United States 4th Circuit Court of Appeals Reports
HAOUA v. GONZALES, 05-2181 (4th Cir. 1-5-2007) MAHAMAN
HAOUA, Petitioner, v. ALBERTO R. GONZALES, Attorney
General, Respondent. No. 05-2181. United States Court of
Appeals, Fourth Circuit. Argued: October 25, 2006.
Decided: January 5, 2007.
On Petition for Review of an Order of the Board of
Immigration Appeals. (A97-622-225).
ARGUED: Kell Enow, Silver Spring, Maryland, for Petitioner.
Daniel Eric Goldman, UNITED STATES DEPARTMENT OF JUSTICE,
Office of Immigration Litigation, Washington, D.C., for
Respondent.
ON BRIEF: Patrick G. Tzeuton, LAW OFFICES OF PATRICK
TZEUTON & ASSOCIATES, Silver Spring, Maryland, for
Petitioner. Chuck Rosenberg, United States Attorney, Mark
A. Exley, Assistant United States Attorney, Norfolk,
Virginia, for Respondent.
Before KING, GREGORY, and SHEDD, Circuit Judges.
Petition for review granted in part and remand awarded by
published opinion. Judge King wrote the opinion, in which
Judge Gregory and Judge Shedd joined.
OPINION
KING, Circuit Judge:
Haoua Mahaman has petitioned for our review of the Order of
the Board of Immigration Appeals (the “BIA”), issued
September 26, 2005, that she be removed to Niger, her
country of origin (the “BIA Order”). See BIA Order 1 (J.A.
3).[fn1] Mahaman contends that there was a lack of
substantial evidence to support the finding of the
Immigration Judge (the “IJ”) that she had only a 10% chance
of undergoing female genital mutilation (“FGM”) if she
returned to Niger.[fn2] She maintains that the IJ therefore
erred, in his Order of June 1, 2004 (the “IJ Order”), in
denying her applications for asylum under 8 U.S.C. §
1158(b), withholding of removal under 8 U.S.C. §
1231(b)(3), and relief under the United Nations Convention
Against Torture (the “CAT”). See IJ Order 9-11 (J.A.
16-18).[fn3] As explained below, we grant Mahaman’s petition
for review in part and remand.
I.
A.
Mahaman is a forty-year-old native and citizen of Niger.
She first entered the United States on September 12, 1999,
on the basis of a student visa.[fn4] She had previously
received a degree from the University of Niamey in Niger,
and planned to continue her education in the United States.
Between 1999 and 2002, Mahaman resided in Riverside,
California, and Burlington, North Carolina. During that
period, she studied English and computer technology, and
worked as a lab technician.
In 2002, Mahaman came under pressure from her parents in
Niger to return home and marry. In August 2002, she made a
trip to Niger, hoping to dissuade her parents from their
position in that regard. When she arrived at her parents’
home, she discovered that they had already arranged for her
to marry the elderly chieftain of a nearby village, and
that, in keeping with the custom of the Hausa — the
ethnic group of which she is a member — she would be
forced to undergo FGM before marrying the chieftain.[fn5]
Mahaman concluded that she could not deter her family from
enforcing the marriage agreement and subjecting her to FGM,
and she returned to the United States after only three weeks
in Niger. An uncle who lives in Niamey, the Nigerien
capital, assisted Mahaman in her departure.
In February 2003, Mahaman, who was then in the United
States, received a letter from her brother, who lived in
Niger, informing her that, in her absence, her family had
accepted a large dowry as consideration for their promise
that she would marry the chieftain, and that a wedding
ceremony had been conducted in her absence. Her brother’s
letter advised Mahaman that she was to undergo FGM before
joining her husband’s household, and that her husband was
growing impatient for her arrival. Mahaman responded that
she would not return to Niger under those circumstances.
Her brother insisted, however, that she was already married
to the chieftain — whether she liked it or not
— and that, because her family had accepted so much
money in exchange for her, they were not in a position to
renege.
According to Mahaman, the communications with her brother
convinced her that she could not safely return to Niger.
