Mutuku v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELLINAH KALUMU MUTUKU, 

Petitioner, No. 05-73609

v.

 Agency No.

A075-586-093

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 1, 2010—Pasadena, California

Filed April 9, 2010

Before: Betty B. Fletcher, Harry Pregerson, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Pregerson

5419

MUTUKU v. HOLDER 5421

COUNSEL

Land Wayland, Diamond Bar, California, for the petitioner.

Jessica Segall and Annette M. Wietecha, U.S. Department of

Justice Office of Immigration Litigation, Washington, D.C.,

for the respondent.

5422 MUTUKU v. HOLDER

OPINION

PREGERSON, Circuit Judge:

Ellinah Kalumu Mutuku (“Mutuku”) petitions for review of

the Board of Immigration Appeals’s (“BIA”) dismissal of her

appeal of the immigration judge’s (“IJ”) denial of her claims

for asylum, withholding of removal, and relief under the Con-

vention Against Torture (“CAT”). We have jurisdiction under

8 U.S.C. § 1252. We dismiss the petition for review with

respect to Mutuku’s asylum claim, deny the petition with

respect to her CAT claim, and grant the remainder of her peti-

tion and remand to the BIA for further proceedings.

I. Background

Mutuku is a fifty-seven-year-old native and citizen of

Kenya. In Kenya, she worked for Lutheran World Relief, a

Christian non-governmental organization, and was an orga-

nizer and supporter of the Democratic Party, the leading

opposition party in Kenya at the time. In August 1992, a band

of armed men came looking for her at her house, burned down

her home, beat her sister, and harassed her mother. The men

told Mutuku’s mother, who escaped the fire, that they would

kill Mutuku if she did not stop her political activities. Mutuku

submitted several photographs of her destroyed home to the

IJ. After this incident, Mutuku received three phone calls

threatening to “come for [her] head” if she did not cease her

political activities. Finally, in October 1992, Mutuku was

almost hit by a Kanu Party (“KANUP”) activist driving a

truck.

Mutuku fled Kenya and came to the United States in

November 1992 on a B-2 visitor visa. The Immigration and

Naturalization Service (now the Bureau of Immigrations and

Customs Enforcement of the Department of Homeland Secur-

ity) issued Mutuku a Notice to Appear on September 11,

1998, charging her as removable because she had overstayed

MUTUKU v. HOLDER 5423

her visa. In response, Mutuku applied for asylum, withholding

of removal, and relief under CAT, claiming that she had been

persecuted on the basis of her political opinion in Kenya and

would likely be persecuted or tortured if she were to return.

On February 18, 2004, the IJ denied Mutuku’s claims for

asylum, withholding of removal, and relief under CAT. The

IJ held that Mutuku was ineligible for asylum for three sepa-

rate and independently sufficient reasons: her application was

barred by the one-year statute of limitations; she was not cred-

ible and thus her testimony did not establish past persecution;

even if she had suffered past persecution, she did not have a

well-founded fear of future persecution because conditions in

Kenya were no longer hostile towards members of the Demo-

cratic Party. He further denied withholding of removal on the

basis of the latter two reasons, credibility and changed coun-

try conditions. Finally, he held that Mutuku was not eligible

for CAT relief because the Democratic Party was now in

power in Kenya, and thus it was not likely that she would be

subjected to torture if she were to return.

On May 25, 2005, the BIA affirmed the IJ’s decision in a

per curiam order. With respect to asylum, the BIA affirmed

the IJ’s decision only on the basis that Mutuku’s application

for asylum was not timely. With respect to withholding of

removal and CAT relief, the BIA adopted and affirmed the

IJ’s decision in its entirety, citing to Matter of Burbano, 20 I.

& N. Dec. 872, 874 (BIA 1994). Thus, we review the BIA’s

decision regarding asylum and the IJ’s decision regarding

withholding of removal and CAT relief. See Ahir v. Mukasey,

527 F.3d 912, 916 (9th Cir. 2008); Abebe v. Gonzales, 432

F.3d 1037, 1039 (9th Cir. 2005) (en banc).

II. Asylum

[1] The BIA correctly found that Mutuku’s application for

asylum was barred by the one-year statute of limitations.1 8

1

Mutuku arrived in the United States in November 1992 and applied for

asylum in May 1998. Although the IJ describes Mutuku’s application as

5424 MUTUKU v. HOLDER

U.S.C. § 1158(a)(2)(B). Mutuku’s hope that conditions in

Kenya would improve does not constitute an extraordinary

circumstance excusing her delay in applying for asylum. See

8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5). We dismiss

Mutuku’s petition insofar as it relates to her asylum claim.

