Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 18-1325 

JAMES NJOGU MUHORO, 

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 Stahl, Circuit Judge. 

Jeffrey B. Rubin and Rubin Pomerleau PC on brief for 

petitioner. 

 Joseph H. Hunt, Assistant Attorney General, Civil Division, 

Emily Anne Radford, Assistant Director, and Aric A. Anderson, Trial 

Attorney, Office of Immigration Litigation, on brief for 

respondent. 

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

William P. Barr has been substituted for former Attorney General 

Jefferson B. Sessions, III as the respondent. 

** Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
March 13, 2019 
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STAHL, Circuit Judge. Petitioner James Njogu Muhoro 

seeks review of a Board of Immigration Appeals ("BIA") order 

denying him asylum, withholding of removal, and protection under 

the Convention Against Torture ("CAT"). The BIA affirmed the 

Immigration Judge's ("IJ") rulings that Muhoro failed to timely 

file his application for asylum and, separately, that he 

demonstrated neither the past persecution or probability of future 

persecution required for withholding of removal nor the likelihood 

of torture required for CAT-based relief. After careful 

consideration, we dismiss Muhoro's claim for asylum and deny his 

claims for withholding of removal or relief under the CAT. 

I. 

Muhoro is a native and citizen of Kenya, and a member of 

the Kikuyu tribe.1 In 1992, conflict broke out between the Kikuyu 

and another tribe, the Kalenjin. According to Muhoro, when he was 

eighteen years old, leaders from his community brought about fifty 

to sixty young people to a meeting, ostensibly for the purpose of 

devising a defense against Kalenjin attacks. Once there, however, 

the leaders revealed that the meeting's true purpose was to be an 

initiation ceremony for the Mungiki, a self-organized Kikuyu 

militant group formed to defend against Kalenjin incursions. 

 1 We draw the relevant facts from the IJ's written order 

and from the administrative record. See Aguirre v. Holder, 728 

F.3d 48, 50 (1st Cir. 2013). 
- 4 - 

Muhoro claims that the Mungiki representatives, armed with knives 

and machetes, required attendees to take part in an initiation 

ritual, and threatened them with death if they did not do so. 

Muhoro testified that, although he participated in the 

initiation, on the following day, he fled his hometown rather than 

remain with the Mungiki. He later learned that two of his cousins 

who remained with the militants were killed by members of that 

group when they retreated from a skirmish with the Kalenjin. 

For the next seven years, Muhoro lived with an aunt, 

whose home was roughly a five-hour drive away from his hometown. 

He testified that he limited his social interactions and did not 

return home during that time, as he feared being identified as a 

Mungiki "defector" and killed. He further claimed that, after he 

fled, unidentified persons broke into his parents' home and left 

notes stating "Mungiki defectors will be killed." 

In 1999, Muhoro completed college in Kenya and, on 

June 9, 1999, entered the United States on a J-1 exchange visa, 

which allowed him to remain here legally until September 14, 1999. 

He originally attended a cultural exchange program in Texas and 

then travelled to Massachusetts, where Muhoro claims he consulted 

with immigration attorney Clark Siddiqui2 regarding his fear of 

returning to Kenya. Muhoro alleges that Siddiqui told him that he 

 2 Several different spellings of Siddiqui's name appear in 

the record and briefs. 
- 5 - 

would not be able to extend his visa and would need to return to 

Kenya unless he married a U.S. citizen. Muhoro conceded, however, 

that he never signed a retainer agreement or other contract 

formalizing an attorney-client relationship with Siddiqui. 

On December 9, 2003, Muhoro married a U.S. citizen, and 

he subsequently used that marriage as the basis for obtaining 

lawful permanent resident status on February 21, 2006. Thereafter, 

in 2007, Muhoro traveled to Kenya for a roughly two-and-a-half 

week trip. While there, he claims to have stayed in a "highsecurity hotel" in Nairobi, which he says he rarely left because 

of his fear of the Mungiki. 

