Francis Gathungu v. Eric H. Holder, Jr.
725 F.3d 900
| 8th Cir. | 2013Background
- Petitioners Francis Gathungu (former Mungiki member), his wife Jane Mugo, and their two daughters are Kenyan nationals who sought asylum and withholding of removal in the U.S., alleging past torture and a well‑founded fear of future harm from the Mungiki and ineffective Kenyan protection.
- Gathungu testified he joined the Mungiki in the late 1990s, later tried to leave, was tortured (hung over a fire, beaten), and thereafter feared reprisal; Mugo and the daughters feared forcible female genital mutilation (FGM) by the Mungiki.
- The IJ denied relief on adverse credibility and merits grounds; the BIA affirmed on the merits (holding Mungiki defectors were not a "particular social group" and that the Kenyan government could control the Mungiki), and declined to address the IJ's credibility findings.
- After ICE detained Gathungu in 2009, petitioners produced new evidence from Gathungu's sister (Terry Wanjiku) claiming she was kidnapped and subjected to FGM by persons identifying as Mungiki; petitioners moved to remand to allow her in‑person testimony.
- The BIA found the sister's testimony was new but refused to remand, concluding it would not change the outcome; the court of appeals granted the petition, holding (1) Mungiki defectors qualify as a "particular social group," (2) the record compels that the Kenyan government is unwilling or unable to control the Mungiki, and (3) the BIA abused its discretion by denying remand to allow in‑person testimony from Wanjiku.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "Mungiki defectors" constitute a "particular social group" | Gathungu: defectors share an immutable past experience and are perceived/targeted as a group | BIA: defectors lack sufficient social visibility and group boundaries | Court: Yes — defectors are socially visible and share immutable characteristics; qualify as a particular social group |
| Whether the Kenyan government is unwilling or unable to control the Mungiki | Petitioners: documentary record and reports show government complicity, corruption, and inability to stop Mungiki violence | Government/IJ/BIA: Kenyan police have policies against Mungiki and have taken action to reduce violence | Court: Record compels conclusion government is unwilling/unable to control the Mungiki |
| Whether denial should be upheld absent BIA review of IJ credibility findings | Petitioners: BIA did not address IJ adverse credibility findings, which remain crucial | Government: BIA affirmed on merits independent of credibility findings | Court: Because BIA denied relief on legal merits, the IJ's unreviewed credibility findings remain outcome‑determinative on remand |
| Whether BIA abused discretion by refusing to remand for in‑person testimony of Wanjiku | Petitioners: in‑person testimony would corroborate Gathungu, support fear of forced FGM for wife/daughters, and likely change result | BIA: evidence was new but would not change outcome | Court: BIA abused its discretion; Wanjiku's live testimony could materially affect credibility and outcome, so remand required |
Key Cases Cited
- Marroquin-Ochoma v. Holder, 574 F.3d 574 (8th Cir.) (asylum eligibility standard)
- Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir.) (standard for particular social group and deference to BIA)
- Gaitan v. Holder, 671 F.3d 678 (8th Cir.) (social visibility discussion for particular social group)
- Gatimi v. Holder, 578 F.3d 611 (7th Cir.) (evidence of government complicity with Mungiki)
- Wanjiru v. Holder, 705 F.3d 258 (7th Cir.) (Kenyan police two‑faced; government acquiescence to Mungiki violence)
- Koudriachova v. Gonzales, 490 F.3d 255 (2d Cir.) (shared past experience as immutable characteristic)
- Berte v. Ashcroft, 396 F.3d 993 (8th Cir.) (standard for BIA remand for new evidence)
- Sarhan v. Holder, 658 F.3d 649 (7th Cir.) (government promises to reform do not necessarily show effective protection)