Kevin Wanjiru v. Eric Holder, Jr., 705 F.3d 258

Wanjiru seeks deferral of removal to Kenya under CAT, alleging risk of torture and murder by the Mungiki with Kenyan government acquiescence.
An IJ denied relief, initially finding Wanjiru’s crime qualified as a particularly serious crime but denying CAT relief; the Board remanded for more findings.
On remand, the IJ again denied relief after crediting Wanjiru’s credibility but finding insufficient likelihood of torture or Kenyan government acquiescence.
The Board affirmed the IJ’s decision, ruling Wanjiru failed to show Mungiki recognition and government acquiescence; it dismissed concerns about police cooperation and state support.
Wanjiru petitioned for review; the government initially challenged jurisdiction under § 1252(a)(2)(C) but later conceded jurisdiction, and counsel was appointed for Wanjiru.
The Seventh Circuit addresses both jurisdiction and merits, ultimately granting the petition and remanding for further proceedings consistent with its opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §1252(a)(2)(C) bars review of a CAT deferral denial	Wanjiru argues §1252(a)(2)(C) does not apply to deferral of removal.	Government contends the bar applies to final orders of removal, potentially including deferrals in some views.	§1252(a)(2)(C) does not bar review of deferral of removal.
Whether the deferral decision is reviewable on the merits and supported by substantial evidence	Wanjiru contends the record shows a real risk of torture and government acquiescence with recognition by Mungiki, which the Board ignored.	Board found lack of clear likelihood of torture or government acquiescence and questioned recognition.	Deferral decision is reviewable on the merits; substantial evidence supports relief given the likelihood of torture with acquiescence.

Issaq v. Holder, 617 F.3d 962 (7th Cir. 2010) (distinguishes withholding vs. CAT relief and review framework)
Calma v. Holder, 663 F.3d 868 (7th Cir. 2011) (deferral/continuance analogies for review of removal decisions)
Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008) (deferral review not barred when relief is on the merits)
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (U.S. 1992) (modification standards for final judgments; openness to modification)
Ali v. Achim, 468 F.3d 462 (7th Cir. 2006) (continuance/deferral context; custody implications)
Kucana v. Holder, 130 S. Ct. 827 (2010) (statutory canons favor preserving judicial review)
Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009) (defector Mungiki case recognizing risk of torture and state failure to protect)
Amalemba v. Holder, 444 F. App’x 94 (7th Cir. 2011) (credibility concerns in Mungiki-related CAT claims)