Balogun, Yetunde v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4248
YETUNDE BALOGUN,
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
Petition for Review of an Order of the Board
of Immigration Appeals
No. A77-648-768
____________
ARGUED OCTOBER 30, 2003—DECIDED JULY 1, 2004
____________
Before RIPPLE, MANION and DIANE P. WOOD, Circuit
Judges.
RIPPLE, Circuit Judge. In December of 1999, Yetunde
Balogun attempted to enter the United States without a
valid entry document or labor certification and was placed
in custody of the Immigration and Naturalization Service
(“Agency”).1 Ms. Balogun subsequently conceded her re-
1
Recently, the Immigration and Naturalization Service was
abolished, and its immigration enforcement function was trans-
ferred to the Bureau of Immigration and Customs Enforcement
(continued...)
2 No. 02-4248
movability but sought asylum under § 208(a) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1158(a), withholding of removal under § 241(b)(3) of
the INA, 8 U.S.C. § 1231(b)(3), and withholding of removal
under the United Nations Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“Convention Against Torture”), as imple-
mented in 8 C.F.R. § 208.16(c). On June 20, 2001, an immi-
gration judge (“IJ”) denied her requests and ordered that
she be removed; the Board of Immigration Appeals (“BIA”)
affirmed without opinion on December 6, 2002. This petition
followed. For the reasons set forth in the following opinion,
we deny the petition for review and affirm the decision of
the BIA.
I
BACKGROUND
A. Facts
Ms. Balogun was born in 1972 in Nigeria and is currently
a citizen of Nigeria. She is from the Yoruba tribe, “a State
1
(...continued)
in the newly created Department of Homeland Security. See
Gonzalez v. O’Connell, 355 F.3d 1010, 1011 n.1 (7th Cir. 2004). To
avoid confusion, we shall refer to this entity as the “Agency.”
This petition for review challenges the decisions of the Executive
Office for Immigration Review (Board of Immigration Appeals
and immigration court), which is a component of the United
States Department of Justice. Attorney General John D. Ashcroft
is the head of the Department of Justice. The Attorney General,
therefore, is correctly listed in the caption as the sole respondent.
See 8 U.S.C. § 1252(b)(3) (2000) (explaining that the respondent is
the Attorney General when the immigration court proceeding
commenced after April 1, 1997).
No. 02-4248 3
called Ogun, with a hometown of Osheilli.” A.R. 334. After
high school, she attended Ogun State University for five
or six years and received a degree in accounting. From
1996 or 1997 to 1999, Ms. Balogun lived in Lagos2 with
her parents, three brothers and one sister and worked as an
accountant. In either March or April of 1999, she was
married in Lagos to “Obu Kaloko,” who is from the state of
Delta and has a Urgghob tribal affiliation. Id. at 96.
According to an affidavit Ms. Balogun placed in the rec-
ord, “about two weeks” after she got married, her parents
sent for her because they had “visitors from the village
wanting to know when [she] would be performing the ‘rites
of womanhood,’ ” commonly known as circumcision or
female genital mutilation (“FGM”). Id. at 334. Ms. Balogun
had “heard stories of this happening” but had “never
discussed such a topic” with her family. Id. She did not
believe that her father agreed with this practice, but “he did
not want to go against the words and authority of his
tribesmen.” Id. at 334-35.
Ms. Balogun’s “nightmare began thereafter.” Id. at 335.
She was “constantly being harassed and intimidated” by
tribal members. Id. She explained:
I felt sad and depressed. I had constant migraine and
panic attacks just thinking of the whole process. . . . I
would get back from work and find three to four people
waiting for me and telling me that I was being stubborn
and this was something I was eventually going to have
to do. It got to the point that I had to stop going to
work. I would lock myself inside the house and refuse
2
The record does not contain great detail about her childhood,
but Ms. Balogun testified that she lived in Lagos “[p]ractically
all” of her life. A.R. 93.
4 No. 02-4248
to answer bells or knocks at night. I had to switch off all
lights, so it would seem like no one was home.
Id. When it got to the point where she “just couldn’t handle
it,” she and her husband went to his home state of Delta. Id.
at 100. They only stayed there for “two or three” weeks due
to civil unrest in the area; they then returned to Lagos. Id. at
101.
In May of 1999, Ms. Balogun and her husband went to
visit her brother in Columbus, Ohio. When they returned to
Lagos, Ms. Balogun’s mother informed her that “they were
still looking for” her and “pressuring” her to undergo FGM.
Id. She and her husband then went to London for “two or
three” weeks and from there came to the United States in
September of 1999. Id. At this time, they lived with her
brother in Ohio. In November, she began working in a shoe
shop as a sales representative or cashier. In early December
of 1999, she went to London to visit her parents. She
explained: “I just . . . had to talk to my dad and explain to
him about the whole thing . . . just for him to be on my side
and tell him I didn’t have to” undergo FGM, but “he said it
wasn’t his choice. That’s tradition.” Id. at 103-04. Ms.
Balogun claimed that, up until this point, she thought her
parents would tell the tribal elders she did not have to go
through it. However, Ms. Balogun explained, after this trip
to London, she decided that she could not go back to
Nigeria.
On December 12, 1999, Ms. Balogun attempted to return
from London to the United States, but she was stopped for
an immigration inspection at Chicago’s O’Hare Interna-
tional Airport and found to be without a valid entry doc-
ument or labor certification. At her airport interview, Ms.
Balogun explained that she was married, but she falsely
stated that she thought her husband was in Nigeria but was
not sure because they did not talk. Id. at 345. She also had a
No. 02-4248 5
picture of her husband, id. at 125, which she told the
immigration official was her “boyfriend,” id. at 347. Ms.
Balogun later explained that she told these lies because “I
was just picked up from the airport, and I was scared that
they were going to pick him up too.” Id. at 124.
Ms. Balogun also told the immigration official that she
had come to the United States on two previous occasions.
