Oforji, Doris C. v. Ashcroft, John

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3861
DORIS C. OFORJI,
Petitioner,
v.
JOHN D. ASHCROFT, United States Attorney General,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A74 548 487
____________
ARGUED SEPTEMBER 23, 2003—DECIDED DECEMBER 31, 2003
____________
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.
2 No. 02-3861
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
No. 02-3861 3
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 determina-
tion 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.
4 No. 02-3861
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
(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, mem-
bership in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A); Elias-Zacarias, 502 U.S. at 481. 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, interroga-
tion, prosecution, imprisonment, illegal searches, confisca-
No. 02-3861 5
tion 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. United States, 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 immigra-
tion 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 legiti-
mate nexus to the finding.” Ahmad v. INS, 163 F.3d 457, 461
(citations omitted). Adverse credibility findings are over-
turned 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-
6 No. 02-3861
99 (3d Cir. 2003) (upholding adverse credibility finding
based in part on alien’s failure to substantiate his general-
ized testimony by providing documentation of his member-
ship or involvement in a politically active student union).
At the hearing, Oforji conceded that she told the immigra-
tion 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 administration. Similarly, Oforji also claimed that
the Abacha government was persecuting her because of
“oil” but failed to offer any facts supporting this conclusion,
other than her assertion that she “knew it to be true.”
Importantly, despite claiming that she fled because of pers-
ecution from the Abacha administration, she conceded that
Abacha was no longer in power in Nigeria due to his death.
No. 02-3861 7
Contrary to Oforji’s contention, it was her responsibility
to ensure that the inspecting immigration authorities had
knowledge of her main reasons for seeking asylum in the
U.S. See, e.g., Roman v. INS, 233 F.3d 1027, 1034 (7th Cir.
2000) (placing burden on asylum applicant to prove elig-
ibility for asylum by proffering sufficient evidence to
support her claim). Moreover, in an attempt to bolster the
asylum claim, the addition of new factual assertions that
were not originally set forth can be viewed as inconsisten-
cies providing substantial evidence that the applicant is not
a reliable and truthful witness. See Malek v. INS, 198 F.3d
1016, 1020-21 (7th Cir. 2000) (citing “a number of clear in-
consistencies” between applicant’s application and testi-
mony). Oforji’s claim that her statements were made under
great stress and without the benefit of counsel not only
implies an acknowledgment that her statements were not
accurate, but also incorporates protections not required in
immigration inspection questioning.
The above inconsistencies and gaps in Oforji’s claim
establish substantial reasons for the IJ to question her cred-
ibility and deny her claim for asylum and withholding of
1
deportation. See Khano v. INS, 999 F.2d 1203, 1208 (7th Cir.
1993).
1
Oforji’s request for asylum in this context is automatically
considered to include a request for withholding of deportation.
8 C.F.R. § 208.3(b); INS v. Stevic, 467 U.S. 407, 420 n.13 (1984). As
the standard of proof for withholding of deportation is higher
than that needed to establish eligibility for asylum, the failure to
sustain the burden of proof for asylum necessarily precludes
eligibility for withholding of deportation. See Bradvica v. INS, 128
F.3d 1009, 1014 (7th Cir. 1997).
8 No. 02-3861
B. Oforji’s Claim for Derivative Asylum Under the
Convention Against Torture
We turn next to Oforji’s argument that her United States
citizen daughters are likely to suffer FGM in Nigeria
if Oforji is deported. Oforji bases this claim of “deriva-
tive asylum” or “constructive deportation” (hereinafter used
interchangeably) on the United Nations Convention Against
Torture as made judicially enforceable through 8 C.F.R.
§§ 208.16(c) and 208.18(b)(2). See Castellano-Chacon v. INS,
341 F.3d 533, 551 (6th Cir. 2003) (explaining briefly the
process by which the non-self executing provisions of the
Convention Against Torture became judicially enforceable).
The conditions under which an alien may be found
eligible for the withholding of removal as a result of the
probability of being subjected to torture in the country of
removal are set forth in 8 C.F.R. § 208.16(c). The regulation
states in relevant part that:
In considering an application for withholding of re-
moval under the Convention Against Torture, the
immigration judge shall first determine whether the
alien is more likely than not to be tortured in the country
of removal. If the immigration judge determines that the
alien is more likely than not to be tortured in the coun-
try of removal, the alien is entitled to protection under
the Convention Against Torture. Protection under the
Convention Against Torture will be granted either in
the form of withholding of removal or in the form of
deferral of removal.
