Nwaokolo, Philomena v. Ashcroft, John ( 2002 )

In the
United States Court of Appeals
for the Seventh Circuit
____________
No. 02-2964
PHILOMENA IWEKA NWAOKOLO,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
No. A27-226-360
____________
ON MOTION FOR STAY OF REMOVAL
DECEMBER 27, 2002*
____________
Before POSNER, RIPPLE and MANION, Circuit Judges.
*
This opinion is being initially released in typescript form.
No. 02-2964 Page 2
PER CURIAM. Philomena Nwaokolo asks that we stay her
removal pending review of the denial of her petition to reopen the
removal proceedings. We conclude that venue is proper in this court
and that a stay is appropriate pending our plenary review of this
matter. In our view, Ms. Nwaokolo has met her burden of
establishing that she has a better than negligible chance of
prevailing on the merits and that she and her daughter, an United
States citizen, will suffer irreparable injury if she is removed from
the United States at this time. More precisely, she has
demonstrated that the INS has failed to consider that her four-year
old United States citizen daughter will be subjected to the brutal
practice known as female genital mutilation (commonly referred to
as “FGM”) if she must accompany her mother to Nigeria.
I
Ms. Nwaokolo, a native and citizen of Nigeria, legally entered
the United States in the early 1980s on an F-2 visa for spouses or
children of academic students. When Ms. Nwaokolo accepted
employment as a nursing aid in violation of the terms of the visa,
the INS commenced deportation proceedings against her. The
immigration judge (“IJ”) ordered Ms. Nwaokolo deported, but
granted her voluntary departure through May 1986. Ms. Nwaokolo
did not appeal the IJ’s order, but she failed to depart.
In October 1996, Ms. Nwaokolo, by then the mother of two
sons and a daughter, obtained counsel and began her efforts to
obtain permission to remain in this country. She twice moved to
reopen her case, but an IJ denied both motions, one in February
1997 and one in August 1997. The Board of Immigration Appeals
(“BIA”) affirmed, and Ms. Nwaokolo did not petition for review. In
July 1999, Ms. Nwaokolo (again through counsel) filed a third
motion to reopen her case under 8 C.F.R. §§ 3.2 and
208.18(b)(3)(ii)(A), this time seeking protection under the
No. 02-2964 Page 3
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, as implemented by the INS,
see 8 C.F.R. § 208.16(c). Ms. Nwaokolo claimed that she and her
thirteen-year old daughter Rachel, a United States citizen who has
spent her entire life in this country, would be subjected to FGM if
Ms. Nwaokolo were deported to Nigeria. In May 2001, the BIA
denied the motion but granted Ms. Nwaokolo a stay of deportation
through March 6, 2002. The BIA opined that Ms. Nwaokolo
“offered no evidence or claim that she would be tortured in
Nigeria.” A.R. 118. The BIA decision includes no discussion of
FGM and does not mention Rachel. Ms. Nwaokolo did not seek
review of the BIA’s decision.
In February 2002, Ms. Nwaokolo filed a fourth motion to
reopen her case on the ground that her circumstances had changed,
see 8 § C.F.R. 3.2(c)(3)(ii), since she filed her third motion to reopen.
It is this motion that gives rise to Ms. Nwaokolo’s petition for
review and stay motion. In the motion, Ms. Nwaokolo reasserted
her claim under the Convention Against Torture, but this time with
respect to her second daughter Victoria (who was not yet born when
Ms. Nwaokolo first asserted her torture claim). Ms. Nwaokolo cited
as changed circumstances (1) Victoria’s birth in October 1999, (2)
an unpublished November 23, 2001, decision wherein the BIA
granted a motion to reopen under circumstances substantially
similar to Ms. Nwaokolo’s, and (3) new legal protections and
remedies under the Convention Against Torture. Along with her
motion, Ms. Nwaokolo presented a State Department memorandum
describing FGM and the serious physical and psychological injury
that the procedure inflicts on those subjected to it. Ms. Nwaokolo
also tendered Country Reports on Human Rights Practices for 2000,
S. Rep. No. 107-32 (2001), authored by the State Department, which
confirms that FGM remains “widely practiced” in Nigeria. The BIA
denied the motion to reopen on June 28, 2002, concluding that (1)
the applicable regulations limit an alien to one motion to reopen
absent changed circumstances, see 8 C.F.R. § 3.2(c)(2), and (2) Ms.
