Mwangi v. Attorney General of the United States

153 F. App'x 132
CourtCourt of Appeals for the Third Circuit
DecidedNovember 2, 2005
Docket04-3449
StatusUnpublished

This text of 153 F. App'x 132 (Mwangi v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mwangi v. Attorney General of the United States, 153 F. App'x 132 (3d Cir. 2005).

Opinion

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioners Patrick Gitau Mwangi (“Mwangi”), his wife, Leah, and three children, Annicileta Gitau, Kevin Gitau, and Ivine Gitua 1 petition for review of a decision of the Board of Immigi’ation Appeals (“BIA”) affirming an immigration judge’s (“IJ’s”) decision denying their applications for asylum, withholding of removal, and protection pursuant to the Convention Against Torture (“CAT”), 2 as well as finding those applications to be frivolously filed. Mwangi and his family are natives and citizens of Kenya.

The IJ’s primary basis for denying Mwangi’s application and for finding it to *134 be frivolous was an adverse credibility determination. The IJ did not believe Mwangi’s testimony regarding his past persecution in Kenya or his fear of future persecution. In reviewing that determination, we start by reviewing Mwangi’s testimony from the merits hearing.

Mwangi testified that he had been involved in politics since the early 1980s. He testified that he had been the Organizing Secretary for the Democratic Party (“DP”), an opposition political party. Mwangi first testified that he joined the DP in 1979, but later stated that he joined in 1997.

On cross-examination, Mwangi testified that he joined the Forum for the Restoration of Democracy (“FORD”) in the 1980s. He then testified that FORD was formed in either 1989 or 1990 and that he joined it in 1991. He later stated that he joined FORD in 1992, and then that he was unsure of the date and that it was between 1991 and 1992.

Mwangi testified to a number of incidents of alleged persecution. When walking home from school in 1982 on the day after a military coup, he was stopped by soldiers. The soldiers emptied his luggage and searched its contents. In 1990, he and his brother were arrested by “special branch people” for “[gjetting involved in politics.” A.R. at 164. He was generally “roughly handled” by the police, but released the following day. Id. at 167. The police later pressured Mwangi’s employer to fire him and Mwangi was fired as a result. The bank reinstated Mwangi three months later with back pay and transferred him to Nairobi.

Mwangi further testified that he “used to get beaten very often” when he was campaigning for a friend in 1992. Id. at 160. He was beaten by “K[ANU] Youth Wingers” and the police. Id. at 161. The Kenya Africa National Union (“KANU”) was the then-ruling political party in Kenya. 3 Mwangi testified that at political gatherings they “just start beating people for no good reason” and that “they had clubs, a very big club.” Id. at 162.

Mwangi testified that in 1995 on a trip from Nairobi to Nakuru he was arrested by KANU “youth wingers.” Id. at 172-73. They searched his luggage and detained him until the following day.

Mwangi testified that in 1997 he arranged transportation for a friend running for elective office. He testified that he and others were arrested, detained for two days, interrogated, ordered to stop campaigning, and kicked and beaten. Mwangi testified that he lost a tooth as a result.

On Mwangi’s final trip to Kenya, according to his testimony, he was visiting his brother when his brother’s house was attacked and burned down. Mwangi testified that from talking to others he learned that this was done by KANU supporters. The following day his own home was destroyed, along with a total of 25-30 homes in his neighborhood.

Finally, Mwangi testified that the KANU government and its supporters have been responsible for the murder or rape of a number of his extended family members. In addition, Mwangi testified that his father’s business was bulldozed by government workers with police protection.

Mwangi first entered the United States in July 1999. He testified, “I was escaping the persecution and I was attending a wedding of my ... brother-in-law.” Id. at 201. Mwangi’s two daughters accompanied him to the United States.

*135 According to Mwangi, his wife was “constantly harassed” while he was in the United States. Id. at 222. “[T]he K[ANU] youth wingers used very often to come over at night, force her to open the door, force her on the floor.” Id. His wife had told him about this harassment before October 1999.

Mwangi sent his daughters back to Kenya in October 1999. He testified that “[i]t was safe for them [to return to Kenya], but not yet for” him. Id. at 218. He testified that he felt comfortable sending his children back to Kenya despite his knowledge of his wife’s harassment because “[t]hey usually don’t harm children.” Id. at 225.

Mwangi returned to Kenya in January 2000. When asked why he returned home despite having previously fled to avoid persecution, he responded:

I felt very strongly for my wife who had just delivered our son, and they were in constant harassment from the ... youth wingers, and I felt they needed my reassurance. And, and as I was trying to get them documents to be able to, to leave the country, too....

Id. at 201-02.

Upon his return, according to his testimony, Mwangi remained fearful of persecution. When he left his home he disguised himself by “getting dressed like a woman, putting on religious ... clothes.” Id. at 203. Upon further questioning, he testified that he disguised himself only “[a] couple of times.” Id. at 204. He insisted, however, that

it reached a point that even my friends were telling me now ... you’re putting us in danger trying to accommodate you, and you have an option where you can go and stay safely ... so I had to leave. And by then I had not been able to get traveling documents for my wife.

Id. at 205.

Mwangi returned to the United States, alone, in March 2000. Mwangi testified that despite being told by friends that “[pjeople are being arrested, arrested or being killed,” id. at 206, and that his “uncle had just been killed and then the two daughters raped,” id., he returned to Kenya in September 2000. He testified that he stayed in Kenya for two weeks, “trying to get traveling documents for [his wife] but it was proven real hard for to get them.” Id. at 207. He returned again to the United States later that month because “it was not safe to stay back over there.” Id.

Mwangi remained in the United States for six months. During that time, his wife successfully obtained a passport and a visa, and she joined her husband in the United States in January 2001. However, Mwangi testified that his children’s traveling papers were with his own passport and so they could not travel to the United States with his wife.

Mwangi returned to Kenya again in March 2001 “[t]o go and get my children out.” Id. at 210.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
153 F. App'x 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mwangi-v-attorney-general-of-the-united-states-ca3-2005.