Appendix H. Sample Response for Notice of Intent to Deny (NOID)

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PRO BONO ASYLUM REPRESENTATION MANUAL APPENDICES who are infamous for their corruption and connection with the Mungiki, will not care to assist a woman who fears gender based violence. Ms. Client explained Brother-in-law’s powerful position in her family and community in her initial Affidavit. Affidavit at para. 27. As the head of the Nguyo family, Brother-in-law has exerted his position of authority and dispensed punishment for decades. Supplemental Affidavit at para. 10. As such, Brother-in-law has completely disregarded Husband’s position that his wife need not be circumcised. Id. at para. 8. While community elders did not support Brother-in-law’s attempt to strip Husband of his property inheritance, Ms. Client aptly explained, these elders would not support her or her husband’s objection to being circumcised because the elders are all traditionalists who support circumcision. Affidavit at paras. 25-27. Just as Husband’ words of opposition to his brother have been ineffective, so too would his ability to physically protect his wife. First, it would not be reasonable or practical for Husband to be at his wife’s side at all times. Second, even if he were able to be with his wife at the moment Mungiki arrive, they would most likely overwhelm the 60+ year old Husband. Objective evidence previously submitted as well as new documents show the Mungiki will forcibly circumcise Kikuyu females between the age of 13 and 65. International Herald Tribune, August 22, 2007; IOL July 15, 2007, African Church Information Service, February 3, 2003; UNHCR, Kenya December 16, 2002 at 1. Section 14 of Kenya’s Child Act of 2001 which outlaws the practice of FGM will not deter Brother-in-law from harming Ms. Client as it does not apply to older women, like her. Specifically, the law only makes circumcision on girls up to the age of 18 illegal and leaves a gap in the law for women over 18. Government of Kenya, The Fifth and Sixth Combined Report of the Government of the Republic of Kenya on the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), October 16, 2006 at para. 23. In its report to the United Nation’s committee, the Kenyan Government acknowledged the gap in its FGM law, noting that older women do face pressure to undergo FGM in adulthood. Id. Further, the Kenyan Government stated that one result of the FGM law has been to make the practice go underground. Id. The Kenyan Shadow Report to the CEDAW committee further notes the FGM law is weak in that it does not include a provision to punish the circumciser, nor is the law being abided by. The Federation of Women Lawyers – Kenya, A Shadow Report to the 5 th and 6 th Combined Report of the Government of the Republic of Kenya, on the Convention on the Elimination of All Forms of Discrimination Against Women, 2007 at page 31; See also Immigration and Refugee Board of Canada, Kenya: The practice of female genital mutilation, October 25, 2007 (noting the FGM law is rarely enforced); and CRIN-Violence Study – Kenya: Female genital mutilation cases rise, December 28, 2007 (finding an increase in the number of girls being circumcised as well as the “reluctance of male political leaders to speak out against FGM and the negligence of Kenyan authorities to enforce the law.”). The Kenyan police will likely not stop Brother-in-law or his Mungiki assistants from circumcising Ms. Client because they historically have either disregard or further brutalized women who sought their assistance, are corrupt and in some cases, are infiltrated by Mungiki. In its 2002 report, UNHCR could not find evidence of actual police action against circumcisers, such as arrests or fines since the 2001 Act outlawing FGM. UNHCR, Kenya December 16, 2002 at 2. Just in the past few months the Waki Commission Report has documented the failure of police to assist women in sexual violence cases and has disclosed numerous incidents of police brutality against women. Gender & Governance Programme, Waki: Rape Horrors by Police, October 17, 2008 at 1 (the Waki Report can be accessed at http://www.eastandard.net/downloads/Waki_Report.pdf). As noted in our earlier brief to the Asylum Office, Transparency International listed Kenya as one of
