Abankwah v. Imm'n and Naturalization Serv., Docket No. 98-4304

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-4304
• Parties: (2nd Cir. 1999) ADELAIDE ABANKWAH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Second Circuit

Page 18

185 F.3d 18 (2nd Cir. 1999)

ADELAIDE ABANKWAH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 98-4304

August Term, 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued May 3, 1999.

Decided July 9,1999.

Petition for review of order of deportation and denial of application for asylum by Immigration and Naturalization Service. Petition granted; decision of the BIA reversed; and matter remanded to the INS for further proceedings.

JON W. RAUCHWAY, New York, New York (David R. Jewell, Dennis M. LaRochelle, Orrick, Herrington & Sutcliffe LLP on the brief), for Petitioner.

MEREDITH E. KOTLER, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Diogenes P. Kekatos and Steven M. Haber, Assistant United States Attorneys on the brief), for Respondent.

Before: WINTER, Chief Judge, JACOBS, Circuit Judge and SWEET,^*. District Judge.

SWEET, District Judge:

This appeal concerns the proof required to establish that an illegal alien is eligible for asylum under Section 208(a) of the Immigration and Nationality Act (the "Act"). 8 U.S.C. § 1158(a) (1994). Adelaide Abankwah ("Abankwah"), a native of Ghana, petitions for review of an order of deportation and a denial of applications for asylum and withholding of deportation by the Immigration and Naturalization Service ("INS"). Abankwah entered the United States illegally on March 29, 1997. She sought asylum on the ground that if she returns to Ghana, her tribe will inflict female genital mutilation ("FGM") on her as a punishment for having engaged in premarital sex. Abankwah also sought withholding of deportation under Section 243(h)(1) of the Act. 8 U.S.C. § 1253(h)(1) (1994). The Board of Immigration Appeals ("BIA") concluded that Abankwah failed to demonstrate an objectively reasonable fear that her tribe will subject her to FGM, and, consequently, to establish her eligibility for asylum.

For the reasons set forth below, we reverse the denial of asylum and the denial of the application for withholding of deportation and remand for further proceedings not inconsistent with this opinion.

Background

Abankwah presented evidence as follows. Abankwah is a twenty nine year old native of Ghana and a member of the Nkumssa tribe, which is located in the central region of Ghana. The Nkumssa tribe condemns women who engage in premarital sex and punishes them through FGM. The type of FGM practiced in Ghana "involves the amputation of the whole of the clitoris and all or part of the labia minora."

Abankwah testified that her mother had held the position of Queen Mother within the Nkumssa tribe. The Queen Mother performs a variety of duties, both practical and ceremonial, and is the highest position a Nkumssa woman may hold. Abankwah testified that her mother died in July 1996, and that, as the eldest daughter, she was to become the next Queen Mother. Abankwah testified that although none of the tribal elders had approached her about becoming Queen Mother, her grandmother had informed her that she would be so designated.

Nkumssa tradition requires that the girl or woman next in line for the Queen Mother position must remain a virgin until she is "enstooled." During the ceremony to enstool a new Queen Mother, the designated Queen Mother must cup her hands and hold water in them. According to tribal legend, if the woman has disobeyed tribal taboos including the one against engaging in premarital sex she will be unable to hold the water in her hands, and it will spill onto the ground. Even if the woman successfully holds the water, however, after her enthronement, the village elders select a husband for her who will inevitably discover whether she is a virgin or not. In either case, if the woman is believed not to be a virgin, she will be forced to undergo FGM.

The Nkumssa tribe worships the God Kwasi Nkumssa. As a girl, Abankwah believed in Kwasi Nkumssa and accepted all the associated tribal rituals and traditions. However, she was introduced to Christianity at school and decided to convert. Thereafter, Abankwah disavowed Kwasi Nkumssa and decided not to adhere to the tribe's proscriptions. While she was at school, Abankwah fell in love with a man from her tribe and commenced a sexual relationship with him. When Abankwah learned that she would be the next Queen Mother, she knew that her lack of virginity would be discovered and that FGM would be the consequence.

In an effort to avoid this result, Abankwah fled to the capital city of Accra to live with the family of a friend. After approximately five weeks of working in Accra, Abankwah's employers accused her of stealing money from them and reported her whereabouts to the Nkumssa tribe. Shortly thereafter, members of the Nkumssa tribe came to Accra in search of Abankwah. At this point, Abankwah determined that it was unsafe for her to remain in Ghana. She believed that members of her tribe would continue to search for her since she had "sinned against their God." Abankwah did not believe that anyone in Ghana could protect her from the tribal authorities who would force her to undergo FGM. With the help of friends, Abankwah purchased a falsified Ghanaian passport and United States visa, bought a plane ticket, and fled to the United States.

