explaining that to adequately raise an issue, the party must specifically and clearly identify the issue in the opening brief and devote a discrete portion of his argument to that issue
How later courts described this case
- explaining that to adequately raise an issue, the party must specifically and clearly identify the issue in the opening brief and devote a discrete portion of his argument to that issue
Written by the judges who cited it.
The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14603
Non-Argument Calendar
________________________
Agency No. A087-501-681
NANCY WANJIRU IGAMBA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 10, 2017)
Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Nancy Wanjiru Igamba, a native and citizen of Kenya, seeks review of the
Board of Immigration Appeals’ (“BIA”) final order adopting and affirming the
Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of
removal, and Convention Against Torture (“CAT”) relief. After review, we
dismiss in part and deny in part the petition for review.
I. BACKGROUND FACTS
A. Asylum Application
In May 2008, Igamba entered the United States on a B2 visitor’s visa, with
authorization to remain until November 2008. In May 2009, Igamba filed an
application for asylum and withholding of removal under the Immigration and
Nationality Act (“INA”) and for relief under CAT.
Igamba claimed she had suffered past persecution and feared future
persecution by the Mungiki, a quasi-religious criminal organization in Kenya that
is predominantly made up of members of the Kikuyu ethnic group. Igamba alleged
that the Mungiki had targeted her for persecution, including rape, genital
mutilation, and murder, because (1) she was a Christian woman of Kikuyu
ethnicity who was uncircumcised, unmarried, and independent, and (2) she had
formerly worked for the Kenyan police force and was wrongly believed by the
Mungiki to have been involved in the Kenyan police’s extrajudicial murder of a
Mungiki leader, George Waweru.
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According to Igamba’s affidavit, in February 2008, six months after Waweru
was killed in August 2007, three unknown men approached her at a bus stop. One
of the men identified himself as Mungiki, accused her of being involved in
Waweru’s killing, and threatened to circumcise her. The man warned Igamba that
if she reported the encounter, the Mungiki would kidnap, circumcise, rape, and kill
her. Igamba did not report the incident. A month later, an unknown man forced
his way into Igamba’s home and attempted to rape her. When a neighbor knocked
on her door, Igamba’s assailant fled. Igamba moved into her sister’s home in a
different neighborhood to avoid further attacks.
Igamba also submitted an affidavit from Dr. Frank Holmquist, a professor of
politics with specialization in Kenyan studies. According to Dr. Holmquist: (1) the
Mungiki engaged in extortion, intimidation, mutilations, kidnappings, and
execution style killings, including brutal revenge killings; (2) the Kenyan
government and police had been in a bloody battle with the Mungiki for years; (3)
the Mungiki’s favored targets included the police, individuals they believe have
collaborated with the police against them, and uncircumcised or otherwise
“disobedient” Kikuyu women; (4) the Kenyan government was widely believed to
have carried out unauthorized killings of suspected Mungiki members; (5) a human
rights group suspected George Waweru was kidnapped and killed by the police; (6)
the circumstances of Igamba’s work for the police and her proximity to Waweru
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(who was her friend and neighbor) made it reasonable for the Mungiki to believe
she was a police spy who had facilitated Waweru’s murder; (7) once the Mungiki
label an individual a betrayer, members will target the individual for torture and
death; and (8) because the Mungiki could carry out their threats anywhere in
Kenya, Igamba could not safely live in Kenya
B. Immigration Proceedings
In her petition to this Court, Igamba contends only that she demonstrated
that she had a well-founded fear of future persecution based on her membership in
a particular social group.
Igamba does not challenge the BIA’s ruling that she waived her CAT claim
and her persecution claims based on her race and religion. These claims are
therefore deemed abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005). In addition, Igamba’s petition does not contain any
meaningful argument that she demonstrated past persecution based on her
membership in a particular social group. Thus, she has abandoned this claim as
well. See Cole v. U.S. Att’y Gen., 712 F.3d 517, 530-31 (11th Cir. 2013)
(explaining that to adequately raise an issue, the party must specifically and clearly
identify the issue in the opening brief and devote a discrete portion of his argument
to that issue). Accordingly, we outline the IJ’s and the BIA’s findings only as they
pertain to Igamba’s future persecution claim based on her membership in a
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particular social group. Both the IJ and the BIA considered her social group to be
perceived collaborators with the Kenyan police. Igamba does not dispute this
characterization.