She falsely claimed that the purpose of a previous trip was
to “buy [ ] things to sell” in her country, and that she had
come back to the United States to “buy some more things
and sell.” Id. at 345-46. Ms. Balogun later explained that
“I didn’t want to tell them I was working because . . . I was
scared . . . because I knew I wasn’t supposed to be work-
ing.” Id. at 105. Ms. Balogun was asked the following at the
end of her interview:
Q. Do you have any fear or concern about being re-
turned to your home country or being removed from
the United States?
A. I don’t know, Maybe[.]
Q. Would you be harmed if you are returned to your
home country or country of last residence?
A. May be [sic], I don’t know[.]
Id. at 348.3
3
Ms. Balogun had a credit card application, among other doc-
uments, in her possession when she was stopped in the airport.
This application, which was signed by Ms. Balogun on December
4, 1999, listed her residence as Ohio, her employer as “DSW” and
her “source of other income” as “Daily Mart.” A.R. 352. It also
contained a social security number. Id. She also had in her
possession a work statement from Shonac Corporation with some
(continued...)
6 No. 02-4248
At some point, Ms. Balogun told the immigration officials
that she had a fear of going back to Nigeria. A “Form I-275”
dated December 13, 1999, notes: “About the time the subject
had to be taken to her flight to depart the United States, she
claimed she had fear to go back to her home country.” Id. at
350. Ms. Balogun was then transported to Paige County Jail.
There, she met with her attorney, who then accompanied
her to her “credible fear” or “well-founded fear” interview.
Id. at 126-27. At this interview, she told immigration officials
that she could not return to Nigeria because she would be
forced to undergo FGM. Id. at 106.
At her merits hearing, Ms. Balogun explained that she
knew she would have to undergo FGM if she returned be-
cause her mother told her “they’re still harassing them [her
parents] and asking why I haven’t come back and what
my dad is doing about it.” Id. She explained that it was her
father’s family who sought to have her undergo FGM.
Specifically, she linked the FGM practice which was being
forced upon her to the elders from her village, Osielle,
which is in Ogun State. See id. at 111 (“This—the traditional
thing has to do with my village . . . .”); id. at 113-14 (explain-
ing the “village elders of Osielle are the ones” insisting she
undergo FGM). She further explained that, although she
lived in Lagos and visited Osielle infrequently, the elders
could and would come to Lagos, which was about an hour
and a half away, on a regular basis. Id. at 114.
Ms. Balogun submitted into evidence a March 2001 hand-
written letter to her from her mother at the merits hearing.
3
(...continued)
of the same information. Id. at 354. In her interview, she ex-
plained that she had a social security card. Id. at 346-47. She
admitted that she did not have permission to work in the United
States. Id. at 347.
No. 02-4248 7
Id. at 272. This letter stated: “The elders keep asking when
you are coming back to perform the traditional rites.” Id.
The letter asked Ms. Balogun not to blame her father for not
preventing the elders from forcing her to undergo
FGM because it is “his tradition, his mother and sisters went
through it and the [sic] expect his daughters to do the
same.” Id. The letter concludes by “Mum” explaining that
she supported Ms. Balogun and encouraged her to “stay
away for as long as possible.” Id. Ms. Balogun testified that
she was unsure if her mother had undergone FGM. Id. at
110. She also testified to her belief that her sister, who was
eighteen at the time of the hearing, had not undergone
FGM. Id. at 56.
Ms. Balogun also entered into evidence a number of doc-
uments regarding the prevalence of FGM in Nigeria. The
1997 Department of State Position Paper or Bulletin on FGM
notes that different studies place the rate of FGM from sixty
to ninety percent but that “anecdotal evidence suggests”
that the current rate is “probably under” fifty percent “and
gradually decreasing.” Id. at 153. This Paper specifically
confirms that the Yoruba tribe practices FGM. Id. at 154. It
notes that there is “little active government support for the
national campaign against FGM, [but] governmental
officials have voiced their support for the movement.” Id. at
155. The 2000 Department of State Country Report on
Human Rights notes two studies which identify the inci-
dence of FGM at approximately fifty and sixty percent,
respectively. Id. at 255. The Report states that the country
has “taken no legal action to curb the practice. There are no
federal laws banning FGM.” Id. at 254-55. It explains that
some states, including Ogun, have banned FGM, but “the
punishments imposed are minimal.” Id. at 255. The Report
also notes that the press repeatedly criticize the practice and
“most observers agree that the number of females who are
8 No. 02-4248
currently subjected to FGM is declining.”4 Id.
B. Agency Proceedings
The first Notice to Appear which was issued to Ms.
Balogun was stricken by the IJ because it contained numer-
ous errors.5 The amended Notice to Appear charged her
as being removable because she was an alien seeking ad-
mission to perform labor without a valid labor certificate
under § 212(a)(5)(A) of the INA, 8 U.S.C. § 1182(a)(5)(A),
and as an alien not in possession of a valid entry document
under § 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)
(A)(i)(I). In a November 7, 2000 hearing before the IJ,
Ms. Balogun conceded that she was removable on these
grounds; however, she informed the IJ that she would be
seeking asylum under § 208(a) of the INA, 8 U.S.C.
§ 1158(a), withholding of removal under § 241(b)(3) of the
INA, 8 U.S.C. § 1231(b)(3), and withholding of removal
under the Convention Against Torture, as implemented in
8 C.F.R. § 208.16(c).
4
Other documents entered into evidence were generally con-
sistent with the conclusions in the 1997 Paper and 2000 Country
Report. See A.R. 158-59 (article from the Canadian Immigration
and Refugee Board); id. at 164-263 (Nigeria country assessment
prepared by Britain’s Immigration and Nationality Directorate).
5
This notice incorrectly identified Ms. Balogun as Chinese.
A.R. 364. It also erroneously charged her with misrepresenting
her true identity when she entered the United States. Id. Ms.
Balogun’s counsel explained that what he thinks happened is that
Ms. Balogun’s paperwork was processed “with a number of
people—some of whom were Chinese, and apparently in putting
the paperwork together, they put a set of facts from one person
and transposed it into her charges.” Id. at 55.
