IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60448

PERIS WANJIRU KAMAU; JAMES KAMAU MEREKA,

Petitioners

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA Nos. A94-889-025; A94-889-026

Before GARZA and BENAVIDES, Circuit Judges, and CRONE, District Judge.

*

PER CURIAM:

**

Peris Wanjiru Kamau, a native and citizen of Kenya, petitions for review

of the decision of the Board of Immigration Appeals (“BIA”) adopting and

affirming the Immigration Judge’s (“IJ”) denial of her application for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). Kamau’s claims are based on her fear of being forcibly circumcised by

United States Court of Appeals

Fifth Circuit

F I L E D

October 13, 2010

Lyle W. Cayce

Clerk

 District Judge for the Eastern District of Texas, sitting by designation. *

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.

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the Mungiki sect, a political and religious group which advocates female genital

mutilation (“FGM”).

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This court reviews the BIA’s legal conclusions de novo and its findings of

fact, including its determination that an alien is not eligible for withholding of

removal, for substantial evidence. See Chen v. Gonzales, 470 F.3d 1131, 1134

(5th Cir. 2006). Under the substantial evidence standard, this court will affirm

the BIA’s determination unless the evidence compels a contrary conclusion. See

Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).

Exhaustion

Kamau argues that she is entitled to asylum and withholding of removal

based on past persecution and a well-founded fear of future persecution because

of: (1) her religion and political opinion; and (2) her membership in a particular

social group, “consisting of women who have not had FGM.” The respondent

argues that this court lacks jurisdiction to address her second argument because

Kamau failed to exhaust it before the BIA. Judicial review of a final removal

order is available only if the applicant has exhausted all administrative

remedies as of right. 8 U.S.C. § 1252(d)(1). Failure to exhaust administrative

remedies creates a jurisdictional bar to this court’s consideration of an issue.

Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).

Kamau challenges the respondent’s assertion that she failed to exhaust

her claim of persecution on account of membership in a particular social group.

She argues that the IJ discussed and considered the issue in his oral decision

and that she raised the issue in her brief before the BIA. However, the IJ’s

decision addressed her claim in terms of religion and political opinion only.

Moreover, although her brief before the BIA listed membership in a particular

In Kamau’s application for asylum, withholding of removal, and relief under CAT, she 1

named her husband as a derivative applicant. This opinion’s reference to Kamau encompasses

both applicants.

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social group as a basis for relief generally, she did not expressly argue that she

was a member of a particular social group. The BIA’s decision adopted and

affirmed the IJ’s decision. Because Kamau failed to exhaust her claim of past

persecution or a well-founded fear of future persecution on the basis of

membership in a particular social group before the BIA, this court lacks

jurisdiction to address the claim. See Claudio v. Holder, 601 F.3d 316, 317-19

(5th Cir. 2010). Although the respondent also argues that Kamau failed to

exhaust her claim for relief under CAT, because the BIA considered this claim

in its opinion, this court has jurisdiction to address the denial of relief under

CAT. Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010) (holding that

“[i]f the BIA deems an issue sufficiently presented to consider it on the merits,

such action by the BIA exhausts the issue as far as the agency is concerned and

that is all that [8 U.S.C.] § 1252(d)(1) requires to confer our jurisdiction” (quoting

Sidabutar v. Gonzales, 503 F.3d 1116, 1119 (10th Cir. 2007))).

ASYLUM

As previously set forth, Kamau argues that she is entitled to asylum and

withholding of removal based on past persecution and a well-founded fear of

future persecution by the Mungiki because of her religion and political opinion.

To obtain asylum, an alien must prove that she is a “refugee.” 8 C.F.R.

§ 1208.13(a). A refugee is defined as a person unable to return to her country

“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.” 8 U.S.C. § 1101(a)(42)(A). Past persecution involves harm inflicted on

the alien because of a statutorily enumerated ground by the government or

forces that a government is unable or unwilling to control. Adebisi v. INS, 952

F.2d 910, 913–14 (5th Cir. 1992). A well-founded fear of persecution results

when a reasonable person in the same circumstances would fear persecution if

deported. Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994).

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After a hearing, the IJ found Kamau to be a credible witness.

Nonetheless, the IJ denied the application for asylum, finding, among other

things that the “record does show that the government of Kenya is aggressively

pursuing Mungiki and is attempting to bring them under control.” In other

words, the IJ concluded that Kamau had not shown that the Kenyan government

was unable or unwilling to control the Mungiki. After reviewing the record and

the briefs, we conclude that the evidence in the record does not compel a

conclusion contrary to that reached by the IJ and BIA. See Omondi v. Holder,

332 F. App’x 197, 199 (5th Cir. 2009) (declining to find the Kenyan government

unwilling or unable to control the Mungiki based on evidence showing that

Kenya “is actively fighting the Mungiki”).

Kamau also challenges the denial of withholding of removal. Because she

has not established a claim for asylum, she cannot meet the higher standard for

withholding of removal. See Eduard v. Ashcroft, 379 F.3d 182, 186 n. 2 (5th Cir.

2004).

CAT claim

Kamau asserts that the BIA wrongly held that she was not eligible for

protection under CAT. Kamau asserts that she has substantial grounds for

believing that she would be tortured if she returned to Kenya. In Article 3, CAT

provides that “[n]o State Party shall expel, return . . . or extradite a person to

another State where there are substantial grounds for believing that he would

be in danger of being subjected to torture.” Efe v. Ashcroft, 293 F.3d 899, 907

(5th Cir. 2002). Instead of requiring proof of persecution, CAT requires the

higher showing of torture. Id. Torture is the intentional infliction of severe

mental or physical pain by a public official (or with the consent or acquiescence

of a public official) for the purpose of obtaining information, intimidation,

punishment, or discrimination. See 8 C.F.R. § 208.18(a)(1). Torture is defined

as “an extreme form of cruel and inhuman treatment.” § 208.18(a)(2). The

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petitioner has the burden of proving that she will likely be tortured if she is

removed. 8 C.F.R. § 208.16(c)(2).

In light of the evidence in the Country Report that the Kenyan

government has banned membership in the Mungiki, the evidence in the record

does not compel a finding that Kamau, more likely than not, would suffer harm

“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.” § 208.18(a)(1); see

Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006) (agreeing “with

other circuits that neither the failure to apprehend the persons threatening the

alien, nor the lack of financial resources to eradicate the threat or risk of torture

constitute sufficient state action for purposes of the Convention Against

Torture”).

The petition for review of the BIA’s decision is DENIED.

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