NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0835n.06 No. 09-3915

UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT GR ACE MUTHONI MWATHI, P etitioner , v. ERIC H. HOL DER JR., Att orney G eneral, Respondent. / ON P ETIT ION F OR REVIEW FROM T H E B O A R D O F I M M I G R A T I O N AP P EALS

BEFORE: CLAY, G IBBO NS, and WHITE , Circuit Judges. CLAY, Circuit Judge. Petitioner Gra ce Muthoni Mwathi (“Mwa thi”) petitions for revie w of an order of the Boa

rd of I mmigration Appea ls (“B I A”) aff irming the decision of the immigra tion judge (“I J ”) denying her appl i ca t i o n for asy lum, withholding of remova l, and relief under the Convention A g ainst Torture (“CAT” ). For the rea sons stated below, Mwathi’s petition f or revie w is DENIED

. BACK GR OUND Mwathi is a native citizen of Keny a. She applied for and was g rante d a non-immigra nt visa to the United States in October 2001. On September 20, 2002, Mwathi enter ed the United States and has rema ined in the country since that time. She timely filed an application for asy lum, withholdingNo. 09-3915

of re moval, and prote ction under CAT in 2003. I n her application for relief, Mwathi claimed that she fac ed perse cution on acc ount of imputed political opinion beca use of her husband’s well-known opposition t o the Keny an g overnme nt. On Aug ust 4, 2004, the Depa rtment of Homeland Security commence d remova l proce eding s ag ainst Mwathi under § 237(a) (1)( B) of the I mmigration and Natura liz ation Act for overe x tending h er visa, which had expired on Marc h 19, 2003. Mwathi was requested to appea r i n I mmigrat i o n Court on Dec ember

27, 2006, but she failed to a ppear . Mwathi was ther efor e orde red r emoved in abstentia

. Mwathi then fil ed a motion to reope n the case. The court g rante d her moti on on April 11, 2007. On J une 18, 2007, Mwathi ap p ea red befor e the I J and admitted to overstay ing her nonimmigra nt visa and conce ded remova bility

. She also rene wed her reque st for asy lum, withholding of re moval, CAT protec tion, and voluntary depar ture. On Dec ember 12, 2007, the I J co n d u ct ed a m erits hear ing in Cleveland, Ohio. At the hear ing, Mwathi testified that she is afr aid to return to Keny a beca use she believes that she will “be

a targ et of the g overnme nt officia l s responsible for her husband’s murder.” Her husband, Dr. Mwathi, was murdere d in April 1998 and his body was discovere d near his car . Dr. Mwathi was a well-known surg eon for the army and former ly worke d at a milit ary hospital in Keny a until his ag e forc ed him to retire

. During his time working at the milit ary hospital and then later in private prac tice, Dr. Mwathi’s patients, many of whom wer e prisoners, would discuss with him g overnme nt

corr uption in the procur ement of milit ary or g overnme ntal medical supplies and also the abuse they

rec eived at the hands of the g overnme nt.

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Mwathi’s testimony consisted of numerous incidents in which she was hara s sed and threa tened by members of the Keny an gover nment beg inning i n 1 9 9 6 until she l eft for the Unit ed States in 2002. Mwathi testified that sometime in 1996 or 1997, the family was awa kened in the ir home during the night by intruders who threa tened her family

. The intruders left afte r Dr. Mwathi fired a g un shot into t he air

to scare them awa

y . She also rec alled that her husband started to rec eive letters from Amnesty I nterna tional in 1996. The letters asked Dr. Mwathi to support and t o assist doctors who wer e trea ting political prisoners and torture victims and also urg ed him to contac t the medical association to encour ag e the g overnme nt to stop human rig hts violations. Acc ording to Mw athi, her husband did repor t human rig hts violations but she could not rec all the details of what was re ported. Mwathi testified that at

some point, the Keny an Depa rtment of Def

ense al s o i n q uired about the letters from Amnesty I nterna tional and stated that they did not approve of Dr. Mwathi providing medical trea tment to pr is o n e r s , ma

ny o f w h o m participa ted in political rallies and demonstrations ag ainst the g overnme nt. Mwathi testified that afte r her husband’s funer al, her fea r of perse cution incre as ed

