Olowo, Esther v. Ashcroft, John D.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1362
ESTHER OLOWO,
Petitioner,
v.
JOHN D. ASHCROFT, United States Attorney General,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A45-084-852
____________
ARGUED MARCH 2, 2004—DECIDED MAY 11, 2004
____________
Before CUDAHY, RIPPLE and DIANE P. WOOD, Circuit
Judges.
RIPPLE, Circuit Judge. Esther Olowo is a native and citizen
of Nigeria who has lawful permanent resident status in the
United States. In 2000, Ms. Olowo went to the Bahamas and
tried to reenter the United States with the alien child of a
family friend. The Immigration and Naturalization Service
charged Ms. Olowo with removability under § 212(a)(6)
(E)(i) of the Immigration and Nationality Act (“INA”), see 8
U.S.C. § 1182(a)(6)(E)(i), for knowingly aiding an alien to
enter the United States. An immigration judge (“IJ”) found
2 No. 03-1362
Ms. Olowo removable, and she applied for asylum and
withholding of removal on the ground that, if she is re-
turned to Nigeria, her two daughters will be subjected to
female genital mutilation. The IJ denied Ms. Olowo’s peti-
tions and she appealed both the IJ’s finding of removability
and the denial of her applications to the Board of Immigra-
tion Appeals (“the BIA”). The BIA summarily affirmed the
actions of the IJ. Ms. Olowo now petitions for review of the
BIA’s decision. For the reasons set forth in the following
opinion, we deny Ms. Olowo’s petition and affirm the
decision of the BIA.
I
BACKGROUND
A. Facts
Ms. Olowo was living with her family in Chicago when a
family friend, Babatunde Ali (who also was living in
Chicago at the time), asked her to travel to the Bahamas and
to return with his six-year-old daughter, Grace Ali. Joyce
Tunde-Ali—Grace’s mother and Mr. Ali’s ex-wife— had
brought Grace to the Bahamas from Nigeria and now
wanted Mr. Ali to send money and airline tickets for Grace,
herself and Margaret Ogunosun (another Nigerian) so that
they could travel to the United States. At Ms. Tunde-Ali’s
direction, Mr. Ali purchased the tickets in the names of
“Batricia Ann Thompson,” “Elease Jennings” and “Lillie
Harden.” Mr. Ali did not trust Ms. Tunde-Ali to deliver
Grace to him as they had agreed; the two were not on the
best of terms. He therefore asked Ms. Olowo to deliver the
tickets and to return with Grace. Mr. Ali bought Ms. Olowo
a round-trip plane ticket to Nassau and gave her the three
return tickets.
No. 03-1362 3
After she arrived in Nassau, Ms. Olowo found Grace
and gave her mother the tickets. The next day Ms. Olowo
and Grace (along with Ms. Tunde-Ali and Ms. Ogunosun)
returned to the airport and entered inspection before
boarding a flight to Chicago. During inspection, Ms. Olowo
presented plane tickets, a green card for herself and a birth
certificate for Grace bearing the name “Batricia Ann Thomp-
son.” When asked by an INS inspector about her relation-
ship to Grace, Ms. Olowo said that she was the child’s
mother. After initially passing through inspection, Ms.
Olowo and Grace were called back because INS inspectors
had detained Ms. Tunde-Ali and Ms. Ogunosun for having
fraudulent documents, and the inspectors suspected that all
four were traveling together. INS inspector George Haas
again questioned Ms. Olowo about her relationship to
Grace; this time Ms. Olowo said that she was Grace’s
“godmother” and explained that she had earlier identified
herself as Grace’s mother because the two terms were inter-
changeable in Nigerian culture. Inspector Haas examined
Grace’s birth certificate and doubted its authenticity. Ne-
vertheless, because he was not certain that Grace was not a
United States citizen, he let both Grace and Ms. Olowo
board the plane and deferred inspection until after their
arrival in Chicago.
A few months after her return to Chicago, the INS
called in Ms. Olowo for questioning, and she gave a sworn
statement about her arrangement with Mr. Ali and the in-
spection that took place at the airport in Nassau. In her
statement, she admitted presenting the birth certificate to
INS inspectors before attempting to board the plane with
Grace and said that the birth certificate was purchased by
Mr. Ali. By this time, the INS had determined that the birth
certificate was fraudulent, and they issued Ms. Olowo a
Notice To Appear on charges that she was removable be-
cause she knowingly had aided Grace, Ms. Tunde-Ali and
4 No. 03-1362
Ms. Ogunosun in their attempts to enter the United States,
a violation of INA § 212(a)(6)(E)(i).
