Francis Gatimi v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3197
F RANCIS G ATIMI, et al.,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition to Review an Order of the
Board of Immigration Appeals.
Nos. A96-495-092, A96-495-093, A96-495-094
A RGUED A PRIL 7, 2009—D ECIDED A UGUST 20, 2009
Before P OSNER, R IPPLE, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The Board of Immigration
Appeals denied the asylum application of Francis Gatimi,
a Kenyan, and the applications of his wife and daughter,
which are derivative from his. The Board also denied
a motion to remand the matter to the immigration judge
for further consideration based on changed conditions
in Kenya since the original application for asylum, but
we have no jurisdiction to review that order: 8 U.S.C.
2 No. 08-3197
§ 1158(a)(3) bars judicial review of rulings by the Board
that there are no changed circumstances materially af-
fecting an application for asylum. See Khan v. Filip,
554 F.3d 681, 687 (7th Cir. 2009). And 8 U.S.C.
§ 1252(a)(2)(B)(ii), as interpreted in Kucana v. Mukasey,
533 F.3d 534, 536-37 (7th Cir. 2008), cert. granted, 129
S. Ct. 2075 (2009), bars judicial review of discretionary
decisions of the Board, thus including motions to recon-
sider, see 8 C.F.R. §§ 1003.2(a), (b)(1), which was the
nature of Gatimi’s motion to remand.
Gatimi is a member of the Kikuyu tribe, which
dominates Kenyan politics. In 1995 he joined a Kikuyu
group called the Mungiki (the Kikuyu word for “multi-
tude”). The group has obscure political aims and idio-
syncratic religious observances, which may be a cover
for extortion and other financially motivated criminal
acts. United Nations Human Rights Council, “Report of
the Special Rapporteur on extrajudicial, summary
or arbitrary executions, Philip Alston, Addendum,
M is s i o n t o K e n y a ” ¶ 8 ( A / H R C / 1 1 /2 /A d d .6 ,
May 26, 2009), www2.ohchr.org/english/bodies/hrcouncil/
docs/11session/A.HRC.11.2.Add.6.pdf (visited July 20,
2009—as were all the online sources cited in this opinion);
U.S. Dep’t of State, Bureau of Democracy, Human Rights,
and Labor, “2008 Human Rights Report: Kenya” (Feb. 25,
2009), www.state.gov/g/drl/rls/hrrpt/2008/af/119007.htm.
The group is much given to violence. In re D-I-M-, 24 I. &
N. Dec. 448, 448-49 (BIA 2008); United Nations Human
Rights Council, “Statement by Professor Philip Alston,
Special Rapporteur on extrajudicial, summary or arbitrary
No. 08-3197 3
executions,” (June 3, 2009), www.un.org/webcast/unhrc/
11th/statements/Alston_STMT.pdf; Hearing on the Imme-
diate and Underlying Causes and Consequences of Kenya’s
Flawed Election before the Senate Committee on Foreign
Relations, Subcommittee on African Affairs, 110th Cong.,
2d Sess. (Feb 7, 2008) (testimony of Chris Albin-Lackey
on behalf of Human Rights Watch), foreign.senate.gov/
testim ony/2008/A lb in L a c ke yT e stim ony080207a.pdf.
Defectors from the group are at particular risk of violence.
Immigration and Refugee Board of Canada, “Kenya: The
Mungiki Sect; Leadership, Membership and Recruitment,
Organizational Structure, Activities and State Protection
Available to Its Victims (2006-October 2007)” (Nov. 1,
2007), www.unhcr.org/refworld/docid/4784def81e.html;
Cyrus Kinyungu, “Murdered: Sect Members Who Said
No,” The Nation (Nairobi), June 19, 2004.
The group also compels women, including wives of
members and of defectors, to undergo clitoridectomy and
excision. The Kenyan government has outlawed the
group and these practices. But there is a serious question,
as the sources we have cited explain, whether it is able
or even willing to protect people targeted by the group,
such as defectors, or to prevent such practices, which are
common in Kenya as in much of sub-Saharan Africa. U.S.