. The police came to her home and arr ested her and her son, mother, and cousins. The police also sear ched the house and rec overe d a letter from Amnesty I nterna tional, reque sting Dr. Mwathi’s assistance to repor t human rig hts violations. The police detained Mwathi for ten day s in a detention cell that had

a leaky roof and inadequate bathroom fa ci l i ties. The police also questioned Mwathi about her husband’s political involvement and whether he had planned to ru n for political office

. Mwathi stated that the hara ssment and threa ts by the g overnme nt continued afte r sh e wa s re lease d from prison. She was falsely acc used of failing to pay taxes by the Gover nment’s Income Tax Offic e and

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hara ssed at her job and at home. Even afte r her job was eliminated, she experience d hara ssment by the g overnme nt as a b u s i n es s o wner selling wines and spirits. She sold her business in 2001 as a result of this hara ssment. I n addition to her testimony about perse cution, she also submitt ed news article s and repor ts discussing Keny a’s unstable p o l i tical environment including: the 1999, 2002, and 2006 U.S. Depa rtment of State Country

Reports, and a

2007 BB C news ar

ticle. The I J also hea

rd testimony from two witnesses who wer e fr iends of Dr . Mwathi and we re familiar with his political i n volvement. Mr. Meshak Kinjanjui (“K injanjui”) testified that he had b een friends with Dr. Mwathi since 1982. Kinjanjui stated that he was awa re that Dr. Mwat h i belong ed to a poli tical oppos ition g roup i n Kenya, but he did not know the name of Dr. Mwathi’s opposition party

. Kinjanjui also testified that he knew that Dr. Mwathi d i s ag ree d with cer tain milit ary office rs within the Depa rtment of Def

ense over the issue of g overnme nt corr uption, and Dr. Mwathi expressed conce rn that some g overnme nt leade rs knew of his disposi t i o n aga inst the g overnme nt. Kinjanjui testified t h at m any of these leade rs wer e unhappy about Dr. Mwathi’s outspokenness. Mr. Mg uambi Kar anja (“K ara nja”) also provided testimony at the hear ing and stated that he

was an acqua intance of Dr. Mwathi. Kar anja was the former manag ing editor of The East A frican Standard , a leading newspa per in Keny a. Kar anja testified that he suspected Dr. Mwathi’s death was

a political assassination and found it suspicious that the police wer e not continuing to investigate the murder. I n addition, Kar anja testified that it was well-kn o wn i n Keny a that the g overnme nt

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prohibited speaking out ag ainst g overnme nt corr uption, and that any one who did so could possibly be tar g eted by

the g overnme nt. The I J d enied Mwathi’s application and order ed her remove d. The I J found insufficient evidenc e to e stablish both past persec ution and the fe ar of future pe rsec ution in Keny a on ac count of an imputed political opinion. Mwathi filed a notice of appea l with the BI A. On J uly 1, 2009, the BIA aff irmed the I J ’s decision. The BI A conclude d that Mwathi failed to establish a harm rising to the level of

past perse cution or a well-founde d fea r of future persec ution. I n its decision, the B I A acknow ledg ed that the I J failed to set forth the “re asonable possibili ty ” standard for a well-founde d fea r of perse cution but deter mined that the omission was a harmless err or. See INS v. EliasZacarias , 502 U.S. 478, 489–90 (1992). Mwathi timely petitioned for revie w of the BI A’s decision to this Court, which has authority to reviewthe B I A dec ision under 8 U.S.C. § 1252. DISCUSSIO N I. P ERSECUTIO N Mwathi argues that the BIA err ed in finding that she failed to establish a nexus betwee n her fea r of perse cution from the g overnme nt and her husband’s political opinion. She contends that the evidenc e provided during the I J hear ing is pro o f t hat the Keny an g overnme nt will continue to perse cute he r bec ause he r husband, Dr . Mwathi, was a member of

a political opposition group. The Attorney Gene ral has the discretion to g rant asy lum to a ref

ug ee who shows that she has suffe red past perse cution “on acc ount of rac e, relig ion, nationality , membership in a particula r social g roup, or political opinion,” or that she has a well-founde d fea r of future perse cution o n these

