371 F.3d 182 (4th Cir. 2004), 03-1144, Ngarurih v. Ashcroft

Docket Nº:03-1144.
Citation:371 F.3d 182
Party Name:David Wachira NGARURIH, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.
Case Date:June 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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371 F.3d 182 (4th Cir. 2004)

David Wachira NGARURIH, Petitioner,


John D. ASHCROFT, Attorney General of the United States, Respondent.

No. 03-1144.

United States Court of Appeals, Fourth Circuit

June 10, 2004

Argued: Jan. 20, 2004.

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[Copyrighted Material Omitted]

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Philip Gordon Schrag, Center for Applied Legal Studies, Georgetown University Law Center, Washington, D.C., for Petitioner.

Deborah Nirmala Misir, Trial Attorney, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.


Peter D. Keisler, Assistant Attorney General, Papu Sandhu, Senior Litigation, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Petition denied by published opinion. Judge SHEDD wrote the majority opinion, in which Judge WILKINSON joined. Judge GREGORY wrote an opinion concurring in part and dissenting in part.


SHEDD, Circuit Judge:

The Board of Immigration Appeals ("BIA") affirmed an order denying David Wachira Ngarurih's request for asylum but granting voluntary departure. Within the time permitted for appeal and shortly before the period for voluntary departure expired, Ngarurih filed this petition for review. Applying the narrow standards of review prescribed by Congress in the immigration statute, we conclude that the BIA's denial of asylum is neither manifestly contrary to law nor an abuse of discretion. We further conclude that the statute does not permit a court of appeals to alter the period allowed by the BIA for voluntary departure, either by reinstating or staying the departure period. Accordingly, the petition for review is denied.


Ngarurih is a native and citizen of Kenya who entered the United States in May 1995 on a nonimmigrant student visa. Ngarurih filed an application for asylum in May 2000, alleging that he had been persecuted by the Kenyan government due to his criticisms of President Daniel Arap Moi and his government's tea farming policies.

Ngarurih began farming tea on a portion of his father's land in the early 1990s. The Kenyan government owned the tea plants and licensed the right to cultivate them. Under the license, tea farmers were required to maintain their plantations in accordance with instructions issued by the Kenya Tea Development Authority ("KTDA"); farmers could neither increase nor decrease the number of tea plants they cultivated without KTDA approval. Failure to comply with the conditions of the license could result in a fine, imprisonment, or both.

Licensed farmers were required to sell their tea to the KTDA, which marketed the tea internationally. Although the KTDA sold tea on the international market for 40 shillings per kilogram, it paid tea farmers only 3 shillings per kilogram. This payment typically was inadequate to cover the costs of production, so that tea farmers were almost always in debt.

In 1992, Ngarurih and some friends publicly protested the KTDA's policies and announced that they would no longer sell their tea to the KTDA. Soon other farmers began discussing a widespread boycott of the KTDA. Ngarurih then organized a march to the local KTDA tea processing factory to demand an accounting for the excess profits that had been withheld from farmers. As a result of the boycott that Ngarurih organized, tea production in

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Kenya's Central Province slowed dramatically.1

On July 17, 1992, Ngarurih organized a march to take the farmers' protest to local government officials in the Central Province. Some thirty thousand people joined this march. Ngarurih spoke to the crowd, denouncing the KTDA's policies and the Moi government's failure to address the needs of poor farmers. The district commissioner heard the farmers' protests and asked that a committee present him written demands. Among the farmers' demands were that the district tea committee be dissolved, that certain licenses and taxes be eliminated, and that the KTDA decentralize management of factories and increase monthly payments to farmers.

A few days after the July 17 march, security officers escorted Ngarurih to the home of the district commissioner. According to Ngarurih, the district commissioner offered him a bribe to call off the boycott of the KTDA. Ngarurih refused the offer. Shortly after this incident, President Moi issued a statement warning "those inciting the farmers" to end the boycott or face "dire consequences." Concerned for his safety, Ngarurih went into hiding. After hearing that other tea farmers were being arrested, Ngarurih surrendered to district authorities in early August 1992.

