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Mutuku v. Holder

April 9, 2010

ELLINAH KALUMU MUTUKU, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A075-586-093.

The opinion of the court was delivered by: Pregerson, Circuit Judge

FOR PUBLICATION

Argued and Submitted February 1, 2010 -- Pasadena, California

Before: Betty B. Fletcher, Harry Pregerson, and Susan P. Graber, Circuit Judges.

OPINION

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 Convention 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 petition 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 organizer 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 Security) issued Mutuku a Notice to Appear on September 11, 1998, charging her as removable because she had overstayed 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 separate and independently sufficient reasons: her application was barred by the one-year statute of limitations; she was not credible 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 Democratic Party. He further denied withholding of removal on the basis of the latter two reasons, credibility and changed country 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.*fn1 8 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 ...


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