United States law enforcement officials eventually 

determined that Muhoro's marriage was a sham and, on February 1, 

2011, he was charged with one count of conspiracy to defraud the 

United States in violation of 18 U.S.C. § 371. Following his 

guilty plea to the charge, the district court sentenced Muhoro to 

two months' imprisonment. 

On August 20, 2012, the Department of Homeland Security 

served Muhoro with a Notice to Appear, which charged him with being 

removable for, first, overstaying his original visa and, second, 

for violating or attempting or conspiring to violate 18 U.S.C. 

§ 1546.3 Muhoro admitted the facts alleged in the Notice and 

 3 Section 1546 defines various offenses relating to fraud and 

misuse of visas, 18 U.S.C. § 1546, and aliens convicted of either 
- 6 - 

conceded removability. He initially sought only withholding of 

removal. However, on September 25, 2012, he applied for asylum, 

withholding of removal, and protection under the regulations 

implementing the CAT. Thereafter, the IJ granted Muhoro's motion 

to amend his petition to include the additional bases for relief. 

On December 27, 2016, the Immigration Court in Boston 

held an individual hearing to address Muhoro's case. Muhoro was 

the only witness at that hearing, and he testified as to the facts 

set forth above, including his "initiation" into the Mungiki and 

subsequent flight. He further testified regarding his sister's 

death in 2014, which he attributed directly to his decision to 

flee from the Mungiki. Specifically, Muhoro stated that shortly 

before her death, his sister's then-boyfriend, a member of the 

Mungiki, began mistreating her after he discovered that Muhoro had 

left the Mungiki. In his testimony, Muhoro claimed that, though 

his sister's cause of death was officially listed as "cerebral 

malaria," he and his family believed her boyfriend poisoned her. 

Muhoro attested that his suspicions regarding his sister's cause 

of death reinforced his fear of returning to Kenya.

In addition to his oral testimony, Muhoro submitted 

country reports and news articles concerning Mungiki activity in 

 

violating or attempting or conspiring to violate that section are 

deportable, 8 U.S.C. § 1227(a)(3)(B)(iii). The parties agree that 

the overt acts described in Muhoro's indictment meet the elements 

of 18 U.S.C. § 1546.
- 7 - 

Kenya and the Kenyan government's failure to rein in that group 

and, separately, an affidavit from his father corroborating his 

account of events in Kenya.

On April 25, 2017, the IJ issued an oral decision denying 

all of Muhoro's claims. After noting that Muhoro failed to seek 

asylum within one year of his last entry into the United States in 

2007 (following his visit to Kenya), as required by statute, the 

IJ determined that he failed to demonstrate changed or 

extraordinary circumstances that would justify extending that 

deadline. In this regard, the IJ found that Muhoro did not 

sufficiently corroborate his claim that his sister had been 

murdered because of his status as a Mungiki deserter. The IJ also 

rejected Muhoro's ineffective assistance of counsel argument based 

on Siddiqui's purported advice that he could only remain in the 

country through marriage to a U.S. citizen, concluding that Muhoro 

failed to corroborate that advice or the existence of a formal 

attorney-client relationship.

Separately, the IJ rejected Muhoro's claims for 

withholding of removal and CAT-based relief based on her conclusion 

that Muhoro could not demonstrate either past persecution or a 

clear probability of future persecution. While the IJ found that 

Muhoro presented compelling evidence of the Mungiki's 

dangerousness and risks posed to defectors from that organization, 
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she did not credit Muhoro's assertion that his claimed "initiation" 

was in fact sufficient to make him a member of that group. 

On review, the BIA adopted almost the entirety of the 

IJ's findings and opinion and dismissed the appeal. The only area 

in which the BIA's decision deviated from that of the IJ came in 

its discussion of Muhoro's membership in the Mungiki. Rather than 

assessing the credibility of Muhoro's testimony that he joined 

that organization, the BIA concluded only that Muhoro failed to 

demonstrate past persecution or "a clear possibility of future 

persecution in Kenya today." 

