Balogun v. Ashcroft
| Decision Date | 01 July 2004 |
| Docket Number | No. 02-4248.,02-4248. |
| Citation | 374 F.3d 492 |
| Parties | Yetunde BALOGUN, Petitioner, v. John D. ASHCROFT, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Godfrey Y. Muwonge (Argued), Milwaukee, WI, for Petitioner.
George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, James E. Grimes (Argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before RIPPLE, MANION and DIANE P. WOOD, Circuit Judges.
In December of 1999, Yetunde Balogun attempted to enter the United States without a valid entry document or labor certification and was placed in custody of the Immigration and Naturalization Service ("Agency").1 Ms. Balogun subsequently conceded her removability but sought asylum under § 208(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158(a), withholding of removal under § 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and withholding of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"), as implemented in 8 C.F.R. § 208.16(c). On June 20, 2001, an immigration judge ("IJ") denied her requests and ordered that she be removed; the Board of Immigration Appeals ("BIA") affirmed without opinion on December 6, 2002. This petition followed. For the reasons set forth in the following opinion, we deny the petition for review and affirm the decision of the BIA.
A. Facts
Ms. Balogun was born in 1972 in Nigeria and is currently a citizen of Nigeria. She is from the Yoruba tribe, "a State called Ogun, with a hometown of Osheilli." A.R. 334. After high school, she attended Ogun State University for five or six years and received a degree in accounting. From 1996 or 1997 to 1999, Ms. Balogun lived in Lagos2 with her parents, three brothers and one sister and worked as an accountant. In either March or April of 1999, she was married in Lagos to "Obu Kaloko," who is from the state of Delta and has a Urgghob tribal affiliation. Id. at 96.
According to an affidavit Ms. Balogun placed in the record, "about two weeks" after she got married, her parents sent for her because they had "visitors from the village wanting to know when [she] would be performing the `rites of womanhood,'" commonly known as circumcision or female genital mutilation ("FGM"). Id. at 334. Ms. Balogun had "heard stories of this happening" but had "never discussed such a topic" with her family. Id. She did not believe that her father agreed with this practice, but "he did not want to go against the words and authority of his tribesmen." Id. at 334-35.
Ms. Balogun's "nightmare began thereafter." Id. at 335. She was "constantly being harassed and intimidated" by tribal members. Id. She explained:
I felt sad and depressed, I had constant migraine and panic attacks just thinking of the whole process.... I would get back from work and find three to four people waiting for me and telling me that I was being stubborn and this was something I was eventually going to have to do. It got to the point that I had to stop going to work. I would lock myself inside the house and refuse to answer bells or knocks at night. I had to switch off all lights, so it would seem like no one was home.
Id. When it got to the point where she "just couldn't handle it," she and her husband went to his home state of Delta. Id. at 100. They only stayed there for "two or three" weeks due to civil unrest in the area; they then returned to Lagos. Id. at 101.
In May of 1999, Ms. Balogun and her husband went to visit her brother in Columbus, Ohio. When they returned to Lagos, Ms. Balogun's mother informed her that "they were still looking for" her and "pressuring" her to undergo FGM. Id. She and her husband then went to London for "two or three" weeks and from there came to the United States in September of 1999. Id. At this time, they lived with her brother in Ohio. In November, she began working in a shoe shop as a sales representative or cashier. In early December of 1999, she went to London to visit her parents. She explained: "I just ... had to talk to my dad and explain to him about the whole thing ... just for him to be on my side and tell him I didn't have to" under go FGM, but Id. at 103-04. Ms. Balogun claimed that, up until this point, she thought her parents would tell the tribal elders she did not have to go through it. However, Ms. Balogun explained, after this trip to London, she decided that she could not go back to Nigeria.
