United States Court of Appeals

For the First Circuit

No. 04-1103

MARICELLA MUMBI NJENGA; SAMUEL GITIMU RUHIU,

Petitioners,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Okon J. Usoro and Okon J. Usoro, P.C., on brief, for

petitioners.

Song E. Park, Attorney, Office of Immigration Litigation,

Civil Division, United States Department of Justice, with whom

Michelle E. Gorden, Attorney, and Peter D. Keisler, Assistant

Attorney General, were on brief, for respondent.

October 20, 2004
1The Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,

was implemented in the United States by the Foreign Affairs Reform

and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112

Stat. 2681-761 (codified at 8 U.S.C. § 1231).

2The Homeland Security Act of 2002, Pub. L. No. 107-296,

§ 471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C.

§ 291(a)), abolished the INS and transferred its duties to the

Department of Homeland Security.

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STAHL, Senior Circuit Judge. Petitioners Maricella Mumbi

Njenga ("Njenga") and Samuel Gitimu Ruhiu ("Ruhiu") seek review of

the decision of the Board of Immigration Appeals ("BIA") to deny

their application for asylum, withholding of removal, and relief

under the United Nations Convention Against Torture ("CAT").1 We

affirm the BIA's decision.

I. Background

Njenga is a native and citizen of Kenya. She entered the

United States on September 6, 1996 as a non-immigrant visitor.

In April 2001, the Immigration and Naturalization Service

("INS") issued a notice of removal that charged Njenga with

unlawfully remaining in the United States and being subject to

removal under 8 U.S.C. § 1227(a)(1)(B).2 At her removal hearing

before an immigration judge ("IJ"), Njenga conceded that she was

removable, but she applied for relief in the form of asylum,

withholding of removal, or relief under CAT.

Ruhiu, also a native and citizen of Kenya, entered the

United States on March 15, 1998 as a non-immigrant student. In
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2001, Ruhiu, like Njenga: (1) was accused of unlawfully remaining

in the United States; (2) was charged with being subject to removal

under § 1227(a)(1)(B); and (3) at his removal proceeding, conceded

that he was removable. Ruhiu, however, did not apply for asylum,

withholding of removal, or relief under CAT. Instead, he alleged

that he and Njenga were married and attempted to derivatively

benefit from Njenga's application.

 During her removal hearing, Njenga stated that: (1) she

and her family were either members of, or otherwise involved with,

the Mungiki, a religious group that rejects Western culture in

favor of traditional African values; (2) the Mungiki forcefully

advocate female genital mutilation ("FGM"); (3) members of the

Mungiki live throughout Kenya; (4) if she returns to Kenya, members

of the Mungiki will subject her to FGM, and the Kenyan government

will persecute her because of her connections to the Mungiki; and

(5) she married Ruhiu before she left Kenya. Njenga submitted

documents to support her testimony, including two unsigned

affidavits from one of her brothers discussing the Mungiki, and an

array of articles from a variety of sources about the Mungiki.

In response to a request from the IJ, the United States

Department of State ("DOS") submitted an advisory letter pertaining

to the Mungiki. The letter averred that: (1) the DOS "has seen no

reports of anyone being threatened with harm for leaving the

Mungiki"; (2) the DOS "is unaware of any incident of anyone being
3In the alternative, the IJ found that Njenga failed to

establish that she was otherwise eligible for asylum.

4For example, the IJ noted that Njenga was unable to provide

details of the beliefs and practices of the Mungiki, other than

those contained in the articles she submitted, despite her

testimony that she and her family were members of, or otherwise

involved with, the group.

5For instance, Njenga initially claimed that she was too young

in 1992 to participate in Mungiki activities, but she later stated

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harmed because of his or her relative's affiliation with the

Mungiki"; (3) the Mungiki "are not present throughout [Kenya]"; (4)

"government action against the Mungiki generally is against members

who were engaged in some form of public, and at times disorderly,

action"; and (5) the DOS "is unaware of any case in which the

Mungiki have forced a woman to undergo FGM."

On April 26, 2002, the IJ denied Njenga's application for

relief and ordered that she and Ruhiu either voluntarily leave the

United States or be removed to Kenya. The IJ found that Njenga was

barred from applying for asylum because her application was

untimely and she was ineligible for the exception to the

requirement that such applications be timely filed.3 In addition,

the IJ concluded that Njenga failed to establish her eligibility

for withholding of removal or relief under CAT. The IJ based her

conclusion on her determination that Njenga was not a credible

witness. In making that determination, the IJ stressed that

Njenga's testimony, particularly her testimony about the Mungiki,

lacked sufficient detail,4 was inconsistent,5 and was not supported
that she began participating in Mungiki activities in 1992.

