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noting a lack of authority concluding that emotional distress is a type of harm that constitutes past persecution
Summary of this case from Morales Lopez v. GarlandOpinion
No. 06-61178, Summary Calendar.
October 23, 2007.
Michael W. Eheman, Houston, TX, for Petitioner.
Thomas Ward Hussey, Director, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Caryl G. Thompson, U.S. Immigration Naturalization Service, District Directors Office, New Orleans, LA, Sharon A. Hudson, U.S. Citizenship Immigration Services, Houston, TX, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals, BIA No. A 97 959 818.
Before KING, DAVIS, and CLEMENT, Circuit Judges.
William MW Angi Karanja, a native and citizen of Kenya, petitions this court for review of the decision of the Board of Immigration Appeals (BIA) denying his application for asylum. This court will uphold the finding that an alien is not eligible for asylum if that finding is supported by substantial evidence. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
"To qualify for asylum, an alien must be a `refugee.'" Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (citing 8 C.F.R. § 1208.13(a)). A refugee is a person unable to return to his or her country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. (citing 8 U.S.C. § 1101(a)(42)(A)), cert. denied, ___ U.S. ___, 128 S.Ct. 353, 169 L.Ed.2d 10 (2007). "Past persecution entails harm inflicted on the alien on account of a statutorily enumerated ground by the government or forces that a government is unable or unwilling to control." Id. (citing 8 C.F.R. § 1208.13(b)(1)). The harm or suffering "need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life." Id. at 114 (internal quotations and citations omitted).
Karanja acknowledges that the IJ denied him relief based on the finding that he was not credible as well as on the finding that he had not established past persecution or a well founded fear of future persecution. He argues, however, that the BIA "refused to endorse the IJ's negative credibility finding." We do not address the credibility issue because even accepting Karanja's allegations as true, he has not meet his burden of proof. See Ozdemir v. INS, 46 F.3d 6, 8 (5th Cir. 1994).
The record does not support Karanja's assertion that he suffered significant harm to his home or "way of life." Moreover, there is no authority which supports Karanja's argument that the emotional distress he suffered based on the alleged rapes of his wife and daughter is a type of harm that constitutes past persecution. Karanja cites Campos-Guardado v. INS, 809 F.2d 285, 289 (5th Cir. 1987), in support of his assertion. However, in Campos-Guardado, this court merely recognized that harm to a family member might support a finding of a reasonable fear of future persecution, not a finding of past persecution. Id. at 289. Further, Karanja failed to present any facts which showed that he suffered past persecution by a group that the government was unwilling or unable to control, as required by the IN A. See Tesfamichael, 469 F.3d at 113. Accordingly, his petition is DENIED. See Chun, 40 F.3d at 78.