No. 02-2964 Page 4
Nwaokolo failed to establish that she should be excepted from the
one-motion limit based on changed circumstances because she was
simply reasserting the same claim that the BIA had rejected when
it denied her third motion to reopen. The BIA decision is again
silent about FGM and includes no discussion of Ms. Nwaokolo’s
daughter Victoria.
Thereafter, Ms. Nwaokolo filed her petition for review in this
court and requested that we stay her removal pending resolution of
the petition. We ordered a temporary stay to allow the parties to
more thoroughly brief the issues raised in the stay motion. When
the parties filed their briefs, a potential problem came to our
attention: The IJ who originally decided Ms. Nwaokolo's case was
sitting in St. Paul, Minnesota, which is within the jurisdiction of the
United States Court of Appeals for the Eighth Circuit. We therefore
ordered the parties to brief the question whether this case should be
transferred to the Eighth Circuit. The parties have filed their briefs
on that issue, and we conclude that venue is proper in this circuit
and that a stay pending resolution of Ms. Nwaokolo's petition for
review is appropriate.
II
A. Venue
Section 1252(b)(2) of Title 8 of the United States Code,
entitled “Venue and forms,” provides that a “petition for review
shall be filed with the court of appeals for the judicial circuit in
which the immigration judge completed the proceedings.” Ms.
Nwaokolo maintains that § 1252(b)(2) is merely a venue provision
that, read properly, does not require us to transfer this case.
Specifically, Ms. Nwaokolo argues that (1) her motion to reopen was
filed and decided in Chicago, Illinois, so that the “proceedings” at
issue were “completed” in the Seventh Circuit, and (2) even if the
No. 02-2964 Page 5
proceedings were completed in the Eighth Circuit, the INS has
waived its objection to venue here.
The INS takes a different approach. In its view, Ms.
Nwaokolo’s “underlying case before the immigration judge began
and ended prior to April 1, 1997. In light of this, the case is
governed by the transition rules for judicial review as set forth in
Section 309(c)(4)(D) of [IIRIRA],” Response at 2 (internal citations
omitted). The transitional rules, in turn, apply the venue rule of §
1252(b). The INS further maintains that § 1252(b) is not only a
venue requirement, but also a jurisdictional requirement.
Consequently, the INS argues, jurisdiction over Ms. Nwaokolo’s
petition lies only with the Eighth Circuit--the circuit in which the
underlying deportation proceedings were concluded.
It is true that Ms. Nwaokolo’s case “began and ended prior to
April 1, 1997.” However, it is also true that Ms. Nwaokolo’s
proceedings were commenced, and a final order of deportation was
first entered, prior to October 31, 1996.1 Consequently, Ms.
Nwaokolo’s petition is not governed by the transition rules, but by
the former judicial review provision, 8 U.S.C. § 1105a. See Kalaw
v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997).
The former judicial review provision stated that “the venue
for any petition for review under this section shall be in the judicial
circuit in which the administrative proceedings before a special
inquiry officer were conducted in whole or in part . . . .” 8 U.S.C. §
1105a (1994). In this case, part of the proceedings were conducted
1
An IJ first found Ms. Nwaokolo deportable on December 11,
1985. See AR. 220-22. Ms. Nwaokolo did not appeal this decision
to the BIA; consequently, the order became a final order of
deportation after the expiration of ninety days (the time for appeal),
see 8 U.S.C. § 1101(a)(47)(B).
