UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE SEATTLE, WASHINGTON

IN DEPORTATION PROCEEDINGS

Charge: Section 241 (a) IB I& NA-Non-immigrant who remained longer than authorized.

Applications: Section 244(a) 1 I&NA-Suspension of deportation; Section 208 I&NA-Asylum; Section 243(h) I&NA-Withholding of deportation; Section 244 (E) I&NA-Voluntary departure.

On behalf of Respondent: Tilman Hasche, Esq., 1618 SW First Avenue, Suite 205, Porland, Oregon, 97201.

On behalf of Service: Paul R. Stultz, Esq., on detail to Office of District Counsel, P.O. Box 3361, Portland, Oregon, 97208.

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 32-year-old unmarried female, native and citizen of Nigeria, who entered the United States on September 28, 1986 at New York, New York, as a non-immigrant visitor for pleasure (B-2). She was authorized to remain until March 27, 1987, and remained longer than authorized.

An Order to Show Cause was issued by the Immigration and Naturalization Service at Portland, Oregon, on April 26, 1993, charging her with deportability as a non-immigrant alien who remained longer than authorized. In proceedings before an immigration judge on August 31, 1993, the respondent was represented by counsel, and conceded that the Order to Show Cause had been properly served. The Order to Show Cause was then marked as Exhibit #1.

The respondent, through counsel, admitted the factual allegations in the Order to Show Cause and conceded that she was deportable. Therefore, deportability has been established by clear, convincing, and unequivocal evidence Woodby v, INS, 358 U.S. 276, 281-284 (1966). The respondent declined to designate a country for deportation and the court designated Nigeria, the country of her nativity, in the event that deportation ever becomes necessary. The respondent then applied for suspension of deportation, and voluntary departure in the alternative. The court will consider suspension of deportation as the primary application, in that this is the most beneficial form of relief for the respondent. This form of relief leads directly to lawful permanent resident status, compared to asylum, which leads first to asylee status, and then later to permanent resident status. Similarly, withholding of deportation confers no status, but merely allows the respondent to remain in the United States for so long as persecution is found to exist in the country to which he or she faces deportation. And of course voluntary departure merely allows the respondent to depart the country in lieu of deportation. Accordingly, the court will consider these forms of relief in descending order as described, but testimony and evidence taken in the hearing applied to all forms of relief and applications. The Form I-256A, submitted on November 26, 1993, which is the Application for Suspension of Deportation, was marked as Exhibit #3. The Asylum Request, Form I-589, submitted on November 22, 1993, was marked as Exhibit #4.

The respondent submitted a pre-hearing statement with supporting documents on January 31, 1994, and this was marked as Exhibit #5. These voluminous supporting documents provide a detailed description of the female genital mutilation procedures as practiced in some cultures (FGM), as well as detailed background information on which cultures practice FGM, and providing history of the practice, with particular information on the Yoruba tribe, which the respondent indicates she belonged to. The documentation is voluminous and cannot be summarized in detail, however, much of the documentation reflects the opinion that FGM is used by male-dominated patriarchal societies to repress women's status and sexuality, and that women have been psychologically manipulated into sanctifying a tradition that inflicts much pain and suffering on them. It's noted that the practice is culturally protected in many parts of Africa. The procedure itself, as described in Exhibit 5, page 5.10, indicates that there are a number of types of female genital mutilation. The Sunna method, meaning traditional in Islam, involves the cutting of the hood of the clitoris, and is actually the only procedure that can correctly by called female circumcision. However, there are other procedures which are described, including excision, infibulation, which involves cutting of the clitoris, labia minora, and at least the anterior two-thirds and often the whole of the medial part of the labia majora. The procedure is described as a significant rite of passage for young women, who by submitting themselves to these irreversible changes, believe they are attaining womanhood. The respondent also provided personal documentation, such as copies of her passports, birth certificates, marriage certificates, divorce decrees, school transcripts, letters from associates, a gynecological report regarding the FGM, which was performed on the respondent. These documents have all been marked Exhibit #6. Included in Exhibit 6, under tab 14, is the decision of the French Commission on Refugees denying refugee status based on a claim of FGM. However, the discussion involves significant issues of interest to the court.

Exhibit #7 is a videocassette tape submitted by the respondent along with a transcript which depicts FGM practices in Africa. Exhibit #8 is the State Department advisory opinion from the Bureau of Human Rights and Humanitarian Affairs, which was entered into the records pursuant to 8CFR208.11. This is a generalized statement, and did not address the FGM issue.