No. 02-4248 9
On June 20, 2001, after a hearing on the merits, the IJ
issued an oral opinion denying Ms. Balogun’s requested
relief. Beginning with the asylum claim, the IJ explained
that “[t]he central issue in this case . . . I think is not the
background information but rather the credibility of this
particular applicant.” A.R. 43. The IJ principally relied upon
three factors that, in his opinion, affected adversely Ms.
Balogun’s credibility. First was the timing of the claim. The
IJ explained that, on her previous trips, Ms. Balogun had not
sought asylum or otherwise expressed a fear of returning to
Nigeria. Ms. Balogun claimed that she told her cousins in
Ohio of her fear, the IJ noted, but she produced no evidence
to corroborate that claim nor did she explain why such
evidence would be difficult to obtain. The IJ further relied
on the fact that, when asked by immigration officials at the
airport whether she feared returning to Nigeria, Ms.
Balogun responded: “I don’t know. Maybe.” Id. at 44. The IJ
did not credit her claim that this statement was made out of
nervousness.
The second reason that caused the IJ to doubt Ms.
Balogun’s fear was credible was Ms. Balogun’s family
situation. Specifically, the IJ noted that Ms. Balogun did not
know if her mother or sister had undergone FGM. Lastly,
the IJ doubted Ms. Balogun’s credibility because of the
misrepresentations she made during her airport interview.
The IJ recognized that these misrepresentations did not
involve “a material aspect of the respondent’s claim,” but he
found they did show a “propensity to dissemble and to
distort the truth when the need arises. It is I think relevant
in a case where the respondent is essentially asking the
Court to accept her account at face value.” Id. at 46. For
these three reasons, the IJ concluded that Ms. Balogun’s
“expressed fear of returning to Nigeria because of FGM is
not a credible fear.” Id. at 47.
10 No. 02-4248
The IJ then added that he found Ms. Balogun’s back-
ground information on FGM as it relates to her situation
to be inadequate. He explained that “the background in-
formation, although showing that FGM continues to be a
problem in Nigeria, does not provide the sort of support
that the respondent has contended. For example, the re-
spondent is from Ogun State which has passed a law
against the practice.”6 Id. For these reasons, the IJ denied
Ms. Balogun’s asylum request. The IJ then denied Ms.
Balogun’s requests for withholding of removal under the
INA and the Convention Against Torture7 and ordered that
Ms. Balogun be removed from the United States to Nigeria.
II
DISCUSSION
A. Standard of Review
Because the BIA summarily affirmed the IJ’s opinion, we
6
Earlier in the opinion, the IJ explained his view of the reports
submitted into evidence:
What these reports indicate is that FGM is a problem in
Nigeria; that in some areas it’s not practiced, in other areas
it’s declining; that the government has, through its public
health organizations and agents, opposed FGM but that there
is no law against it. However, the reports also state that in
Ogun State the practice has been outlawed. This is notable in
this case insofar as the respondent is from Ogun State and
lived there.
A.R. 42-43.
7
Ms. Balogun did not address her claim pursuant to the
Convention Against Torture in her opening brief. Therefore, the
claim is abandoned, and we shall not further address it. See
Luellen v. City of East Chicago, 350 F.3d 604, 612 n.4 (7th Cir. 2003).
No. 02-4248 11
base our review on the IJ’s analysis. See Mousa v. INS, 223
F.3d 425, 428 (7th Cir. 2000). We review the IJ’s denial of Ms.
Balogun’s petition for asylum and withholding of removal
under the highly deferential substantial evidence test. See
Ememe v. Ashcroft, 358 F.3d 446, 450 (7th Cir. 2004). Pursuant
to this test, we must uphold the IJ’s findings if they are
supported by reasonable, substantial, and probative evi-
dence on the record considered as a whole; we may reverse
the IJ’s determinations only if we determine that the
evidence compels a different result. See INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992); Ememe, 358 F.3d at 451; see also 8
U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact
are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.”). The IJ’s
“[c]redibility determinations are questions of fact and
should only be overturned under extraordinary circum-
stances, although they must be supported by specific,
cogent reasons that bear a legitimate nexus to the finding.”
Pop v. INS, 270 F.3d 527, 530-31 (7th Cir. 2001) (internal
quotation marks and citations omitted).
B. Asylum
8 U.S.C. § 1158(b)(1) affords the Attorney General the
discretionary authority to grant “asylum to an alien . . . if
the Attorney General determines that such alien is a refugee
within the meaning of section 1101(a)(42)(A) of this title.”
Section 1101(a)(42)(A) defines “refugee” as one who is
unable or unwilling to return to her country “because
of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a par-
ticular social group, or political opinion.” The burden of
proof is on Ms. Balogun to show that she is a “refugee” and
is eligible for asylum. See 8 C.F.R. § 208.13(a).
12 No. 02-4248
The Agency does not dispute, at least with any force, that
the type of FGM which Ms. Balogun has alleged is “perse-
cution.”8 See Tesfu v. Ashcroft, 322 F.3d 477, 480-81 (7th Cir.
2003) (defining “persecution”); see also In re Kasinga, 21 I.
& N. Dec. 357, 358, 1996 WL 379826 (BIA 1996) (en banc)
(holding that FGM may constitute “persecution”). The
Agency also does not challenge that her “persecution”
would be “on account of” one of the statutory grounds. See
8 U.S.C. § 1101(a)(42)(A). Rather, at issue in this case is the
validity of Ms. Balogun’s claimed “well-founded fear” of
FGM if she returns to Nigeria. See 8 C.F.R. § 208.13(b)(2).