B. Administrative Proceedings
1. Removal Hearing
At her removal hearing, Ms. Olowo denied knowing
anything about Grace’s fraudulent birth certificate. She
stated that she was not associated with Ms. Tunde-Ali or
Ms. Ogunosun and that she knew nothing about their
attempt to enter the United States. She denied telling the
INS in her sworn statement that she had presented a fake
birth certificate before boarding the plane in Nassau or that
the birth certificate had been purchased by Mr. Ali; instead
she said she actually had answered, “I don’t know,” to both
questions. She also testified that she went to the Bahamas at
Mr. Ali’s request because he was awaiting an adjustment of
status and could not leave the Country, that Mr. Ali gave
her a sealed envelope containing Grace’s documents, that
she presented the envelope at the airport without examining
its contents and that she saw the birth certificate only after
INS Inspector Haas questioned its authenticity. Ms. Olowo
further stated that she knew very little about Grace before
going to the Bahamas to pick her up because Mr. Ali—her
husband’s close friend—never talked about her.
Testifying by telephone, Inspector Haas stated that he had
observed Ms. Olowo enter the Nassau airport inspection
hall with Grace and the other two women and that he had
seen Ms. Olowo give instructions to them before they
separated and went into different inspection lines. Inspector
Haas was not Ms. Olowo’s primary inspector, but he did
inspect Ms. Tunde-Ali, who presented conspicuously
fraudulent documents bearing the name “Elease Jennings.”
At another inspection station, a different INS inspector
No. 03-1362 5
discovered that Ms. Ogunosun was carrying false docu-
ments with the name “Lillie Harden.” Because he had seen
the group enter the hall together, Inspector Haas had Ms.
Olowo and Grace called back to the inspection area for a
secondary inspection.
At this secondary inspection, Inspector Haas questioned
Ms. Olowo about her relationship to Ms. Tunde-Ali and Ms.
Ogunosun. Ms. Olowo first told him that they had been
vacationing together in the Bahamas. Meanwhile,
at a different INS inspection station, Ms. Ogunosun broke
down under questioning and admitted that she was a
Nigerian traveling with false documents and that Ms.
Olowo was carrying both her Nigerian passport and Ms.
Tunde-Ali’s in a carry-on bag. A Bahamian constable then
retrieved the passports from Ms. Olowo’s luggage, and
Ms. Olowo changed her story and claimed that she did not
really know the women that well and was traveling with
them only because they had met in the Bahamas by chance.
She claimed that the passports were in her bag because the
other women did not have any carry-on luggage, and they
had asked her to carry the documents for them.
Both Ms. Tunde-Ali and Ms. Ogunosun were detained
pending deportation to Nigeria, but Inspector Haas said
that he had allowed Ms. Olowo and Grace to board the
plane “out of compassion for the child” because he was un-
sure about her citizenship. A.R. at 308. However, Grace’s
Nigerian passport was found in the inspection hall lavatory
about a month later, confirming Inspector Haas’ suspicion
that the child was not Ms. Olowo’s and also was not a
United States citizen.
The IJ found Ms. Olowo removable and designated
Nigeria as the country for removal. The IJ found that the
INS had presented sufficient circumstantial evidence to
show by clear and convincing evidence that Ms. Olowo had
6 No. 03-1362
knowingly aided Grace to enter the United States and had
also aided Ms. Tunde-Ali and Ms. Ogunosun in their at-
tempts to enter. In reaching his decision, the IJ determined
that Ms. Olowo’s testimony was not credible because it was
“inconsistent, self-serving, vague, and implausible,” and
that she had “testified falsely in an attempt to mislead the
Court.” A.R. at 629. Specifically, the IJ found that Ms. Olowo
had lied about her lack of familiarity with Grace, her
association with Ms. Tunde-Ali and Ms. Ogunosun and her
knowledge of Grace’s fraudulent birth certificate and that
she had falsely represented herself as Grace’s mother to INS
inspectors. The IJ concluded that Ms. Olowo was not a
“mere patsy,” id. at 629, but instead an integral part of a
scheme to get the three Nigerian nationals into the United
States with fraudulent documents:
Even though [Ms. Olowo] denied that she was involved
. . . it is clear from the record that [she] was involved in
a scheme, whereby she knew that the child, the child’s
mother Joyce, and Margaret were all Nigerian citizens
who were traveling with false [U.S.] birth certificates.
As to the child, it is reasonable to conclude that [Ms.
