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Njoroge v. Holder

United States Court of Appeals, Eighth Circuit

June 3, 2014

Janet Njanja Njoroge, Petitioner
v.
Eric H. Holder, Jr., Attorney General of the United States, Respondent

Submitted February 13, 2014.

Petition for Review of an Order of the Board of Immigration Appeals.

For Janet Njanja Njoroge, Petitioner: Japheth Nthautha Matemu, Matemu Law Office, Raleigh, NC.

Janet Njanja Njoroge, Petitioner, Pro se, Cary, NC.

For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Scott Baniecke, Bloomington, MN; Kevin J. Conway, Karen Yolanda Drummond, Richard M. Evans, Assistant Director, Meadow W. Platt, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC.

Before SMITH, BEAM, and BENTON, Circuit Judges.

OPINION

Page 810

SMITH, Circuit Judge.

Janet Njanja Njoroge, a citizen of Kenya, petitions for review of an April 2012 order of the Board of Immigration Appeals (BIA), upholding an immigration judge's (IJ's) May 2010 decision. The IJ denied Njoroge's motion for a continuance and denied her requests for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We deny the petition.

I. Background

In 2002, Njoroge applied for asylum, withholding of removal, and CAT relief, asserting that she feared that she would be subjected against her will to female genital mutilation (FGM). In 2003, the IJ denied asylum and related relief, relying in part on country-condition evidence of a recent partial ban on FGM practices in Kenya. The BIA dismissed Njoroge's appeal of the IJ's decision, and Njoroge petitioned this court for review. While that petition was pending, the Department of Homeland Security (DHS) moved for a remand, asserting that the BIA had not taken into account the effectiveness of the FGM ban in Kenya. In 2005, this court granted DHS's unopposed motion and remanded the case. Thereafter, in 2008, the BIA remanded the case to the IJ, stating that the parties should be allowed to present updated evidence on FGM practices in Kenya, and that the IJ should then determine how effective the FGM ban had been and whether Njoroge " currently" had a well-founded fear of being subjected to FGM if returned to Kenya.

At a February 2009 hearing in Minnesota, Njoroge appeared pro se and informed the IJ that she had moved to North Carolina. The IJ advised the parties that the " final hearing" would be held in Minnesota on May 5, 2010. On April 18, 2010, attorney Japheth Matemu filed a notice of appearance and a motion for a continuance, asserting that Njoroge had recently retained him and that he needed more time to prepare for the upcoming May 5 hearing. On April 30, 2010, the IJ denied the motion without comment. Njoroge then attended the May 5 hearing without Matemu. Njoroge explained to the IJ that Matemu had informed her by telephone the day before that he could not attend the hearing, but he gave her no reason. Njoroge further explained that she had first approached Matemu in April 2010 about representing her and that other attorneys she had consulted were too expensive or were unwilling to represent her. The IJ ruled that the hearing would go forward, and asked Njoroge if she objected to the admission of various exhibits. Njoroge indicated that she did not know how to answer the question because she did not have counsel with her. The IJ asked Njoroge if she had any updated evidence regarding FGM practices in Kenya, and Njoroge indicated that she believed her attorney was working on the preparation of such evidence. The IJ admitted into evidence two 2008 United Kingdom Reports on FGM, which DHS had submitted, and the 2009 Country Report on Human Rights Practices in Kenya. DHS noted its discomfort with proceeding without the presence of Njoroge's counsel of record and suggested that the IJ attempt to contact Matemu by telephone. The IJ declined, stating that she had afforded Njoroge 14 months to find an attorney and prepare her case and characterizing

Page 811

Matemu's failure to appear as a delay tactic. Njoroge testified that she feared that both she and her daughter--a citizen of the United States and, at that time, approximately age 9--would be subjected to FGM in Kenya. The IJ denied asylum and related relief. As to Njoroge's asserted fear that her daughter would be subjected to FGM, the IJ stated that Njoroge lacked standing to make such an assertion. Njoroge then appealed to the BIA. In April 2012, the BIA dismissed her appeal, reasoning that the IJ had not erred in denying Njoroge's motion for a continuance, the ...


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