UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1893

LINAH JEROTICH TALLAM,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Argued: December 5, 2012 Decided: March 13, 2013

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Petition denied by unpublished opinion. Judge Niemeyer wrote 

the opinion, in which Judge Wilkinson and Judge Gregory joined.

ARGUED: William Payne, PAYNE & ASSOCIATES, Washington, D.C., 

for Petitioner. Nicole J. Thomas-Dorris, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON 

BRIEF: Tony West, Assistant Attorney General, Civil Division, 

Jennifer L. Lightbody, Senior Litigation Counsel, UNITED STATES 

DEPARTMENT OF JUSTICE, Office of Immigration Litigation,

Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
2

NIEMEYER, Circuit Judge:

Linah Jerotich Tallam, a native and citizen of Kenya, filed 

this petition for review of an order of the Board of Immigration 

Appeals (“BIA”) dismissing her appeal from an immigration 

judge’s order denying her application for asylum, withholding of 

removal, and protection under the Convention Against Torture 

(“CAT”). The BIA agreed with the immigration judge that Tallam 

had not established her eligibility for relief. Because the 

record does not compel us to conclude otherwise, see INS v. 

Elias-Zacarias, 502 U.S. 478, 483-84 (1992), we deny the 

petition for review. 

I

Linah Tallam entered the United States in August 2001 on a 

student visa that authorized her to remain through the 

completion of her studies or, at the latest, December 13, 2007. 

In December 2007, as she was preparing to return to Kenya with 

her American daughter, the country erupted in ethnic violence 

following the presidential election, held on December 27, 2007. 

According to a March 2008 report by Human Rights Watch, the 

opposition candidate’s one-million vote lead mysteriously 

disappeared as the final votes were being counted, and the 

incumbent candidate, Mwai Kibaki, a member of the Kikuyu tribe, 

was suddenly declared the winner on December 30, 2007. J.A. 
3

196. After the results were announced, “[m]obilized opposition 

supporters -- especially in the Rift Valley and the slums of 

Nairobi -- attacked those whom they assumed had voted for 

Kibaki, and his [political party], in large part the Kikuyu. 

This assigned an ethnic dimension to the violence and angry 

Kikuyu then fought back.” J.A. 178. “The scale and speed of 

the violence that engulfed Kenya following the controversial 

presidential election . . . shocked both Kenyans and the world 

at large. Two months of bloodshed left over 1,000 dead and up 

to 500,000 internally displaced persons . . . .” J.A. 176.

According to Tallam, her family was tragically affected by 

these events. Tallam states that she learned by phone from her 

brother Moses that members of the Kikuyu tribe had attacked all 

of the members of the Kalenjin tribe living in her home village 

of Benonin, which is located outside the town of Eldama Ravine 

in Kenya’s Rift Valley in a predominately Kikuyu area. J.A. 

130-32, 155, 296. Moses told her that on January 5, 2008, 

Kikuyu men burned down their mother’s home, along with the 

nearby homes of two of their other brothers, causing their 

family to flee to other parts of Kenya. J.A. 296-97. She later 

found out from Moses that on February 14, 2008, members of the 

Kikuyu tribe murdered her sister Lydia and raped one of her 

cousins. J.A. 297. 
4

Based on this information, on April 8, 2008, Tallam filed 

an application for asylum, withholding of removal, and relief 

under the CAT, claiming a fear of persecution on account of her 

membership in the Kalenjin tribe. An asylum officer declined to 

grant Tallam’s application and instead referred it to the 

Immigration Court. The Department of Homeland Security 

subsequently initiated removal proceedings against Tallam, 

charging her with being subject to removal under 8 U.S.C. 

§ 1227(a)(1)(B) for having overstayed her non-immigrant visa.

Appearing before an immigration judge in June 2009, Tallam 

conceded her removability but renewed her requests for asylum, 

withholding of removal, and CAT protection. Alternatively, she 

requested voluntary departure. After hearing Tallam’s testimony 

and reviewing the documentary evidence submitted by both sides, 

the immigration judge denied Tallam’s application. First, the

judge ruled that Tallam’s asylum application was time barred, as 

it was filed more than one year after she last entered the 

United States and neither of the exceptions that would excuse an 

untimely filing applied. After making this initial ruling, the 

judge proceeded to articulate an alternative, merits-based 

rationale for denying Tallam’s application. Although the judge 

found Tallam’s testimony credible and found that Tallam had a 

genuine subjective fear of persecution, the judge found that she 

had not demonstrated an objectively reasonable basis for that 
5

fear. In this regard, the judge noted that the reports in the 

record on conditions in Kenya indicated that the acute period of 

election-related violence had ended. Moreover, the judge found, 

even though some inter-ethnic violence still existed in Kenya, 

Tallam had not demonstrated that she could not reasonably 

relocate within Kenya, especially given her testimony that many 

of her family members had relocated to other areas in Kenya and 

that two of her siblings had even returned to Eldama Ravine. 