Mutuku’s application for withholding of removal and relief

under CAT, however, is not time barred. See El Himri v.

Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004).

III. Withholding of Removal

a. Adverse Credibility Determination

The IJ denied Mutuku’s application for asylum and with-

holding of removal because he found that her testimony was

not credible. With respect to asylum, the BIA disclaimed reli-

ance on the IJ’s adverse credibility finding, and chose to

affirm solely on the basis that Mutuku’s application was not

timely. See Ahir, 527 F.3d at 916 (citing Plasencia-Ayala v.

Mukasey, 516 F.3d 738, 743 (9th Cir. 2008) overruled on

other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903

(9th Cir. 2009)); Abebe, 432 F.3d at 1040 (citing Tchoukhrova

v. Gonzales, 404 F.3d 1181 (9th Cir. 2005), vacated on other

grounds, 549 U.S. 801 (2006)). However, the BIA did adopt

and affirm the IJ’s adverse credibility determination insofar as

it provided a basis for denying Mutuku’s application for with-

holding of removal.

[2] The IJ found that Mutuku was not credible because,

though Mutuku had testified that she had almost been run

being six years delayed, Mutuku actually applied only two months late.

Title 8 U.S.C. § 1158(a)(2)(B) requires an applicant to demonstrate by

clear and convincing evidence that his or her asylum application was filed

within one year of the “date of the alien’s last arrival in the United States

or April 1, 1997, whichever is later.” 8 C.F.R. § 1208.4(a)(2)(ii). Mutuku

filed for asylum on or around May 30, 1998, only one year and almost two

months after April 1, 1997, so her application was less than two months

past the one-year deadline.

MUTUKU v. HOLDER 5425

over by a truck driven by a KANUP supporter in 1992, she

did not mention this significant event in her asylum applica-

tion. Credibility determinations are reviewed under the sub-

stantial evidence standard. Soto-Olarte v. Holder, 555 F.3d

1089, 1091 (9th Cir. 2009); Don v. Gonzales, 476 F.3d 738,

741 (9th Cir. 2007). The IJ was clearly incorrect; Mutuku’s

asylum application states that she was “threatened in Septem-

ber of 1992 and [she] was almost run down by a vehicle

owned by Kanu Party which is the ruling political party in

Kenya.” The IJ’s adverse credibility finding was premised on

a clearly erroneous factual finding, and we reverse.

b. Changed Country Conditions

The IJ also found that Mutuku was ineligible for withhold-

ing of removal because, even if her testimony established past

persecution, conditions in Kenya had become less dangerous

for members of the Democratic Party and she no longer had

a well-founded fear of returning to her home country.

As a threshold matter, we have jurisdiction to review the

IJ’s finding. The government contends that Mutuku did not

challenge that finding before the BIA and, consequently,

failed to exhaust her administrative remedies under 8 U.S.C.

§ 1252(d)(1). The government’s exhaustion argument fails.

Mutuku argued the issue of changed county conditions before

the IJ, who found against her on this point. The BIA adopted

and affirmed the IJ’s decision on withholding of removal, cit-

ing Matter of Burbano, 20 I. & N. Dec. at 874. Where an

issue has been presented to the IJ, and the BIA affirms the IJ

decision citing Matter of Burbano, the issue is deemed

exhausted. Arreguin-Moreno v. Mukasey, 511 F.3d 1229,

1232 (9th Cir. 2008). We have jurisdiction.

[3] Past persecution gives rise to a presumption of a well-

founded fear of future persecution. 8 C.F.R.

§ 1208.16(b)(1)(i); Mousa v. Mukasey, 530 F. 3d 1025, 1030

(9th Cir. 2008). The government may rebut this presumption

5426 MUTUKU v. HOLDER

by proving by a preponderance of the evidence that there has

been a fundamental change of circumstances in Kenya “such

that the applicant’s life or freedom would not be threatened.”

8 C.F.R. § 1208.16(b)(1)(i)(A). If the IJ or BIA finds that this

burden has been met by the government, it must provide an

“individualized analysis of how changed conditions will

affect the specific petitioner’s situation.” Garrovillas v. INS,

156 F.3d 1010, 1017 (9th Cir. 1998) (internal quotation marks

omitted). “Information about general changes in the country

is insufficient for the government to overcome the presump-

tion.” Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004)

(citing Rios v. Ashcroft, 287 F.3d 895, 901 (9th Cir. 2002)).

We review factual findings regarding changed country condi-

tions for substantial evidence. Lopez, 366 F.3d at 805.