8 C.F.R. § 208.16(c)(4) (emphasis added).
We review the BIA’s determination against withholding
the removal of an alien for substantial evidence. See, e.g.,
Ambati v. Reno, 233 F.3d 1054, 1059 (7th Cir. 2000). The
No. 02-3861 9
language of the regulation unambiguously permits with-
holding of removal due to torture personally suffered by the
alien:
The burden of proof is on the applicant for withholding
of removal under this paragraph to establish that it is
more likely than not that he or she would be tortured if
removed to the proposed country of removal. The tes-
timony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.
8 C.F.R. § 208.16 (2) (emphasis added)
Oforji has testified that she had already undergone FGM
before entering this country, thus there is no chance that she
would be personally tortured again by the procedure when
2
sent back to Nigeria. The regulation language is confined
to the alien-applicant and seemingly forecloses a derivative
claim. Nevertheless, Oforji requests this court to “extend
derivative asylum” to her based on “new expansions and
considerations” reflected in case law such as Nwaokolo v.
INS, 314 F.3d 303 (7th Cir. 2002), and In re Kasinga, 21 I & N.
Dec. 357 (BIA 1996). Oforji bases this request on her claim
that “[t]his court has previously recognized that when an
alien minor’s parent is deported, the minor will have to
accompany the parent into exile and is also effectively
deported.”
It is important to understand that claims of constructive
deportation are cognizable only if such a claim falls
squarely within the narrow holdings of the cases creating
the doctrine. A brief review of these cases distinguishes
Oforji’s circumstances from the narrow ambit required for
a claim of constructive deportation.
2
It is undisputed that FGM as practiced in Nigeria constitutes
“torture” within the meaning of the CAT. See Nwaokolo v. INS, 314
F.3d 303 (7th Cir. 2003).
10 No. 02-3861
Salameda involved a review of the now amended section
3
244(a)(1) of the Immigration and Nationality Act, 8 U.S.C.
§ 1254(a)(1), which permitted the BIA to suspend depor-
tation in its discretion if the alien proved, inter alia, physical
presence in the United States for at least seven years and
that deportation would “result in extreme hardship to the
alien or to his spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent
residence.” The Salamedas’ child, Lancelot, was not a
United States citizen, nor was he admitted to the United
States for permanent residence. Accordingly, the IJ deter-
mined that the above statute precluded consideration of the
hardship to Lancelot due to his parents’ deportation. Id.
However, the Salameda court concluded that since Lancelot
was an alien with no legal right to remain in the United
States, the deportation of his parents would result in him
being “constructively deported” and that this hardship
should have been considered by the INS. Id.
Significantly, unlike Oforji’s children, the minor child in
Salameda was not a United States citizen. Yet he was subject
to deportation because his parents were being deported. The
question raised was whether he was “entitled to ask for
relief on his own account.” Id. at 451. Since he was not the
target of deportation, the order in that case “had the effect
of depriving him of the right to request suspension of
3
The present version of this section, amended effective April 1,
1997, authorizes cancellation of removal upon a showing of, inter
alia, exceptional hardship and a minimum of ten years continu-
ous physical presence in the United States. INA § 240A(b)(1), 8
U.S.C. § 1229a(b)(1) (2002). It is undisputed that Oforji does not
meet the seven-year physical presence requirement, in place at
the time her removal proceedings commenced, to qualify for
suspension under this law. See infra at 12-13.
No. 02-3861 11
deportation.” Id. The panel majority labeled the failure of
the INS to include the minor in his parents’ deportation
hearing as an “ignoble ploy.”
Oforji’s claim does not fall within the narrow ambit of
Salameda. Oforji’s two female children potentially subject to
FGM are both United States citizens, and thus, unlike the
child in Salameda, have the legal right to remain in the
United States. Moreover, Salameda involved both parents of
the child being deported. Despite having the burden of
proof regarding eligibility for withholding of removal under
8 C.F.R. § 208.16 (2), Oforji has failed to set forth any
evidence regarding the existence or whereabouts of the
father (or on the additional alternative of having a guardian
appointed—a distasteful Solomonic choice) of her United
4
States citizen children. The children, as citizens, have an
independent right to not be deported, but obviously they
are dependent on their mother. So depending on the father’s
whereabouts, or the appointment of a guardian, they may
have an opportunity to not follow their mother to Nigeria.