Olowo] was fully aware that her friend’s child was an
alien who needed proper documents to enter the [U.S.].
It is also evident that [Ms. Olowo] not only carried the
child’s travel documents and false birth certificate, but
also provided false information and documents to the
[INS] in order to assist the child to enter the [U.S.]
illegally. As to the other two women, [Ms. Olowo] knew
that these women were aliens, because of their friend-
ship, and the fact that [she] had in her possession their
Nigerian passports while they were presenting false
[U.S.] birth certificates to the [INS].
Id. at 630-31.
No. 03-1362 7
2. Asylum Hearing
After the IJ announced his decision, Ms. Olowo applied
for asylum and withholding of removal on the ground
1
that she and her twin daughters are members of a social
group that is subjected to female genital mutilation (“FGM”)
in Nigeria, and that she fears that they will undergo this
procedure if they return there with her. Ms. Olowo testified
that she is from the Yoruba tribe in Nigeria’s Oyo state and
that she lived in Lagos before she won an immigration visa
lottery and came to the United States on October 25, 1995.
She stated that the Yoruba tribe still practices FGM, and that
she had been subjected to the procedure herself when she
was twelve years old. Ms. Olowo further stated that, if she
returns with her daughters to Nigeria, her husband’s family
will force her daughters to undergo FGM and that she and
her husband will be unable to protect the children because
FGM is a tribal tradition and a “cultural requirement.” A.R.
at 430, 457. Ms. Olowo also claimed that she could not
relocate to another part of Nigeria to protect her daughters
because her husband’s family would eventually find them
and subject her daughters to FGM. Ms. Olowo said that,
even though her daughters and her husband are legal
permanent residents and could remain in the United States,
the whole family will have to return to Nigeria if she is
removed because her husband would not be able to care for
the children on his own.
The IJ denied Ms. Olowo’s application for asylum because
she has already been subjected to FGM, and therefore no
longer has a well-founded fear of persecution based on any
1
Ms. Olowo’s daughters, Elizabeth and Comfort, were born on
December 14, 1990, and arrived in the United States with Ms.
Olowo on October 25, 1995.
8 No. 03-1362
social group comprised of women who feared FGM. The IJ
further determined that Ms. Olowo could not “bootstrap a
claim for asylum based upon fear of harm to her children”
because they and their father are legal permanent residents
in the United States and would not be required to return to
Nigeria with their mother. Id. at 29. As an alternate ground
for his decision, the IJ concluded that, even if Ms. Olowo’s
family did return with her to Nigeria, her husband would
be able to prevent his daughters from undergoing FGM. The
IJ based this conclusion on a 1997 State Department report
that discusses the father’s traditional role in the practice of
FGM in Nigeria: “Under Nigerian Tradition, the father has
control over the children. If the father opposes FGM,
therefore, the children would almost certainly be safe.”
Bureau of Democracy, Human Rights and Labor, U.S. Dep’t
of State, Nigeria—Profile of Asylum Claims and Country
Conditions (1997); A.R. at 474. The IJ noted that, despite this
information, Ms. Olowo and her husband had “decided that
they would go along with such circumcision and they
would not live in any other part of Nigeria.” A.R. at 30. The
IJ then determined that, although Ms. Olowo’s testimony at
the hearing was credible, she did not “advance[] a credible
claim for asylum.” Id. at 26, 30. The IJ also found that her
petition for withholding of removal necessarily failed
because such a claim requires an even higher standard of
proof. The IJ then ordered her removed to Nigeria.
Ms. Olowo appealed the IJ’s decision that she was remov-
able and not entitled to asylum or withholding of removal.
The BIA summarily affirmed the IJ’s decision without a
written opinion.
No. 03-1362 9
II
DISCUSSION
A. The BIA’s Streamlining Procedure
Ms. Olowo first argues that the BIA abdicated its re-
sponsibility to review the IJ’s decision when it employed its
streamlined review procedure and affirmed the IJ’s decision
without an opinion. We have held, however, that “it makes
no practical difference whether the BIA properly
or improperly streamlined review” when, as here, we can
review directly the decision of the IJ. Georgis v. Ashcroft, 328
F.3d 962, 967 (7th Cir. 2003); see also Ciorba v. Ashcroft, 323
F.3d 539, 546 (7th Cir. 2003). We, therefore, need not con-
sider the INS’ alternative argument that the BIA’s decision
to streamline is not reviewable because the streamlining
procedure is an action committed to the BIA’s discretion. See
Georgis, 328 F.3d. at 967.