On December 12, 1999, Ms. Balogun attempted to return from London to the United States, but she was stopped for an immigration inspection at Chicago's O'Hare International Airport and found to be without a valid entry document or labor certification. At her airport interview, Ms. Balogun explained that she was married, but she falsely stated that she thought her husband was in Nigeria but was not sure because they did not talk. Id. at 345. She also had a picture of her husband, id. at 125, which she told the immigration official was her "boyfriend," id. at 347. Ms. Balogun later explained that she told these lies because "I was just picked up from the airport, and I was scared that they were going to pick him up too." Id. at 124.
Ms. Balogun also told the immigration official that she had come to the United States on two previous occasions. She falsely claimed that the purpose of a previous trip was to "buy [] things to sell" in her country, and that she had come back to the United States to "buy some more things and sell." Id. at 345-46. Ms. Balogun later explained that "I didn't want to tell them I was working because ... I was scared ... because I knew I wasn't supposed to be working." Id. at 105. Ms. Balogun was asked the following at the end of her interview:
Q. Do you have any fear or concern about being returned to your home country or being removed from the United States?
A. I don't know, Maybe[.]
Q. Would you be harmed if you are returned to your home country or country of last residence?
At some point, Ms. Balogun told the immigration officials that she had a fear of going back to Nigeria. A "Form I-275" dated December 13, 1999, notes: "About the time the subject had to be taken to her flight to depart the United States, she claimed she had fear to go back to her home country." Id. at 350. Ms. Balogun was then transported to Paige County Jail. There, she met with her attorney, who then accompanied her to her "credible fear" or "well-founded fear" interview. Id. at 126-27. At this interview, she told immigration officials that she could not return to Nigeria because she would be forced to undergo FGM. Id. at 106.
At her merits hearing, Ms. Balogun explained that she knew she would have to undergo FGM if she returned because her mother told her "they're still harassing them [her parents] and asking why I haven't come back and what my dad is doing about it." Id. She explained that it was her father's family who sought to have her undergo FGM. Specifically, she linked the FGM practice which was being forced upon her to the elders from her village, Osielle, which is in Ogun State. See id. at 111 (); id. at 113-14 (). She further explained that, although she lived in Lagos and visited Osielle infrequently, the elders could and would come to Lagos, which was about an hour and a half away, on a regular basis. Id. at 114.
Ms. Balogun submitted into evidence a March 2001 hand-written letter to her from her mother at the merits hearing. Id. at 272. This letter stated: "The elders keep asking when you are coming back to perform the traditional rites." Id. The letter asked Ms. Balogun not to blame her father for not preventing the elders from forcing her to undergo FGM because it is "his tradition, his mother and sisters went through it and the [sic] expect his daughters to do the same." Id. The letter concludes by "Mum" explaining that she supported Ms. Balogun and encouraged her to "stay away for as long as possible." Id. Ms. Balogun testified that she was unsure if her mother had undergone FGM. Id. at 110. She also testified to her belief that her sister, who was eighteen at the time of the hearing, had not undergone FGM. Id. at 56.
Ms. Balogun also entered into evidence a number of documents regarding the prevalence of FGM in Nigeria. The 1997 Department of State Position Paper or Bulletin on FGM notes that different studies place the rate of FGM from sixty to ninety percent but that "anecdotal evidence suggests" that the current rate is "probably under" fifty percent "and gradually decreasing." Id. at 153. This Paper specifically confirms that the Yoruba tribe practices FGM. Id. at 154. It notes that there is "little active government support for the national campaign against FGM, [but] governmental officials have voiced their support for the movement." Id. at 155. The 2000 Department of State Country Report on Human Rights notes two studies which identify the incidence of FGM at approximately fifty and sixty percent, respectively. Id. at 255. The Report states that the country has Id. at 254-55. It explains that some states, including Ogun, have banned FGM, but "the punishments imposed are minimal." Id. at 255. The Report also notes that the press repeatedly criticize the practice and "most observers agree that the number of females who are currently subjected to FGM is declining."4 Id.
The first Notice to Appear which was issued to Ms. Balogun was stricken by the IJ because it contained numerous errors.5 The amended Notice...
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