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Wanjiru v. Holder

United States Court of Appeals for the Seventh Circuit

September 12, 2012, Argued; January 11, 2013, Decided

No. 11-3396

Opinion

 [*260]  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  [**2] this petition for review. We conclude that we have jurisdiction to adjudicate this petition, and that it must be granted.

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,463af2212,469f2e382, 4b20f048c,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  [**3] 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  [**4] settled in Lexington, Kentucky, in 2008.

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705 F.3d 258 *; 2013 U.S. App. LEXIS 871 **; 2013 WL 135712

KEVIN K. WANJIRU, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.

Subsequent History: Judgment entered by, Remanded by Wanjiru v. Holder, 2013 U.S. App. LEXIS 951 (7th Cir., Jan. 11, 2013)

Prior History:  [**1] Petition for Review of an Order of the Board of Immigration Appeals. No. A087 676 971.

CORE TERMS

removal, torture, deferral, aliens, withholding, Immigration, murder, judicial review, credible, http, moral turpitude, acquiesce, cousin, sexual, offenses, violent, kill

Immigration Law, Asylum, Refugees & Related Relief, Convention Against Torture, Deportation & Removal, Relief From Deportation & Removal, General Overview, Restriction on Removal, Judicial Review, Judicial Proceedings, Jurisdiction, Judicial Review, Scope of Review, Standards of Review, Substantial Evidence