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Bwika v. Holder

United States Court of Appeals, Tenth Circuit

June 12, 2013

ERIC H. HOLDER, JR., United States Attorney General, Respondent.

Petition for Review

Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and TYMKOVICH, Circuit Judge.


William J. Holloway, Jr. Senior Circuit Judge

Ahmed Khamis Bwika, his wife, Emma, and their adult son, Ahmed Bilal Bwika, are natives and citizens of Kenya. They petition for review of a decision of the Board of Immigration Appeals (BIA) that affirmed the decision of the immigration judge (IJ) denying their applications for asylum, restriction on removal, and protection under the United Nations Convention Against Torture (CAT). We deny the petition for review.

I. Background

Ahmed Bilal Bwika was first admitted to the United States as a student in 1997, and was ultimately authorized to stay until November 30, 2006. His parents were admitted as tourists on February 22, 2006, and were authorized to stay until August 21, 2006. They all overstayed their visas. On February 20, 2007, the elder Mr. Bwika filed an affirmative application for asylum, restriction on removal, and protection under the CAT, listing his wife and son as derivative beneficiaries on his asylum claim.[1] The Department of Homeland Security initiated removal proceedings against all three family members. They conceded removability, and Mr. Bwika's wife and son ultimately filed their own applications for relief.

The Bwikas have been married for well over thirty years. The elder Mr. Bwika is a member of the Digo clan, one of the nine subgroups of the Mijikenda tribe, who identify the small Coast Province region of eastern Kenya as their ancestral home. Mr. Bwika grew up in the Coast Province. He said that the Digo are Muslim, but generally retain traditional practices such as witchcraft, plural marriage, and intermarriage within families. Admin. R. at 164, 177. Mr. Bwika is Muslim (his father was an imam), but he does not practice witchcraft or plural marriage, and his wife, Emma, is a Christian from the Luo tribe, who are from western Kenya. Most Kenyans outside of the Coast Province are Christian. Id. at 601.

For approximately twenty years, the Bwikas lived in Nairobi, the capital of Kenya, some distance from the Coast Province. Mr. Bwika worked as an aircraft engineer for the Kenyan Air Force and then for Kenya Airways, and Mrs. Bwika worked at a bank. Upon Mr. Bwika's retirement from his airline job in 1997, the Bwikas moved to Tiwi, a small town in the Kwale District of the Coast Province, in order to pursue Mr. Bwika's dream of owning an organic farm. He is related to many people there because of the Digo tribe's practice of marrying within the family. Id. at 177. But the Bwikas assert that they "stepped into a political situation that they were not fully aware of initially[:] the Digo's attempt to secede the Coast Province from the government of Kenya." Pet. Opening Br. at 32.

Mr. Bwika testified that between 1997 and 2003, a number of men approached him at various times about supporting their desire to attain federalism for the Coast Province through armed conflict. They lobbied him to become a militia trainer based on his past military experience, and asked him to become involved in politics. The chairman of the Kenyan African National Union political party explained to him "that our people don't have jobs. The up country [people] have come here and taken everything that is ours and we cannot get anything, so we have to [force] them out and take over everything." Admin. R. at 178-79. Mr. Bwika testified that he "underst[oo]d how [his] people [we]re being marginalized in their own land, " id. at 181, but he repeatedly refused all of these requests, telling all of these men that political diplomacy, not war, was the solution for the Coast Province. He said that that is when his problems began because he had become to them like the up-country people. His wife is a non-Digo and a Christian, and the militia training involved secret witchcraft rituals, which he learned about but did not practice, so he was "not part of them, " id. at 200. He said that they considered him "expendable, an outsider." Id. at 202.

Mr. Bwika testified that attacks against him and his wife began in January 2001. In particular, one of several men who broke into their home one night to ransack it threatened to kill him with a machete. (His wife was hiding in the attic.) Mr. Bwika said that he believed that he would have been killed if the police had not arrived. He pressed charges against two of his cousins who were outside his house that night. One of them later went on trial, and Mr. Bwika saw that his neighbors and extended family were supporting the accused man instead of him. Id. at 196-97, 338. (The parties have not pointed to evidence showing whether or not the man was convicted.) Mr. Bwika also testified about other incidents of alleged persecution that occurred after the trial and that were connected to the January 2001 break-in, including attempts to pressure his wife to leave the Coast Province.

Mr. Bwika said that in 2003, he and his wife "had to run away secretly, " id. at 208, to the nearby major city of Mombasa, where they stayed for the next three and a half years while employees managed their farm. They "got an apartment where there was 24 hour security." Id. at 211. Mr. Bwika said that he encountered other Digo tribe members in Mombasa, and he believed that they sought to learn where he was living in order to kill him, but he and his wife were not harmed. They visited their farm for short periods, observing over time that the crops and the well had been poisoned, the livestock had died, and the farm buildings were slowly being destroyed. Their employees eventually said that they had to leave. The Bwikas finally decided that their persecutors would not give up looking for them, and they should leave Kenya. They believe that the Digo witchdoctors have power throughout Kenya.

II. The Agency Decisions

The IJ denied the Bwikas relief in a forty-six page decision. The IJ expressly found that they were "not credible" because their testimony contained "internal inconsistencies" and because other evidence, including their expert's testimony, "contradict[ed] the perception and conclusion [they] presented" that they faced persecution from the Digo anywhere in Kenya on account of the elder Mr. Bwika's political opinion. Id. at 93. The IJ held that the Bwikas' troubles began with the January 2001 robbery, and that there was no "credible, relevant evidence which corroborate[s] that [t]his robbery was in anyway due to [Mr. Bwika's] political opinion, " id. at 97, although the Bwikas might have believed otherwise, see id. at 99.

The IJ found that Mrs. Bwika may have suffered past persecution by her husband's family on account of religious and ethnic differences, but the incidents against her husband did not rise to the level of persecution, and there was no evidence at all that their son was persecuted. Id. at 103-04. The IJ further found that Mrs. Bwika was not persecuted by the government of Kenya or a group the government was unwilling or unable to control because the evidence as a whole supported the view that the Digo are marginalized in Kenya, not powerful throughout Kenya. Id. at 94-95. The IJ concluded that the family could safely relocate within ...

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