United States Court of Appeals For the First Circuit No. 18-1470

MICHAEL MACHARIA ZHAKIRA,

Petitioner,

v.

WILLIAM P. BARR, United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Circuit Judge, Souter, Associate Justice, and Lipez, Circuit Judge.

John J. Loscocco, with whom Ashley M. Barkoudah and Barker, Epstein & Loscocco were on brief, for petitioner. Sharon M. Clay, with whom Joseph H. Hunt, Assistant Attorney General; Carl McIntyre, Assistant Director, U.S. Department of Justice, Office of Immigration Litigation; and Nancy E. Friedman, Senior Litigation Counsel, U.S. Department of Justice, Office of Immigration Litigation, were on brief, for appellee.

October 2, 2020

 Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. LIPEZ, Circuit Judge. Petitioner Michael Macharia

Zhakira, a native and citizen of Kenya, seeks review of a final

order of the Board of Immigration Appeals ("BIA") denying his

applications for asylum, withholding of removal, and protection

under the Convention Against Torture ("CAT"). An immigration judge

("IJ") concluded that Zhakira failed to establish either a well-

founded fear of persecution based on a protected ground, as

required for asylum and withholding of removal, or the likelihood

of officially sanctioned torture, required for CAT relief. The

BIA dismissed the appeal and, after granting Zhakira's motion for

reconsideration, reaffirmed its initial ruling. Zhakira asserts

that the IJ and BIA erred, inter alia, in finding that terror

attacks in Kenya by the group Al-Shabaab constituted generalized

violence and in rejecting his proposed social group of

westernized/Americanized Christian Kenyans who oppose Al-Shabaab.

Finding Zhakira's contentions unavailing, we deny his petition for

review.

I.

A. Factual Background

Zhakira arrived in the United States in 2005 to

participate in a dairy farming exchange program. He overstayed

his visa after completing the program because he could not afford

to travel home. Zhakira is not married, but he has three children

who are United States citizens.

- 2 - In 2014, after Zhakira was placed in removal

proceedings, he sought asylum, withholding of removal, and

protection under the CAT.1 In an affidavit submitted with his

application, Zhakira stated that he sought asylum "because I fear

political and religious persecution in Kenya by Al-Shabaab

terrorists on account of my Christianity and my support for the

efforts of Kenya and the US against Al-Shabaab." He further noted

that, "[a]s a person present in the US for over ten years, who has

American children, I will be closely associated with the USA,

further increasing the risk of my being harmed by Al-Shabaab

terrorists."

At his immigration hearing in 2016, Zhakira reported

that he grew up as a Presbyterian Christian, regularly attending

church, and that he continued to practice his religion in the

United States. He became worried about returning to Kenya after

a series of widely publicized terrorist attacks by Al-Shabaab.

Zhakaira testified that in at least two of the attacks -- at a

Nairobi mall, where sixty-seven people were killed, and at a

college in Garissa, where roughly 150 people died -- the only

individuals spared were Muslims who could recite verses from the

1 Although Zhakira's application for asylum was untimely because it was filed more than a year after his entry into the United States, see

(a)(2)(B), the IJ excused the tardiness because of changed country conditions, see

§ 1158(a)(2)(D) -- specifically, the escalating terrorist activity by the group Al-Shabaab.

- 3 - Koran. Zhakira reported that his family members who remain in

Kenya and practice Christianity "live in constant fear" of Al-

Shabaab. Oral Decision of the IJ, at 3.2

B. The IJ's Decision

The IJ found Zhakira credible, but she concluded that

his fear of being targeted by Al-Shabaab was not well-founded.

The IJ noted that Zhakira's parents and sister had not been harmed

despite their practice of Christianity, and she observed that

"general conditions of violence and civil unrest affecting Kenya

as a whole are not cognizable grounds for persecution claims."

The IJ rejected Zhakira's contention that he would be targeted

because he had been in the United States for ten years and had

U.S.-citizen children. The IJ found that those characteristics do

not define a particular and distinct social group within Kenyan

society sufficient to warrant protection under the Immigration and

Naturalization Act ("INA"). Accordingly, the IJ held that Zhakira

had not established either a well-founded fear of persecution based

on a protected ground, disqualifying him for asylum, or the clear

probability of future persecution required for withholding of

removal.

2 Zhakira reported, however, that his father was badly beaten and his home was burned in 2008 when he was attacked by the Mungiki group -- unrelated to Al-Shabaab -- "because of his Christianity."

- 4 - The IJ further concluded that Zhakira had not

established that it was more likely than not that he would be

subject to torture, "let alone that the Kenyan government would

instigate, consent, acquiesce, or turn a blind eye to such

torture," as required by the CAT. Although acknowledging Al-

Shabaab's terrorist activity, the IJ noted that the Department of

State's Human Rights Report stated that security forces had

attempted to drive Al-Shabaab militants out of Kenya. The IJ thus

determined that Zhakira is not entitled to protection under the

CAT.