Exhibit 9 consists of copies of pages from a human anatomy book, showing pictures of female reproductive organs and a discussion of the physiology of the female reproductive organs. Exhibit 10 is the respondent's Trial Memorandum, dated February 5, 1994, consisting of 23 pages and describing facts which the respondent expected to prove in the hearing and providing argument in support of the relief application.

Exhibit #11 was a FAX copy of the 1993 State Department Country Reports for Human Rights Practices, which was provided by the respondent inasmuch as the court had not received the 1993 version at the time of the hearing. This document indicates that the Nigerian government opposes FGM, and is one of five countries that publicly have opposed the practice. However, it indicates that most ethnic cultures in Nigeria circumcise young females, and it estimated that about 50% of the women in Nigeria have had the procedure done.

Exhibit 12 is a letter from the Nigerian embassy regarding FGM. This letter is dated February 7, 1994, and is signed by one H. Elabor, Minister. The letter indicates that the embassy wishes to state that, although circumcision of females has been a traditional practice in some parts of Africa including Nigeria, it has not been forcibly applied on unwilling parties. Thus, in those areas where this practice takes place it is usually done with the consent of the girl and her parents. In the present day Nigeria, circumcision of the female no longer is widely practiced. The letter goes on to state that the respondent's allegation that her two daughters would be kidnapped from her and forcibly circumcised is incorrect. That document was marked as Exhibit #12. Exhibit 14 consists of documents subpoenaed by the Immigration Service from the respondent's employers and reflects that false claims were made that she was a citizen of the United States in connection with her employment.

Exhibit #15 is a copy of a wire from the Department of State, dated February 7, 1994, and indicates that Nigerian experts estimate that as many as 50% of Nigerian girls/women, virtually 100% in the primarily Christian south, and fewer in the Muslim north, have undergone female genital mutilation. It is also noted that, since the first of the year, several groups, including the southerners, whose ethnic groups engage in the practice, have called on the government to outlaw FGM. Consequently, while there is a possibility that the girl in the reference telegram could be subject to female genital mutilation if returned to Nigeria, that it is not an inevitable consequence in that it is hardly practiced at all in over half the country, and the likelihood of forced FGM being visited on anyone outside their ethnic group or area is minimal to nonexistent.

The first hearing in this matter was held at Portland, Oregon, on February 7, 1994. Exhibits #1 to 15 were identified and, there being no objections, they were accepted into the record, and testimony was taken.

The respondent first called her daughter Folashade to testify. She is apparently called Shade for short. She testified that she is six years old and attends school at the Preston School. She testified that she gets along well at school and named a number of her friends. She also testified that she goes to the church with her family regularly. The report noted that the witness spoke English without any accent and seems very well acculturated.

The respondent next called a friend, Johanna Amidu. Mrs. Amidu indicated that she was a citizen of the United States, born in the United States, and had previously married a Nigerian national by the name of Amidu. She testified that she became the best friend of the respondent and subsequently divorce Mr. Amidu. The witness indicated that she had traveled to Nigeria in February of 1990 with her former husband and her daughter. This visit was to members of the Yoruba tribe, which is the same as the respondent and her former husband. The witness indicated that the Amidu family tried to coerce her to have her child undergo FGM. She described a number of incidents that occurred to her in Nigeria in which she felt the safety of her daughter and herself were threatened. Emanuel Oluloro, has a high status in the tribe there, that his word carries much weight, and if the respondent returns to Africa, he could cause trouble for her through his contacts in the tribe.

The respondent next called Susan Rich to testify. Her curriculum vitae is set forth in Exhibit 6, page 13. Page 25 of the same exhibit contains her affidavit. The witness is an expert on African culture and works for an organization which is seeking to stop the practice of FGM. She described the ill effects of FGM, both psychological and physical, and also noted that because the respondent had charged her husband with rape in 1992, that this could lead to repercussions if she ever returned to Africa. She indicated that such a criminal charge being filed against a husband is unheard of in African culture. When asked with regard to Exhibit 12, which is the Nigerian embassy letter indicating the position of the government on the practice of FGM, the witness indicated it was simply an attempt by the government to hide wrongdoing. Although she conceded some improvement in recent years, she testified that FGM is still widely practiced.