Turning to the remaining cases cited by Oforji, Nwaokolo
is inapposite because it presented an alien’s appeal from the
denial of a petition to reopen removal proceedings. The
appellant needed to show to this court “some” likelihood of
success on the merits, part of a relatively low standard of
review. Nwaokolo, involving an alien mother who had not
been subjected to FGM, merely noted that “[i]t is arguable,
therefore, that the BIA abused its discretion in denying Ms.
Nwaokolo’s motion to reopen if it failed to consider
the threat that four-year-old Victoria will be subjected to
4
We may not reverse based on evidence outside of the adminis-
trative record. State of New York v. EPA, 133 F.3d 987, 993 (7th Cir.
1998).
12 No. 02-3861
FGM as a direct consequence of the decision to remove her
mother.” Id. at 308 (citation omitted) (emphasis added).
Ms. Nwaokolo, also a native and citizen of Nigeria, legally
entered the United States in the early 1980’s. Because she
accepted a job in violation of the terms of her visa, she was
ordered deported but never left after being granted volun-
tary departure in 1986. She did not appeal, but beginning in
1996 filed several motions to reopen, seeking a stay of
deportation. At that point she had three children, including
a four-year-old girl who was a United States citizen. Also,
she apparently had a continuous presence in the country for
more than the prescribed seven-year time period. Given that
status, under 8 U.S.C. § 1229b(b)(1)(D), she had an opportu-
nity to have her removal cancelled and her status adjusted
if she could establish that “removal would result in excep-
tional and extremely unusual hardship to [her] . . . child
who is a citizen of the United States. . .” Because the BIA
may have “failed to consider the threat that four-year-old
Victoria [would] be subjected to FGM as a direct conse-
quence of the decision to remove her mother,” this court
concluded that the BIA did not exercise its discretion by
considering “all relevant factors” regarding the motion to
reopen. See id.
Unlike Nwaokolo, Oforji did not first enter the United
States legally, nor has she resided in the United States for
the required continuous seven-year period. Thus she does
not qualify for the “exceptional hardship” claim for her
child under 8 U.S.C. § 1229b(b)(1)(D). Although the threat-
ened hardship for her children is apparent, there is no stat-
utory or regulatory authority for Oforji to have her own
deportation suspended because she fears for her children if
they return to Nigeria with her. Of course, as indicated
above, as United States citizens they have the right to stay
No. 02-3861 13
here without her, but that would likely require some form
of guardianship—not a Hobson’s choice, but a choice no
mother wants to make. Given the undesirable consequences
of the choice she has to make, Oforji is in effect requesting
that we amend the law to allow deportable aliens who have
not resided here continuously for seven or ten years to
attach derivatively to the right of their citizen children to
remain in the United States. Any such amendment is for
Congress, not the courts, to consider.
Finally, Kasinga is of no avail to Oforji because it involved
an applicant who feared that she personally would be sub-
jected to FGM if deported to her native country. Kasinga
made specific findings that the alien applicant for asylum
had a “well founded fear of persecution,” a fear that is ob-
viously not present in Oforji’s case since she has already
been subjected to FGM.
Oforji is correct that the IJ’s opinion (adopted by the BIA)
does not reflect consideration of the hardship that her
deportation would cause in that it could potentially place
her children at risk of FGM; however, Oforji cannot identify
a legal basis for considering such hardships in the context of
this case. As an excludable alien, it is undisputed that Oforji
does not qualify for suspension of deportation. In addition,
5
the continuous presence requirement for suspension of
deportation (which it is undisputed that Oforji does not
meet) demonstrates that Congress considered the possibility
of hardships to the family members of aliens not meeting
the requirements for suspension of deportation, but limited
the possibility of suspension to those who remained in the
United States continuously for ten years. See 8 U.S.C. §
1229a(b)(1) (2002).
5
See 8 U.S.C. § 1229b(b)(1)(D).