Muhoro timely appealed the BIA's order dismissing his 

appeal. 

II. 

"We review the BIA's legal conclusions de novo, with 

appropriate deference to the agency's interpretation of the 

underlying statute in accordance with administrative law 

principles." Toribio-Chavez v. Holder, 611 F.3d 57, 62 (1st Cir. 

2010) (internal quotation marks and citation omitted). In 

addition, "[this court] review[s] the agency's factual findings, 

including credibility determinations, under the substantial 

evidence standard, and may overturn those findings only if any 

reasonable adjudicator would be compelled to conclude to the 

contrary." Id. (quotation marks, alteration, and citation 

omitted). "When, as here, the BIA adopts and affirms part of the 
- 9 - 

IJ's ruling and further justifies the IJ's conclusions, we review 

both the BIA's and IJ's opinions." Nako v. Holder, 611 F.3d 45, 

48 (1st Cir. 2010); see also Sunoto v. Gonzales, 504 F.3d 56, 59-60 

(1st Cir. 2007)("When the BIA adopts and affirms an IJ's decision, 

we review the IJ's decision to the extent of the adoption, and the 

BIA's decision as to any additional ground." (internal quotation 

marks and citation omitted)). 

Muhoro argues that the BIA and IJ erred in their 

determinations that he did not demonstrate "extraordinary" or 

"changed" circumstances meriting extension of the asylum filing 

deadline and, separately, failed to establish past persecution or 

a well-founded fear of future persecution or torture. We examine 

these claims of error in turn. 

A. 

As a threshold matter, a person seeking asylum is 

generally required to "demonstrate[] by clear and convincing 

evidence" that he or she applied for that relief within a year of 

arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). Where 

the applicant fails to do so, his or her application may yet be 

considered if the applicant demonstrates "changed circumstances 

which materially affect the applicant's eligibility for asylum or 

extraordinary circumstances relating to the delay in filing an 

application." Id. § 1158(a)(2)(D). 
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Here, the untimeliness of Muhoro's application is not in 

dispute, as Muhoro concedes that he failed to seek asylum within 

a year of his most recent entry into the United States in 2007. 

See 8 C.F.R. § 1208.4(a)(2)(ii) (specifying that the one-year 

period for timely filing of an asylum claim "shall be calculated 

from the date of the alien's last arrival in the United States or 

from April 1, 1997, whichever is later."). Rather, he contends 

that the death of his sister and the erroneous legal advice he 

claims to have received from Siddiqui4 constituted "changed" and 

"extraordinary" circumstances, respectively, and argues that the 

IJ and BIA erred in finding otherwise. 

Muhoro's challenge ignores the limitations on our 

review. "This Court lacks jurisdiction to review an agency's 

findings regarding timeliness or its application of the 

'extraordinary circumstances' exception . . . unless an alien 

identifies a legal or constitutional defect in the decision." 

Olmos-Colaj v. Sessions, 886 F.3d 168, 174-75 (1st Cir. 2018) 

 4 Muhoro also argues that his then-attorney's failure to 

include a claim for asylum in his initial responsive pleading in 

the immigration court constituted ineffective assistance of 

counsel. As noted above, however, the IJ subsequently permitted 

Muhoro to amend his initial pleading to reflect, inter alia, his 

asylum claim. Muhoro provides no explanation as to how that 

oversight continues to impact or prejudice his rights, and so we 

do not address it further. See United States v. Zannino, 895 F.2d 

1, 17 (1st Cir. 1990) ("It is not enough merely to mention a 

possible argument in the most skeletal way, leaving the court to 

do counsel's work, create the ossature for the argument, and put 

flesh on its bones.").
- 11 - 

(internal quotation marks, alterations, and citations omitted). 

