Handson Nyambariga v. Alberto Gonzales, No. 06-2938 (8th Cir. 2007)
Annotate this CaseCourt Description: Petition for Review - immigration. Substantial evidence in record as a whole supports agency decision to deny asylum, withholding of removal and protection under Convention Against Torture. Fundamental change in circumstances occurred when former leader was voted out of office in Kenya, such that appellant no longer has well founded fear of persecution.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-2938 ___________ Handson Asuma Nyambariga, Petitioner, v. Peter Keisler, Acting Attorney General of the United States,1 Respondent. * * * Petition for Review of an Order * of the Board of Immigration * Appeals. * * [UNPUBLISHED] * * * ___________ Submitted: September 28, 2007 Filed: October 4, 2007 ___________ Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges. ___________ PER CURIUM. Handson Asuma Nyambariga (Nyambariga), a native and citizen of Kenya, filed a petition for review of the Board of Immigration Appeals (BIA) order affirming the Immigration Judge s (IJ) denial of Nyambariga s application for asylum, withholding of removal, and protection under the Convention Against Torture. We deny Nyambariga s petition for review. 1 Peter Keisler has been appointed to serve as Acting Attorney General, and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c). We review for substantial evidence, a standard of review under which BIA factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). An IJ s decision denying asylum will be upheld unless the evidence . . . presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). An applicant who is found to have suffered past persecution is presumed to have a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). Both the IJ and the BIA found Nyambariga failed to prove he suffered past persecution. Even if we assume Nyambariga suffered past persecution, the presumption he has a wellfounded fear of future persecution is rebuttable, if there is a finding by the preponderance of the evidence that [t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant s country of nationality. Id. at § 208.13(b)(1)(i)(A). The record supports the BIA s and the IJ s decisions that a fundamental change in circumstances occurred when former Kenya President Moi was voted out of office in December 2002. Finding substantial evidence in the record as a whole supporting the agency s judgment, and no error of law, we deny Nyambariga s petition for review. See 8th Cir. R. 47B. Petitioner s motion to hold proceedings in abeyance is denied. ______________________________ -2-
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