CA4 Holds Immigration Judge’s Finding of 10% Risk of FGM Based on Speculation


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

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