B. Removability
Ms. Olowo next submits that the IJ erred in concluding
that the INS met its burden to prove, by clear and convinc-
ing evidence, that she is removable for knowingly aiding
Grace and the two Nigerian women to enter the United
States. She contends that the IJ impermissibly tipped the
scales in the INS’ favor when he discredited her testimony,
even though it was “consistent and reliable,” Pet’r Br. at 14,
and instead gave dispositive weight to unreliable INS
evidence that included inaccurate reports by an INS officer
and confusing hearsay testimony by Inspector Haas.
Because Ms. Olowo is an alien with lawful permanent
resident status, the INS can remove her only if it establishes,
by clear and convincing evidence, that she is removable. See
10 No. 03-1362
Sandoval v. INS, 240 F.3d 577, 581 (7th Cir. 2001); 8 U.S.C.
§ 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a). An IJ’s decision that
the INS has met its burden will be upheld as long as it is
based on “reasonable, substantial, and probative evidence.”
8 U.S.C. § 1229a(c)(3)(A). When the IJ bases evidentiary
findings on credibility determinations, those determinations
are reviewed deferentially and will be upheld if supported
by “ ‘specific, cogent reasons’ that ‘bear a legitimate nexus
to the finding.’ ” Oforji v. Ashcroft, 354 F.3d 609, 613 (7th Cir.
2003) (quoting Ahmad v. INS, 163 F.3d 457, 461 (7th Cir.
1999)).
The IJ’s reasoning is more than sufficient to support his
adverse credibility finding. The IJ found that Ms. Olowo’s
testimony was incredible because it was “inconsistent, self-
serving, vague, and implausible.” A.R. at 629. He noted that
Ms. Olowo changed her story several times, both when
questioned by INS inspectors at the airport and also at the
hearing when she disputed the answers that she had given
in her sworn statement. The IJ noted as well that her tes-
timony was inconsistent with documentary evidence and
other testimony presented by the INS. For instance, Ms.
Olowo testified that she did not know that she was carrying
a fraudulent birth certificate for Grace and that she did not
know Ms. Tunde-Ali or Ms. Ogunosun. Yet, the INS found
Grace’s discarded passport in the airport inspection hall
lavatory and Ms. Tunde-Ali’s and Ms. Ogunosun’s pass-
ports in Ms. Olowo’s baggage. Numerous inconsistencies
and contradictions in an alien’s testimony provide a sub-
stantial basis for an IJ to discredit it. See Oforji, 354 F.3d at
614; Khano v. INS, 999 F.2d 1203, 1208 (7th Cir. 1993); Loulou
v. Ashcroft, 354 F.3d 706, 709-10 (8th Cir. 2003).
Ms. Olowo also submits that the IJ improperly credited
factually inaccurate reports by INS Officer Deborah Eades
that were not based entirely on personal knowledge, as well
No. 03-1362 11
as confusing hearsay testimony by Inspector Haas con-
cerning the sequence of the INS’ investigation of Ms. Olowo
at the airport. Ms. Olowo contends that this evidence was
unreliable.
Conventional rules of evidence do not apply in immigra-
tion proceedings, which are governed only “by the looser
standard of due process of law.” Niam v. Ashcroft, 354 F.3d
652, 659 (7th Cir. 2004). As long as evidence is probative and
its use is not fundamentally unfair, it is admissible. See
Rosendo-Ramirez v. INS, 32 F.3d 1085, 1088 (7th Cir. 1994).
To the extent that portions of Officer Eades’ reports were
not reliable, the IJ addressed this problem by not relying on
them in his analysis. Ms. Olowo objected to Officer Eades’
reports at the hearing because they contained a minor fac-
tual inaccuracy about the dates when Ms. Olowo testified at
the INS’ Chicago office, and also detailed the results of
surveillance of Ms. Olowo’s residence that Officer Eades did
not conduct herself. The IJ noted Ms. Olowo’s objections
and sufficiently addressed her concerns by limiting the
weight accorded the reports.
Inspector Haas’ testimony about the sequence of events at
the airport was not necessarily “confused” and “inconsis-
tent,” Pet’r Br. at 15, nor was it largely based on hearsay. On
two occasions, the inspector referred to his inspection of Ms.
Olowo as “primary” rather than “secondary,” but his
account of the relevant facts was otherwise completely
consistent. The only facts about Ms. Olowo’s airport inspec-
tion that Inspector Haas related second-hand were the
answers that Ms. Olowo had given when she first entered
the inspection area and was questioned by an INS inspector.
