In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3396
K EVIN K. W ANJIRU,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A087 676 971
A RGUED S EPTEMBER 12, 2012—D ECIDED JANUARY 11, 2013
Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. Kevin Wanjiru is seeking to
avoid removal to Kenya, his native country, because he
believes that, if this occurs, he will be tortured and
then murdered by a group called the Mungiki. An Immi-
gration Judge (IJ) concluded that Wanjiru had failed to
prove that these dire consequences were more likely
than not. Wanjiru also did not persuade the IJ that the
2 No. 11-3396
Kenyan government would acquiesce in the Mungiki’s
violent acts. The IJ therefore denied Wanjiru’s applica-
tion for deferral of removal pursuant to the U.N. Conven-
tion Against Torture and Other Cruel, Inhuman or De-
grading Treatment or Punishment (the CAT), to which
the United States is a party. After the Board of Immigra-
tion Appeals upheld the IJ’s determination, Wanjiru
filed this petition for review. We conclude that we have
jurisdiction to adjudicate this petition, and that it must
be granted.
I
The Mungiki are a violent, outlawed sect in Kenya;
they are notorious for extortion, torture, and murder by
dismemberment. The U.N. High Commissioner for Refu-
gees (UNHCR) describes them as “a secretive, quasi-
religious, part gang, part mafia-like group that engages in
criminal activity and violent intimidation.” See “Kenya:
Activities of the Mungiki sect and response by govern-
ment authorities (2008–October 2009),” available at
http://www.unhcr.org/ refworld/topic,463af2212,469f2e382,
4b20f048c,0,,,.html (last visited Jan. 8, 2013). The UNHCR
report notes that the Mungiki “tax” public transportation
and access to public services; that they are infamous for
beheading their victims; that they may be closely allied
with senior politicians in the government; and that in
October 2008 a police officer who provided information
against them was killed. See also Christopher Goffard,
Court Sheds Light on Scary Gang, L.A. T IMES, available at
http://articles.latimes.com/2011/nov/27/world/la-fg-kenya-
mungiki-20111127 (Mungiki “may be the biggest and most
No. 11-3396 3
dangerous gang in the world”); Adam Mynott, Rule of
Law Reels in Kenya, BBC N EWS, March 6, 2009, available
at http://news.bbc.co.uk/2/hi/africa/7928519.stm (Mungiki
murdered over 1,500 people in post-election violence
in 2007). Although the Kenyan government has tried to
bring the group under control, recent reports indicate
that it has not yet managed to do so. See, e.g., Bernard
Momanyi, Resurgent Mungiki targeted in fresh crackdown,
Capital FM News (May 23, 2012), available at http://www.
capitalfm.co.ke/news/2012/05/resurgent-mungiki-targeted-
in-fresh-crackdown/.
At the age of 14, when he was still living in Kenya,
Wanjiru accepted his teacher’s invitation to join the
Mungiki. He had no idea at the time of the group’s
violent character. After he became a member, he was
afraid to leave, knowing that the Mungiki punish
defectors by executing them. When Wanjiru was about
20 years old, however, he saw a way out. He came to
the United States, traveling legally on a student visa,
and was admitted at Detroit, Michigan, on March 24,
2005. He briefly attended Shawnee State University in
Ohio, transferred after one semester (without permis-
sion from the government) to a community college
in Austin, Texas, and finally settled in Lexington, Ken-
tucky, in 2008.
II
Wanjiru came to the attention of the immigration author-
ities after he was charged in 2009 with the sexual assault
4 No. 11-3396
of a young woman he met in a Lexington nightclub.
Apparently Wanjiru was drunk and there was a sexual
encounter, the details of which were disputed. In the
end, Wanjiru accepted a plea agreement under which
he pleaded guilty to the misdemeanor of having “sexual
intercourse . . . with another person without the latter’s
consent.” K Y. R EV . S TAT. A NN. § 510.140 (West). He
received a suspended sentence of one year, conditioned
upon his surrender to the immigration authorities.
