Immigration – Asylum — Kenya

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United States Court of Appeals For the Seventh Circuit

Civil

Immigration – Asylum — Kenya

Where an alien would likely be killed by the Mungiki if removed to Kenya, his asylum petition must be granted.

“Wanjiru may not be the most sympathetic person to come before the immigration authorities: he pleaded guilty to the misdemeanor of having sexual intercourse with a woman without her consent. But the CAT does not exist only for persons with an unblemished record. Indeed, the possibility of deferring removal rather than withholding it altogether exists for people such as Wanjiru, who might be undesirables at some level but who are entitled not to be sent to a country where they will experience torture. See Negusie v. Holder, 555 U.S. 511, 541-42 (2009) (Thomas, J., dissenting). Here both the documentary evidence and Wanjiru’s testimony (which, to repeat, the IJ found credible) support the conclusion that the Mungiki will probably murder Wanjiru with the acquiescence of Kenyan government officials, if he is returned. See 8 C.F.R. § 1208.16(c)(2). And it is worth remembering that even if Wanjiru ultimately prevails in his quest to obtain deferral of removal, the government has the authority to keep him in custody pursuant to 8 C.F.R. § 1208.17(c) until such time as he may safely be removed to either Kenya or a willing third country. See Ali v. Achim, 468 F.3d 462, 471 n.5 (7th Cir. 2006). Wanjiru is saying, in effect, that he would rather live in a U.S. jail than risk return to Kenya.”

Petition Granted.

11-3396 Wanjiru v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Wood, J.