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gro u n d s . 8 U.S.C. § 1101(a) (42). “Perse cution ‘re quires more than a few isolated incid en t s o f verba l hara ssment or intimi dation, unacc ompanied by any phy sical punishment, infliction of harm,

or signific ant depriva tion of liberty .’” Singh v. Ashcroft , 398 F.3d 396, 401 (6th Cir. 2005) (quoting Mikhailev itch v. INS , 146 F.3d 384, 390 ( 6th Cir. 1998)). The applicant bear s the burden of proof to establish that she is a re fug ee. 8 U.S.C. § 1158(b)( 1)(B )(I ). Once an applicant establishes past perse cution, there i s a rebuttable presumption that the applicant has a well-founde d fea r of future perse cution. 8 C.F. R

. § 1 2 08.13(b)( 1). Past perse cution is based on “the overa ll context of the applicant’ s situation.” Haider v. Holder , 595 F.3d 276, 286 (6th Cir. 2010) (interna l citation omitted). Thus, the I J revie ws the evidenc e of past perse cution “in the ag g reg ate, as a collection of harmful events, even though they may not qualify i ndividually as perse cution, that may taken t og ether constitute perse cution.” Id

. (interna l citations and quotation omitted). Howeve r, i f an applicant cannot demonstrate past perse cution, the applicant m ay es t ab lish ref ug ee status by independe ntly

showing that the applica

nt ha s a well-founde d fea r of f uture pe rsec ution if “there is

a rea sonable possibili ty of suffe ring such perse cution” upon return to he r native country

. 8 C.F.R. § 1208.13(b)( 2). A. P ast P erse cution Mwathi failed to produce sufficie nt evidenc e of past perse cution. T h ere is no connec tion betwee n the evidenc e of her husband’s membership in a political opposition g roup and Mwathi’s experience s of perse cution. I n addition, no evidenc e prese nted by Mwathi sug g ests that she was or is presently

a member

of the same political oppositi on g roup as he r husband.

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Mwathi’s relianc e on the case of Bu v. Gonzales , 490 F.3d 424 (6th Cir. 2007) is misplaced. I n Bu , we reve rsed the decision of the BI A and conclude d that Bu was detaine d as a “p olitical prisoner w ho was g uilty

of opposi tion to the gover nment.” Id

. at 429. Bu serve d as the c hairman of the labor union at a state-owne d optical equipment fac tory

. Bu stated that the fac tory had a “history of corr

uption

. . . and bribery .” Id

. at 425. As conditions in the fac tory declined and worke rs lost wag es and benef its, Bu org anized a strike to protest ag ainst the corr uption. Id

. at 426. Bu was later arr ested and questioned by the police about his involvement in the strike, in which he admitted his role in org anizing the fac tory worke rs. We found Bu provided sufficie nt evidenc e that his detainment was a result of his p o litical aff iliation. We also considere d in the ag g reg ate Bu’ s

e v id e n c e th at he “ac ted upon his political opinion about g overnme nt corr uption and that his detention and abuse wer e motivated by this a ctivity .” Id

. at 430. This included B u’s conf inement in jail for

seven day s wher e he was so sever ely beate n that he had to be taken to the hospital upon rele ase. I n addition, Bu’ s wife also rec eived threa tening phone calls and visits from the police inquiring about his wher eabouts. The 2002 U.S. Depa rtment of State Country repor t on Human Rights Practice s for China further corr oborate d Bu’ s alleg ations of imputed political op i n i o n finding that “off icial

corr uption was a major pr oblem in China at the time of B u’s enc ounter with t he loca l police.” Id

. at 428. The fact s in Bu are clea

rly distinguishable from the fac ts of this case . At most, Mwathi experience d some verba l a buse, threa

ts, a nd a brie f deta inment, but this hara ssment did not rise to the level of perse cution as it had in Bu or demonstrate the appropr iate nexus to her political opinion. I f Mwathi had any inclination that she was being perse cuted or fea red perse cution, she would have

