Deportation Case Analysis

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The decision creates an anomaly in that asylum could be granted if the alien’s daughter is not a citizen, but not if the daughter is a citizen.

In this case, Oforji could not be eligible for asylum pursuant to 8 U.S.C. 1229a(b)1, regardless, because she has not been in the country long enough. If a Nigerian alien satisfies the residency requirement, however, but the alien’s daughter is not a citizen, asylum would remain a possibility.

In such a situation, removal of the parent would necessarily result in subjecting the child to FGM, and Salameda v. INS, 70 F.3d 447 (7th Cir. 1995), would require that the BIA consider the hardship to the noncitizen daughter, provided the alien daughter was “lawfully admitted for permanent residence.”

It is questionable why the court believes it is duty-bound by the statute to create this distinction, however, because, contrary to the court’s conclusion that the statute requires the result it reaches, the statute can reasonably be interpreted to require that citizen children and alien children be treated the same.

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The statute permits suspension of removal of an alien if it would “result in extreme hardship to the [alien’s child], who is a citizen of the United States or an alien lawfully admitted for permanent residence.”

Under the court’s interpretation, the term “citizen of the United States” becomes superfluous to the statute. Unlike alien children, citizen children can never be forced to leave the country. As the court noted, they can always be left in the country by the deported parent as a ward of the State.

Thus, the torture that would await in Nigeria, or whatever hardship awaits in any other country, can never be a hardship to a citzen child.

This is not merely anomalous, but patently inconsistent with the language of the statute, because it effectively makes it impossible for any alien to ever obtain relief from deportation based on hardship to a citizen child.

– David Ziemer

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David Ziemer can be reached by email.