The respondent then testified. She stated that she is 32 years old, that she was born in Ilobu, in the State of Oyo in Nigeria. She testified that her father had 12 wives and that her mother was her father's third wife. She testified that she lived with her family in Emure-Ekite, in Ondo State. The respondent testified that her mother was independent in nature, and that after the birth of the respondent, her mother returned to her own mother's home, the respondent's grandmother. There, her mother started her own business driving a truck, purchasing produce and reselling it. The respondent described her education as being a high school graduate. However, after graduating from high school, she studied hotel management and received a certificate (Exhibit 6, page 6. 12). After graduation, she went to work for a telephone company, where she met Emanuel Oluloro, also known as "Bola," when he came in to make a call one day. She indicated that he was a lawful permanent resident of the United States, and after their meeting he stayed in touch, and called and wrote to her. Also, he sent her photographs (Exhibit 6, page 6.15). She testified that she married Emanuel in 1986. She said that three marriages took place that year to solemnize the marriage. He arrived in Nigeria on August 23, 1986, and the first marriage was the tribal customary marriage. The respondent indicated that Emanuel was married to another woman at that time, but didn't reveal it. The second marriage occurred shortly thereafter. It was more formal and required him to swear that he had no other wife, when it was her position that she found out later that he did have another wife. And then the third marriage was for purposes of the civil registry. The respondent stated that her husband was a lawful permanent resident of the United States and could have filed a visa petition on her behalf, but he did not do so. Instead, he told her to get a non-immigrant visa and told her to come to the United States as a visitor. She testified that he also told her not to reveal the fact that she was married to a lawful permanent resident of the United States to the consulate, as she would not be able to get a visa. He provided a letter of invitation for her to come to the United States (Exhibit 6, pages 7.11, 7.12). This letter was used to facilitate the issuance of a visitor's visa. There was also false information contained in her passport (Exhibit 6, page 6.2, pages 8 and 9), in which she claimed to be married and have three children and that she was going to visit a person in the United States that she did not know. The respondent stated she simply did what her husband told her to do, and that in the Yoruba culture, a woman does what her husband tells her. She came to the United States on September 28, 1986, at New York City, and was admitted as a B-2 visitor.

The respondent testified that she subsequently remarried Emanuel at Vancouver, Washington, on February 17, 1987 (Exhibit 6, page 6.5), inasmuch as apparently his prior marriage to a citizen of the United States had not become final yet. She testified that they had a child born in the United States on May 7, 1987, whom they named Folashade, the child who had previously testified in these proceedings. She testified that Emanuel began to mistreat her not long after the birth of Folashade, and that the situation deteriorated as time went by. On February 12, 1989, the second child was born, and she was named Omolara. By this time, the respondent stated that Emanuel had been beating her and they fought about various things. At one point they had a fight in which she described that Emanuel had borrowed money from her family to pay for the wedding, and when she attempted to send some money back to the family in repayment of the debt, he became extremely angry and violent and threatened her with a knife and stabbed her with a screwdriver. Her nightgown was torn and she indicated that he forced her to have sew with him, and so she called the police and he was arrested. He spent some time in jail, and the charges were later dropped.

The respondent indicated that she and Emanuel separated on March 26, 1992, and were subsequently divorced on March 27, 1993 (Exhibit 6, page 6.6). The respondent also indicated that her husband was abusive to the children and that they were afraid of him. She testified that Shade had told her that her father had hit her on more than one occasion. She also testified that her ex-husband Emanuel was very spiteful, and that when he was ordered to deliver a chest of drawers to her, he destroyed it and left it for her to pick up ( see photographs, Exhibit 17).

With regard to the issue of female genital mutilation, the respondent indicated that procedure had been performed on her at the age of four. She could not recall exactly when it happened. However, the fact that it did occur is described in the gynecological report dated August 5, 1993 (Exhibit 6, page 6.14). This examination was performed at the Kaiser Permanente hospital, and confirms that the protective hood over the clitoris had been removed, which is described as a Type 1 or Sunna circumcision. A report could not confirm whether any labia minora had been removed.

The respondent testified that all of her sisters were circumcised, and that she had witnessed the procedure being performed on other girls on three occasions in Nigeria. She described these in some detail. Once it was in her own family when she described and elderly man as performing the procedure on a six year old child, who was held down and was screaming for her mother, and she observed while he performed the operation with a knife he took from his pocket. She indicated that this was a traumatic experience for her.

