Gitimu v. Holder, 581 F.3d 769 (8th Cir. 2009). · Go Syfert
Gitimu v. Holder, 581 F.3d 769 (8th Cir. 2009). Cases Citing This Book View Copy Cite
32 citation events (32 in the last 25 years) across 2 distinct courts.
Strongest positive: Joseph Ndirangu v. Eric H. Holder, Jr. (ca8, 2012-01-25)
Treatment trajectory · 2009 → 2026 · click a year to view as-of
2009 2017 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) Joseph Ndirangu v. Eric H. Holder, Jr.
8th Cir. · 2012 · confidence medium
See Khrystotodorov v. Mukasey, 551 F.3d 775, 781 (8th Cir.2008) (denial of asylum is reviewed for substantial evidence); Karim v. Holder, 596 F.3d 893, 897 (8th Cir.2010) (asylum applicant who has not established past persecution must prove well-founded fear of future persecution on account of protected ground; fear must be both subjectively genuine and objectively reasonable); Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir.2009) (when alien fails to establish eligibility for asylum, he necessarily cannot meet more rigorous standards of proof for withholding of removal and CAT relief).
discussed Cited as authority (rule) Seck v. U.S. Attorney General
11th Cir. · 2011 · confidence medium
“However, ‘[u]se of country reports cannot substitute for an analysis of the unique facts of each applicant’s case.’ ” Imelda v. U.S. Att’y Gen., 611 F.3d 724, 729 (11th Cir.2010) (quoting Gitimu v. Holder, 581 F.3d 769, 773 (8th Cir.2009)).
examined Cited as authority (rule) Visca Imelda v. U.S. Attorney General (3×) also: Cited "see, e.g."
11th Cir. · 2010 · confidence medium
However, “[u]se of country reports cannot substitute for an analysis of the unique facts of each applicant’s case.” Gitimu v. Holder, 581 F.3d 769, 773 (8th Cir. 2009) (citation omitted).
examined Cited as authority (rule) Visca Imelda v. U.S. Attorney General (3×) also: Cited "see, e.g."
11th Cir. · 2010 · confidence medium
However, “[u]se of country reports cannot substitute for an analysis of the unique facts of each applicant’s case.” Gitimu v. Holder, 581 F.3d 769, 773 (8th Cir. 2009) (citation omitted).
examined Cited as authority (rule) Visca Imelda v. U.S. Attorney General (5×) also: Cited "see, e.g."
11th Cir. · 2010 · confidence medium
However, “[u]se of country reports cannot substitute for an analysis of the unique facts of each applicant’s case.” Gitimu v. Holder, 581 F.3d 769, 773 (8th Cir.2009) (citation omitted).
discussed Cited as authority (rule) Alhaji Cham v. Eric Holder, Jr.
8th Cir. · 2010 · confidence medium
Further, because Cham failed to meet the burden of proof on his asylum claim, his claim for withholding of removal necessarily fails as well, see Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir.2009), and we see no basis in the record for CAT relief, see Miah v. Mukasey, 519 F.3d 784, 786-88 (8th Cir. 2008).
discussed Cited as authority (rule) Rezaul Karim v. Eric H. Holder, Jr.
8th Cir. · 2010 · confidence medium
"We analyze questions of law de novo, according substantial deference to the agency's interpretations of the statutes and regulations it administers." -7- Gitimu v. Holder, 581 F.3d 769, 772 (8th Cir. 2009) (internal quotations and citation omitted).
discussed Cited as authority (rule) Karim v. Holder
8th Cir. · 2010 · confidence medium
“We analyze questions of law de novo, according substantial deference to the agency’s interpretations of the statutes and regulations it administers.” Gitimu v. Holder, 581 F.3d 769, 772 (8th Cir.2009) (internal quotations and citation omitted).
discussed Cited as authority (rule) John Vah v. Michael B. Mukasey
8th Cir. · 2009 · confidence medium
Vah’s withholding-of~ removal and CAT claims—which carry-more rigorous burdens of proof—necessarily fail as well, see Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir.2009), and Vah did not meet his burden for a grant of humanitarian asylum, see Francois v. INS, 283 F.3d 926, 932 (8th Cir.2002).
discussed Cited as authority (rule) Kipkemboi v. Holder
8th Cir. · 2009 · confidence medium
Thus, to reverse the administrative findings related to past and future persecution, this court must hold that the evidence is “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992); Gitimu v. Holder, 581 F.3d 769, 772 (8th Cir.2009).
