                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1893


LINAH JEROTICH TALLAM,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   December 5, 2012                  Decided:   March 13, 2013


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Petition denied by unpublished opinion.     Judge Niemeyer wrote
the opinion, in which Judge Wilkinson and Judge Gregory joined.


ARGUED:    William Payne, PAYNE & ASSOCIATES, Washington, D.C.,
for Petitioner.       Nicole J. Thomas-Dorris, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.      ON
BRIEF:   Tony West, Assistant Attorney General, Civil Division,
Jennifer L. Lightbody, Senior Litigation Counsel, UNITED STATES
DEPARTMENT    OF  JUSTICE,  Office of   Immigration  Litigation,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:

     Linah Jerotich Tallam, a native and citizen of Kenya, filed

this petition for review of an order of the Board of Immigration

Appeals    (“BIA”)      dismissing     her    appeal       from     an    immigration

judge’s order denying her application for asylum, withholding of

removal,   and    protection     under      the    Convention     Against     Torture

(“CAT”).     The BIA agreed with the immigration judge that Tallam

had not established her eligibility for relief.                          Because the

record does not compel us to conclude otherwise, see INS v.

Elias-Zacarias,        502   U.S.    478,    483-84       (1992),    we     deny   the

petition for review.


                                         I

     Linah Tallam entered the United States in August 2001 on a

student    visa       that   authorized      her     to     remain       through   the

completion of her studies or, at the latest, December 13, 2007.

In December 2007, as she was preparing to return to Kenya with

her American daughter, the country erupted in ethnic violence

following the presidential election, held on December 27, 2007.

According to a March 2008 report by Human Rights Watch, the

opposition     candidate’s       one-million         vote     lead       mysteriously

disappeared      as   the    final   votes    were    being    counted,      and   the

incumbent candidate, Mwai Kibaki, a member of the Kikuyu tribe,

was suddenly declared the winner on December 30, 2007.                             J.A.


                                         2
196.     After the results were announced, “[m]obilized opposition

supporters -- especially in the Rift Valley and the slums of

Nairobi    --     attacked      those   whom      they   assumed     had   voted   for

Kibaki, and his [political party], in large part the Kikuyu.

This   assigned     an    ethnic     dimension      to   the   violence    and   angry

Kikuyu then fought back.”               J.A. 178.        “The scale and speed of

the    violence    that    engulfed      Kenya     following    the    controversial

presidential election . . . shocked both Kenyans and the world

at large.       Two months of bloodshed left over 1,000 dead and up

to 500,000 internally displaced persons . . . .”                     J.A. 176.

       According to Tallam, her family was tragically affected by

these events.       Tallam states that she learned by phone from her

brother Moses that members of the Kikuyu tribe had attacked all

of the members of the Kalenjin tribe living in her home village

of Benonin, which is located outside the town of Eldama Ravine

in Kenya’s Rift Valley in a predominately Kikuyu area.                             J.A.

130-32, 155, 296.              Moses told her that on January 5, 2008,

Kikuyu    men   burned     down      their   mother’s      home,   along    with   the

nearby    homes    of    two    of   their       other   brothers,    causing    their

family to flee to other parts of Kenya.                   J.A. 296-97.     She later

found out from Moses that on February 14, 2008, members of the

Kikuyu tribe murdered her sister Lydia and raped one of her

cousins.    J.A. 297.



                                             3
        Based on this information, on April 8, 2008, Tallam filed

an application for asylum, withholding of removal, and relief

under the CAT, claiming a fear of persecution on account of her

membership in the Kalenjin tribe.              An asylum officer declined to

grant    Tallam’s     application       and    instead    referred   it       to   the

Immigration       Court.       The     Department        of   Homeland     Security

subsequently      initiated         removal    proceedings      against       Tallam,

charging    her    with     being    subject    to    removal   under     8    U.S.C.

§ 1227(a)(1)(B) for having overstayed her non-immigrant visa.

        Appearing before an immigration judge in June 2009, Tallam

conceded her removability but renewed her requests for asylum,

withholding of removal, and CAT protection.                   Alternatively, she

requested voluntary departure.            After hearing Tallam’s testimony

and reviewing the documentary evidence submitted by both sides,

the immigration judge denied Tallam’s application.                       First, the

judge ruled that Tallam’s asylum application was time barred, as

it was filed more than one year after she last entered the

United States and neither of the exceptions that would excuse an

untimely filing applied.             After making this initial ruling, the

judge     proceeded    to    articulate        an    alternative,    merits-based

rationale for denying Tallam’s application.                   Although the judge

found Tallam’s testimony credible and found that Tallam had a

genuine subjective fear of persecution, the judge found that she

had not demonstrated an objectively reasonable basis for that

                                          4
fear.     In this regard, the judge noted that the reports in the

record on conditions in Kenya indicated that the acute period of

election-related violence had ended.            Moreover, the judge found,

even though some inter-ethnic violence still existed in Kenya,

Tallam    had    not    demonstrated   that     she   could    not   reasonably

relocate within Kenya, especially given her testimony that many

of her family members had relocated to other areas in Kenya and

that two of her siblings had even returned to Eldama Ravine.