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by the submitted documentary evidence. Finally, the IJ declared

that even if Njenga had established her eligibility for relief,

Ruhiu would not have been entitled to benefit from that eligibility

because he and Njenga were not married.

Njenga and Ruhiu appealed the IJ's decision to the BIA.

On December 17, 2003, the BIA adopted and affirmed the IJ's ruling.

Njenga and Ruhiu then filed a timely appeal to this court.

In their petition to this court, Njenga and Ruhiu argue

that: (1) their removal proceedings were void because the charging

documents issued to them, that is, the notices to appear, were

either not signed or not signed by an appropriate individual; (2)

the IJ and BIA erred when they found that Njenga was ineligible to

apply for asylum; (3) the IJ and BIA erred when they concluded that

Njenga failed to establish her eligibility for withholding of

removal or relief under CAT; and (4) the IJ and BIA erred when they

determined that Njenga and Ruhiu were not married.

II. Discussion

Generally, "Courts of Appeals review decisions of the

[BIA], and not those of an IJ. When the BIA does not render its

own opinion, however, and either defers [to] or adopts the opinion

of the IJ, a Court of Appeals must then review the decision of the

IJ." Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003)
6At Njenga's removal hearing, Njenga's counsel informed the IJ

that the charging document issued to Njenga had not been signed.

The IJ responded that she had a signed copy of the document and

that the INS could provide Njenga with a new copy of the document.

Njenga's counsel replied, "That's fine, Your Honor." There was no

other discussion of the issue before the IJ or BIA.

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(alterations in original) (quoting Gao v. Ashcroft, 299 F.3d 266,

271 (3d Cir. 2002)).

Decisions of the IJ and BIA will be upheld if "supported

by reasonable, substantial, and probative evidence on the record

considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotation and citation omitted); see Settenda v.

Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). The abovementioned

standard "applies both to asylum and withholding claims as well as

to claims brought under CAT." Settenda, 377 F.3d at 93. The IJ

and BIA's determinations will be reversed "only if the . . .

evidence would compel a reasonable factfinder to conclude that

relief was warranted." Id.

A. Charging Documents

Njenga and Ruhiu first contend that the charging

documents issued to them were either not signed or not signed by a

proper individual and, consequently, their removal proceedings were

void. This argument was never raised before the IJ or BIA.6 Thus,

Njenga and Ruhiu may not raise the argument before this court. See

8 U.S.C. § 1252(d)(1) (A court may review a final order of removal

only if "the alien has exhausted all administrative remedies
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available to the alien as of right."); Opere v. INS, 267 F.3d 10,

14 (1st Cir. 2001) (Because the arguments in question were "never

raised before the [BIA, t]hey are . . . waived for failure to

exhaust administrative remedies.").

B. Asylum

Njenga and Ruhiu next claim that the IJ and BIA erred in

determining that Njenga was ineligible for asylum because her

application for asylum was untimely and she failed to demonstrate

her eligibility for the exception to the requirement that such

applications be timely filed. An individual applying for asylum

must "demonstrate[] by clear and convincing evidence that the

application has been filed within 1 year after the date of the

[individual's] arrival in the United States." 8 U.S.C.

§ 1158(a)(2)(B). There is, however, an exception to the one-year

filing requirement that applies if the applicant "demonstrates to

the satisfaction of the Attorney General either the existence of

changed circumstances which materially affect the applicant's

eligibility for asylum or extraordinary circumstances relating to

the delay in filing an application . . . ." 8 U.S.C.

§ 1158(a)(2)(D). Significantly, "[n]o court shall have

jurisdiction to review any determination of the Attorney General"

concerning whether an applicant for asylum filed an untimely

application or qualifies for the exception to the filing

requirement. 8 U.S.C. § 1158(a)(3).
7As a result, we need not decide whether Njenga was otherwise

eligible for asylum.

8Njenga also claims that the denial of her request for asylum

should be reversed because the IJ was not impartial and failed to

instruct Njenga, who was represented by counsel, on the nuances of

immigration law with regard to proving "changed circumstances"

under § 1158(a)(2)(D). Yet, a review of the record reveals no

indication that the IJ was partial. Moreover, it is not a judge's

responsibility to instruct a represented party on the nuances of

the law. And, even if the IJ were required to so instruct Njenga,

Njenga has not demonstrated that she was prejudiced by any lack of

instruction; in fact, Njenga submitted a plethora of documents and

testimony on the issue of "changed circumstances."

