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Gathungu v. Holder

United States Court of Appeals, Eighth Circuit

August 6, 2013

Francis Muiruri Gathungu; Jane Mumbi Mugo; Nyambura Muiruri; Wambui Muiruri Petitioners
Eric H. Holder, Jr., Attorney General of the United States Respondent

Submitted: February 14, 2013

Petition for Review of an Order of the Board of Immigration Appeals

Before SMITH, MELLOY, and BENTON, Circuit Judges.

MELLOY, Circuit Judge.

Petitioners Francis Gathungu, Jane Mugo, and their two minor daughters petition for review of the Board of Immigration Appeals' ("BIA") order denying asylum and withholding of removal. We grant the petition and remand for further proceedings consistent with this opinion.

I. Background

We recount the procedural history of this case and briefly summarize the relevant evidence. Unless otherwise indicated, the facts below are drawn from Petitioner Gathungu's testimony before the Immigration Judge ("IJ").

Petitioners are Kenyan citizens. In the 1990s, Gathungu, who is a member of the Kikuyu tribe, operated a variety of small businesses in Kenya. Sometime during or around 1997, attackers allegedly affiliated with the Kenyan government destroyed his businesses. Gathungu then formed a self-help group called Kamucii to help Kikuyus develop new businesses. Shortly thereafter, a man approached Gathungu and told Gathungu he belonged to a group that could help fund Kamucii. Gathungu did not know the name of the group to which the man belonged. Gathungu eventually agreed to join the group because he thought the group could help him start businesses. Gathungu may also have been sympathetic to what he initially perceived as the group's political opposition to the government in power at the time.

As part of his initiation into the group, the group sent Gathungu to a training camp for several days to be instructed in the group's secret codes and use of traditional weapons. The group required him to swear an oath to never leave the group. Because the group placed great emphasis on secrecy, he did not tell his wife about joining the group. Sometime after Gathungu was initiated, he learned the group was the Mungiki. The Mungiki subsequently ordered Gathungu to recruit new members.

Around the beginning of 1998, Gathungu began to doubt the wisdom of his Mungiki membership. He had discovered the Mungiki were involved in criminal activities and had also changed their political stance toward the government. He began traveling more often to make it difficult for his Mungiki superiors to find him and began giving them names of fake recruits. One of his Mungiki friends was murdered, presumably by the Mungiki, after expressing a desire to leave the Mungiki. Gathungu witnessed a group of Mungiki members attacking people with machetes near a bus station. He saw news reports of violent attacks by Mungiki members and incidents where Mungiki members had publicly stripped women because they believed the women were dressed too provocatively. The Mungiki also strongly advocated female genital mutilation ("FGM"), which both Gathungu and Mugo oppose. Neither Mugo nor the couple's daughters have undergone FGM.

After Gathungu had been avoiding the Mungiki and supplying false recruit names for some time, the Mungiki began ordering him to visit Nairobi and calling frequently to check up on him. He worried the Mungiki doubted his loyalty to the group. One day, the Mungiki summoned him to a small house in the mountains. There, men questioned Gathungu and accused him of wanting to leave the Mungiki. Gathungu denied wanting to leave. The men gave him hallucinogenic drugs, beat him, and hung him upside down over a fire, causing him to lose consciousness several times. Gathungu continued to deny any desire to leave the Mungiki, and the men eventually released him. Gathungu showed the IJ scars encircling his legs, which were the results of the tight ropes the Mungiki used to hang him over the fire. The Mungiki warned him not to report the torture to the police and not to seek medical treatment.

Gathungu lived in fear of further torture by the Mungiki. In late 1998 and 1999 he began making plans to leave Kenya; however, he did not have enough money to bring his family with him if he left. In 2001, a friend of Mugo's invited Mugo to visit her in the United States. Gathungu insisted he and the couple's two daughters accompany Mugo on the visit. Once the family arrived in the United States, Gathungu told Mugo they could not return to Kenya. Mugo did not know of his involvement with the Mungiki until after they arrived in the United States.

Gathungu filed a claim for asylum in late 2001; at that time, Mugo and the couple's daughters filed derivative claims based on his persecution and on their own fears of forced FGM by the Mungiki if they returned to Kenya. In addition to his fear of the Mungiki, Gathungu feared the Kenyan government might persecute him on the ...

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