Ngarurih testified that three officers took him from his cell at the local police station, handcuffed and blindfolded him, and drove him to a wooded area, where they demanded that he name the other leaders of the boycott. Under threat of execution, Ngarurih refused to identify the other leaders. The officers then took Ngarurih to a prison, where Ngarurih was stripped of his clothes and placed in a dark cement cell. The cell had no light, no windows, and no toilet. For one week, prison officials flooded the cell with cold water at irregular intervals. The water level rose and fell, often rising to the level of Ngarurih's chest. Ngarurih could not eat or sleep, nor was he allowed contact with other people. During this period, Ngarurih experienced hallucinations in which he saw himself separate from his own body, floating in another part of the cell. Prison officials moved Ngarurih into a dry solitary confinement cell, where he remained for several months.2

After being relocated to the jail in his home district, Ngarurih was tried on a charge of treason. The local magistrate dismissed the charge for lack of evidence and ordered Ngarurih released. Local authorities immediately charged Ngarurih with breach of the peace. The magistrate offered to release Ngarurih if he would post a bond of one million shillings and agree to refrain from political activity for one year. Under the magistrate's conditions, Ngarurih could not meet with more than three Kenyans at a time or leave his home district without permission. Ngarurih would have to report to local police officials every other week. Ngarurih agreed to these conditions, and other tea farmers raised the money (pledging their land titles as security) to satisfy the bond. Thus, after about eight months of detention, Ngarurih was released from custody in early April 1993.

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Rather than face another confrontation with the government, Ngarurih decided to leave Kenya. With the help of three Peace Corps volunteers in his district, Ngarurih obtained a student visa to enter the United States in May 1995. Ngarurih attended St. Gregory's College in Oklahoma, where he played basketball and earned an associate's degree in business. Ngarurih later earned a degree in international business management from the University of San Francisco.

Ngarurih returned to Kenya in June 1997 after learning that his younger brother Njoka--whom Ngarurih had reared from childhood--had been jailed. Njoka had pled guilty to two counts of defiling a girl under the age of fourteen and sentenced to eight years in prison with hard labor and "six strokes of the cane" for each count. Once Ngarurih arrived in his village, he wrote to the trial court to obtain Njoka's file; the court granted Ngarurih's request and sent him the records. Ngarurih hired an attorney to challenge Njoka's conviction, and he traveled to other villages to investigate the facts of the case. Ngarurih's efforts were ultimately successful: His brother's conviction was reversed and his case remanded for a new trial. Ngarurih personally posted a bond to secure Njoka's release from prison. Several days after Njoka's release, Ngarurih returned to the United States in August 1997.

Ngarurih's student visa was set to expire in 2000. Not wanting to return to Kenya, Ngarurih filed an initial application for asylum and withholding of removal based on past persecution by the Moi government. The Immigration and Naturalization Service ("INS") commenced removal proceedings.3 Ngarurih conceded that he was removable and applied for asylum, withholding of removal, and protection under the Convention Against Torture. Ngarurih asserted that he should be deemed a refugee based on his past persecution. In addition, Ngarurih asserted that he had a well-founded fear of future persecution because (1) President Moi remained in power, (2) Kenyan authorities continued to employ torture tactics, and (3) Ngarurih would likely come to these authorities' attention as an outspoken political opponent.

The Immigration Judge ("IJ") found that Ngarurih had been subject to past persecution in Kenya, but she denied the request for asylum because Ngarurih's two-month return to Kenya in 1997 demonstrated that he was willing to return to his native country and that he could be involved in public matters--such as a criminal appeal--without reprisal by the Kenyan government. Although the IJ denied Ngarurih's claims for asylum and withholding of removal, she granted voluntary departure, giving Ngarurih thirty days to leave the United States at his own expense and without further government action. Ngarurih appealed the IJ's order to the BIA, which affirmed the IJ's disposition of Ngarurih's claims.

The BIA concluded that Ngarurih's return to Kenya in 1997 constituted a "fundamental change in circumstances [that] diminishe[d] his claim" that he feared persecution in Kenya.4 Likewise, the BIA

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concluded that Ngarurih's return to Kenya diminished his claim that he was entitled to asylum...

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