After a hearing at which Igamba testified, the IJ denied Igamba all requested
relief. The IJ found Igamba’s documentary and testimonial evidence was credible,
but concluded, inter alia, that she had not proven that she had a well-founded fear
of persecution on account of a protected ground. Relevant to this appeal, the IJ
concluded that Igamba’s proposed social group of “people perceived as
collaborators with the Kenyan police,” lacked the required “socially visibility”
because it “was not shown to be a recognizable segment or group in Kenyan
society.”
As to the issue of well-founded fear, the IJ discounted Dr. Holmquist’s
opinion that Igamba could not live safely in Kenya. The IJ explained that Dr.
Holmquist’s unsupported conclusion on this point touched on the ultimate issue in
the case. The IJ further pointed out that Igamba did not experience any problems
in Kenya once she relocated to a different neighborhood and that five years had
passed since Igamba’s two encounters with the Mungiki had occurred. Thus, the IJ
found that Igamba did not demonstrate a well-founded fear of future persecution.
The IJ further concluded that, because Igamba could not satisfy the lower burden
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of proof for asylum, she had not met the higher burden for withholding of removal
under the INA.
On appeal to the BIA, Igamba’s brief argued that: (1) she belonged to a
particular social group; and (2) her fear of future persecution was well-founded.
As to the social group issue, Igamba contended that her particular social group was
“perceived as a group by society,” and that standing up to the Mungiki was an
immutable characteristic, as once a Kenyan did this, he or she could not take it
back. As to the well-founded fear issue, Igamba argued that the IJ had erred in
disregarding information in Dr. Holmquist’s affidavit about the violent nature of
the Mungiki and that the IJ had failed to explain how a reasonable person in
Igamba’s situation would not be afraid to return to Kenya given this evidence.
The BIA adopted and affirmed the IJ’s decision. As to asylum, the BIA
concluded, inter alia, that Igamba could not establish a well-founded fear of future
persecution based on a protected category. The BIA determined, among other
things, that Igamba’s identified group—collaborators with the Kenyan police—
lacked “the particularity and social distinction (formerly referred to as social
visibility)” necessary to constitute a particular social group. The BIA concluded
that Igamba’s evidence “of country conditions that members of the general
population in Kenya [who] oppose the criminal organization the Mungiki [are]
subject to acts of criminality and retribution” did not establish that her proposed
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social group met the required criteria. The BIA concluded that the IJ had properly
discounted Dr. Holmquist’s affidavit, as Dr. Holmquist did not support his
conclusion that Igamba would likely face torture and persecution at the hands of
the Mungiki if she was forced to return to Kenya, and he was not made available
for testimony or cross-examination in support of his opinion. Like the IJ before it,
the BIA determined that, because Igamba could not establish her asylum eligibility,
she also failed to meet the higher burden of proof necessary to establish eligibility
for withholding of removal. 1
II. DISCUSSION
In her counseled petition for review, Igamba argues that: (1) the IJ ignored
the details of her credited testimony, which established that the Mungiki had
targeted her because they believe she was involved in the Kenyan police’s killing
of Waweru and “[t]his at least makes the case for withholding of removal and
relief under the Convention against Torture”; and (2) Dr. Holmquist’s affidavit
supporting her claim was “detailed and plausible,” and the IJ “was not entitled to
discount this credible evidence.”
For Igamba to obtain a reversal on either an asylum or withholding of
removal claim, she must show that the IJ and the BIA erred in concluding that
“people perceived as collaborators with the Kenyan police” are not a cognizable
1
Where, as here, the BIA expressly adopts the IJ’s decision, we review the decisions of
both the BIA and the IJ. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
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particular social group under the INA. See INA § 241(b)(3)(A), 8 U.S.C.
§ 1231(b)(3)(A), 8 C.F.R. § 208.13(b). Igamba’s appeal brief to this Court,
however, makes no argument about whether her proposed group qualifies as a
particular social group. Therefore, she has abandoned any challenge to this ground
for denying her application for asylum and withholding of removal. See
Sepulveda, 401 F.3d at 1228 n.2. Further, we need not address whether Igamba’s
evidence established that she had an objectively reasonable fear of the Mungiki or
any other issues Igamba’s petition for review raises. Because Igamba does not
dispute the determination of the IJ and the BIA that she failed to show she was a
member of a particular social group within the meaning of the INA, we deny her
petition for review.
PETITION DENIED.
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