The student visa on which she had originally entered the
United States, however, was no longer valid, and she was
consequently subject to removal to her home country. Thus,
on August 18, 2003, she applied to the United States
Citizenship and Immigration Services for asylum,
withholding of removal, and relief under the CAT, asserting
that she feared persecution and torture — in the
form of FGM — if she returned to Niger.
B.
On June 1, 2004, the IJ conducted a hearing on Mahaman’s
application. The primary evidence presented at the hearing
was Maha-man’s testimony, which the IJ found to be
credible. Mahaman testified that her family would force her
to undergo FGM if she returned to Niger. As additional
support for this contention, she submitted the State
Department’s Country Report on Human Rights Practices in
Niger, dated February 25, 2004, which indicated that
approximately one in five Nigerien women is forced to
undergo FGM, and that the practice persists among certain
ethnic groups despite a new law criminalizing it. Mahaman
testified that her ethnic group continues to practice FGM,
requiring the procedure to be performed before a woman is
married. She also testified that the Nigerien government’s
efforts to suppress FGM have been ineffective in the rural
areas of the country, including the region in which her
family resides. Despite this evidence, the IJ found that
Mahaman had only “at least a 10 percent chance” of
suffering FGM if she returned to her family in Niger. IJ
Order 9 (J.A. 16). The IJ failed to explain, however, how
he had identified “at least” 10% as the likelihood that
Mahaman would be subjected to FGM.
The IJ also considered the possibility that Mahaman could
avoid persecution by relocating within Niger. He found that
internal relocation within Niger was a feasible alternative
for Mahaman, given her level of education and the support
she had received from her uncle in Niamey. Then, having
determined that relocation was feasible, the IJ assessed
whether the protection Mahaman could obtain by relocating
was sufficient to overcome her risk of suffering FGM if she
did not relocate. At this stage of his analysis, the IJ
regarded Mahaman’s risk of suffering FGM as simply 10% (the
“10% finding”), rather than his earlier finding of “at
least” 10%. The IJ concluded that Mahaman’s “reasonably
available internal relocation alternative overcomes the 10
percent fear of FGM at the hands of her family,” and on that
basis denied her application for asylum. IJ Order 9-10
(J.A. 16-17).
The IJ also denied Mahaman’s application for withholding of
removal, explaining that, “[a]s stated earlier, I find that
under all of the circumstances it is highly unlikely that
the respondent will suffer FGM in Niger, particularly since
she can reasonably relocate to avoid it.” IJ Order 10 (J.A.
17). Finally, the IJ denied Mahaman’s application for
relief under the CAT, repeating his finding that she was
unlikely to suffer FGM, and adding that, if she did, it
would occur without the acquiescence of the Nigerien
government. Id. at 10-11 (J.A. 16-17).
On September 26, 2005, the BIA affirmed the IJ Order
without opinion. See BIA Order 1 (J.A. 3). Mahaman has
petitioned for our review of the BIA Order, and we possess
jurisdiction pursuant to 8 U.S.C. § 1252.
II.
A BIA decision that an alien is not eligible for admission
to the United States is conclusive unless manifestly
contrary to law. 8 U.S.C. § 1252(b)(4)(C). We review
the BIA’s administrative findings of fact under the
substantial evidence rule, and we are obliged to treat them
as conclusive unless the evidence before the BIA was such
that any reasonable adjudicator would have been compelled
to conclude to the contrary. 8 U.S.C. §
1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992). Because the BIA Order affirmed the IJ
Order without opinion, and specified that the IJ Order
constitutes the final agency determination in this matter,
we treat the reasoning of the IJ Order as that of the BIA
for purposes of our review. See 8 C.F.R. §
1003.1(e)(4); Camara v. Ashcroft, 378 F.3d 361, 366 (4th
Cir. 2004).
III.
A.
The legal framework for this appeal is established by the
Immigration and Nationality Act, 8 U.S.C. §§
1101-1537 (the “Act”), and the regulations implementing it.