Although hearsay, this testimony passes the due process test
for admissibility: It was probative, in that it tended to show
that Ms. Olowo tried to deceive INS inspectors both initially
and when later questioned, and its use was not fundamen-
12 No. 03-1362
tally unfair because Ms. Olowo had the opportunity to
cross-examine Inspector Haas and offer rebuttal testimony.
In a due process analysis, problems of fundamental fairness
associated with hearsay testimony are dispelled when the
testimony is subject to cross-examination. See Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 823-24 (9th Cir. 2003).
Moreover, even if the IJ had disregarded this testimony,
the INS still produced more than enough circumstantial
evidence to show that Ms. Olowo knowingly aided Grace
and the two Nigerian women in their attempts to enter the
United States. See Sanchez-Marquez v. INS, 725 F.2d 61, 63
(7th Cir. 1984) (allowing proof by circumstantial evidence
that the petitioner knowingly assisted seven aliens to enter
the United States). Once the IJ determined that Ms. Olowo’s
testimony was not credible, the remaining evidence over-
whelmingly supported the INS’ version of the events.
Because the IJ’s decision to discredit Ms. Olowo’s testi-
mony and rely instead on the INS’ evidence was not im-
proper, substantial evidence supports his finding that the
INS met its burden to prove by clear and convincing
evidence that Ms. Olowo is removable.
C. Asylum and Withholding of Deportation
Ms. Olowo’s final argument is that the IJ erred in finding
that she did not “advance[] a credible claim for asylum,”
A.R. at 30, despite finding that she credibly testified at her
asylum hearing. Ms. Olowo contends that the IJ should have
believed her when she stated that, if she and her family
returned to Nigeria, “she would have no choice under the
Nigerian Customary Law than to allow the FGM on her
daughters.” Pet’r Br. at 18.
No. 03-1362 13
The IJ did conclude that Ms. Olowo’s asylum claim failed
in part because a 1997 State Department Profile of Asylum
Claims rebutted her testimony that she would have no
choice under Nigerian custom and tradition but to allow her
daughters to undergo FGM. This determination, however,
was not the primary reason why the IJ denied her asylum
claim. The IJ denied her claim because she did not present
any evidence to show that she fears future persecution
herself (she had already been subjected to FGM), and
because her daughters and her husband are legal permanent
residents here and will not be forced to return to Nigeria
with her.
In order to qualify for refugee status and thus be granted
asylum, it is Ms. Olowo’s burden to demonstrate that she
has either endured past persecution or has a well-founded
fear of future persecution based on one of the statutorily
protected categories. See Yadegar-Sargis v. INS, 297 F.3d 596,
601 (7th Cir. 2002). Similarly, to show that she is entitled to
withholding of deportation, she must demonstrate that it is
more likely than not that she will be subjected to persecu-
tion if removed to Nigeria. See Toptchev v. INS, 295 F.3d 714,
720 (7th Cir. 2002). Notably, both of these standards require
an applicant to demonstrate that she herself will be subject
to persecution if removed, and do not encompass any
consideration of persecution that may be suffered by
others—even family members—who may be obliged to
2
return with her to Nigeria. See Oforji, 354 F.3d at 615.
2
Although current immigration laws do not allow an IJ to factor
in potential hardship to a petitioner’s lawful resident or citizen
family members when considering an asylum claim, see Oforji v.
Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003), such considerations are
relevant when evaluating an application for cancellation of
(continued...)
14 No. 03-1362
Ms. Olowo’s applications for asylum and withholding of
deportation are both based on her fear that her daughters
will be subjected to FGM. Such claims for “derivative asy-
lum” based on potential harm to an applicant’s children are
cognizable only when the applicant’s children are subject to
“constructive deportation” along with the applicant. Oforji,
354 F.3d at 615; see also 8 U.S.C. § 1158(b)(3) (“A spouse or
child of an alien who is granted asylum . . . may, if not
otherwise eligible for asylum . . . , be granted the same
status as the alien if accompanying, or following to join,
such alien.”); cf. Salameda v. INS, 70 F.3d 447, 451 (7th Cir.
1995) (directing the BIA to consider hardship to an alien’s
non-citizen child who would be “constructively deported”
along with his parents). But in this case, both of Ms.
Olowo’s daughters are legal permanent residents, as is their
father, and when there is a parent who is available to care
for the daughters in the United States, they are under no
compulsion to leave. Accordingly, the facts presented here
3
do not support a claim for derivative asylum.
(...continued)
removal, see 8 U.S.C. § 1229b(a); see also Oforji, 354 F.3d at 620
(Posner, J., concurring). However, Ms. Olowo is not eligible for
this form of relief because she did not reside in the United States
for the requisite seven-year period before the INS filed its Notice
To Appear. See 8 U.S.C. § 1229b(a).
