United States v. Scott Donald Wiele

1Peter Keisler has been appointed to serve as Acting Attorney General, and is
substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2938
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Handson Asuma Nyambariga, *
*
Petitioner, * Petition for Review of an Order
v. * of the Board of Immigration
* Appeals.
Peter Keisler, Acting Attorney *
General of the United States,1 * [UNPUBLISHED]
*
Respondent. *
*
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Submitted: September 28, 2007
Filed: October 4, 2007
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Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.
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PER CURIUM.
Handson Asuma Nyambariga (Nyambariga), a native and citizen of Kenya,
filed a petition for review of the Board of Immigration Appeals’ (BIA) order affirming
the Immigration Judge’s (IJ) denial of Nyambariga’s application for asylum,
withholding of removal, and protection under the Convention Against Torture. We
deny Nyambariga’s petition for review.

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We review for substantial evidence, a standard of review under which BIA
factual findings are “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Setiadi v. Gonzales, 437 F.3d 710, 713 (8th
Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). An IJ’s decision denying asylum will
be upheld “unless ‘the evidence . . . presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.’” Id. (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).
An applicant who is found to have suffered past persecution is presumed to
have a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). Both the IJ
and the BIA found Nyambariga failed to prove he suffered past persecution. Even if
we assume Nyambariga suffered past persecution, the presumption he has a well-
founded fear of future persecution is rebuttable, if there is a finding by the
preponderance of the evidence that “[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded fear of persecution
in the applicant’s country of nationality.” Id. at § 208.13(b)(1)(i)(A). The record
supports the BIA’s and the IJ’s decisions that a fundamental change in circumstances
occurred when former Kenya President Moi was voted out of office in December
2002. Finding substantial evidence in the record as a whole supporting the agency’s
judgment, and no error of law, we deny Nyambariga’s petition for review. See 8th
Cir. R. 47B.
Petitioner’s motion to hold proceedings in abeyance is denied.
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