Agbor, Irene A. v. Gonzales, Alberto R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2015
IRENE ARREY AGBOR and
TERRY AYUK ETTA AGBOR EBAI,
Petitioners,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A95-600-264 & A95-600-265.
____________
ARGUED JANUARY 23, 2007—DECIDED MAY 25, 2007
____________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Soon after getting married,
the petitioners fled their home country of Cameroon and
sought asylum in the United States because the bride’s
mother insisted—to the point of death threats—that the
bride be circumcised. Irene Agbor refused, calling the
process of female circumcision “a violent ritual mutilation
of the female genitalia.” Her husband, Terry A.E. Agbor
Ebai, agreed and opposed the practice. But an immigra-
tion judge, relying on general country report information
suggesting that female circumcision is not ubiquitous in
Cameroon, concluded that their fears of future persecu-
tion were unreasonable. The Board of Immigration Appeals
2 No. 06-2015
affirmed in a separate opinion, and this petition for review
followed. Both the IJ and the BIA disregarded critical
evidence in the petitioners’ favor, and their reasons for
discounting the petitioners’ fears are problematic. We
therefore vacate the underlying decision and remand for
further proceedings consistent with this opinion.
I. BACKGROUND
We draw upon the petitioners’ asylum application and
testimony at an immigration hearing in relaying these
background facts.1 Agbor and Ebai were married in the
summer of 2001 in a traditional Cameroonian ceremony.
Agbor was 25 years old at the time. Shortly after the
wedding, Agbor traveled from her new town of Mamfe to
visit her parents in their village, Dequa. (Both Mamfe and
Dequa are in the Southwest Province of Cameroon.) Her
mother told her that it was time “to do their tradition”—in
other words, circumcision, which in the west is com-
monly referred to as female genital mutilation (FGM).2
1
The IJ did not make an adverse credibility finding against the
petitioners.
2
We have described FGM as a “horrifically brutal procedure”
in which some or all of the exterior female genitalia is removed.
It is usually performed without anesthesia and using unsterile
and rudimentary instruments such as razor blades, knives, or
broken glass. See Nwaokolo v. INS, 314 F.3d 303, 308-09 (7th
Cir. 2002) (per curiam). Because of its profound traumatic
effects—including severe pain, shock, urine retention, hemor-
rhage and infection (potentially leading to death), sexual
dysfunction, and infertility—FGM has been roundly condemned
by the international community. See Olowo v. Ashcroft, 368 F.3d
692, 702 (7th Cir. 2004). It is also prohibited by federal law,
18 U.S.C. § 116, and by the laws of two of the three states in this
(continued...)
No. 06-2015 3
Agbor did not want to be circumcised, so she stalled for
time, saying she would need to talk to her husband first.
When she returned home, Ebai rejected the idea of circum-
cision as well, saying he “would not accept the situation.”
When Agbor and Ebai did not follow up with Agbor’s
mother, both her parents paid the couple a visit in Mamfe,
again insisting that “in our tradition when a girl gets
married she must be circumcised.” After arguing the
matter for several hours, Agbor’s parents left. They
returned a few weeks later accompanied by a witch doctor.
This caught the young couple’s attention—Agbor testified
that a witch doctor had killed several members of her
village by poison—but Ebai was able to forestall a deci-
sion by saying they would wait until after they registered
their marriage. Two weeks after they did so, Agbor’s
parents returned and made an ultimatum: if Agbor re-
fused to be circumcised, they would again bring the
witch doctor, who would poison them, killing Ebai and
rendering Agbor infertile. At this point the petitioners
sought the aid of the local police. As Agbor testified in
response to a question whether she sought help from the
government: “Yes sir. I went to the police. The police said
it is our—they don’t want to intervent [sic] to our tradi-
tion. That is our culture that is going on. They don’t want
to intervent [sic].” Indeed, the police refused even to
fill out a police report on their behalf. Agbor also testified
that the government has not wiped out the practice of
FGM, which is common in some areas, saying, “they don’t
do anything to stop it.”
True to their word, Agbor’s parents returned after a few
weeks with the witch doctor in full regalia. The spectacle
2
(...continued)
judicial circuit, 720 Ill. Comp. Stat. 5/12-34 (2007); Wis. Stat.
§ 146.35 (2007).
4 No. 06-2015
drew a crowd, and Agbor and Ebai used the commotion
to escape, taking all their spare cash with them. They
traveled seven to eight hours by car to stay with a Mr.
