Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *

Eric H. Holder, Jr. has been substituted for former Attorney

General Michael B. Mukasey as the respondent.

United States Court of Appeals

For the First Circuit

No. 08-2278

MARY WANGUI WARUI,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, *

Respondent.

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges.

Carlos E. Estrada, on brief for petitioner.

Kristin A. Moresi, Trial Attorney, Office of Immigration

Litigation, Tony West, Assistant Attorney General, Civil Division,

and Barry J. Pettinato, Assistant Director, Office of Immigration

Litigation, on brief for the respondent.

August 18, 2009
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LYNCH, Chief Judge. Mary Wangui Warui, of Kenya,

petitions for review of the Board of Immigration Appeals ("BIA")

denial of her motion to reopen. The BIA denied her motion to

reopen and remand her case for further consideration of her claims

for withholding of removal and protection under the Convention

Against Torture ("CAT"). We deny the petition in part and dismiss

it in part.

I.

Warui entered the United States from Kenya on November

30, 2001 as a visitor, authorized to remain in the country until

May 29, 2002. She overstayed. On October 14, 2004, the Department

of Homeland Security filed a Notice to Appear ("NTA") in

Immigration Court, initiating removal proceedings against Warui. 

Her husband, Leonard Karioki, also a native and citizen

of Kenya, entered the United States on April 6, 2004 and overstayed

his visa. He was placed in separate removal proceedings around the

same time as Warui. On January 7, 2005, Warui sought to

consolidate her case with that of her husband, admitting certain

allegations in the NTA and conceding removability. The cases were

subsequently consolidated.

On March 10, 2005, Karioki applied for asylum,

withholding of removal, and protection under the CAT. As part of

his application, he sought derivative asylum relief for Warui as

his spouse. Warui was ineligible for asylum in her own right
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because she had not filed a timely application. Warui did not make

independent claims for withholding of removal and CAT protection.

At a merits hearing held on May 8, 2006, Warui and

Karioki both testified in support of their claims. In their

testimony, they expressed fear that if they were removed to Kenya

Warui would be forced to undergo female genital mutilation ("FGM")

by a group called the Mungiki.

In his oral decision, the Immigration Judge ("IJ") first

found that Karioki and Warui did not testify credibly, based on

inconsistencies in their testimony. Even assuming the two had

testified credibly, the IJ found Karioki's and Warui's testimony

still insufficient to meet their burden for asylum for several

reasons. First, the IJ found that Karioki and Warui had testified

they had been harassed by the Mungiki for nearly thirty years but

they had never been harmed, and so their fear of harm seemed

"implausible." Second, the IJ found that they had failed to show

that the harm they feared was at the hands of a group which the

government was unable or unwilling to control, pointing to a State

Department report showing that the Kenyan government had banned the

Mungiki and were trying to enforce the law against them. Finally,

the IJ found the fear of future persecution inconsistent with the

fact that Karioki and Warui's sons, who remained in Kenya, were

married and their wives had not been forced to undergo FGM. 
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The IJ denied their claim for asylum. He denied the

withholding of removal and CAT claims because these claims carry a

higher burden of proof than asylum and therefore Karioki and Warui

could not prove it more likely than not that they would undergo

persecution or torture if returned. The IJ granted voluntary

departure to Warui but denied it to Karioki.

Karioki and Warui filed a timely appeal to the BIA. On

May 28, 2008, the BIA denied them relief; it affirmed the IJ's

determination with respect to lack of credibility and his alternate

findings with respect to denial of asylum, withholding of removal,

and protection under the CAT.

Warui did not file a petition for review with this court.

Instead, she filed a motion to reopen with the BIA on June 25,

2008, seeking to apply individually for withholding of removal and

protection under the CAT. In this motion, she informed the BIA

that she and her husband were divorced and that Karioki had

returned to Kenya.

 On September 15, 2008, the BIA denied her motion. The

BIA first held that Warui had failed to present any material new

facts that could be proven in a new hearing or previously

unavailable evidence. Second, the BIA pointed out that Warui had

failed to challenge the IJ's adverse credibility finding with

respect to both her and her husband. Based on this, the BIA could
The parties have not argued that this court lacks 1

jurisdiction to consider the petition, cf. Oliveira v. Holder, 568

F.3d 275, 277 n.4 (1st Cir. 2009), and we assume that we do have

jurisdiction.

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not "conclude that any application for relief is now reasonably

likely to succeed on the merits in order to warrant reopening." 

II.

In general, motions to reopen removal proceedings are

not favored because "such motions are at odds with the compelling

public interests in finality and the expeditious processing of

proceedings." Beltre-Veloz v. Mukasey, 533 F.3d 7, 9 (1st Cir.

2008) (quoting Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st

Cir. 2007)). We review denials by the BIA of motions to reopen for

abuse of discretion. Kechichian v. Mukasey, 535 F.3d 15, 22 (1st 1

Cir. 2008). A decision by the BIA will survive review unless a

petitioner can show that it "committed an error of law or exercised

its judgment in an arbitrary, capricious, or irrational way." Id.

(quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)). 