Abankwah was apprehended at John F. Kennedy Airport upon her arrival in the United States on March 29, 1997, and the INS commenced deportation proceedings against her. Abankwah has been imprisoned for the duration of these proceedings at the Wackenhut Detention Facility where she remains to this day.

Abankwah sought asylum in the United States and withholding of deportation on the grounds that should she return to Ghana, she would be forced to undergo FGM as a consequence of having engaged in premarital sex. Abankwah testified at a hearing before an Immigration Judge on September 9, 1997. On October 1, 1997, Victoria Otumfuor testified in support of Abankwah's asylum application. During the September 9 and October 1, 1997 hearings, the Immigration Judge received into evidence Abankwah's asylum application and her affidavit in support of it, the declaration of Kwabena Danso Otumfuor, and the affidavit of Victoria Otumfuor. The Immigration Judge also admitted into evidence some background materials, submitted by Abankwah, discussing the practice of FGM. These materials include a publication by Rainbo, a health and human rights organization for women, providing factual information on the practice of FGM; two studies analyzing the practice of FGM in Ghana; the Department of State's profile of asylum claims for Ghana, dated August 1996; and a February 1997 Department of State Report on the practice of FGM.

On October 8, 1997, Immigration Judge ("IJ") Donn Livingston denied Abankwah's request for asylum and withholding of deportation. He determined that Abankwah was a credible witness, that she was clearly very fearful of returning to Ghana, and that Abankwah could not escape her tribe within Ghana because tribal members could eventually find her as they did in Accra. However, the IJ concluded that Abankwah had failed to establish that her fear of FGM as punishment for her lack of virginity was objectively reasonable. In this regard, the IJ noted that FGM is practiced mostly in northern Ghana, that the practice of FGM in Ghana is on the decline, that FGM was criminalized in Ghana in 1994, and that Abankwah would be able to seek protection from the Ghanaian government and from non governmental organizations. Moreover, the IJ found that Abankwah failed to demonstrate that she feared any harm that would be imposed on account of a statutorily protected ground, and described Abankwah's situation as a "personal problem" rather than a "matter of general practice imposed upon a particular social group."

Abankwah appealed this decision to the BIA, which dismissed it on a somewhat different basis than that articulated by the IJ. Unlike the IJ, the BIA did not dispute that Abankwah's fear of genital mutilation was on account of her membership in a cognizable social group. Rather, the BIA held that Abankwah had failed to meet her burden of proof in establishing past persecution, and that the "evidence is insufficient to support her claims of persecution based upon her membership in a social group, specifically 'women of the Nkumssa tribe who did not remain virgins until marriage.'" In fact, Abankwah did present sufficient evidence to support her claims and the record compels a finding that Abankwah's fear of persecution is objectively reasonable.

Discussion

A. The Legal Framework

Asylum and temporary withholding of deportation are "closely related and appear to overlap." Zhang v. Slattery, 55 F.3d 732, 737 (2d Cir. 1995) (quoting Carranza Hernandez v. INS, 12 F.3d 4,7 (2d Cir. 1993)). "The burden of proof that an alien must meet to be eligible for asylum is lower than that required of an alien who seeks withholding of deportation." Carranza Hernandez, 12 F.3d at 7; see also INS v. Cardoza Fonseca, 480 U.S. 421, 443 50 (1987); INS v. Stevic, 467 U.S. 407, 428 30 (1984); Saleh v. United States Dep't of Justice, 962 F.2d 234, 240 (2d Cir. 1992); Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991).

Under Section 208(b)(1) of the Act, 8 U.S.C. § 1158(a), an applicant for asylum in the United States must establish that she is a "refugee" within the meaning of Section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1994). See Zhang, 55 F.3d at 737; Dhine v. Slattery, 3 F.3d 613, 618 (2d. Cir. 1993). "Refugee" is defined in relevant part as a person who is unable or unwilling to return to her native country because of a "well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ...." 8 U.S.C. § 1101(a)(42)(A); see also INS v. Elias Zacarias, 502 U.S. 478, 481 (1992). The applicant must prove both that the...