Gatimi v. Holder

• Citation: 578 F.3d 611
• Decision Date: 20 August 2009
• Docket Number: No. 08-3197.,08-3197.
• Parties: Francis GATIMI, et al., Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

578 F.3d 611

Francis GATIMI, et al., Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 08-3197.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 2009.

Decided August 20, 2009.

Matthew L. Hoppock (argued), McCrummen Immigration Law Group, North Kansas City, MO, for Petitioners.

Jocelyn Wright (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

The Board of Immigration Appeals denied the asylum application of Francis Gatimi, a Kenyan, and the applications of his wife and daughter, which are derivative from his. The Board also denied a motion to remand the matter to the immigration judge for further consideration based on changed conditions in Kenya since the original application for asylum, but we have no jurisdiction to review that order: 8 U.S.C. § 1158(a)(3) bars judicial review of rulings by the Board that there are no changed circumstances materially affecting an application for asylum. See Khan v. Filip, 554 F.3d 681, 687 (7th Cir.2009). And 8 U.S.C. § 1252(a)(2)(B)(ii), as interpreted in Kucana v. Mukasey, 533 F.3d 534, 536-37 (7th Cir.2008), cert. granted, ___ U.S. ___, 129 S.Ct. 2075, 173 L.Ed.2d 1132 (2009), bars judicial review of discretionary decisions of the Board, thus including motions to reconsider, see 8 C.F.R. §§ 1003.2(a), (b)(1), which was the nature of Gatimi's motion to remand.

Gatimi is a member of the Kikuyu tribe, which dominates Kenyan politics. In 1995 he joined a Kikuyu group called the Mungiki (the Kikuyu word for "multitude"). The group has obscure political aims and idiosyncratic religious observances, which may be a cover for extortion and other financially motivated criminal acts. United Nations Human Rights Council, "Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum, Mission to Kenya" ¶ 8 (A/HRC/11/2/Add.6, May 26, 2009), www2.ohchr.org/english/bodie s/hrcouncil/ docs/11session/A.HRC.11.2.Add.6.pdf (visited July 20, 2009-as were all the online sources cited in this opinion); U.S. Dep't of State, Bureau of Democracy, Human Rights, and Labor, "2008 Human Rights Report: Kenya" (Feb. 25, 2009), www.state.gov/g/drl/rls/hrrpt/2008/af/ 119007.htm.

The group is much given to violence. In re D-I-M-, 24 I. & N. Dec. 448, 448-49 (BIA 2008); United Nations Human Rights Council, "Statement by Professor Philip Alston, Special Rapporteur on extrajudicial, summary or arbitrary executions," (June 3, 2009), www.un.org/webcast/ unhrc/11th/statements/Alston_STMT.pdf; Hearing on the Immediate and Underlying Causes and Consequences of Kenya's Flawed Election before the Senate Committee on Foreign Relations, Subcommittee on African Affairs, 110th Cong., 2d Sess. (Feb. 7, 2008) (testimony of Chris Albin-Lackey on behalf of Human Rights Watch), foreign. senate.gov/testimony/2008/ AlbinLackeyTestimony080207a.pdf. Defectors from the group are at particular risk of violence. Immigration and Refugee Board of Canada, "Kenya: The Mungiki Sect; Leadership, Membership and Recruitment, Organizational Structure, Activities and State Protection Available to Its Victims (2006-October 2007)" (Nov. 1, 2007), www.unhcr. org/refworld/docid/4784def81e.html; Cyrus Kinyungu, "Murdered: Sect Members Who Said No," The Nation (Nairobi), June 19, 2004.

The group also compels women, including wives of members and of defectors, to undergo clitoridectomy and excision. The Kenyan government has outlawed the group and these practices. But there is a serious question, as the sources we have cited explain, whether it is able or even willing to protect people targeted by the group, such as defectors, or to prevent such practices, which are common in Kenya as in much of sub-Saharan Africa. U.S. Dep't of State, Bureau of Democracy, Human Rights, and Labor, "2008 Human Rights Report: Kenya" (Feb. 25, 2009), www.state.gov/g/drl/rls/hrrpt/2008/af/ 119007.htm; U.S. Dep't of State, Office of the Senior Coordinator for International Women's Issues, "Report on Female Genital Mutilation" 7, 9, 38-39 (Feb. 1, 2001), www.state.gov/documents/organization/ 9424.pdf.

