Oyekunle, Beatrice v. Gonzales, Alberto ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4239
BEATRICE MOTUNRAYO OYEKUNLE,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A 96-421-228
____________
ARGUED JULY 11, 2007—DECIDED AUGUST 22, 2007
____________
Before POSNER, COFFEY, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The petitioner sought asylum on
the ground that if she is returned to her native Nigeria
she may be forced to undergo female circumcision. If her
fear is well founded she is entitled to asylum, but the
Board of Immigration Appeals ruled that it is not well
founded.
She testified (and—critically—the Board did not question
the accuracy of her testimony, holding only that it did not
demonstrate an objective, as distinct from her subjective,
2 No. 06-4239
fear of persecution) that after her second child (and first
son) was born, her husband’s family pressured her to be
circumcised because it is traditional in his tribe for a
woman to be circumcised upon the birth of her first son.
The petitioner was afraid that the procedure would kill
her, because she had experienced excessive bleeding
during childbirth and her older sister had died after being
circumcised. She was able to resist the pressure from her
husband’s family for ten years because he refused to yield
to its pressure, but he changed his mind when his father
told him he would not inherit the family farm unless she
was circumcised. So she fled Nigeria. She could if returned
to Nigeria avoid circumcision by divorcing her husband,
but she does not want to do that as she still loves him and
does not want her children (who remain in Nigeria with
their father) to be raised in a broken home. There is an
element of paradox in this since as long as she is in the
United States and her husband and the children are in
Nigeria the children’s home is in a sense broken; but the
Board did not remark the point. She and her husband
speak frequently by telephone and he has apologized to
her for seeking to have her circumcised.
The Board first noted that a State Department country
report says that the Nigerian state in which the petitioner’s
father-in-law lives (Edo) (the petitioner came from Lagos,
which is where her husband lives) has outlawed female
circumcision—but it adds that Nigerians continue the
practice. The Board remarked that the country report does
not support the petitioner’s claim of a well-founded fear
of persecution, but what the Board should have said was
that the report has little if any bearing on the case. Dong v.
Gonzales, 421 F.3d 573 (7th Cir. 2005) (“an IJ should not rely
on generalized Profiles or Country Reports to refute an
No. 06-4239 3
applicant’s personal experience”); Chen v. INS, 359 F.3d
121, 130 (2d Cir. 2004); cf. Agbor v. Gonzales, 487 F.3d
499, 503-04 (7th Cir. 2007); Kllokoqi v. Gonzales, 439 F.3d
336, 342-43 (7th Cir. 2005); compare Xiao Xing Ni v. Gonza-
les, No. 04-0042-AG, 2007 WL 2012395, at *2 (2d Cir. July 12,
2007). The Board did not reject the petitioner’s testimony
that her father-in-law and her husband’s other relatives
want her circumcised, and there is no indication of any
actual threat of punishment that might serve to deter the
practice or that her father-in-law wants her to be circum-
cised in Edo rather than in a part of Nigeria in which the
practice has not been criminalized.
The Board quoted from a letter from a lawyer in Nigeria
advising the petitioner to stay “whenever [sic—he must
have meant ‘wherever’] she is for sometime[ ], at least for
the whole thing to cool down before coming [back] to
Nigeria.” Noting that the letter had been written almost
three years earlier, the Board speculated that after so long
a period maybe things have cooled down. Maybe yes,
maybe no; there is no evidence that the former is more
probable. The Board added that “the husband’s repentance
is also significant, in that the [petitioner] testified that he
was the person who protected her from being circumcised
by his relatives throughout their marriage.” But while he
has apologized to the petitioner, there is no indication that
he has resumed protecting her. He may want the farm
badly enough to allow her to be subjected to the procedure.
The Board did not suggest that asylum can be denied on
the ground that the petitioner could avoid being perse-
cuted by divorcing her husband, or by relocating to another
part of Nigeria, beyond the reach of his family, which
would probably amount to the same thing—that is, entail
her divorcing him. We cannot find any published opinion
4 No. 06-4239
addressing the question whether the option of divorce is
a ground for concluding that an asylum seeker does not
have a well-founded fear of persecution if she is returned
to her native country. The possibility of concealing one’s
religious beliefs does not disentitle a person to asylum on
the basis of fear of religious persecution, Muhur v. Ashcroft,
355 F.3d 958, 960-61 (7th Cir. 2004); see also Iao v. Gonzales,
400 F.3d 530, 532 (7th Cir. 2005); Zhang v. Ashcroft, 388
F.3d 713, 719-20 (9th Cir. 2004) (per curiam), and that
proposition is at least suggestive of limitations on the self-
help remedies that can reasonably be required of the
asylum seeker. Giday v. Gonzales, 434 F.3d 543, 555 (7th Cir.