Immigration and Customs Enforcement (ICE), which
is part of the U.S. Department of Homeland Security,
initiated removal proceedings against Wanjiru. He con-
ceded removability as charged, but he petitioned for
both withholding of removal under 8 U.S.C. § 1231(b)(3)
and deferral of removal under the CAT. The IJ first found
that the statute under which Wanjiru was convicted
required lack of consent, and thus it described a “par-
ticularly serious crime” within the meaning of 8 U.S.C.
§ 1231(b)(3)(B)(ii). Because withholding of removal is
not available to aliens convicted of such a crime, the
hearing turned to the question whether Wanjiru was
eligible for deferral of removal. See 8 C.F.R. § 1208.16(c)(4)
(stating that protection under the CAT may take the
form either of withholding of removal or deferral of
removal); see also 8 C.F.R. § 1208.17(a).
Wanjiru testified at some length about his role in the
Mungiki and why he still fears being returned to Kenya.
His duties as a Mungiki member began upon his enroll-
ment in college in Nairobi; at that time, he was responsible
for taking up collections for the Mungiki from local
No. 11-3396 5
businesses. Wanjiru said that he never threatened
anyone, but that the businesses always paid. He denied
personally engaging in violence, but he admitted that
he knew that the Mungiki murdered other members
who tried to leave the group. As we noted earlier, he
explained that he remained a member during that
period because he was afraid to cut his ties with them.
He has not told his family, apart from his grandfather
and his cousin, about his joining the Mungiki, because
the gang enforces a strict code of secrecy.
With respect to a possible return to Kenya, Wanjiru
swore that even after this lapse of time, the Mungiki
would recognize him and either kill him immediately as
a defector or force him to choose between rejoining the
group and death. He also fears that the Kenyan police
would recognize him as a Mungiki and mistakenly
think that he was still involved with the outlawed
group. In the latter event, he believes that the police
would either shoot him on sight (as he asserts they
have done with other Mungiki) or force him to cooperate
and identify Mungiki members (which he said would
lead quickly to his death). Exactly this happened to
Wanjiru’s cousin Thomas, who was also a Mungiki mem-
ber. Thomas was arrested by the Kenyan police and
released only after revealing the identities of other
Mungiki. He fled to Dubai for two years, at which point
he thought that it was safe for him to return to Kenya.
He was wrong. Shortly after his return, he disappeared.
Eventually his family found the remains of his mutilated
body—the work of the Mungiki, Wanjiru believes.
6 No. 11-3396
On cross-examination, when asked to name fellow
Mungiki members, Wanjiru first insisted that he could
not “specify their names.” When pressed further, he
volunteered the names of his murdered cousin Thomas
and his best friend John Jaro, but when asked to name
more, he repeated that he “couldn’t really recall their
names, not all of them.” On redirect, when asked why
he could not remember more names, Wanjiru ex-
plained “Like I knew their names, but I didn’t want to
specify.” He also commented that most members
went only by one name or a nickname, and that he did
not know their full names. He was certain, however,
that many of them would recognize his face.
The IJ denied both forms of relief, concluding that
Wanjiru had “failed generally to establish eligibility”
under the CAT. The judge did not make an explicit credi-
bility determination, but he did note several inconsis-
tencies in Wanjiru’s testimony. Wanjiru testified, for
instance, that the Kenyan police had a “shoot to kill”
order for suspected Mungiki, but his cousin Thomas
had been arrested first, not shot on sight. Moreover,
Wanjiru asserted that the Kenyan government turned
a blind eye to the Mungiki, but the IJ found this to be
inconsistent with Wanjiru’s professed fear of the police
and the “shoot to kill” order.
Wanjiru appealed the IJ’s decision to the Board, which
concluded that the IJ had erred by failing to make
specific findings of fact on such critical points as
Wanjiru’s credibility, whether he was likely to be
tortured, and whether the Kenyan government would
No. 11-3396 7
acquiesce in torture. The Board remanded the case to
the IJ for this additional work.
