Filed: Mar. 13, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1893 LINAH JEROTICH TALLAM, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: December 5, 2012 Decided: March 13, 2013 Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges. Petition denied by unpublished opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkinson and Judge Gregory joined. ARGUED: William Payne, PAYNE &
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1893 LINAH JEROTICH TALLAM, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: December 5, 2012 Decided: March 13, 2013 Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges. Petition denied by unpublished opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkinson and Judge Gregory joined. ARGUED: William Payne, PAYNE & ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1893
LINAH JEROTICH TALLAM,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: December 5, 2012 Decided: March 13, 2013
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Petition denied by unpublished opinion. Judge Niemeyer wrote
the opinion, in which Judge Wilkinson and Judge Gregory joined.
ARGUED: William Payne, PAYNE & ASSOCIATES, Washington, D.C.,
for Petitioner. Nicole J. Thomas-Dorris, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Tony West, Assistant Attorney General, Civil Division,
Jennifer L. Lightbody, Senior Litigation Counsel, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:
Linah Jerotich Tallam, a native and citizen of Kenya, filed
this petition for review of an order of the Board of Immigration
Appeals (“BIA”) dismissing her appeal from an immigration
judge’s order denying her application for asylum, withholding of
removal, and protection under the Convention Against Torture
(“CAT”). The BIA agreed with the immigration judge that Tallam
had not established her eligibility for relief. Because the
record does not compel us to conclude otherwise, see INS v.
Elias-Zacarias, 502 U.S. 478, 483-84 (1992), we deny the
petition for review.
I
Linah Tallam entered the United States in August 2001 on a
student visa that authorized her to remain through the
completion of her studies or, at the latest, December 13, 2007.
In December 2007, as she was preparing to return to Kenya with
her American daughter, the country erupted in ethnic violence
following the presidential election, held on December 27, 2007.
According to a March 2008 report by Human Rights Watch, the
opposition candidate’s one-million vote lead mysteriously
disappeared as the final votes were being counted, and the
incumbent candidate, Mwai Kibaki, a member of the Kikuyu tribe,
was suddenly declared the winner on December 30, 2007. J.A.
2
196. After the results were announced, “[m]obilized opposition
supporters -- especially in the Rift Valley and the slums of
Nairobi -- attacked those whom they assumed had voted for
Kibaki, and his [political party], in large part the Kikuyu.
This assigned an ethnic dimension to the violence and angry
Kikuyu then fought back.” J.A. 178. “The scale and speed of
the violence that engulfed Kenya following the controversial
presidential election . . . shocked both Kenyans and the world
at large. Two months of bloodshed left over 1,000 dead and up
to 500,000 internally displaced persons . . . .” J.A. 176.
According to Tallam, her family was tragically affected by
these events. Tallam states that she learned by phone from her
brother Moses that members of the Kikuyu tribe had attacked all
of the members of the Kalenjin tribe living in her home village
of Benonin, which is located outside the town of Eldama Ravine
in Kenya’s Rift Valley in a predominately Kikuyu area. J.A.
130-32, 155, 296. Moses told her that on January 5, 2008,
Kikuyu men burned down their mother’s home, along with the
nearby homes of two of their other brothers, causing their
family to flee to other parts of Kenya. J.A. 296-97. She later
found out from Moses that on February 14, 2008, members of the
Kikuyu tribe murdered her sister Lydia and raped one of her
cousins. J.A. 297.
3
Based on this information, on April 8, 2008, Tallam filed
an application for asylum, withholding of removal, and relief
under the CAT, claiming a fear of persecution on account of her
membership in the Kalenjin tribe. An asylum officer declined to
grant Tallam’s application and instead referred it to the
Immigration Court. The Department of Homeland Security
subsequently initiated removal proceedings against Tallam,
charging her with being subject to removal under 8 U.S.C.
§ 1227(a)(1)(B) for having overstayed her non-immigrant visa.
Appearing before an immigration judge in June 2009, Tallam
conceded her removability but renewed her requests for asylum,
withholding of removal, and CAT protection. Alternatively, she
requested voluntary departure. After hearing Tallam’s testimony
and reviewing the documentary evidence submitted by both sides,
the immigration judge denied Tallam’s application. First, the
judge ruled that Tallam’s asylum application was time barred, as
it was filed more than one year after she last entered the
United States and neither of the exceptions that would excuse an
untimely filing applied. After making this initial ruling, the
judge proceeded to articulate an alternative, merits-based
rationale for denying Tallam’s application. Although the judge
found Tallam’s testimony credible and found that Tallam had a
genuine subjective fear of persecution, the judge found that she
had not demonstrated an objectively reasonable basis for that
4
fear. In this regard, the judge noted that the reports in the
record on conditions in Kenya indicated that the acute period of
election-related violence had ended. Moreover, the judge found,
even though some inter-ethnic violence still existed in Kenya,
Tallam had not demonstrated that she could not reasonably
relocate within Kenya, especially given her testimony that many
of her family members had relocated to other areas in Kenya and
that two of her siblings had even returned to Eldama Ravine.
