(CN) – The 7th Circuit gave a Kenyan family a second shot at asylum, saying the immigration judge’s reasons for denying the petition “lapsed into incoherence” by refusing to recognize female circumcision as a ground for protection.
Petitioner Francis Gatimi sought asylum after defecting from a violent tribal group called the Mungiki. The group requires women, including the wives of defectors, to undergo female circumcision.
When Gatimi defected in 1999, Mungiki members allegedly broke into his home looking for him, and when they couldn’t find him, killed his servant. They came back a month later, looking for his wife, who then fled to the United States with her newborn child, according to Gatimi.
The group allegedly returned a third time, killed Gatimi’s family pets, burned two vehicles, and threatened to gouge out his eyes.
He said the police promised to protect him, so his wife agreed to return to Kenya. But within a week, the Mungiki threatened to kill him unless his wife got a clitoridectomy.
He and his family fled to the United States. Gatimi returned to Kenya briefly to see if conditions had changed, but was allegedly kidnapped and tortured by the Mungiki. As soon as he was released, he joined his family in the United States.
The immigration judge ruled that the Mungiki’s actions were not persecution, but merely “mistreatment.”
“That is absurd,” Judge Posner wrote for the three-judge panel, adding that female genital mutilation is a recognized ground for asylum.
The Chicago-based appeals court also rejected the Board of Immigration Appeals’ finding that Mungiki defectors don’t qualify as members of a “particular social group” because they can’t be readily identified.
“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 back with the legend, ‘I am a Mungiki defector,'” Posner wrote.
This makes no sense, Posner said. “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.”
The board also ignored evidence of the Kenyan government’s complicity in the Mungiki’s violence, the 7th Circuit found.
It vacated the board’s ruling and remanded.