On remand the parties agreed to dispense with a
second hearing and have the IJ decide on the basis of
the record that already existed. Once again, the IJ denied
relief, this time in a thorough and detailed opinion. Al-
though he expressed a few reservations about Wanjiru’s
credibility, noting that Wanjiru did not know the
group’s political goals and could not name more than
two members, on the whole he found Wanjiru’s testi-
mony credible because it was “spontaneous, plausible,
and detailed.” Even so, the IJ found that Wanjiru had
not proven that it was more likely than not that he
would be targeted by either the Mungiki or the Kenyan
police. Furthermore, the judge found, even if the
Mungiki did target Wanjiru, he had not shown that
the Kenyan government would acquiesce in his murder.
Wanjiru again appealed to the Board, which affirmed
the IJ’s new decision. The Board ruled that Wanjiru
failed to demonstrate that the Mungiki would recognize
him, in light of his six-year absence from Kenya and
what it saw as his failure to recall members’ names.
Even if they did recognize him, the Board found, the
Kenyan government has been actively fighting the
Mungiki. It thus did not believe that the government
would acquiesce if the Mungiki tried either to torture
or murder Wanjiru. The Board also rejected Wanjiru’s
argument that the Kenyan police would question him,
and that if questioned he would have to cooperate, and
if he cooperated he would be executed just like his
cousin Thomas.
8 No. 11-3396
Wanjiru petitioned pro se for review. In response, the
government initially argued that this court lacked juris-
diction over the petition, based on 8 U.S.C. § 1252(a)(2)(C),
because Wanjiru’s sexual misconduct conviction was
a crime involving moral turpitude. As we explain below,
it later changed its position. This court decided to
recruit counsel for Wanjiru, so that his case could be
presented more fully and, to the extent applicable, our
decision in Issaq v. Holder, 617 F.3d 962 (7th Cir. 2010),
could be taken into account. The case has now been
fully briefed by counsel for Wanjiru, whose efforts the
court appreciates, and by the government, and is ready
for decision.
III
A
Although the government now concedes that this
court has jurisdiction over Wanjiru’s petition for
review, we must nevertheless assure ourselves that this
is so before proceeding to the merits. The question is
whether the jurisdiction-stripping provision found at
8 U.S.C. § 1252(a)(2)(C) applies to a denial of deferral of
removal, as opposed to “a final order of removal” by
reason of the alien’s having committed certain criminal
offenses—specifically, a crime of moral turpitude or a
controlled substance crime, 8 U.S.C. § 1182(a)(2), an
aggravated felony, id. § 1227(a)(2)(A)(iii), most con-
trolled substance offenses, id. § 1227(a)(2)(B), certain fire-
arms offenses, id. § 1227(a)(2)(C), several miscellaneous
No. 11-3396 9
crimes (not relevant to Wanjiru), id. § 1227(a)(2)(D), or
multiple crimes of moral turpitude, id. § 1227(a)(2)(A)(ii).
Wanjiru concedes that his sexual misconduct mis-
demeanor was a crime of moral turpitude, and so we
must consider whether § 1252(a)(2)(C) deprives us of
jurisdiction to entertain his petition.
The government points out that even though two of
the statutory provisions listed above—8 U.S.C. § 1182(a)(2)
and 8 U.S.C. § 1227(a)(2)(A)(ii)—cover crimes involving
moral turpitude, neither triggers the application of
the jurisdictional bar because Wanjiru’s earlier offense
does not meet the criteria of either one. Section 1182(a)(2),
the government explains, covers criminal aliens who
are seeking admission to the United States; Wanjiru
does not belong in that group because he entered the
country lawfully (even if he stayed too long) and did
not commit his crime until he was here. Section
1227(a)(2)(A)(ii) is inapplicable for a different reason:
it requires multiple criminal convictions for crimes of
moral turpitude, but Wanjiru has only one such convic-
tion. Congress, in short, did not include Wanjiru’s
situation in the set of offenses that give rise to the juris-
dictional bar, and so, the government concludes, we
can proceed. This is the result that the Fifth Circuit
reached in Lee v. Gonzales, 410 F.3d 778, 781-82 (5th Cir.