3
At oral argument, counsel for the Department of Homeland
Security (“DHS”) stated that, to her knowledge, Mr. Olowo has
not been charged with removability in connection with Ms.
Olowo’s attempts to help Grace and the two Nigerian women
enter the United States. Counsel further stated that the DHS had
no plans to charge Mr. Olowo. We further note that, if the DHS
does charge Mr. Olowo, his nine-year residency in the United
States will make him eligible for cancellation of removal, and an
(continued...)
No. 03-1362 15
Ms. Olowo did not demonstrate that, if removed to
Nigeria, she herself would face persecution on account of
her membership in a social group. Thus, we see no reason
to disturb the IJ’s finding that she is not entitled to either
asylum or withholding of removal based on the possibility
that her daughters, who are not required to leave the United
States, may be subjected to FGM in Nigeria.
Our determination that the IJ correctly denied Ms.
Olowo’s applications for asylum and withholding of re-
moval does not end our inquiry into her case. We are con-
cerned deeply by the representations that Ms. Olowo made
at her administrative hearing that, if removed, she would
take her daughters back to Nigeria and allow them to be
subjected to FGM. Ms. Olowo may have made these state-
ments in an attempt to strengthen her asylum claim and to
encourage the IJ to grant her application, but we cannot
overlook the fact that Ms. Olowo has announced in an
official proceeding her intention to allow her daughters to
face FGM in Nigeria rather than arrange for them to remain
4
in the United States.
(...continued)
IJ considering such an application would be required to consider
any resulting hardship to his two daughters if he were removed
to Nigeria. See 8 U.S.C. § 1229b(a); Cerrillo-Perez v. INS, 809 F.2d
1419, 1425-26 (9th Cir. 1987).
4
The following exchange took place at the hearing when Ms.
Olowo was questioned by the IJ and INS attorney Christine
Young:
IJ: [I]f you think that it’s going to be so hard on
your children that you cannot take them there,
between having the options of taking your chil-
(continued...)
16 No. 03-1362
We have previously discussed in some detail the practice
of FGM, which is “a horrifically brutal procedure, often
performed without anesthesia” that causes both short- and
long-term physical and psychological consequences.
Nwaokolo v. INS, 314 F.3d 303, 308-09 (7th Cir. 2002) (per
curiam); see also Abankwah v. INS, 185 F.3d 18, 23 (2d Cir.
1999) (“FGM, which is often performed under unsanitary
conditions with highly rudimentary instruments, is ‘ex-
tremely painful,’ ‘permanently disfigures the female gen-
italia, [and] exposes the girl or woman to the risk of serious,
potentially life-threatening complications,’ including
‘bleeding, infection, urine retention, stress, shock, psycho-
logical trauma, and damage to the urethra and anus.’ ”
(quoting In re Kasinga, 21 I. & N. Dec. 357 (BIA 1996))). And
despite what cultural significance societies in other nations
may attach to the practice, see Oforji, 354 F.3d at 619 (Posner,
J., concurring), FGM, when inflicted on minors, is a federal
(...continued)
dren to Nigeria . . . and . . . leaving them
here . . . which one do you think would you
choose?
Ms. Olowo: I can’t take them to Nigeria and I can’t leave
them here. I don’t know.
IJ: So you have no choice?
Ms. Olowo: I have no choice.
....
Ms. Young: So if you went back to Nigeria, you would
agree to have them circumcised . . .?
Ms. Olowo: Yes.
A.R. at 454, 456-57.
No. 03-1362 17
5
crime. See 18 U.S.C. § 116. It is also prohibited in Illinois, see
6
720 Ill. Comp. Stat. 5/12-34, as well as in other nations, see,
5
The full text of 18 U.S.C. § 116 provides:
(a) Except as provided in subsection (b), whoever knowingly
circumcises, excises, or infibulates the whole or any part of
the labia majora or labia minora or clitoris of another person
who has not attained the age of 18 years shall be fined under
this title or imprisoned not more than 5 years, or both.
(b) A surgical operation is not a violation of this section if the
operation is—
(1) necessary to the health of the person on whom it is
performed, and is performed by a person licensed in the
place of its performance as a medical practitioner; or
(2) performed on a person in labor or who has just given
birth and is performed for medical purposes connected
with that labor or birth by a person licensed in the place
it is performed as a medical practitioner, midwife, or
person in training to become such a practitioner or
midwife.
