     Case: 09-60448        Document: 00511261784          Page: 1    Date Filed: 10/13/2010




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                   FILED
                                                                             October 13, 2010

                                          No. 09-60448                         Lyle W. Cayce
                                                                                    Clerk

PERIS WANJIRU KAMAU; JAMES KAMAU MEREKA,

                                                      Petitioners
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                      Respondent




                           Petition for Review of an Order of the
                              Board of Immigration Appeals
                           BIA Nos. A94-889-025; A94-889-026


Before GARZA and BENAVIDES, Circuit Judges, and CRONE, District Judge.*
PER CURIAM:**
        Peris Wanjiru Kamau, a native and citizen of Kenya, petitions for review
of the decision of the Board of Immigration Appeals (“BIA”) adopting and
affirming the Immigration Judge’s (“IJ”) denial of her application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). Kamau’s claims are based on her fear of being forcibly circumcised by



        *
            District Judge for the Eastern District of Texas, sitting by designation.
       **
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                      No. 09-60448

the Mungiki sect, a political and religious group which advocates female genital
mutilation (“FGM”).1
       This court reviews the BIA’s legal conclusions de novo and its findings of
fact, including its determination that an alien is not eligible for withholding of
removal, for substantial evidence. See Chen v. Gonzales, 470 F.3d 1131, 1134
(5th Cir. 2006). Under the substantial evidence standard, this court will affirm
the BIA’s determination unless the evidence compels a contrary conclusion. See
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
              Exhaustion
       Kamau argues that she is entitled to asylum and withholding of removal
based on past persecution and a well-founded fear of future persecution because
of: (1) her religion and political opinion; and (2) her membership in a particular
social group, “consisting of women who have not had FGM.” The respondent
argues that this court lacks jurisdiction to address her second argument because
Kamau failed to exhaust it before the BIA. Judicial review of a final removal
order is available only if the applicant has exhausted all administrative
remedies as of right. 8 U.S.C. § 1252(d)(1). Failure to exhaust administrative
remedies creates a jurisdictional bar to this court’s consideration of an issue.
Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).
       Kamau challenges the respondent’s assertion that she failed to exhaust
her claim of persecution on account of membership in a particular social group.
She argues that the IJ discussed and considered the issue in his oral decision
and that she raised the issue in her brief before the BIA. However, the IJ’s
decision addressed her claim in terms of religion and political opinion only.
Moreover, although her brief before the BIA listed membership in a particular


       1
        In Kamau’s application for asylum, withholding of removal, and relief under CAT, she
named her husband as a derivative applicant. This opinion’s reference to Kamau encompasses
both applicants.

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                                   No. 09-60448

social group as a basis for relief generally, she did not expressly argue that she
was a member of a particular social group. The BIA’s decision adopted and
affirmed the IJ’s decision. Because Kamau failed to exhaust her claim of past
persecution or a well-founded fear of future persecution on the basis of
membership in a particular social group before the BIA, this court lacks
jurisdiction to address the claim. See Claudio v. Holder, 601 F.3d 316, 317-19
(5th Cir. 2010). Although the respondent also argues that Kamau failed to
exhaust her claim for relief under CAT, because the BIA considered this claim
in its opinion, this court has jurisdiction to address the denial of relief under
CAT. Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010) (holding that
“[i]f the BIA deems an issue sufficiently presented to consider it on the merits,
such action by the BIA exhausts the issue as far as the agency is concerned and
that is all that [8 U.S.C.] § 1252(d)(1) requires to confer our jurisdiction” (quoting
Sidabutar v. Gonzales, 503 F.3d 1116, 1119 (10th Cir. 2007))).
      ASYLUM
      As previously set forth, Kamau argues that she is entitled to asylum and
withholding of removal based on past persecution and a well-founded fear of
future persecution by the Mungiki because of her religion and political opinion.
To obtain asylum, an alien must prove that she is a “refugee.”              8 C.F.R.
§ 1208.13(a). A refugee is defined as a person unable to return to her 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). Past persecution involves harm inflicted on
the alien because of a statutorily enumerated ground by the government or
forces that a government is unable or unwilling to control. Adebisi v. INS, 952
F.2d 910, 913–14 (5th Cir. 1992). A well-founded fear of persecution results
when a reasonable person in the same circumstances would fear persecution if
deported. Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994).

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      After a hearing, the IJ found Kamau to be a credible witness.
Nonetheless, the IJ denied the application for asylum, finding, among other
things that the “record does show that the government of Kenya is aggressively
pursuing Mungiki and is attempting to bring them under control.” In other
words, the IJ concluded that Kamau had not shown that the Kenyan government
was unable or unwilling to control the Mungiki. After reviewing the record and
the briefs, we conclude that the evidence in the record does not compel a
conclusion contrary to that reached by the IJ and BIA. See Omondi v. Holder,
332 F. App’x 197, 199 (5th Cir. 2009) (declining to find the Kenyan government
unwilling or unable to control the Mungiki based on evidence showing that
Kenya “is actively fighting the Mungiki”).
      Kamau also challenges the denial of withholding of removal. Because she
has not established a claim for asylum, she cannot meet the higher standard for
withholding of removal. See Eduard v. Ashcroft, 379 F.3d 182, 186 n. 2 (5th Cir.
2004).
      CAT claim
      Kamau asserts that the BIA wrongly held that she was not eligible for
protection under CAT. Kamau asserts that she has substantial grounds for
believing that she would be tortured if she returned to Kenya. In Article 3, CAT
provides that “[n]o State Party shall expel, return . . . or extradite a person to
another State where there are substantial grounds for believing that he would
be in danger of being subjected to torture.” Efe v. Ashcroft, 293 F.3d 899, 907
(5th Cir. 2002). Instead of requiring proof of persecution, CAT requires the
higher showing of torture. Id. Torture is the intentional infliction of severe
mental or physical pain by a public official (or with the consent or acquiescence
of a public official) for the purpose of obtaining information, intimidation,
punishment, or discrimination. See 8 C.F.R. § 208.18(a)(1). Torture is defined
as “an extreme form of cruel and inhuman treatment.” § 208.18(a)(2). The

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petitioner has the burden of proving that she will likely be tortured if she is
removed. 8 C.F.R. § 208.16(c)(2).
      In light of the evidence in the Country Report that the Kenyan
government has banned membership in the Mungiki, the evidence in the record
does not compel a finding that Kamau, more likely than not, would suffer harm
“inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.” § 208.18(a)(1); see
Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006) (agreeing “with
other circuits that neither the failure to apprehend the persons threatening the
alien, nor the lack of financial resources to eradicate the threat or risk of torture
constitute sufficient state action for purposes of the Convention Against
Torture”).
      The petition for review of the BIA’s decision is DENIED.




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