2005), although we note that the Eleventh Circuit seems
to have come to the opposite conclusion, though without
focusing on the issue. See Vuksanovic v. U.S. Attorney
General, 439 F.3d 1308, 1309-10 (11th Cir. 2006).
We see no reason not to take Congress at its word.
There would be no point to the careful list of offenses
10 No. 11-3396
covered by § 1252(a)(2)(C) if courts were to start
adding offenses willy-nilly. It is not irrational for
Congress to draw a line between those who are seeking
admission to the country and those who are already
here, whether legally or illegally; whether we would
have drawn the same line is neither here nor there.
Given this conclusion, it is not strictly necessary
to rely on the alternate theory that Wanjiru’s lawyers
have advanced, relying on dicta in our decision in Issaq
v. Holder, 617 F.3d 962, 969-70 (7th Cir. 2010). Since there
is a split in the circuits on this point, however, we think
it prudent to explain further why § 1252(a)(2)(C) does
not bar judicial review of a request for deferral of removal.
B
In Issaq, we discussed the difference between peti-
tions for withholding of removal and petitions for
relief under the CAT. The former offer only one form
of relief—withholding of removal—while the latter
offer both withholding of removal and deferral of re-
moval. The Executive Office for Immigration Review
(EOIR) of the U.S. Department of Justice has a Fact Sheet
in which it has described the difference between these
two forms of relief, as they relate to the CAT:
• Withholding of Removal (Under CAT)
Withholding of removal (under CAT) prohibits
returning aliens to a specific country where
they would face torture. It is a more secure
No. 11-3396 11
form of protection than deferral of removal. It
can be terminated only if [the Department of Home-
land Security] establishes that an alien is not likely
to be tortured in that country.
• Deferral of Removal
Deferral of removal also prohibits returning aliens
to a specific country where they would face torture.
However, deferral of removal is granted to
aliens who likely would face torture but who are
ineligible for withholding of removal (under CAT),
for example, certain criminals and persecutors.
Deferral of removal is a more temporary form
of protection. It can be terminated more quickly and
easily if an alien no longer is likely to be tortured in
the country of removal, or if the U.S. government
receives assurances that the alien will not be tor-
tured if returned.
EOIR Fact Sheet, “Asylum and Withholding of Removal
Relief, Convention Against Torture Protections,” Jan. 15,
2009. Even in cases that do not implicate the CAT, the
Attorney General has the authority to withhold the re-
moval of an alien if he or she decides that the alien’s life
or freedom would be threatened in the country of
removal on account of a protected ground. See 8 U.S.C.
§ 1231(b)(3); 8 C.F.R. § 1208.16(a), (b). (There is an excep-
tion for those who participated in Nazi persecution,
genocide, or the commission of an act of torture or extra-
judicial killing, but the government has not relied on
that in Wanjiru’s case.)
12 No. 11-3396
The section of the Immigration and Nationality Act
that governs judicial review of orders of removal
provides that “no court shall have jurisdiction to re-
view” various kinds of denials of discretionary relief (not
including either withholding or deferral of removal), 8
U.S.C. § 1252(a)(2)(B), nor (as we noted earlier) shall
any court have jurisdiction to review a “final order
of removal” against certain criminal aliens, 8 U.S.C.
§ 1252(a)(2)(C). The question we discussed in Issaq was
whether these jurisdictional bars apply to an order
denying deferral of removal under the CAT. The
language of the statute tells us that the answer is no.
Section 1252(a)(2)(C) addresses only judicial review of
final orders of removal. A deferral of removal is like an
injunction: for the time being, it prevents the govern-
ment from removing the person in question, but it can
be revisited if circumstances change. See generally Rufo
v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) (dis-
cussing circumstances under which a final consent decree
can be reopened for modification); Ali v. Achem, 468 F.3d
462, 471 n.5 (7th Cir. 2006). That is why such an order can
be final enough to permit judicial review, but at the
same time not be the kind of “final” order covered by
§ 1252(a)(2)(C).