“[T]he well-founded fear standard [requires] a showing of
a ‘reasonable possibility’ of persecution.” Sayaxing v. INS,
179 F.3d 515, 520 (7th Cir. 1999). As we have explained, the
“well-founded fear” test breaks down into two components:
The asylum applicant must show (1) that she has a genuine,
subjective fear of persecution and (2) that her fear is objec-
tively reasonable.9 See Selimi v. Ashcroft, 360 F.3d 736, 740
8
“[P]ersecution cognizable under the Act can emanate from
sections of the population that do not accept the laws of the
country at issue, sections that the government of that country
is either unable or unwilling to control.” Borja v. INS, 175 F.3d
732, 735 n.1 (9th Cir. 1999) (en banc); see also Chitay-Pirir v. INS,
169 F.3d 1079, 1081 (7th Cir. 1999); Sotelo-Aquije v. Slattery, 17 F.3d
33, 37 (2d Cir. 1994) (“[T]he statute protects against persecution
not only by government forces but also by nongovernmental
groups that the government cannot control.”); Bartesaghi-Lay v.
INS, 9 F.3d 819, 822 (10th Cir. 1993) (“[I]t is apparently agreed
that the possible persecution to be established by an alien in
order for him to be eligible for asylum may come from a
non-government agency which the government is unwilling or
unable to control.”).
9
Because Ms. Balogun has not stated a claim of “past perse-
(continued...)
No. 02-4248 13
(7th Cir. 2004) (explaining that an asylum applicant must
show a “subjective fear” and that “a reasonable person in
his shoes would fear persecution”). The “subjective fear
component turns largely upon the applicant’s
own testimony and credibility.” Capric v. Ashcroft, 355 F.3d
1075, 1085 (7th Cir. 2004); see also Duarte de Guinac v. INS,
179 F.3d 1156, 1159 (9th Cir. 1999) (“An alien satisfies the
subjective component by credibly testifying that he gen-
uinely fears persecution.”). The objective component re-
quirement can be met “either through the production of
specific documentary evidence or by credible and persua-
sive testimony.” Duarte de Guinac, 179 F.3d at 1159.
As these statements reveal, credibility is the linchpin of a
“well-founded fear” claim. This is especially true of the
subjective component, on which the IJ focused in denying
Ms. Balogun’s claim. See A.R. 43, 47 (“The central issue in
this case . . . is . . . the credibility of this particular applicant.
. . . I have concluded that the respondent’s expressed fear of
returning to Nigeria because of FGM is not a credible fear .
. . .”). “A credibility analysis assesses the applicant’s claim
only for internal consistency, detail, and plausibility,” in
light of the applicant’s testimony and the background
evidence. Capric, 355 F.3d at 1086. The applicable regula-
tions and our case law explain that the “testimony of the
applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.” 8 C.F.R. § 208.13(a) (em-
phasis added); see also Capric, 355 F.3d at 1085.
However, if the IJ finds the testimony to be incredi-
ble, then a convincing explanation of the discrepancies
or extrinsic—and credible—corroborating evidence
is required. See, e.g., de Leon-Barrios v. INS, 116 F.3d
9
(...continued)
cution,” as understood in 8 C.F.R. § 208.13(b)(1), we shall not
discuss that somewhat different route to asylum relief.
14 No. 02-4248
391, 393-94 (9th Cir. 1997). Without such an explana-
tion or corroboration, whether included with the ap-
plication, presented at the hearing, or submitted via a
motion to reopen the case to supplement the record
during the pendency of an appeal to the BIA, the
applicant cannot meet his burden of proof and his
asylum claim will fail. See, e.g., Mansour v. INS, 230 F.3d
902, 906 (7th Cir. 2000) (affirming asylum denial where
applicant’s testimony was riddled with discrepancies,
which the applicant failed to explain except to allege a
language difficulty); Malek v. INS, 198 F.3d 1016, 1019-21
(7th Cir. 2000) (affirming asylum denial where the
applicant’s testimony was found to be “vague, [and]
lacking in internal consistency and plausibility” and
where corroborating testimony was unpersuasive
because the witnesses had limited knowledge of the
alien’s experiences in his home country); Ahmad v. INS,
163 F.3d 457, 461-63 (7th Cir. 1999) (affirming asylum
denial where applicant’s testimony conflicted with his
asylum application, where the IJ disbelieved a letter
corroborating the applicant’s membership in a political
party, and where the applicant failed to submit addi-
tional corroborative evidence).
Capric, 355 F.3d at 1086.
The IJ cited three pieces of evidence that caused him to
enter an adverse credibility determination: (1) the timing
of Ms. Balogun’s claim, (2) her particular family situation
and family history with FGM and (3) “her lack of credibility
at critical moments in the past.” A.R. 47. In addition, he
noted that the “background information, although showing
that FGM continues to be a problem in Nigeria, does not
provide the sort of support that the respondent has con-
No. 02-4248 15
tended.”10 Id. Ms. Balogun challenges the three listed factors
as not going to “the heart of Petitioner’s claim” and as
lacking evidentiary foundation. Petitioner’s Br. at 22-23. She
further alleges that the “background information”
“confirm[s] the high incidence of FGM in Nigeria and
establish[es] that Petitioner’s claim that she fears being
subjected to FGM is plausible.” Id. at 27. We shall analyze
each of these factors in turn.
1. Timing
The IJ’s first reason for questioning Ms. Balogun’s cre-
dibility—the “timing of her claim”—is probative and sup-
ported by the evidence. As he noted, Ms. Balogun traveled
to the United States and Britain several times after being
married and subjected to threats of FGM without ever
seeking asylum from either of these countries. Compare In re
Kasinga, 21 I. & N. Dec. 357, 359, 1996 WL 379826 (BIA 1996)
(en banc) (“The applicant did not attempt a fraudulent entry
into the United States. Rather, upon arrival at Newark
International Airport on December 17, 1994, she immedi-
ately requested asylum.”).11 Indeed, not only did Ms.
10
Ms. Balogun’s brief to this court argues that the IJ’s reasons for
its adverse credibility determination are not “specific” or “co-
gent” enough to allow her “to meet the IJ’s adverse credibility
determination on appeal.” Petitioner’s Br. at 21. Therefore, she
argues, her due process rights have been violated. Id. (citing
Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003)).
The IJ’s credibility findings were stated adequately; they do not
implicate due process concerns.
