Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion *

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60315

Summary Calendar

FREDERICK MOSHE OMONDI

Petitioner

v.

ERIC H HOLDER, JR, US ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A96-044-375

Before DAVIS, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

Frederick Moshe Omondi is a native and citizen of Kenya. He was ordered

to be deported to the United Kingdom, if accepted, or to Kenya, for failing to

abide by the terms of his student visa. He appeals the denial of his claims for

asylum, withholding of removal, and relief under the Convention Against

Torture (CAT). To obtain relief, Omondi “must show that the evidence he

United States Court of Appeals

Fifth Circuit

F I L E D

June 9, 2009

Charles R. Fulbruge III

Clerk
No. 08-60315

2

presented was so compelling that no reasonable factfinder could fail to find” that

he was entitled to relief. INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). 

The Immigration Judge (IJ) and the Board of Immigration Appeals (BIA)

agreed that Omondi’s asylum claim is barred because he did not raise it within

one year of entering the United States. See Arif v. Mukasey, 509 F.3d 677, 680

(5th Cir. 2007); 8 U.S.C. § 1158(a)(2)(B), (D). Omondi fails to challenge this

issue and, in any event, we lack jurisdiction to review the factual basis for this

ruling. Arif, 509 F.3d at 680. 

To obtain withholding of removal, Omondi must show “that it is more

likely than not that [his] life or freedom would be threatened by persecution on

account of his race, religion, nationality, membership in a particular social

group, or political opinion.” Id. “[P]ersecution is an extreme concept that does

not include every sort of treatment our society regards as offensive.” Id.

(internal quotation marks and citation omitted). 

Omondi argues he faces a likelihood of persecution or torture by Kenyan

police because they detained and beat him once in 1997 for his involvement in

a student riot. This single detention does not rise to the level of persecution. See

Abdel-Masieh v. INS, 73 F.3d 579, 584 (5th Cir. 1997). Moreover, Omondi has

made no showing that the detention was due to his “race, religion, nationality,

membership in a particular social group, or political opinion.” Arif, 509 F.3d at

680-81. 

Omondi contends that the Kenyan government would detain him upon his

return to Kenya because he was deported on criminal grounds. He based this

assertion on the experience of an acquaintance who had been deported for drug

trafficking and detained for several days on his return. This contention is

baseless because Omondi’s 2007 federal conviction for trafficking in stolen

property is not the ground for his removal. Moreover, his single item of

unconfirmed anecdotal evidence does not compel a finding that the BIA’s

rejection of this claim was incorrect. 
No. 08-60315

3

Omondi primarily asserts that he fears persecution from the outlawed

Mungiki organization. The Mungiki began as an anti-Western religious,

cultural, and political movement but is now generally regarded as more of an

underworld gang, implicated in widespread murder, robbery, extortion,

kidnaping, and other forms of terrorism and violence. Omondi testified that his

mother was once a Mungiki cleric. After the Mungiki began to take on a more

violent and criminal aspect, Omondi’s mother renounced her membership in the

organization. Evidently as a result of her defection, she was murdered by a

Mungiki death squad. 

“Persecution” must be inflicted under government sanction, or by groups

“the government is unable or unwilling to control.” Adebisi v. INS, 952 F.2d 910,

914 (5th Cir. 1992) (internal quotation marks omitted). Similarly, torture for

purposes of Omondi’s claims for relief under the CAT must be “with the consent

or acquiescence of a public official or other person acting in an official capacity.”

Zhang, 432 F.3d at 345. The Mungiki are not a government organization, and

Omondi’s own evidence shows that the government of Kenya is actively fighting

the Mungiki. We cannot conclude that the Kenyan government is unwilling or

unable to control the Mungiki. 

Moreover, Omondi does not challenge the BIA’s finding that he is not in

a similar situation as his murdered mother who was a former Mungiki cleric

targeted for defecting from the Mungiki. In addition, given the evident

metamorphosis of the Mungiki into a criminal gang, Omondi has failed to

establish that any action taken against him by the Mungiki would be on account

of a forbidden reason rather than as a personal vendetta or random criminal act.

Cf. Elias-Zacarias, 502 U.S. at 482 (holding that “the mere existence of a

generalized ‘political’ motive” does not establish persecution on forbidden

ground); see Mwembie v. Gonzales, 443 F.3d 405, 414 (5th Cir. 2006) (denying

relief despite evidence of egregious abuse because the persecution was not on

account of any of forbidden reason). 
No. 08-60315

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Omondi fails to make any argument specific to the CAT or to establish

that it is more likely than not that he would be tortured if returned to Kenya.

Omondi’s CAT claim is both waived and unsubstantiated. See Mwembie, 443

F.3d at 415-16. 

Omondi further contends in a conclusional manner that his IJ hearing was

unfair due to bias and prejudice; the immigration courts’ treatment of Africans

violates the Equal Protection and Due Process clauses; the immigration courts

failed to consider evidence of changed conditions in Kenya; the BIA erred by

adopting the IJ’s decision without opinion; the presumption that his federal

crime involved moral turpitude deprives him of due process; and the

immigration courts failed to consider cumulative hardship factors. He has failed

to offer any argument or authorities in support of these bare assertions; they are

insufficient to preserve issues for appeal. See Chambers v. Mukasey, 520 F.3d

445, 448 n.1 (5th Cir. 2008); Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987). 

Omondi has failed to show that the evidence compelled a conclusion other

than that reached by the IJ and BIA. See Elias-Zacarias, 502 U.S. at 483-84.

The petition for review is DENIED.