Wanjiku v. Barr

• Decision Date: 15 March 2019
• Docket Number: No. 18-1675,18-1675
• Citation: 918 F.3d 215
• Parties: Rosemary WANJIKU, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

918 F.3d 215

Rosemary WANJIKU, Petitioner,

v.William P. BARR, United States Attorney General,^* Respondent.

No. 18-1675

United States Court of Appeals, First Circuit.

March 15, 2019

Duane M. Hamilton, Esq. on brief for petitioner.

Joseph H. Hunt, Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, and Corey L. Farrell, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, on brief for respondent.

Before Lynch, Circuit Judge, Souter,^** Associate Justice, and Stahl, Circuit Judge.

STAHL, Circuit Judge.

Petitioner Rosemary Wanjiku, a native and citizen of Kenya, seeks review of an order by the Board of Immigration Appeals ("BIA") denying her motion to reopen removal proceedings based on changed country conditions. Wanjiku was first ordered removed to Kenya in 2013, but she did not leave the country at that time. More than three years later, in 2016, she sought to reopen proceedings, claiming that conditions within Kenya had changed since her prior removal proceedings and now supported a claim for asylum. An Immigration Judge ("IJ") denied her motion, concluding that the conditions complained of were continuing, not changed, and the BIA affirmed that decision on June 22, 2018. After careful review, we find the BIA did not abuse its discretion and deny the petition accordingly.

I.

On or about March 19, 2000, Wanjiku entered the United States at Newark, New Jersey, with authorization to remain for a temporary period, not to exceed September 18, 2000.¹ Wanjiku remained in the country well past that date and, on July 19, 2010, she married a U.S. citizen. Shortly thereafter, the couple filed papers to adjust Wanjiku's status to that of a permanent resident alien. The Department of Homeland Security ("DHS") notified Wanjiku's spouse of its intent to deny the application, and the couple sought to withdraw their respective petitions in June 2012.

On July 16, 2012, DHS issued Wanjiku a Notice to Appear (the "Notice"), which charged Wanjiku with removability for remaining in the United States beyond the term authorized by her visa in violation of 8 U.S.C. § 1227(a)(1)(B). The Notice separately alleged that Wanjiku's marriage was a sham and constituted a fraudulent attempt to procure an immigration benefit, and so charged her with removability under 8 U.S.C §§ 1182(a)(6)(C)(i) and 1227(a)(1)(A). Wanjiku conceded removability for overstaying her visa, but denied any fraud.

At a hearing held on April 22, 2013, DHS withdrew the fraud charge, electing to seek Wanjiku's removal only for overstaying her visa. Wanjiku did not file an application for relief or seek adjustment of her status, however, and at the conclusion of the hearing, the IJ ordered Wanjiku removed to Kenya. Wanjiku did not preserve her appeal and took no further action at that time.

Wanjiku remained in the United States despite the removal order and, on September 28, 2016, she filed a motion to reopen removal proceedings to pursue "asylum and related humanitarian claims based on changed circumstances and country conditions." See 8 C.F.R. §§ 1003.2(c)(2) ; 1003.23(b)(4)(i). Wanjiku alleged that a confluence of factors, including an attack on her daughters (who remained in Kenya), had made her fearful of returning there and thus, for the first time, eligible for asylum. The following discussion provides an overview of the factual claims Wanjiku presented in support of her motion.

Wanjiku belongs to a sub-clan "governed by a council of elders who make important decisions for [her] people." "[I]ts over [2,000] members can be found all over Kenya," and "the elders can mobilize sub-clan members throughout the nation to carry out [their] wishes." In 1985, contrary to prevailing custom that allows only men to inherit land, Wanjiku's grandfather left Wanjiku and her daughters a land inheritance. Her uncle was "furious" with the bequest and has allegedly disputed and encroached on Wanjiku's claim to the parcel since 1987. Wanjiku also asserted that land values in Kenya have been on the rise in recent years and implied that this trend may have animated her uncle's displeasure with her inheritance.

On April 14, 2016, Wanjiku's uncle called Wanjiku and stated that he wanted to sell her property. At her request, two of Wanjiku's daughters traveled in person to see if the uncle was in fact going to sell the land. When they arrived, however, Wanjiku's uncle "chased" them away. While Wanjiku's daughters thereafter sought intercession by local elders, the uncle² interfered with those efforts, sending "gangs" to attack her daughters and threatening the sub-clan's chief.