(c) In applying subsection (b)(1), no account shall be taken of
the effect on the person on whom the operation is to be
performed of any belief on the part of that person, or any
other person, that the operation is required as a matter of
custom or ritual.
6
The full text of 720 Ill. Comp. Stat. 5/12-34 provides:
(a) Except as otherwise permitted in subsection (b), whoever
knowingly circumcises, excises, or infibulates, in whole or in
part, the labia majora, labia minora, or clitoris of another
commits the offense of female genital mutilation. Consent to
the procedure by a minor on whom it is performed or by the
minor’s parent or guardian is not a defense to a violation of
this Section.
(continued...)
18 No. 03-1362
e.g., Female Genital Mutilation Act, 2003, c. 31 (Eng.); see also
UK: New Female Circumcision Bill Closes Loophole, ANSA-Eng.
Media Serv., Mar. 3, 2004, at 1, available at 2004 WL 64006952(“Parents who take their daughters abroad to undergo
genital circumcision will be sentenced to up to 14 years of
prison under a new law.”), and has been roundly criticized
by the international community, see Abankwah, 185 F.3d at 23
(citing United Nations reports criticizing the practice of
FGM). The notion that Ms. Olowo’s daughters will be
removed to Nigeria and subjected to this brutal procedure
offends our sense of decency, and allowing Ms. Olowo to
make this decision unilaterally disregards the legal rights of
7
the children. See Polovchak v. Meese, 774 F.2d 731 (7th Cir.
(...continued)
(b) A surgical procedure is not a violation of subsection (a) if
the procedure:
(1) is necessary to the health of the person on whom it is
performed and is performed by a physician licensed to
practice medicine in all of its branches; or
(2) is performed on a person who is in labor or who has
just given birth and is performed for medical purposes
connected with that labor or birth by a physician li-
censed to practice medicine in all of its branches.
(c) Sentence. Female genital mutilation is a Class X felony.
7
Although federal courts generally do not interfere in family
matters, see Lossman v. Pekarske, 707 F.2d 288, 292 (7th Cir. 1983),
we do have the duty to act within the bounds of our authority
when an individual may be removed from the United States
and subjected to “procedures or punishment ‘antipathetic to a
federal court’s sense of decency.’ ” In re Burt, 737 F.2d 1477, 1485
n.11 (7th Cir. 1984) (quoting Gallina v. Fraser, 278 F.2d 77, 79 (2d
Cir. 1960)); see also Nwaokolo, 314 F.3d at 308 (granting a stay of
(continued...)
No. 03-1362 19
1985); cf. Prince v. Massachusetts, 321 U.S. 158, 170 (1944)
(“Parents may be free to become martyrs themselves. But it
does not follow they are free . . . to make martyrs of their
children before they have reached the age of full and legal
discretion when they can make that choice for them-
selves.”).
At oral argument, we asked counsel for the DHS if the
Department had alerted state authorities that Ms. Olowo
had expressed the intent to expose her daughters to the
threat of FGM. Counsel replied that, to her knowledge, the
DHS had not, but she undertook to relay our concerns to the
8
Department. We trust that the DHS will address this
(...continued)
deportation when it was arguable that “the BIA abused its dis-
cretion in denying Ms. Nwaokolo’s motion to reopen if it failed
to consider the threat that [her] four-year old daughter Victoria
will be subjected to FGM as direct consequence of the decision to
remove her mother”); Ejelonu v. INS, 355 F.3d 539, 544-53 (6th Cir.
2004) (sua sponte construing petition for review as a request for a
writ of audita querela, and granting the writ to prevent the DHS
from using a juvenile’s probation sentence for embezzlement as
basis for removing her to Nigeria); Casem v. INS, 8 F.3d 700, 702-
03 (9th Cir. 1993) (instructing the BIA to consider the effect Ms.
Casem’s deportation to the Philippines would have on her nine-
year-old son, despite the absence of any requirement in the
statute that the BIA consider hardship to an alien’s family when
considering whether to waive deportation).
8
The DHS’ predecessor organization, the INS, previously inter-
ceded to prevent alien parents from returning their son to the
former Soviet Union, where he potentially faced persecution be-
cause of his religion. See Polovchak v. Meese, 774 F.2d 731 (7th Cir.
1985). In that case, the INS suggested that the state of Illinois
institute proceedings to terminate the parents’ custody rights. See
(continued...)
20 No. 03-1362
situation and inform the Illinois state authorities that, de-
spite the children’s right to remain in the United States, Ms.