No. 02-2964 Page 6
in this circuit. That is because Ms. Nwaokolo’s motion to reopen is
part and parcel of her deportation proceedings. Cf. Chow v. INS,
113 F.3d 659, 664 (7th Cir. 1997) (“Congress has not clearly
expressed an intent to depart from the long line of Supreme Court
and appellate court decisions interpreting ‘order of deportation’ to
include orders denying motions to reconsider and reopen.”),
abrogated on other grounds by LeGuerre v. Reno, 164 F.3d 1035 (7th
Cir. 1998). The record reveals that in October 1996 the Executive
Office for Immigration Review advised Ms. Nwaokolo that her case
was “under the administrative control of the Immigration Court in
Chicago, Illinois,” and instructed Ms. Nwaokolo to "submit
appropriate documents to that office." It therefore is apparent that
the INS had transferred Ms. Nwaokolo's deportation proceedings to
its Chicago office. See 8 C.F.R. § 3.2(i) (“If the order [from the BIA
disposing of a motion to reopen] directs a reopening and further
proceedings are necessary, the record shall be returned to the
Immigration Court or the officer of the Service having
administrative control over the place where the reopened
proceedings are to be conducted.”). Thus, the proceedings were
conducted “in part” in Chicago where Ms. Nwaokolo was directed
to make her filings, and venue for Ms. Nwaokolo’s petition for
review lies with this court.
Even if the INS is incorrect, and the operative “final order”
is the BIA’s denial of Ms. Nwaokolo’s fourth motion to reopen
issued on June 28, 2002, the same result obtains. In that case, the
transition rules of IRRIRA would apply because they set forth the
venue requirements for deportation and exclusion cases in
proceedings on April 1, 1997 and in which a final order was issued
on or after October 31, 1996. The transition rule states that “the
petition for review shall be filed with the court of appeals for the
judicial circuit in which the administrative proceedings before the
special inquiry officer or immigration judge were completed.” With
respect to the BIA’s denial of Ms. Nwaokolo’s fourth motion to
reopen, the operative final order under this scenario, the
No. 02-2964 Page 7
proceedings before the immigration judge were completed in
Chicago. Consequently, even assuming a later-in-time final order,
venue still lies with this court.
In any event, the INS has waived any objection to venue in
this circuit by failing to object to this court’s consideration of the
case until we requested briefing on the transfer question months
after Ms. Nwaokolo filed her petition and stay motion. Willis v.
Caterpillar, Inc., 199 F.3d 902, 905 (7th Cir. 1999) (stating that
party waives venue if it fails to timely object on that ground).2
2
As noted above, the INS urges us to conclude that
§ 1252(b)(2) is a jurisdictional provision and argues that, because
the IJ initially decided this case in the Eighth Circuit, only that
court has jurisdiction to consider Ms. Nwaokolo’s petition for
review. Although some courts have used the term “jurisdictional”
in reference to § 1252(b)(2), see, e.g., Hyun Min Park v. Heston, 245
F.3d 665, 666 (8th Cir. 2001); Rodriguez v. Reno, 178 F.3d 1139,
1144 (11th Cir. 1999), we think it is clearly a venue provision. As an
initial matter, the above-cited cases offer no rationale that supports
construing § 1252(b)(2) to deprive any circuit court of appeals of
subject matter jurisdiction over any petition for review. Cf. Drakes
v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001) (characterizing
§ 1252(b)(2) as a “jurisdictional bar” to filing petitions for review in
federal district court).
Moreover, we have held that comparable provisions in other
statutes are venue and not jurisdictional provisions. See State of
New York v. Envtl. Prot. Agency, 133 F.3d 987 (7th Cir. 1998)
(holding that § 7607(b)(1) of the Clean Air Act, which requires
“nationally applicable” petitions for review to be filed in the D.C.
Circuit and “locally or regionally applicable” petitions to be filed in
the regional circuits, is a venue provision). In State of New York, we
(continued...)
No. 02-2964 Page 8
B. The Merits
A movant seeking a stay of deportation must show (1) “some”
likelihood that her petition for review will succeed on the merits; (2)
that irreparable harm will occur if the stay is denied; (3) that the
potential harm to the movant outweighs the harm the INS will
suffer if a stay is granted; and (4) that a stay serves the public
2
(...continued)
explained the difference between venue and jurisdictional provisions
as follows:
Provisions specifying where a suit shall be filed, as
distinct from specifying what kind of court or other
tribunal it shall be filed in, are generally considered to
be specifying venue rather than jurisdiction. It would
be usurpative for a federal court to assert jurisdiction
over a case that the Constitution or statute had
consigned to a state court, or even for a federal district
court to assert jurisdiction over a case that should
have been brought in a federal court of appeals . . .
