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United States Court of Appeals

Fifth Circuit

FILED

June 7, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60391

 

ANNIE NDUTA THURI

Petitioner

v.

JOHN ASHCROFT, US ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

PER CURIAM:

Petitioner Annie Nduta Thuri seeks review of an order of the

Board of Immigration Appeals, which summarily affirmed the

Immigration Judge’s decision ordering that Thuri be removed. 

Because we agree that Thuri is not eligible for asylum or

withholding of removal, we deny the petition for review.

Police officers in Thuri’s native country of Kenya raped and

physically abused Thuri after her father reported the officers to

local authorities for hijacking a truckload of goods that he was

driving. Fearing further abuse, Thuri fled Kenya in November

1999. While en route to the United Kingdom, she passed through

Dallas, Texas. When she subsequently arrived in the U.K.,
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British immigration authorities determined that she had passed

through a safe third country (the United States) during her

journey there. Thuri was sent back to Dallas, where the INS

detained her.

In February 2000, the government instituted removal

proceedings against Thuri. She admitted entering the country

without proper documentation, as proscribed by § 212 of the

Immigration and Nationality Act (INA), 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), thereby conceding her inadmissibility and

her removability. Thuri sought asylum under INA § 208, 8 U.S.C.

§ 1158, which confers discretion on the Attorney General to grant

asylum to “refugees.” 8 U.S.C. § 1158(b)(1). A refugee is an

individual who is outside of her country and is unable or

unwilling to return “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.” 

Id. § 1101(a)(42)(A). In addition, Thuri requested withholding

of removal under § 241 of the INA, 8 U.S.C. § 1231(b)(3)(A),

which is available on similar grounds but requires a more

stringent showing that the alien will probably be persecuted if

removed to a certain country, see Efe v. Ashcroft, 293 F.3d 899,

906 (5th Cir. 2002). Finally, Thuri applied for relief under

Article 3 of the United Nations Convention Against Torture and

Other Forms of Cruel, Inhuman or Degrading Treatment or

Punishment, as implemented by 8 C.F.R. §§ 208.16-.18, which
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relief is available to one who can demonstrate that she will

probably be tortured in the country of removal. Id.

§ 208.16(c)(2).

In September 2000, the IJ denied Thuri’s applications for

asylum and withholding of removal and her request for relief

under the Convention Against Torture. While the IJ found Thuri’s

testimony of the events surrounding her rape to be credible, he

concluded that she should not be granted asylum or withholding of

removal because she had not established that the officers

persecuted her “on account of” any political opinion held by her

or imputed to her. In the IJ’s view, Thuri’s rapists were

criminals motivated by personal reasons unrelated to any

political belief held by Thuri or her father. Further, the IJ

rejected Thuri’s claim under the Convention Against Torture

because she had not shown that it is more likely than not that

she will be tortured if she returns to Kenya.

The IJ ordered that Thuri be removed to Kenya. In April

2003, a single judge of the Board of Immigration Appeals affirmed

without opinion, in accordance with 8 C.F.R. § 1003.1(e)(4).

Thuri filed a petition for review of the BIA’s final order under

INA § 242(a), 8 U.S.C. § 1252(a) (providing for judicial review

of orders of removal).

“Although this Court generally reviews decisions of the BIA,

not immigration judges, it may review an immigration judge’s

decision when, as here, the BIA affirms without additional
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explanation.” Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.

2003). “In either case, this Court must affirm the decision if

there is no error of law and if reasonable, substantial, and

probative evidence on the record, considered as a whole, supports

the decision’s factual findings.” Id. Moreover, under INA

§ 242, “administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B).

In Thuri’s initial brief to this court, she contends that

the IJ’s determination that she was not persecuted “on account of

. . . political opinion” is a legal conclusion, which this court

should review de novo. This assertion is inaccurate. As a

general matter, the determination that an alien is not eligible

for consideration for asylum is a factual conclusion reviewed

under the substantial-evidence standard. See Zamora-Morel v.

INS, 905 F.2d 833, 838 (5th Cir. 1990); see also Ozdemir v. INS,

46 F.3d 6, 7-8 (5th Cir. 1994) (per curiam). Further, the more

specific question whether an alien has demonstrated the requisite

nexus between persecution and political opinion is a question of

fact reviewed for substantial evidence. See Ontunez-Tursios v.

Ashcroft, 303 F.3d 341, 350-51 (5th Cir. 2002).

In arguing to the contrary, Thuri cites the Ninth Circuit’s

decision in Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir.

2000). But, there, the court only held that what constitutes “a

particular social group” within the meaning of the definition of
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a refugee in the INA is a question of law. Id. at 1091. By

contrast, the Hernandez-Montiel court made clear that the issues

of whether the alien is a member of that social group and whether

he was persecuted on account of that membership are factual in

nature. Id. at 1091, 1095-97.

Apparently conceding that substantial-evidence review is

generally appropriate here, Thuri switches tactics in her

response to the government’s motion for summary denial. There,

she contends that the IJ employed an erroneous legal standard in

adjudicating her asylum application. According to Thuri, the IJ

required her to prove that she was persecuted exclusively because

of political belief. Instead, Thuri argues, she should be

eligible for asylum if her persecutors were motivated, at least

to some extent, by a political opinion held by her or imputed to

her, even if the officers were also motivated by other, more

personal reasons.