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left Keny a immediately

. I nstead, Mwathi waited almost a y ear afte r she rec eived her non-immigra nt visa to move to the United States. There fore , the BI A’s conclusion that Mwathi did not experience past p er s ec u t ion or establish a well-founde d fea r of future perse cution on acc ount of her political opinion is supported by

substantial evidence

. B. F uture perse cution Since Mwathi failed to establish subs tantial evidenc e of past perse cution, she must independe ntly est ab l i s h evidenc e of future perse cution. Mwathi argues that the BI A ignor ed probative evidenc e in the 1999, 2002, and 2006 Country Reports, and a 2007 BB C news article that descr ibed Keny a’s unstable political environment. We revie w an I J ’s interpre tation of country conditions for whether t h e I J rea ched a “re asonable conclusion.” Koulji nski v. K eisler , 505 F.3d 534, 544 (6th Cir. 2007). The a pplicant is require d to identify “evide nce that compels the opposite conclusion” befor e we disturb t h e I J ’s trea tment of country

condition reports. Id . at 544. The I J proper ly considere d the co untry repor ts as part of hi s overa ll deter mination to deny Mwathi’s asy lum claim a n d found the reports inconsistent with Mwathi’s st atements. We ag ree . The 2006 U.S. Depa

rtment of State country repor t is contra ry to Mwathi’s argument of the likelihood of future perse cution. The re port conc luded that “ther e were no reports that the g overnme nt or its ag ents committed politically motivated killings during the y ear .” The repor t also stated that “ther e

wer e no re ports of political prisoners or detainee s.” Simi larly , the BB C news article also fails to corr oborate Mwathi’s argument of future perse cution. The BB C news story repor ted on supporters of political parties who wer e injured as a

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result of the disputed primary elec tions. There is no way to connec t this particula r news story with Mwathi’s evidence that Dr. Mwathi belong ed to a poli tical oppos ition party

. Neither Mwathi nor her two witnesses could provide testimony about Dr. Mwathi’s political a ffiliation. Both the 2002 and 1999 U.S. Depa

rtm ent of State country repor ts only summarized the political and social situation in Keny a an d d es cr ibed isolated incidents of political disputes. The repor ts do not indicate that political violence was widespre ad or sy stematic and do not support Mwathi’s claim of the likelihood of future perse cution. There fore the BIA proper ly conclude d that Mwathi failed to establish a nexus betwee n her f

ear of per secution and he r husband’ s anti-g overnme nt politi cal opinion. II. DUE P ROCESS VIOLATION Mwathi raises a due proce ss violation alleg ing that the BI A’s decisi o n was based upon unclea r and confusing finding s as the I J and BI A failed to articula te a leg al standard of proof to deny her asy lum claim. Mwathi also claims that the I J and BI A failed to consider t h e t otality of the evidenc e prese nted by Mwathi and that the I J based its decision to deny her petition on a prec onceive d view of the case . We revie w de novo alleg ations of due proce ss violations in removal h ea ri n gs . Ndrecaj v. Mukase y , 522 F.3d 667, 673 (6th Cir. 2008) (citing Mikhailev itch , 146 F.3d at 3 9 1 ). T he Fifth Amendment extends due proce ss rig hts to aliens entitling them to a full and fair hear ing; howeve r, the I J reta ins “broad discretion in c onducting that hear ing.” Lin v. Holder , 565 F.3d 971, 979 (6th Cir. 2009) (quoting Castellano-Chacon v. INS , 341 F.3d 533, 553 (6th Cir. 2003)). I n revie wing an alleg ed due proce ss violation, we conduct a two-step inquiry : 1) whether “ther e was a defe ct in the

remova l proce eding ;” and 2) “whe ther the alien was prejudice d beca use of it.” Vasha v. Gonzales , 9No. 09-3915