discussed Cited as authority (rule) Olivia Kipkemboi v. Eric H. Holder, Jr.
8th Cir. · 2009 · confidence medium
Thus, to reverse the administrative findings related to past and future persecution, this court must hold that the evidence is “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992); Gitimu v. Holder, 581 F.3d 769, 772 (8th Cir. 2009). -3- The record does not compel the conclusion that Kipkemboi and Sugut established past persecution.
cited Cited as authority (rule) Juan Mendoza-Mejia v. Michael Mukasey
8th Cir. · 2009 · confidence medium
See Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 432-34 (8th Cir.2007); Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir.2009).
discussed Cited "see" Joe Estrada-Ramos v. Loretta E. Lynch
8th Cir. · 2016 · signal: see · confidence high
See Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir. 2009) (holding that when a petitioner’s request for relief under CAT is based on the same factual basis as his asylum claim, it must meet a more demanding burden of proof than the asylum claim); Guled, 515 F.3d at 882 (noting that a separate analysis under CAT is required only when there is evidence that the petitioner may be tortured for reasons unrelated to his claims for asylum and withholding of removal).
discussed Cited "see" Leonard Sholla v. Eric H. Holder, Jr.
8th Cir. · 2010 · signal: see · confidence high
See Gitimu v. Holder, 581 F.3d 769, 772 (8th Cir.2009) (standard of review); Uli v. Mukasey, 533 F.3d 950, 957 (8th Cir.2008) (Country Reports can support factual finding of changed conditions to rebut presumption of well-founded fear of persecution); cf. Lybesha v. Holder, 569 F.3d 877, 881-82 (8th Cir.2009) (Albanian petitioners did not meet their burden of establishing well-founded fear of persecution because Democratic Party now controlled Albanian government).
discussed Cited "see" Guillen-Hernan-Dez v. Holder
8th Cir. · 2010 · signal: see · confidence high
See Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir.2009) (rejecting failed asylum seekers’ withholding of removal claim and request for relief under the CAT when each claim rested on the same factual basis but required a more rigorous standard of proof).
discussed Cited "see" Neivi Guillen-Hernandez v. Eric J. Holder, Jr.
8th Cir. · 2010 · signal: see · confidence high
See Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir. 2009) (rejecting failed asylum seekers’ withholding of removal claim and request for relief under the CAT when each claim rested on the same factual basis but required a more rigorous standard of proof).
cited Cited "see" Mohammad Anwar v. Eric H. Holder, Jr.
8th Cir. · 2010 · signal: see · confidence high
See Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir.2009).
cited Cited "see" Alpha Bai Kamara v. Eric H. Holder, Jr.
8th Cir. · 2009 · signal: see · confidence high
See Gitimu v. Holder, 581 F.3d 769, 772-74 (8th Cir.2009); Uli v. Mukasey, 533 F.3d 950, 957 (8th Cir.2008); Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir.2006).
cited Cited "see" Francisca Batz-Vicente v. Eric Holder
8th Cir. · 2009 · signal: see · confidence high
See Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir.2009).
discussed Cited "see, e.g." Thierno Diallo v. U.S. Attorney General
11th Cir. · 2018 · signal: see, e.g. · confidence medium
A fundamental change in circumstances can exist where there has been “a change in the government that persecuted the petitioner.” Imelda, 611 F.3d at 729 ; see, e.g., Gitimu v. Holder, 581 F.3d 769, 774 (8th Cir. 2009) (petitioner’s party leader elected president; no political killings or prisoners); Uruci v. Holder, 558 F.3d 14, 19 (1st Cir. 2009) (petitioner’s party controlled parliament).
Retrieving the full opinion text from the archive…
James Kinyanjui GITIMU; Florence Wangori Mugi; Samuel Gitimu Kinyanjui, Petitioners,
v.
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent
08-3304.
Court of Appeals for the Eighth Circuit.
Sep 22, 2009.
581 F.3d 769
David K. Link, argued, Wichita, KS, for petitioner., Paul Fiorino, USDOJ, OIL, argued, Washington, DC, for respondent.
Bye, Hansen, Benton.
Cited by 21 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 84%
Citer courts: Eighth Circuit (1)
HANSEN, Circuit Judge.

