Gathungu v. Holder

Citation725 F.3d 900
Decision Date06 August 2013
Docket NumberNo. 12–2489.,12–2489.
PartiesFrancis Muiruri GATHUNGU; Jane Mumbi Mugo; Nyambura Muiruri; Wambui Muiruri, Petitioners v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

OPINION TEXT STARTS HERE

Frederick Matthew Ralph, argued, Minneapolis, MN, for petitioners.

Jeffrey Bernstein, argued, USDOJ, OIL of Washington, DC, for respondent.

Before SMITH, MELLOY, and BENTON, Circuit Judges.

MELLOY, Circuit Judge.

Petitioners Francis Gathungu, Jane Mugo, and their two minor daughters petition for review of the Board of Immigration Appeals' (“BIA”) order denying asylum and withholding of removal. We grant the petition and remand for further proceedings consistent with this opinion.

I. Background

We recount the procedural history of this case and briefly summarize the relevant evidence. Unless otherwise indicated, the facts below are drawn from Petitioner Gathungu's testimony before the Immigration Judge (“IJ”).

Petitioners are Kenyan citizens. In the 1990s, Gathungu, who is a member of the Kikuyu tribe, operated a variety of small businesses in Kenya. Sometime during or around 1997, attackers allegedly affiliated with the Kenyan government destroyed his businesses. Gathungu then formed a self-help group called Kamucii to help Kikuyus develop new businesses. Shortly thereafter, a man approached Gathungu and told Gathungu he belonged to a group that could help fund Kamucii. Gathungu did not know the name of the group to which the man belonged. Gathungu eventually agreed to join the group because he thought the group could help him start businesses. Gathungu may also have been sympathetic to what he initially perceived as the group's political opposition to the government in power at the time.

As part of his initiation into the group, the group sent Gathungu to a training camp for several days to be instructed in the group's secret codes and use of traditional weapons. The group required him to swear an oath to never leave the group. Because the group placed great emphasis on secrecy, he did not tell his wife about joining the group. Sometime after Gathungu was initiated, he learned the group was the Mungiki. The Mungiki subsequently ordered Gathungu to recruit new members.

Around the beginning of 1998, Gathungu began to doubt the wisdom of his Mungiki membership. He had discovered the Mungiki were involved in criminal activities and had also changed their political stance toward the government. He began traveling more often to make it difficult for his Mungiki superiors to find him and began giving them names of fake recruits. One of his Mungiki friends was murdered, presumably by the Mungiki, after expressing a desire to leave the Mungiki. Gathungu witnessed a group of Mungiki members attacking people with machetes near a bus station. He saw news reports of violent attacks by Mungiki members and incidents where Mungiki members had publicly stripped women because they believed the women were dressed too provocatively. The Mungiki also strongly advocated female genital mutilation (“FGM”), which both Gathungu and Mugo oppose. Neither Mugo nor the couple's daughters have undergone FGM.

After Gathungu had been avoiding the Mungiki and supplying false recruit names for some time, the Mungiki began ordering him to visit Nairobi and calling frequently to check up on him. He worried the Mungiki doubted his loyalty to the group. One day, the Mungiki summoned him to a small house in the mountains. There, men questioned Gathungu and accused him of wanting to leave the Mungiki. Gathungu denied wanting to leave. The men gave him hallucinogenic drugs, beat him, and hung him upside down over a fire, causing him to lose consciousness several times. Gathungu continued to deny any desire to leave the Mungiki, and the men eventually released him. Gathungu showed the IJ scars encircling his legs, which were the results of the tight ropes the Mungiki used to hang him over the fire. The Mungiki warned him not to report the torture to the police and not to seek medical treatment.

Gathungu lived in fear of further torture by the Mungiki. In late 1998 and 1999 he began making plans to leave Kenya; however, he did not have enough money to bring his family with him if he left. In 2001, a friend of Mugo's invited Mugo to visit her in the United States. Gathungu insisted he and the couple's two daughters accompany Mugo on the visit. Once the family arrived in the United States, Gathungu told Mugo they could not return to Kenya. Mugo did not know of his involvement with the Mungiki until after they arrived in the United States.

Gathungu filed a claim for asylum in late 2001; at that time, Mugo and the couple's daughters filed derivative claims based on his persecution and on their own fears of forced FGM by the Mungiki if they returned to Kenya. In addition to his fear of the Mungiki, Gathungu feared the Kenyan government might persecute him on the basis of his past Mungiki membership.1 The Kenyan government banned the Mungiki in 2002.

