United States v. 2010-04-09 | 05-73609 | MUTUKU V. HOLDER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ELLINAH KALUMU MUTUKU,
Petitioner, No. 05-73609
v. Agency No.
 A075-586-093ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 1, 2010—Pasadena, California
Filed April 9, 2010
Before: Betty B. Fletcher, Harry Pregerson, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Pregerson
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COUNSEL
Land Wayland, Diamond Bar, California, for the petitioner.
Jessica Segall and Annette M. Wietecha, U.S. Department of
Justice Office of Immigration Litigation, Washington, D.C.,
for the respondent.
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OPINION
PREGERSON, Circuit Judge:
Ellinah Kalumu Mutuku (“Mutuku”) petitions for review of
the Board of Immigration Appeals’s (“BIA”) dismissal of her
appeal of the immigration judge’s (“IJ”) denial of her claims
for asylum, withholding of removal, and relief under the Con-
vention Against Torture (“CAT”). We have jurisdiction under
8 U.S.C. § 1252. We dismiss the petition for review with
respect to Mutuku’s asylum claim, deny the petition with
respect to her CAT claim, and grant the remainder of her peti-
tion and remand to the BIA for further proceedings.
I. Background
Mutuku is a fifty-seven-year-old native and citizen of
Kenya. In Kenya, she worked for Lutheran World Relief, a
Christian non-governmental organization, and was an orga-
nizer and supporter of the Democratic Party, the leading
opposition party in Kenya at the time. In August 1992, a band
of armed men came looking for her at her house, burned down
her home, beat her sister, and harassed her mother. The men
told Mutuku’s mother, who escaped the fire, that they would
kill Mutuku if she did not stop her political activities. Mutuku
submitted several photographs of her destroyed home to the
IJ. After this incident, Mutuku received three phone calls
threatening to “come for [her] head” if she did not cease her
political activities. Finally, in October 1992, Mutuku was
almost hit by a Kanu Party (“KANUP”) activist driving a
truck.
Mutuku fled Kenya and came to the United States in
November 1992 on a B-2 visitor visa. The Immigration and
Naturalization Service (now the Bureau of Immigrations and
Customs Enforcement of the Department of Homeland Secur-
ity) issued Mutuku a Notice to Appear on September 11,
1998, charging her as removable because she had overstayed
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her visa. In response, Mutuku applied for asylum, withholding
of removal, and relief under CAT, claiming that she had been
persecuted on the basis of her political opinion in Kenya and
would likely be persecuted or tortured if she were to return.
On February 18, 2004, the IJ denied Mutuku’s claims for
asylum, withholding of removal, and relief under CAT. The
IJ held that Mutuku was ineligible for asylum for three sepa-
rate and independently sufficient reasons: her application was
barred by the one-year statute of limitations; she was not cred-
ible and thus her testimony did not establish past persecution;
even if she had suffered past persecution, she did not have a
well-founded fear of future persecution because conditions in
Kenya were no longer hostile towards members of the Demo-
cratic Party. He further denied withholding of removal on the
basis of the latter two reasons, credibility and changed coun-
try conditions. Finally, he held that Mutuku was not eligible
for CAT relief because the Democratic Party was now in
power in Kenya, and thus it was not likely that she would be
subjected to torture if she were to return.
On May 25, 2005, the BIA affirmed the IJ’s decision in a
per curiam order. With respect to asylum, the BIA affirmed
the IJ’s decision only on the basis that Mutuku’s application
for asylum was not timely. With respect to withholding of
removal and CAT relief, the BIA adopted and affirmed the
IJ’s decision in its entirety, citing to Matter of Burbano, 20 I.
& N. Dec. 872, 874 (BIA 1994). Thus, we review the BIA’s
decision regarding asylum and the IJ’s decision regarding
withholding of removal and CAT relief. See Ahir v. Mukasey,
527 F.3d 912, 916 (9th Cir. 2008); Abebe v. Gonzales, 432
F.3d 1037, 1039 (9th Cir. 2005) (en banc).
II. Asylum
[1] The BIA correctly found that Mutuku’s application for
asylum was barred by the one-year statute of limitations.1 8
1Mutuku arrived in the United States in November 1992 and applied for
asylum in May 1998. Although the IJ describes Mutuku’s application as
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U.S.C. § 1158(a)(2)(B). Mutuku’s hope that conditions in
Kenya would improve does not constitute an extraordinary
circumstance excusing her delay in applying for asylum. See
8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5). We dismiss
Mutuku’s petition insofar as it relates to her asylum claim.