James Kinyanjui Gitimu, his wife Florence Wangori Mugí, and their child Samuel Gitimu Kinyanjui (Petitioners), petition for review of the Board of Immigration Appeals’ (BIA) order denying them asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We deny the petition.

I.

The Petitioners are natives and citizens of Kenya who were admitted into the United States as nonimmigrant visitors in September 2001, with permission to remain in the United States until March 27, 2002. The Petitioners remained in the United States longer than permitted and, in August 2002, applied for asylum. Removal proceedings commenced in October 2002. The Petitioners conceded removability but requested asylum, withholding of removal, and relief under the CAT. Their requests were based on assertions of past persecution and a well-founded fear of future per[*771] secution, both due to James’s political affiliations and activism. At a hearing before an immigration judge (IJ) on May 24, 2007, James and Florence both testified regarding hardships they suffered in Kenya prior to arriving in the United States.

James testified that after obtaining a college education in India he returned to Kenya and started a secondhand clothing business in 1988. In 1992, he joined the Democratic Party of Kenya. Then, in 1993, his clothing business was destroyed by an early morning fire that James believes to have been arson. After his business was destroyed, he earned a living overseeing a farm owned by various family members. During this time, James was also involved in a political group advocating the release of political prisoners in Kenya. His cousin was a prisoner, and James would demonstrate outside the jail.

In July 1993, James participated in a political rally of 10,000 to 20,000 people, representing multiple opposition political parties. Police descended on the rally, fired tear gas, and wielded clubs to disperse the rally participants. James estimates 1,000 people were arrested, and he was among them. Police held him for one month and gave him no food for the first two days.

In September 2000, James’s brother died in India and was buried in Kenya. According to custom, Kenyans often give money to the surviving family members of the deceased. Shortly after the brother was buried, approximately ten masked men arrived at the family home demanding money. When the family told them there was no money, the men exhumed the brother’s body, brought it to the family home, and demanded money for its safe return. When the family again told the masked men there was no money, the men left the body and the family interred it a second time. James testified that he believes the masked men were motivated by the customary funeral donations.

Less than a year later, in July of 2001, another group of masked men arrived at the family home. The men broke a window in James’s mother’s bedroom and entered the house through the broken window. When James answered his mother’s screams for help, the men threw rocks at him and began to beat him. The men told James that a politician sent them to kill him and his family. The intruders did not reveal the name of their political boss. When the men began assaulting James, his wife Florence interceded and begged the men not to kill her husband. Having drawn the intruders’ ire, Florence was brutally sexually assaulted by each of the men.

Florence also testified before the IJ. She recounted how she begged the men not to kill her husband and was then sexually assaulted by each of the men. She remembers the men saying they were there to punish her husband for his political involvement.

Neither James nor Florence could identify the masked men — either by name or as members of a particular political or social group. The men were not wearing uniforms but looked like regular Kenyans. After the incident, the family alerted the police, Florence underwent a documented medical examination, and a police report was completed. The police report makes no mention of the intruders’ political motivations.

Two United States State Department documents were also admitted into the record before the IJ. One of those documents, the 2006 Country Report on Human Rights Practices for Kenya (the country report), indicates “no reports that the government or its agents committed politically motivated killings” in 2006. (Pet’rs’ App. at 348.) There were also no reports of political prisoners or detainees. The re[*772] port details instances of mob violence in the form of vigilante justice, but the great majority of the victims of mob violence were suspected of criminal activity. The report notes freedom of speech and assembly are guaranteed by Kenya’s constitution, and there was a diminishing number of reports that the government restricted the right to assemble in 2006. According to the report, Kenyan law also protects the rights of workers to join labor unions. Approximately 600,000 workers exercised that right, and there were no reports of human rights abuses of labor union leaders in 2006.

