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R.K.N. v. Eric H. Holder

December 3, 2012

R.K.N. PETITIONER
v.
ERIC H. HOLDER, JR. RESPONDENT



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

The opinion of the court was delivered by: Benton, Circuit Judge.

Submitted: September 19, 2012

Before MELLOY and BENTON, Circuit Judges, and BAKER, District Judge.*fn1

R.K.N. petitions for review of the Board of Immigration Appeals' (BIA) decision denying him asylum, withholding of removal, and protection under the Convention Against Torture. Having jurisdiction under 8 U.S.C. § 1252(a), this court denies the petition.

I.

R.K.N., a native citizen of Kenya, originally came to the United States in 1998*fn2 on an F-1 student visa. Following a trip home to Kenya, he was denied entry in October 2001, because his visa had expired. He sought asylum based on a fear of returning to Kenya due to his HIV-positive status and his membership in the "Mungiki" group (which opposes the Kenyan government, fights corruption, and advocates a return to traditional values). R.K.N. admitted his visa was expired, but declared his intent to file for asylum, withholding of removal, and CAT protection.

In 2005, an Immigration Judge denied R.K.N.'s applications based on an adverse credibility finding. R.K.N. appealed to the BIA, which dismissed his appeal in 2006. A different member of the BIA, sua sponte, reopened and vacated the dismissal, remanding the case to a new IJ for re-hearing. At a preliminary hearing, the IJ informed R.K.N. that he had until 15 days before the final hearing to submit supporting documentation. At the final hearing, another IJ excluded some of R.K.N.'s medical records. The IJ denied R.K.N.'s applications in 2009, based on an adverse credibility finding.

R.K.N. appealed to the BIA, which dismissed his appeal. He petitions for review of that decision, arguing that the BIA failed to address his HIV-status claim and his claim that the IJ improperly excluded the medical records. R.K.N. also contends that the BIA's recognition that the IJ applied the incorrect credibility standard should have triggered remand.*fn3

II.

This court reviews the BIA's decision as the final agency action, but to the extent the BIA adopts the findings of the IJ, this court reviews those findings as part of the final agency action. Matul-Hernandez v. Holder, 685 F.3d 707, 710-11 (8th Cir. 2012). This court reviews decisions on asylum, withholding of removal, and CAT protection under the substantial evidence standard. Guled v. Mukasey, 515 F.3d 872, 879 (8th Cir. 2008). The IJ's findings, including credibility determinations, are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Ali v. Holder, 686 F.3d 534, 538 (8th Cir. 2012), quoting 8 U.S.C. § 1252(b)(4)(B). This court reviews legal determinations de novo, but with great deference to the BIA's interpretation of immigration statutes and regulations. Matul-Hernandez, 685 F.3d at 711.

A.

R.K.N. argues that the BIA failed to address his HIV-status claim. An adverse credibility finding on one claim does not necessarily defeat other claims. See Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir. 2007) (finding that the IJ's credibility findings rebutted only one of the petitioner's two claims). R.K.N. contends that the BIA discounted his credibility only on the Mungiki claim, but not on the HIV-status claim. By not addressing this claim on appeal, R.K.N. argues, the BIA did not satisfy its obligation that the "grounds upon which the administrative agency acted be clearly disclosed and adequately sustained." Omondi v. Holder, 674 F.3d 793, 800 (8th Cir. 2012), quoting SEC v. Chenery Corp., 318 U.S. 80, 94 (1943).

In this case, however, the BIA specifically incorporated the findings of the IJ: "[T]he Immigration Judge's adverse credibility determination, as predicated on material inconsistencies between the respondent's testimonies and his written application, is amply supported by the record for the reasons stated in the decision

(I.J. at 6-7)." The IJ's opinion specifically discusses R.K.N.'s credibility about his trip to Kenya, when he claims to have been ...


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