In that respect, deferral-of-removal orders do not stand
alone in immigration law. In Calma v. Holder, 663 F.3d
868, 876-77 (7th Cir. 2011), we held that judicial review
is available under certain circumstances when an im-
migration judge denies a motion for a continuance, even
if there would be no jurisdiction to review the Board’s
ultimate decision. Like a continuance, a deferral deci-
sion can, in effect, be the dispositive ruling in a case:
No. 11-3396 13
if deferral is denied and the person is returned to torture
or death, there will be no second chance. The Ninth
Circuit reached the same conclusion as ours, although
on somewhat different grounds, in Lemus-Galvan v.
Mukasey, 518 F.3d 1081 (9th Cir. 2008). There it held
that § 1252(a)(2)(C) does not apply to judicial review
of deferral-of-removal decisions because they are inevita-
bly decisions “on the merits” of the question whether it
is more likely than not that the applicant will be
tortured upon his return to the country at issue. 518 F.3d
at 1084. Although other circuits have concluded that
§ 1252(a)(2)(C) bars judicial review of a denial of deferral
of removal, see, e.g., Pieschacon-Villegas v. Attorney Gen. of
U.S., 671 F.3d 303, 309 (3d Cir. 2011); Saintha v. Mukasey,
516 F.3d 243, 248 (4th Cir. 2008), they did so without any
discussion, and we do not find that position persuasive.
We should not lightly presume that Congress has shut
off avenues of judicial review that ensure this country’s
compliance with its obligations under an international
treaty, see Murray v. Schooner Charming Betsy, 2 Cranch 64,
118 (1804). Instead, we should bear in mind the Supreme
Court’s admonition that canons of construction favor
statutory interpretations that preserve judicial review.
See Kucana v. Holder, 130 S. Ct. 827, 839 (2010); Gutierrez
de Martinez v. Lamagno, 515 U.S. 417, 434 (1995).
IV
Turning to the merits, we must decide whether the
decision of the IJ and the Board that Wanjiru failed to
show that it is more likely than not that he will be
14 No. 11-3396
tortured if he is returned to Kenya is properly supported
by the evidence. See 8 C.F.R. § 1208.16(c). The CAT’s
implementing regulations define torture as “severe pain
or suffering . . . inflicted by or at the instigation of or
with the consent or acquiescence of a public official.”
8 C.F.R. § 208.18. Because the Board affirmed and sup-
plemented the IJ’s decision with a short order, we
review the IJ’s order as so supplemented. See Sarhan v.
Holder, 658 F.3d 649, 653 (7th Cir. 2011). It is Wanjiru’s
burden to show that the administrative decision was not
supported by substantial evidence. Balliu v. Gonzales,
467 F.3d 609, 612 (7th Cir. 2006).
The key question is whether the Board’s conclusion
that Wanjiru failed to make a convincing enough showing
that the Mungiki (or the police, mistaking him for a
Mungiki) will target him in particular is supported by
substantial evidence. Wanjiru relied principally on his
own testimony, which, after the remand, the IJ found to
be credible. And there was evidence in the record sup-
porting the proposition that the Mungiki in general
are violent, especially toward their former members. See,
e.g., Mungiki: Tribal Terrorism in Kenya, R. at 719; Murdered:
Sect Members Who Said No, R. at 712. See also Gatimi v.