The IJ found the hardships suffered by the Petitioners were acts of crime — not motivated by politics — and therefore did not amount to past persecution. The IJ also found, in the alternative, that the Petitioners do not have a well-founded fear of future persecution because the political party in which James claims membership controlled the presidency of Kenya at the time of the hearing. Additionally, the IJ found the Petitioners could relocate within Kenya and avoid future persecution. As a result, the IJ denied the Petitioners’ application for asylum. The IJ also denied the Petitioners’ requests for withholding of removal and relief under the CAT because those forms of relief must meet more demanding burdens of proof of future persecution than an asylum claim. The BIA adopted the IJ’s decision and affirmed. The Petitioners now seek review of the BIA’s order adopting and affirming the decision of the IJ.

II.

“Any alien who is physically present in the United States ... may apply for asylum....” 8 U.S.C. § 1158(a)(1). To qualify for asylum, an alien shoulders the burden of establishing he is a refugee, as that term is defined in 8 U.S.C. § 1101(a)(42). Id. § 1158(b)(1). Under § 1101(a)(42)(A), a refugee includes “any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group, or political opinion....” Thus, an alien petitioning for asylum must prove past persecution or a well-founded fear of future persecution due to one of the bases enumerated in the statute. 8 C.F.R. § 1208.13(a). Even where past persecution is shown, an immigration judge must deny asylum when a preponderance of the evidence shows “[tjhere has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality....” Id. § 1208.13(b)(l)(i)(A).

The BIA affirmed the IJ’s findings that the Petitioners did not suffer past persecution and, due to changed circumstances in Kenya, do not suffer a well-founded fear of future persecution. The Petitioners challenge those findings. “Where the BIA adopts the IJ’s reasoning, we review the IJ’s decision as well.” Banat v. Holder, 557 F.3d 886, 889 (8th Cir.2009). We review the IJ’s decision denying the Petitioners’ request for asylum for abuse of discretion. Cooke v. Mukasey, 538 F.3d 899, 904 (8th Cir.2008). We analyze questions of law de novo, according “substantial deference to the agency’s interpretations of the statutes and regulations it administers.” Id. The IJ’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, to reverse the IJ’s findings related to past and future persecution we would have to hold that the evidence presented by the Petitioners was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” I.N.S. v. Elias-Zacarias, [*773] 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

III.

The Petitioners advance two challenges to the IJ’s finding that they did not suffer past persecution on account of political opinion or membership in a particular social group. First, the Petitioners argue the record evidence compelled a finding of past persecution. They argue that, in the absence of an explicit adverse credibility determination, James’s and Florence’s testimony and supporting documentary evidence would lead any reasonable factfinder to determine the home invasion was politically motivated. The Petitioners also advance a separate legal argument related to the claimed past persecution — they claim the IJ erroneously required further substantiation of the Petitioners’ testimonial assertions supporting the claim of past persecution.

At the same time, the Petitioners argue the evidence would compel any reasonable adjudicator to find they have a well-founded fear of future persecution should they return to Kenya. They argue the country report does not support the IJ’s finding of changed circumstances but actually demonstrates the reasonableness of their fear of future persecution. In a related argument, the Petitioners claim their constitutional right to due process was violated to the extent the IJ took administrative notice of changed country conditions in Kenya without providing the Petitioners advance notice of, and an opportunity to respond to, his reliance on administrative notice to make factual findings.