The immigration judge also emphasized that the Kenyan government 

had made significant efforts to quell the country’s inter-ethnic 

violence. Accordingly, the judge denied Tallam’s requests for 

asylum, withholding of removal, and CAT protection, although the 

judge granted her alternative request for voluntary departure.

By order dated July 18, 2011, the BIA affirmed, finding 

that it need not decide whether Tallam’s asylum application was 

timely filed because Tallam had not established a well-founded 

fear of future persecution on account of a protected ground. 

The BIA found that the “country condition evidence in the record 

shows that inter-ethnic violence carried out by various ethnic 

groups, including the Kalenjin, occurred for 2 months after the 

2007 presidential election,” but that the country’s political 

parties had responded to the crisis by reaching a power-sharing 

agreement that also established a Commission of Inquiry on 

political violence, an Independent Review Committee on 
6

elections, and a Truth, Justice, and Reconciliation Commission. 

The BIA also agreed with the immigration judge that Tallam had 

not met her burden of establishing that it would not be 

reasonable for her to relocate to another part of Kenya. 

Because she had not demonstrated her eligibility for asylum, the 

BIA additionally found Tallam could not satisfy the higher 

burden applicable to withholding of removal. Finally, the BIA

agreed that Tallam had not shown that it was more likely than 

not that she would be tortured by the Kenyan government or with 

the government’s consent or acquiescence and that she therefore 

did not qualify for CAT protection. The BIA accordingly 

dismissed Tallam’s appeal and reinstated the period for her 

voluntary departure.

Tallam timely filed this petition for review of the BIA’s 

decision.

II

The Immigration and Nationality Act authorizes the Attorney 

General to grant asylum to a person unable or unwilling to 

return to her native country “because of persecution or a wellfounded 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); id. § 1158(b). 

The applicant “bear[s] the burden of proving eligibility for 
7

asylum.” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006). 

If the asylum applicant shows past persecution, she is presumed 

to have a well-founded fear of persecution. 8 C.F.R. 

§ 1208.13(b)(1). Without regard to past persecution, the 

applicant has a well-founded fear of persecution if (1) she “has 

a fear of persecution in . . . her country of nationality . . . 

on account of race, religion, nationality, membership in a 

particular social group, or political opinion;” (2) “[t]here is 

a reasonable possibility of suffering such persecution if . . . 

she were to return to that country;” and (3) “she is unable or 

unwilling to return to, or avail . . . herself of the protection 

of, that country because of such fear.” Id. § 1208.13(b)(2)(i). 

The well-founded fear standard therefore contains both

subjective and objective components. The subjective element may

be satisfied “by presenting candid, credible, and sincere 

testimony demonstrating a genuine fear of persecution,” Chen v. 

INS, 195 F.3d 198, 201 (4th Cir. 1999) (internal quotation marks 

omitted), while the “objective element requires a showing of 

specific, concrete facts that would lead a reasonable person in 

like circumstances to fear persecution,” Ngarurih v. Ashcroft, 

371 F.3d 182, 187-88 (4th Cir. 2004).

To establish a well-founded fear of persecution, an asylum 

applicant need not show that she would be individually targeted 

for persecution if she establishes that “there is a pattern or 
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practice . . . of persecution of a group of persons similarly 

situated to the applicant.” 8 C.F.R. § 1208.13(b)(2)(iii). In 

such a case, “[t]he key for the applicant is to show the 

thorough or systematic nature of the persecution he fears.” 

Chen, 195 F.3d at 203. The applicant is ineligible for asylum, 

however, if she “could avoid persecution by relocating to 

another part of [her] country of nationality . . . [and] if 

under all the circumstances it would be reasonable to expect 

[her] to do so.” 8 C.F.R. § 1208.13(b)(2)(ii). If the 

applicant has not established past persecution or that the 

feared persecution would be by a government or governmentsponsored, the applicant “bear[s] the burden of establishing 

that it would not be reasonable for . . . her to relocate.” Id.

§ 1208.13(b)(3)(i). 

A determination of the BIA must be supported by substantial 

evidence, and we review its decision under a highly deferential 

standard. Under that standard, its factual determinations “are 

conclusive unless any reasonable adjudicator would be compelled 

to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, 

we may reverse the BIA’s findings only if the evidence presented 

was “so compelling that no reasonable factfinder could fail to 

find the requisite fear of persecution.” Elias-Zacarias, 502 

U.S. at 484; Ngarurih, 371 F.3d at 188. And “[t]he agency 

decision that an alien is not eligible for asylum is ‘conclusive 
9

unless manifestly contrary to the law and an abuse of 

discretion.’” Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 

2010) (quoting 8 U.S.C. § 1252(b)(4)(D)). 