The second occasion occurred when she, as a child in secondary school, went to a neighbor's house to play with a friend, and she observed the procedure being performed on a two year old sister of her friend. The third occasion was after the was an adult and was working, she saw the procedure being done at the place where she worked, on a small child. The respondent stated that when she had daughters born in the United States, she made the decision not to have the procedures done on them as she did not like the practice, she felt it was dangerous, could have side effects, and made intercourse painful. She also indicated that she had learned that people had died as a result of having FGM performed. She also described problems with a rash which she attributed to FGM.

On cross-examination by the Service attorney, the respondent was questioned about the manner in which she obtained her passport and non-immigrant visa. She admitted that false information was given to the U.S. embassy, and that the invitation letter that was provided in order to obtain the visa was bogus (Exhibit 6, page 7.12). She insisted, however, that she was merely following her husband's instructions. The respondent testified that she wanted to remain in Nigeria at that time, that the University of Kwara had promised her a partial scholarship, and that she gave this up in order to emigrate to the United States and join her husband.

The respondent admitted that she came to the United States to remain permanently, even though she possessed a visitor's visa at that time, but indicated that she did not understand the nature of non-immigrant visas and immigrant visas and the requirements of individuals holding either type of visa. She testified that her husband went back to the United States first, and she came later, on September 28, 1986.

She testified at some length regarding the difficulty she had with her husband before the separation, and incidents of physical abuse. She testified that Emanuel refused to cooperate when counseling was arranged for both of them in order to save the marriage and refused to appear at the counselor's office. She also indicated that her husband never filed a visa petition for her and simply told her they did not have enough money to take care of filing the papers and hiring a lawyer to handle it for them.

The respondent conceded that her husband now has unsupervised visitation rights with the children, but indicated that there is a restraining order against him, and he is not allowed to come near the respondent.

With regard to the Social Security care, the respondent admitted that there was a false claim to citizenship made in order to obtain this card. She falsely claimed that she was born in Chicago. Once again, the respondent testified that the husband took care of this, that at the time she signed the Social Security application it was blank and she simply signed her name and her husband filled in the form. She stated that she was under pressure and did not resist this procedure for applying for the Social Security card and did not understand the full consequences of it.

She indicated she was employed at the Marriott Hotel from 1989 to 1991, and at a Sizzler Restaurant from June to July 1991. In connection with that employment, she conceded that a form I-9 was filled out in connection with the employment. She conceded also that the block was checked indicating that she was a citizen of the United States (see Exhibit 14). However, she indicated that her husband told her to check that block because he said that she was a United States citizen since she had had two United States citizen children. She indicated that at time, she did not understand the difference between citizenship and being allowed to live in the country.

With regards to welfare benefits, she conceded being a welfare recipient for a period of two months prior to obtaining her present employment. She also indicated that she received food stamps for a limited period of time. Respondent conceded that she currently lives in subsidized housing ( Section 8), and that she was required to show her Social Security card in order to qualify for Section 8 housing. However, she denies that she made any false claim to citizenship and was not aware of what assumptions might have been made upon the presentation of her Social Security card.

The respondent testified that if she returns to Nigeria, her ex-husband's family will harm her. The respondent evidently believes in voodoo, and she indicated that she could be seriously injured or even killed by voodoo procedures. She indicated that they may also beat her and abuse her due to the problems with her ex-husband. She testified that if she returned to Nigeria, she would go to Emure-Ekite:

On redirect examination by her own attorney, the respondent indicated that if she returned to Nigeria she would have to depend upon her family, because there is no welfare system in Nigeria. She would also have to find employment, and if she worked, she would have to leave her children with relatives. If this occurred, she testified that she was certain that FGM would be performed on both of her daughters. The respondent explained that her sister Felicia, age 40, firmly believes in FGM, and when the respondent was at work, she was certain that FGM would be performed eventually upon her daughters without her knowledge or consent. Also she described in greater detail the type of abuse that she could expect from her ex-husband's family and why. She testified that she believes that a United States divorce would not be recognized in Nigeria, and that her ex-husband's family might feel she is still married to him and they would resent the manner that she treated him: having him arrested, put in jail, and the publicity surrounding these hearings might also result in their mistreating her. She also did express concern regarding the voodoo and physical abuse. She indicated she might even be jailed.

