amalemba’s

father wearing a KANU pin and that he could not “exclusively say” that Amalemba’s father

belonged to any particular political party. He believed that Amalemba’s father was

poisoned by villagers who were jealous of his modern brick home.

2

(...continued)

http://news.bbc.co.uk/2/hi/africa/6685393.stm; see also Gautama v. Holder, 578 F.3d 611, 613

(7th Cir. 2009) (describing the Mungiki).

3 Amalemba testified that members of the Luhya tribe are typically not circumcised,

although news reports suggest that circumcision is a common practice among members of

that tribe. See Muliro Telewa, Kenyan MPs Admit to Circumcision, BBC NEWS (Sept. 23, 2008),

http://news.bbc.co.uk/2/hi/7584269.stm; Robyn Dixon, Forced Circumcision Reported in Kenya,

LOS ANGELES TIMES (Jan. 9, 2008), http://articles.latimes.com/2008/jan/09/world/fg‐

circumcision9.
No. 11‐2118 Page 4

The IJ denied Amalemba’s requests for relief. In denying his requests for asylum and

withholding of removal, the IJ found Amalemba not credible, noting material discrepancies

between his and Wangai’s testimony over the circumstances surrounding his brother’s and

father’s deaths. Because Amalemba failed to provide corroborating evidence—such as

medical records and newspaper articles concerning his alleged 1996 attack, death

certificates for his family members, transcripts from the trial of his brother’s murderer, or

sworn affidavits from family members—despite earlier instructions to do so, the IJ

concluded that Amalemba could not prove that he suffered harm in the alleged attack; that

a “nexus” existed between past harm and a protected ground; or that he had a well‐founded

fear of future persecution. The IJ also denied CAT protection, finding no evidence that

Amalemba would likely face torture if he were removed to Kenya. The IJ also denied

Amalemba’s request for cancellation of removal on grounds that he had not shown that his

wife would suffer “exceptional hardship” if he were removed. Alternatively, the IJ denied

Amalemba’s request for cancellation, along with his applications for adjustment of status

and voluntary departure, as an exercise of discretion in light of the police reports that he

had been investigated for resisting arrest, domestic violence, and making threats.

Amalemba appealed to the BIA, primarily arguing that the IJ erred in finding him

not credible and violated his due‐process rights by considering the police reports. He

subsequently submitted a motion to reopen and remand his case for consideration of new

evidence—including transcripts from the trial of his brother’s murderer from the Kisumu

High Court (Kenya), his brother’s autopsy report, his father’s death certificate, a sworn

declaration from his mother, and newspaper articles about political conflict in Kenya—that

he had submitted with his appeal brief. The BIA upheld the IJ’s rulings and denied

Amalemba’s motion to reopen, concluding that Amalemba had not shown that any of this

new evidence was previously unavailable, that it would alter the outcome of his case, or

that it demonstrated prima facie eligibility for the relief sought.

In his petition for review, Amalemba first argues that the IJ and BIA erred in

rejecting his claims for asylum and withholding of removal on the basis of an adverse

credibility determination. He urges that the credibility assessment was based on

“inadvertent” misstatements about his brother’s and father’s deaths and “easily explained

discrepancies” between his and Wangai’s testimony, and he argues that he was not given a

chance to explain these inconsistencies.

We review deferentially the IJ’s and BIA’s credibility determinations, Hassan v.

Holder, 571 F.3d 631, 637 (7th Cir. 2009), and here the agency’s adverse credibility finding is

supported by specific, cogent reasons—significant discrepancies between Amalemba’s and

Wangai’s testimony relating to the circumstances surrounding the deaths of Amalemba’s
No. 11‐2118 Page 5

father and brother. In his brief, Amalemba does not resolve the discrepant testimony, but

instead concedes that he was mistaken in believing that his brother had dreadlocks at the

time of his death. Additionally, the new assertion in his brief that his brother was killed by a

“policeman hired by a politician with ties to the Mungiki” is not reflected anywhere in the

administrative record and we may not consider it. See 8 U.S.C. § 1252(b)(4)(A). Moreover,

the record belies his contention that he had no opportunity to resolve the inconsistencies

before the IJ; he conducted a redirect examination of Wangai, and when the IJ asked at the

end of the hearing whether there was anything else he wanted to address, he replied no.

