Rose Wanjiku Mwaniki v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSE WANJIKU MWANIKI,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 18-70172
Agency No. A208-933-180
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 10, 2019
Pasadena, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District
Judge.
Rose Mwaniki (Mwaniki), a native and citizen of Kenya, petitions for
review of a decision of the Board of Immigration Appeals (the Board) dismissing
her claims for asylum, cancellation of removal, withholding of removal, and relief
under the Convention Against Torture (CAT); and denying her remand motion.
FILED
OCT 08 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.

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We have jurisdiction under 8 U.S.C. § 1252(a)(1), and review the Board’s factual
findings for substantial evidence. See Lai v. Holder, 773 F.3d 966, 970 (9th 2014),
as amended. To reverse the Board, “we must determine that the evidence not only
supports a contrary conclusion, but compels it.” Ling Huang v. Holder, 744 F.3d
1149, 1152 (9th Cir. 2014) (citation, alteration, and internal quotation marks
omitted) (emphases in the original).
1. Mwaniki failed to address in her opening brief the denial of her asylum
claim, thereby waiving this argument. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3
(9th Cir. 2011).
2. We lack jurisdiction to review the Board’s denial of cancellation of
removal because Mwaniki raised no cognizable legal or constitutional questions
concerning the Board’s action. See Fernandez v. Gonzales, 439 F.3d 592, 596 (9th
Cir. 2006). The Board utilized the correct legal standard, and evaluated Mwaniki’s
asserted rehabilitation. See Coronado v. Holder, 759 F.3d 977, 987 (9th Cir.
2014), as amended (noting that discussion of failure of rehabilitation was
sufficient).
3. Substantial evidence supported the Board’s denial of withholding of
removal. A petitioner may demonstrate eligibility for withholding of removal by:
(1) establishing past persecution, or (2) demonstrating that it is more likely than
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not that future persecution will occur. See Viridiana v. Holder, 646 F.3d 1230,
1239 (9th Cir. 2011). Mwaniki failed to address whether she suffered past
persecution in her opening brief, thereby waiving this argument. See Rizk, 629
F.3d at 1091 n.3.
Substantial evidence supported the Board’s conclusion that Mwaniki lacked
an objective, well-founded fear of future persecution. A petitioner may establish
an objectively reasonable fear of future persecution if: (1) it is more likely than not
that her life or freedom would be threatened upon return to that country, or (2) a
pattern or practice of persecution exists against a similarly-situated, protected
group. See Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009).
Substantial evidence supported the determination that Mwaniki is unlikely to
be subjected to future persecution because: she was not subject to past persecution
and has never been personally threatened by the Mungiki; she has not been to
Kenya in over 20 years; and some members of her family have successfully moved
to other parts of Kenya to avoid violence. See Tamang v. Holder, 598 F.3d 1083,
1094 (9th Cir. 2010). In particular, Mwaniki’s ability to relocate to Meru,
Kenya—where her mother hid from the Mungiki for over a year—undermined her
withholding of removal claim. See id. at 1091.
4. Substantial evidence supported the Board’s denial of CAT relief.
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There was no evidence of past torture against Mwaniki, and she could relocate to
avoid any potential future torture. See Wakkary, 558 F.3d at 1068 (denying CAT
relief where showing of torture was inadequate).
5. The Board sufficiently addressed the remand motion by noting that
Mwaniki’s post-hearing evidence did not establish changed country conditions.
See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).
DISMISSED in part and DENIED in part.
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