The same rule applies to the agency's application of the "changed 

circumstances" exception. See 8 U.S.C. § 1158(a)(3); see also 

Chahid Hayek v. Gonzales, 445 F.3d 501, 506-07 (1st Cir. 2006) 

(per curiam). "[F]indings as to timeliness and changed [or 

extraordinary] circumstances are usually factual determinations," 

Chahid Hayek, 445 F.3d at 507 (internal quotation marks and 

citation omitted), and the IJ's rulings here were no exception. 

The IJ found that evidence concerning the circumstances of Muhoro's 

sister's death was insufficient to substantiate his claim that she 

was murdered, noting documentary evidence contradicting that 

conclusion and inconsistencies within Muhoro's own account of her 

death. The IJ likewise found little evidence to substantiate 

Muhoro's claim that attorney Siddiqui advised him to marry a U.S. 

citizen for purposes of obtaining immigration status, emphasizing 

the lack of corroboration of any formal attorney-client 

relationship and Muhoro's "vague" testimony concerning his 

interaction with Siddiqui.5 

 5 The IJ and BIA also found that Muhoro's ineffective 

effective assistance of counsel claim was not supported by the 

evidence demanded by Matter of Lozada, 19 I & N Dec. 637 (BIA 

1998), which requires: 

(1) an affidavit explaining the petitioner's 

agreement with counsel regarding legal 

representation; (2) evidence that counsel has 

been informed of the allegations of 

ineffective assistance and has had an 

opportunity to respond; and (3) if it is 
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Muhoro does not point to any legal or constitutional 

error in these determinations, but merely contends that he 

presented evidence and testimony that supports his claims and 

contradicts the agency's contrary conclusions. However, those 

arguments are just "another way of saying that the agency got the 

facts wrong, which is simply a factual claim . . . that [] cannot 

defeat the operation of the jurisdiction-stripping provision." 

Rashad v. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009). Accordingly, we 

lack jurisdiction to review the agency's determination that 

Muhoro's asylum application was untimely, and we move on to his 

remaining claims. 

B. 

Muhoro next contends that the agency erred in denying 

his petition for withholding of removal. "To prove an entitlement 

to withholding of removal, an alien bears the burden of 

demonstrating a clear probability that her life or freedom would 

be threatened in her homeland on account of her race, religion, 

nationality, membership in a particular social group, or political 

opinion." Arévalo-Girón v. Holder, 667 F.3d 79, 82 

 

asserted that counsel's handling of the case 

involved a violation of ethical or legal 

responsibilities, a complaint against the 

attorney filed with disciplinary authorities 

or, in the alternative, an explanation for why 

such a complaint has not been filed. 

García v. Lynch, 821 F.3d 178, 180 n.2 (1st Cir. 2016). 
- 13 - 

(1st Cir. 2012). A petitioner may satisfy this burden by showing 

either that he or she has "already suffered such persecution in 

[his or her country of removal], thereby creating a rebuttable 

presumption that [he or she] will suffer the same upon removal," 

or by demonstrating that, "more likely than not, his [or her] life 

or freedom will be threatened on account of" one of the enumerated 

protected grounds. Ruiz-Escobar v. Sessions, 881 F.3d 252, 259 

(1st Cir. 2018) (internal quotation marks and citations omitted). 

"Persecution is a fluid term, not defined by statute[,]" 

Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014), and 

"courts usually assess whether harm rises to the level of 

persecution on a case-by-case basis," id. at 88. This court's 

previous rulings make clear, however, that "persecution requires 

more than unpleasantness, harassment, and even basic suffering." 

de Zea v. Holder, 761 F.3d 75, 80 (1st Cir. 2014) (internal 

quotation marks and citation omitted). Rather, "[t]o show past 

persecution, the discriminatory experiences must have reached a 

fairly high threshold of seriousness, as well as occurred with 

some regularity and frequency." Martínez-Pérez v. Sessions, 897 

F.3d 33, 39-40 (1st Cir. 2018) (internal quotation marks and 

citation omitted). 