Tallam argues that the BIA’s determination that she is 

ineligible for asylum is not supported by substantial evidence. 

While she has never claimed to be the victim of past 

persecution, she contends that “the egregious behavior inflicted 

on her family by the Kikuyu tribe, unchecked by the government 

in conjunction with the country conditions of ethnic violence, 

gave her a well founded fear of persecution based on her social 

group.” We conclude, however, that the record evidence, taken 

as a whole, does not compel the conclusion that Tallam had a 

well-founded fear of persecution in June 2009, when the 

immigration judge considered her asylum application. Instead, 

as the BIA found, both of the primary reports in the record on 

conditions in Kenya -- the U.S. Department of State 2007 Country 

Report on Human Rights Practices, dated March 11, 2008; and a 

March 2008 report by the Human Rights Watch entitled, “Ballots 

to Bullets: Organized Political Violence and Kenya’s Crisis in 

Governance” -- indicate that the acute inter-ethnic violence 

that beset Kenya after the December 2007 election had largely 

ended by the spring of 2008.

Tallam attempts to controvert this conclusion with two 

pieces of evidence. First, she points to a U.N. News Service 
10

article, dated October 24, 2008. But that article simply 

reports that a Deputy High Commissioner for Human Rights, when 

visiting Kenya, called for the nation’s leaders “to address 

issues -- such as violations of socio-economic rights, land 

issues, large disparities between classes, marginalization and 

exclusion -- at the root of the [post-election] violence.” J.A. 

377. If anything, this article actually supports the agency’s 

finding that the violence had largely subsided by the time the 

immigration judge considered Tallam’s asylum application.

Tallam also points to her testimony that the week before 

her asylum hearing, she learned from her brother Moses that one 

of their neighbors had been killed. J.A. 144-45. Her brother 

did not have information regarding the circumstances of the 

neighbor’s death, other than claiming that he “knew” that the 

neighbor had been killed by a member of the Kikuyu tribe because 

he had been decapitated. J.A. 145. But this isolated act of 

lingering inter-ethnic violence does not compel the conclusion 

that, at the time of the asylum hearing, there was “a pattern or 

practice” in Kenya of persecuting the Kalenjin based on their 

tribal membership so as to make Tallam’s fear of persecution 

objectively reasonable. See 8 C.F.R. § 1208.13(b)(2)(iii); 

Chen, 195 F.3d at 203.

Additionally, Tallam completely fails to address the BIA’s 

findings that the persecution she subjectively fears is neither 
11

by the government nor government sponsored. In that 

circumstance, she “bear[s] the burden of establishing that it 

would not be reasonable for . . . her to relocate,” 8 C.F.R. 

§ 1208.13(b)(3)(i), a burden she failed to carry. As both the 

immigration judge and the BIA emphasized, Tallam’s testimony 

suggests that her mother and her eight living siblings have all 

safely relocated within Kenya. J.A. 133-37, 146-48. Indeed, 

Tallam testified that two months before her asylum hearing, two 

of her siblings had returned to Eldama Ravine, apparently 

without incident. J.A. 136-37, 146-47. The record is also 

devoid of any recent affidavits or letters, from either Tallam’s 

family members or other members of the Kalenjin tribe, reporting 

that the Kalenjin are still being persecuted by the Kikuyu.

For these reasons, we conclude that substantial evidence 

supports the BIA’s affirmance of the immigration judge’s denial 

of Tallam’s application for asylum.

Turning to Tallam’s request for withholding of removal 

under 8 U.S.C. § 1231(b)(3), such relief is only available to 

applicants who are “more likely than not” to face future 

persecution, a burden of proof more onerous than the wellfounded fear standard for asylum. 8 C.F.R. § 1208.16(b)(2); see

also Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). 

Because we affirm the BIA’s conclusion that Tallam failed to 

establish a well-founded fear of future persecution, it follows 
12

that her proof also fails to establish her eligibility for 

withholding of removal.

Finally, we conclude that substantial evidence supports the 

BIA’s denial of CAT relief. The evidence in the record does not 

compel the conclusion that Tallam will, more likely than not, be 

tortured by, or with the acquiescence of, Kenyan government

officials, as is necessary to qualify for protection under the 

CAT. See 8 C.F.R. §§ 1208.16(c), 1208.18(a). Rather, the 

objective record evidence indicates that the Kenyan government 

has gone to significant lengths to respond to the severe interethnic violence sparked by the December 2007 presidential 

election. There is simply nothing in the record that would 

compel a reasonable factfinder to agree with Tallam that

government officials would, more likely than not, participate 

in, or be complicit in, the torture of a returning Kenyan 

citizen. We accordingly affirm the BIA’s denial of Tallam’s 

request for CAT protection.

For the foregoing reasons, we deny Tallam’s petition for 

review. 

PETITION DENIED