At the second hearing, held on February 10, 1994, testimony was taken from Emanuel Oluloro, the ex-husband of the respondent. He indicated that he was born on June 13, 1949, in Nigeria, that he came to the United States in August 1980 as a non-immigrant student. He testified that he obtained a degree in business administration 1983 at Norfolk State University in the State of Virginia. He testified that he married one Ruby Largent, a citizen of the United States, and obtained permanent resident status through her. This marriage ended in divorce in 1986, however. The witness indicated that he had met the respondent initially in 1982, because he stated that the respondent was married to his half-brother, and had two children by him. He testified that in 1986, while on vacation in Nigeria, he saw the respondent again where she was working as a telephone operator, and they stayed in touch and eventually he married her in 1986. He then went on to describe some of the problems that they had had after she came to the United States, and he testified that the respondent had an affair with one Lawrence Adegibite. The witness testified that he caught the respondent and Mr. Adegibite together in the family home. Subsequently, he testified, they were separated and finally divorced. He said that there was a bitter custody battle, but that the bottom line was he had been granted weekly visits which were unsupervised. He described these visits as being from 5 PM on Friday until 5 PM on Sunday and this and this had been in effect since August of 1993.

The witness indicated he'd been unemployed for the last four months, that he had formerly been an accounts receivable representative at GranTree Furniture, but was laid off when the organization was bought out by another company. He testified that he currently receives unemployment compensation and is actively seeking employment.

The witness indicated that he earned $22,000 in 1992, and that he has in the past paid child support in the amount of $454. However, he stated at this time he receives only $223 in unemployment compensation and is not able to make child support payments,

The witness indicated he had never harmed the respondent at any time, and never abused or hurt either of his daughters. With regard to the March 1992 rape charge, he indicated this was totally false, and that the charge was made to the police as a matter of spite by his wife at the time, who was simply seeking to punish him for an argument they were having, he testified that he spent eight days in jail and the matter went to the grand jury, and it was determined there was insufficient evidence to support the charges and they were dropped. He was then released from jail. After that, the two were separated, and a divorce action was filed in June or July of 1992.

With regard to the issue of FGM, Emanuel Oluloro testified that the respondent actually wanted to have the procedure performed on their two daughters in 1989. He described an incident at the office of a Dr. Uphoff in Eugene, Oregon, in which she indicated to the doctor that she wished to have the procedure performed on the oldest daughter. The witness indicated that he told her, no, this is not done in the United States, and he did not want to have it performed on their daughter. The doctor indicated that he would not do it unless both parents agreed, and therefore the procedure was not performed on the older daughter. The witness went on to point out that in the custody between him the respondent, the FGM issue was never mentioned. He conceded that the respondent is probably now opposed to FGM since she has been educated on this subject, but that this is a recent development, and that in the past she always supported FGM.

With regard to how the respondent obtained her passport and non-immigrant visa in the alleged fraudulent procedures that were involved, the witness claimed that the was already in the United States and had no involvement in it whatever except that he did ask his boss to send a letter of invitation so that she could come to the United States for a visit.

As for his failure to file a visa petition for the respondent, the witness stated that he told her that he needed a divorce decree from her first marriage in order to be able to file a visa petition, and she never obtained it, so he could not file a visa petition for her. When asked why he got married a second time in the United States to the respondent, the witness confirmed that his divorce from Ruby Largent had not been final at the time when he married the respondent, and he was advised to re-marry her. With regard to the Social Security care, the witness stated that he did not obtain it for the respondent, that she filled out the forms and got it for herself, and he was not even aware that it was happening. He did concede that after he found out about the false claim to citizenship on the Social Security card, he wrote a letter to the Social Security Administration bringing this to their attention.

With regard to the false I-9 forms, the witness denied that the told her to make a false claim to citizenship and insisted that she did it herself.

With regard to the care of the children if the respondent were deported to Nigeria, the witness stated that he would be delighted to take the children, that he loved them very much and would be very happy to care for them and would provide them with a good home. With regard to the broken chest of drawers (Exhibit 6, page 8.12, and Exhibit 17), the witness claimed he had not broken it as a spiteful gesture, but to the contrary, the chest of drawers was designed to be taken apart for purposes of transportation, and that's what he had done when he delivered it to her. He said the reason that it was left near a Safeway store instead of taking it to her home is that he was under a restraining order and could not take it to her home.

The witness also stated that he feared for his life. He said that the attorney for the respondent had told him he should petition for the respondent, and after he refused, he received a death threat by telephone on October 11, 1992. He testified that he reported this to the police, and received several more calls around that time. This was prior to the time that the divorce action was final.

