Haoua v. Gonzales

• Decision Date: 05 January 2007
• Docket Number: No. 05-2181.,05-2181.
• Citation: 472 F.3d 227
• Parties: Mahaman HAOUA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

472 F.3d 227

Mahaman HAOUA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-2181.

United States Court of Appeals, Fourth Circuit.

Argued: October 25, 2006.

Decided: January 5, 2007.

ARGUED: Kell Enow, Silver Spring, Maryland, for Petitioner. Daniel Eric Goldman, United States Department of Justice, Office of Immigration Litigation Washington, D.C., for Respondent. ON BRIEF: Patrick G. Tzeuton, Law Offices of Patrick Tzeuton & Associates, Silver Spring, Maryland, for Petitioner. Chuck Rosenberg, United States Attorney, Mark A. Exley, Assistant United States Attorney, Norfolk, Virginia, for Respondent.

Before KING, GREGORY, and SHEDD, Circuit Judges.

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

OPINION

KING, Circuit Judge:

Haoua Mahaman has petitioned for our review of the Order of the Board of Immigration Appeals (the "BIA"), issued September 26, 2005, that she be removed to Niger, her country of origin (the "BIA Order"). See BIA Order 1 (J.A. 3).¹ Mahaman contends that there was a lack of substantial evidence to support the finding of the Immigration Judge (the "IJ") that she had only a 10% chance of undergoing female genital mutilation ("FGM") if she returned to Niger.² She maintains that the IJ therefore erred, in his Order of June 1, 2004 (the "IJ Order"), in denying her applications for asylum under 8 U.S.C. § 1158(b), withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against Torture (the "CAT"). See IJ Order 9-11 (J.A. 16-18).³ As explained below, we grant Mahaman's petition for review in part and remand.

I.

A.

Mahaman is a forty-year-old native and citizen of Niger. She first entered the United States on September 12, 1999, on the basis of a student visa.⁴ She had previously received a degree from the University of Niamey in Niger, and planned to continue her education in the United States. Between 1999 and 2002, Mahaman resided in Riverside, California, and Burlington, North Carolina. During that period, she studied English and computer technology, and worked as a lab technician.

In 2002, Mahaman came under pressure from her parents in Niger to return home and marry. In August 2002, she made a trip to Niger, hoping to dissuade her parents from their position in that regard. When she arrived at her parents' home, she discovered that they had already arranged for her to marry the elderly chieftain of a nearby village, and that, in keeping with the custom of the Hausa — the ethnic group of which she is a member — she would be forced to undergo FGM before marrying the chieftain.⁵ Mahaman concluded that she could not deter her family from enforcing the marriage agreement and subjecting her to FGM, and she returned to the United States after only three weeks in Niger. An uncle who lives in Niamey, the Nigerien capital, assisted Mahaman in her departure.

In February 2003, Mahaman, who was then in the United States, received a letter from her brother, who lived in Niger, informing her that, in her absence, her family had accepted a large dowry as consideration for their promise that she would marry the chieftain, and that a wedding ceremony had been conducted in her absence. Her brother's letter advised Mahaman that she was to undergo FGM before joining her husband's household, and that her husband was growing impatient for her arrival. Mahaman responded that she would not return to Niger under those circumstances. Her brother insisted, however, that she was already married to the chieftain — whether she liked it or not — and that, because her family had accepted so much money in exchange for her, they were not in a position to renege.

According to Mahaman, the communications with her brother convinced her that she could not safely return to Niger. The student visa on which she had originally entered the United States, however, was no longer valid, and she was consequently subject to removal to her home country. Thus, on August 18, 2003, she applied to the United States Citizenship and Immigration Services for asylum, withholding of removal, and relief under the CAT, asserting that she feared persecution and torture — in the form of FGM — if she returned to Niger.

B.

