Kinyanjui et al., v. Holder, No. 08-3304 (8th Cir. September 22, 2009)
HANSEN, Benton, Bye
The petitioners were a couple and their child. The father, James, had been involved in the Democratic Party of Kenya, and in July, 2003, participated in a political rally, was subsequently arrested for1month with no food for two days.
In September of 2000, James’ brother passed away. After he was buried, 10 masked men arrived at the family home and asked for money; the family declined to give money. The men proceeded to exhume the body and insist on money in exchange for its return. Again the family declined; the men left the body and the family buried it again.
In July of 2001, masked men invaded James’ family home. He tried to intervene and the men began assaulting him, stating they were sent by their boss, a politician, to kill him and his family due to his political beliefs. Eventually, James’ wife, Florence, also attempted to intervene and was raped by each of the men. She testified also that the men were there to punish her husband for his political involvement. Neither James nor his wife could identify the men, who were dressed as civilians, and a subsequent police report made no mention of political motivation in the home invasion of the family.
Also in the record were two State Department reports, documenting relative stability and increased respect for human rights in Kenya.
The IJ denied asylum, first because there was no past persecution – finding that the incidents to which petitioners were subjected were criminal acts and not persecution. Alternatively, the IJ did not believe the petitioners established a well-founded fear of future persecution, because the political party of which James was a member was in power at the time of the family’s hearing, and because the family could relocate to another part of Kenya, in any event to escape harm. The BIA adopted and affirmed the IJ’s decision.
The 8th circuit affirmed the agency’s finding, holding that even if the court accepted petitioners’ contention that they had suffered past persecution, the IJ correctly found that the resulting rebuttable presumption of future persecution was overcome by the facts in the record, namely, the State Department reports (in addition to testimony). The court rejected petitioners’ argument that the IJ’s reliance on the State Department reports to take administrative notice of a fundamental change in circumstances in Kenya violated their due process rights. The Court noted that the reports were part of the record and petitioners’ had been given “ample opportunity to rebut that evidence….”