A. First Hearing Before the IJ

Gathungu and Mugo both testified before the IJ. Mugo testified that, when they lived in Kenya, Gathungu often took business trips, varying from one day to longer than a week. She recalled Gathungu once returned home from a trip with wounds on his legs, and he told her he had been injured in an accident. She could not remember the date of that particular trip. She testified that she did not know of her husband's involvement with the Mungiki until after they arrived in the United States. She also testified that both she and Gathungu oppose FGM and that neither she nor their daughters had undergone FGM. She testified that she feared the Mungiki based on the torture of Gathungu and the Mungiki's support of FGM.

The IJ questioned Gathungu regarding the dates and length of his torture by the Mungiki, noting Gathungu had claimed to be held for a month on a red-lined asylum application but testified to being held only a few days. Gathungu explained “the one month referred to when the Mungiki were following him.” Gathungu also testified that no Mungiki member had inquired of Gathungu whether his wife and daughters had undergone FGM. Gathungu testified that he and his wife were against FGM and that neither his wife nor their two daughters had undergone FGM.

Additionally, petitioners offered the expert testimony of Dr. Marsha Freeman. Dr. Freeman was the director of the International Women's Rights Action Watch, had worked on and studied women's rights in legal systems in sub-Saharan Africa, and had worked on reviews of the Kenyan police. Dr. Freeman testified that in her opinion Gathungu would be in danger of persecution or death if he returned to Kenya. She testified that Mugo and their daughters would be in danger of being kidnapped and forcibly subjected to FGM by the Mungiki. She testified that although many Mungiki activities were violent, it was a large organization, and she believed it was reasonable that some members joined simply to express their political beliefs and were not involved in violent activities. Although Dr. Freeman studied legal systems in sub-Saharan Africa and the Kenyan police force specifically, she testified she had not known anything about the Mungiki before being asked to testify. She testified that the Kenyan police force was widely corrupt. Finally, petitioners submitted a large documentary record of reports and news stories detailing the targeting of Mungiki defectors and the government's inability or unwillingness to stop violence perpetrated by Mungiki members.

On April 25, 2007, the IJ denied Gathungu's claims and his family's derivative claims (“the IJ's first decision”) based both on adverse credibility findings and on the merits. The IJ found Gathungu not credible because of the inconsistencies between his red-lined asylum application and his testimony regarding the dates and the length of his torture by the Mungiki. She also found it unlikely Gathungu could be a member of the Mungiki and yet have a wife and daughters not subjected to FGM. She also doubted the Mungiki would have continued to accept Gathungu's false reports of new recruits' names after his torture. She noted Gathungu had presented no corroborating evidence of his Mungiki membership. The IJ found Mugo generally credible, but noted that most of Mugo's probative testimony—Mugo's testimony regarding the torture of her husband and the threat of the Mungiki—was based on what Gathungu had told Mugo, not on Mugo's first-hand knowledge. Although the IJ found Dr. Freeman generally credible, she ruled Dr. Freeman did not qualify as an expert because Dr. Freeman had no specialized knowledge of the Mungiki.

Although the IJ held Gathungu's claims failed as a result of the adverse credibility finding, the IJ also denied all claims on the merits. She held that Gathungu had failed to show he was a member of a “particular social group” subject to persecution, failed to show the Mungiki persecuted him “because of” a political opinion, and failed to show a well-founded fear of future persecution. She described Gathungu as “a member of a banned criminal organization, and the Kenyan government may prosecute those who violate its legitimate criminal laws.” 2

Petitioners appealed to the BIA, and on December 3, 2008, the BIA denied their appeal (“the BIA's first opinion”). The BIA expressly declined to evaluate the IJ's credibility findings. Instead, the BIA concluded Gathungu was “unable to demonstrate the requisite social visibility such that others would be able to identify members as part of a group comprised of Mungiki defectors.” Further, the BIA continued, it was “not convinced by the [petitioners]' assertion that any mistreatment is on account of [Gathungu]'s political opinion or dissent from the Mungiki.” The BIA agreed with the IJ that petitioners “were unable to establish that the Kenyan government is...

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    ...... Many of our sister courts agree that an applicant alleging past persecution must establish either that the government was responsible for the persecution or that it was unable or unwilling to control the persecutors. 4 See, e.g.,         [771 F.3d 199] Gathungu v. Holder, 725 F.3d 900, 906 (8th Cir.2013); Henriquez–Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir.2013) (en banc); Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.2008); Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006).         Mulyani does not dispute the need to establish ......
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