Dep’t of State, Bureau of Democracy, Human Rights, and
Labor, “2008 Human Rights Report: Kenya” (Feb. 25,
2009), www.state.gov/g/drl/rls/hrrpt/2008/af/119007.htm;
U.S. Dep’t of State, Office of the Senior Coordinator for
International Women’s Issues, “Report on Female Genital
Mutilation” 7, 9, 38-39 (Feb. 1, 2001), www.state.gov/
documents/organization/9424.pdf.
4 No. 08-3197
Mr. Gatimi defected from the Mungiki in 1999, and
shortly afterward a group of Mungiki broke into his home,
looking for him, and when they could not find him
killed his servant. He called the police, but they refused
to help or protect him. A month later the Mungiki re-
turned to his home, looking for his wife, whom they
wanted to circumcise. They did not find her. She then
fled to the United States with her newborn child.
The Mungiki returned to Gatimi’s home, killed the
family pets, burned two vehicles, and threatened to
gouge out his eyes. Again he complained to the police,
and this time they assured him they would protect him.
On the strength of this assurance his wife came back to
Kenya—but within a week the Mungiki told Gatimi
that unless he produced his wife within two weeks for
circumcision he would be killed. She went into hiding
and in 2001 returned to the United States, followed
shortly by Gatimi.
He returned to Kenya a few months later, having heard
that conditions had improved. He was wrong. The
Mungiki kidnapped and tortured him, releasing him
only after he promised to produce his wife for circumci-
sion. He left Kenya and joined his wife in the United
States and applied for asylum.
The immigration judge ruled that the acts committed by
the Mungiki against Gatimi were not persecution but
merely “mistreatment.” That is absurd. With regard to
Mrs. Gatimi’s claim to face persecution in the form of
female genital mutilation, a recognized ground of asylum,
the immigration judge lapsed into incoherence. The fol-
No. 08-3197 5
lowing is his entire discussion of the claim: “As far as the
female respondent’s claim that she is afraid to [return to]
Kenya because of fear of female genital mutilation, while
that contention may be sincerely subjectively expressed,
I don’t find that as toward country conditions; that is,
it has an objective basis.” He also ruled that Gatimi had
not shown that the Kenyan police were helpless to
protect him from the Mungiki, and that in any
event defectors from the Mungiki do not constitute a
“particular social group.”
The Board did not reach the question whether Gatimi
had been persecuted, but affirmed the immigration
judge on the basis that defectors from the Mungiki are not
a particular social group and that as far as Mrs. Gatimi’s
fear of female circumcision was concerned Gatimi had
“failed to present sufficient testimonial or documentary
evidence to establish that a reasonable person would
fear persecution in Kenya on this basis.”
Persecution is a ground for asylum only if motivated
by “race, religion, nationality, membership in a partic-
ular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). The immigration statute does not
define “particular social group,” but the Board has
defined it as a group whose members share “common
characteristics that members of the group either cannot
change, or should not be required to change because
such characteristics are fundamental to their individual
identities.” In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA
1996); see also Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998);
In re Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), over-
6 No. 08-3197
ruled on other grounds by In re Magharrabi, 19 I. & N. Dec.
439 (BIA 1987). So far, so good; if the “members” have
no common characteristics they can’t constitute a
group, and if they can change those characteristics—that
is, cease to belong to the group—without significant
hardship, they should be required to do so rather than
be allowed to resettle in America if they do not meet
the ordinary criteria for immigration to this country.
Sepulveda v. Gonzales, 464 F.3d 770, 771-72 (7th Cir.
2006) (citations omitted), gives examples of qualifying
groups: “the educated, landowning class of cattle
farmers targeted by Colombian rebels, Christian women
in Iran who oppose the Islamic dress code for women,
parents of Burmese student dissidents, and children
who escaped after being enslaved from Ugandan
guerillas who had enslaved them.” Sepulveda holds that
former subordinates of the attorney general of Colombia
who had information about the insurgents plaguing that
nation were also a “particular social group.” They had
been targeted for assassination by the insurgents, and
many had been assassinated. While an employee could
resign from the attorney general’s office, he could not
resign from a group defined as former employees of the
office; once a former employee, always a former employee
(unless one is reemployed by one’s former employer).
