Haoua v. Gonzales, (4th Cir. Jan. 5, 2007)

The IJ's finding that Petitioner was at 10% risk of FGM if returned to Niger was necessarily premised on speculation and conjecture, in that there was no evidentiary basis for it. The IJ's finding regarding relocation was specifically predicated on the 10% finding and, therefore, was also not supported by substantial evidence.

Petitioner, a citizen of Niger, sought asylum, withholding of removal and Convention Against Torture (CAT) protection based on her fear of female genital mutilation (FGM). She stated that her parents had arranged for her to marry the elderly chieftain of a nearby village and that in keeping with the customs of the Hausa, the ethnic group of which she is a member, she would be forced to undergo FGM before marrying the chieftain. Upon hearing this and being unable to deter her family from enforcing the marriage agreement, Petitioner returned to the United States, where she had been studying. Upon her return, Petitioner learned that a wedding ceremony had been conducted in her absence. She also was informed that her family had accepted a large dowry as consideration for the marriage arrangement. Petitioner decided that she could not safely return to Niger and sought asylum.

At her hearing Petitioner submitted a State Department report which indicated that one in five Nigerien women is forced to undergo FGM and that the practice persists despite a law criminalizing it. She testified that her ethnic group continues to practice FGM and that the government's efforts to suppress FGM have been ineffective in rural areas. The immigration judge found Petitioner to be credible, but found that she had only "at least a 10 percent change" of suffering FGM. The IJ also found the internal relocation was a feasible alternative for Petitioner given her level of education and support she received from her uncle who lived in the capital. The IJ then determined that because Petitioner had a reasonably available internal relocation alternative, that alternative overcame her 10% fear of persecution. The IJ, therefore, denied asylum. The IJ also denied withholding of removal, finding it highly unlikely Petitioner would suffer FGM in light of her ability to relocate. Lastly, the IJ denied CAT relief finding that she was unlikely to suffer FGM and that if she did, it was not with the acquiescence of the Nigerien government. The BIA affirmed the IJ's decision without opinion.

On review, the Fourth Circuit began its decision by noting that FGM constitutes persecution. The court further found that the IJ's 10% finding was not supported by substantial evidence. The court noted that even the Attorney General conceded this point at oral argument and that the concession was consistent with the evidence, including Petitioner's testimony which was deemed credible by the IJ. The court held that the IJ's 10% finding was premised on speculation and conjecture and that there was no evidentiary basis for it.

The court rejected the government's argument that the IJ's finding that Petitioner could reasonably relocate within Niger was an independent basis for denying asylum. The court held that the IJ's finding regarding relocation was predicated on the 10% finding and, therefore, was not supported by substantial evidence. The court also found that the IJ erred in denying withholding of removal because the denial was also based on the erroneous 10% finding.

Lastly, the court upheld the IJ's CAT denial, noting that Petitioner did not challenge the IJ's independent basis for denying CAT, namely that the FGM would not be with the consent or acquiescence of Nigerien government officials.

The petition for review was granted in part and denied in part. The case was remanded to the BIA for further proceedings as may be appropriate.