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Keywords

tortappealtestimonypleawillmisdemeanorcredibility
tortappealtestimonypleawillmisdemeanorcredibility

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Wanjiru v. Holder

Facts

The alien was not 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 did not exist only for persons with an unblemished record. Indeed, the possibility of deferring removal rather than withholding it altogether existed for people such as the alien, who might be undesirables at some level but who were entitled not to be sent to a country where they will experience torture. Both the documentary evidence and the alien's testimony (which the IJ found credible) supported the conclusion that the group would have probably murdered the alien with the acquiescence of the government officials, if he was returned. And even if the alien ultimately prevailed in his quest to obtain deferral of removal, the government had the authority to keep him in custody pursuant to 8 C.F.R. 1208.17(c) until such time as he could safely be removed to either Kenya or a willing third country. The alien was saying, in effect, that he would have rather lived in a U.S. jail than risk return to Kenya.

The alien was not 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 did not exist only for persons with an unblemished record. Indeed, the possibility of deferring removal rather than withholding it altogether existed for people such as the alien, who might be undesirables at some level but who were entitled not to be sent to a country where they will experience torture. Both the documentary evidence and the alien's testimony (which the IJ found credible) supported the conclusion that the group would have probably murdered the alien with the acquiescence of the government officials, if he was returned. And even if the alien ultimately prevailed in his quest to obtain deferral of removal, the government had the authority to keep him in custody pursuant to 8 C.F.R. 1208.17(c) until such time as he could safely be removed to either Kenya or a willing third country. The alien was saying, in effect, that he would have rather lived in a U.S. jail than risk return to Kenya.

Issue

Whether the IJ erred in denying Wanjiru's application for deferral of removal under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Whether the IJ erred in denying Wanjiru's application for deferral of removal under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Rule

The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides for deferral of removal for individuals who are likely to face torture upon return to their home country.

The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides for deferral of removal for individuals who are likely to face torture upon return to their home country.

Analysis

The court found that the IJ had erred in denying Wanjiru's application for deferral of removal. The IJ had failed to make specific findings of fact on critical points such as Wanjiru's credibility, whether he was likely to be tortured, and whether the Kenyan government would acquiesce in torture. The Board of Immigration Appeals concluded that Wanjiru had not demonstrated that the Mungiki would recognize him after his six-year absence from Kenya, and it did not believe that the Kenyan government would acquiesce in any potential torture or murder.

The court found that the IJ had erred in denying Wanjiru's application for deferral of removal. The IJ had failed to make specific findings of fact on critical points such as Wanjiru's credibility, whether he was likely to be tortured, and whether the Kenyan government would acquiesce in torture. The Board of Immigration Appeals concluded that Wanjiru had not demonstrated that the Mungiki would recognize him after his six-year absence from Kenya, and it did not believe that the Kenyan government would acquiesce in any potential torture or murder.

Conclusion

The petition for review was granted and the case was remanded to the BIA for further proceedings.

The petition for review was granted and the case was remanded to the BIA for further proceedings.

Who won?

Wanjiru prevailed in the case because the court found that the IJ had erred in its decision-making process regarding the deferral of removal.

Wanjiru prevailed in the case because the court found that the IJ had erred in its decision-making process regarding the deferral of removal.

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