See also Koudriachova v. Gonzales, 490 F.3d 255, 262-63 (2d
Cir. 2007) (former KGB agents); Cruz-Navarro v. INS, 232
F.3d 1024, 1029 (9th Cir. 2000) (former members of the
police or military); In re Fuentes, 19 I. & N. Dec. 658, 662
(BIA 1988) (former member of the national police).
No. 08-3197 7
We cannot see how this case can be distinguished from
Sepulveda, which the Board did not cite. Instead the
Board cited cases which hold that a group must have
“social visibility” to be a “particular social group,” mean-
ing that “members of a society perceive those with the
characteristic in question as members of a social group.”
The Board said there was no evidence that Gatimi “pos-
sesses any characteristics that would cause others in
Kenyan society to recognize him as a former member
of Mungiki . . . . There is no showing that membership in
a larger body of persons resistant to Mungiki is of con-
cern to anyone in Kenya or that such individuals are
seen as a segment of the population in any meaningful
respect.”
This formula cannot be squared with Sepulveda. More
important, it makes no sense; nor has the Board
attempted, in this or any other case, to explain the rea-
soning behind the criterion of social visibility. Women
who have not yet undergone female genital mutilation in
tribes that practice it do not look different from anyone
else. A homosexual in a homophobic society will pass
as heterosexual. If you are a member of a group that has
been targeted for assassination or torture or some other
mode of persecution, you will take pains to avoid being
socially visible; and to the extent that the members of the
target group are successful in remaining invisible, they
will not be “seen” by other people in the society “as a
segment of the population.” Those former employees of
the Colombian attorney general tried hard, one can be
sure, to become invisible and, so far as appears, were
unknown to Colombian society as a whole.
8 No. 08-3197
We are mindful of the Supreme Court’s admonition to
the courts of appeals, in Gonzales v. Thomas, 547 U.S. 183
(2006) (per curiam), that the Board’s definition of “particu-
lar social group” is entitled to deference. The issue in that
case was whether a family could be a particular social
group, a difficult issue on which the Board had not
opined; and the Court held that the Board should have
an opportunity to do so. But regarding “social visibility”
as a criterion for determining “particular social group,”
the Board has been inconsistent rather than silent. It
has found groups to be “particular social groups”
without reference to social visibility, In re Kasinga, supra,
21 I. & N. Dec. at 365-66 (young women of a tribe that
practices female genital mutilation but who have not
been subjected to it); In re Toboso-Alfonso, 20 I. & N. Dec.
819, 822-23 (BIA 1990) (homosexuals); In re Fuentes, supra,
19 I. & N. Dec. at 662 (former members of the national
police); cf. In re Acosta, supra, 19 I. & N. Dec. at 233-34
(former military leaders or land owners), as well as,
in this and other cases, refusing to classify socially
invisible groups as particular social groups but without
repudiating the other line of cases. When an administra-
tive agency’s decisions are inconsistent, a court cannot
pick one of the inconsistent lines and defer to that one,
unless only one is within the scope of the agency’s dis-
cretion to interpret the statutes it enforces or to make
policy as Congress’s delegate. AT & T Inc. v. FCC, 452
F.3d 830, 839 (D.C. Cir. 2006); Idaho Power Co. v. FERC, 312
F.3d 454, 461-62 (D.C. Cir. 2002). Such picking and choos-
ing would condone arbitrariness and usurp the agency’s
responsibilities.
No. 08-3197 9
It is true that our sister circuits have generally approved
“social visibility” as a criterion for determining whether
an asylum seeker was persecuted for belonging to a
particular social group. We have no quarrel with the
rejection in those cases of the attempted classification of
specific groups as particular social groups. See Ramos-Lopez
v. Holder, 563 F.3d 855, 859-61 (9th Cir. 2009) (young
Honduran men who resist being recruited into gangs);
Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009) (Brazil-
ians who inform on drug smugglers); Davila-Mejia v.
Mukasey, 531 F.3d 624, 628-29 (8th Cir. 2008) (competing
Guatemalan owners of family businesses); Ucelo-Gomez v.
Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007) (per curiam)
(affluent Guatemalans); Castillo-Arias v. United States
Attorney General, 446 F.3d 1190, 1194-95, 1197 (11th Cir.
