Ngure v. Ashcroft

367 F.3d 975 (8th Cir. 2004)


P, a native and citizen of Kenya, entered the United States as a nonimmigrant student to attend Principia College. P's  J-1 visa permitted him to stay in the United States until June 15, 1996. On January 25, 2000, D issued a Notice to Appear charging that P was removable for failing to maintain his nonimmigrant status. D admitted that he was removable. On May 17, 2000, P applied for asylum. P is a member of the Kikuyu tribe, which is the largest tribe in Kenya. While P was a student at the University of Nairobi in 1987, he participated in a week-long pro-democracy demonstration protesting the detention of various political prisoners and the marginalization of tribes such as the Kikuyu. Due to violence, the university closed. At that time, P claims that his friend Charles Kirigua was arrested and tortured for his involvement in the demonstration, In 1990, P participated in a pro-democracy demonstration that became riotous. P was arrested. He was hit with batons and truncheons. He was detained at a police station for one week, during which time he was interrogated, 'roughed up,' and subjected to cold and crowded conditions. Police focused on whether P was affiliated with any dissident Kenyan groups. P said he was not a member of the groups, but he sympathized with their causes. The following week Ngure was questioned in more 'tranquil' settings at the Directorate of Intelligence. Weeks later, P's brother-in-law bailed him out of jail, and the government dropped the charges against him. P participated in other demonstrations over the years. After P left Kenya for the United States in 1995, an arrest warrant was issued on February 5, 1996, commanding the arrest of P and ordering him to be brought before the court to answer the charge that he 'participated in illegal demonstrations at Uhuru Park's Freedom Corner and defaulting on his own recognizance to appear.' In November 2000, an IJ conducted an evidentiary hearing and found that P was ineligible for asylum because he did not file his application within one year of arriving in the United States and did not demonstrate any 'changed' or 'extraordinary circumstances' that caused his failure to apply within that time period. It found that P did not suffer past persecution or have a well-founded fear of future persecution on account of his membership in the Kikuyu tribe, political opinions, or religious beliefs. Asylum was denied. The BIA affirmed the IJ's decision without opinion. Attorney General Reno instituted the BIA's affirmance without opinion (AWO) procedure in 1999. P appealed.