But it is not usurpative for one federal court of appeals
to assert jurisdiction . . . over a case that it would have
been authorized to adjudicate if only the effects of the
order sought to be reviewed had been felt in one part
of the country rather than another.
133 F.3d at 990 (citations omitted); see also Sprague v. King, 23
F.3d 185, 188 (7th Cir. 1994) ("[T]hat [the APA] directs claims . . .
to the federal circuit rather than to the district courts and regional
courts of appeals, is more in the nature of a venue rule . . . than of
a limitation on jurisdiction."). We believe that State of New York
and Sprague control and, accordingly, that § 1252(b)(2) is a venue
and not a jurisdictional provision.
No. 02-2964 Page 9
interest. Sofinet v. INS, 188 F.3d 703, 706-07 (7th Cir. 1999). To
satisfy the likelihood-of-success prong, Ms. Nwaokolo need only
show that her chances of success are “better than negligible.” Id.
We have described the Sofinet analysis as a “sliding scale.” Id.
Thus, the more likely it is that Ms. Nwaokolo will succeed on the
merits, the less the balance of irreparable harm needs to weigh in
her favor; similarly, the less likely success is, the more the balance
of harm must weigh in her favor. Id.
To prevail on her petition for review, Ms. Nwaokolo must
demonstrate that the BIA abused its discretion in denying her
motion to reopen. See Arreola-Arellano v. INS, 223 F.3d 653, 655
(7th Cir. 2000). Our review is “limited to whether the discretion
was actually exercised and whether it was exercised in an arbitrary
or capricious manner.” Akinyemi v. INS, 969 F.2d 285, 288 (7th
Cir. 1992). We shall reverse the BIA’s decision if it was made
“without a rational explanation.” Mansour v. INS, 230 F.3d 902,
907 (7th Cir. 2000); Akinyemi, 969 F.2d at 288.
1. Likelihood of Success
We believe that Ms. Nwaokolo has a better than negligible
chance of meeting her burden on appeal. “[T]he exercise of
discretion in a particular case necessarily requires [the BIA’s]
consideration of all facts and circumstances involved.” Akinyemi,
969 F.2d at 289. We have recognized that when an alien minor’s
parents are deported, the minor “will have to follow his parents into
exile . . . he is constructively deported and should therefore, one
might suppose, be entitled to ask—or more realistically his parents’
lawyer should be entitled to ask on his behalf—for [discretionary
relief].” Salameda v. INS, 70 F.3d 447, 451 (7th Cir. 1995). The
INS offers no reason why Victoria, a United States citizen with a
fundamental right to be in this country, see Schneider v. Rusk, 377
U.S. 163, 167 (1964), should be entitled to any less consideration
No. 02-2964 Page 10
from the BIA or this court, especially when she faces not simply the
hardship of living in another country, but, despite her United States
citizenship and her age, the prospect of torture in that country. It
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 FGM as a direct
consequence of the decision to remove her mother. Cf. Casem v.
INS, 8 F.3d 700, 702-03 (9th Cir. 1993) (citing authority from the
Third, Fifth and Ninth Circuits holding that the exercise of
discretion requires the BIA to consider “all relevant factors” and
that the BIA abused its discretion in failing to consider the relevant
factor of the hardship to United States citizen children that would
result from deportation of alien parents).
The record before us offers no reason to believe that the BIA
ever considered the threat to Victoria from the widespread practice
of FGM in her mother’s home country of Nigeria. The BIA
concluded that Ms. Nwaokolo failed to show changed circumstances
based on its conclusion that it already had considered and rejected
Ms. Nwaokolo’s claim that she and her elder daughter Rachel would
become victims of FGM if she is removed to Nigeria. We find this
reasoning problematic in two respects. First, the BIA did not
consider at all the effect that removing her mother would have on
Rachel. The BIA’s written denial of Ms. Nwaokolo’s third motion
to reopen concludes only that Ms. Nwaokolo “offered no evidence or
claim that she would be tortured in Nigeria,” A.R. 118; the decision
is devoid of any discussion of the threat that Rachel would be
subjected to FGM. Second, even if we were to speculate from its
silence that the BIA had evaluated the threat to Rachel in refusing
to reopen proceedings as to Ms. Nwaokolo, that would not in our
view constitute consideration of the threat to Victoria.