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The IJ found that Njenga filed her application for asylum

more than one year after her arrival in the United States and did

not qualify for the exception to the filing requirement. The BIA

adopted and affirmed the IJ's findings. We agree with our sister

circuits that the unambiguous language of § 1158(a)(3) bars review

in this court of those findings.7 See Tarrawally v. Ashcroft, 338

F.3d 180, 185 (3d Cir. 2003); Tsevegmid v. Ashcroft, 336 F.3d 1231,

1234-35 (10th Cir. 2003); Fahim v. U.S. Attorney Gen., 278 F.3d

1216, 1217-18 (11th Cir. 2002); Hakeem v. INS, 273 F.3d 812, 815

(9th Cir. 2001); Ismailov v. Reno, 263 F.3d 851, 854-55 (8th Cir.

2001); see generally Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir.

2003) ("[Section] 1158(a)(3) could bar our review of the IJ's

determination of the timeliness of [a petitioner's] asylum

application . . . ."). Therefore, Njenga's appeal of the denial of

her asylum request is unavailing.8
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C. Withholding of Removal

Njenga and Ruhiu also assert that the IJ and BIA erred in

concluding that Njenga did not establish her eligibility for

withholding of removal. To establish eligibility, Njenga had to

prove that, "upon deportation, [s]he [was] more likely than not to

face persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion."

Salazar v. Ashcroft, 359 F.3d 45, 52 (1st Cir. 2004) (emphasis in

original) (citing INS v. Stevic, 467 U.S. 407, 424 (1984)).

Njenga and Ruhiu claim that Njenga carried her burden.

But, the IJ and BIA's well-documented conclusion that Njenga failed

to support her withholding application with credible testimony

dooms their claim on appeal. See Gailius v. INS, 147 F.3d 34, 47

(1st Cir. 1998) ("[T]he IJ must, if he or she chooses to reject [an

applicant's] testimony as lacking credibility, offer a specific,

cogent reason for [the IJ's] disbelief.") (third alteration in

original) (internal quotation and citation omitted). As support

for her conclusion, the IJ pointed to: (1) the inconsistencies in

Njenga's testimony; (2) Njenga's failure to support her testimony,

particularly her testimony about the Mungiki, with sufficient

detail; (3) Njenga's submission of unsigned affidavits from her

brother; and (4) the letter from the DOS, which contradicted the
9Njenga contends that the BIA erred in addressing "the issue

of credibility when there was no issue of credibility in the case."

Yet, in her decision, the IJ clearly questioned Njenga's

credibility, stating, for example, that she "does not believe

[Njenga's] testimony . . . that her entire family were members of

the Mungiki."

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vast majority of Njenga's statements regarding the Mungiki. The

BIA adopted and affirmed the IJ's findings.9

The record evidence does not compel the conclusion that

Njenga established her eligibility for withholding; rather, it

provides substantial support for the IJ and BIA's conclusion to the

contrary. The denial of Njenga's request for withholding is

affirmed.

D. CAT

As a final matter, Njenga and Ruhiu maintain that the IJ

and BIA erred in determining that Njenga failed to establish her

eligibility for relief under CAT. An applicant seeking relief

pursuant to CAT must "establish that it is more likely than not

that he or she would be tortured if removed to the proposed country

of removal." 8 C.F.R. § 208.16(c)(2) (emphasis added); see also

Saint Fort v. Ashcroft, 329 F.3d 191, 196 (1st Cir. 2003) (citing

§ 208.16(c)(2)). "For an act to constitute torture it must be:

(1) an act causing severe physical or mental pain or suffering; (2)

intentionally inflicted; (3) for a proscribed purpose; (4) by or at

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

official who has custody or physical control of the victim; and (5)
10Njenga's application for asylum, withholding of removal, or

relief under CAT was rightly denied. Therefore, it is unnecessary

for us to review the IJ and BIA's determination that Njenga and

Ruhiu were not married. Ruhiu, as Njenga's alleged husband, sought

to derivatively benefit from Njenga's application, and because

Njenga was rightly denied relief, it is immaterial whether she and

Ruhiu were married.

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not arising from lawful sanctions." Elien v. Ashcroft, 364 F.3d

392, 398 (1st Cir. 2004) (emphasis added) (internal quotation and

citations omitted); see 8 C.F.R. § 208.18(a)(1).

Far from compelling a conclusion contrary to that reached

by the IJ and BIA, the record evidence supports the IJ and BIA's

finding that Njenga failed to establish "it is more likely than

not" she will be tortured "by or at the instigation of or with the

consent or acquiescence of a public official" if she is removed to

Kenya. The letter from the DOS indicates that it is unlikely that

Njenga will be tortured if removed to Kenya. In addition, the

letter suggests that it is even more unlikely that she will be

tortured "by or at the instigation of or with the consent or

acquiescence of a public official." The additional questions

surrounding Njenga's credibility further add to the reasonableness

of the IJ and BIA's finding. The denial of Njenga's request for

relief under CAT is affirmed.10

Affirmed.