Uanreroro v. Gonzales

• Decision Date: 06 April 2006
• Docket Number: No. 04-9537.,04-9537.
• Citation: 443 F.3d 1197
• Parties: Omon UANRERORO, Petitioner, v. Alberto R. GONZALES, Respondent.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Tenth Circuit

443 F.3d 1197

Omon UANRERORO, Petitioner, v. Alberto R. GONZALES, Respondent.^*

No. 04-9537.

United States Court of Appeals, Tenth Circuit.

April 6, 2006.

COPYRIGHT MATERIAL OMITTED

Patrick C. Hyde, Patrick C. Hyde, P.C., Denver, CO, for Petitioner.

James E. Grimes (Anthony W. Norwood, Senior Litigation Counsel, Virginia Lum, Attorney, Peter D. Keisler, Assistant Attorney General, and Terri J. Scadron, Assistant Director, with him on the briefs), United States Department of Justice, Office of Immigration Litigation, Washington, District of Columbia, for Respondent.

Before HENRY, McKAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Petitioner Omon Uanreroro is a native and citizen of Nigeria who presently lives in Littleton, Colorado. She sought asylum in the United States claiming that she faces the prospect of female genital mutilation if she is returned to her native country. She challenges the Board of Immigration Appeals' decision affirming the Immigration Judge's finding that she did not present sufficiently credible claims for (1) asylum, (2) withholding of removal under the Immigration and Nationality Act (INA), and (3) withholding of removal under the United Nations Convention Against Torture.¹ We agree with Uanreroro that the agency decision was not based upon substantial evidence. Having jurisdiction under 8 U.S.C. § 1252(a), we REVERSE the agency's decision and REMAND for further proceedings consistent with this opinion.

I. Background

Omon Uanreroro, through her asylum application and testimony before the immigration judge, alleges the following facts: Uanreroro fled her homeland to escape the local tribal practice of female genital mutilation (FGM). She came from a tribe that inhabited a village called Uzebba, located in Edo State in southwest Nigeria. She described the practice of "female circumcision" as a ritual performed to "initiate young women into adulthood" prior to marriage. R. at 342. The ceremony required an oath of virginity. If a woman about to be circumcised was discovered or believed to be unchaste, she would be publicly humiliated and tormented. She would be marched naked throughout the town, while the inhabitants would gather and chant songs of infidelity. The woman would then be stoned and cane-whipped. Finally, she would be ostracized and sent into what the tribe called an "evil forest" for twenty-one days of "spiritual cleansing." R. at 347. In many cases, the woman would never return alive. [Id.]

Some time in the year 2000, Uanreroro was scheduled to be circumcised along with the other women of her age group in order to become eligible for marriage. Her father warned her that she must be a virgin to take part in the ritual or else she would be killed. Before the arranged ceremony, Uanreroro confided in her mother that she was not a virgin, and her mother helped her to escape from the village with some local traders. After fleeing to the state of Kano, Uanreroro was taken in by a seemingly sympathetic police sergeant, but he abused her physically and sexually, and eventually turned her over to the authorities of her home village.

Upon her return, Uanreroro was punished for her attempt to escape. First, she was beaten and locked in a dark room for two days. Next, the chief priest took her to the "evil forest," where he tied her to a tree, cut her body and inserted a black powder in the wounds. He also forced her to drink blood. She was then left in the forest for three days without food or water. When the chief priest arrived at the end of the three-day period, he told Uanreroro that she must wait until the full moon for the final (and most dangerous) stage of the ritualistic cleansing. This stage would begin with a ceremony that required killing a seven-day-old baby and bathing Uanreroro with the baby's blood. Then Uanreroro would be left in the "evil forest" for the traditional twenty-one-day cleansing period.

Before the full moon arrived, Uanreroro learned that her father, who was a tribal chief, had arranged for her to marry the chief priest so that, if she survived the cleansing period, she was to be circumcised in preparation for that marriage. In response, Uanreroro's mother crafted a second plan of escape — this time borrowing money so she could pay to obtain a visa for Uanreroro and have her taken to Europe. While the details of her travel are not clear, the record indicates Uanreroro arrived in France on September 25, 2000, where she stayed for two weeks until her money supply was depleted. She then contacted a family friend in Rotterdam, Holland. He opened his home to her, and she lived with his family for eight months. At this point, she was confronted by a group of native Nigerians who learned of her attempt to evade the circumcision ritual and threatened to return her to her home village.

