Wanjiru v. Holder

• Citation: 705 F.3d 258
• Decision Date: 11 January 2013
• Docket Number: No. 11–3396.,11–3396.
• Parties: Kevin K. WANJIRU, Petitioner, 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)

705 F.3d 258

Kevin K. WANJIRU, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 11–3396.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 12, 2012.

Decided Jan. 11, 2013.

James Burnham, Dennis Murashko (argued), Brian J. Murray, Attorneys, Jones Day, Chicago, IL, for Petitioner.

Kevin K. Wanjiru, Etowah County Detention Facility, Gadsden, AL, pro se.

Aimee J. Carmichael (argued), OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, WOOD, and HAMILTON, Circuit Judges.

WOOD, Circuit Judge.

Kevin Wanjiru is seeking to avoid removal to Kenya, his native country, because he believes that, if this occurs, he will be tortured and then murdered by a group called the Mungiki. An Immigration Judge (IJ) concluded that Wanjiru had failed to prove that these dire consequences were more likely than not. Wanjiru also did not persuade the IJ that the Kenyan government would acquiesce in the Mungiki's violent acts. The IJ therefore denied Wanjiru's application for deferral of removal pursuant to the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), to which the United States is a party. After the Board of Immigration Appeals upheld the IJ's determination, Wanjiru filed this petition for review. We conclude that we have jurisdiction to adjudicate this petition, and that it must be granted.

I

The Mungiki are a violent, outlawed sect in Kenya; they are notorious for extortion, torture, and murder by dismemberment. The U.N. High Commissioner for Refugees (UNHCR) describes them as “a secretive, quasireligious, part gang, part mafia-like group that engages in criminal activity and violent intimidation.” See “Kenya: Activities of the Mungiki sect and response by government authorities (2008–October 2009),” available at http:// www. unhcr. org/ refworld/ topic, 463 af 2212, 469 f 2 e 382, 4 b 20 f 048 c, 0,,,. html (last visited Jan. 8, 2013). The UNHCR report notes that the Mungiki “tax” public transportation and access to public services; that they are infamous for beheading their victims; that they may be closely allied with senior politicians in the government; and that in October 2008 a police officer who provided information against them was killed. See also Christopher Goffard, Court Sheds Light on Scary Gang,L.A. Times,available at http:// articles. latimes. com/ 2011/ nov/ 27/ world/ la– fg– kenya– mungiki– 20111127 (Mungiki “may be the biggest and most dangerous gang in the world”); Adam Mynott, Rule of Law Reels in Kenya,BBC News, March 6, 2009, available at http:// news. bbc. co. uk/ 2/ hi/ africa/ 7928519. stm (Mungiki murdered over 1,500 people in post-election violence in 2007). Although the Kenyan government has tried to bring the group under control, recent reports indicate that it has not yet managed to do so. See, e.g., Bernard Momanyi, Resurgent Mungiki targeted in fresh crackdown, Capital FM News (May 23, 2012), available at http:// www. capitalfm. co. ke/ news/ 2012/ 05/ resurgent- mungiki- targeted- in- fresh- crackdown/.

At the age of 14, when he was still living in Kenya, Wanjiru accepted his teacher's invitation to join the Mungiki. He had no idea at the time of the group's violent character. After he became a member, he was afraid to leave, knowing that the Mungiki punish defectors by executing them. When Wanjiru was about 20 years old, however, he saw a way out. He came to the United States, traveling legally on a student visa, and was admitted at Detroit, Michigan, on March 24, 2005. He briefly attended Shawnee State University in Ohio, transferred after one semester (without permission from the government) to a community college in Austin, Texas, and finally settled in Lexington, Kentucky, in 2008.

II

Wanjiru came to the attention of the immigration authorities after he was charged in 2009 with the sexual assault of a young woman he met in a Lexington nightclub. Apparently Wanjiru was drunk and there was a sexual encounter, the details of which were disputed. In the end, Wanjiru accepted a plea agreement under which he pleaded guilty to the misdemeanor of having “sexual intercourse ... with another person without the latter's consent.” Ky.Rev.Stat. Ann. § 510.140 (West). He received a suspended sentence of one year, conditioned upon his surrender to the immigration authorities.

