MWANIKI v. BARR (2019)

MEMORANDUM **

Rose Mwaniki (Mwaniki), a native and citizen of Kenya, petitions for review of a decision of the Board of Immigration Appeals (the Board) dismissing her claims for asylum, cancellation of removal, withholding of removal, and relief under the Convention Against Torture (CAT); and denying her remand motion. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and review the Board’s factual findings for substantial evidence. See Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014), as amended. To reverse the Board, “we must determine that the evidence not only supports a contrary conclusion, but compels it.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (citation, alteration, and internal quotation marks omitted) (emphases in the original).

1. Mwaniki failed to address in her opening brief the denial of her asylum claim, thereby waiving this argument. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011).

2. We lack jurisdiction to review the Board’s denial of cancellation of removal because Mwaniki raised no cognizable legal or constitutional questions concerning the Board’s action. See Fernandez v. Gonzales, 439 F.3d 592, 596 (9th Cir. 2006). The Board utilized the correct legal standard, and evaluated Mwaniki’s asserted rehabilitation. See Coronado v. Holder, 759 F.3d 977, 987 (9th Cir. 2014), as amended (noting that discussion of failure of rehabilitation was sufficient).

3. Substantial evidence supported the Board’s denial of withholding of removal. A petitioner may demonstrate eligibility for withholding of removal by: (1) establishing past persecution, or (2) demonstrating that it is more likely than not that future persecution will occur. See Viridiana v. Holder, 646 F.3d 1230, 1239 (9th Cir. 2011). Mwaniki failed to address whether she suffered past persecution in her opening brief, thereby waiving this argument. See Rizk, 629 F.3d at 1091 n.3.

Substantial evidence supported the Board’s conclusion that Mwaniki lacked an objective, well-founded fear of future persecution. A petitioner may establish an objectively reasonable fear of future persecution if: (1) it is more likely than not that her life or freedom would be threatened upon return to that country, or (2) a pattern or practice of persecution exists against a similarly-situated, protected group. See Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009).

Substantial evidence supported the determination that Mwaniki is unlikely to be subjected to future persecution because: she was not subject to past persecution and has never been personally threatened by the Mwaniki; she has not been to Kenya in over 20 years; and some members of her family have successfully moved to other parts of Kenya to avoid violence. See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010). In particular, Mwaniki’s ability to relocate to Meru, Kenya—where her mother hid from the Mwaniki for over a year—undermined her withholding of removal claim. See id. at 1091.

4. Substantial evidence supported the Board’s denial of CAT relief. There was no evidence of past torture against Mwaniki, and she could relocate to avoid any potential future torture. See Wakkary, 558 F.3d at 1068 (denying CAT relief where showing of torture was inadequate).

5. The Board sufficiently addressed the remand motion by noting that Mwaniki’s post-hearing evidence did not establish changed country conditions. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).

DISMISSED in part and DENIED in part.