The immigration judge also emphasized that the Kenyan government
had made significant efforts to quell the country’s inter-ethnic
violence. Accordingly, the judge denied Tallam’s requests for
asylum, withholding of removal, and CAT protection, although the
judge granted her alternative request for voluntary departure.
By order dated July 18, 2011, the BIA affirmed, finding
that it need not decide whether Tallam’s asylum application was
timely filed because Tallam had not established a well-founded
fear of future persecution on account of a protected ground.
The BIA found that the “country condition evidence in the record
shows that inter-ethnic violence carried out by various ethnic
groups, including the Kalenjin, occurred for 2 months after the
2007 presidential election,” but that the country’s political
parties had responded to the crisis by reaching a power-sharing
agreement that also established a Commission of Inquiry on
political violence, an Independent Review Committee on
5
elections, and a Truth, Justice, and Reconciliation Commission.
The BIA also agreed with the immigration judge that Tallam had
not met her burden of establishing that it would not be
reasonable for her to relocate to another part of Kenya.
Because she had not demonstrated her eligibility for asylum, the
BIA additionally found Tallam could not satisfy the higher
burden applicable to withholding of removal. Finally, the BIA
agreed that Tallam had not shown that it was more likely than
not that she would be tortured by the Kenyan government or with
the government’s consent or acquiescence and that she therefore
did not qualify for CAT protection. The BIA accordingly
dismissed Tallam’s appeal and reinstated the period for her
voluntary departure.
Tallam timely filed this petition for review of the BIA’s
decision.
II
The Immigration and Nationality Act authorizes the Attorney
General to grant asylum to a person unable or unwilling to
return to her native country “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.” 8 U.S.C. § 1101(a)(42)(A); id. § 1158(b).
The applicant “bear[s] the burden of proving eligibility for
6
asylum.” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006).
If the asylum applicant shows past persecution, she is presumed
to have a well-founded fear of persecution. 8 C.F.R.
§ 1208.13(b)(1). Without regard to past persecution, the
applicant has a well-founded fear of persecution if (1) she “has
a fear of persecution in . . . her country of nationality . . .
on account of race, religion, nationality, membership in a
particular social group, or political opinion;” (2) “[t]here is
a reasonable possibility of suffering such persecution if . . .
she were to return to that country;” and (3) “she is unable or
unwilling to return to, or avail . . . herself of the protection
of, that country because of such fear.” Id. § 1208.13(b)(2)(i).
The well-founded fear standard therefore contains both
subjective and objective components. The subjective element may
be satisfied “by presenting candid, credible, and sincere
testimony demonstrating a genuine fear of persecution,” Chen v.
INS,
195 F.3d 198, 201 (4th Cir. 1999) (internal quotation marks
omitted), while the “objective element requires a showing of
specific, concrete facts that would lead a reasonable person in
like circumstances to fear persecution,” Ngarurih v. Ashcroft,
371 F.3d 182, 187-88 (4th Cir. 2004).
To establish a well-founded fear of persecution, an asylum
applicant need not show that she would be individually targeted
for persecution if she establishes that “there is a pattern or
7
practice . . . of persecution of a group of persons similarly
situated to the applicant.” 8 C.F.R. § 1208.13(b)(2)(iii). In
such a case, “[t]he key for the applicant is to show the
thorough or systematic nature of the persecution he fears.”
Chen, 195 F.3d at 203. The applicant is ineligible for asylum,
however, if she “could avoid persecution by relocating to
another part of [her] country of nationality . . . [and] if
under all the circumstances it would be reasonable to expect
[her] to do so.” 8 C.F.R. § 1208.13(b)(2)(ii). If the
applicant has not established past persecution or that the
feared persecution would be by a government or government-
sponsored, the applicant “bear[s] the burden of establishing
that it would not be reasonable for . . . her to relocate.” Id.
§ 1208.13(b)(3)(i).
A determination of the BIA must be supported by substantial
evidence, and we review its decision under a highly deferential
standard. Under that standard, its factual determinations “are
conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus,
we may reverse the BIA’s findings only if the evidence presented
was “so compelling that no reasonable factfinder could fail to
find the requisite fear of persecution.” Elias-Zacarias, 502
U.S. at 484; Ngarurih, 371 F.3d at 188. And “[t]he agency
decision that an alien is not eligible for asylum is ‘conclusive
8
unless manifestly contrary to the law and an abuse of
discretion.’” Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir.
