Ngugi v. Lynch

• Citation: 826 F.3d 1132
• Decision Date: 27 June 2016
• Docket Number: No. 15–2376,15–2376
• Parties: Paul Ngwenyi Ngugi, Petitioner, v. Loretta E. Lynch, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

826 F.3d 1132

Paul Ngwenyi Ngugi, Petitioner

v.Loretta E. Lynch, Attorney General of the United States, Respondent.

No. 15–2376

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2016

Filed: June 27, 2016

Counsel who represented the petitioner was Kelsey Elizabeth Beckner of Seattle, WA.

Counsel who represented the respondent was Walter Bocchini of Washington, DC.

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

GRUENDER

, Circuit Judge.

Paul Ngugi, a native and citizen of Kenya, petitions for review of a decision of the Board of Immigration Appeals (BIA) that affirmed an immigration judge's (IJ) denial of his petition for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We deny the petition for review.

I.

Ngugi is a citizen of Kenya and a member of the Kikuyu ethnic group. Before coming to the United States in 2009, he worked in the transportation industry. While working as a driver, Ngugi began to come in contact with members of the Mungiki, a Kikuyu sect that, according to evidence presented by Ngugi, is “seen as Kenya's version of the mafia.”¹ First, they demanded protection money from Ngugi. Later, starting in March 2005, the Mungiki approached Ngugi to join them to help recruit and train younger members. Ngugi had been recruiting and training new drivers and bus conductors, encouraging them to become transport drivers instead of joining the Mungiki. When Ngugi refused to join the Mungiki, they threatened him.

In early June 2005, four Mungiki members hijacked Ngugi's minibus, ordering everyone to the floor and directing Ngugi at gunpoint to drive them to a “slum,” where they robbed the passengers and beat Ngugi. Later that month, six Mungiki members armed with guns and knives attacked Ngugi at his home after he had parked his minibus, robbing both him and the conductor. The Mungiki members demanded to know why Ngugi had not joined them. Ngugi again refused to join them, prompting the attackers to beat him, hit him with the butt of a gun, and stab him in the thigh. Ngugi received treatment at a hospital for his injuries but did not report the incident out of fear. Mungiki members attacked Ngugi again in August 2005 while he was a passenger on a minibus. Although he tried to escape the Mungiki by working for a long-distance driving company, they robbed and attacked him twice more, in October and December 2008.

After those attacks, Ngugi left Kenya. He obtained a J–1 visa to attend the University of Missouri–Columbia, entering the United States on March 22, 2009 with authorization to remain until April 22, 2010. During this period, Ngugi met and married Ruthie McKnight, a U.S. citizen. As McKnight intended to petition for Ngugi to become a lawful permanent resident, he applied for a no-objection letter for his J–1 visa and applied for waiver of the foreign-residence requirement. He received approval of the waiver on February 1, 2011. Soon afterward, the couple decided to divorce.

Ngugi filed a Form I–589 application for asylum with United States Citizenship and Immigration Services in April 2011. On his application, he checked boxes indicating that he was seeking asylum based on persecution on account of religion, political opinion, membership in a particular social group, as well as seeking protection under the CAT. He stated that the Mungiki had targeted him because they wanted to control and profit from the transportation industry, and Ngugi was an educated Kikuyu working in that industry. He further stated that he refused to join the Mungiki because, as a Christian, he “d[id] not approve of the nature of their group, or their activities.” In explaining his fear of harm upon return to Kenya, he stated that “[t]he Mungiki group is mad at me because I have refused to join them,” that they were interested in him because of his education and demonstrated leadership skills, and that the Mungiki targeted the transportation industry for extortion.

Ngugi testified to the facts above at his hearing before the IJ. In his pre-hearing brief, Ngugi argued that he had been persecuted and that he had a well-founded fear of persecution “based on his status as (1) the victim of crime, in this case, extortion; (2) a Kikuyu who resisted recruitment by the Mungiki; and (3) a member of the transportation industry.” He argued that his proposed particular social groups were the same as the particular social group of “Mungiki defectors” previously held socially visible in Kenya by this court in Gathungu v. Holder , 725 F.3d 900, 908 (8th Cir. 2013)

. Ngugi also submitted documentary evidence that included news articles and reports about the Mungiki.