C. Appeal to the BIA

1. Petitioner's Claims of Error

In his brief on appeal to the BIA, Zhakira identified

three primary errors by the IJ: (1) the failure to address his

claim that he has a well-founded fear of persecution based on his

political opinion, (2) mistaken reliance on his family's lack of

harm in finding that Zhakira's fear of religious persecution was

not well-founded, and (3) mischaracterization of his religious

persecution claim as a claim based on membership in a "social group

of individuals present in the US for ten years who have US citizen

children."

Zhakira emphasized that, in both his application and

testimony before the IJ, he consistently stated his fear that he

would be targeted as a supporter of "the alliance of countries,

- 5 - including Kenya, that are actively opposing Al-Shabaab's campaign

to impose Sharia law on Somalia," and he argued that the evidence

in the record "documents that a political motive is at least one

central reason for the harm feared." He noted that he is not

required to show that he would be singled out for persecution

because the record shows a pattern or practice of persecution

against those similarly situated to him, i.e., individuals "who

oppose [Al-Shabaab's] activities in Somalia as well as those

associated with Christian and western interests." Moreover, he

asserted, voluminous evidence in the record detailing Al-Shabaab's

attacks throughout Kenya "demonstrate[s] that the government is

unable to control Al-Shabaab." Zhakira asserted that his family's

avoidance of violence thus far -- despite their practice of

Christianity -- does not undermine his claim to a well-founded

fear of future persecution based on his own religious practice.

Zhakira also objected to the IJ's characterization of

his claim as based on a particular social group and stated that

his reliance on his U.S. connections simply "informed the asylum

claims he made based on his actual political opinions and those

that would be imputed to him, as well as on the basis of his

Christianity." Zhakira nonetheless went on to argue that, "even

analyzed under the particular social group theory, he has asserted

a well-founded fear of persecution."

- 6 - 2. The BIA's Initial Decision

In affirming the IJ's ruling, the BIA largely echoed the

IJ's reasoning. Despite Zhakira's assertion that he had not

claimed fear of persecution based on a social group, the BIA

concluded that he had done so, in effect, by arguing that he would

be targeted by Al-Shabaab "due to his western manner, his time in

the United States and his United States citizen children." The

BIA agreed with the IJ that such a social group lacks both the

requisite particularity and social distinction to be cognizable.

However, in its discussion of the social group claim, the BIA

erroneously included a sentence that is plainly inapplicable to

Zhakira's circumstances, stating that the evidence does not

support the social distinction of a group comprised of "Kenyan

women who lack the presence of an adult male, such as a boyfriend,

husband, or father, to offer protection."

With respect to Zhakira's religion-based claim, the BIA

acknowledged Al-Shabaab's terrorist activity in Kenya aimed at

non-Muslims, but it noted that 82 percent of Kenya's population is

Christian and that "the isolated attacks, though horrific, do not

support the respondent's claim that he will face persecution or

that there is a pattern or practice of persecution of Christians

in Kenya." The panel also found that the record "does not show

the inability or an unwillingness on the part of the government to

stop" the "large number of attacks" by Al-Shabaab.

- 7 - The BIA found no error in the IJ's failure to address

Zhakira's political opinion as a basis for asylum, concluding that

he did not develop such a claim separate from his religion-based

claim. Moreover, the BIA stated, the record lacks evidence that

Zhakira has been politically active against Al-Shabaab "or that

the terrorists have any interest in him in this regard." Finally,

the BIA agreed with the IJ that Zhakira had not shown eligibility

for CAT relief.

3. Zhakira's Motion to Reconsider

Acquiescing to the agency's determination that he had

presented a social-group claim, Zhakira argued in his motion to

reconsider that the BIA had clearly erred in finding that his

proposed group was not cognizable under the INA. He noted the

clear misstatement concerning females who lack male support and

disputed the BIA's characterization of his social group as limited

to westernized males with or without U.S.-citizen children.

Rather, he argued, his application and testimony established that

he fears persecution on account of being a

"westernized/Americanized Christian who supports the international

campaign against the Al Shabaab terrorists." He asserted that

"[t]he record . . . is replete with examples of Al-Shabaab

targeting for attack those associated with Western education, with

Christianity, with being unable to recite Koranic verses, with

- 8 - believing in the UN mission in Somalia against Al-Shabaab in which

Kenya plays a vital role."