Mr. Gatimi defected from the Mungiki in 1999, and shortly afterward a group of Mungiki broke into his home, looking for him, and when they could not find him killed his servant. He called the police, but they refused to help or protect him. A month later the Mungiki returned to his home, looking for his wife, whom they wanted to circumcise. They did not find her. She then fled to the United States with her newborn child.

The Mungiki returned to Gatimi's home, killed the family pets, burned two vehicles, and threatened to gouge out his eyes. Again he complained to the police, and this time they assured him they would protect him. On the strength of this assurance his wife came back to Kenya—but within a week the Mungiki told Gatimi that unless he produced his wife within two weeks for circumcision he would be killed. She went into hiding and in 2001 returned to the United States, followed shortly by Gatimi.

He returned to Kenya a few months later, having heard that conditions had improved. He was wrong. The Mungiki kidnapped and tortured him, releasing him only after he promised to produce his wife for circumcision. He left Kenya and joined his wife in the United States and applied for asylum.

The immigration judge ruled that the acts committed by the Mungiki against Gatimi were not persecution but merely "mistreatment." That is absurd. With regard to Mrs. Gatimi's claim to face persecution in the form of female genital mutilation, a recognized ground of asylum, the immigration judge lapsed into incoherence. The following is his entire discussion of the claim: "As far as the female respondent's claim that she is afraid to [return to] Kenya because of fear of female genital mutilation, while that contention may be sincerely subjectively expressed, I don't find that as toward country conditions; that is, it has an objective basis." He also ruled that Gatimi had not shown that the Kenyan police were helpless to protect him from the Mungiki, and that in any event defectors from the Mungiki do not constitute a "particular social group."

The Board did not reach the question whether Gatimi had been persecuted, but affirmed the immigration judge on the basis that defectors from the Mungiki are not a particular social group and that as far as Mrs. Gatimi's fear of female circumcision was concerned Gatimi had "failed to present sufficient testimonial or documentary evidence to establish that a reasonable person would fear persecution in Kenya on this basis."

Persecution is a ground for asylum only if motivated by "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). The immigration statute does not define "particular social group," but the Board has defined it as a group whose members share "common characteristics that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities." In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996); see also Lwin v. INS, 144 F.3d 505, 512 (7th Cir.1998); In re Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). So far, so good; if the "members" have no common characteristics they can't constitute a group, and if they can change those characteristics—that is, cease to belong to the group—without significant hardship, they should be required to do so rather than be allowed to resettle in America if they do not meet the ordinary criteria for immigration to this country.

Sepulveda v. Gonzales, 464 F.3d 770, 771-72 (7th Cir.2006) (citations omitted), gives examples of qualifying groups: "the educated, landowning class of cattle farmers targeted by Colombian rebels, Christian women in Iran who oppose the Islamic dress code for women, parents of Burmese student dissidents, and children who escaped after being enslaved from Ugandan guerillas who had enslaved them." Sepulveda holds that former subordinates of the attorney general of Colombia who had information about the insurgents plaguing that nation were also a "particular social group." They had been targeted for assassination by the insurgents, and many had been assassinated. While an employee could resign from the attorney general's office, he could not resign from a group defined as former employees of the office; once a former employee, always a former employee (unless one is reemployed by one's former employer). See also Koudriachova v. Gonzales, 490 F.3d 255, 262-63 (2d Cir.2007) (former KGB agents); Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir.2000) (former members of the police or military); In re Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988) (former member of the national police).

We cannot see how this case can be distinguished from Sepulveda, which the Board did not cite. Instead the Board cited cases which hold that a group must have "social visibility" to be a "particular social group," meaning that "members of a society perceive those with the characteristic in question as members of a social group." The Board said there was no evidence that Gatimi "possesses any characteristics that would cause others in Kenyan society to recognize him as a former member of Mungiki.... There is no showing that membership in a larger body of persons resistant to Mungiki is of concern to anyone in Kenya or that such individuals are seen as a segment of the population in any meaningful respect."

This formula cannot be squared with Sepulveda. More important, it makes no sense; nor has the Board attempted, in this or any other case, to explain the reasoning behind the criterion of social visibility. Women who have not yet...