The immigration judge also emphasized that the Kenyan government

had made significant efforts to quell the country’s inter-ethnic

violence.       Accordingly, the judge denied Tallam’s requests for

asylum, withholding of removal, and CAT protection, although the

judge granted her alternative request for voluntary departure.

        By order dated July 18, 2011, the BIA affirmed, finding

that it need not decide whether Tallam’s asylum application was

timely filed because Tallam had not established a well-founded

fear of future persecution on account of a protected ground.

The BIA found that the “country condition evidence in the record

shows that inter-ethnic violence carried out by various ethnic

groups, including the Kalenjin, occurred for 2 months after the

2007 presidential election,” but that the country’s political

parties had responded to the crisis by reaching a power-sharing

agreement    that      also   established   a   Commission     of    Inquiry   on

political       violence,      an   Independent       Review    Committee      on

                                       5
elections, and a Truth, Justice, and Reconciliation Commission.

The BIA also agreed with the immigration judge that Tallam had

not   met    her     burden        of    establishing           that     it      would      not   be

reasonable        for    her       to   relocate          to    another       part    of     Kenya.

Because she had not demonstrated her eligibility for asylum, the

BIA   additionally           found      Tallam          could   not    satisfy        the    higher

burden applicable to withholding of removal.                                Finally, the BIA

agreed that Tallam had not shown that it was more likely than

not that she would be tortured by the Kenyan government or with

the government’s consent or acquiescence and that she therefore

did   not    qualify         for     CAT      protection.             The     BIA     accordingly

dismissed        Tallam’s      appeal      and      reinstated        the     period        for   her

voluntary departure.

      Tallam timely filed this petition for review of the BIA’s

decision.


                                                   II

      The Immigration and Nationality Act authorizes the Attorney

General     to    grant      asylum      to    a       person   unable      or      unwilling      to

return to her native 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.”                8 U.S.C. § 1101(a)(42)(A); id. § 1158(b).

The applicant “bear[s] the burden of proving eligibility for


                                                   6
asylum.”     Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006).

If the asylum applicant shows past persecution, she is presumed

to    have   a    well-founded        fear     of    persecution.      8     C.F.R.

§ 1208.13(b)(1).            Without    regard       to   past   persecution,    the

applicant has a well-founded fear of persecution if (1) she “has

a fear of persecution in . . . her country of nationality . . .

on    account    of    race,   religion,      nationality,      membership     in   a

particular social group, or political opinion;” (2) “[t]here is

a reasonable possibility of suffering such persecution if . . .

she were to return to that country;” and (3) “she is unable or

unwilling to return to, or avail . . . herself of the protection

of, that country because of such fear.”                  Id. § 1208.13(b)(2)(i).

The    well-founded         fear      standard      therefore     contains     both

subjective and objective components.                 The subjective element may

be    satisfied       “by   presenting       candid,     credible,   and   sincere

testimony demonstrating a genuine fear of persecution,” Chen v.

INS, 195 F.3d 198, 201 (4th Cir. 1999) (internal quotation marks

omitted), while the “objective element requires a showing of

specific, concrete facts that would lead a reasonable person in

like circumstances to fear persecution,” Ngarurih v. Ashcroft,

371 F.3d 182, 187-88 (4th Cir. 2004).

       To establish a well-founded fear of persecution, an asylum

applicant need not show that she would be individually targeted

for persecution if she establishes that “there is a pattern or

                                          7
practice . . . of persecution of a group of persons similarly

situated to the applicant.”                     8 C.F.R. § 1208.13(b)(2)(iii).                    In

such    a    case,       “[t]he     key    for     the       applicant     is      to    show     the

thorough         or    systematic        nature    of       the   persecution           he   fears.”

Chen, 195 F.3d at 203.                   The applicant is ineligible for asylum,

however,         if     she     “could    avoid        persecution       by     relocating         to

another part of [her] country of nationality . . . [and] if

under all the circumstances it would be reasonable to expect

[her]       to    do     so.”       8    C.F.R.        § 1208.13(b)(2)(ii).                  If   the

applicant         has    not     established          past    persecution          or    that     the

feared      persecution          would     be     by    a    government       or    government-

sponsored,        the     applicant        “bear[s]         the   burden      of   establishing

that it would not be reasonable for . . . her to relocate.”                                       Id.

§ 1208.13(b)(3)(i).

       A determination of the BIA must be supported by substantial

evidence, and we review its decision under a highly deferential

standard.         Under that standard, its factual determinations “are

conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.”                     8 U.S.C. § 1252(b)(4)(B).                   Thus,

we may reverse the BIA’s findings only if the evidence presented

was “so compelling that no reasonable factfinder could fail to

find the requisite fear of persecution.”                             Elias-Zacarias, 502

U.S. at 484; Ngarurih, 371 F.3d at 188.                                  And “[t]he agency

decision that an alien is not eligible for asylum is ‘conclusive

                                                  8
unless     manifestly     contrary          to    the       law    and   an    abuse     of

discretion.’”        Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir.

2010) (quoting 8 U.S.C. § 1252(b)(4)(D)).

