## Facts

- Joseph Ngure, a Kenyan citizen and Kikuyu, entered the United States in 1995 on a J-1 student visa and overstayed.
- The government initiated removal proceedings for failure to maintain nonimmigrant status; Ngure conceded removability.
- Ngure applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) in 2000.
- Ngure alleged past harm tied to pro-democracy demonstrations in Kenya: an arrest in 1987 followed by quick release, and a 1990 arrest during a riotous protest that resulted in being hit with batons, a one-week detention, rough treatment during interrogation, and cold, crowded conditions.
- The immigration judge (IJ) found the asylum application untimely under the one-year filing rule and denied withholding and CAT relief for failure to show past persecution or a sufficient likelihood of future harm.
- The Board of Immigration Appeals (BIA) summarily affirmed without opinion under its affirmance-without-opinion (AWO) procedure.

## Issues

1. Whether a court may review the BIA’s decision to use the AWO procedure, or whether that choice is committed to agency discretion by law.
2. Whether the court of appeals has jurisdiction to review the IJ’s determination that the asylum application was untimely under the one-year filing bar.
3. Whether substantial evidence supported the IJ’s denial of withholding of removal and CAT protection.

## Decision

- The court held that the BIA’s decision to employ the AWO procedure is committed to agency discretion by law and is not subject to judicial review.
- The court held it lacked jurisdiction to review the IJ’s asylum timeliness determination due to the statutory jurisdictional bar.
- The court denied the petition for review as to withholding of removal and CAT relief, concluding substantial evidence supported the IJ’s findings that Ngure failed to meet the applicable standards.

## Legal Principles

- The BIA’s discretionary case-management decision to affirm without opinion is generally unreviewable because it concerns internal allocation of decisional resources and lacks judicially manageable standards.
- When the BIA affirms without opinion, the IJ’s decision functions as the final agency determination for purposes of judicial review, subject to any statutory limits on jurisdiction.
- Courts lack jurisdiction to review asylum one-year-bar determinations (including application of exceptions) where Congress has expressly precluded such review.
- Withholding of removal requires proof that persecution is more likely than not on account of a protected ground; brief detentions and limited physical mistreatment may be found insufficient to compel a finding of “persecution” on substantial-evidence review.
- CAT protection requires proof that torture is more likely than not with government involvement or acquiescence; past mistreatment and generalized fear, without record evidence compelling future torture, will not satisfy the standard.

## Conclusion

The Eighth Circuit treated the IJ’s ruling as the operative decision, declined to review the BIA’s use of AWO and the asylum untimeliness determination, and upheld the denial of withholding of removal and CAT relief because the record did not compel a finding of likely future persecution or torture.


Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004)