The witness was then cross-examined by counsel for the respondent. Numerous documents were marked as Exhibit 16 for purposes of rebuttal. There was no objection by the Service. Witness conceded that he had turned the respondent into the Immigration Service as an illegal alien. He was also shown various irregularities on tax returns that he had filed over the years which seemed to reflect unauthorized deductions. However, the witness refused to answer on the grounds that it might tend to incriminate him.

With regards to the legality of his marriage in Nigeria, he was asked some questions regarding the requirements under Nigerian law, and was shown a copy of the Nigerian code, which is contained in Exhibit 16. The witness again refused to answer any questions on the issue.

With regard to the validity of the marriage whereby he got his permanent resident status in the United States, he was referred to letters of complaint written by his ex-wife, Ruby Largent (Exhibit 6, page 7.10). The witness denied that he had married Miss Largent for permanent resident status and stated that he loved her.'

With regard to a lawsuit filed by the witness against the Edison Parking Company, certain documentation regarding this litigation, which is contained in Exhibit 16, was shown to the witness, and it was pointed out to him that it seemed that statements made in the litigation were inconsistent with his testimony in these proceedings. The witness then refused to answer questions on this issue. The evidence offered by the respondent also seemed to indicate that numerous letters of invitation had been sent by the respondent to people to come to the United States from Nigeria. The respondent admitted this, but denied any wrongdoing.

The matter was then set for oral decision by telephone on March 23, 1994. Additional documents were submitted for the record. These documents have been marked as Exhibits 17 through 22. The Service objected to the fact that the record was left open only for summations and that the respondent had submitted additional documentation in the form of affidavits from individuals, which they were not permitted to do because they thought the record was closed, and further, they were not in a position to be able to cross examine the makers of these documents. The court decided to allow the documents into the record and give them the amount of weight that it deems appropriate under the circumstances. The respondent then agreed to allow a letter written by the Association of Nigeria, dated March 12, 1994, which was sent to the court but not solicited by the Service, to be entered into the record as Exhibit #23 without objection.

The court will first consider the application for suspension of deportation, as previously explained. In order to qualify for suspension of deportation, an applicant must show that she has been physically present in the United States for seven years immediately preceding the application, that she has been a person of good moral character during that period, and that her deportation would result in extreme hardship to her or her United States citizen or lawful permanent resident spouse, parent, or child - Section 244(a) 1. Immigration & Nationality Act. The burden of proof is on the applicant to demonstrate her eligibility for suspension of deportation. Kimm V. Rosenberg, 363 U. S. 405 (1960).

The term "extreme hardship" is rather nebulous, and the presence of extreme hardship will depend upon the facts and circumstances of an individual case. Matter of Kim, 15 I&N Dec. 88 (BIA 1974); Matter of Hwang, 10 I&N Dec. 448 (BIA 1964). It is generally accepted, however, that extreme hardship is beyond the usual hardship experienced by most aliens required to leave the United States and return to their homeland. Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978). In INS v. Wang, 450 U.S. 139(1981), the Supreme Court stated that the statutory requirement that hardship be extreme indicates the exceptional nature of the suspension remedy. Economic hardship in and of itself is not sufficient to constitute extreme hardship. Lee v. INS, 550F. 2d 554 (9th Cir. 1997). Nor is it sufficient to show without more the mere existence of a citizen child or children. Fabdah v. INS, 553F. 2d 491 (5th Cir. 1977); Lee v. INS, supra.

The Board of Immigration Appeals has set forth some of the criteria to be applied in making a determination as to the existence of extreme hardship. Matter of Anderson, 15 I&N Dec.596 (BIA 1978). Among the factors to be considered are the age of the subject, family ties in the United States, length of residence, condition of health, whether the subject is of special assistance to the community, and her immigration history and position in the community.

Although an alien may prove her statutory eligibility of physical presence, good moral character, and extreme hardship, it is not automatic that the application will be granted. Suspension of deportation is a matter of discretion and administrative grace. Therefore, the applicant also bears the burden of showing that she merits a favorable exercise of discretion. Hintopoulos v. Shaughnessy, 353 U. S. 72 ( 1957).

In the instant case, as for presence in the United States, the respondent has clearly been in the United States for the last seven years. She has been here since September, 1986, which is approximately seven and a half years. As for good moral character, this term is defined in Section 101(f) of the Immigration and Nationality Act, and reference to this section of the law indicates that she meets the requirements. The Immigration and Naturalization Service has not established to the contrary.

