Submitted: March 17, 2016
for Review of an Order of the Board of Immigration Appeals
MURPHY, BEAM, and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Ngugi, a native and citizen of Kenya, petitions for review of
a decision of the Board of Immigration Appeals (BIA) that
affirmed an immigration judge's (IJ) denial of his
petition for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). We deny the petition
is a citizen of Kenya and a member of the Kikuyu ethnic
group. Before coming to the United States in 2009, he worked
in the transportation industry. While working as a driver,
Ngugi began to come in contact with members of the Mungiki, a
Kikuyu sect that, according to evidence presented by Ngugi,
is "seen as Kenya's version of the
mafia." First, they demanded protection money from
Ngugi. Later, starting in March 2005, the Mungiki approached
Ngugi to join them to help recruit and train younger members.
Ngugi had been recruiting and training new drivers and bus
conductors, encouraging them to become transport drivers
instead of joining the Mungiki. When Ngugi refused to join
the Mungiki, they threatened him.
early June 2005, four Mungiki members hijacked Ngugi's
minibus, ordering everyone to the floor and directing Ngugi
at gunpoint to drive them to a "slum, " where they
robbed the passengers and beat Ngugi. Later that month, six
Mungiki members armed with guns and knives attacked Ngugi at
his home after he had parked his minibus, robbing both him
and the conductor. The Mungiki members demanded to know why
Ngugi had not joined them. Ngugi again refused to join them,
prompting the attackers to beat him, hit him with the butt of
a gun, and stab him in the thigh. Ngugi received treatment at
a hospital for his injuries but did not report the incident
out of fear. Mungiki members attacked Ngugi again in August
2005 while he was a passenger on a minibus. Although he tried
to escape the Mungiki by working for a long-distance driving
company, they robbed and attacked him twice more, in October
and December 2008.
those attacks, Ngugi left Kenya. He obtained a J-1 visa to
attend the University of Missouri-Columbia, entering the
United States on March 22, 2009 with authorization to remain
until April 22, 2010. During this period, Ngugi met and
married Ruthie McKnight, a U.S. citizen. As McKnight intended
to petition for Ngugi to become a lawful permanent resident,
he applied for a no-objection letter for his J-1 visa and
applied for waiver of the foreign-residence requirement. He
received approval of the waiver on February 1, 2011. Soon
afterward, the couple decided to divorce.
filed a Form I-589 application for asylum with United States
Citizenship and Immigration Services in April 2011. On his
application, he checked boxes indicating that he was seeking
asylum based on persecution on account of religion, political
opinion, membership in a particular social group, as well as
seeking protection under the CAT. He stated that the Mungiki
had targeted him because they wanted to control and profit
from the transportation industry, and Ngugi was an educated
Kikuyu working in that industry. He further stated that he
refused to join the Mungiki because, as a Christian, he
"d[id] not approve of the nature of their group, or
their activities." In explaining his fear of harm upon
return to Kenya, he stated that "[t]he Mungiki group is
mad at me because I have refused to join them, " that
they were interested in him because of his education and
demonstrated leadership skills, and that the Mungiki targeted
the transportation industry for extortion.
testified to the facts above at his hearing before the IJ. In
his pre-hearing brief, Ngugi argued that he had been
persecuted and that he had a well-founded fear of persecution
"based on his status as (1) the victim of crime, in this
case, extortion; (2) a Kikuyu who resisted recruitment by the
Mungiki; and (3) a member of the transportation
industry." He argued that his proposed particular social
groups were the same as the particular social group of
"Mungiki defectors" previously held socially
visible in Kenya by this court in Gathungu v.
Holder, 725 F.3d 900, 908 (8th Cir. 2013). Ngugi also
submitted documentary evidence that included news articles
and reports about the Mungiki.
issued a written decision denying Ngugi's claims. With
regard to Ngugi's asylum claim, the IJ first found that
Ngugi had failed to establish past persecution on account of
his claimed bases of religion, membership in a particular
social group, or political opinion. The IJ reasoned that the
Mungiki had not attacked him "on account of" his
religion but rather because they wished to recruit him.
Likewise, the IJ found Ngugi's political opinion to
amount to no more than a generalized opposition to the
Mungiki's criminal activity. Next, the IJ rejected
Ngugi's proposed particular social groups of extortion
victim, participant in the transportation industry, and
witness to Mungiki criminal activity. The IJ concluded that
"[a]fter reviewing the evidence, it would appear that
[Ngugi] was targeted by the Mungiki because he refused to
join their organization" and concluded that opposition
to gang activity or refusal to join criminal gangs were not
bases for particular social groups.
also found that Ngugi had failed to establish a well-founded
fear of future persecution because, even assuming the
objectivity of Ngugi's fear, his fear of future harm was
"based upon general conditions of crime and violence
that affect all Kenyans, " such that Ngugi's fear
was "not sufficiently 'particularized.'"
The IJ also rejected Ngugi's argument that he had a
well-founded fear of persecution based on membership in the
recognized particular social group of Mungiki defectors
because Ngugi never had joined the Mungiki.
Ngugi's asylum claim rejected, the IJ necessarily
rejected Ngugi's withholding-of-removal claim. Finally,
the IJ rejected Ngugi's CAT claim because Ngugi had not
presented evidence that he or any family member ever had
undergone torture in Kenya or that he would be at risk for
torture upon return to Kenya.
appealed to the BIA. The BIA adopted and affirmed the
IJ's reasoning and conclusions, dismissing Ngugi's
appeal and ordering Ngugi removed from the ...