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Wanjiku v. Barr

United States Court of Appeals, First Circuit

March 15, 2019



          Duane M. Hamilton, Esq. on brief for petitioner.

          Joseph 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.

          Before Lynch, Circuit Judge, Souter, [**] Associate Justice, and Stahl, Circuit Judge.


         Petitioner 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.


         On or 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.[1] 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.

         On July 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.

         At a 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.

         Wanjiku 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.

         Wanjiku 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 inheritance.

         On 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 uncle[2]interfered with those efforts, sending "gangs" to attack her daughters and threatening the sub-clan's chief.

         Subsequent 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 ...

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