Muhoro's claims of both past and future persecution are 

predicated on his claimed status as a "Mungiki defector." For 

purposes of this analysis, we follow the lead of our sister 
- 14 - 

circuits and assume that Mungiki defectors constitute a 

"particular social group" within the statute's protection. See, 

e.g., Gatimi v. Holder, 578 F.3d 611, 616-17 (7th Cir. 2009); 

Gathungu v. Holder, 725 F.3d 900, 907-08 (8th Cir. 2013). Even 

taking that fact in Muhoro's favor arguendo, however, we still 

find that the agency's decision was supported by substantial 

evidence. 

1. Past Persecution 

Turning first to the claimed past persecution, we find 

more than sufficient evidence in the record to support the IJ's 

conclusion that no such persecution had occurred. As the IJ noted, 

following the initiation ceremony, Muhoro continued to reside in 

Kenya for seven years, during which time he attended high school 

and college without suffering any apparent harm. Moreover, Muhoro 

does not claim to have suffered any harm when he returned to the 

country for two weeks in 2007. In fact, outside of the initiation 

ceremony itself, Muhoro does not point to any action taken against 

him by the Mungiki. 

Recognizing this shortcoming, Muhoro turns to Mungiki 

acts targeting his family. He points first to the threatening 

notes allegedly left in his parents' house. Despite his insistence 

that those threats, alone, are sufficient to satisfy his burden, 

"[d]eath threats rise to the level of persecution only when so 

menacing as to cause significant actual suffering or 
- 15 - 

harm." Hernandez-Lima v. Lynch, 836 F.3d 109, 114 (1st Cir. 2016) 

(internal quotation marks and citation omitted). While it is not 

necessary to show that the threats resulted in actual or attempted 

follow through, "the presence or absence of physical harm (and, 

indeed, the degree of harm inflicted) remains a relevant factor in 

determining whether mistreatment rises to the level of 

persecution." Martínez-Pérez, 897 F.3d at 41 (internal quotation 

marks and citations omitted); see also Touch v. Holder, 568 F.3d 

32, 40 (1st Cir. 2009) (holding that finding of no past persecution 

was not undermined by death threat that was not accompanied by 

actual harm). Here, we see nothing in the record that shows those 

notes resulted in "actual suffering or harm," Hernandez-Lima, 836 

F.3d at 114, and so do not view those threats as compelling 

reversal of the IJ's decision. 

Muhoro also directs our attention to the deaths of his 

cousins, allegedly at the hands of the Mungiki. However, there is 

no suggestion that those deaths were in any way tied to Muhoro or 

any targeting of him, and so they are irrelevant to whether Muhoro 

himself was persecuted.6

 6 Muhoro does not assert that his sister's death, if credibly 

attributed to her then-boyfriend, constitutes an act of past 

persecution against him. Instead, he merely argues that the IJ 

erred in finding his testimony on her death incredible. However, 

for purposes of their withholding analysis, both the IJ and BIA 

assumed Muhoro's credibility on that point and still found that he 

failed to establish past persecution. Muhoro does not identify 
- 16 - 

Accordingly, we find ample basis in the record to support 

the agency's conclusion that Muhoro did not suffer past 

persecution, and the facts on which he relies do not "point[] 

unerringly in the opposite direction." Lumataw v. Holder, 582 

F.3d 78, 91 (1st Cir. 2009) (internal quotation marks and citations 

omitted). 

2. Future Persecution 

Despite our conclusion that the IJ and BIA did not err 

in finding no past persecution, Muhoro can still succeed if he 

"can satisfy a two-part inquiry," demonstrating that he "genuinely 

fears future persecution and that [his] fears are objectively 

reasonable." Martínez-Pérez, 897 F.3d at 41 (internal quotation 

marks and citation omitted). 