Holder, 578 F.3d 611, 613-14 (7th Cir. 2009) (defector
was tortured by Mungiki and police refused to protect
him). On the other hand, a person petitioning for
relief under the CAT must do more than show some
connection between himself and the feared torturers
(here, the Mungiki) in order to prevail. This court has
upheld at least one other Board decision in which the
Board rejected as not credible the claim of an alien who
No. 11-3396 15
said that he feared the Mungiki. Amalemba v. Holder, 444
F. App’x 94, 98 (7th Cir. 2011).
The Board was not convinced that the Mungiki would
recognize Wanjiru after such a long absence: Wanjiru
was a relatively low-ranking member of the Mungiki;
he defected from the group in 2005; and he was unable
(so the IJ and the Board thought) to name other mem-
bers of the group. But Wanjiru testified that he was “80 or
90 percent” certain that other Mungiki would recognize
his face from the meetings. Moreover, his reluctance
to name names did not come from ignorance. A careful
examination of his testimony reveals that he was
refusing to identify other members of Mungiki, not that
he was unable to do so. As he put it, “Like I knew their
names, but I didn’t want to specify.” The fate that
befell Wanjiru’s cousin Thomas also sheds light on both
the fatal consequences of informing on the Mungiki and
the length of the group’s memory—Thomas had been
gone for two years, but he was promptly punished,
according to the testimony credited by the IJ.
It is also unlikely that Wanjiru could avoid the atten-
tion of the Mungiki by relocating to a different part of the
country. Although there are some 43 million people in
Kenya, it is not one homogeneous whole. To the contrary,
there are many tribes, and there are at least 69 languages
in use nationwide. See Ethnologue: Languages of the
World 141 (M. Paul Lewis ed., 16th ed. 2009), available at
http://www.ethnologue.com/show_country.asp?name=KE.
Most Kenyans speak either English or Swahili (or both),
and also their own tribal language. Wanjiru’s tribe is
16 No. 11-3396
the Kikuyu; approximately seven million people speak
Kikuyu, or about 20% of Kenya’s population. CIA World
Factbook, https://www.cia.gov/library/publications/the-
world-factbook/geos/ke.html. The tribal and linguistic
divisions in the country mean that it is not easy to
relocate from one area to another, and if someone were
to do so, the outsider would stick out because of his
inability to speak the local language (at least without
an accent). A person moving into another tribe’s area
might also be compelled to renounce his own heritage,
wealth, and social status; persecution of a Kikuyu is
also possible given the existence of hostility in some
quarters to that group. See Timothy Parsons, Being
Kikuyu in Meru: Challenging the Tribal Geography of
Colonial Kenya, 53 J. Afr. Hist. 65, 67 (2012).
The IJ found that the Mungiki would probably forgive
Wanjiru’s defection and leave him alone, but the Board
did not mention this finding, and the government
concedes that “the record amply demonstrates that the
Mungiki murder defectors.” Wanjiru testified credibly
that this practice is not limited to Mungiki leaders, and
the Board never explained why that fact did not
support Wanjiru’s case.
Finally, the IJ dismissed as “mere allegations” the
extensive evidence in the record showing that the
Kenyan police and government officials ignore or even
actively support the Mungiki; the Board once again
was silent on this point. It therefore did not confront one
of Wanjiru’s principal points, namely, that the Kenyan
police are two-faced in this respect. Thousands of
No. 11-3396 17
Mungiki have been shot summarily by police death
squads, while at the same time, corrupt government
officials have abetted and even directed the Mungiki.
The International Criminal Court in the Hague con-
firmed charges (a step similar to finding probable cause)
against Kenya’s former Deputy Finance Minister and
its former Deputy Prime Minister for allegedly using
the Mungiki to murder and rape thousands of Kenyans
in the wake of a disputed presidential election in late
2007 and early 2008. See Prosecutor v. Francis Kirimi
Muthaura, et al., Case No. ICC-01/09-02/11, Decision on the
Confirmation of Charges, pp. 143-50 (Jan. 23, 2012), avail-
able at http://www.icc-cpi.int/iccdocs/doc/doc1314543.pdf.
(Their trials are scheduled for 2013; the IJ was aware
that prosecutors were bringing these charges. R. at 742.)
This supporting material cannot be brushed away as the
product of Wanjiru’s imagination. It is evidence with
which the Board should have come to grips.
V
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,
18 No. 11-3396
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 govern-
ment 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.
The petition for review is G RANTED and the case
is R EMANDED to the Board of Immigration Appeals for
further proceedings consistent with this opinion.
1-11-13