The IJ issued a written decision denying Ngugi's claims. With regard to Ngugi's asylum claim, the IJ first found that Ngugi had failed to establish past persecution on account of his claimed bases of religion, membership in a particular social group, or political opinion. The IJ reasoned that the Mungiki had not attacked him “on account of” his religion but rather because they wished to recruit him. Likewise, the IJ found Ngugi's political opinion to amount to no more than a generalized opposition to the Mungiki's criminal activity. Next, the IJ rejected Ngugi's proposed particular social groups of extortion victim, participant in the transportation industry, and witness to Mungiki criminal activity. The IJ concluded that “[a]fter reviewing the evidence, it would appear that [Ngugi] was targeted by the Mungiki because he refused to join their organization” and concluded that opposition to gang activity or refusal to join criminal gangs were not bases for particular social groups.

The IJ also found that Ngugi had failed to establish a well-founded fear of future persecution because, even assuming the objectivity of Ngugi's fear, his fear of future harm was “based upon general conditions of crime and violence that affect all Kenyans,” such that Ngugi's fear was “not sufficiently ‘particularized.’ ” The IJ also rejected Ngugi's argument that he had a well-founded fear of persecution based on membership in the recognized particular social group of Mungiki defectors because Ngugi never had joined the Mungiki.

With Ngugi's asylum claim rejected, the IJ necessarily rejected Ngugi's withholding-of-removal claim. Finally, the IJ rejected Ngugi's CAT claim because Ngugi had not presented evidence that he or any family member ever had undergone torture in Kenya or that he would be at risk for torture upon return to Kenya.

Ngugi appealed to the BIA. The BIA adopted and affirmed the IJ's reasoning and conclusions, dismissing Ngugi's appeal and ordering Ngugi removed from the United States. This petition for review followed.

II.

“We review questions of law de novo , and we review the agency's factual determinations under the substantial evidence standard.” De Castro–Gutierrez v. Holder , 713 F.3d 375, 379 (8th Cir. 2013)

. “Under the substantial evidence standard, the agency's findings of fact must be upheld unless the alien demonstrates that the evidence he presented not only supports a contrary conclusion but compels it.” Id. (quoting Al Yatim v. Mukasey , 531 F.3d 584, 587 (8th Cir. 2008) ). When, as here, the BIA adopted the findings or reasoning of the IJ, we review the IJ's decision as part of the final BIA action. Etenyi v. Lynch , 799 F.3d 1003, 1006 (8th Cir. 2015).

To establish eligibility for asylum, “an applicant must show that [he or] she is unable or unwilling to return to [his or] her country of origin ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Marroquin–Ochoma v. Holder , 574 F.3d 574, 577 (8th Cir. 2009) (quoting 8 U.S.C. § 1101(a)(42)(A)

). “As the wording of the statute indicates, the alien must show not only persecution or a fear of persecution, but also that such persecution is ‘on account of one of the five protected grounds.’ ” Onsongo v. Gonzales , 457 F.3d 849, 852 (8th Cir. 2006) (quoting Hassan v. Ashcroft , 388 F.3d 661, 666 (8th Cir. 2004) ); see also

Gomez v. Gonzales , 425 F.3d 543, 545 (8th Cir. 2005) (“To reverse the finding that the alleged persecution was not based on a protected ground, it is necessary that the record compel the finding that a protected ground motivated the [persecution].”). Here, substantial evidence supports the IJ's and BIA's conclusion that Ngugi did not suffer persecution “on account of” his claimed protected grounds of political opinion, religion, or membership in a particular social group.

Ngugi first argues that he was persecuted on account of his political opinion. Although Ngugi did not advance before the IJ any specific political opinion he held or that the Mungiki imputed to him, the IJ characterized Ngugi's argument as claiming a political opinion “related to his opposition to the criminal activity of the Mungiki.” Ngugi attempts to bolster this characterization on appeal by urging that, because the Mungiki participate in the corruption of the political process in Kenya, his refusal to join them and his community activism in motivating others to refuse to join them represented the expression of a political opinion. However, Ngugi testified persistently that the Mungiki targeted him because they wanted him to join them and to train their new recruits. Even if the Mungiki comprise a politically natured gang, “the mere refusal to join [such a gang], without more, does not compel a finding that the gang's threats were on account of an imputed political opinion.” See Marroquin–Ochoma , 574 F.3d at 579

.

Ngugi next argues that he was persecuted on account of his religion, claiming that, “as a practicing Christian, [he] could never join such a violent criminal group.” However, Ngugi neither testified nor presented any other evidence that the Mungiki were aware of his religious motivation for refusing to join them or of his religious beliefs more generally. Cf. I.N.S. v....