11
In In re Kasinga, 21 I. & N. Dec. 357, 1996 WL 379826 (BIA 1996)
(en banc), the BIA held that a nineteen-year-old applicant estab-
(continued...)
16 No. 02-4248
Balogun not seek asylum, but the IJ found that she never
expressed a fear of being forced to undergo FGM to anyone
on her trips to the United States. Ms. Balogun testified that
she expressed her fear to her cousins in Ohio; however, the
IJ did not credit that claim because Ms. Balogun lacked
corroboration. A.R. 43 (noting that the cousins “have not
testified nor presented any statement” and Ms. Balogun
“hasn’t explained what effort, if any, she has made to obtain
such statement where her cousins are in Ohio”). As we
discuss further infra, in this case, we cannot fault this use of
the corroboration rule to discredit this claim.
Perhaps most damaging to Ms. Balogun’s credibility,
when she was detained at O’Hare on her third attempted
trip into the United States in December of 1999, Ms. Balogun
was specifically asked at her airport interview whether she
had “any fear or concern about being returned” to Nigeria
and whether she would be harmed if she returned to
Nigeria, to which she replied: “I don’t know” and
“[m]aybe.” Id. at 348; see Ramsameachire v. Ashcroft, 357 F.3d
11
(...continued)
lished a well-founded fear that her aunt and forty-five-year-old
husband would force her to undergo FGM if she returned to
Togo. In this case, the IJ explained that Ms. Balogun’s personal
and family situation is in “sharp contrast” to the applicant in
Kasinga because Ms. Balogun is a mature, university-educated
woman who is “now married to a man who is not from her
tribe.” A.R. 47. This is an important distinction from Kasinga.
However, the critical distinction between Kasinga and this case is
that the BIA found the applicant in Kasinga to be credible. See In
re Kasinga, 21 I. & N. Dec. at 365. Here, the IJ did not, and, as we
discuss further infra, we cannot hold that the record compels a
different result. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)
(“To reverse the BIA finding we must find that the evidence not
only supports that conclusion, but compels it . . . .”).
No. 02-4248 17
169, 180-81 (2d Cir. 2004) (“Where the alien’s airport
statements and his or her later testimony present materially
different accounts of his or her purported persecution,
however, the inconsistencies may render the alien’s testi-
mony incredible.”).
Ms. Balogun offered a series of explanations for these
“timing” factors. She explained that, on her first trip to the
United States, she believed that, when she returned home,
her relatives would have relented. She explained that, on
her second trip, she was still under the assumption her
father would intervene to prevent his relatives from forcing
her to undergo FGM. Finally, she explained that, on her
third trip to the United States—the trip after her father told
her he would not help her—she told the immigration offi-
cials that she was not sure if she had fear of returning to
Nigeria because she was nervous. Furthermore, she em-
phasized that FGM was something she was reluctant to
discuss. Although we believe these explanations might be
regarded as plausible, the IJ, looking at them cumulatively,
did not. We cannot say that the record commands a different
result. See 8 U.S.C. § 1252(b)(4)(B) (explaining that factual
findings, such as credibility, “are conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary”).
We have deferred our discussion of the corroboration rule
in this circumstance to the end of our inquiry into this factor
because it requires a more elaborate discussion. Corrobora-
tion can arise in a number of contexts. First, it comes into
play when the IJ has determined that the petitioner’s
testimony, standing alone, is credible. In this context,
8 C.F.R. § 208.13(a) explains that “[t]he testimony of the
applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.” (emphasis added). The BIA
has interpreted this regulation to mean that, indeed,
18 No. 02-4248
credible testimony alone may be sufficient; “[h]owever,
where it is reasonable to expect corroborating evidence for
certain alleged facts pertaining to the specifics of an appli-
cant’s claim, such evidence should be provided” to support
the testimony and failure to supplement the testimony with
corroborating evidence under these circumstances “can lead
to a finding that an applicant has failed to meet her burden
of proof.” In re S-M-J-, 21 I. & N. Dec. 722, 725-26, 1997 WL
80984 (BIA 1997) (en banc).12
Corroborative evidence also may be important when the
IJ has yet to assess definitively the credibility of the pe-
titioner. The situation can present itself in at least two
different contexts. In certain circumstances, the IJ may de-
termine that the failure of the petitioner to present certain
foundational evidence that is reasonably available to the
petitioner casts such a cloud on the testimony offered by the
petitioner as to require a determination that the testimony
is incredible. In these circumstances, the IJ must, of course,
exercise great prudence in determining what can be ex-
pected of the petitioner in the circumstances presented by
the case. For instance, conditions in another country or the
economic circumstances of the petitioner may render
unreasonable what might be considered very reasonable
and therefore expected in typical domestic civil litigation. In
12
The Ninth Circuit has rejected this interpretation, see Ladha v.
INS, 215 F.3d 889, 901 (9th Cir. 2000) (“[A]n alien’s testimony, if
unrefuted and credible, direct and specific, is sufficient to
establish the facts testified without the need for any corrobora-
tion.”), while other circuits have accepted the BIA’s interpreta-
tion, see, e.g., Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003).
As we noted in Capric v. Ashcroft, 355 F.3d 1075, 1085, 1086 n.4
(7th Cir. 2004), we have not yet had occasion to decide this matter
in a definitive way.
No. 02-4248 19
reviewing the need for corroboration, the BIA and this court
must guard against reliance on hindsight in assessing the
IJ’s determination.
Corroboration also can be important when, for any reason,
the IJ determines that the testimony of the petitioner, while
not mendacious, cannot be accepted at face value. It is not
necessary to determine that the petitioner has lied in order
to decline to accept that person’s version of events. As in the
case of all witnesses in any kind of proceeding, time and
circumstances may have caused the petitioner’s memory to
be less than accurate, or the situation may not have afforded
the petitioner an opportunity to obtain a global perspective.
Infirmity, injury or emotion may have taken its toll on the
individual’s perspective. In any of these situations, the IJ
must turn to the entire record to determine whether, despite
an impaired perspective, the petitioner nevertheless has
made out a sufficient case.