Our view is informed by an understanding of how FGM is
practiced in Nigeria, which information we take from the State
Department’s reports on the subject. Ms. Nwaokolo presented some
No. 02-2964 Page 11
of this information to the BIA. Regardless, we can take judicial
notice of the State Department’s reports on current country
conditions that the BIA failed to consider and that are crucial to our
decision. See Meghani v. INS, 236 F.3d 843, 848 n.1 (7th Cir. 2001);
Dobrota v. INS, 195 F.3d 970, 973 (7th Cir. 1999). According to the
State Department, at all times during Ms. Nwaokolo’s efforts to
have the BIA consider the threat that her daughters would be
subjected to FGM, the ritual was widely practiced and legal in
Nigeria; indeed, 60 to 90 percent of the female population of Nigeria
are subjected to it “anytime from a few days after birth to a few days
after death.” See Nigeria: Report on Female Genital Mutilation
(FGM) or Female Genital Cutting (FGC), June 1, 2001, Dep’t St.
Bull., available at http:/www.state.gov/g/wi/rls/rep/crfgm/10106.htm.
FGM is a horrifically brutal procedure, often performed without
anesthesia. Id. According to the State Department memorandum
that Ms. Nwaokolo attached to her motion to reopen,
Female Genital Mutilation (FGM) is the removal or
infibulation (or both) of whole or part of the external
female genitals (clitoris, labia minora, and labia
majora). The procedure can include sewing the vagina
almost completely closed after the genitals are
removed (infibulation) . . . .
The World Health Organization and other United
Nations organizations, as well as the United States
government, recognize that FGM has very serious
effects on the health of women and girls. Immediate
complications of FGM include severe pain, shock,
hemorrhage, urine retention, ulceration of the genital
region, and injury to the adjacent tissue. Hemorrhage
and infection can cause death.
Long term consequences of FGM include cysts and
abscesses, keloid scar formation, painful intercourse,
No. 02-2964 Page 12
and sexual dysfunction. The most extreme forms of
FGM can cause infertility, and may also cause an
increase in the risk of stillbirths and maternal deaths.
Psychological consequences of FGM in childhood can
include behavior disturbances and loss of trust and
confidence in caregivers. As adults, these women may
suffer feelings of incompleteness, anxiety, depression,
chronic irritability, and frigidity, and may experience
marital conflicts.
See R. at 110-11. Further, FGM seems deeply embedded in Nigerian
culture. “Nigerians continue this practice out of adherence to a
cultural dictate that uncircumcised women are promiscuous,
unclean, unmarriageable, physically undesireable and/or potential
health risks to themselves and their children, especially during
childbirth.” See, infra, Nigeria: Report on Female Genital
Mutilation (FGM) or Female Genital Cutting (FGC). The BIA itself
has expressly recognized the prevalence and brutality of FGM:
This practice [FGM] clearly inflicts harm or suffering
upon the girl or woman who undergoes it. FGM is
extremely painful and at least temporarily
incapacitating. It permanently disfigures the female
genitalia. FGM exposes the girl or woman to the risk
of serious, potentially life-threatening complications.
These include, among others, bleeding, infection,
urine retention, stress, shock, psychological trauma,
and damage to the urethra and anus . . . . [I]t remains
practically true that [African] women have little legal
recourse and may face threats to their freedom,
threats or acts of physical violence, or social
ostracization for refusing to undergo this harmful
traditional practice or attempting to protect their
female children.
No. 02-2964 Page 13
In re Kasinga, 21 I. & N. Dec. 357, 361-62 (BIA 1996) (holding that
fear of FGM is a basis for seeking asylum).
