## Facts

- Francis Gatimi, a Kenyan national and Kikuyu, joined the Mungiki in 1995 and defected in 1999.
- Gatimi testified that after his defection Mungiki members raided his home, killed a servant, killed pets, burned two vehicles, tortured him, and threatened to gouge out his eyes.
- Gatimi also testified that Mungiki members demanded he produce his wife so they could perform a clitorectomy (female genital mutilation) on her and threatened to kill him if he refused.
- Country and record materials indicated Mungiki had a reputation for violence against defectors and required women to undergo clitorectomies.
- Gatimi’s wife and daughter sought relief derivatively through his application.

## Issues

1. Whether “defectors from the Mungiki” constitute a cognizable “particular social group” for asylum purposes, notwithstanding the agency’s “social visibility” requirement.
2. Whether the agency erred in concluding Gatimi had not suffered past persecution and in discounting evidence and relevance of the wife’s fear of female genital mutilation.
3. Whether the court had jurisdiction to review the denial of a remand based on alleged changed country conditions.

## Decision

- The Seventh Circuit granted the petition for review, reversed the denial of asylum-related relief, and remanded for further proceedings.
- The court held that the agency’s “social visibility” requirement, as applied, was unreasonable and inadequately explained, and therefore not entitled to deference.
- The court held that defectors from Mungiki can qualify as a “particular social group” because former membership/defection is a shared characteristic tied to targeted violence.
- The court held the record compelled a finding of past persecution based on the violence, torture, arson, and serious threats.
- The court held the wife’s fear of female genital mutilation was supported by the record and relevant to the family’s asylum claim.
- The court dismissed for lack of jurisdiction any challenge to the agency’s refusal to remand based on changed circumstances.

## Legal Principles

- A “particular social group” may be defined by a shared past experience or status that is effectively immutable, including former membership/defection when it results in targeted harm.
- An agency interpretation imposing extra requirements on “particular social group” must be coherently explained and consistent with prior agency doctrine; unexplained inconsistency is arbitrary and not owed deference.
- Severe violence, torture, credible death threats, and destructive attacks tied to a protected ground can constitute persecution rather than mere mistreatment.
- Credible threats of female genital mutilation against a spouse may be probative of persecution and can be relevant to a family’s claim.
- Federal courts lack jurisdiction to review certain asylum-related determinations concerning changed circumstances and discretionary denials of motions to remand.

## Conclusion

The court rejected the agency’s “social visibility” gloss, recognized Mungiki defectors as a cognizable social group, and held that the evidentiary record compelled findings of past persecution and a supported fear of female genital mutilation, requiring reversal and remand while leaving the changed-conditions remand denial unreviewable.


Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009)