Kourouma v. Holder

• Citation: 588 F.3d 234
• Decision Date: 24 November 2009
• Docket Number: No. 08-1864.,08-1864.
• Parties: Fatoumata KOUROUMA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

588 F.3d 234

Fatoumata KOUROUMA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-1864.

United States Court of Appeals, Fourth Circuit.

Argued: September 22, 2009.

Decided: November 24, 2009.

ARGUED: Kamal M. Nawash, The Nawash Law Office, Washington, D.C., for Petitioner. Theodore Charles Hirt, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Gregory G. Katsas, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit Judges.

Petition for review granted and remand awarded by published opinion. Judge GREGORY wrote the opinion, in which Chief Judge TRAXLER and Judge SHEDD joined.

OPINION

GREGORY, Circuit Judge:

I.

Fatoumata Kourouma, a citizen of Guinea, appeals the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture by the Board of Immigration Appeals ("BIA"). We hold that the BIA's decision denying Kourouma's asylum application on the basis of an adverse credibility finding was not supported by substantial evidence, and that Kourouma has established past persecution in the form of female genital mutilation.

II.

Fatoumata Kourouma is a native and citizen of Guinea who entered the United States on July 7, 2001. At the time of her removal hearing, Kourouma was twenty-six years old. She is of the Malinke Mandingo tribe from the town of Yomou, Guinea. Kourouma attended both primary and secondary school in Yomou and her entire family continues to reside there. At the time of her hearing, Kourouma stated she was working in the United States at a nursing home.

Kourouma testified she decided to come to the United States because, after her marriage to a man her father had given her to, her husband threatened to have her circumcised anew because she had only been partially circumcised before. Kourouma testified that she was circumcised partially, meaning that she had not undergone infibulation, at age seven in 1987.¹ She has only a vague recollection of the procedure where she was taken with a group of girls of similar age to have the circumcision done. She testified that she has some lingering problems from the circumcision. Kourouma's four sisters are also circumcised.

After her husband demanded that she be recircumcised, Kourouma left Yomou in 2001 and fled to Conakry, the capital of Guinea, along with her daughter. There, she lived with a friend of her mother's. Kourouma departed Conakry when she heard that her husband and her father were looking for her. She believes that were she to return to Guinea, her father and husband would sanction her and have her recircumcised.

Kourouma entered the United States via New York JFK airport using the Malian passport of a woman named Diane Mawa. She received the passport from her mother's friend in Conakry.² She was also given an identification card in the name of Diane Mawa, and she presented a copy of it at the hearing as well. That card, unlike the passport, bore her picture not that of Diane. She testified that once she was in the United States, a friend, Mamadou Bobo Sow, picked her up at the airport, a fact reflected in his affidavit presented to the immigration court.

On March 15, 2002, approximately eight months after her arrival, Kourouma applied for asylum in the United States. She testified that she applied and submitted her affidavit with the help of her first attorney by giving him the original version of her statement in French, and then he had it translated to be part of her asylum application. On December 6, 2002, the Department of Justice served Kourouma with a Notice to Appear alleging removability on two counts: being admitted as a non-immigrant and staying in the United States for a longer time than permitted. On July 8, 2002, the Department of Homeland Security referred the case to an immigration judge. On September 2, 2003, the Department of Justice charged Kourouma with two additional counts of removability: being admitted to the United States at an unknown time and unknown place, and remaining in the United States beyond the time authorized. In the course of a series of removal hearings, Kourouma, through counsel, conceded that she was removable under Counts One, Two, and Four but denied Count Three.

