977 F.3d 60
1st Cir.2020Background
- Petitioner Michael Macharia Zhakira, a Kenyan national, entered the U.S. in 2005 for an exchange program, overstayed, and has three U.S.-citizen children.
- In 2014 he applied for asylum, withholding of removal, and CAT protection, citing fear of Al-Shabaab persecution because he is Christian, supports Kenyan/US efforts against Al-Shabaab, and has U.S. ties.
- At hearing the IJ found Zhakira credible but concluded his fear was of generalized terrorist violence, not persecution on a protected ground; IJ denied asylum, withholding, and CAT relief.
- The BIA affirmed, then (after correcting a clerical error) denied reconsideration, finding his proposed social group not particular or socially distinct and that he failed to develop a standalone political-opinion claim.
- The First Circuit reviewed de novo legal questions and for substantial evidence factual findings, and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Religion-based asylum | Al-Shabaab targets Christians; Zhakira and family fear targeted attacks; government cannot control group | Attacks are isolated; 82% of Kenya is Christian and most live without persecution; family members have not been harmed | Denied — substantial evidence supports finding fear is generalized, not individualized persecution |
| Political-opinion asylum | Zhakira supports Kenyan/US efforts against Al-Shabaab and would be imputed to hold that opinion due to U.S. ties | Claim undeveloped; no evidence Zhakira expressed views or that Al-Shabaab knows of him | Denied — petitioner failed to develop or prove imputed/actual political-opinion claim |
| Particular social group asylum | Proposed group: "westernized/Americanized Christians who support the international campaign against Al-Shabaab" | Group is amorphous, lacks definable boundaries and social visibility in Kenya | Denied — group fails the particularity (and social-distinction) requirement |
| Withholding of removal / CAT | More-likely-than-not risk of persecution/torture due to same grounds; government unable/unwilling to protect | Lower-court findings doom higher withholding/CAT standards; record lacks showing of government acquiescence to torture | Denied — asylum failure disposes withholding; CAT claim waived/undeveloped |
Key Cases Cited
- Martínez-Pérez v. Sessions, 897 F.3d 33 (1st Cir. 2018) (asylum requires both genuine fear and objective reasonableness)
- Rivas-Durán v. Barr, 927 F.3d 26 (1st Cir. 2019) (substantial-evidence standard for factual findings)
- Ramírez-Pérez v. Barr, 934 F.3d 47 (1st Cir. 2019) (review of BIA and IJ rulings when BIA affirms and further justifies IJ)
- Aguilar-Solis v. INS, 168 F.3d 565 (1st Cir. 1999) (relatives living peacefully at home undercuts individualized fear)
- Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (need evidence that persecutor knows or would impute political opinion)
- Paiz-Morales v. Lynch, 795 F.3d 238 (1st Cir. 2015) (particularity requirement for particular social group)
- Ahmed v. Holder, 611 F.3d 90 (1st Cir. 2010) (terms like "westernized" are subjective and risk amorphous grouping)
- Aguilar-De Guillen v. Sessions, 902 F.3d 28 (1st Cir. 2018) (denial of asylum where particularity requirement not met)
- Yong Gao v. Barr, 950 F.3d 147 (1st Cir. 2020) (withholding requires more-likely-than-not showing)