The interpretation of immigration

A Kenyan man’s legal battle to escape death threats and protect his wife from genital mutilation is offering hope to Central American youths attempting to flee gangs like MS 13 the drug cartels of Mexico.

The lifeline might eventually come through immigration courts in the U.S.

The request for amnesty by a Kenyan man now living in the Kansas City area wouldn’t on the surface hold much in common with the plight of Latin American youth involved in gangs. But his saga with a little known but extremely violent group called the Mungiki could help clarify a portion of immigration law clouded by inconsistent rulings.

A harshly worded appeal granted in the Kenyan’s case in late August could help others seeking to leave gang and drug culture, but who fear retribution. At issue are the reasons under which the U.S. government will grant asylum.

Asylum is granted only when would-be immigrants can prove fear of persecution based on one of five criteria: political opinion, race, religion, nationality, or membership in a particular social group. The last category is the troublesome one. U.S. immigration has left it to judges to interpret what constitutes a “particular social group.” For instance, a woman fearing genital mutilation has been determined in prior cases to belong to a particular group worthy of asylum.

But others have been denied such protections, often with the rationale that they could not be outwardly recognized as belonging to a threatened group. The tattoos of former gang members, for instance, have not been enough to meet the criteria of social group in some cases. In others, drug informants have had trouble surpassing that obstacle in asylum cases. But homosexuals from Cuba have been more successful in qualifying as a protected group, despite the fact that there are no outwardly visible labels to being gay.

In the case of the Kenyan, he initially joined the Mungiki, which originated with his Kikuyu tribe in 1995. At the time, the group was more religious in nature, advocating adherence to African customs and shunning Western influences. In time, however, they became violent, involved in ethnic killings.

The Kenyan man denounced affiliation in 1999. According to court papers, the Mungiki broke into his home, and not finding him, killed his servant. Police wouldn’t protect him and the mob returned with the intent of circumcising his wife. She left the country with an infant child.

The man’s attempts to remain in Africa are admirable at some levels. He kept appealing to police for protection, even after men returned to his home, planning to gouge his eyes out. Later, they threatened him with death unless his wife returned and submitted to genital mutilation.

Eventually the family sought asylum in the U.S., but a judge denied the case. A circuit judge in Chicago tore into that original decision, declaring “absurd” the immigration board’s assertion the attacks were merely “mistreatment.” Even more damning, he found that “the immigration judge lapsed into incoherence” in not adequately addressing the feared mutilation of the wife. Most importantly, he called out past rulings for their inconsistencies in dealing with former members of groups.

Immigration attorneys suspect the courts have long feared opening up the flood gates, so to speak, of people who might then use fear of persecution by groups they once belonged to in order to seek asylum. Missed in that knee-jerk attempt to manage immigration case by case instead of by policy is the problem of unfairness, with some treated sympathetically and others sent back to their torturers.

The appellate decision couldn’t have come at a more opportune time. Historically, U.S. immigration policies shift to reflect the economic and nativist sentiments of the nation. Backlash against the growing Latino population, mixed with well-founded fears of Latino gangs like the Mara Salvatrucha, or MS 13, could influence policy decisions about immigration. Congress and President Obama insist they plan on overhauling unworkable aspects of immigration law. With this decision, the Attorney General has the opportunity to get a jumpstart on addressing past inconsistencies with new policy, laying the groundwork for fairer and more equitable treatment for those who seek solace in the U.S.