As for the issue of extreme hardship, the respondent does not have an overly long residence in the United States, in that she barely meets the statutory minimum. She has adapted well to the community and has been gainfully employed, but her age and health do not appear to be factors which would be a cause of extreme hardship if she returned to Nigeria. There is no indication of exceptional service to the community. If the inquiry stopped here, it is doubtful she could establish extreme hardship. However, the most important equity that the respondent has in this country is her two children who were born in the United States. Folashade, born on May 7, 1998, will be seven years old in May, Omolara, born been to Nigeria and they appear well-adapted to the United States culture. They are being educated in this country and at least the older child speaks English without an accent and testified that she does not speak her mother's native language well, though understands it. The child also testified that she is doing well in school and had many friends. Although the younger child did not testify, she appeared well-adjusted and happy. Though these children are young and could possibly adapt if taken to Nigeria, the court would note that some factors which are taken for granted in this country, such as sanitation facilities, medical and educational institutions, etc., are not possibly of the same quality in Nigeria as they are in the United States, according to the evidence submitted in the record. Also, it would likely result in some difficulty for them in adjusting to the children were taken to Nigeria, they would be separated from their father, who would undoubtedly remain in the United States, and the court views this as a hardship to the children.

Further, there is the question of the risk of female genital mutilation. This court has reviewed the evidence regarding FGM, and although it attempts to respect the traditions and cultures of other societies, as to this practice the court concludes that it is cruel and serves no known medical purpose. While it could possibly have had some purpose in ancient cultures, whatever the utility the practice might ever have had, it no longer exists. As for the respondent, she has already had the procedure done to her, so the only issue here is the risk that it poses for the daughters if they are taken back to Nigeria. While the Service has suggested that the respondent need not take her children back to Nigeria, that they could remain in the custody of their father, the court will note that the respondent has legal custody of the daughters, and in view of the animosity between the respondent and her ex-husband, it is understandable that she would not wish to surrender the custody of her children to her ex-husband, particularly in view of her testimony that he was abusive toward them in the past. Of course, the children cannot be deported; they are citizens of the United States, but it is reasonable that she would want to keep them with her and take them with her if she were required to return to Nigeria.

The court, after careful consideration, concludes that if the respondent establishes, by preponderance of the evidence, that it is likely that her United States citizen daughters will suffer FGM if taken there, then extreme hardship has been established. With regard to the practice of FGM, the court does not find that there is any government-sponsored program of FGM. The court therefore is incline to accept the position of the Nigerian government in this regard, that it does not promote the practice. However, the State Department reports indicate that the practice continues and is very common, and it is obviously a deeply-ingrained cultural tradition going back over 1,000 years at least. Though some of the evidence suggests that it was originated by men as a means of subjugating women, the evidence does seem clear that it is almost always enforced by tribal women. Regardless of the origins and motives of this practice, however, the court finds that it is cruel, painful, and dangerous. Therefore, the question arises whether it is likely it will happen to the respondent's daughters. The respondent has testified that her family members, especially her older sister Felicia, strongly believes in FGM. And the court finds it evident that if the respondent returns to Nigeria as a single mother, she would have to work and family members would undoubtedly be called upon to care for the children.

The court concludes that the respondent has established a strong likelihood that her daughters will be subjected to the FGM procedure if she returns to Nigeria. The court finds that this risk amounts to extreme hardship to the U.S. citizen children, and therefore the statutory criteria have been met. The respondent has established seven years' continuous physical presence, good moral character, and extreme hardship on her United States citizen children.