An alien is eligible for asylum if she demonstrates that
she is unable or unwilling to return to her country of
origin because of persecution, or a well-founded fear of
persecution, on account of her race, religion, nationality,
membership in a particular social group, or political
opinion. 8 U.S.C. § 1101(a) (42)(A). Asylum is not
available, however, if the alien can avoid persecution by
relocating within her country of origin. 8 C.F.R. §
1208.13(b)(2)(ii). We have heretofore recognized that “FGM
constitutes persecution within the meaning of the [Act],”
and the Attorney General does not contend otherwise in this
proceeding. Barry v. Gon-zales, 445 F.3d 741, 745 (4th Cir.
2006) (citing Mohammed v. Gon-zales, 400 F.3d 785, 796 (9th
Cir. 2005) (“[T]he extremely painful, physically invasive,
psychologically damaging and permanently disfiguring
process of genital mutilation undoubtedly rises to the
level of persecution.”); Abay v. Ashcroft, 368 F.3d 634,
638 (6th Cir. 2004) (“Forced female genital mutilation
involves the infliction of grave harm constituting
persecution on account of membership in a particular social
group that can form the basis of a successful claim for
asylum.”); Abankwah v. INS, 185 F.3d 18, 23 (2d Cir. 1999)
(“That FGM involves the infliction of grave harm
constituting persecution . . . is not disputed here.”)); see
also In re Kasinga, 21 I. & N. Dec. 357, 365 (B.I.A. June
13, 1996) (concluding that FGM constitutes persecution
within meaning of Act).
Withholding of removal under 8 U.S.C. § 1231(b)(3)
is available to an alien who shows that it is more likely
than not that her life or freedom would be threatened in
the proposed country of removal because of her race,
religion, nationality, membership in a particular social
group, or political opinion. See 8 U.S.C. §
1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2). Relief under
the CAT (which also takes the form of withholding of
removal) requires a demonstration that the applicant is
more likely than not to be tortured in the proposed country
of removal. See 8 C.F.R. § 208.16(c)(2). For
purposes of the CAT, torture includes only conduct “by or
at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official
capacity.” Id. § 208.18(a)(1).
B.
Mahaman first assigns as error the IJ’s 10% finding,
maintaining that it was not supported by substantial
evidence. She contends that the IJ’s erroneous 10% finding
caused him to err in denying her applications for asylum,
withholding of removal, and protection under the CAT.
We are compelled to agree with Mahaman that the 10% finding
was not supported by substantial evidence. Indeed, the
Attorney General conceded this very point during oral
argument, acknowledging that, contrary to the IJ’s finding,
if Mahaman returned to her family, her likelihood of
suffering FGM would approach 100%. The Attorney General’s
concession in this regard is admirable, and it is entirely
consistent with the evidence — including Mahaman’s
testimony (which the IJ deemed credible) that her family
had, in effect, sold her to her chieftain husband, and that
the transaction would, upon her return to Niger, force her
to undergo FGM and assume her place as his wife. The 10%
finding of the IJ, by contrast, was necessarily premised on
speculation and conjecture, in that there was no
evidentiary basis for it.
The Attorney General maintains, however, that we should
affirm the BIA and IJ Orders despite the erroneous 10%
finding, because the IJ’s subsequent finding that Mahaman
could relocate in Niger to avoid FGM constitutes an
independent basis for the IJ’s denial of relief on her
application. The problem with the Attorney General’s
position is that the IJ’s finding regarding relocation was
specifically predicated on the 10% finding. Indeed, the IJ
decided that Mahaman’s “reasonably available internal
relocation alternative overcomes the 10 percent fear of FGM
at the hands of her family.” IJ Order 10 (J.A. 17)
(emphasis added). The IJ did not, however, consider whether
Maha-man’s relocation alternative could overcome a risk of
FGM greater than 10% — much less a risk approaching
100%. Rather, he analyzed the relocation issue solely on
the basis of his 10% finding. Because the 10% finding was
erroneous, the IJ’s determination that Mahaman could avoid
FGM by relocating within Niger was not supported by
substantial evidence. And, because the IJ’s analysis of
Mahaman’s relocation alternative was the reason her asylum
application was denied, that portion of the IJ Order must be
vacated.
C.
