PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
M. Hamilton, Esq. on brief for petitioner.
H. Hunt, Assistant Attorney General, Civil Division, Terri J.
Scadron, Assistant Director, and Corey L. Farrell, Attorney,
Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, on brief for respondent.
Lynch, Circuit Judge, Souter, [**] Associate Justice, and Stahl,
Rosemary Wanjiku, a native and citizen of Kenya, seeks review
of an order by the Board of Immigration Appeals
("BIA") denying her motion to reopen removal
proceedings based on changed country conditions. Wanjiku was
first ordered removed to Kenya in 2013, but she did not leave
the country at that time. More than three years later, in
2016, she sought to reopen proceedings, claiming that
conditions within Kenya had changed since her prior removal
proceedings and now supported a claim for asylum. An
Immigration Judge ("IJ") denied her motion,
concluding that the conditions complained of were continuing,
not changed, and the BIA affirmed that decision on June 22,
2018. After careful review, we find the BIA did not abuse its
discretion and deny the petition accordingly.
about March 19, 2000, Wanjiku entered the United States at
Newark, New Jersey, with authorization to remain for a
temporary period, not to exceed September 18,
2000. Wanjiku remained in the country well past
that date and, on July 19, 2010, she married a U.S. citizen.
Shortly thereafter, the couple filed papers to adjust
Wanjiku's status to that of a permanent resident alien.
The Department of Homeland Security ("DHS")
notified Wanjiku's spouse of its intent to deny the
application, and the couple sought to withdraw their
respective petitions in June 2012.
16, 2012, DHS issued Wanjiku a Notice to Appear (the
"Notice"), which charged Wanjiku with removability
for remaining in the United States beyond the term authorized
by her visa in violation of 8 U.S.C. § 1227(a)(1)(B).
The Notice separately alleged that Wanjiku's marriage was
a sham and constituted a fraudulent attempt to procure an
immigration benefit, and so charged her with removability
under 8 U.S.C §§ 1182(a)(6)(C)(i) and
1227(a)(1)(A). Wanjiku conceded removability for overstaying
her visa, but denied any fraud.
hearing held on April 22, 2013, DHS withdrew the fraud
charge, electing to seek Wanjiku's removal only for
overstaying her visa. Wanjiku did not file an application for
relief or seek adjustment of her status, however, and at the
conclusion of the hearing, the IJ ordered Wanjiku removed to
Kenya. Wanjiku did not preserve her appeal and took no
further action at that time.
remained in the United States despite the removal order and,
on September 28, 2016, she filed a motion to reopen removal
proceedings to pursue "asylum and related humanitarian
claims based on changed circumstances and country
conditions." See 8 C.F.R. §§
1003.2(c)(2); 1003.23(b)(4)(i). Wanjiku alleged that a
confluence of factors, including an attack on her daughters
(who remained in Kenya), had made her fearful of returning
there and thus, for the first time, eligible for asylum. The
following discussion provides an overview of the factual
claims Wanjiku presented in support of her motion.
belongs to a sub-clan "governed by a council of elders
who make important decisions for [her] people."
"[I]ts over [2, 000] members can be found all over
Kenya," and "the elders can mobilize sub-clan
members throughout the nation to carry out [their]
wishes." In 1985, contrary to prevailing custom that
allows only men to inherit land, Wanjiku's grandfather
left Wanjiku and her daughters a land inheritance. Her uncle
was "furious" with the bequest and has allegedly
disputed and encroached on Wanjiku's claim to the parcel
since 1987. Wanjiku also asserted that land values in Kenya
have been on the rise in recent years and implied that this
trend may have animated her uncle's displeasure with her
April 14, 2016, Wanjiku's uncle called Wanjiku and stated
that he wanted to sell her property. At her request, two of
Wanjiku's daughters traveled in person to see if the
uncle was in fact going to sell the land. When they arrived,
however, Wanjiku's uncle "chased" them away.
While Wanjiku's daughters thereafter sought intercession
by local elders, the uncleinterfered with those efforts, sending
"gangs" to attack her daughters and threatening the
to those events, Wanjiku alleges that her uncle spread rumors
that Wanjiku is (or has become) a lesbian and threatened
Wanjiku's daughters with female genital mutilation
("FGM"). Wanjiku asserts that the increasing
threats to lesbian, gay, bisexual and transgender
("LGBT") individuals in Kenya "give people
like [her] uncle new cover and justification" for
violence. Further, she claims that stigma will allow her
uncle to "beat  and possibly kill" her with
impunity, if not with assistance from the police and
community. Wanjiku specifically alleges that her uncle, aided
by the rumors of her ...