Derivative asylum claim rejected

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An alien parent who has no standing to remain in the country cannot establish a derivative claim for asylum based on hardship to a citizen child in the event of the alien’s deportation, the Seventh Circuit held on Dec. 31.

Doris C. Oforji is a Nigerian citizen who sought entry into the United States on April 4, 1996. The INS denied Oforji entry, detained her, and charged her with being an alien seeking to procure entry by fraud or willful misrepresentation, as well as an alien not in possession of a valid immigration document.

At a hearing on Aug. 28, 1997, Oforji admitted that she was an alien not in possession of a valid immigration document at the time of her entry, but denied the fraud and willful misrepresentation charges. She also requested asylum, withholding of deportation, and protection under the Convention Against Torture.

Among the claims of torture Oforji made at the hearing, she testified that, if she returned to Nigeria, her two daughters, citizens born in the United States, would undergo female circumcision or female genital mutilation (FGM).

Oforji testified that she had undergone the procedure and that the Ogoni people in Nigeria required this of all women, with refusal punishable by death. She also testified that she did not have anyone with whom to leave her children in this country in the event she was deported to Nigeria.

The immigration judge (IJ) denied Oforji’s request for asylum, and the Board of Immigration Appeals (BIA) affirmed without opinion. Oforji appealed, but the Seventh Circuit affirmed in a decision written by Judge Daniel A. Manion and joined by Judge Terence T. Evans. Judge Richard A. Posner wrote separately.

The court held that Oforji failed to state a claim for asylum based on “derivative asylum” or “constructive deportation.”

Although FGM is “torture” within the meaning of the UN Convention Against Torture, and grounds for asylum, Oforji has already undergone the procedure, and cannot be personally subject to it again if sent back to Nigeria.

Thus, Oforji can only escape deportation based on the possibility of her daughters undergoing the procedure, if she is deported, under the theory recognized in Nwaokolo v. INS, 314 F.3d 303 (7th Cir.2003) that, “when an alien minor’s parent is deported, the minor will have to accompany the parent into exile and is also effectively deported.”

However, the court distinguished the case of Salameda v. INS, 70 F.3d 447 (7th Cir. 1995), in which the court held that the IJ should have considered potential hardship to a child, who was not a citizen, if his parents would be deported.

The child at issue in Salameda was not a citizen, as Oforji’s children are. The court there concluded that, since the child was not the target of deportation, the order in that case “had the effect of depriving him of the right to request suspension of deportation,” and called the failure of the INS to include the minor in his parents’ deportation hearing an “ignoble ploy.”

Oforji’s children, however, cannot be deported, because they were born in the country and are thus citizens. The court noted, “Oforji has failed to set forth any evidence regarding the existence or whereabouts of the father (or on the additional alternative of having a guardian appointed — a distasteful Solomonic choice) of her United States citizen children. The children, as citizens, have an independent right to not be deported, but obviously they are dependent on their mother. So depending on the father’s whereabouts, or the appointment of a guardian, they may have an opportunity to not follow their mother to Nigeria.”

The court also distinguished Nwaokolo, although that case also involved a Nigerian woman with a minor daughter who was a citizen. The court there reversed a removal order because the BIA may have “failed to consider the threat that four-year-old Victoria [would] be subjected to FGM as a direct consequence of the decision to remove her mother.”

However, unlike Nwaokolo, Oforji did not first enter the United States legally, nor has she resided in the United States for the required continuous seven-year period.

Accordingly, the court held she cannot qualify for an exceptional hardship claim under 8 U.S.C. 1229b(b)(1)(D).

The court concluded, “Although the threatened hardship for her children is apparent, there is no statutory or regulatory authority for Oforji to have her own deportation suspended because she fears for her children if they return to Nigeria with her. Of course, as indicated above, as United States citizens they have the right to stay here without her, but that would likely require some form of guardianship — not a Hobson’s choice, but a choice no mother wants to make. Given the undesirable consequences of the choice she has to make, Oforji is in effect requesting that we amend the law to allow deportable aliens who have not resided here continuously for seven or ten years to attach derivatively to the right of their citizen children to remain in the United States. Any such amendment is for Congress, not the courts, to consider.”

The court acknowledged that the language in Nwaokolo suggested that the threat of FGM to a citizen child resulting from the alien parents’ deportation is a relevant factor to consider. The court withdrew that language, however, for lack of statutory basis to support it.

The court concluded, “Assuming that the father of Oforji’s children is out of the picture … Oforji will be faced with the unpleasant dilemma of permitting her citizen children to remain in this country under the supervision of the state of Illinois or an otherwise suitable guardian, or taking her children back to Nigeria to face the potential threat of FGM. Congress has foreseen such difficult choices, but has opted to leave the choice with the illegal immigrant, not the courts. The law is clear that citizen family members of illegal aliens have no cognizable interest in preventing an alien’s exclusion and deportation.”

The Concurrence

Judge Posner wrote separately “to invite congressional attention to a pair of anomalies in the immigration laws.”

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The first is Posner’s conclusion that the rule requiring an alien to have resided her for ten years (formerly seven) is irrational. Posner wrote, “The seven-year (now ten-year) rule has only a tenuous relation to the hardship of children whose parent is ordered deported. What is true is that the longer the children have lived in the United States, the greater the hardship to them of being sent back to their parent’s native country — one of the unappetizing choices facing these children and a choice made more excruciating the longer they remain here and become acclimated to American ways. But the length of time a child has lived in the United States depends on when she was born as well as on when her parent came to the United States. The parent may have been here for ten years but the child have been born six months ago; or the parent may have been here for nine years but the child have been born eight years ago. The seven-year (or ten-year) rule is irrational viewed as a device for identifying those cases in which the hardship to an alien’s children should weigh against forcing her to leave the country.”

Second, Posner wrote that Congress should reconsider whether citizenship should automatically be granted to everyone born in the United States.

Posner wrote, “We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship, rather than to subject U.S. citizens to the ugly choice to which the Immigration Service is (legally) subjecting these two girls.”

Posner concluded, “On May 5, 2003, H.R. 1567, a bill ‘To amend the Immigration and Nationality Act to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens,’ was referred to the House Subcommittee on Immigration, Border Security, and Claims. I hope it passes.”

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David Ziemer can be reached by email.