Wednesday, August 14, 2013

Eighth Circuit and Asylum Seekers Fleeing Gang Persecution

From Advocates for Human Rights:

Eighth Circuit Cracks Open Door for Asylum-Seekers Fleeing Gang Persecution

Minneapolis, MN -- A major ruling issued last week by the United States Eighth Circuit Court of Appeals holds promise for asylum-seekers fleeing to this country out of fear of retribution and persecution by gangs in their home countries.

In an August 6 decision, the Eighth Circuit asserted that people who defect from the violent Mungiki criminal gang, notorious in Kenya, constitute a “particular social group,” an important component people must meet before gaining asylum in the United States.

At its core, the ruling is important because it holds that people defecting from gangs can constitute a “particular social group,” a decision that may begin to break the mold for these types of cases.

“The definition of a 'social group' varies, and depends on which Court of Appeals’ circuit issued the ruling,” said Deepinder Mayell director of the Refugee and Immigrant Program at The Advocates for Human Rights, a Twin Cities-based non-profit organization working locally and globally to promote and protect internationally-recognized human rights. The Sixth and Seventh Circuits have held that gang defectors constitute a ‘social group’; the Fourth Circuit has determined the opposite―that gang defectors do not constitute a social group, according to Mayell.

“To say this is murky is a complete understatement,” he said. “The Eighth Circuit’s ruling exacerbates the split between the circuits, and the conflicting decisions and definitions beg for a U.S. Supreme Court review and ruling.”

To be eligible for asylum, an applicant must show that he or she is unable or unwilling to return to the country of origin because of persecution or a well-founded fear of persecution on account of membership in a particular social group, race, religion, nationality, or political opinion, according to the law.

A significant number of people fleeing to the United States to escape gang persecution are from Mexico and Central America. This number is insignificant, though, when compared to the number of people from the Middle East fleeing to other countries.

“There are many young, vulnerable individuals struggling to overcome poverty in regions in which traditional state authority and police control have eroded,” said Mayell. “With rampant corruption and the absence of the rule of law, powerful gangs can shape a country’s economy, culture, and the day-to-day life, such as in Mexico and Central America.”

Those who join do so out of fear of retaliation for not joining and because life outside of a gang cannot exist for them, he said. Others, such as The Advocates’ client, are misled into joining.

The Kenyan businessman, Francis Gathungu, who is the subject of the Eighth Circuit’s ruling, made an unwitting and unknowing decision to link with a group that had promised to restore his business, after it was attacked and destroyed by people affiliated with the Kenyan government, and to assist people of his tribe, the Kikuyu. It was only after his initiation into the organization that he discovered the group was the Mungiki.

Gathungu began to doubt the wisdom of his Mungiki affiliation after discovering the group was involved in criminal activities and had changed its political stance toward the government. Later, he witnessed Mungiki members, armed with machetes, attack people near a bus station. He heard news reports of Mungiki members publicly stripping women they believed were dressed provocatively. He also learned the group strongly advocates female genital mutilation, a horrendous abuse which he and his family are adamantly against.

Gathungu wanted to part from the group, but he had become well aware of the dangers: One of his friends was murdered by the Mungiki after expressing such an intent.

One day, the Mungiki summoned Gathungu to a small house in the mountains. There, they accused him of wanting to leave the gang. He was given hallucinogenic drugs, beaten, and hung upside down over a fire. Out of fear he would be murdered, Gathungu continued to deny any desire to leave. The men eventually released him, and ordered him to not report the torture to police or seek medical treatment for his injuries.

With scar-laced ankles reminding him daily of the suffering endured in the mountain house, Gathungu lives in fear of further torture.

Not only does he fear reprisal from the Mungiki, he believes the Kenyan government will persecute him because of his past Mungiki affiliation.

He took his chance to escape with his family in 2001 when his wife was invited to visit a friend who lived in the United States. Gathungu decided he and the couple’s two daughters would accompany her on the trip. After arriving in this country, he filed a claim for asylum.

While in the United States, Gathungu learned that Mungiki men kidnapped his sister and forcibly subjected her to female genital mutilation.

Gathungu and his family’s journey through the U.S. immigration system has been arduous, frightening, and many-years long. His asylum claim was filed in 2001, and there has been hearing after hearing before the immigration judge and appeals to the Board of Immigration Appeals.

Matthew Ralph, a partner with Dorsey & Whitney Law Firm and a volunteer attorney with The Advocates, represents Gathungu, and has been part of his client’s journey since 2005 when Gathungu was scheduled to appear for the first time in immigration court.

 What ultimately got Gathungu’s case before the Eighth Circuit was, in part, the determination of the immigration judge and, on appeal, the Board of Immigration Appeals, that defectors from the Mungiki do not constitute a particular social group and that it was not demonstrated that the Kenyan government was unable or unwilling to protect Gathungu and his family from the notorious group.

The Circuit Court did not agree with the determinations. Important for Gathungu’s case, and possibly for other refugees fleeing gangs, the court ruled, “Mungiki defectors are an analogous social group with shared experiences. Thus, applying the BIA’s (Board of Immigration Affairs) definition, Mungiki defectors constitute a ‘particular social group.’”

Further, the court wrote, “. . . we hold that Mungiki defectors constitute a ‘particular social group’ and that the records compel the conclusion that the Kenyan government is unwilling or unable to control the Mungiki. Mungiki defectors are socially visible, and no reasonable fact-finder could conclude otherwise based on the record. Although members of Kenyan society might not be able to identify a Mungiki defector by sight, the record amply demonstrates Kenyan society perceives ‘Mungiki defectors’ as a specific group targeted by the Mungiki.”

“Numerous media reports in the record detail the targeted murders of Mungiki defectors, demonstrating that Mungiki defectors ‘suffer from a higher incidence of crime’ at the hands of the Mungiki than Kenyans in general,” the opinion reads. “By the same evidence, status as a Mungiki defector ‘is the reason’ for their persecution.”

Gathungu’s case now heads back to the Board of Immigration Appeals and the immigration judge. While the language in the Eighth Circuit’s ruling is strong and unequivocal, the immigration judge must consider the applicant “credible” in order to rule in favor of Gathungu and grant him asylum, something the judge has refused to do in the past. Thus, the judge’s decision is uncertain, and the future of Gathungu and his family remains tenuous.


Tim Rusch,, 917-399-0236
Anna Zuccaro,, 914-523-9145


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