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02-2964 Nwaokolo v. INS

By: dmc-admin//December 30, 2002//

02-2964 Nwaokolo v. INS

By: dmc-admin//December 30, 2002//

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“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 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.” “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.

“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.

“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 have discussed here deserve a full airing by way of a petition for review.”

Motion for stay granted.

Petition for Review of an Order of the Board of Immigration Appeals, Per Curiam.

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