Olowo plans to take her daughters with her to Nigeria to
face what she characterizes as the very real possibility that
they may be subjected to FGM.
We also direct the Clerk of this court to send a copy of this
opinion to the appropriate office of the Illinois Department
of Children and Family Services, see 325 Ill. Comp. Stat. 5/1
et seq. (the “Abused and Neglected Child Reporting Act”),
and the Illinois State’s Attorney for Cook County, whose
duty it is to represent the people of the State of Illinois in
proceedings under the Juvenile Court Act of 1987, see 705 Ill.
Comp. Stat. 405/1-6, which protects minors from parents
who allow acts of torture to be committed on minors, see 705
Ill. Comp. Stat. 405/2-3(2)(iv). In proceedings under the
Juvenile Court Act, Ms. Olowo’s daughters will be afforded
the opportunity that immigration proceedings do not
9
provide—representation of their best interests. See 705 Ill.
(...continued)
id. at 732-33. The INS then assisted the child in applying for
asylum and even went so far as to issue a “departure control
order,” see 8 U.S.C. § 1185; 8 C.F.R. § 215.3, to prevent the child’s
parents from removing him to the Soviet Union. See Polovchak,
774 F.2d at 732-33.
9
Children of removable aliens do not have a right to repre-
sentation in immigration proceedings unless they themselves are
charged with removability. This is a flaw in the system and a
problem that has long concerned us, see Salameda v. INS, 70
F.3d 447, 451 (7th Cir. 1995), because in such situations there is a
potential conflict between the parents’ interests and those of the
children. Ms. Olowo’s daughters are both thirteen years old. They
therefore are at least at the “lower end of an age range in which
a minor may be mature enough to assert certain individual rights
(continued...)
No. 03-1362 21
Comp. Stat. 405/2-17 (directing appointment of a guardian
ad litem to represent the best interests of the minor when a
petition is filed alleging that the minor is an abused or
neglected child).
We assume that state authorities also would assess and
assert the rights of the children under the International
Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610,
and Article 13(b) of the Hague Convention on the Civil
Aspects of International Child Abduction, opened for signa-
ture Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (“the
Hague Convention”). Cf. Danaipour v. McLarey, 286 F.3d 1(1st Cir. 2002) (remanding case for determination of whether
(...continued)
that equal or override those of [their] parents.” Polovchak, 774
F.2d at 736; see also Johns v. Dep’t of Justice, 624 F.2d 522, 524 (5th
Cir. 1980) (directing the INS to ensure that a five-year-old child
is represented by a guardian ad litem in deportation proceed-
ings). But cf. Gonzalez v. Reno, 212 F.3d 1338, 1351 (11th Cir. 2000)
(finding that the INS’ determination “that six-year-old children
lack sufficient capacity to assert, on their own, an asylum
claim—is [not] unreasonable”). The children should, therefore,
have the benefit of an impartial advocate to assist them in
expressing whether they wish to return to Nigeria and possibly
face FGM. See, e.g., Crommelin-Monnier v. Monnier, 638 So. 2d 912,
916 (Ala. Civ. App. 1994) (“When a trial court is faced with the
proposed removal of minor children to a foreign country, the
appointment of a guardian ad litem for each child for the
protection of their best interests will be required.”); Unaccompa-
nied Alien Child Protection Act, H.R. 3361, 108th Cong. (2003)
(proposed law would require appointment of counsel or guard-
ian ad litem for inadmissible alien children); Peter Margulies,
Children, Parents, and Asylum, 15 Geo. Immigr. L.J. 289, 301-02
(2001) (discussing necessity for independent representation for
minors in immigration proceedings).
22 No. 03-1362
sexual abuse occurred in order to evaluate, under Article
13(b) of the Hague Convention, whether children would be
returned to situation of grave risk or intolerable conditions);
Blondin v. DuBois, 238 F.3d 153 (2d Cir. 2001) (affirming,
under Article 13(b) of the Hague Convention, the district
court’s refusal to repatriate children because of likelihood
that repatriation would subject children to recurrence of
acute, severe traumatic stress disorder stemming from prior
abuse); Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) (ordering
district court to dismiss father’s petition under the Hague
Convention because, given father’s pattern of violence and
spousal abuse, grave risk of physical harm to children
existed and, therefore, Article 13(b) exception applied).
Conclusion
For the foregoing reasons, the petition for review is de-
nied, and the judgment of the BIA is affirmed. Further, the
Clerk of this court is directed to send a copy of this opinion
to the Illinois Department of Children and Family Services
and the Illinois State’s Attorney for Cook County.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-04