[4] Substantial evidence does not support the IJ’s finding

that conditions in Kenya had improved for members of the

Democratic Party to such an extent that Mutuku no longer has

a well-founded fear of returning to Kenya. The IJ based his

finding on the fact that Mwai Kibaki, leader of the Demo-

cratic Party, was elected President of Kenya in 2002. He

replaced Daniel arap Moi, the leader of KANUP. The IJ relied

heavily on the first sentence from the first paragraph of the

State Department’s 2002 Human Rights Country Report for

Kenya (“2002 Country Report”), which states that “Kenya is

a republic dominated by a strong presidency.” This sentence

is too thin a reed on which to deny Mutuku withholding of

removal. The 2002 Report was released on March 31, 2003,

but it covered the period from January 1, 2002, through

December 31, 2002, so the Report covered only one day after

Kibaki was sworn in as President and only four days after he

had won the election. It did not provide substantial evidence

that there was a fundamental change of circumstances in

Kenya caused by Kibaki’s election.

[5] The 2002 Country Report, when considered in its

entirety, confirms that abuses like those suffered by Mutuku

are still common in Kenya. If the IJ had continued to the sec-

MUTUKU v. HOLDER 5427

ond page of the 2002 Country Report, he would have read that

Kenya’s human rights record remained poor. Abuses by

security forces, particularly the police, are common. Political

activists like Mutuku are routinely targeted by police for

harassment, arbitrary arrest, excessive force, rape, abuse, and

even extrajudicial killing. “The Kenyan Human Rights Com-

mission . . . has documented more than a thousand cases of

extrajudicial killings in the last decade.” Furthermore, the

2002 Country Report also documents violent clashes between

KANUP and opposition supporters at political rallies, and

reports that political parties have “used gangs of young fol-

lowers to harass other parties and to prevent them from hold-

ing meetings or events.” The use of young followers in 2002

to harass opposition supporters echos the incident where a

group of around eleven or twelve young men harassed

Mutuku’s family and burned down her home in 1992.

[6] Nothing in the 2002 Country Report indicated that con-

ditions for political opponents of KANUP had improved, or

that KANUP members were no longer able to persecute Dem-

ocratic Party members. In offering only the 2002 Country

Report, therefore, the government failed to meet its burden of

proof to show, by a preponderance of the evidence, that cir-

cumstances had changed such that Mutuku no longer faced a

threat to her life or freedom based on her political opinion.

The IJ erred in making such a finding.

IV. Convention Against Torture

[7] The BIA adopted and affirmed the IJ’s decision to deny

Mutuku relief under CAT. To qualify for CAT relief, Mutuku

must prove that it is more likely than not that she would be

tortured by or with the acquiescence of agents of the Kenyan

government if she were to return to Kenya. See 8 C.F.R.

§ 208.18(a)(1) (2000); Kamalthas v. INS, 251 F.3d 1279,

1282 (9th Cir. 2001). The IJ found that Mutuku had not satis-

fied her burden because the Kenyan government is now in the

hands of a coalition of parties that includes Mutuku’s own

5428 MUTUKU v. HOLDER

Democratic Party. We review this finding for substantial evi-

dence. Kamalthas, 251 F.3d at 1281. Because “[c]ountry con-

ditions alone can play a decisive role in granting relief under

[CAT],” we cannot say that the record compels a finding that

Mutuku would likely be tortured if she were to return to

Kenya. Id at 1280. Accordingly, we deny Mutuku’s petition

for review of the IJ’s denial of CAT relief.

V. Remand to the BIA

[8] The IJ and the BIA did not decide whether Mutuku’s

testimony, if believed, established past persecution. We

remand so that the BIA may decide this question in the first

instance. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002)

(per curiam). We do not remand on the questions of adverse

credibility. Mutuku’s testimony should be deemed credible.

See Soto-Olarte, 555 F.3d at 1095. Nor do we remand on the

question of changed country conditions. See Baballah v. Ash-

croft, 367 F.3d 1067, 1070 n.11 (9th Cir. 2004); Hoxha v.

Ashcroft, 319 F.3d 1179, 1185 (9th Cir. 2003); Baballah v.

Ashcroft, 335 F.3d 981, 992 (9th Cir. 2003); Avetova-Elisseva

v. INS, 213 F.3d 1192, 1198 n.9 (9th Cir. 2000) (“Indeed, any

remand in such circumstances would be extremely unfair to

litigants, potentially triggering multiple determinations and

repeated appeals as to whether there is any ‘current’ persecu-

tion — a sort of Zeno’s Paradox in which the arrow could

never reach the target.”).

The government shall bear the costs for this petition for

review.

PETITION DISMISSED IN PART, DENIED IN PART,

and GRANTED AND REMANDED IN PART.