Harrison Kamau v. Jefferson Sessions
706 F. App'x 395
| 9th Cir. | 2017Background
- Kamau, a Kenyan national, sought asylum, withholding of removal, humanitarian asylum, and CAT protection after alleged targeting by the Mungiki militia.
- He identified his particular social group as "Christian males from the Kikuyu tribe who oppose the Mungiki."
- The IJ denied relief; the BIA affirmed, finding Kamau failed to prove membership in a cognizable particular social group and failed to show persecution on account of that membership.
- The agency concluded the Mungiki’s actions were motivated by economic/personal reasons (extortion of Kamau’s matatu business) rather than a protected ground.
- The BIA did not separately analyze withholding in light of its asylum denial; the panel noted that remand was unnecessary because substantial evidence still showed no nexus to a protected ground.
- Kamau waived his religious-persecution claim by not raising it before the BIA; the court therefore lacked jurisdiction to consider that claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kamau belonged to a "particular social group" | Kamau: group is "Christian Kikuyu males opposing Mungiki," socially recognizable and particular | Gov: group not socially visible or sufficiently particular in Kenyan context | Held: Substantial evidence supports BIA that group was not shown to be socially visible/particular (failed Henriquez-Rivas test) |
| Whether past persecution was on account of membership in that group | Kamau: Mungiki targeted him because of group membership/opposition | Gov: Attacks motivated by extortion/economic status as matatu owner, not protected ground | Held: Substantial evidence supports agency that motive was economic/personal, not on account of protected ground |
| Whether Kamau has well-founded fear of future persecution (asylum/withholding) | Kamau: ongoing risk from Mungiki tied to his group membership | Gov: No nexus shown; risk tied to non-protected economic motives | Held: Substantial evidence supports denial of asylum and withholding for lack of nexus; humanitarian asylum also fails due to no past/future persecution |
| Whether CAT/torture protection applies | Kamau: more likely than not he would be tortured if returned | Gov: Insufficient evidence of likelihood of torture | Held: Kamau failed to meet burden to show torture is more likely than not; CAT relief denied |
Key Cases Cited
- Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (defines social visibility and particularity requirements for particular social groups)
- Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017) (extortion qualifies as persecution only when motivated by protected ground)
- Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008) (economic/personal motives do not constitute persecution on account of political opinion)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (agency must separately assess withholding claims even if asylum denied)
- Hanna v. Keisler, 506 F.3d 933 (9th Cir. 2007) (humanitarian asylum relief requires showing of persecution tied to protected ground)
- Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (failure to exhaust administrative claims before the BIA limits judicial review)
- NLRB v. Wyman–Gordon Co., 394 U.S. 759 (1969) (court may decline idle remands when outcome would be unchanged)
PETITION DENIED in part and DISMISSED in part.