Serah Karingithi v. Matthew Whitaker ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERAH NJOKI KARINGITHI, No. 16-70885
Petitioner, Agency No. A087-020-992
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 11, 2018
San Francisco, California
Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.
Serah Njoki Karingithi petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision denying her applications for asylum and withholding of
removal. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and deny the petition.1
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
We address Karingithi’s contention that the Immigration Court lacked jurisdiction
in this matter in an Opinion filed contemporaneously with this memorandum
disposition.
The BIA correctly found that Karingithi was ineligible for asylum because
her application was filed more than a year after she entered the United States. See
8 U.S.C. § 1158(a)(2)(B). Karingithi’s plan to obtain other lawful immigration
status was not an “extraordinary circumstance” excusing her late filing. See
8 U.S.C. § 1158(a)(2)(D). None of the examples of extraordinary circumstances
listed at 8 C.F.R. § 1208.4(a)(5) include planning to apply for a visa or adjustment
of status, nor is such a plan “of a similar nature or seriousness” as the enumerated
examples. Gasparyan v. Holder, 707 F.3d 1130, 1135 (9th Cir. 2013).
Substantial evidence supports the BIA’s conclusion that Karingithi was
ineligible for withholding of removal. See Sanjaa v. Sessions, 863 F.3d 1161,
1164 (9th Cir. 2017). At most, Karingithi established she was subject to
“unfulfilled threats,” which does not compel the conclusion that she was subject to
past persecution. Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000). And while there
is no doubt “that female genital mutilation constitutes persecution,” Benyamin v.
Holder, 579 F.3d 970, 976 (9th Cir. 2009), Karingithi has not shown a “clear
probability” that she will be subject to female genital mutilation upon return to
Kenya, see Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014).
PETITION DENIED.
2