Mutuku’s application for withholding of removal and relief
under CAT, however, is not time barred. See El Himri v.
Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004).
III. Withholding of Removal
a. Adverse Credibility Determination
The IJ denied Mutuku’s application for asylum and with-
holding of removal because he found that her testimony was
not credible. With respect to asylum, the BIA disclaimed reli-
ance on the IJ’s adverse credibility finding, and chose to
affirm solely on the basis that Mutuku’s application was not
timely. See Ahir, 527 F.3d at 916 (citing Plasencia-Ayala v.
Mukasey, 516 F.3d 738, 743 (9th Cir. 2008) overruled on
other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903
(9th Cir. 2009)); Abebe, 432 F.3d at 1040 (citing Tchoukhrova
v. Gonzales, 404 F.3d 1181 (9th Cir. 2005), vacated on other
grounds, 549 U.S. 801 (2006)). However, the BIA did adopt
and affirm the IJ’s adverse credibility determination insofar as
it provided a basis for denying Mutuku’s application for with-
holding of removal.
[2] The IJ found that Mutuku was not credible because,
though Mutuku had testified that she had almost been run
being six years delayed, Mutuku actually applied only two months late.
Title 8 U.S.C. § 1158(a)(2)(B) requires an applicant to demonstrate by
clear and convincing evidence that his or her asylum application was filed
within one year of the “date of the alien’s last arrival in the United States
or April 1, 1997, whichever is later.” 8 C.F.R. § 1208.4(a)(2)(ii). Mutuku
filed for asylum on or around May 30, 1998, only one year and almost two
months after April 1, 1997, so her application was less than two months
past the one-year deadline.
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over by a truck driven by a KANUP supporter in 1992, she
did not mention this significant event in her asylum applica-
tion. Credibility determinations are reviewed under the sub-
stantial evidence standard. Soto-Olarte v. Holder, 555 F.3d
1089, 1091 (9th Cir. 2009); Don v. Gonzales, 476 F.3d 738,
741 (9th Cir. 2007). The IJ was clearly incorrect; Mutuku’s
asylum application states that she was “threatened in Septem-
ber of 1992 and [she] was almost run down by a vehicle
owned by Kanu Party which is the ruling political party in
Kenya.” The IJ’s adverse credibility finding was premised on
a clearly erroneous factual finding, and we reverse.
b. Changed Country Conditions
The IJ also found that Mutuku was ineligible for withhold-
ing of removal because, even if her testimony established past
persecution, conditions in Kenya had become less dangerous
for members of the Democratic Party and she no longer had
a well-founded fear of returning to her home country.
As a threshold matter, we have jurisdiction to review the
IJ’s finding. The government contends that Mutuku did not
challenge that finding before the BIA and, consequently,
failed to exhaust her administrative remedies under 8 U.S.C.
§ 1252(d)(1). The government’s exhaustion argument fails.
Mutuku argued the issue of changed county conditions before
the IJ, who found against her on this point. The BIA adopted
and affirmed the IJ’s decision on withholding of removal, cit-
ing Matter of Burbano, 20 I. & N. Dec. at 874. Where an
issue has been presented to the IJ, and the BIA affirms the IJ
decision citing Matter of Burbano, the issue is deemed
exhausted. Arreguin-Moreno v. Mukasey, 511 F.3d 1229,
1232 (9th Cir. 2008). We have jurisdiction.
[3] Past persecution gives rise to a presumption of a well-
founded fear of future persecution. 8 C.F.R.
§ 1208.16(b)(1)(i); Mousa v. Mukasey, 530 F. 3d 1025, 1030
(9th Cir. 2008). The government may rebut this presumption
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by proving by a preponderance of the evidence that there has
been a fundamental change of circumstances in Kenya “such
that the applicant’s life or freedom would not be threatened.”
8 C.F.R. § 1208.16(b)(1)(i)(A). If the IJ or BIA finds that this
burden has been met by the government, it must provide an
“individualized analysis of how changed conditions will
affect the specific petitioner’s situation.” Garrovillas v. INS,
156 F.3d 1010, 1017 (9th Cir. 1998) (internal quotation marks
omitted). “Information about general changes in the country
is insufficient for the government to overcome the presump-
tion.” Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004)
(citing Rios v. Ashcroft, 287 F.3d 895, 901 (9th Cir. 2002)).
We review factual findings regarding changed country condi-
tions for substantial evidence. Lopez, 366 F.3d at 805.