14 No. 02-3861
Undoubtedly, any separation of a child from its mother is
a hardship. However, the question before us is whether this
potential hardship to citizen children arising from the
mother’s deportation should allow an otherwise unqualified
mother to append to the children’s right to remain in the
United States. The answer is no. Our prior cases have
suggested that the threat of FGM to a United States citizen
child resulting from the alien parents’ deportation is a rele-
vant factor to be considered in the context of a motion to
reopen an alien’s case; however, we now hold that an alien
parent who has no legal standing to remain in the United
States may not establish a derivative claim for asylum by
pointing to potential hardship to the alien’s United States
citizen child in the event of the alien’s deportation.
Assuming that the father of Oforji’s children is out of
the picture (which, as previously stated, cannot be assumed
based on the record), Oforji will be faced with the unpleas-
ant dilemma of permitting her citizen children to remain in
this country under the supervision of the state of Illinois or
an otherwise suitable guardian, or taking her children back
to Nigeria to face the potential threat of FGM. Congress has
foreseen such difficult choices, but has opted to leave the
choice with the illegal immigrant, not the courts. The law is
clear that citizen family members of illegal aliens have no
cognizable interest in preventing an alien’s exclusion and
deportation. See, e.g., Garcia v. Boldin, 691 F.2d 1172, 1182-83
(5th Cir. 1982); Burrafato v. United States Dept. of State, 523
F.2d 554 (2d Cir. 1975), cert. denied, 424 U.S. 910 (1976);
Cervantes v. INS, 510 F.2d 89, 91-92 (10th Cir. 1995); Swartz
v. Rogers, 254 F.2d 338 (D.C. Cir.), cert. denied, 357 U.S. 938
(1958). Under the present law a woman who is otherwise a
deportable alien does not have any incentive to bear a child
(who automatically becomes a citizen) whose rights to stay
are separate from the mother’s obligation to depart.
No. 02-3861 15
C. The BIA’s Decision to Affirm Without Opinion the
IJ’s Decision
The final issue raised by Oforji presents two challenges to
the BIA’s issuance of a decision without an opinion. Her
first argument is a facially-based challenge to the regulation
permitting an affirmance without opinion, and her second
argument challenges the Board’s actual decision to affirm
without an opinion in her particular case.
At issue is the streamlined procedure found at 8 C.F.R.
6
§ 3.1(e)(4) (Sept. 2002) , permitting a single Board Member
to affirm, without opinion, the results of an IJ’s decision
when the Board Member determines: that the result was
correct; that any errors were harmless or nonmaterial; and
that the issue on appeal is not novel, but is squarely con-
trolled by existing Board or federal case precedent or that
the factual and legal issues are not substantial enough to
warrant a written opinion.
This court has upheld the 1999 streamlining procedures as
not depriving the court of a basis for judicial review nor as
violating due process. See Georgis v. Ashcroft, 328 F.3d 962,
967 (7th Cir. 2003). Oforji fails to articulate any legally
significant difference between the 1999 streamlining reg-
ulations and the current 2002 streamlining regulations un-
der review and we therefore uphold the 2002 streamlining
provisions.
The Georgis panel suggested that in some cases, the
Board’s decision to streamline and not publish an opinion
6
The regulations are now found at 8 C.F.R. §§ 1003.1, 1003.2
(2003). Because the parties referred to the 2002 regulations and
because the new regulations are either identical or substantially
similar to the older versions, we continue to refer to the 2002
regulations.
16 No. 02-3861
may be subject to judicial review. Id. at n.4. Regardless, this
appeal is not such a case since it merely involves Oforji’s
misapplication of established legal authority. The present
opinion demonstrates that the court may simply conduct a
full and fair review of the IJ’s decision directly without the
intervening step of a written BIA decision. Oforji’s appeal is
fact-dependent and, “[s]ince we review directly the decision
of the IJ when a case comes to us from the BIA pursuant to
[the streamlining provision], our ability to conduct a full
and fair appraisal of the petitioner’s case is not compro-
mised, and the petitioner’s due process rights are not
violated.” Id. at 967.
III.
The decision to deny Oforji’s claim for asylum and
withholding of removal is supported by substantial evi-
dence. Oforji’s claim to derivative asylum under regulations
implementing the Convention Against Torture is rejected
for lack of legal support. We reject Oforji’s facial challenge
to the BIA’s streamlining provisions, and we reject her
challenge to the BIA’s decision to streamline because that
decision did not harm her in this case. For these and the
foregoing reasons, we AFFIRM.
