Andrew Njuguna Chege v. Loretta Lynch
636 F. App'x 682
6th Cir.2016Background
- Petitioners Andrew, Miriam, and Sharon Chege are Kikuyu Protestants from Nakuru, Kenya who overstayed U.S. visitor visas and faced removal proceedings.
- They applied for asylum, withholding of removal, and protection under the UN Convention Against Torture (CAT), alleging past and future risk of violence from the Mungiki, including forced female genital mutilation (FGM).
- Administrative record includes the Cheges’ testimony recounting past attacks and threats, and expert evidence (Dr. Robert Blunt) describing Mungiki violence and a mixed relationship between Mungiki and Kenyan authorities.
- Immigration Judge found the Cheges credible but denied asylum and withholding as time-barred or unsupported on the merits; denied CAT relief for failure to show torture "by, at the instigation of, or with the consent or acquiescence of" Kenyan officials.
- Board of Immigration Appeals affirmed, noting the Cheges did not demonstrate it was more likely than not that any torture would involve government instigation, consent, or acquiescence (including willful blindness).
- The Cheges waived asylum and withholding claims on appeal and challenge only the CAT denial; they emphasize risk from Mungiki violence and FGM but offered no concrete evidence that government actors would instigate or acquiesce to their torture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners are entitled to CAT protection because they face torture by Mungiki if returned to Kenya | Cheges: Mungiki will likely target them (ethnic/ religious reasons) and Kenyan authorities sometimes acquiesce or employ Mungiki, so CAT standard met | Government/agency: Record lacks proof that any torture would be "by, at the instigation of, or with the consent or acquiescence of" public officials | Denied — substantial evidence supports Board that petitioners failed to show it is more likely than not government would instigate/consent/acquiesce to torture |
| Whether expert and testimonial evidence compels finding of government acquiescence or instigation | Cheges: Expert (Blunt) and testimony show Mungiki sometimes operate with state support or acquiescence, supporting CAT claim | Agency: Expert testimony was equivocal; it described mixed, sometimes autonomous Mungiki activity and quantified neither frequency nor likelihood of state involvement vis-à-vis petitioners | Held: Evidence was inconclusive and did not compel a contrary result under substantial-evidence review |
| Whether willful blindness/ acquiescence standard satisfied | Cheges: Point to reports of state tolerance and prior paramilitary use of Mungiki to argue acquiescence/willful blindness | Agency: No direct evidence petitioners would be targeted with state knowledge or deliberate nonintervention; petitioners’ testimony did not describe state acquiescence | Held: Petitioners failed to show knowledge-plus-breach (acquiescence) or willful blindness by public officials |
| Standard of review: whether a reasonable adjudicator would be compelled to reach a different conclusion | Cheges: Record as a whole favors finding of substantial risk and government involvement | Agency: Under 8 U.S.C. §1252(b)(4)(B), court should uphold factual findings unless compelled otherwise | Held: Substantial-evidence review upheld Board; no compelled contrary conclusion |
Key Cases Cited
- Amir v. Gonzales, 467 F.3d 921 (6th Cir. 2006) (defines acquiescence/willful blindness standard for CAT claims)
- Zhao v. Holder, 569 F.3d 238 (6th Cir. 2009) (describes substantial-evidence review for withholding/CAT factual findings)
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (explains reviewing Board opinions and when Court treats IJ reasoning as adopted)