Although the IJ found no past persecution, he alternatively held that changed circumstances — including the fact that the leader of James’s political party controlled the presidency of Kenya — meant the Petitioners could not have a well-founded fear of future persecution. Even where there is a finding of past persecution — and the resulting presumption of a well-founded fear of future persecution, 8 C.F.R. § 1208.13(b)(1) — an alien is not entitled to asylum when the government shows by a preponderance of the evidence that “[tjhere has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution....” Id. § 1208.13(b)(1)(i); see also Cooke, 538 F.3d at 906-08 (noting a finding of past persecution “does not end the matter” and affirming IJ’s denial of asylum based on factual finding that petitioners had no well-founded fear of future persecution). The IJ made precisely such a finding in this case. Thus, even if we assume that the Petitioners suffered past persecution, we cannot interfere with the IJ’s order if the record provides sufficient support for the IJ’s factual finding that changed country conditions mean the Petitioners do not have a well-founded fear of future persecution. [2]

State Department country reports can support a factual finding of changed conditions to rebut a presumption of a well-founded fear of future persecution. See, e.g., Uli v. Mukasey, 533 F.3d 950, 957 (8th Cir.2008) (noting evidence of changed circumstances in country reports and concluding “the record evidence does not compel a reversal”). Use of country reports cannot substitute for an analysis of the unique facts of each applicant’s case. Yang v. Gonzales, 427 F.3d 1117, 1121 (8th Cir.2005). In this case, the IJ considered the country report as part of an analysis of the Petitioners’ individual circumstances. Ultimately, the IJ found that the preponderance of the evidence showed no well-founded fear of future persecution. We[*774] cannot say the evidence compels a contrary finding. See 8 U.S.C. § 1252(b)(4)(B) (“administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”).

The country report notes that Kenya is a republic dominated by a strong presidency. The country report also relates that the people of Kenya elected a former opposition leader, Mwai Kibaki, as president in 2002. As James testified at the hearing before the IJ, Mr. Kibaki leads the political party in which James claims membership. The country report also states that there were no reported politically motivated killings in Kenya in 2006. Although there were incidences of mob violence, the violence usually consisted of vigilante acts against suspected criminals. Further, the State Department recorded no reports of political prisoners or detainees. There were fewer reports of government restriction of the constitutionally mandated freedom of assembly. The country report also notes a legal right for workers to join labor unions, a right exercised by approximately 600,000 workers. Despite the level of union membership, “[tjhere were no human rights abuses of union leaders reported by the government.” (Pet’rs’ App. at 367.) Finally, the country report does not suggest the existence of discrimination against members of James’s political party or proponents of farmers’ rights.

Apart from the country report, the IJ’s finding is supported by testimony at the hearing. James testified he has numerous family members living in Kenya who have not suffered persecution. See Alyas v. Gonzales, 419 F.3d 756, 761 (8th Cir.2005) (noting that an alien’s fear of future persecution is diminished when the alien’s family members continue to reside unharmed in the alien’s native country). Additionally, both James and Florence testified they do not know the identity of the assailants in either the 2000 or 2001 incidents. See Menendez-Donis v. Ashcroft, 360 F.3d 915, 919 (8th Cir.2004) (analyzing a record lacking “clear evidence as to the identity of [alien’s] attackers” and concluding the record supported a factual finding of lack of well-founded fear of future persecution). Based on the record as a whole, we cannot say no reasonable factfinder would agree with the IJ. While a different factfinder may have reasonably found in the Petitioners’ favor, that is not enough to require reversal of the IJ. The record evidence does not compel a reversal of the IJ’s decision to deny asylum.

The Petitioners also argue their due process rights were violated because the IJ took administrative notice of changed country conditions. In this case, the IJ’s factual findings regarding country conditions were explicitly based on the country report. The country report was part of the record, and the Petitioners had ample opportunity to rebut that evidence before the IJ and the BIA. The Petitioners’ due process rights were not violated.

Where the asylum seekers fail to establish eligibility for asylum, as the Petitioners do in this case, “they necessarily cannot meet the more rigorous standard of proof for withholding of removal.” Khrystotodorov v. Mukasey, 551 F.3d 775, 784 (8th Cir.2008). The Petitioners’ request for relief under the CAT suffers the same fate because it is based on the same factual basis and must likewise meet a more demanding burden of proof than their asylum claim. Cooke, 538 F.3d at 908.

IV.

Accordingly, we affirm the BIA order adopting and affirming the decision of the IJ and deny the petition for review.

2

. The same principle applies to the other legal issue related to past persecution: whether the IJ erred by requiring additional substantiation.