Daniel, an acquaintance of Ebai’s from the business
community. (Both men were involved in grocery-store
supply, although they were not business partners.) Daniel
had read about the petitioners’ story in a Cameroonian
newspaper called The Herald; the article, entitled “Couple
flees from female circumcision to an unknown destina-
tion,” was introduced into the record. For $1,000 apiece,
Daniel provided them with passports and airplane tickets
to the United States.
After they filed for asylum, an immigration hearing
was held at which both petitioners testified. They also
introduced written evidence: a series of human rights
reports from various organizations; a doctor’s slip con-
firming that Agbor has not been circumcised; letters from
Agbor’s brother and sister and from a friend congratulat-
ing her on her escape to America; and a letter from an
American social worker who grew up in Cameroon and
confirmed the common practice of FGM in Agbor’s tribe.
The immigration judge’s written decision denying
asylum and other relief references none of these mate-
rials, except to quote selectively from the human rights
reports and to question the validity of the newspaper
article because it contained a typo and some infelicitous
writing. The IJ rejected the asylum claim for several
reasons. First, she held that the petitioners failed to
show that the government had condoned FGM, noting
instead that reports indicate that the government sup-
ports various NGOs’ efforts to eradicate the practice.
Second, the reports indicate that in Cameroon, FGM is
usually practiced on young girls, not women of marrying
age, and on Muslims, not Christians like Agbor. Third, the
IJ viewed Agbor as having contradicted herself by saying
on the one hand that she had witnessed her sister’s
No. 06-2015 5
circumcision, and on the other that she had never heard of
FGM until her mother approached her after the wedding.
And fourth, the IJ questioned whether the couple could
safely relocate to another part of Cameroon.
The BIA affirmed in a separate opinion. It focused solely
on three points: FGM is not widespread in Cameroon; it
is usually practiced on young girls and Muslims rather
than adults and Christians; and “the government has
taken steps to combat” the practice, making “concrete and
strong efforts” in its anti-FGM campaign.
II. ANALYSIS
Where, as here, the BIA issues its decision in a separate
opinion, we review that decision, rather than the IJ’s. Awe
v. Ashcroft, 324 F.3d 509, 512 (7th Cir. 2003). And our
review is deferential: if reasonable, substantial, and
probative evidence supports the decision, we must affirm
it. See Sina v. Gonzales, 476 F.3d 459, 461 (7th Cir. 2007).
The administrative findings of fact made below are
conclusive unless any reasonable adjudicator would be
compelled to conclude otherwise. 8 U.S.C. § 1252(b)(4)(B);
Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007).
Under the familiar standard, a petitioner may demon-
strate that she is a refugee, and hence eligible for asylum,
by showing that she is unable or unwilling to return to her
home country because of persecution or a well-founded
fear of future persecution on account of certain specified
factors, such as membership of a social group. 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A); Gomes, 473 F.3d at 753.
The case law is quite clear that women who fear being
circumcised should they return to their home countries
are members of a discrete social group for purposes of
the statute. In re Kasinga, 21 I. & N. Dec. 357, 365-66
(BIA 1996); see Uanreroro v. Gonzales, 443 F.3d 1197, 1202
6 No. 06-2015
(10th Cir. 2006); Balogun v. Ashcroft, 374 F.3d 492, 499
(7th Cir. 2004); Abay v. Ashcroft, 368 F.3d 634, 638 (6th
Cir. 2004).
The parties and the BIA analyzed both whether Agbor
suffered past persecution and whether she has a well-
founded fear of future persecution. Since she has not yet
been circumcised, but rather bases her claim on a fear
that she will be circumcised if returned, we think that
the matter is more appropriately analyzed as a claim of
a fear of future persecution. Compare Mohammed v.
Gonzales, 400 F.3d 785, 796-97 (9th Cir. 2005) (holding
that individual who had been circumcised had shown past
persecution). To succeed, Agbor and Ebai must there-
fore show that they subjectively fear returning to Camer-
oon, and that that fear is objectively reasonable. See Boci
v. Gonzales, 473 F.3d 762, 766 (7th Cir. 2007). The BIA’s
three reasons for concluding that the petitioners’ fear
is objectively unreasonable do not withstand scrutiny.
The BIA’s first reason, that FGM is not widely practiced
in Cameroon, is true as far as it goes, but it is also
incomplete—misleadingly so. The most recent State
Department Country Report, of which we may take notice,
Giday v. Gonzales, 434 F.3d 543, 556 n.6 (7th Cir. 2006),
makes the same point, but immediately goes on to say
that FGM continues to be practiced in three of the coun-
try’s ten provinces, including the Southwest Province,
which is where the petitioners live. See U.S. Dep’t of
State, Country Reports on Human Rights Practices (2006).