410 F.3d 863, 872 (6th Cir. 2005). A due proce ss violation occur s only when “the proce eding was

so fundame ntally unfair that the alien was preve nted from rea sonably prese nting his case .” Hassan

v. Gonzales , 403 F.3d 429, 436 (6th Cir. 2005) (quoting Ladha v. INS , 215 F.3d 889, 904 (9th Cir. 2000)). A. Defectin the Rem oval P roce eding Mwathi fails to establish that there was a defe ct in the remova l proce eding

. The BI A clea rly set forth a standard of revie w by stating in its decision that the fac tual finding s of the I J are revie wed de novo . I n aff

irming the I J ’s decision, the BI A explained that Mwathi did not prove by substantial evidenc e that she experience d past perse cutio n o r d em o n strate a rea sonable possibili ty of future perse cution. The BIA also cited to the appropr iate case law to further support its contention. Whil e the BIA acknow ledg ed that the I J did not “explicitly set forth the ‘re asonable possibili ty ’ standard” in revie w of Mwathi’s perse cution claim, the BI A asser ted that this mistake was harmless err or and that the I J corr ectly denied the asy lum application. Thus, the absenc e of an expli citly stated “re asonable possibili ty ” s t an d ar d was harmless and not dispositi ve to the outcome of the case . Reg ardle ss of the standard, we find the outcome in this case would rema in unchange d as Mwathi failed to e stablish the require d nexus t o a prote cted g roup. I n addition, the re is insuffic ient evidenc e to conc lude that the I J and B I A denied Mw athi’s claims based upon a prec onceive d notion of the case . The I J highlig hted holes in the testimony of Kinjanjui and Kar anja by stating that the testimony lacke d substance. We ag ree . The testimony of the two witnesses was more specula tion than subst an ce . T h e witnesses admitted that they wer e

unawa re of Dr. Mwathi’s political aff iliation y et they wer e unable to provide a sufficie nt explanation

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as to why Dr. Mwat h i feared for his safe ty and continuously spoke out ag ainst g overnme nt

corr uption. We find sufficie nt evidenc e to deter mine that the I J and BI A considere d all of the fac ts prese nted to make a

n informed de cision. B. P rej udi ce t o the Applicant We conclude that Mwathi did not fac e prejudice that would violate her due proce ss rig hts in view of the fac t that there is no evide nce of any defe ct of re moval proce eding s by the I J or B I A. III. WITHHO LDING OF REMOVAL AND THE CONVENTION AG AINST TORTURE Un d er the CAT, remova l must be withheld if it is more likely than not that the applicant would be tortured if remove d to the proposed country of remova l. 8 C.F.R. § 120 8

. 1 6 (c )( 2 ). I n order to succe ed on a withholding of remova l claim, an applicant “must show a clea r probability of perse cution.” Dugboe v. Holder , 644 F.3d 462, 472 (6th Cir. 2011) (interna l citation and quotation omitted). I f the BIA adopts the I J ’s decision to deny an applicant’ s withholding of remova l claim under the CAT, we revie w “the I J ’s decision direc tly to deter mine whether the decision of the BI A should be upheld on appea l.” Amir v. Gonzal es , 4 6 7 F. 3 d 921, 924 (6th Cir. 2006) (quoting Gilaj v. Gonzales , 408 F.3d 275, 282–83)(6th Cir. 2005)). We must uphold the I J ’s denial of withholding under the CAT unless it is “manife stly contra ry to the law.” Ali v. Reno , 237 F.3d 591, 596 (6th Cir. 2001). Mwathi argues that the I J err ed in its decision to deny her withholding of remova l claim and protec tion under CAT. We have previously rec og nized that both withholding of remova l claims and CAT claims require a highe r level of scrutiny compar ed to estab l i shing a claim for asy lum. See

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Pilica v. Ashcroft , 388 F.3d 841, 951 (6th Cir. 2004); Koliada v. INS , 259 F.3d 482, 489 ( 6th Cir. 2001). Mwathi’s evidenc e does not meet t h e heig htened standard for relief under withholding of

remova l and CAT. Ther efor e, we deny the petition for re view on this basis. CONCLUSION For the fore g oing r easons, we DENY Mwathi’s petition for re view.

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