Immigration and Customs Enforcement (ICE), which is part of the U.S. Department of Homeland Security, initiated removal proceedings against Wanjiru. He conceded removability as charged, but he petitioned for both withholding of removal under 8 U.S.C. § 1231(b)(3) and deferral of removal under the CAT. The IJ first found that the statute under which Wanjiru was convicted required lack of consent, and thus it described a “particularly serious crime” within the meaning of 8 U.S.C. § 1231(b)(3)(B)(ii). Because withholding of removal is not available to aliens convicted of such a crime, the hearing turned to the question whether Wanjiru was eligible for deferral of removal. See 8 C.F.R. § 1208.16(c)(4) (stating that protection under the CAT may take the form either of withholding of removal or deferral of removal); see also 8 C.F.R. § 1208.17(a).

Wanjiru testified at some length about his role in the Mungiki and why he still fears being returned to Kenya. His duties as a Mungiki member began upon his enrollment in college in Nairobi; at that time, he was responsible for taking up collections for the Mungiki from local businesses. Wanjiru said that he never threatened anyone, but that the businesses always paid. He denied personally engaging in violence, but he admitted that he knew that the Mungiki murdered other members who tried to leave the group. As we noted earlier, he explained that he remained a member during that period because he was afraid to cut his ties with them. He has not told his family, apart from his grandfather and his cousin, about his joining the Mungiki, because the gang enforces a strict code of secrecy.

With respect to a possible return to Kenya, Wanjiru swore that even after this lapse of time, the Mungiki would recognize him and either kill him immediately as a defector or force him to choose between rejoining the group and death. He also fears that the Kenyan police would recognize him as a Mungiki and mistakenly think that he was still involved with the outlawed group. In the latter event, he believes that the police would either shoot him on sight (as he asserts they have done with other Mungiki) or force him to cooperate and identify Mungiki members (which he said would lead quickly to his death). Exactly this happened to Wanjiru's cousin Thomas, who was also a Mungiki member. Thomas was arrested by the Kenyan police and released only after revealing the identities of other Mungiki. He fled to Dubai for two years, at which point he thought that it was safe for him to return to Kenya. He was wrong. Shortly after his return, he disappeared. Eventually his family found the remains of his mutilated body—the work of the Mungiki, Wanjiru believes.

On cross-examination, when asked to name fellow Mungiki members, Wanjiru first insisted that he could not “specify their names.” When pressed further, he volunteered the names of his murdered cousin Thomas and his best friend John Jaro, but when asked to name more, he repeated that he “couldn't really recall their names, not all of them.” On redirect, when asked why he could not remember more names, Wanjiru explained “Like I knew their names, but I didn't want to specify.” He also commented that most members went only by one name or a nickname, and that he did not know their full names. He was certain, however, that many of them would recognize his face.

The IJ denied both forms of relief, concluding that Wanjiru had “failed generally to establish eligibility” under the CAT. The judge did not make an explicit credibility determination, but he did note several inconsistencies in Wanjiru's testimony. Wanjiru testified, for instance, that the Kenyan police had a “shoot to kill” order for suspected Mungiki, but his cousin Thomas had been arrested first, not shot on sight. Moreover, Wanjiru asserted that the Kenyan government turned a blind eye to the Mungiki, but the IJ found this to be inconsistent with Wanjiru's professed fear of the police and the “shoot to kill” order.

Wanjiru appealed the IJ's decision to the Board, which concluded that the IJ had erred by failing to make specific findings of fact on such critical points as Wanjiru's credibility, whether he was likely to be tortured, and whether the Kenyan government would acquiesce in torture. The Board remanded the case to the IJ for this additional work.

On remand the parties agreed to dispense with a second hearing and have the IJ decide on the basis of the record that already existed. Once again, the IJ denied relief, this time in a thorough and detailed opinion. Although he expressed a few reservations about Wanjiru's credibility, noting that Wanjiru did not know the group's political goals and could not name more than two members, on the whole he found Wanjiru's testimony credible because it was “spontaneous, plausible, and detailed.” Even so, the IJ found that Wanjiru had not proven that it was more likely than not that he would be targeted by either the Mungiki or the Kenyan police. Furthermore, the judge found, even if the Mungiki did target Wanjiru, he had not shown that the Kenyan government would acquiesce in his murder.

Wanjiru again appealed to the Board, which affirmed the IJ's new decision. The Board ruled that Wanjiru failed to demonstrate that the Mungiki would recognize him, in light of his six-year absence from Kenya and what it saw as his failure to recall members' names. Even if they did recognize him, the Board found, the Kenyan government has been actively fighting the Mungiki. It thus did not...