Patrick Gakera Thiongo v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK GAKERA THIONGO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-73638
Agency No. A201-006-612
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 13, 2018
Seattle, Washington
Before: GOULD and WATFORD, Circuit Judges, and ROTHSTEIN,** District
Judge.
Petitioner Patrick Gakera Thiongo (Thiongo) is a native and citizen of
Kenya. Thiongo entered the United States in 2007 and overstayed his visa. In
2011, Thiongo filed applications for asylum, withholding of removal, and United
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
FILED
JUN 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Nations Convention Against Torture (CAT) relief. Reviewing the agency’s
decision for substantial evidence, we grant Thiongo’s petition in part, deny it in
part, and dismiss it in part.
Thiongo argues that the immigration judge (IJ) erred by making an adverse
credibility finding that served as the basis for the IJ denying his withholding of
removal and CAT relief claims. This result was affirmed by the Board of
Immigration Appeals (BIA). An adverse credibility finding will be sustained if
substantial evidence supports the IJ’s determination, and if the BIA “highlight[ed]
specific and cogent reasons to support the adverse credibility finding.” Kin v.
Holder, 595 F.3d 1050, 1055 (9th Cir. 2010). The IJ’s adverse credibility
determination here was not supported by substantial evidence in the record. The IJ
stated that Thiongo’s inconsistencies about the harm he faced strongly weighed
against his claim, but the IJ did not “suggest any reason that [the IJ] found his
explanation not credible.” See Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th
Cir. 2009). The IJ was required to explain why Thiongo’s plausible explanations
did not explain the inconsistencies, but the IJ did not do so. Id. The BIA similarly
did not “give [its] reasons for considering [Thiongo’s] explanation unpersuasive.”
Id. Because the agency did not address Thiongo’s explanations for the alleged
inconsistencies, the inconsistencies cannot serve as substantial evidence to find
Thiongo not credible. Id. at 1091–92. We grant Thiongo’s petition as to his

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withholding of removal and CAT relief claims, and remand to the agency on an
open record for further proceedings consistent with this disposition.
Thiongo also argues that because of extraordinary and changed
circumstances, the IJ and BIA erred by not excusing the late filing of his asylum
application. Thiongo contends that the IJ and BIA did not consider his health
issues or incidents in Kenya when determining whether the exceptions to the one-
year filing deadline for asylum applications applied. We have limited jurisdiction
to review IJ and BIA’s determinations related to the exceptions to the one-year bar
for asylum applications. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010).
Thiongo gave no evidence of his alleged depression or trauma and gave no
documentary evidence of the day his documented hypertension or diabetes
changed or what treatment he was seeking that led him to come forward in 2011.
The medical evidence he provided showed that he was in good health and that his
medical conditions were well controlled as late as April 2010. The record does not
compel the conclusion that the BIA erred in holding that Thiongo failed to show
that his medical conditions were extraordinary or changed circumstances that
justified an exception to the one-year limitation.
Thiongo argues that some incidents befalling his family constitute changed
circumstances warranting an extension of time in which he can seek relief. See 8
C.F.R. § 1208.4(a)(4), (5). On Thiongo’s account, the most recent of these events

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was his brother’s beating, which occurred on June 1, 2010. Yet Thiongo filed his
application for asylum on November 17, 2011, 17 months after the beating, and
has given no explanation for why taking 17 months from that incident to file the
application was within a “reasonable period given the circumstances.” See Al
Ramahi v. Holder, 725 F.3d 1133, 1135 (9th Cir. 2013) (noting that a “reasonable
period” is usually within six months of the changed circumstance). Substantial
evidence in the record supports the IJ’s determination, and the BIA’s affirmance,
that Thiongo’s asylum application was untimely. We deny Thiongo’s petition as to
his asylum application.
Thiongo finally argues that he was denied due process of law, but Thiongo
did not raise this claim before BIA. Procedural due process claims must first be
exhausted before the Board. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004). This claim is not administratively exhausted, and we do not have
jurisdiction to review it. We dismiss this claim. The parties shall bear their own
costs on appeal.
GRANTED IN PART, DENIED IN PART, DISMISSED IN PART, AND
REMANDED.

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