Zhakira also challenged the agency's rejection of his

evidence showing that Al-Shabaab was engaging in a pattern or

practice of persecuting Christians, its finding that he fears

generalized violence rather than targeted harm, and its

determination that he failed to show that the Kenyan government is

unwilling or unable to protect him from Al-Shabaab. On the latter

point, he noted that, despite international efforts to stop Al-

Shabaab, the group has been able to increase its attacks against

non-Muslim and western targets in Kenya. Finally, Zhakira argued

that the BIA clearly erred in stating that he had insufficiently

developed a claim based on his political opinion.

4. BIA Decision on Reconsideration

The BIA granted Zhakira's motion to reconsider and

corrected its obvious error in referencing Kenyan women. In all

other respects, however, it reaffirmed its earlier decision,

noting in a footnote that it declined to reconsider most of

Zhakira's arguments. However, the BIA readdressed the claim of a

particularized social group. It noted that Zhakira had complained

that the BIA's previous decision failed to consider a social group

that reflected his religion and opposition to Al-Shabaab as well

as his status as a westernized male. In response, the BIA first

observed that Zhakira had not specified any social group before

- 9 - the IJ or on appeal. It then explained that neither his religion

nor his political opposition to Al-Shabaab remedied the lack of

particularity or social distinction of his claimed social group.

Again referencing Kenya's 82-percent Christian population, the BIA

stated that Zhakira's religion does not make his proposed social

group sufficiently distinct or particular within Kenya, and his

lack of observable political activity there means that he would

not "be more noticeable than any other Christian Kenyan, either to

the group or to the population in general."

Accordingly, the BIA dismissed Zhakira's appeal and,

pursuant to the IJ's order, granted him voluntary departure.

II. Discussion

A. Standard of Review

Where, as here, the Board affirms "and further

justifies the IJ's conclusions," we review both the BIA's and IJ's

rulings. Ramírez-Pérez v. Barr,

(1st Cir. 2019)

(quoting Nako v. Holder,

(1st Cir. 2010)). We

assess the agency's legal determinations de novo and its "factual

findings under the deferential 'substantial evidence standard,'

meaning that we will not disturb such findings if they are

'supported by reasonable, substantial, and probative evidence on

the record considered as a whole.'"

(quoting Rivas-Durán v.

Barr,

(1st Cir. 2019)).

- 10 - B. Asylum Relief

To establish eligibility for asylum, a petitioner must

prove that he is "unable or unwilling" to return to his home

country "because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion."

(a)(42)(A). The necessary showing is two-pronged: Zhakira

must establish both that he "genuinely fears future persecution"

based on a statutory ground and that his fear is objectively

reasonable. Martínez-Pérez v. Sessions,

(1st Cir.

2018) (quoting Carvalho-Frois v. Holder,

(1st Cir.

2012)).3

As noted above, Zhakira initially resisted the agency's

assessment that he had relied on membership in a social group as

one basis for relief. In his petition to this court, however,

Zhakira asserts eligibility for asylum based on three grounds: his

Christian religion, his political opposition to Al-Shabaab, and a

social group that includes both of those attributes --

westernized/Americanized Christians who support the international

campaign against Al-Shabab. We consider each in turn.

3A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. See Martínez-Pérez,

. Zhakira does not claim that he was persecuted in the past.

- 11 - 1. Religion. Zhakira presented a considerable amount of

evidence showing that, in Al-Shabaab's terrorist attacks,

Christians were targeted and Muslims were spared. The IJ and BIA

nonetheless found that Zhakira had failed to show either a pattern

or practice of persecution of Christian Kenyans or "an

individualized risk on this basis." Zhakira has not reiterated a

pattern-or-practice argument to this court, and we therefore do

not consider that rationale.

With respect to the fear of targeted religious

persecution, we find no basis for overturning the IJ's and BIA's

conclusion that Zhakira failed to make a showing adequate to

warrant relief. The BIA stated that the IJ had properly considered

that Zhakira's family, "also Christians, live without problem in

[his] home town." The BIA further observed that 82 percent of

Kenyans are Christian "and, for the most part live without problems

with Al Shabaab."

We do not minimize Zhakira's and his family's ongoing

fear of a terrorist attack, which was acknowledged by the IJ.

Nonetheless, the IJ and BIA supportably found that, with respect

to his religion, Zhakira has not differentiated himself from his

family members who have not been directly threatened or harmed, or

from the majority of Kenyans who also are Christians and have

similarly experienced no persecution. See, e.g., Aguilar-Solis v.

INS,

(1st Cir. 1999) (noting that "petitioner

- 12 - has not provided a satisfactory differentiation of his situation

from that of his siblings," and that, "[w]ithout some explanation,

the fact that close relatives continue to live peacefully in the

alien's homeland undercuts the alien's claim that persecution

awaits his return"). Accordingly, we conclude that substantial

evidence supports the agency's rejection of Zhakira's petition for

asylum based on religion.