Subsequent to those events, Wanjiku alleges that her uncle spread rumors that Wanjiku is (or has become) a lesbian and threatened Wanjiku's daughters with female genital mutilation ("FGM"). Wanjiku asserts that the increasing threats to lesbian, gay, bisexual and transgender ("LGBT") individuals in Kenya "give[ ] people like [her] uncle new cover and justification" for violence. Further, she claims that stigma will allow her uncle to "beat [ ] and possibly kill" her with impunity, if not with assistance from the police and community. Wanjiku specifically alleges that her uncle, aided by the rumors of her sexuality, has the influence to leverage the Mungiki warriors -- "a traditionalist, religious and political group" -- against her.

Wanjiku also alleges that she faces a risk of persecution based on her religion. In support, she cites the increasing violence by al-Shabaab, an East African Islamist insurgent group, against Kenyan Christians.

Wanjiku supported her motion to reopen with her own affidavit attesting to the above facts, evidence of her grandfather's death and her uncle's status as "proprietor" of the Kenyan land, and documents evidencing the attacks against her daughters. Wanjiku also provided State Department and media reports on conditions in Kenya, including reporting on anti-LGBT rhetoric from powerful political and religious leaders, rising land prices which have caused sometimes violent disputes, and al-Shabaab's 2014 declaration that Kenya is a "war zone" and its role in a series of terrorist attacks.

On November 28, 2016, the IJ denied Wanjiku's motion to reopen. The IJ began by noting that Wanjiku's motion, filed more than three years after entry of the order of removal, was untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (requiring motions to reopen to be filed within 90 days of removal order, subject to certain exceptions); 8 C.F.R. § 1003.2(c)(2) (same). The IJ then concluded that her motion and evidence failed to demonstrate changed country conditions which might excuse her non-compliance with that limitations period. 8 C.F.R. § 1003.2(c)(3)(ii). Instead, the IJ found that Wanjiku's motion was "predominantly based on changed personal circumstances" and failed to demonstrate any meaningful, relevant change in Kenya's country conditions. In particular, the IJ concluded that Wanjiku's evidence of climbing land prices (and resultant disputes), anti-LGBT discrimination, and al-Shabaab violence demonstrated a continuation of conditions already in existence at the time of her prior hearing.³ The IJ further declined to reopen the proceedings sua sponte and denied the motion accordingly.

Wanjiku appealed the IJ's decision and, on May 15, 2017, the BIA issued a decision that affirmed the IJ's denial of the motion on discretionary grounds only without reaching the IJ's other findings. Following appeal to this court, the Government made an unopposed motion to remand the case to the BIA to allow it to "more fully address all of the [IJ's] grounds for denying Wanjiku's motion." On October 11, 2017, this court granted the Government's motion, vacated the May 15, 2017 BIA decision, and remanded for further proceedings.

On remand, the BIA again affirmed the IJ's denial of the motion to reopen. It concluded that "the IJ did not reversibly err in finding [that] the [ ] country conditions" cited by Wanjiku "were examples of continuing conditions, rather than changed country conditions." Though noting that Wanjiku's changed "personal circumstances may place her at increased risk of harm," the BIA concluded that this potential future harm remained "grounded in continuing country conditions, rather than material changed country conditions." Accordingly, the BIA dismissed Wanjiku's appeal.

II.

In her present appeal, Wanjiku argues that the agency's decisions erred in finding that conditions within Kenya had not changed since her prior hearing in 2013. Specifically, she argues that both the BIA and IJ overlooked two statements evidencing increased threats to LGBT persons and from al-Shabaab violence, and misconstrued her argument concerning violence resulting from land value increases.⁴ Before delving into the details of those contentions, we begin by introducing the framework against which the agency's decision is evaluated and the standards we apply in undertaking that evaluation.

A.

As a general matter, motions to reopen immigration proceedings must be filed "within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(7)(C)(i) ; see also 8 C.F.R. § 1003.2(c)(2). The time limit does not apply to motions to reopen in order to seek asylum or withholding of removal, however, if the relevant motion "is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii) ; see also 8 C.F.R. § 1003.2(c)(3)(ii). "It is well-established that an applicant bears the burden of establishing changed country circumstances for purposes of § 1003.2(c)(3)(ii)," Larngar v. Holder, 562 F.3d 71, 76 (1st Cir. 2009), and must "make a convincing demonstration" of the claimed change, Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir. 2015) (alteration...