7th Circuit rules immigrant did not offer evidence to support CAT claim

A Kenyan citizen, who is trying to avoid deportation after committing a “particularly serious crime,” has had his claim for relief under the Convention Against Torture denied by the 7th Circuit Court of Appeals because he failed to provide the necessary supporting evidence.

Lawrence Kithongo came to the U.S. from Kenya on a P1 nonimmigrant performer visa and has overstayed his period of authorization since May 2017. He has been convicted of misdemeanors for battery, theft and marijuana possession.

Most recently, Kithongo was convicted of conspiring with others to rob three victims, two of whom were children. According to court documents, the robbery was violent. One child victim was struck in the head with a firearm while the other’s head and neck were pinned against the seat of a car.

Kithongo was convicted in Indiana state court of felony conspiracy to commit robbery and sentenced to one year in prison on Sept. 3, 2019.

After he completed his sentence, the Department of Homeland Security served him with a notice to appear, charging him with removability under 8 U.S.C. §§ 1227(a)(1)(B), (a)(2)(A)(iii) for having an aggravated felony conviction.

Kithongo asserted he is eligible for relief under the Convention Against Torture, 8 C.F.R. §§ 1208.16, 1208.17, 1208.18. The immigration judge denied all of Kithongo’s applications and ordered him removed to Kenya.

Following the Board of Immigration Appeals’ affirmation of the judge’s decision, Kithongo petitioned the 7th Circuit for a review of the board’s decision. In part, Kithongo argued the immigration judge overlooked relevant evidence and failed to consider cumulative evidence.

However, the 7th Circuit denied his petition for review under the CAT in LLawrence Karisa Kithongo v. Merrick B. Garland, Attorney General of the United States, 21-2662. The appellate panel ruled it did not need to reach the merits of the application because Kithongo failed to raise these arguments before the board.

As the 7th Circuit noted, the immigration judge found that, among other things, Kithongo failed to provide sufficient corroborating evidence to carry his burden of proof.

In particular the judge held Kithongo could have presented written statements or telephonic testimony from his parents and sister who still live in Kenya. He also could have provided evidence such as the death certificate of his friend he alleges was murdered by a police officer, medical records from his hospitalization.

Instead, Kithongo provided only the written statement and testimony of his wife who was not personally familiar with the events from his childhood.

“Before the Board, Kithongo failed to contest the decision that he did not produce reasonably available corroborating evidence to support his application. Although he argued that the immigration judge overlooked a report and article describing country conditions in Kenya, he never challenged the immigration judge’s findings as to corroboration,” Judge Michael Brennan wrote for the 7th Circuit. “… Not raising these issues before the Board constitutes a failure to exhaust.”

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