POSNER, Circuit Judge, concurring. I join Judge Manion’s
opinion in the main, though we interpret some of the facts
in this confusing record differently. I write separately not
No. 02-3861 17
to quibble over these differences but to invite congressio-
nal attention to a pair of anomalies in the immigration
laws.
Doris Oforji was turned down for asylum. One of her
grounds for seeking it was that she has two young daugh-
ters (Nina, 6 years old, and Ingozi, 4) who if they go to
Nigeria with her will be subject to a very high risk of un-
dergoing when they reach puberty the procedure that has
come to be called “female genital mutilation,” although I
prefer the older terms “female circumcision” and (in the
alternative) “clitoridectomy and infibulation,” because
they are slightly less loaded and remind us that a related
practice, male circumcision, is widespread in this country
without being described as mutilation. I do not mean to
suggest that I approve of female circumcision, but we
should recognize that the cultures that do approve of it
don’t think that what they are doing is aptly described as
“mutilation.” But that is an aside; the risk of being forced
to undergo the procedure is a recognized ground for asy-
lum in this country. Abankwah v. INS, 185 F.3d 18, 20, 25-
26 (2d Cir. 1999); In re Kasinga, 21 I. & N. Dec. 357 (BIA
1996). And in the case of a child, especially a small one,
the parent will ordinarily be the child’s proper representa-
tive and therefore authorized to file the asylum claim on
the child’s behalf. See Gonzales v. Reno, 212 F.3d 1338 (11th
Cir. 2000); Guidelines for Children’s Asylum Claims INS Pol-
icy and Procedural Memorandum from Jack Weiss, Act-
ing Director, Office of International Affairs, to Asylum
Officers, Immigration Officers, and Headquarters Coordi-
nators (Asylum and Refugees), Dec. 10, 1998, 1998 WL
34032561 (INS).
But because Oforji’s daughters were born in the United
States, they are U.S. citizens, and since U.S. citizens can-
18 No. 02-3861
not be deported they are ineligible for asylum. And be-
cause Oforji does not argue that the children will be cir-
cumcised as a way of persecuting her, the risk of their be-
ing subjected to that procedure, great as that risk is con-
ceded to be, does not strengthen her claim, and so they
will be separated from their mother unless they return to
Nigeria with her. Apparently the children have no rela-
tives in the United States with whom they might live
(they are also very young to be separated from their
mother), for when asked at the immigration hearing,
“Well, couldn’t you leave your children here if you
wanted to return?” she answered: “Who would I leave
it for? Who is going to take care of it? Only I survive
because when I was little my mother passed on so I know
what I went through so how, how can—when in my life
my children start going into the 15th year.” This is ob-
scure, but the implication is that the children have no rel-
atives living in the United States, at least relatives capable
of taking care of two young girls. We know that the father
of the older girl is either dead or in Nigeria, where she
was conceived. There is nothing in the record about the
father of the younger girl. Probably, then, the only condi-
tion in which the girls could remain in the United States
after their mother returned to Nigeria would be as foster
children. That is the same unlovely status they would oc-
cupy were they aliens granted asylum while their mother
was deported. So although they are citizens they are
treated as badly as aliens.
Had their mother lived in the United States for at least
seven years before deportation proceedings were insti-
tuted, however, she could plead hardship to the children
as a basis for suspension of deportation. The period has
been lengthened to ten years for deportation proceed-
ings—now called “removal” proceedings—begun after
No. 02-3861 19
April 1, 1997, see Romero-Torres v. Ashcroft, 327 F.3d 887,
888-89 and nn. 3-4 (9th Cir. 2003); Jimenez-Angeles v.
Ashcroft, 291 F.3d 594, 597 (9th Cir. 2002), but it seems that
deportation proceedings were begun against Oforji in
1996. However, she hadn’t been here for seven years, so
she can’t obtain a suspension of deportation even under
the earlier rule. And so the U.S. citizen children are to suf-
fer severe hardship, either by being returned to Nigeria to
face a procedure that we regard as torture or by being
separated from their mother and consigned to a foster
home, because the mother didn’t have the wit to elude the
Immigration Service for seven years.