The corroboration requirement—especially the corrobora-
tion requirement of the second variety—is becoming a
staple in these types of immigration cases. See, e.g., Capric,
355 F.3d at 1091. No matter what form of corroboration is at
issue, the corroboration requirement should be employed
reasonably. It is always possible to second-guess the
petitioner as to what evidence would be most cogent, and,
consequently, there is a distinct danger that, in practice, the
corroboration requirement can slip into “could have-should
have” speculation about what evidence the applicant could
have brought in a text-book environment. The IJs need to
take to heart the BIA’s blunt admonition that corroboration
should be required only as to “material facts” and only
when the corroborative evidence is reasonably accessible. In
re S-M-J-, 21 I. & N. Dec. 722, 725, 1997 WL 80984 (BIA 1997)
(en banc).
20 No. 02-4248
In this case, the corroboration sought was “material” to
Ms. Balogun’s case. An obvious problem for Ms. Balogun’s
claimed fear is that she articulated it only when faced with
a concrete threat of deportation. Ms. Balogun had been to
Britain and the United States on multiple occasions after the
prospect of her having to submit to the ordeal of FGM
developed. Nevertheless, she never sought asylum, and,
according to Ms. Balogun, the only person she told of her
fear of FGM was a cousin. The government’s cross-examina-
tion then called even that into question:
Q. Did you tell anybody about your circumcision
threats when you were here in May?
A. I told my cousins.
....
Q. And were do they live? Where does she live?
A. She lives in Columbus.
Q. Okay. Did she come to Court today?
A. No.
Q. Did she submit an affidavit?
A. No.
A.R. 117-18. Despite the fact that her cousin (or cousins)
could validate her fears and rebut the government’s sug-
gestion that Ms. Balogun’s alleged fears were simply a last-
minute effort to avoid deportation, Ms. Balogun offered
no explanation to the IJ as to why her live testimony or
affidavits were unattainable. In this circumstance, we can-
not say the IJ was not justified in giving some weight to the
lack of corroboration in its adverse credibility determina-
tion.
No. 02-4248 21
2. Family History
The next factor upon which the IJ relied was Ms.
Balogun’s professed ignorance as to whether her mother
or sister had undergone FGM. The inference, of course, is
that, if she does not know if her own family members had
undergone FGM, then it is questionable as to whether she
would be expected to—much less forced to—undergo FGM.
This inference is questionable with respect to her eighteen-
year-old sister: Ms. Balogun consistently explained that, in
her village, FGM occurred after a woman is married and her
sister is unmarried. With respect to her mother, however, in
assessing the petitioner’s credibility, the IJ was entitled to
give some weight to the petitioner’s assertion that she was
unaware whether her own mother, with whom she alleg-
edly communicated on numerous occasions about FGM
after she was married, had undergone FGM. It is true, as
Ms. Balogun notes, that a letter from “Mum” in the evidence
states that her father’s “mother and sisters went through it.”
A.R. 273-74. Ms. Balogun also claims that FGM was not
something talked about among her family. Nevertheless,
after reviewing her testimony on this point, see, e.g., id. at
109-13, and noting that, in fact, she did communicate with
her mother about FGM, we cannot say that a reasonable
trier of fact would have to find her explanation plausible.
3. Past Credibility
Finally, the IJ relied on Ms. Balogun’s “past credibility,”
by which he was referring to her misrepresentations at her
airport interview on her last trip in December of 1999 into
the United States. At this interview, Ms. Balogun misrep-
resented that a photograph of her husband that she had
in her possession was her boyfriend, and she also falsely
claimed that she was estranged from her husband. Further,
22 No. 02-4248
she misrepresented that her purpose in a prior trip to the
United States was to buy things to sell in her country, and
also misrepresented that her current trip was for the same
purpose. The IJ held that these inconsistencies, while not
directly connected to the heart of her alleged fear of pers-
ecution, “show a propensity to dissemble and to distort the
truth when the need arises” and are “relevant in a case
where the respondent is essentially asking the Court to
accept her account at face value.” A.R. 46.
Inconsistencies that do not relate to the basis of the ap-
plicant’s alleged fear of persecution are less probative than
inconsistencies that do. See Capric, 355 F.3d at 1075. Never-
theless, multiple misrepresentations to Agency officials can
serve as a factor in the credibility calculus; lying in a sworn
statement is not irrelevant to credibility. The IJ did not seize
on a few omitted details to conjure up an inconsistency; Ms.
Balogun’s misrepresentations were numerous and apparent.
Cf. Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996)
(explaining that an “applicant’s testimony is not per se
lacking in credibility simply because it includes details that
are not set forth in the asylum application”); Damaize-Job v.
INS, 787 F.2d 1332, 1337 (9th Cir. 1986) (holding that minor
discrepancies in birth dates of children between the applica-
tion and oral testimony were “trivial” errors that did not
reflect on the petitioner’s credibility, especially when the
applicant had no motivation to misrepresent those dates).
This also is not a case in which the adverse credibility
determination rests solely on inconsistencies that do not go
to the heart of the petitioner’s case; rather, the IJ justifiably
set these misrepresentations against the backdrop of the
whole record and considered them as one factor in his
credibility determination. See Secaida-Rosales v. INS, 331 F.3d
297, 308 (2d Cir. 2003) (explaining that the impact of
“outright inconsistencies” and “omissions” must “be
measured against the whole record before they may justify
No. 02-4248 23
an adverse credibility determination”). Finally, the IJ’s
refusal to credit Ms. Balogun’s explanations for these
misrepresentations—that she was nervous—is justified. Ms.
Balogun’s own testimony at the merits hearing reveals that
these misrepresentations were calculated attempts to
mislead the immigration officials. See A.R. 105 (explaining
that she lied about her purpose in entering the United States
because “I didn’t want to tell them I was working, because
I knew I wasn’t supposed to be working”); id. at 124 (ex-
plaining that she lied about her husband because “I was just
picked up from the airport, and I was scared that they were
going to pick him up too”).