PRO BONO ASYLUM REPRESENTATION MANUAL APPENDICES the most corrupt governments in the world, with its police force as the most corrupt institution in the country. Daily Nation, Kenya scores low grade in graft war, Sept. 27, 2007. Even the United States’ State Department noted in 2006 that police extortion was on the rise. U.S. Department of State, Kenya: Country Reports on Human Rights Practices – 2006 at 5. Finally, while it is evident the police will not be a deterrent to Ms. Client’s brother-in-law and his desire to circumcise her, the infiltration of the Mungiki into some of the Kenyan police force will serve to increase the likelihood Brother-in-law will be able to harm her. Some reports analogize the Mungiki to that of the Mafia, noting police corruption as allowed the Mungiki to thrive. Global Integrity Report, Kenya: Reporter’s Notebook, 2007 at 1. In other instances, Mungiki have disguised themselves as police. Juma Kwayera, Gang infiltrates Kenya police, February 2, 2008 at 1 (citing Human Rights Watch). Thus, Ms. Client is able to establish that her brother-in-law, Brother-in-law is entirely capable of harming her as neither her husband, the law nor the police will prevent him. II. Brother-in-law is inclined to circumcise Ms. Client as evidenced by his increasing hostility and direct threat to her as well as his strident statement to a family member about his intention of harming her the day she returns to Kenya. The NOID incorrectly states Ms. Client has not established her brother-in-law is inclined to harm her as required in Matter of Mogharrabi. 19 I&N 439, 446 (BIA 1987); NOID at 3. In the NOID, the Asylum Office cited the 2000 9 th Circuit case Navas v. INS for support that Brother-in-law is not inclined to harm Ms. Client because he did not display overt acts to carry out his threat of circumcision. NOID at 3. This use of authority is incorrect as the Navas Court does not make any reference to Matter of Mogharrabi and its reasonableness factors in its opinion. 217 F.3d at 658- 662. Rather, Navas is about a young El Salvadoran man who experienced past persecution. Id. at 658. The legal analysis in Navas centers on whether the harm suffered is based on an asylum ground and whether country conditions have changed to rebut the presumption of future harm. Id. at 658-662. Therefore, the Navas case does not provide the Asylum Office the legal authority to require Brother-in-law display overt acts to show he is inclined to harm Ms. Client. The NOID does correctly state that Ms. Client remained in Kenya two weeks after Brother-in-law’s direct threat to her without carrying out his threat. NOID at 3. Still, Matter of Mogharrabi does not require the persecutor actually harm the asylum seeker to show his inclination to punish the individual or alternatively require the applicant to flee the country immediately following the threat. Mogharrabi at 443 (citing Carvajal-Munoz v. INS, 743 F. 2d 562 (7 th Cir. 1984)); Mogharrabi generally (noting the facts of Mogharrabi are based on a refugee sur place case). Rather the Board in Mogharrabi found an individual could establish future fear either by proving past persecution or by showing “some other good reason” exists that could lead to an inference of future fear. Id. at 443-444. Indeed, the applicant in Mogharrabi was never physically harmed. Id. at 448. Instead, an employee of the Iranian Government grabbed his friend’s neck, spoke harshly to his friend and showed both the respondent and his friend a gun in his pocket. Id. These actions were sufficient for the Board to find the Iranian Government was inclined to harm Mr. Mogharrabi. Id. While Ms. Client has not previously been harmed, she has experienced increasing hostility and a direct threat to her from Brother-in-law, along with a newer warning from her sister-in-law, Josephine that Brother-in-law is set on circumcising her. See Affidavit at para. 34; Letter from Josephine in Supplemental Documents. Ms. Client did state in her Affidavit that she left her brother-in-law’s home the very next morning after he threatened her and found temporary sanctuary in her parents’ home. Affidavit at para. 36. In her Supplemental Affidavit, Ms. Client surmises that her return to her parents’ home was perhaps an outcome Brother-in-law could have been satisfied with, that is what looked to be like her permanent departure from the family.
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Appendix H. Sample Response for Notice of Intent to Deny (NOID)

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