Gathungu, et al. v. Holder, Jr., No. 12-2489 (8th Cir. 2013)
Annotate this CasePetitioner and his family, Kenyan citizens, petitioned for review of the BIA's order denying them asylum and withholding of removal. The court held that Mungiki defectors constituted a "particular social group" and that the record compelled the conclusion that the Kenyan government was unwilling or unable to control the Mungiki. Therefore, the BIA erred in denying petitioner's claims on the merits. Further, the BIA abused its discretion in denying petitioner's motion to remand to allow petitioner's sister to testify in person because her testimony, if credited, was likely to change the IJ's credibility findings and thus change the outcome of the case. Accordingly, the court granted the petition for review.
Court Description: Petition for Review - immigration. Petition for review is granted, as BIA misapplied the "social visibility" criterion when it ruled Mungiki defectors were not a "particular social group." Based on the record, Mungiki defectors constitute a "particular social group," and the record compels a conclusion that the Kenyan government is unable or unwilling to stop Mungiki's violent attacks on defectors. The BIA abused its discretion in refusing to remand to allow petitioner's sister to testify in person, as her testimony would likely change the result in this case, as testimony would corroborate petitioners' claims.
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