Thuri is correct that the “on account of” language in the

INA’s definition of a refugee, § 1101(a)(42)(A), only “requires

the alien to prove some nexus between the persecution and the

five protected grounds.” Ontunez-Tursios, 303 F.3d at 349

(emphasis added); accord Girma v. INS, 283 F.3d 664, 667 (5th

Cir. 2002) (per curiam). But, here, the IJ did not expect Thuri

to prove that she was persecuted solely on account of political

belief. Rather, he correctly stated that Thuri needed to

“demonstrate a nexus to one of the five grounds” in the refugee
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definition. (emphasis added). He further explained that “[i]f

the evidence indicates purely personal motives, and no link to an

actual or imputed political opinion or other recognized ground,

the claim will fail.” (emphasis added). The IJ concluded as

follows:

In the case at bar, the Court, after having reviewed the

country conditions, reviewed the testimony of the

respondent, [sic] the Court cannot find that the

respondent has made a nexus connection to any ground

enumerated in the act, particularly the ground that she

asserts, imputed political belief. Her story is sad,

that went through [sic] some suffering as a result of the

actions by these rogue police officers, but this was

nothing more than a criminal act. The respondent failed

to show that these actions, taken against her or her

father, were a result of any association with Democratic

Party or the other parties that her relatives are members

of. She was not raped because of such association and

she has not suffered any punishment as a result of any

belief, direct or imputed.

(emphasis added). And the IJ also stated that “there is no

indication that the respondent was raped as a result of political

opinion.” (emphasis added). These portions of the IJ’s opinion

reveal that he did not improperly require Thuri to prove that her

persecutors’ sole motivation was a political opinion held by her

or imputed to her, and Thuri fails to identify any statement of

the IJ indicating to the contrary. Accordingly, we review the

IJ’s decision under the substantial-evidence standard.

Regarding the merits of her asylum claim, Thuri contends

that this court should grant her petition for review because the

evidence demonstrates some nexus between her persecution and a

political opinion. For us to reject the IJ’s conclusion that
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Thuri was not persecuted on account of political opinion, the

evidence presented by Thuri must have been so compelling that a

reasonable factfinder could not fail to find that her persecutors

were motivated, at least in part, by a political opinion held by

her or imputed to her. See Ontunez-Tursios, 303 F.3d at 351;

Girma, 283 F.3d at 667 (“The evidence presented . . . must compel

a reasonable fact-finder to conclude that the harm suffered by an

applicant was motivated, at least in part by, a protected

ground.”); see also § 1252(b)(4)(B).

The crux of Thuri’s position is that she was persecuted

because her father opposed institutional government corruption--

which (in her view) constitutes the expression of a political

opinion. By contrast, the IJ concluded, and the government

contends, that the officers’ retaliatory conduct was driven by a

criminal, non-political motive to punish Thuri’s father for

reporting the hijacking. Thuri has not identified any decisions

in this circuit that support her argument for refugee status. In

addition, even if the two Ninth Circuit cases on which Thuri

relies were binding precedent, it is not clear that the legal

standards those decisions announce would apply to Thuri’s case. 

See Grava v. INS, 205 F.3d 1177, 1181 & n.3 (9th Cir. 2000)

(recognizing that “[p]urely personal retribution is, of course,

not persecution on account of political opinion,” but holding

that “[w]hen the alleged [government] corruption is inextricably

intertwined with governmental operation, the exposure and
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prosecution of such an abuse of public trust is necessarily

political”); Desir v. Ilchert, 840 F.2d 723, 727-29 (9th Cir.

1988) (concluding that refusal to comply with the extortionate

demands of members of a government security force constitutes the

expression of a political opinion where the refusal results in

“classification and treatment as a subversive”).

Before the IJ, Thuri presented evidence that criminal

activity by members of the Kenyan police force is not unusual. 

But Thuri has not presented evidence that compels the conclusion

that her father was opposing a government policy of hijacking,

intimidation, and abuse. The IJ concluded that the persecution

of Thuri was the result of “criminal” actions by “rogue police

officers.” Although one might disagree with the IJ’s

determination that the officers were motivated by purely personal

reasons, we are not persuaded that a reasonable factfinder would

be compelled to conclude to the contrary. Consequently, we

uphold the IJ’s finding that Thuri was not persecuted “on account

of . . . political opinion,” and we therefore agree that she does

not qualify as a refugee under the INA.

The standard for withholding of removal under § 241 of the

INA is similar to the standard for refugee status: The alien must

demonstrate that she would be persecuted in the country of

removal “because of the alien’s race, religion, nationality,

membership in a particular social group, or political opinion.” 

8 U.S.C. § 1231(b)(3)(A). Since Thuri has not established her
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eligibility for consideration for asylum, she necessarily cannot

succeed on her application for withholding of removal. Efe, 293

F.3d at 906; Girma, 283 F.3d at 667; Ozdemir, 46 F.3d at 8.

Finally, we observe that Thuri has waived her claim for

relief under Article 3 of the Convention Against Torture by

failing to raise it in her petition for review. See, e.g.,

Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986);

see also Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002)

(“As [the petitioner] did not brief his claim under the

Convention Against Torture on appeal, we consider the argument

waived.”).

Accordingly, we DENY the petition for review.