[4] Substantial evidence does not support the IJ’s finding
that conditions in Kenya had improved for members of the
Democratic Party to such an extent that Mutuku no longer has
a well-founded fear of returning to Kenya. The IJ based his
finding on the fact that Mwai Kibaki, leader of the Demo-
cratic Party, was elected President of Kenya in 2002. He
replaced Daniel arap Moi, the leader of KANUP. The IJ relied
heavily on the first sentence from the first paragraph of the
State Department’s 2002 Human Rights Country Report for
Kenya (“2002 Country Report”), which states that “Kenya is
a republic dominated by a strong presidency.” This sentence
is too thin a reed on which to deny Mutuku withholding of
removal. The 2002 Report was released on March 31, 2003,
but it covered the period from January 1, 2002, through
December 31, 2002, so the Report covered only one day after
Kibaki was sworn in as President and only four days after he
had won the election. It did not provide substantial evidence
that there was a fundamental change of circumstances in
Kenya caused by Kibaki’s election.
[5] The 2002 Country Report, when considered in its
entirety, confirms that abuses like those suffered by Mutuku
are still common in Kenya. If the IJ had continued to the sec-
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ond page of the 2002 Country Report, he would have read that
Kenya’s human rights record remained poor. Abuses by
security forces, particularly the police, are common. Political
activists like Mutuku are routinely targeted by police for
harassment, arbitrary arrest, excessive force, rape, abuse, and
even extrajudicial killing. “The Kenyan Human Rights Com-
mission . . . has documented more than a thousand cases of
extrajudicial killings in the last decade.” Furthermore, the
2002 Country Report also documents violent clashes between
KANUP and opposition supporters at political rallies, and
reports that political parties have “used gangs of young fol-
lowers to harass other parties and to prevent them from hold-
ing meetings or events.” The use of young followers in 2002
to harass opposition supporters echos the incident where a
group of around eleven or twelve young men harassed
Mutuku’s family and burned down her home in 1992.
[6] Nothing in the 2002 Country Report indicated that con-
ditions for political opponents of KANUP had improved, or
that KANUP members were no longer able to persecute Dem-
ocratic Party members. In offering only the 2002 Country
Report, therefore, the government failed to meet its burden of
proof to show, by a preponderance of the evidence, that cir-
cumstances had changed such that Mutuku no longer faced a
threat to her life or freedom based on her political opinion.
The IJ erred in making such a finding.
IV. Convention Against Torture
[7] The BIA adopted and affirmed the IJ’s decision to deny
Mutuku relief under CAT. To qualify for CAT relief, Mutuku
must prove that it is more likely than not that she would be
tortured by or with the acquiescence of agents of the Kenyan
government if she were to return to Kenya. See 8 C.F.R.
§ 208.18(a)(1) (2000); Kamalthas v. INS, 251 F.3d 1279,
1282 (9th Cir. 2001). The IJ found that Mutuku had not satis-
fied her burden because the Kenyan government is now in the
hands of a coalition of parties that includes Mutuku’s own
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Democratic Party. We review this finding for substantial evi-
dence. Kamalthas, 251 F.3d at 1281. Because “[c]ountry con-
ditions alone can play a decisive role in granting relief under
[CAT],” we cannot say that the record compels a finding that
Mutuku would likely be tortured if she were to return to
Kenya. Id at 1280. Accordingly, we deny Mutuku’s petition
for review of the IJ’s denial of CAT relief.
V. Remand to the BIA
[8] The IJ and the BIA did not decide whether Mutuku’s
testimony, if believed, established past persecution. We
remand so that the BIA may decide this question in the first
instance. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002)
(per curiam). We do not remand on the questions of adverse
credibility. Mutuku’s testimony should be deemed credible.
See Soto-Olarte, 555 F.3d at 1095. Nor do we remand on the
question of changed country conditions. See Baballah v. Ash-
croft, 367 F.3d 1067, 1070 n.11 (9th Cir. 2004); Hoxha v.
Ashcroft, 319 F.3d 1179, 1185 (9th Cir. 2003); Baballah v.
Ashcroft, 335 F.3d 981, 992 (9th Cir. 2003); Avetova-Elisseva
v. INS, 213 F.3d 1192, 1198 n.9 (9th Cir. 2000) (“Indeed, any
remand in such circumstances would be extremely unfair to
litigants, potentially triggering multiple determinations and
repeated appeals as to whether there is any ‘current’ persecu-
tion — a sort of Zeno’s Paradox in which the arrow could
never reach the target.”).
The government shall bear the costs for this petition for
review.
PETITION DISMISSED IN PART, DENIED IN PART,
and GRANTED AND REMANDED IN PART.
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