2010) (quoting 8 U.S.C. § 1252(b)(4)(D)).
Tallam argues that the BIA’s determination that she is
ineligible for asylum is not supported by substantial evidence.
While she has never claimed to be the victim of past
persecution, she contends that “the egregious behavior inflicted
on her family by the Kikuyu tribe, unchecked by the government
in conjunction with the country conditions of ethnic violence,
gave her a well founded fear of persecution based on her social
group.” We conclude, however, that the record evidence, taken
as a whole, does not compel the conclusion that Tallam had a
well-founded fear of persecution in June 2009, when the
immigration judge considered her asylum application. Instead,
as the BIA found, both of the primary reports in the record on
conditions in Kenya -- the U.S. Department of State 2007 Country
Report on Human Rights Practices, dated March 11, 2008; and a
March 2008 report by the Human Rights Watch entitled, “Ballots
to Bullets: Organized Political Violence and Kenya’s Crisis in
Governance” -- indicate that the acute inter-ethnic violence
that beset Kenya after the December 2007 election had largely
ended by the spring of 2008.
Tallam attempts to controvert this conclusion with two
pieces of evidence. First, she points to a U.N. News Service
9
article, dated October 24, 2008. But that article simply
reports that a Deputy High Commissioner for Human Rights, when
visiting Kenya, called for the nation’s leaders “to address
issues -- such as violations of socio-economic rights, land
issues, large disparities between classes, marginalization and
exclusion -- at the root of the [post-election] violence.” J.A.
377. If anything, this article actually supports the agency’s
finding that the violence had largely subsided by the time the
immigration judge considered Tallam’s asylum application.
Tallam also points to her testimony that the week before
her asylum hearing, she learned from her brother Moses that one
of their neighbors had been killed. J.A. 144-45. Her brother
did not have information regarding the circumstances of the
neighbor’s death, other than claiming that he “knew” that the
neighbor had been killed by a member of the Kikuyu tribe because
he had been decapitated. J.A. 145. But this isolated act of
lingering inter-ethnic violence does not compel the conclusion
that, at the time of the asylum hearing, there was “a pattern or
practice” in Kenya of persecuting the Kalenjin based on their
tribal membership so as to make Tallam’s fear of persecution
objectively reasonable. See 8 C.F.R. § 1208.13(b)(2)(iii);
Chen, 195 F.3d at 203.
Additionally, Tallam completely fails to address the BIA’s
findings that the persecution she subjectively fears is neither
10
by the government nor government sponsored. In that
circumstance, she “bear[s] the burden of establishing that it
would not be reasonable for . . . her to relocate,” 8 C.F.R.
§ 1208.13(b)(3)(i), a burden she failed to carry. As both the
immigration judge and the BIA emphasized, Tallam’s testimony
suggests that her mother and her eight living siblings have all
safely relocated within Kenya. J.A. 133-37, 146-48. Indeed,
Tallam testified that two months before her asylum hearing, two
of her siblings had returned to Eldama Ravine, apparently
without incident. J.A. 136-37, 146-47. The record is also
devoid of any recent affidavits or letters, from either Tallam’s
family members or other members of the Kalenjin tribe, reporting
that the Kalenjin are still being persecuted by the Kikuyu.
For these reasons, we conclude that substantial evidence
supports the BIA’s affirmance of the immigration judge’s denial
of Tallam’s application for asylum.
Turning to Tallam’s request for withholding of removal
under 8 U.S.C. § 1231(b)(3), such relief is only available to
applicants who are “more likely than not” to face future
persecution, a burden of proof more onerous than the well-
founded fear standard for asylum. 8 C.F.R. § 1208.16(b)(2); see
also Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).
Because we affirm the BIA’s conclusion that Tallam failed to
establish a well-founded fear of future persecution, it follows
11
that her proof also fails to establish her eligibility for
withholding of removal.
Finally, we conclude that substantial evidence supports the
BIA’s denial of CAT relief. The evidence in the record does not
compel the conclusion that Tallam will, more likely than not, be
tortured by, or with the acquiescence of, Kenyan government
officials, as is necessary to qualify for protection under the
CAT. See 8 C.F.R. §§ 1208.16(c), 1208.18(a). Rather, the
objective record evidence indicates that the Kenyan government
has gone to significant lengths to respond to the severe inter-
ethnic violence sparked by the December 2007 presidential
election. There is simply nothing in the record that would
compel a reasonable factfinder to agree with Tallam that
government officials would, more likely than not, participate
in, or be complicit in, the torture of a returning Kenyan
citizen. We accordingly affirm the BIA’s denial of Tallam’s
request for CAT protection.
For the foregoing reasons, we deny Tallam’s petition for
review.
PETITION DENIED
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