A motion to reopen may only be granted if it states "new

facts that will be proven at a hearing to be held if the motion is

granted." 8 C.F.R. § 1003.2(c)(1). Such a motion "shall not be

granted unless it appears to the Board that evidence sought to be

offered is material and was not available and could not have been

discovered or presented at the former hearing." Id. In addition,

"[a] motion to reopen must be denied unless petitioners' new
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evidence establishes a prima facie case for the underlying

substantive relief." Chikkeur v. Mukasey, 514 F.3d 1381, 1383 (1st

Cir. 2008).

Warui's motion to reopen requested an opportunity to

present her own claims for withholding of removal and protection

under CAT. It is not entirely clear from her briefs or from the

BIA's and IJ's opinions whether her derivative asylum application

purported to include "derivative" claims for withholding of removal

and protection under CAT. Unlike the statute governing asylum

applications, 8 U.S.C. § 1158, the statutes and regulations

covering withholding of removal and the CAT do not contain

provisions for derivative claims, 8 U.S.C. § 1231(b)(3); 8 C.F.R.

§ 1208.16(b), (c). This circuit has explicitly held that

derivative claims cannot be made for withholding of removal,

Kechichian, 535 F.3d at 22 n.4, and other circuits have held the

same with respect to the CAT, see, e.g., Martinez v. U.S. Att'y

Gen., No. 08-14398, 2009 WL 1109294, *3 (11th Cir. Apr. 27, 2009);

Oforji v. Ashcroft, 354 F.3d 609, 615 (7th Cir. 2003). We assume

in her favor that Warui has only made a derivative claim for asylum

and that withholding of removal and protection under CAT are the

new claims she seeks to submit through a motion to reopen. Even

so, we find that the BIA did not abuse its discretion in denying

the motion to reopen to let her present those claims on her own

behalf. 
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As the BIA noted, Warui's motion did not state any new

facts material to her claims and it was not supported by any

previously unavailable evidence. Her motion stated as "new facts"

that she and her husband had been divorced and that he had departed

the United States, but she did not argue that this changed the

material facts which had been presented in support of the original

claims for relief. Rather, the motion simply requested the right

to make her own application for withholding of removal and CAT

protection -- a claim that would have been based on the same facts

previously presented to the IJ. Given that the standard for

withholding of removal places a higher burden on the applicant to

prove past or future persecution, the BIA did not abuse its

discretion in denying the motion to reopen the withholding of

removal claim. Usman v. Holder, 566 F.3d 262, 268 (1st Cir. 2009).

On those facts, she could not make a prima facie case for

withholding of removal.

The same is true of Warui's CAT claim, which requires a

finding that she will "more likely than not" experience torture if

removed. 8 C.F.R. § 1208.16(c)(4). She does not claim to have

already suffered torture. Since she could not meet the lower

standard of showing a well-founded fear she would suffer harm if

removed, the BIA did not abuse its discretion in finding that she

did not present a prima facie case for relief under the CAT.

Usman, 566 F.3d at 268.
The decision was issued after the BIA's September 15, 2

2008 denial of Warui's motion to reopen. No party has argued that

this issue should be remanded to the BIA, nor in this instance

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In her brief here, Warui makes a different argument. She

argues that the BIA should reopen her case based on changed

circumstances, specifically that her case was "in effect abandoned"

because of her divorce and Karioki's departure. Yet, as the BIA

found, the material facts which underlie Warui's purported new

claims for withholding of removal and protection under the CAT are

the same as those which led to denial of asylum. On this basis,

the BIA's decision not to reopen was not an abuse of discretion. 

Further, as the BIA pointed out, Warui's motion to reopen

made no challenge to the credibility findings made against her by

the IJ. Warui now concedes that Karioki may not have testified

credibly and argues that she should be given an opportunity to

establish her own credibility. Yet Warui availed herself of just

such an opportunity in the original proceedings. She testified at

the May 8, 2006 merits hearing, and the IJ and BIA reached their

credibility finding based on inconsistencies in her own testimony

as well as those of her husband.

Warui argues to us that her case should be reopened

because the law regarding withholding of removal and CAT relief in

cases where a petitioner has been subjected to FGM has changed in

light of the Attorney General's recent decision in Matter of A-T,

24 I & N Dec. 617 (A.G. 2008). The facts of Matter of A-T easily 2
would a remand be appropriate.

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distinguish it from this case. That case addressed whether a

woman's having undergone FGM could constitute past persecution for

purposes of a withholding of removal claim. Id. Here, the

petitioner has not undergone FGM and she was found not to have been

persecuted on other grounds. Thus Matter of A-T does not enable

her to present a prima facie case for relief.

Warui's brief improperly attempts to challenge the

findings of the BIA and the IJ regarding the original claims for

withholding of removal and protection under the CAT. A petition to

review those findings was not timely filed after the BIA's May 28,

2008 order of removal became final. 8 U.S.C. § 1252(b)(1)

(requiring that petitions for review be filed within thirty days of

a final order of removal); Ven v. Ashcroft, 386 F.3d 357, 359 (1st

Cir. 2004) ("A motion to reopen or reconsider does not toll the

period for filing a petition for judicial review of the underlying

order of deportation."). We accordingly lack jurisdiction to

consider them.

The petition for review of the denial of the motion to

reopen is denied; the attempt to challenge the BIA's May 28, 2008

order is dismissed.