2006) (informants on the Colombian drug cartel). We just
don’t see what work “social visibility” does; the candidate
groups flunked the basic “social group” test, quoted
earlier, declared in cases like Lwin, Kasinga, and Acosta
(where the test originated).
The Board’s position in this case, however, is of a
piece with another position that we have rejected: that a
person cannot complain of religious persecution if by
concealing his religious practice he escapes the persecu-
tors’ notice. Oyekunle v. Gonzales, 498 F.3d 715, 717 (7th Cir.
2007); Iao v. Gonzales, 400 F.3d 530, 532 (7th Cir. 2005);
Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir. 2004). The
only way, on the Board’s view, that the Mungiki defectors
can qualify as members of a particular social group is by
pinning a target to their backs with the legend “I am a
Mungiki defector.” The government’s brief states flatly
10 No. 08-3197
that secrecy disqualifies a group from being deemed a
particular social group.
The Board has a legitimate interest in resisting efforts
to classify people who are targets of persecution as mem-
bers of a particular social group when they have little
or nothing in common beyond being targets. One ex-
ample is a group defined as the set of people who cooper-
ate with the police and by doing so expose themselves
to persecution by the criminals whom they have
informed on, as in the Scatambuli and Castillo-Arias cases
cited earlier. Another example is debtors of the same
creditor, as in Cruz Funez v. Gonzales, 406 F.3d 1187, 1191-92
(10th Cir. 2005). But like the lawyers in the Sepulveda case,
the defectors from the Mungiki constitute a group with as
much coherence as children of the bourgeoisie, or of the
aristocracy, had in the Soviet Union: breakaway factions
that were relentlessly persecuted.
A further question, however, is whether the Kenyan
government is either complicit in the Mungiki’s persecu-
tion of defectors from the group or helpless to
protect them from the Mungiki. If neither is the case,
Mr. Gatimi is not entitled to asylum. But if the govern-
ment either is complicit in the persecution by the
private group or simply can’t protect a former member
of the group from being persecuted—in other words—if
the government is “unable or unwilling to protect him
against the private parties,” Garcia v. Gonzales, 500 F.3d
615, 618 (7th Cir. 2007)—then the claim to asylum can
go forward. Youkhana v. Gonzales, 460 F.3d 927, 932 (7th
Cir. 2006); Hor v. Gonzales, 421 F.3d 497, 502 (7th Cir.
No. 08-3197 11
2005); Korablina v. INS, 158 F.3d 1038, 1044-45 (9th Cir.
1998).
The evidence of the Kenyan government’s complicity in
the actions of the Mungiki is compelling, yet was
ignored by the Board. See Juma Kwayera, “Gang Infiltrates
Kenya Police,” Mail & Guardian Online, Feb. 5, 2008
(“growing fears” that the Kenyan police force has been
“infiltrated by the outlawed pro-government Mungiki
sect”); David McGuffin, “Kenya Spirals into Tribal Anar-
chy,” CBC News, Jan. 31, 2008; “Ethnic Violence
Intensifies in Ravaged Kenya,” TV3, Jan. 31, 2008
(“Mungiki is the unofficial arm of the government”); Thilo
Thielke, “Some Kill with Machetes, Others with Arrows,”
Spiegel Online, Jan. 28, 2008 (the Mungiki are “acting in
collusion with the government”); Immigration and
Refugee Board of Canada, supra. The Board’s ruling that
defectors from the Mungiki do not constitute a partic-
ular social group made this evidence irrelevant.
We turn to Mrs. Gatimi’s claim. The Board’s lawyer,
going beyond anything in either the immigration judge’s
opinion or the Board’s opinion, argues that because
Mrs. Gatimi’s claim of asylum is derivative from her
husband’s, and because she did not file a claim for
asylum within the one-year statutory deadline, 8 U.S.C.
§ 1158(a)(2)(B), the only basis on which she can obtain
asylum is persecution of her husband. But there are two
senses in which one person’s claim of asylum can be
derivative from another’s. The first, and much the more
common, is that the person is a spouse or child of the
primary asylum seeker. 8 U.S.C. § 1158(b)(3)(A); Miljkovic
12 No. 08-3197
v. Ashcroft, 366 F.3d 580, 581-82 (7th Cir. 2004). There is
no need to show that the spouse or child faces persecution.
