Anne Wangari Mwagiru v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNE WANGARI MWAGIRU,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 14-71487
Agency No. A200-754-599
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Anne Wangari Mwagiru, a native and citizen of Kenya, petitions for review
of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s decision denying her application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.
2009). We deny the petition for review.
Substantial evidence supports the agency’s determination that Mwagiru
failed to demonstrate changed or extraordinary circumstances to excuse her
untimely-filed asylum application. See 8 C.F.R. §§ 1208(a)(4), (5). Thus, we deny
the petition for review as to Mwagiru’s asylum claim, including her claim to a
humanitarian grant of asylum.
As to Mwagiru’s withholding of removal claim, the record does not compel
the conclusion that she was harmed on account of a protected ground. See Zetino
v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (petitioner failed to establish the
harm he feared bore any nexus to a protected ground); cf. Barajas-Romero v.
Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017) (discussing Zetino). Substantial
evidence supports the agency’s conclusion that Mwagiru failed to establish a clear
probability of future persecution because she did not demonstrate it would be
unreasonable for her to relocate within Kenya. See Gomes v. Gonzales, 429 F.3d
1264, 1267 (9th Cir. 2005) (fear of future persecution undermined by prior
successful internal relocation). Thus, we deny the petition for review as to
withholding of removal.
Finally, substantial evidence supports the agency’s denial of CAT relief

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because Mwagiru failed to show it is more likely than not that she would be
tortured by or with the consent or acquiescence of the Kenyan government. See
Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.

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RAYMOND C. FISHER, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority in most respects but would grant the petition on
Mwagiru’s withholding of removal claim. Women or girls who reasonably fear the
gender-based persecution of FGM qualify as members of a particular social group.
See Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005). Here, the BIA
concluded the past harm Mwagiru suffered “was not inflicted on account of a
protected ground but rather based on a personal dispute she had with her husband.”
But the timing of the beating – immediately after Mwagiru told her husband she
opposed FGM and would not be subjected to it, in part because she was a Christian
– and the context of his having previously and repeatedly complained about her not
being circumcised, compels the conclusion that her expressed opposition to FGM
was “a reason,” even if not the “one central reason,” for the beating. See Barajas-
Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017). I therefore respectfully dissent
from this portion of the majority’s disposition.

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