     Tallam     argues    that       the    BIA’s      determination      that    she    is

ineligible for asylum is not supported by substantial evidence.

While     she   has    never        claimed      to     be     the    victim     of    past

persecution, she contends that “the egregious behavior inflicted

on her family by the Kikuyu tribe, unchecked by the government

in conjunction with the country conditions of ethnic violence,

gave her a well founded fear of persecution based on her social

group.”     We conclude, however, that the record evidence, taken

as a whole, does not compel the conclusion that Tallam had a

well-founded     fear     of        persecution        in     June    2009,    when     the

immigration judge considered her asylum application.                             Instead,

as the BIA found, both of the primary reports in the record on

conditions in Kenya -- the U.S. Department of State 2007 Country

Report on Human Rights Practices, dated March 11, 2008; and a

March 2008 report by the Human Rights Watch entitled, “Ballots

to Bullets: Organized Political Violence and Kenya’s Crisis in

Governance”     --    indicate       that   the       acute    inter-ethnic      violence

that beset Kenya after the December 2007 election had largely

ended by the spring of 2008.

     Tallam     attempts       to    controvert         this      conclusion   with     two

pieces of evidence.         First, she points to a U.N. News Service

                                             9
article,       dated    October   24,   2008.        But        that   article   simply

reports that a Deputy High Commissioner for Human Rights, when

visiting       Kenya,    called   for   the      nation’s       leaders    “to   address

issues    --    such    as   violations     of    socio-economic          rights,     land

issues, large disparities between classes, marginalization and

exclusion -- at the root of the [post-election] violence.”                            J.A.

377.     If anything, this article actually supports the agency’s

finding that the violence had largely subsided by the time the

immigration judge considered Tallam’s asylum application.

       Tallam also points to her testimony that the week before

her asylum hearing, she learned from her brother Moses that one

of their neighbors had been killed.                  J.A. 144-45.          Her brother

did    not   have      information   regarding       the    circumstances        of   the

neighbor’s death, other than claiming that he “knew” that the

neighbor had been killed by a member of the Kikuyu tribe because

he had been decapitated.             J.A. 145.       But this isolated act of

lingering inter-ethnic violence does not compel the conclusion

that, at the time of the asylum hearing, there was “a pattern or

practice” in Kenya of persecuting the Kalenjin based on their

tribal membership so as to make Tallam’s fear of persecution

objectively       reasonable.        See   8     C.F.R.     §    1208.13(b)(2)(iii);

Chen, 195 F.3d at 203.

       Additionally, Tallam completely fails to address the BIA’s

findings that the persecution she subjectively fears is neither

                                           10
by   the     government       nor     government          sponsored.           In    that

circumstance, she “bear[s] the burden of establishing that it

would not be reasonable for . . . her to relocate,” 8 C.F.R.

§ 1208.13(b)(3)(i), a burden she failed to carry.                       As both the

immigration    judge    and     the    BIA    emphasized,      Tallam’s    testimony

suggests that her mother and her eight living siblings have all

safely relocated within Kenya.                J.A. 133-37, 146-48.              Indeed,

Tallam testified that two months before her asylum hearing, two

of   her   siblings     had    returned       to    Eldama    Ravine,     apparently

without incident.           J.A. 136-37, 146-47.              The record is also

devoid of any recent affidavits or letters, from either Tallam’s

family members or other members of the Kalenjin tribe, reporting

that the Kalenjin are still being persecuted by the Kikuyu.

     For these reasons, we conclude that substantial evidence

supports the BIA’s affirmance of the immigration judge’s denial

of Tallam’s application for asylum.

     Turning    to    Tallam’s        request      for    withholding     of    removal

under 8 U.S.C. § 1231(b)(3), such relief is only available to

applicants     who    are     “more    likely      than    not”    to   face        future

persecution,    a    burden     of    proof     more     onerous   than    the      well-

founded fear standard for asylum.               8 C.F.R. § 1208.16(b)(2); see

also Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).

Because we affirm the BIA’s conclusion that Tallam failed to

establish a well-founded fear of future persecution, it follows

                                         11
that   her        proof     also   fails       to    establish     her    eligibility     for

withholding of removal.

       Finally, we conclude that substantial evidence supports the

BIA’s denial of CAT relief.                    The evidence in the record does not

compel the conclusion that Tallam will, more likely than not, be

tortured        by,    or   with    the    acquiescence       of,       Kenyan   government

officials, as is necessary to qualify for protection under the

CAT.        See    8   C.F.R.      §§    1208.16(c), 1208.18(a).               Rather,     the

objective record evidence indicates that the Kenyan government

has gone to significant lengths to respond to the severe inter-

ethnic      violence        sparked       by     the    December        2007   presidential

election.          There is simply nothing in the record that would

compel      a     reasonable       factfinder          to   agree       with   Tallam    that

government officials would, more likely than not, participate

in,    or    be    complicit       in,    the       torture   of    a    returning      Kenyan

citizen.          We accordingly affirm the BIA’s denial of Tallam’s

request for CAT protection.

       For the foregoing reasons, we deny Tallam’s petition for

review.

                                                                           PETITION DENIED




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