The next question is whether the application should be granted as a matter of discretion. Numerous adverse factors have been noted. The respondent's involvement in visa fraud: she obtained a non-immigrant visa by concealing her marriage to a lawful permanent resident of the United States, indicating that she had children when her testimony is that she had no children, in an apparent attempt to deceive the consulate into thinking that she had an established family in Nigeria, and would have no reason to abuse her non-immigrant visa by remaining longer than authorized. There was also evidence of procurement of a Social Security card by claiming to be a citizen of the United States, which enabled the respondent to obtain employment when she was in this country as a visitor. The respondent testified that she merely signed the blank form and that her ex-husband took care of all the details. Similarly, with regard to the forms I-9 to obtain employment. A false claim to citizenship was made. She indicated that she had no knowledge; that her husband told her that, by having children in this country she was a citizen, and she had no particular knowledge of the distinction between a citizen and non-citizen. She testified that she followed the orders of her husband pursuant to tribal custom. Her ex-husband, on the other hand, testified that this was untrue, that she did it herself, that she knew exactly what she was doing. Obviously to the court, the truth lies somewhere between the two versions of the facts. The credibility becomes crucial. As an immigration judge, I must decide who is more likely to be telling the truth. A witness's testimony may be discredited by inconsistent statements, demeanor, contradictory evidence, or inherent improbability. Atriagaturcios v. INS, 829F. 2d 720 ( 9th Cir. 1987); Damaize-Job v. INS, 787F.2d 1332 (9th Cir. 1986). A witness's testimony may be discredited for a variety of reasons besides simply demeanor. The claim can be internally inconsistent or it may lack the ring of truth. Saballocortez v. INS, 761F.2d 1259 (9th Cir. 1985). The court has concluded that the respondent's ex-husband is not generally credible. It is simply not plausible that he would not have been involved in the process of obtaining the visitor's visa for the respondent to come to the United States. He had been through the process and had helped other people obtain visitor's visas, and she, being a telephone operator in Nigeria, would not seem very likely to be familiar with all the procedures, and that she had never visited the United States before. Therefore, the ex-husband's testimony that he had nothing to do with her obtaining her passport and non-immigrant visa is deemed to be implausible. As for the Social Security card, the card notes that it was obtained very shortly after entry, and at that time it seems unlikely to the court that she would know the procedures to obtain a Social Security card, whereas her husband, who had been in the United States since 1983, would be much more likely to know the process for getting the card. Therefore his testimony that he had nothing to do with her getting her Social Security card does not seem probable or plausible. As for the Form I-9, it is also likely, it seems to the court, that he advised her to make a claim to citizenship. Possibly he told her that she was as citizen because of her children, as she claimed, or possibly he provided no explanation and simply told her to sign. But clearly, he knew about visa procedures, and the court is very concerned that he never filed a visa petition for her. There is no doubt that the ex-husband was aware of the procedures for filing visa petitions, as his testimony reflected this, and he even indicated at one point in his testimony that there was a long wait for second-preference visas. The court concludes that, in all likelihood, the respondent's ex-husband deliberately avoided the process of filing a visa petition, which would have led to her gaining lawful permanent resident status, and intended, by having her stay in an illegal status, to keep her under his control through threats of deportation. Obviously, this plan did not work.

The court also does not find that the ex-husband was a candid witness. It notes that he repeatedly took the Fifth Amendment and refused to testify regarding various aspect of his personal life. The court concludes that he was the driving force being many of the fraudulent acts which the respondent was involved in. however, this does not completely exonerate the respondent. The court does find that she is not quite as innocent as she has portrayed herself. The court notes that she is an educated and intelligent woman and seemed to have a clear understanding of all the issues in this case and was very articulate in expressing her feelings and thoughts. The court believes that she knew it was wrong to deceive the consulate and that it was not plausible to claim that she was born in Chicago when she applied for her Social Security card. And the court if not convinced that she really thought she was a citizen when she filled out the Forms I-9. However, because of her background as a member of the Yoruba tribe, where the husband is the boss, and because her husband in this case has shown himself to be a very dominating and forceful person, that it is plausible that he put much pressure on her. The court, without condoning the fraud and misrepresentation involved in the various transactions which have been described, will forgive her actions in view of her situation with her children in the United States and the other favorable aspects of her residence in this country.

Accordingly, the court concludes that the application for suspension of deportation should be granted, and it will not be necessary to reach the other applications filed by the respondent, and the issues regarding those applications are found to be moot.

ORDER

It is hereby ordered that the application for suspension of deportation is granted.

It is further ordered that these proceedings be terminated.

Kendall Warren, Immigration Judge

COURT: All right, Mr. Hasche, you have heard my decision. Does the respondent accept the decision?

MR. HASCHE: Certainly, yes. With great enthusiasm.

COURT: Okay, and to the Service representative, Mr. Stultz, does the Service wish to reserve appeal?

MR. STULTZ: No, sir.

COURT: All right, these proceedings are concluded, and I will mail Indicia of Oral Decision to all parties; it will be mailed from the court.

The above is a true copy of the taped material given to me regarding the Oral Decision of the Immigration Judge in the matter of Lydia Omuwunmi Oluloro.

Thomas E. Carter

Affirmed before me this – day of –, 19 –. In Portland, Oregon, by Thomas E. Carter, a person known to me.

My commission expires–

Notary Public

Comments:
Location: Portland, Oregon, 9th Circuit
Disclaimer:

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.