Because of this, Uanreroro fled to the United States. She entered the country on July 12, 2001, with a man who allowed her to use his wife's British passport. When the immigration inspector denied her admission, Uanreroro applied for asylum and related forms of relief from removal.

II. Procedural History

Uanreroro has consistently argued that she is entitled to relief from removal for the following reasons as set forth in her asylum application:

Due to my refusal to take part in the female circumcization [sic] and my refusal to marry one of the chief priest [sic] in my village, and based on the fact that I ran away, I will be seriously beaten, defamed and will be killed while my body will be offered as sacrifice/rituals in the evil forest in Uzebba my village.

R. at 344.

In support of her claim, Uanreroro submitted various documents to the presiding immigration judge (IJ), including letters from family and friends, an affidavit sworn to by her mother, and a letter that purported to be from a chief of her village demanding her return. All of these documents addressed the circumstances surrounding her escape from Nigeria and the reasons for it. Additionally, she submitted a medical report from her doctor in the United States, which noted "several black marks on the anterior and posterior chest wall" and "several scars of unknown age" on Uanreroro's hands, arms and legs. R. at 286.

The IJ found this evidence to be of limited usefulness as corroboration of her claims. The IJ concluded that the letters written by friends and family, which were dated after Uanreroro left Nigeria, were "obviously composed in contemplation of the application for asylum" as opposed to contemporaneous evidence of the circumstances in her home country. See IJ Dec., Dec. 9, 2002, at 3. As for the letter allegedly written by a chief from her village, it was typewritten, and the IJ found that it bore "no indicia of authenticity" recognizable by the immigration court. Id. The IJ did not specifically address the medical report in its decision.

Without this corroborating evidence, the IJ acknowledged that Uanreroro's claim would "stand or fall" on her credibility. Id. The IJ determined that Uanreroro did not present credible claims for relief and announced an oral decision listing five reasons for its conclusion: (1) the testimony of Uanreroro and her mother appeared inconsistent with regard to her marital status; (2) Department of State's FGM papers conflicted with her testimony concerning the practice in her home state; (3) Department of State's country report indicated laws banning FGM; (4) the record was ambiguous as to Uanreroro's place of birth; and (5) Uanreroro knowingly made false statements to the immigration inspector upon her arrival in the United States. See IJ Dec. at 3-9.

Uanreroro sought review of this decision by the Board of Immigration Appeals (BIA), which affirmed the IJ decision in a one-page order reiterating only the first two reasons listed above (inconsistency concerning her marital status and conflict with the Department of State papers regarding FGM practices). See BIA Dec., Mar. 19, 2004, at 1.

III. Discussion

On appeal to this court, Uanreroro alleges the IJ's findings were not based upon substantial evidence and that the BIA erred by relying on them. Below is an assessment of the agency adjudication of her claims for asylum and withholding of removal.

A. Statutory and Regulatory Framework

"To obtain asylum, petitioners must prove that they are refugees as defined in 8 U.S.C. § 1101(a)(42)(A), and then persuade the Attorney General to exercise his discretion to grant relief under 8 U.S.C. § 1158(b)." Batalova v. Ashcroft, 355 F.3d 1246, 1254 (10th Cir.2004). Applicants are refugees if they can demonstrate they are unwilling or unable to return to their country because of past persecution or a "well-founded fear" of future persecution, which is "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.SC. § 1101(a)(42)(A).

Uanreroro attempts to show she is a refugee by presenting evidence that (1) she subjectively fears persecution, (2) the persecution is on the basis of a protected status, and (3) her fear is objectively reasonable. As to the first two elements, Uanreroro alleges fear of forced FGM as well as severe punishment (or even death) for attempting to evade the mutilation ritual. In Niang v. Gonzales, 422 F.3d 1187 (10th Cir.2005), we held that FGM qualifies as persecution based upon membership in a particular social group: "a female member of a tribe that subject[s] its females to FGM establish[es] . . . persecution on account of being a member of a social group defined by her gender and tribal membership." Id. at 1201.

To meet the third element, however, Uanreroro must demonstrate a reasonable possibility of being persecuted. INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). "[S]o long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution...