Nyamuoch Duoth v. Merrick B. Garland ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3083
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Nyamuoch Thomas Duoth
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 23, 2022
Filed: November 10, 2022
[Unpublished]
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Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.
Nyamuoch Duoth wants to remain in the country, but the Board of
Immigration Appeals denied her request for asylum and withholding of removal.
She sought asylum even though she “intentionally, knowingly, or recklessly cause[d]
bodily injury” to a police officer. Neb. Rev. Stat. § 28-931(1)(a). And she thought
withholding of removal was available because she would allegedly face ethnic
persecution if she returned to South Sudan. We deny her petition for review.
Duoth’s prior conviction makes her ineligible for asylum unless the version
of the crime she committed required only reckless conduct. See 8 U.S.C.
§ 1158(b)(2)(A)–(B); see also United States v. Garcia-Longoria, 819 F.3d 1063,
1067 (8th Cir. 2016) (holding that “the mens rea alternatives in Neb. Rev. Stat. § 28-
931(1) are ‘alternative element[s] in a divisible statute’” (citation omitted)). Even
assuming we can consider the police report describing the crime, it says that she
“ma[de] threats to kill,” “attempt[ed] to punch” officers, and “kicked at” one of them
before “spit[ting] in [her] face.” These acts are at least as likely to have been
committed intentionally or knowingly as recklessly. See Pereida v. Wilkinson, 141
S. Ct. 754, 763 (2021) (explaining that when, “as here, the alien bears the burden of
proof and was convicted under a divisible statute containing some crimes that [bar
relief], the alien must prove that his actual, historical offense of conviction isn’t
among them”). So asylum is off the table.
The same goes for withholding of removal. To receive this type of relief,
Duoth needed to establish a “clear probability” of ethnic persecution. Ming Ming
Wijono v. Gonzales, 439 F.3d 868, 872 (8th Cir. 2006) (reviewing for substantial
evidence). The record, however, supports what the agency found: violence in South
Sudan affects everyone regardless of ethnicity, opposing factions have entered into
a peace agreement, members of Duoth’s ethnic group hold top government jobs, and
her mother visited the country safely. On these facts, it was reasonable for the Board
to conclude that Duoth was not entitled to withholding of removal. See id.; Supangat
v. Holder, 735 F.3d 792, 796 (8th Cir. 2013) (per curiam).
We accordingly deny the petition for review.
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