Oforji v. Ashcroft

• Decision Date: 31 December 2003
• Docket Number: No. 02-3861.,02-3861.
• Citation: 354 F.3d 609
• Parties: Doris C. OFORJI, Petitioner, v. John D. ASHCROFT, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 609

354 F.3d 609

Doris C. OFORJI, Petitioner, v. John D. ASHCROFT, United States Attorney General, Respondent.

No. 02-3861.

United States Court of Appeals, Seventh Circuit.

Argued September 23, 2003.

Decided December 31, 2003.

COPYRIGHT MATERIAL OMITTED

Ralph M. Schelly (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Chicago, IL, Luis E. Perez (argued), Department of Justice, Washington, DC, for Respondent.

Before POSNER, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge.

Doris C. Oforji appeals from an order of the Board of Immigration Appeals (BIA) affirming, without opinion, the decision of the Immigration Judge (IJ) denying her application for asylum and withholding of deportation. Oforji argues on appeal that the BIA erred by failing to appropriately weigh and consider the evidence presented; in failing to extend derivative asylum and relief to Oforji on behalf of her United States citizen children; and in issuing an affirmance without opinion. We affirm.

I.

Oforji is a Nigerian citizen who sought entry into the United States at Chicago on April 4, 1996. The Immigration and Naturalization Service (INS) (now part of the Department of Homeland Security) denied Oforji entry, detained her, and charged her with being an alien seeking to procure entry by fraud or willful misrepresentation, as well as an alien not in possession of a valid immigration document.

Oforji's exclusion proceedings commenced on April 4, 1996. After delays, an initial hearing before an IJ was held on August 28, 1997, wherein Oforji admitted that she was an alien not in possession of a valid immigration document at the time of her entry, but denied the fraud and willful misrepresentation charges. She also requested asylum, withholding of deportation, and protection under the Convention Against Torture.

At the hearing, Oforji testified that she is a member of the Ogoni Tribe of Nigeria and that the Tribe lived without roads, schools, and potable water. She further stated that due to these poor living conditions, the Ogoni Tribe formed the "Movement for the Survival of the Ogoni People" to petition the Nigerian regime of General Sani Abacha for these services. She also claimed that the Abacha regime tortured and arrested, as well as killed members of the Movement, and that she participated in demonstrations against the Abacha administration. She testified that in 1995, the Abacha administration arrested her husband, "Chukwker," at their house for his participation in the Movement. She claims to have fled Nigeria to avoid arrest because she was too "outspoken." However, on cross-examination she admitted that she fled because "the back of the house was, was falling any way." In addition, at the hearing she acknowledged that Abacha has died since she fled, but stated in a conclusory fashion that the government was nevertheless going to persecute her because of "oil." In addition, she claimed without corroboration that the Nigerian government would persecute her because she left the country without a visa and because she was a runaway Ogoni.

Finally, Oforji testified at the hearing that if she returned to Nigeria, her two daughters, citizens born in the United States, would undergo female circumcision or female genital mutilation (hereinafter collectively referred to as "FGM"). Oforji testified that she had undergone the procedure and that the Ogoni people required this of all women, with refusal punishable by death. She also testified that she did not have anyone with whom to leave her children in this country in the event she was deported to Nigeria. She admitted on cross-examination that she did not mention the fear that her then-unborn daughter would undergo FGM when asked by the immigration inspector about her political asylum claim.

After hearing this testimony, the IJ held that the evidence did not establish that she sought to procure entry by fraud or willful misrepresentation, but found that she was inadmissible on the separate ground of lacking a valid entry document. The IJ then denied Oforji's request for asylum relief primarily on the basis of an adverse credibility finding regarding her testimony, and due to the fact that she had already suffered FGM. Oforji filed a timely notice of appeal with the BIA.

Pursuant to statutory streamlining procedures of 8 C.F.R. § 3.1(a)(7)(ii)(A)-(B), the BIA issued a written decision on October 7, 2002, affirming without opinion the IJ's decision. Thus, the IJ's decision became the final agency determination for purposes of judicial review. Oforji filed a timely appeal to this court, arguing that the BIA incorrectly denied her claims and that the BIA's streamlined process was invalid.

II.