Ms. Balogun challenges whether the IJ may rely on the
airport interview at all. She claims that the transcript from
the interview in the record is unreliable. The airport inter-
view is more than the basis of the “past credibility” factor.
It also is the source of the most damaging evidence, cited in
the “timing” factor, that, at her airport interview, she was
asked whether she had any fear of returning to Nigeria or
any reason to believe she would be harmed if she returned
to Nigeria, and she responded: “[m]aybe” and “I don’t
know.” Id. at 348.
The Second Circuit recently synthesized the case law on
the probative value and reliability of airport interviews
in subsequent immigration proceedings. See Ramsameachire
v. Ashcroft, 357 F.3d 169 (2d Cir. 2004). As Ramsameachire
and numerous other cases explain, airport interviews only
are useful and probative if they are reliable. Id. at 179-81
(discussing cases). Reliability concerns not only the accuracy
and validity of the documents on which airport interviews
are recorded, but also the applicant’s frame of mind and
ability to answer the interviewer’s questions. Id. For exam-
ple, if there are language barriers or if the applicant has a
reasonable fear of governmental authority (perhaps because
24 No. 02-4248
the applicant recently has been subjected to governmental
abuse or coercion), then evasive answers on the question of
fear of persecution would not be a reliable indicator of a
true lack of fear. See id. The Second Circuit set out a useful,
non-exclusive list of factors to consider in the reliability
equation:
First, a record of the interview that merely summarizes
or paraphrases the alien’s statements is inherently less
reliable than a verbatim account or transcript. Second,
similarly less reliable are interviews in which the ques-
tions asked are not designed to elicit the details of an
asylum claim, or the INS officer fails to ask follow-up
questions that would aid the alien in developing his or
her account. Third, an interview may be deemed less
reliable if the alien appears to have been reluctant to
reveal information to INS officials because of prior
interrogation sessions or other coercive experiences in
his or her home country. Finally, if the alien’s answers
to the questions posed suggest that the alien did not
understand English or the translations provided by the
interpreter, the alien’s statements should be considered
less reliable. Examining the interview in light of these
factors will focus the agency’s inquiry on whether the
record of the interview accurately reflects the alien’s
statements, whether the alien had a full opportunity to
express him- or herself, and whether the alien’s state-
ments are likely to reflect his or her actual beliefs and
fears.
Id. at 180 (internal quotation marks and citations omitted).
Ms. Balogun’s first key challenge to the transcript is that,
on the first page of the transcript, she is incorrectly identi-
fied as a “male.” A.R. 344. Ms. Balogun’s second key chal-
lenge is that the date on the transcript is December 13, 1999,
id., and this is “a whole day off” from the date of her actual
arrival, Petitioner’s Br. at 16. It is obvious that these were
No. 02-4248 25
minor clerical errors—for example, the question and answer
portion of the transcript reveals that there was, in fact, no
confusion regarding Ms. Balogun’s gender, see A.R.
345—and, on this record, these errors do not call into serious
question the reliability of the airport interview. Any concern
that we might have about the transcript reflecting the
substance of the interview is relieved by the fact that Ms.
Balogun did not object to this document’s admission into
evidence. Moreover, at the merits hearing, she did not
dispute as inaccurate her recorded representations (and
misrepresentations); indeed, she openly admitted many of
them. See id. at 105 (admitting that she lied about entering
the country to buy things to sell in Nigeria); id. at 124-25
(admitting that she lied about her husband). Even on this
appeal, she does not challenge as falsely recorded or untrue
the representations and misrepresentations relied upon by
the IJ.
Moreover, the record reveals that Ms. Balogun is a well-
educated, mature woman who speaks adequate English.
The transcript was sworn and subscribed as true and cor-
rect; Ms. Balogun signed not only the last page indicating
her belief “this statement is a full, true and correct record of
my interrogation,” but she also initialed each page. Id. at
348. Nothing suggests that she did not completely under-
stand the questions or the consequences resulting from her
answers.13 The transcript is typed in a “Q.” and “A.” for-
13
Before the “Q.” and “A.” section, Ms. Balogun was informed
that, if she lied or gave misinformation, she could be “subject to
criminal or civil penalties, or barred from receiving immigration
benefits or relief now or in the future.” A.R. 344. She was also
told that, if she had a fear of returning home due to harm or
persecution, she should so state during the interview, and that
“[y]ou will have the opportunity to speak privately and confiden-
(continued...)
26 No. 02-4248
mat. At the end of her interview—immediately after she
was asked if she had any concern about being returned to
her home country or if she would be harmed if she returned
and responded “[m]aybe” and “I don’t know”—she was
asked: “Do you have any questions or is there anything else
you would like to add?” Id. at 348. Her only response was:
“Can I stay for a year[?]” Id. Although Ms. Balogun stated
that she was understandably nervous at this interview, she
did not suggest that any form of coercive technique was
used, and the record does not support that she has been
subject to any such techniques at any point in the past.
Given all these factors, we are confident that the airport
interview, and the transcript of it in the record, are reliable
and probative of Ms. Balogun’s true fear.14
13
(...continued)
tially to another officer about your fear or concern. The officer
will determine if you should remain in the United States and not
be removed because of fear.” Id. She was informed that “[a]ny
statement you make may be used against you in this or any
subsequent administrative proceeding.” Id. She was then asked:
Q. Do you understand what I’ve said to you?
A. Yes
Q. Do you have any questions?
A. No
Q. Are you willing to answer my questions at this time?
A. Yes
Id.
14
Ms. Balogun also suggests that the transcript of the airport
interview was not admitted into evidence and was stricken or
withdrawn. Given that her counsel voiced no objection to the
admittance of the transcript, both counsel questioned her on the
transcript during the merits hearing, and then the IJ relied on the
(continued...)
No. 02-4248 27
4. Other Documentary Evidence
We now turn our attention to the other documentary evi-
dence in this case, the most important of which, according
to Ms. Balogun, are the reports on the state of FGM in
Nigeria and the March 18, 2001 letter from Ms. Balogun’s
mother. Although the IJ focused on the three factors ana-
lyzed above in making his adverse credibility determina-
tion, he did not ignore these other pieces of evidence. As to
the reports on FGM in Nigeria, the IJ noted that, although
these reports demonstrate that FGM continues to be a
“problem” in Nigeria, they do “not provide the sort of
support that the respondent has contended.” A.R. 47. Ms.
