Metropolitan News-Enterprise


Monday, April 12, 2010


Page 1


Court: ‘Hope’ Not a Basis for Asylum Petition Delay


By SHERRI M. OKAMOTO, Staff Writer


A Kenyan woman’s stated hope that conditions in her native country would improve did not justify her delay in filing a petition for asylum, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel affirmed the denial of Ellinah Mutuku’s asylum claim, but concluded that an immigration judge’s finding that conditions in Kenya had improved was not supported by substantial evidence.

Mutuku was an organizer and supporter of the Kenyan Democratic Party, the leading opposition party to the Kenya African National Union, known as KANU, which ruled the country for nearly 40 years after it gained independence from British colonial rule.

In August 1992, Mutuku claimed, a band of armed men came looking for her, burned down her home and beat her sister. The men allegedly told Mutuku’s mother they would kill Mutuku if she did not stop her political activities.

 Mutuku said she also received three phone calls threatening to “come for [her] head” if she continued to pursue her activism and was nearly run over by truck driven by a KANU party activist.

She subsequently fled Kenya and arrived in the United States on a visitor visa. After her visa expired, the Immigration and Naturalization Service initiated removal proceedings.

Mutuku then applied for asylum, withholding of removal and relief under Convention Against Torture, claiming that she had been persecuted on the basis of her political opinion in Kenya and would likely be persecuted or tortured if she were to return.

An immigration judge denied each of her claims in February 2004, finding that Mutuku was ineligible for asylum because her application was barred by the one-year statute of limitations, that she was not credible, and that she did not have a well-founded fear of future persecution because conditions in Kenya were no longer hostile towards members of the Democratic Party.

He based his finding of changed country conditions on the fact that Mwai Kibaki, leader of the Democratic Party, had been elected president of Kenya in 2002. The immigration judge also relied on a declaration in the State Department’s 2002 Human Rights Country Report for Kenya that the country “is a republic dominated by a strong presidency.”

Based on the adverse credibility determination and changed country conditions, the judge denied Mutuku withholding of removal. He further concluded she was ineligible for CAT relief because the Democratic Party was in power in Kenya.

The Board of Immigration Appeals affirmed the immigration judge’s decision in a per curiam decision, and Judge Harry Pregerson, writing for the appellate court, agreed that Mutuku’s application for asylum was barred by the one-year statute of limitations.

However, Pregerson said the immigration judge’s adverse credibility finding “was premised on a clearly erroneous factual finding.” Mutuku had testified that she had almost been run over by a truck driven by a KANU supporter, but the immigration judge found her not credible because she had not mentioned this event in her asylum application.

“The immigration judge was clearly incorrect” because Mutuku’s application did describe the incident, Pregerson said, and her testimony should have been deemed credible.

As for the immigration judge’s findings on changed country conditions, Pregerson emphasized that the 2002 report was based on the period from Jan. 1, 2002, through Dec. 31, 2002, so it covered only one day after Kibaki’s swearing-in, and only four days after his electoral victory. Thus, Pregerson opined, the report’s statement that Kenya was a republic with a strong presidency was “too thin a reed on which to deny Mutuku withholding of removal.”

The judge said the report, when considered in its entirety, confirmed that abuses by security forces, particularly the police, were common in Kenya, and that political activists like Mutuku were routinely targeted by police for harassment, arbitrary arrest, excessive force, rape, abuse, and extrajudicial killing.

Pregerson also noted that the document detailed violent clashes between KANU supporters and opponents, and reports that political parties used young followers to harass opposition supporters.

“Nothing in the 2002 Country Report indicated that conditions for political opponents of [KANU] had improved, or that [KANU] members were no longer able to persecute Democratic Party members,” the jurist concluded.

But while the evidence of changed country conditions did not support the denial of withholding of removal, Pregerson said, the record did not compel a finding that Mutuku would likely be tortured if she were to return to Kenya and she was not entitled to CAT relief.

Joined by Judges Betty B. Fletcher and Susan P. Graber, Pregerson ordered the case remanded for the BIA to decide whether Mutuku’s testimony, if believed, established past persecution for purposes of withholding of removal.

The case is Mutuku v. Holder, 05-73609.


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