On June 1, 2004, the IJ conducted a hearing on Mahaman's application. The primary evidence presented at the hearing was Mahaman's testimony, which the IJ found to be credible. Mahaman testified that her family would force her to undergo FGM if she returned to Niger. As additional support for this contention, she submitted the State Department's Country Report on Human Rights Practices in Niger, dated February 25, 2004, which indicated that approximately one in five Nigerien women is forced to undergo FGM, and that the practice persists among certain ethnic groups despite a new law criminalizing it. Mahaman testified that her ethnic group continues to practice FGM, requiring the procedure to be performed before a woman is married. She also testified that the Nigerien government's efforts to suppress FGM have been ineffective in the rural areas of the country, including the region in which her family resides. Despite this evidence, the IJ found that Mahaman had only "at least a 10 percent chance" of suffering FGM if she returned to her family in Niger. IJ Order 9 (J.A 16). The IJ failed to explain, however, how he had identified "at least" 10% as the likelihood that Mahaman would be subjected to FGM.

The IJ also considered the possibility that Mahaman could avoid persecution by relocating within Niger. He found that internal relocation within Niger was a feasible alternative for Mahaman, given her level of education and the support she had received from her uncle in Niamey. Then, having determined that relocation was feasible, the IJ assessed whether the protection Mahaman could obtain by relocating was sufficient to overcome her risk of suffering FGM if she did not relocate. At this stage of his analysis, the IJ regarded Mahaman's risk of suffering FGM as simply 10% (the "10% finding"), rather than his earlier finding of "at least" 10%. The IJ concluded that Mahaman's "reasonably available internal relocation alternative overcomes the 10 percent fear of FGM at the hands of her family," and on that basis denied her application for asylum. IJ Order 9-10 (J.A. 16-17).

The IJ also denied Mahaman's application for withholding of removal, explaining that, "[a]s stated earlier, I find that under all of the circumstances it is highly unlikely that the respondent will suffer FGM in Niger, particularly since she can reasonably relocate to avoid it." IJ Order 10 (J.A. 17). Finally, the IJ denied Mahaman's application for relief under the CAT, repeating his finding that she was unlikely to suffer FGM, and adding that, if she did, it would occur without the acquiescence of the Nigerien government. Id. at 10-11 (J.A. 16-17).

On September 26, 2005, the BIA affirmed the IJ Order without opinion. See BIA Order 1 (J.A. 3). Mahaman has petitioned for our review of the BIA Order, and we possess jurisdiction pursuant to 8 U.S.C. § 1252.

II.

A BIA decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law. 8 U.S.C. § 1252(b)(4)(C). We review the BIA's administrative findings of fact under the substantial evidence rule, and we are obliged to treat them as conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Because the BIA Order affirmed the IJ Order without opinion, and specified that the IJ Order constitutes the final agency determination in this matter, we treat the reasoning of the IJ Order as that of the BIA for purposes of our review. See 8 C.F.R. § 1003.1(e)(4); Camara v. Ashcroft, 378 F.3d 361, 366 (4th Cir.2004).

III.

A.

The legal framework for this appeal is established by the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (the "Act"), and the regulations implementing it. An alien is eligible for asylum if she demonstrates that she is unable or unwilling to return to her country of origin because of persecution, or a well-founded fear of persecution, on account of her race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Asylum is not available, however, if the alien can avoid persecution by relocating within her country of origin. 8 C.F.R. § 1208.13(b)(2)(ii). We have heretofore recognized that "FGM constitutes persecution within the meaning of the [Act]," and the Attorney General does not contend otherwise in this proceeding. Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir.2006) (citing Mohammed v. Gonzales, 400 F.3d 785, 796 (9th Cir.2005) ("[T]he extremely painful, physically invasive, psychologically damaging and permanently disfiguring process of genital mutilation undoubtedly rises to the level of persecution."); Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.2004) ("Forced female genital mutilation involves the infliction of grave harm constituting persecution on account of membership in a particular social group that can form the basis of a successful claim for asylum."); Abankwah v. INS, 185 F.3d 18, 23 (2d Cir.1999) ("That FGM involves the infliction of grave harm constituting persecution . . . is not disputed here.")); see also In re Kasinga, 21 I. & N. Dec. 357, 365, 1996 WL 379826 (B.I.A. June 13, 1996) (concluding that FGM constitutes persecution within meaning of Act).

Withholding of removal under 8 U.S.C. § 1231(b)(3) is available to an alien who shows that it is more likely than not that her life or freedom would be threatened in the proposed country of removal because of her race, religion, nationality,...