Maina v. Holder , 379 F. App'x 581 ( 2010 )

FILED
NOT FOR PUBLICATION MAY 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PATRICK GITHINJI MAINA, No. 06-70311
Petitioner, Agency No. A095-592-434
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 11, 2010
San Francisco, California
Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.
Patrick Maina applied for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). He petitions for review of the Board of
Immigration Appeals’ final order of removal. We have jurisdiction under 8 U.S.C.
§ 1252(a)(1), and we grant the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Maina is a Kenyan citizen who was arrested by police for working on behalf
of Democratic Party candidates against local politicians in 1992 and 2001. The
BIA assumed that Maina’s arrests constituted past persecution, and presumed that
Maina had a well-founded fear of future persecution. See Gonzalez-Hernandez v.
Ashcroft, 336 F.3d 995, 997 (9th Cir. 2003). The BIA properly placed the burden
on the government to rebut that presumption, see 8 C.F.R. §§ 1208.13(b)(1)(ii),
1208.16(b)(1)(ii), but concluded that the government had successfully done so.
The BIA first held that the government had shown a fundamental change in
circumstances. In 2002, a coalition of opposition parties won Kenya’s presidency
and a majority of seats in its parliament. Maina claims that despite those changes,
he fears persecution at the hands of local politicians and police who remain in
power. The BIA concluded that Maina’s fear was unfounded because his father
was appointed to a powerful civil service position after the 2002 elections.
However, Maina’s father had been unable to prevent his arrest in 2001, despite
holding an equivalently powerful position at the time. The BIA also observed that
the new President appoints local civil servants, but Maina feared persecution by
local police and elected politicians, not civil servants. Moreover, the State
Department reports that local officials continue to intimidate political opponents.
Accordingly, any rational trier of fact would conclude that the government did not
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meet its burden to show a fundamental change in circumstances. See
Gonzalez-Hernandez, 336 F.3d at 998.
The BIA also held, without separate analysis, that Maina could safely and
reasonably relocate within Kenya. Given the lack of analysis, we look to the IJ’s
oral decision for guidance. Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.
2000). The IJ ruled that Maina’s father could protect him if he relocated to
Mombasa, where his father’s civil service position was located. As Maina’s father
had been unable to protect him in Nairobi, there is no reason to believe that
Maina’s father will be able to use the same position to protect him in Mombasa.
The IJ also speculated that Maina could avoid the local police who had persecuted
him by moving from Nairobi to Mombasa. However, the government presented no
evidence to that effect, and it bore the burden of proof. See 8 C.F.R. §§
1208.13(b)(1)(ii), 1208.16(b)(1)(ii). Furthermore, the government presented no
evidence that it was reasonable for Maina to relocate his family to Mombasa. See
Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004). The BIA therefore erred in
concluding that the government met its burden to show that Maina could relocate
within Kenya.
The government did not rebut the presumption that Maina had a well-
founded fear of future persecution, and the government acknowledged at argument
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that, given the BIA’s credibility finding, Maina has proven past persecution. We
remand to the BIA for the Attorney General to exercise his discretion under 8
U.S.C. § 1158(b) as to whether to grant asylum, and for an appropriate order
withholding removal of Maina. See Baballah v. Ashcroft, 335 F.3d 981, 992 (9th
Cir. 2003).
With respect to Maina’s application for CAT relief, the BIA stated, without
separate analysis, that Maina had not shown a likelihood that he would be tortured.
Maina’s CAT claim asserts a likelihood of torture based on the same political
activities protected under asylum regulations. However, the IJ’s analysis of the
issue was incomplete. It did not address Maina’s 1992 arrest or the combined
effect of both arrests, and it improperly relied on Maina’s father’s position to
conclude that Maina would not be tortured if he relocated. We therefore remand
Maina’s claim for CAT relief to the BIA for reconsideration.
The petition for review is GRANTED; REMANDED.
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