A. Application for Asylum and Withholding of Removal

Because the BIA adopted the IJ's decision, we review the IJ's analysis for substantial evidence. Krouchevski v. Ashcroft, 344 F.3d 670, 673 (7th Cir.2003); see generally Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.2003) (explaining why the substantial evidence standard applies to cases in which the INS employs its streamlined procedure). Oforji, as the applicant for asylum, bears the burden of proof to establish asylum eligibility. See 8 C.F.R. § 208.13(a) (2002); Dobrican v INS, 77 F.3d 164, 168 (7th Cir.1996). We reverse in this context only if "no reasonable fact-finder could fail to find" that Oforji had suffered from past persecution or faced future persecution. Georgis v. Ashcroft, 328 F.3d 962, 967-68 (7th Cir. 2003) (citing INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

To be eligible for asylum, Oforji is required to establish "refugee" status, i.e., that she is an alien unwilling or unable to return home "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); Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. She could show this by proving either that she (1) suffered past persecution on account of one of the enumerated categories, creating a rebuttable presumption of future persecution, or (2) has a well-founded fear of future persecution on account of one of the enumerated categories. Yadegar-Sargis v. INS, 297 F.3d 596, 601-02 (7th Cir. 2002); Toptchev v. INS, 295 F.3d 714, 720 (7th Cir.2002).

Although "persecution" is not statutorily defined, we have said that it "means more than plain harassment and may arise from actions such as `detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture.'" Tesfu v. Ashcroft, 322 F.3d 477, 481 (7th Cir.2003) (quoting Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.1995)). Persecution can also include threats of "death, imprisonment, or the infliction of substantial harm or suffering." Sharif v. INS, 87 F.3d 932, 935 (7th Cir.1996).

A well-founded fear of future persecution must be both subjectively genuine and objectively reasonable. Mousa v. INS, 223 F.3d 425, 430 (7th Cir.2000). To establish the objective reasonableness of the fear, the alien must show, based upon credible, direct, and specific evidence, that a reasonable person in the same circumstances would fear persecution if returned to the petitioner's native country. Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir.1999).

We turn first to the IJ's adverse credibility findings which are entitled to "highly deferential review." Mansour v. INS, 230 F.3d 902, 905 (7th Cir.2000); Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002) ("We give great deference to an immigration judge's decisions regarding an alien's credibility."). We require that an adverse credibility finding merely be supported by "specific, cogent reasons" that "bear a legitimate nexus to the finding." Ahmad v. INS, 163 F.3d 457, 461 (citations omitted). Adverse credibility findings are overturned only under "extraordinary circumstances." Pop v. INS, 270 F.3d 527, 531-32 (7th Cir.2001).

Here, the IJ found multiple inconsistencies in Oforji's testimony and these "specific, cogent reasons" "bear a legitimate nexus" to the denial of her claim. As an initial matter, Oforji does not dispute the IJ's finding that she presented no evidence such as a membership card or letter from a party representative corroborating that she was in fact a member of the Movement for the Survival of the Ogoni People. Cf. Abdulrahman v. Ashcroft, 330 F.3d 587, 598-99 (3d Cir.2003) (upholding adverse credibility finding based in part on alien's failure to substantiate his generalized testimony by providing documentation of his membership or involvement in a politically active student union).

At the hearing, Oforji conceded that she told the immigration inspector on the date of her arrival that she was seeking political asylum solely for economic reasons and that she had not been persecuted in Nigeria. This is inconsistent with her testimony at the hearing that she fled because of her political activity and because the Abacha administration had arrested and killed her husband. To this date, Oforji has failed to explain why she told the immigration inspector that she had never been persecuted in Nigeria.

In addition, at the hearing, Oforji testified that she fled because the government had planned to arrest her because she was too "outspoken," but she offered no support for this statement. On cross-examination, consistent with her response to the immigration inspector at the time of her attempted entry to this country, she admitted that she fled the same night of her husband's arrest because the back of her house was falling away. Further, Oforji claimed that the Ogoni Tribe lived in "River State," and suffered from poor roads, schools, and water. However, Oforji acknowledged that her sister also lived in River State, but did not suffer from a lack of water, nor did she have problems with the Abacha...