Balogun has again relied extensively on these reports in this
court. Although we agree that these reports reveal that FGM
is not just a “problem,” but a serious one, see Nwaokolo v.
INS, 314 F.3d 303, 308-10 (7th Cir. 2002), we nevertheless
must conclude that the IJ treated these reports adequately in
this case.
The latest Department of State Country Report in the
record is from 2000, and it notes two studies that put the
incidence of FGM in Nigeria at approximately fifty and six-
ty percent, respectively. A.R. 255. Ms. Balogun notes that, in
Nwaokolo, we noted that the incidence of FGM has been
reported as high as ninety percent. 314 F.3d at 308. How-
ever, a June 1, 2001 State Department Report or Bulletin on
FGM in Nigeria which is cited in Nwaokolo and which we
may take judicial notice of, id., puts the incidence of FGM in
14
(...continued)
transcript in his adverse credibility determination, her suggestion
is obviously without foundation. Finally, Ms. Balogun suggests
that the IJ’s reliance on the transcript violated her due process
rights; this too is patently without merit, especially given that no
objection was voiced to its admission into evidence.
28 No. 02-4248
Ogun State—where Ms. Balogun is from and where she
claims the source of her threat arises—at thirty-five to forty-
five percent. See Nigeria: Report on Female Genital Mutila-
tion (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. This is much more probative
than the national figures cited, given that the incidence of
FGM often varies significantly from state to state.15 See id.
Moreover, as the IJ noted, the 2000 Country Report, and
other reports in the record, indicate that the incidence of
FGM is declining and that Ogun is one of the states to have
outlawed FGM. See, e.g., A.R. 255 (State Department 2000
Country Report). Although other facts in these reports sup-
port Ms. Balogun’s claim and the continuing problem of
FGM in Nigeria generally, see id. (noting that state-imposed
punishments for FGM are “minimal”), we cannot say that
the IJ exceeded his bounds in interpreting these reports and
applying them to the situation of this particular applicant.
Cf. Gonazelez-Hernandez v. Ashcroft, 336 F.3d 995, 1000
(9th Cir. 2003) (“[W]here the BIA rationally construes
an ambiguous or somewhat contradictory country report
and provides an ‘individualized analysis of how changed
conditions will affect the specific petitioner’s situation,’
Borja v. INS, 175 F.3d 732, 738 (9th Cir. 1999) (en banc)
15
The June 1, 2001 Bulletin on FGM in Nigeria noted in Nwaokolo
v. INS, 314 F.3d 303, 308 (7th Cir. 2002), was issued just weeks
before the IJ’s decision, and Nwaokolo was issued well after the
IJ’s decision. The IJ apparently did not have the June 1, 2001
Bulletin before him when he made his decision, and we do not
mean to imply that his findings were inadequate without it. We
note the June 1, 2001 Bulletin and its findings because Ms.
Balogun relies heavily upon Nwaokolo, which in turn relies upon
this Bulletin, on this appeal and because it is important to our
discussion.
No. 02-4248 29
(citation and internal quotation marks omitted), substantial
evidence will support the agency determination.”). The IJ
was certainly within the substantial evidence boundary in
determining that, while relevant, these reports could not
revive the applicant’s credibility. See In re S-M-J-, 21 I.
& N. Dec. 722, 729, 1997 WL 80984 (BIA 1997) (en banc)
(“Adverse credibility determinations are appropriately
based on inconsistent statements, contradictory evidence,
and inherently improbable testimony; and where these cir-
cumstances exist in view of the background evidence on
country conditions, it is appropriate for an Immigration
Judge to make an adverse credibility determination on such
a basis.”).
The same rationale applies to the other piece of doc-
umentary evidence upon which Ms. Balogun extensively
relies: the March 18, 2001 letter from “Mum,” which states,
inter alia, that the “elders keep asking when you are coming
back to perform the traditional rites.” A.R. 273-74. The IJ
noted the letter, but he clearly believed that it could not
overcome the other “very disturbing aspects of the respon-
dent’s credibility in this case.” Id. at 43. We agree with Ms.
Balogun that this letter supported her claim by helping to
corroborate her story, but it is not the type of evidence
which, in the face of the other evidence and the IJ’s findings,
would allow us to overturn the IJ’s decision.
This case, like so many asylum cases, has a record which
plausibly could support two results: the one the IJ chose and
the one Ms. Balogun advances. Nevertheless, for this court
“[t]o reverse the BIA [or IJ] finding we must find that the
evidence not only supports [the opposite] conclusion, but
compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
The IJ found Ms. Balogun’s claim of fear to be incredible,
and he cited specific, cogent reasons that bore a legitimate
nexus to that finding. Because the evidence does not compel
30 No. 02-4248
a different result, we must affirm the IJ’s denial of Ms.
Balogun’s asylum claim, and the BIA’s summary affirmance
of the IJ’s decision.
C. Withholding of Removal
Section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), pro-
vides that “the Attorney General may not remove an alien
to a country if the Attorney General decides that the alien’s
life or freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” In order to
gain relief under this Section, “the applicant must demon-
strate a clear probability of persecution,” which is “a much
more demanding burden” than is found in the asylum
context. Capric, 355 F.3d at 1095. Therefore, as we have often
said, “if an applicant’s asylum claim fails, his withholding
of deportation claim will also necessarily fail.” Id. Because
we have held that the IJ’s decision denying Ms. Balogun’s
asylum relief must be upheld, we must also uphold his
decision denying Ms. Balogun’s claim for withholding of
deportation.
Conclusion
For the foregoing reasons, the petition for review is
denied, and the judgment of the BIA is affirmed.
PETITION FOR REVIEW DENIED; AFFIRMED
No. 02-4248 31
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-1-04