2006), holds that bribery is not among them. Whether
dissolving a marriage is among them is an issue for the
Board to resolve in the first instance, and neither in this
nor in any other case that we have found has the Board
discussed it.
All the Board relied on in this case in ruling that the
petitioner’s fear of persecution should she be returned to
Nigeria lacked an “objective basis” was the country report,
the lawyer’s letter, and the husband’s apology. None of
these things is inconsistent with her fear being well
founded. Liu v. Ashcroft, 380 F.3d 307, 312-13 (7th Cir. 2004);
Ahmed v. Ashcroft, 348 F.3d 611, 618 (7th Cir. 2003). If the
reference to “objective basis” means that the Board thinks
an asylum seeker’s testimony is insufficient to create a
well-founded fear of persecution, it is mistaken. 8 C.F.R.
§ 1208.13(a); Capric v. Ashcroft, 355 F.3d 1075, 1085-86 (7th
Cir. 2005). Requiring that an “objective basis” be shown
for a “well-founded fear” is redundant; a well-founded,
as distinct from a groundless, fear has by definition an
objective basis. The Board should resist the urge to multi-
ply entities.
No. 06-4239 5
There is a circuit split, however, on which this court has
not taken sides, id. at 1086 n. 4; Gontcharova v. Ashcroft,
384 F.3d 873, 876-77 (7th Cir. 2004), on the related ques-
tion of the validity of the Board’s “corroboration rule.” In
re S-M-J-, 21 I. & N. Dec. 722, 725, 1997 WL 80984 (BIA
1997). That rule empowers the immigration judge to
require that credible testimony of the asylum seeker be
corroborated in circumstances in which one would expect
corroborating evidence to be available and presented in the
immigration hearing. Compare Dorosh v. Ashcroft, 398 F.3d
379, 382-83 (6th Cir. 2004); Kayembe v. Ashcroft, 334 F.3d 231,
238 (3d Cir. 2003), and Liao v. Department of Justice, 293 F.3d
61, 71 (2d Cir. 2002), all of which apply the rule, though
only Dorosh actually considers its validity, mistakenly
stating that Kayembe and Liao had “expressly approv[ed]”
it, 398 F.3d at 382, with Ladha v. INS, 215 F.3d 889, 898-901
(9th Cir. 2000), holding the rule invalid. The Ninth Circuit
noted the oddity of requiring corroboration of testimony
that the immigration judge has already decided to credit. Id.
at 900 n. 11. We have also expressed skepticism about the
rule. Dawoud v. Gonzales, 424 F.3d 608, 612-14 (7th Cir.
2005).
For aliens who applied for asylum after May 11, 2005 (see
Pub. L. No. 109-13, § 101(h)(2)), the rule has been super-
seded by a statute (part of the Real ID Act) that, however,
in effect codifies the rule by providing that “where the
trier of fact determines that the applicant should provide
evidence that corroborates otherwise credible testimony,
such evidence must be provided unless the applicant does
not have the evidence and cannot reasonably obtain the
evidence.” U.S.C. § 1158(b)(1)(B)(ii); see Dawoud v. Gonzales,
supra, 424 F.3d at 613. The petitioner applied for asylum
earlier than that, so the statute doesn’t apply to her. But
6 No. 06-4239
neither for that matter is the Board’s corroboration rule of
unsettled validity applicable. The petitioner’s testimony
was corroborated by an affidavit from her doctor in
Nigeria attesting to her excessive bleeding following
childbirth, an affidavit from her pastor in Nigeria verify-
ing that her husband’s family sought to have her circum-
cised, and a letter from her father’s pastor supporting her
statement that her sister had died following circumcision
and stating that church leaders have been unable to
dissuade the family of the petitioner’s husband from
seeking to have her circumcised.
The Board’s decision fails to build a bridge between the
evidence and the conclusion that the petitioner lacks a
well-founded fear of persecution if she is returned to
Nigeria. All the evidence to which the Board referred
either supports or is consistent with her having such a
fear. The petition for review is therefore granted, the
Board’s order vacated, and the matter returned to the
Board for further proceedings consistent with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-22-07