2. Political Opinion. Zhakira argues that his support

for governmental efforts to fight Al-Shabaab exposes him to a

likely risk of future persecution sufficient to render him eligible

for asylum. He maintains that, in addition to his actual

opposition to Al-Shabaab, the terrorist group will impute such a

political view to him because of his long residency in the United

States.

The BIA aptly observed that Zhakira never fully

developed a distinct political-opinion claim separate from his

contention that he faced a likelihood of persecution as a Christian

with ties to the United States. That lack of development continues

in his briefing to this court. In a roughly one-page discussion,

Zhakira asserts that "he possesses the political opinion of

supporting the Kenyan government's unsuccessful attempts at

ridding the country of Al-Shabaab," Petitioner's Br. at 19, but he

acknowledges that he has taken "no actual political action,"

and he identifies no evidence indicating that Al-Shabaab would be

- 13 - aware of his political views and "target[] [him] for that reason."

Mendez-Barrera v. Holder,

(1st Cir. 2010).

Accordingly, there is no basis for overturning the agency's

rejection of Zhakira's asylum claim based on his political opinion.

3. Social Group. To establish a right to asylum based

on membership in a social group, a petitioner must show that the

specified group is (1) composed of individuals "'who share a common

immutable characteristic, (2) defined with particularity, and (3)

socially distinct within the society in question.'" Ramírez-

Pérez,

(quoting Rivas-Durán,

).

"Particularity" means that "the group is 'discrete and ha[s]

definable boundaries -- it must not be amorphous, overbroad,

diffuse or subjective.'"

(alteration in original) (quoting

Paiz-Morales v. Lynch,

(1st Cir. 2015)). The

"social distinction" requirement "refers to 'whether those with a

common immutable characteristic are set apart, or distinct, from

other persons within the society in some significant way.'"

(quoting Rivas-Durán,

).

As noted, Zhakira identifies his proposed social group

as "westernized/Americanized Christians supporting the

international campaign against Al-Shabaab." Petitioner's Br. at

15; see also id. at 4. The BIA concluded that this group possessed

neither particularity nor social distinction and, hence, is "too

amorphous to be cognizable under the INA." Zhakira's challenge to

- 14 - that determination could be deemed waived. After stating in his

brief that "[h]is westernized/Americanized Christian status cannot

be changed and is immutable," Zhakira summarily asserts: "This

status is also socially visible and sufficiently particular." Id.

at 23. We nonetheless briefly address the social-group claim,

which can be resolved based solely on Zhakira's failure to satisfy

the particularity requirement. See, e.g., Aguilar-De Guillen v.

Sessions,

(1st Cir. 2018) (holding that petitioner

does not qualify for asylum based on membership in a social group

"because she does not meet the particularity requirement").

Zhakira does not explain what attributes make an

individual "westernized" or "Americanized," and, as framed, the

proposed group is not limited to those who have lived in the United

States.4 The "westernized/Americanized" characteristic is thus

open to varying, subjective interpretations. See, e.g., Ahmed v.

Holder,

(1st Cir. 2010) ("Adjectives like

'secularized' and 'westernized' reflect matters of degree and, in

the last analysis, such adjectives call for subjective value

judgments."). Indeed, the classification could include both

grade-school children and retirees -- i.e., any Christian able to

4 At oral argument, Zhakira's counsel seemed to suggest that Zhakira's proposed group consists only of Christian Kenyans who return to Kenya after lengthy residency in the United States and who also have U.S.-citizen children. However, that is not the group he identifies in his brief and, accordingly, we do not consider those chacteristics.

- 15 - form an opinion opposing Al-Shabaab's violence who manifests, in

unspecified ways, "western" or "American" affinity. Briefly put,

Zhakira's proposed group "lacks definable boundaries and 'is by

definition too amorphous and overbroad to be particular.'"

Ramirez-Pérez,

(quoting Paiz-Morales,

).

Hence, Zhakira has not demonstrated entitlement to

asylum based on a cognizable social group.

C. Withholding from Removal and CAT Relief

To be eligible for withholding of removal, Zhakira would

have to "show that it is 'more likely than not' that he would be

persecuted on account of a protected ground if repatriated." Yong

Gao v. Barr,

(1st Cir. 2020) (quoting

(b)(2)). We have repeatedly observed that "[a]

petitioner who cannot clear the lower hurdle for asylum will

necessarily fail to meet the higher bar for withholding of

removal." Paiz-Morales,

. Our resolution of

Zhakira's asylum claim thus "also disposes of [his] withholding of

removal claim." Ramírez-Pérez,

. Zhakira presents

essentially no argument on the denial of his request for CAT

protection, and we therefore deem that claim waived.

For the foregoing reasons, the petition for review is

denied. So ordered.

- 16 -