The seven-year (now ten-year) rule has only a tenuous
relation to the hardship of children whose parent is or-
dered deported. What is true is that the longer the chil-
dren have lived in the United States, the greater the hard-
ship to them of being sent back to their parent’s native
country—one of the unappetizing choices facing these
children and a choice made more excruciating the longer
they remain here and become acclimated to American
ways. But the length of time a child has lived in the
United States depends on when she was born as well as
on when her parent came to the United States. The parent
may have been here for ten years but the child have been
born six months ago; or the parent may have been here
for nine years but the child have been born eight years
ago. The seven-year (or ten-year) rule is irrational viewed
as a device for identifying those cases in which the hard-
ship to an alien’s children should weigh against forcing
her to leave the country.
That is one rule that Congress should rethink and an-
other is awarding citizenship to everyone born in the
United States (with a few very minor exceptions, such as
20 No. 02-3861
the children of accredited foreign diplomats and of for-
eign heads of state on official visits to the U.S., United
States v. Wong Kim Ark, 169 U.S. 649, 693 (1898); United
States Citizenship, United States Department of Justice Im-
migration & Naturalization Service Interpretation Letter,
Interpretation 301.1(a)(4)(i), 2001 WL 1333852 (INS); 8
C.F.R. §§ 101.3(a)(1), 1101.3(a)(1)), including the children
of illegal immigrants whose sole motive in immigrating
was to confer U.S. citizenship on their as yet unborn chil-
dren. This rule, though thought by some compelled by
section 1 of the Fourteenth Amendment, which provides
that “all persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside,” and
in any event codified in 8 U.S.C. § 1401(a), which pro-
vides that “the following shall be nationals and citizens of
the United States at birth: (a) a person born in the United
States, and subject to the jurisdiction thereof,” makes no
sense. “The Federation for American Immigration Reform
estimates that 165,000 babies are born each year in the
United States to illegal immigrants and others who come
here to give birth so their children will be American citi-
zens.” Kelley Bouchard, “An Open-Door Refugee Policy
Has Its Critics,” Maine Sunday Telegram, June 30, 2002, p.
11A. “Captured fighter Yaser Esam Hamdi is not a U.S.
citizen, despite his Louisiana birth, argues the Friends of
Immigration Law Enforcement. The group says the citi-
zenship clause of the 14th Amendment doesn’t mandate
the practice of granting ‘birthright citizenship’ to children
born on U.S. soil to temporary workers, illegal immi-
grants and tourists. . . . ‘The situation we have today is
absurd,’ says the group’s director. . . .‘ For example, there
is a huge and growing industry in Asia that arranges
tourist visas for pregnant women so they can fly to the
No. 02-3861 21
United States and give birth to an American. Obviously,
this was not the intent of the 14th Amendment; it makes a
mockery of citizenship.’ ” John McCaslin, “Inside the Belt-
way: Rotund Tourists,” Wash. Times, Aug. 27, 2002, p. A7.
We should not be encouraging foreigners to come to the
United States solely to enable them to confer U.S. citizen-
ship on their future children. But the way to stop that
abuse of hospitality is to remove the incentive by chang-
ing the rule on citizenship, rather than to subject U.S. citi-
zens to the ugly choice to which the Immigration Service
is (legally) subjecting these two girls. A constitutional
amendment may be required to change the rule whereby
birth in this country automatically confers U.S. citizen-
ship, but I doubt it. Peter H. Schuck & Rogers M. Smith,
Citizenship Without Consent: Illegal Aliens in the American
Polity 116-17 (1985); Dan Stein & John Bauer, “Interpret-
ing the 14th Amendment: Automatic Citizenship for Chil-
dren of Illegal Immigrants,” 7 Stanford L. & Policy Rev.
127, 130 (1996). The purpose of the rule was to grant citi-
zenship to the recently freed slaves, and the exception for
children of foreign diplomats and heads of state shows
that Congress does not read the citizenship clause of the
Fourteenth Amendment literally. Congress would not be
flouting the Constitution if it amended the Immigration
and Nationality Act to put an end to the nonsense. On
May 5, 2003, H.R. 1567, a bill “To amend the Immigration
and Nationality Act to deny citizenship at birth to chil-
dren born in the United States of parents who are not citi-
zens or permanent resident aliens,” was referred to the
House Subcommittee on Immigration, Border Security,
and Claims. I hope it passes.
22 No. 02-3861
Our hands, however, are tied. We cannot amend the
statutory provisions on citizenship and asylum.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-31-03