Based on our understanding of FGM as practiced in Nigeria
and on the age difference between Rachel and Victoria, we believe
that, contrary to the INS’ assertion that the BIA considered
Victoria’s interests when it denied Ms. Nwaokolo’s third motion to
reopen, the threat FGM poses to Victoria is qualitatively different
from that to Rachel. Unlike Rachel, who was born July 18, 1985,
and as a seventeen-year old could conceivably remain in this
country, Victoria was born October 1, 1999, and as a four-year old
will presumably have no choice but to depart with Ms. Nwaokolo to
Nigeria. Rachel, who was thirteen years old when Ms. Nwaokolo
argued to the BIA that the threat to Rachel from FGM was reason
to reopen her case, was already more capable, both physically and
mentally, of resisting FGM than Victoria would be now at age four.
Victoria also would have to live with the threat of FGM for many
years before she could choose to return to the United States, a much
longer period of time than Rachel would have to face the threat, if
the INS effectively compels both girls to involuntarily relocate to
Nigeria despite their United States citizenship.
In short, we think it obvious that, even if the BIA had
considered and rejected the threat to Rachel from FGM (and there
is no indication that this consideration occurred), that fact would
not dispose of the threat to Victoria, which involves a different set
of circumstances. As a result, Ms. Nwaokolo has a colorable
argument that the BIA abused its discretion when it (1) failed to
consider the State Department’s reports on current conditions in
Nigeria, and (2) concluded without explanation, and in the face of
its own recognition in Kasinga of the serious threat FGM poses to
its victims, that Rachel’s and Victoria’s interests are one in the
same. See Mansour, 230 F.3d at 907 (holding that BIA abused
discretion in denying Iraqi alien’s motion to reopen under CAT
No. 02-2964 Page 14
without addressing a State Department report suggesting that the
Iraqi government has engaged in abuses against Assyrian Christians
like petitioner and stating that silence regarding the report
indicated that BIA did not afford a complete review to Iraqi alien’s
claim); see also Abassi v. INS, 305 F.3d 1028, 1031 (9th Cir. 2002)
(holding that BIA abused discretion in failing to consider State
Department’s easily obtainable reports on current country
conditions even though applicant failed to attach report to asylum
application).
2. The Remaining Sofinet Factors
When we consider the foregoing along with the other Sofinet
factors, the propriety of a stay becomes even clearer. The severity
of the harm that Ms. Nwaokolo, Rachel, and Victoria face if Ms.
Nwaokolo is removed to Nigeria is obvious. The harm to the INS if
we grant a stay is negligible. It is true that a stay will result in some
delay in the INS’ efforts to remove Ms. Nwaokolo. However, we find
it significant that, according to the record, the INS has known for
years exactly where Ms. Nwaokolo resides and has not actively
sought to expedite her removal.
Finally, a stay promotes the public’s compelling interest in
ensuring that minor United States citizens are not forced into exile
to be tortured. This compelling interest is magnified here because
neither Rachel nor Victoria has ever been represented by counsel or
has ever had their interests considered by the BIA or any court.
Nor is there any evidence in the record that the INS has ever
notified responsible state authorities of the departure of these minor
United States citizens to a country where they would be in
immediate danger of significant harm. The government could never
do to these girls in this country what the INS seems all too willing
to allow to happen to them in Nigeria. At a minimum, the issues we
No. 02-2964 Page 15
have discussed here deserve a full airing by way of a petition for
review.
Accordingly, we GRANT Ms. Nwaokolo's stay motion and
order that her removal be STAYED pending resolution of the
petition for review. Additionally, we DIRECT the parties to brief,
in addition to any other issues they choose to address in their merits
briefs, the following questions:
1. Was the BIA required to consider the hardship
of Ms. Nwaokolo’s United States citizen
daughters in denying her motion to reopen and,
if so, did the BIA adequately consider such
hardship?
2. When the INS has reason to believe that
removal of an alien parent will place the United
States citizen child at risk of physical injury,
does the INS have an obligation to notify the
appropriate state authorities charged with
protecting child welfare?
IT IS FURTHER ORDERED that briefing in this appeal shall
proceed as follows:
1. Ms. Nwaokolo shall file her main brief by
January 27, 2003.
2. The INS shall file its response brief by
February 26, 2003.
3. Ms. Nwaokolo shall file her reply brief,
if any, by March 12, 2003.
No. 02-2964 Page 16
Ms. Nwaokolo’s “Motion For Default Judgement [sic] Based
On Late Filing By Respondent,” filed on November 18, 2002, is
DENIED.