Kaburu

MEMORANDUM ***

Sophia Kaimuri Kaburu (“Kaburu”), a Kenyan native and citizen, petitions for review of the Board of Immigration Appeal’s (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of deportation, and relief under the Convention Against Torture.

Where the BIA summarily affirms an IJ’s decision, this court reviews the IJ’s decision as the final agency action. Acosta v. Gonzales, 439 F.3d 550, 552 (9th Cir.2006). An IJ’s determination of legal issues is reviewed de novo. Kankamalage v. INS, 335 F.3d 858, 861-62 (9th Cir.2003). An IJ’s factual determinations are reviewed for substantial evidence and should be reversed only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252 (b)(4). The IJ did not make an adverse credibility determination, so this court accepts Kaburu’s testimony as credible. See Prasad v. INS, 101 F.3d 614, 616 (9th Cir.1996).

The IJ’s determination that Kaburu did not suffer past persecution is not supported by substantial evidence. To begin, Kaburu’s asylum claim is grounded in a political opinion imputed to her. See Sangha v. INS, 103 F.3d 1482, 1488-89 (9th…

dissenting:

Although the majority selectively summarizes the facts, under the applicable standard, we are permitted to override the Immigration Judge’s factual findings only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252 (b)(4). Here, there is little evidence of a government actor, and no substantial evidence that the government could not or did not control those threatening Kaburu.

A reasonable factfinder could fairly and easily have found the claimed threats and acts were related to Kaburu’s performance of her government job, and not because of her political beliefs or on account of another protected ground. See Chanco v. INS, 82 F.3d 298, 302-303 (9th Cir.1996) (holding that persecution based on being a current member of the military, national police force, or U.S. Embassy guard does not qualify as persecution on a protected ground). The police responded to Kaburu’s reports of threats, and she declined to report the incidents to the courts. The mere fact that the police ultimately made no arrest does not compel a finding that the government abdicated its role. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir.2005)…