Mahaman also contends that, as a result of the IJ’s
erroneous 10% finding, the IJ erred in denying her
applications for withholding of removal under §
1231(b)(3) and for relief under the CAT. We agree with the
first of these two contentions, relating to her application
for withholding of removal. The IJ denied withholding of
removal based on his earlier analysis of Mahaman’s asylum
application. As explained above, the IJ’s findings on the
asylum issue are not supported by substantial evidence, and
those same findings were used to support his ruling
regarding the application for withholding of removal. As a
result, that aspect of the IJ Order must also be vacated.
We are obliged to reach a contrary conclusion, however, on
Maha-man’s application for protection under the CAT. In
denying Maha-man’s CAT application, the IJ relied not only
on the erroneous 10% finding, but also on his determination
that, if Mahaman did undergo FGM, it would not be with the
consent or acquiescence of the Nigerien government. It is
clear that CAT relief is available only to avoid “pain or
suffering . . . inflicted by or at the instigation of or
with the consent or acquiescence of a public official or
other person acting in an official capacity.” 8 C.F.R.
§ 208.18(a)(1) (defining torture for purposes of
CAT); see also Lopez-Soto v. Ashcroft, 383 F.3d 228, 239-41
(4th Cir. 2004) (denying CAT relief where torture was more
likely than not to occur, but would not involve government
acquiescence). Mahaman does not, in this proceeding,
challenge the IJ’s finding on that crucial point —
that if she suffered FGM upon her return to Niger, it would
not be with the acquiescence of Nigerien government
officials. We thus deny the petition for review with regard
to Maha-man’s application for relief under the CAT.
IV.
Pursuant to the foregoing, we grant Mahaman’s petition for
review insofar as it challenges the denial of her
application for asylum and withholding of removal, and we
vacate the BIA and IJ Orders with regard thereto. We remand
those aspects of this matter to the BIA for such further
proceedings as may be appropriate. On the other hand, we
deny Mahaman’s petition with respect to her application for
relief under the CAT.
PETITION FOR REVIEW GRANTED IN PART AND REMAND AWARDED
[fn1] Citations herein to “J.A. ___” refer to the contents
of the Joint Appendix filed by the parties in this appeal.
[fn2] Although the style of this case, as presented by the
parties, names the petitioner as “Mahaman Haoua,” it
appears from the record that her correct name is “Haoua
Mahaman.” We thus refer to her as “Mahaman.”
[fn3] The BIA Order of September 26, 2005, affirmed, without
opinion, the IJ Order of June 1, 2004, and specified that
the IJ Order constitutes the final agency determination in
this matter. See 8 C.F.R. § 1003.1(e)(4)
(establishing procedure for BIA affirmance without
opinion). Accordingly, we treat the IJ’s reasoning as that
of the BIA for purposes of our review. See Camara v.
Ashcroft, 378 F.3d 361, 366 (4th Cir. 2004) (“[W]hile we
review the BIA’s final order for correctness, we review the
IJ’s decision for the reasoning. . . .”).
[fn4] The factual predicate of this appeal is drawn from the
record below. Like the IJ, we rely largely on Mahaman’s
testimony, which the IJ specifically found to be credible.
See IJ Order 8 (J.A. 15).
[fn5] Female genital mutilation, commonly called FGM, is the
designation generally given to a class of surgical
procedures involving the removal of some or all of the
external genitalia, performed primarily on girls and young
women in Africa and Asia. See Abay v. Ashcroft, 368 F.3d
634, 638 (6th Cir. 2004). Often performed under unsanitary
conditions with highly rudimentary instruments, FGM is
“extremely painful,” “permanently disfigures the female
genitalia, [and] exposes the girl or woman to the risk of
serious, potentially life-threatening complications,”
including “bleeding, infection, urine retention, stress,
shock, psychological trauma, and damage to the urethra and
anus.” In re Kasinga, 21 I. & N. Dec. 357, 361 (B.I.A. June
13, 1996); see also Abay, 368 F.3d at 638. FGM can result
in the permanent loss of genital sensation in the victim
and can adversely affect sexual function. See Kasinga, 21
I. & N. Dec. at 361.