The second form of derivative claim, which is also
present in this case, is that if the spouse (or other deriva-
tive claimant) is sent back with the primary asylum
seeker (Mr. Gatimi, in this case) to their country of origin,
she will be subjected to harms that constitute persecu-
tion of him. (This is to be distinguished from cases in
which the persecution of your relative is evidence that
the persecutor is gunning for you as well. See Nyonzele v.
INS, 83 F.3d 975, 983 (8th Cir. 1996); Arriaga-Barrientos v.
INS, 937 F.2d 411, 414 (9th Cir. 1991).) If your house is
burned down, or your child killed, in order to harm you,
the fact that you are not touched does not mean that those
acts cannot constitute persecution of you. Abay v.
Ashcroft, 368 F.3d 634, 640-42 (6th Cir. 2004); In re A-K-, 24 I.
& N. Dec. 275, 278 (BIA 2007); Tchoukhrova v. Gonzales 430
F.3d 1222, 1225 n. 2 (9th Cir. 2005) (dissent from denial of
rehearing en banc); but see Mame Fatou Niang v. Gonzales,
492 F.3d 505, 512 (4th Cir. 2007). Genital mutilation of one’s
wife, unless one happens to be a supporter of the practice,
is a way to punish one, and so the menace to Mrs. Gatimi
is a legitimate component of Mr. Gatimi’s case. To send her
back to Kenya to face female genital mutilation would be
to enable persecution of him.
Furthermore, a derivative claimant can advance
reasons independent of those of the primary claimant
for why she should not be deported. (There is one definite,
and one arguable, exception. See Yu v. U.S. Attorney Gen-
eral, 568 F.3d 1328, 1332-33 (11th Cir. 2009) (threat of
No. 08-3197 13
forced sterilization of derivative claimant spouse cannot
support primary claimant’s application); Lin-Zheng v.
Attorney General, 557 F.3d 147, 155-57 (3d Cir. 2009) (en
banc) (same); Shi Liang Lin v. U.S. Dept. of Justice, 494
F.3d 296, 304-14 (2d Cir. 2007) (en banc) (same);
Tchoukhrova v. Gonzales, supra, 430 F.3d at 1223 (persecu-
tion of derivative claimant child cannot support primary
claimant’s application); contra, Abay v. Ashcroft, supra,
368 F.3d at 640-42. Neither exception is applicable to this
case.) The Board said there was no evidence that Mrs.
Gatimi will be subjected to female genital mutilation if
she is returned to Kenya. In fact the only evidence in
the record is to the contrary; it is that the Mungiki will
track her down and subject her to the procedure and the
Kenyan police will not interfere. Besides the affidavits
to this effect in the record, see VM v. Secretary of State for
the Home Department (FG M -risks-M un giki-Kiku-
yu/Gikuyu) Kenya CG [2008] UKAIT 00049, ¶¶ 150,
242 (United Kingdom Asylum and Immigration Tribunal
2008); Paul Harris, “Mau Mau Returns to Kenya,” Sydney
Morning Herald, Jan. 17, 2000.
Although she did not file a primary claim of asylum
(that is, a claim for asylum based on persecution of her)
within the one-year deadline for filing such claims, there
is no basis in statute, regulation, or case law for imposing
that deadline on a derivative claimant merely because
she seeks to bolster her claim by evidence that she too
is faced with a threat of persecution. When Mrs. Gatimi
first arrived in the United States, her husband was still
in Kenya without, so far as appears, intending to seek
asylum in the United States, and so she had no reason to
seek asylum; she expected to return to Kenya, and did. The
14 No. 08-3197
grounds that she would have had for seeking asylum
within one year of her arrival in the United States
became relevant to her situation only much later, when
her husband sought asylum.
The order to remove the petitioners from the United
States is vacated and the matter is remanded to the
Board of Immigration Appeals for further proceedings
consistent with this opinion.
V ACATED AND R EMANDED.
8-20-09