While Muhoro argues that the decisions below failed to 

make any finding about his likelihood of suffering future harm, we 

disagree. We acknowledge that the IJ could have been clearer on 

this point; however, her decision unmistakably concludes that 

Muhoro did not face a sufficient risk of future persecution. After 

acknowledging Muhoro's evidence that "ex-Mungiki members do face 

serious harm, especially high-profile members," the IJ found that 

this risk did not extend to Muhoro due to the limited duration of 

 

any additional fault in the agency's determination, and so further 

argument along those lines is waived. 
- 17 - 

his purported affiliation with that group.7 The BIA approved of 

this predictive finding and added its own observation that Muhoro 

had not been subject to any retribution subsequent to his 

"initiation," suggesting a low probability of future targeting. 

We again find that these conclusions are supported by 

substantial evidence. Our basis for doing so is largely the same 

as that stated in the preceding section, which we need not reprise 

here. Suffice it to say the evidence that Muhoro both lived, 

undisturbed, in Kenya for seven years and later visited the country 

without consequence provides a sufficient basis for the agency's 

denial of withholding of removal. Cf. Chen Qin v. Lynch, 833 F.3d 

40, 45 (1st Cir. 2016) (rejecting claim of future persecution where 

petitioner was able to relocate safely to her brother's home in 

her native country); Cabas v. Holder, 695 F.3d 169, 174 (1st Cir. 

2012) (finding that petitioner's claim of future persecution was 

"undermined by the fact that he returned to [his home country] for 

a month . . . after the prior beating and threats to his safety"). 

 

7 The IJ, relying on Cantarero v. Holder, 734 F.3d 82 (1st Cir. 

2013), also concluded that Mungiki defectors were not a particular 

social group protected by statute, providing an independent reason 

for denying withholding of removal. Notwithstanding the analysis 

in Cantarero, we assume arguendo that Mungiki defectors are a 

qualifying group, and hold that the agency's conclusion that Muhoro 

has not been and would not be persecuted based on his membership 

therein is supported by substantial evidence. 
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* * * 

Accordingly, we find no error in the IJ and BIA's denial 

of Muhoro's claim for withholding of removal and move to consider 

his claim for relief under the CAT. 

C. 

In his final claim, Muhoro seeks relief under the CAT 

based on his fear that the Mungiki will torture him if he returns 

to the country and his claim that the Kenyan government is either 

unable or unwilling to prevent them from doing so. "An applicant 

for protection under [the] CAT bears the burden of proving that it 

is more likely than not that [he or] she will be tortured if 

returned to [his or] her country of origin." Costa v. Holder, 733 

F.3d 13, 17 (1st Cir. 2013); see also 8 C.F.R. § 1208.16(c). 

Unlike withholding claims, there is no need to show a nexus between 

the torture and some protected status; however, the claimant must 

show that the torture would be "inflicted by or at the instigation 

of or with the consent or acquiescence of a public official or 

other person acting in an official capacity." Costa, 733 F.3d at 

17 (quoting 8 C.F.R. § 1208.18(a)(1) (internal quotation marks 

omitted)). 

The same evidence that supports the agency's 

determination that Muhoro failed to demonstrate a sufficient risk 

of future persecution justifies its conclusion vis-à-vis his risk 

of torture. Muhoro points to no additional evidence to support 
- 19 - 

his claim, instead largely repeating his earlier arguments.8 Our 

review, limited as it is, considers only whether the IJ's and BIA's 

determinations were supported by substantial evidence, and we have 

no difficulty in concluding that they were. Accordingly, Muhoro's 

claim for relief under the CAT is denied. 

III. 

 For the foregoing reasons, the petition for review is 

dismissed as to the asylum claim and denied as to the claims for 

withholding of removal and relief under the CAT. 

 8 Muhoro makes passing reference to "country conditions 

evidence" in the record, which discusses the risks of torture in 

Kenya generally. However, "[t]hese reports do not relieve him of 

the obligation to point to specific evidence indicating that he, 

personally, faces a risk of torture because of these alleged 

shortcomings. Such specificity is a necessary element of a CAT 

claim." Alvizures-Gomes v. Lynch, 830 F.3d 49, 55 (1st Cir. 2016).