This is consistent with Agbor’s testimony that the women
in her village all undergo circumcision. The report also
states that in parts of the Southwest Province, FGM is
still common in its most brutal form, infibulation. Id.3 We
3
The Female Genital Cutting Education and Networking Project
explains that infibulation
(continued...)
No. 06-2015 7
have emphasized before that the most probative evidence
regarding the prevalence of FGM is region-specific, rather
than country-wide, because “the incidence of FGM often
varies significantly from state to state.” See Balogun, 374
F.3d at 507. By favoring the general (Cameroon) over the
specific (Southwest Province), the BIA disregarded this
admonition. The government also notes, as did the IJ, that
some sources, while acknowledging that no reliable
figures exist, put the rate of FGM among Cameroonian
women at around 3%. Again, this matters little if the rate
in the petitioner’s community is high. See C. Effiom & S.
Bille, “FGM in Cameroon,” 17 Inter-African Comm. on
Traditional Practices Affecting the Health of Women and
Children Newsletter 16 (1995) (stating that rate of
FGM in Southwest Province is 40%). Nevertheless, other
reputable sources say the number of Cameroonian women
affected by FGM may be as high as 20%. See Admin. R.
167, 258. In either case, in a country of over 18 million
people (and roughly 9 million women), these are not
trifling numbers: 270,000 women at the lowest, and 1.8
million at the highest. We note that the latter figure
exceeds the number of women presently living in the
city of Chicago.
The BIA next stated that FGM in Cameroon “is usually
performed on infant and pre-pubescent girls, not married
adult women,” and that “it is mainly practiced among
Muslims.” It is true that the State Department report
3
(...continued)
consists of the removal of the clitoris, the adjacent labia
(majora and minora), and the joining of the scraped sides of
the vulva across the vagina, where they are secured with
thorns or sewn with catgut or thread. A small opening is
kept to allow passage of urine and menstrual blood.
See http://www.fgmnetwork.org/intro/fgmintro.php.
8 No. 06-2015
says that “FGM usually was practiced on infants and
preadolescent girls.” State Dep’t Report (2006). But the
BIA seemed to think that “usually” means “exclusively,”
which it does not. Indeed, although case law on FGM
in Cameroon is sparse, courts have noted that varia-
tion among tribes and villages is an abiding feature of
the practice in sub-Saharan Africa. See Haoua v. Gonzales,
472 F.3d 227, 229-30 (4th Cir. 2007) (involving a village
in Niger, which borders Cameroon by lake, in which FGM
is practiced at the time of marriage); Uanreroro, 443 F.3d
at 1207; Abebe v. Gonzales, 432 F.3d 1037, 1043 (9th Cir.
2005); Nwaokolo, 314 F.3d at 308 (noting that in Nigeria,
which shares a border with Cameroon, women are sub-
jected to FGM “anytime from a few days after birth to a
few days after death”). A quick citation to the “usually”
language in the report is insufficient to undermine the
petitioners’ extensive and consistent testimony that Agbor
was pressed to undergo circumcision after her wedding.
As to the religious aspect of FGM, the BIA is simply
incorrect in saying that it “is mainly practiced among
Muslims” in Cameroon. A report in the record by the
Immigration and Refugee Board of Canada notes that
in the regions where FGM is common, such as the South-
west Province, it affects 100% of Muslim women and 63%
of Christian women—and there are twice as many Chris-
tians as Muslims in Cameroon. See Admin. R. at 167; CIA
World Factbook, https://www.cia.gov/cia/publications/fact
book/geos/cm.html. Again, these are not negligible figures.
If this background information were not enough to cor-
roborate the petitioners’ narrative, there were also the
letters from the petitioners’ family and friends—and,
critically, the letter from a social worker who grew up in
Cameroon and specifically verified that FGM is common in
the petitioners’ tribe. See Abankwah v. INS, 185 F.3d 18,
25-26 (2d Cir. 1999) (placing significant weight on affi-
davit of naturalized citizen from Ghana familiar with
No. 06-2015 9
practice of FGM in that country). The BIA ignored this
evidence, and that is something it is not permitted to do.
See Diallo v. Ashcroft, 381 F.3d 687, 695 (7th Cir. 2004).
The last point relied on by the BIA is that the govern-
ment of Cameroon officially opposes FGM and has publicly
endorsed the efforts of NGOs working to end the practice.
But the BIA may not simply seize on a few “flowery bro-
mides” of governmental concern over human rights
violations when the remainder of the report describes
incidents of persecution consistent with a petitioner’s
claim. See Dawoud v. Gonzales, 424 F.3d 608, 611 (7th Cir.