Kourouma's first hearing before the immigration judge was on April 22, 2003. After the initial hearing, there was a series of continuances because Kourouma changed counsel. However, at the time of her final evidentiary hearing, Kourouma was pro se, and the immigration judge declined to continue the case in order to allow her to secure representation. In the course of her evidentiary hearing on April 4, 2007, Kourouma presented the facts as described above, along with several exhibits including copies of her entry documents and Mamadou Bobo Sow's affidavit.³ She also introduced a copy of her Guinean passport and her birth certificate to confirm her identity. As background material, Kourouma introduced two country reports on Guinea from the United States State Department which include sections on the prevalence and type of female genital mutilation practiced in Guinea. The State Department's Guinea: Report on Female Genital Mutilation or Female Genital Cutting stated that in 1999, 98.6% of all women living in all of Guinea had experienced some form of circumcision. (J.A. 25.)⁴ To support her testimony regarding her past circumcision, Kourouma presented two doctor's letters to the court. The first, dated May 20, 2002, from Carlos E. Covarrubias, M.D., describes a full physical examination of Kourouma. In it, Dr. Covarrubias, when discussing Kourouma's gynecological exam, stated that she has "scattered linear scarring approximately 0.5-1 cm on upper extremity." (J.A. 28.) At the request of the immigration judge, Kourouma provided another doctor's note to state succinctly whether she had been circumcised or not. To this end, she provided a "Verification of Circumcision" from Oluremi T. Ilupeju, M.D., from an examination on September 7, 2006. (J.A. 27.) Dr. Ilupeju's note stated that he had conducted a gynecological examination on Kourouma and found that she had been circumcised.

During the government's cross-examination, Kourouma was questioned concerning an application for asylum made by another alien which bore strikingly similar language to the affidavit offered by Kourouma to support her application. The wording that appeared identically in both affidavits concerned facts of Kourouma's past circumcision and her fear of returning to Guinea. Kourouma could not explain the similarities in the affidavits beyond stating that she provided her statement to her lawyer in French and he had it translated.

At the conclusion of the hearing, the immigration judge issued her decision, concluding that Kourouma was not credible and denying her application for asylum, withholding of removal, and protection under the Convention Against Torture on the basis of the adverse credibility finding. The judge first found that Kourouma's application for asylum was untimely because she could not determine with sufficient certainty the date when Kourouma entered the country. The judge additionally found that even if considered a timely application, Kourouma had not met her burden to demonstrate eligibility for refugee status because the judge found her to not be credible. The judge was particularly concerned that Kourouma was unable to offer sufficient proof that she was who she claimed to be given that she produced evidence at the hearing which identified her both as Kourouma and as Mawa. The judge chose not to credit the 2003 Guinean passport or birth certificate Kourouma offered as proof of her identity because, in her opinion, they were not sufficiently authenticated or connected specifically to the petitioner. The judge was also concerned with the similarity of Kourouma's affidavit and the previously submitted application, explaining, the "documents speak for themselves." Immigration Judge's Order 14 (J.A. 51). The judge was also concerned with the lack of evidence as to whether Kourouma had been circumcised in the past, the omission of any mention of a fear of future circumcision in her asylum application, and the improbability that if her husband wanted her circumcised again that he would not have done so in the five years they were married and living together. Finally, the judge also found that even if Kourouma had been partially circumcised, that circumcision did not amount to past persecution. Accordingly, the immigration judge denied Kourouma's application.

Kourouma appealed the decision to the BIA. The BIA dismissed her appeal on July 18, 2008, finding Kourouma failed to meet her burden to provide testimony that was believable and sufficiently detailed to provide a coherent, plausible account of her fear of returning to Guinea. In particular, the BIA cited the implausibility of Kourouma's husband not seeking to have her circumcised during their five years of marriage, the lack of any mention of future circumcision in her application for asylum, and the striking similarity between Kourouma's affidavit and that of a prior applicant. The BIA also shared the immigration judge's concern about the lack of corroborating evidence concerning Kourouma's marriage and her date of entry into the United States.⁵ Importantly, however, the BIA did settle the issue of Kourouma's identity when, in summarizing the facts, it stated without qualification that she is a citizen of Guinea. Therefore Kourouma's appeal was dismissed with a renewal of the privilege of voluntary departure. This petition followed.

III.

When the BIA and the immigration judge both issue decisions in a case we review both decisions upon appeal. Camara v. Ashcroft, ...