# United Stat es Court of Appeals For the First C ircuit

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 , Attor ney, Office of Immigration Litigation, Civil Division, United States Department of Jus tice, with whom Michelle E. Gorden , Attorney, and Peter D. Keisler , Assistant Attorney General, were on brief, for respondent.

October 20, 20041 The Convention Against Torture and Other Cru el, 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 Restr ucturing Act of 1998, Pub. L. No. 105-277, § 2242, 1 1 2 Stat. 2681-761 (codified at 8 U.S.C. § 1231).

2 The Homeland Security Act of 2002, Pub. L. No. 107-2 96 , § 471, 116 Stat. 2135, 2205 (cod ifi ed as amended at 6 U.S.C. § 291(a)), abolished the INS and transferred its duties to the Department of Homeland Security. -2- STAHL, Senior Circuit Judge . Petitioners Maricella Mumbi Njenga ("Njenga") andSamuel Gitimu Ruhiu ("Ruhiu") seek review of the decision of the Board of Immigration Appeals ("BIA") to deny their applicatio n fo r asylum, withholding of removal, and relief under the U nited 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 unlawfullyremaining in the United States and being subject to removal under 8 U.S.C. § 1227(a)(1)( B). 2 At her removal hearing b efore an immigration judge ("IJ"), Njenga conceded that s he wa s removable, but she applied for relief in the form of asylum, withholding of removal, or relief under CAT.

Ruhiu, also a native and citizen o f Keny a, entered the UnitedStates on March 15, 1998 as a non-i mmigrant student. In-3-

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 at tempted to derivatively benefit from Njenga's application.

During her removal hearing, Njenga stated that: (1) she andher 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 ("F GM") ; (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 averredthat: (1) the DOS "has seen no reports of anyone being threatened with harm for le aving the Mungiki"; (2) the DOS "is unaware of any incident of anyone being3 In the alternative, the IJ found that Njenga failed to

establish that she was otherwise eligible for asylum.

4 For example, the IJ noted that Njenga was u nabl e to provide details of the beliefs and practices of the Mungiki, other than those contained in the articles she su bmit ted, despite her testimonythat she and her family were members of, or otherwise involved with, the group.

5 For instance, Njenga initially claimedthat she was too young in 1992 to participate in Mungiki activities, but she later stated -4- harmedbecause of hi s o r 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 "i s unaware o f 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 UnitedStates or be removed to Kenya. The IJ found that Njenga was barredfrom 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 c onclud ed 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 str ess ed that Njenga's testimony, particularly her testimony about the Mungiki, lackedsufficient detail, 4 was inconsistent, 5 and was not supportedthat she began participating in Mungiki activities in 1992. -5- by the submitted documentary evidence. Finally, the IJ declared that even if Njenga had established her eligi bil ity 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 adoptedandaffirmed 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 applyfor 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 Gen e rally, "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.3 d 365, 373 (1st Cir. 2003)6 At 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. -6- (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 rea sonable, 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.3 d at 93. The IJ andBIA's determinations w ill be reversed "only if the . . . evidence w ouldcompel 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 h as e xhausted all administrative remedies-7-

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 raisedbefore the [BIA, t]hey are . . . waived for failure to exhaust administrative remedies."). B. Asylum Njenga and Ruhiu next claimthat the IJ and BIA erredin 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 time ly fil ed. An individual applying for asylum must "demonstrate[] by clear and convincing evidence that the application has been filed within 1 year after the d ate 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 Attorn ey General either the existence of changedcircumstances 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). Signifi cantl y, "[n]o court shall have jurisdiction to review any determination of the Attorney General" concerning whether an applic ant for asylum filed an untimely applicatio n or qualifies for the exception to the filing requirement. 8 U.S.C. § 1158(a)(3).7 As a result, we need not decide whether Njenga was otherwise

eligible for asylum.

8 Njenga 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 provin g "ch anged 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 nu ances of the law. And, even if the IJ were required to so instruct Njenga, Njenga has not demonstratedthat she was prejudiced by any lack of instruction; in fact, Njenga submitteda plethora of documents and testimony on the issue of "changed circumstances." -8- The IJ foundthat Njenga filedher 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 Tarrawallyv. Ashcroft , 338 F.3d180, 185 (3d Cir. 2003); Tsevegmidv. Ashcroft , 336 F.3d 1231, 1234-35 (10th Cir. 2003); Fahimv. U.S. Attorney Gen. , 278 F.3d 1216, 1217-18 (11th Cir. 2002); Hakeemv. INS , 2 73 F. 3d 812, 815 (9th Cir. 2001); Ismailovv. Reno , 263 F.3d 851, 854-55 (8th Cir. 2001); see generally Haoudv. Ashcroft , 350 F.3d 201, 205 (1st Cir. 2003) ("[Section] 1158(a)(3) could bar ou r 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. 8-9- C. Withholding of Removal Njenga andRuhiu also assert that the IJ and BIA erred in concluding that Njenga did not establish h er e ligibility for withholding of r emoval . To establish eligibility, Njenga had to prove that, "upon deportation, [s]he [was] more likely than not to face pe rsecution 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 car ried her burden. But, the IJ and BIA's well-documentedconclusion that Njenga failed to support her withholding application with credible test imony 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 ap plic ant's] testimony as lacking credibility, offer a specific, cogent reason for [the IJ's] disbelief." ) (t hird alteration in original) (internal quotation and citation omi tted ). As support for her conclusion, the IJpointed to: (1) the inconsistencies in Njenga's testimony; (2) Njenga's failure to support her testimony, particularlyher testimony about the Mungiki, with su ff icient detail; (3) Njenga's submission of unsigned affidavits from her brother; and (4) the letter from the DOS, which contradicted the9 Njenga con tends that the BIA erred in addressing "the issue

of credibility when there was no issue of credibilityin the case." Ye t, in her decision, the IJ clearly questioned Njeng a' s credibility, stating, for example, that she "does not believe [Njenga's] testimony . . . that her entire family were members of the Mungiki." -10- vast m ajority 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 Njeng a established her eligibility for withholding; rather, it provides substantial support for the IJ and BIA's conclusion to the contrary. Th e denial of Njenga's request for withholding is affirmed. D. CAT

As a final matter, Njenga and Ruhiu maintain that the IJ andBIA erred in determining that Njenga failed to establish her eligibility for relief under CAT. An applicant seeking relief pursu ant to CAT must "establish that it is more likely th an no t 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 t o constitu te 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)10 Njenga's application for asylum, withholding of removal, or

relief under CAT was rightly denied. Therefore, it is unnecessary for us to review the IJ an d BIA's determination that Njenga and Ruhiu were not married. Ruhiu, as Njenga's alleged husband, sought to derivativel y ben efit from Njenga's application, and because Njenga was rightly denied relief, it is immaterial whether she and Ruhiu were married. -11- 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 sug gest s 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.