2005). After noting the Cameroonian government’s gen-
eral opposition to FGM, the State Department report
indicates that FGM is commonly performed in some parts
of Cameroon, and that there are no laws or policies
outlawing the practice. Indeed, we notice that from 1997,
when the Cameroonian government initiated a campaign
to eradicate FGM within 15 to 20 years, to 2006, when the
most recent State Department report was issued, the U.S.
government’s description of the practice’s prevalence in
Cameroon has not changed appreciably. Compare State
Dep’t Report (2006) with U.S. Dep’t of State, Profile of
Asylum Claims and Country Conditions (1998). Moreover,
whatever the government’s general position, it does not
change the fact that Agbor and Ebai went to the authori-
ties for help and were turned away because the police
did not want to interfere in tribal affairs. We do not think
that as soon as a government pledges to end a persecutory
practice, the individuals still suffering from the vestiges
of that practice automatically cease to be entitled to
protection.
On the whole, the BIA’s decision is not supported by
substantial evidence and must be vacated. The BIA
disregarded key evidence that is specific to the petition-
ers’ case, relied on background evidence that is only
generally to the contrary, and then faulted the petitioners
10 No. 06-2015
for failing to offer specific evidence overcoming the back-
ground evidence. This type of analysis cannot withstand
even deferential judicial review.4
In addition, the government relies heavily on the IJ’s
analysis in its brief, so we pause to note a few points
in order to facilitate matters on remand. First, the gov-
ernment, like the IJ, argues that Agbor testified inconsis-
tently, saying early on that she witnessed her sister’s
circumcision, but later saying that she had never heard of
the practice until her mother confronted her after her
own wedding. Agbor did not, however, testify that she
had never heard of FGM until her wedding, but rather that
the practice was not openly discussed:
Q: How many times did you argue against this prac-
tice prior to your marriage?
A: They, they didn’t tell me before I got married. It’s
something like—I tell you it’s like it’s taboo that
you don’t explain it to somebody until when it’s
taking place to you. Like if they do it to me, I can’t
say to anybody. I don’t tell anybody because it’s
like taboo until wedding. That’s my—to your own
self.
Q: Now you say—before you were—you’re saying
women do not discuss this among themselves.
A: Yeah, they don’t discuss except if like my sister
can tell me that they did it to me when I was—
I just got married. They did it to me. It’s some-
thing that is like it’s taboo they do it all over
where I come from.
4
The petitioners also raise several due process challenges to
the manner in which the IJ conducted the immigration proceed-
ings. Because we reverse on the substance of the asylum claim,
we need not reach these arguments.
No. 06-2015 11
Here, Agbor seems to be saying that the reason she did not
speak out against FGM was because it was taboo to
discuss it, not that she had never heard of the practice
before her mother confronted her. In fact, Agbor could not
have been saying that she had never heard of FGM before
her wedding because she mentions that her sister had
earlier told her that she had been circumcised. Moreover,
the fact that Agbor indicated in her affidavit that she
was shocked when her mother approached her seems to
have more to do with finally confronting an unspeakable
practice than learning about something for the first time.
A second point relied upon by the IJ and the govern-
ment which we take a moment to discuss is the alleged
implausibility that the petitioners only know Mr. Dan-
iel—the man who provided them shelter and passports—by
his first name. Ebai testified that he and Daniel were mere
acquaintances from the business community rather than
close associates or friends, and Agbor stated that in
Cameroon it is customary only to know and refer to an
acquaintance by his first rather than his full name. The
IJ did not mention these explanations. See Uwase v.
Ashcroft, 349 F.3d 1039, 1043 (7th Cir. 2003) (IJ must
explore explanation for implausible or inconsistent testi-
mony).
Third and lastly, the IJ tersely stated that the petition-
ers had failed to demonstrate that they could not safely
relocate to another part of Cameroon, noting that it is
a large country. It is true that Agbor and Ebai bear the
burden of showing that they cannot relocate, 8 C.F.R.
§ 208.13(b)(3)(I), and they may or may not ultimately
meet that burden. But one of the letters of support they
introduced discussed Agbor’s mother’s attempts to find
them when they fled, and the IJ did not discuss this
evidence. Moreover, we do not think the standard for
relocation can be as high as the government suggests
when it says that Agbor and her husband could “avoid
12 No. 06-2015
being found by members of her tribe.” Relocating to
another part of the country does not mean living in hiding;
if Agbor’s mother refuses to take no for an answer and
tries to poison the petitioners wherever they are in Camer-
oon, they cannot be said to have relocated safely. See
Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 674 (7th
Cir. 2005).
III. CONCLUSION
For the foregoing reasons, we VACATE the BIA’s deci-
sion denying asylum and other relief and REMAND for
further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-25-07