Because Amalemba never resolved the inconsistent testimony during the administrative

process, the IJ and Board reasonably rejected his testimony as not credible.

Amalemba also argues that the IJ erred in determining that he did not provide

reasonably available corroborating evidence, pointing to the documents that he submitted

to the BIA. But Amalemba did not present these documents to the IJ; he testified that he left

some documents at his home in Indiana and that others could not be timely obtained due to

his pre‐hearing detention, but he did not explain why his wife or Wangai could not have

helped him obtain these documents. Under these circumstances, and given the burden of

proof on Amalemba, see 8 U.S.C. § 1158(b)(1)(B)(I), the IJ did not err in holding that

corroborating evidence was reasonably obtainable and that Amalemba failed to meet his

burden of proof. See id. § 1252(b)(4).

Next Amalemba argues that the IJ and BIA erred in rejecting his claim for CAT

protection; he contends that the Mungiki has inflicted “mental torture” upon him by killing

his family and desecrating their graves, removing his father’s KANU pin, and threatening

his mother’s life. He asserts that the Kenyan government would acquiesce in this torture

because the Mungiki who have infiltrated the government continue to threaten his family.

He also argues that the Mungiki have “infiltrated the police and have committed arbitrary

and unlawful killings.” But Amalemba points to no evidence in the record that compels the

finding that he, in particular, would likely be tortured if removed to Kenya, as required for

CAT relief. See 8 C.F.R. § 1208.16(c)(2); Toure v. Holder, 624 F.3d 422, 429 (7th Cir. 2010).

Amalemba also asserts that the agency abused its discretion in denying his

applications for cancellation of removal, adjustment of status, and voluntary departure. He

says that these discretionary determinations deprived him of due process because (1) the IJ

was biased against him in crediting the police reports, (2) he was not allowed to cross‐

examine the public officials who drafted these reports, (3) these reports were not probative

because they did not lead to criminal charges or conviction, (4) he could not adequately

prepare for his case while he was detained, and (5) he was not competent to participate in

the hearings due to his lack of medication for a mood disorder.
No. 11‐2118 Page 6

We lack jurisdiction to consider these denials of discretionary relief from removal,

unless Amalemba raises a constitutional claim or a question of law. 8 U.S.C.

§ 1252(a)(2)(B)(i), (a)(2)(D); Ward v. Holder, 632 F.3d 395, 397 (7th Cir. 2011); Jarad v. Gonzales,

461 F.3d 867, 869 (7th Cir. 2006). Amalemba broadly invoked a due‐process claim, but this

argument fails because he has no liberty or property interest under the Due Process Clause in

obtaining purely discretionary relief from removal. See Moosa v. Holder, 644 F.3d 380, 385 (7th

Cir. 2011); Bakarian v. Mukasey, 541 F.3d 775, 785 (7th Cir. 2008).

Finally, Amalemba contends that the BIA abused its discretion in denying his motion

to reopen because, in his view, he introduced ample evidence that was new and material,

including trial transcripts from the Kisumu High Court, his brother’s autopsy report, his

father’s death certificate, a sworn declaration from his mother, and newspaper articles. But

the Board properly exercised its discretion in denying the motion because he did not show

that the evidence was unavailable, that it would alter the outcome of the case, or that it

established a prima facie case for asylum, withholding of removal, or CAT protection. See 8

C.F.R. § 1003.2(c)(1); Victor v. Holder, 616 F.3d 705, 710 (7th Cir. 2010).

We DENY Amalemba’s petition for review of the agency’s denial of his requests for

asylum, withholding of removal, CAT relief, and his motion to reopen and remand removal

proceedings. We DISMISS for lack of jurisdiction the petition for review of the agency’s

denial of cancellation of removal, voluntary departure, and adjustment of status.