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Nwaokolo v. Immigration and Naturalization Service

December 27, 2002

PHILOMENA IWEKA NWAOKOLO, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals No. A27-226-360

Before Posner, Ripple and Manion, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

ON MOTION FOR STAY OF REMOVAL

Philomena Nwaokolo asks that we stay her removal pending review of the denial of her petition to reopen the removal proceedings. We conclude that venue is proper in this court and that a stay is appropriate pending our plenary review of this matter. In our view, Ms. Nwaokolo has met her burden of establishing that she has a better than negligible chance of prevailing on the merits and that she and her daughter, an United States citizen, will suffer irreparable injury if she is removed from the United States at this time. More precisely, she has demonstrated that the INS has failed to consider that her four-year old United States citizen daughter will be subjected to the brutal practice known as female genital mutilation (commonly referred to as "FGM") if she must accompany her mother to Nigeria.

I.

Ms. Nwaokolo, a native and citizen of Nigeria, legally entered the United States in the early 1980s on an F-2 visa for spouses or children of academic students. When Ms. Nwaokolo accepted employment as a nursing aid in violation of the terms of the visa, the INS commenced deportation proceedings against her. The immigration judge ("IJ") ordered Ms. Nwaokolo deported, but granted her voluntary departure through May 1986. Ms. Nwaokolo did not appeal the IJ's order, but she failed to depart.

In October 1996, Ms. Nwaokolo, by then the mother of two sons and a daughter, obtained counsel and began her efforts to obtain permission to remain in this country. She twice moved to reopen her case, but an IJ denied both motions, one in February 1997 and one in August 1997. The Board of Immigration Appeals ("BIA") affirmed, and Ms. Nwaokolo did not petition for review. In July 1999, Ms. Nwaokolo (again through counsel) filed a third motion to reopen her case under 8 C.F.R. §§ 3.2 and 208.18(b)(3)(ii)(A), this time seeking protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as implemented by the INS, see 8 C.F.R. § 208.16(c). Ms. Nwaokolo claimed that she and her thirteen-year old daughter Rachel, a United States citizen who has spent her entire life in this country, would be subjected to FGM if Ms. Nwaokolo were deported to Nigeria. In May 2001, the BIA denied the motion but granted Ms. Nwaokolo a stay of deportation through March 6, 2002. The BIA opined that Ms. Nwaokolo "offered no evidence or claim that she would be tortured in Nigeria." A.R. 118. The BIA decision includes no discussion of FGM and does not mention Rachel. Ms. Nwaokolo did not seek review of the BIA's decision.

In February 2002, Ms. Nwaokolo filed a fourth motion to reopen her case on the ground that her circumstances had changed, see 8 § C.F.R. 3.2(c)(3)(ii), since she filed her third motion to reopen. It is this motion that gives rise to Ms. Nwaokolo's petition for review and stay motion. In the motion, Ms. Nwaokolo reasserted her claim under the Convention Against Torture, but this time with respect to her second daughter Victoria (who was not yet born when Ms. Nwaokolo first asserted her torture claim). Ms. Nwaokolo cited as changed circumstances (1) Victoria's birth in October 1999, (2) an unpublished November 23, 2001, decision wherein the BIA granted a motion to reopen under circumstances substantially similar to Ms. Nwaokolo's, and (3) new legal protections and remedies under the Convention Against Torture. Along with her motion, Ms. Nwaokolo presented a State Department memorandum describing FGM and the serious physical and psychological injury that the procedure inflicts on those subjected to it. Ms. Nwaokolo also tendered Country Reports on Human Rights Practices for 2000, S. Rep. No. 107-32 (2001), authored by the State Department, which confirms that FGM remains "widely practiced" in Nigeria. The BIA denied the motion to reopen on June 28, 2002, concluding that (1) the applicable regulations limit an alien to one motion to reopen absent changed circumstances, see 8 C.F.R. § 3.2(c)(2), and (2) Ms. Nwaokolo failed to establish that she should be excepted from the one-motion limit based on changed circumstances because she was simply reasserting the same claim that the BIA had rejected when it denied her third motion to reopen. The BIA decision is again silent about FGM and includes no discussion of Ms. Nwaokolo's daughter Victoria.

Thereafter, Ms. Nwaokolo filed her petition for review in this court and requested that we stay her removal pending resolution of the petition. We ordered a temporary stay to allow the parties to more thoroughly brief the issues raised in the stay motion. When the parties filed their briefs, a potential problem came to our attention: The IJ who originally decided Ms. Nwaokolo's case was sitting in St. Paul, Minnesota, which is within the jurisdiction of the United States Court of Appeals for the Eighth Circuit. We therefore ordered the parties to brief the question whether this case should be transferred to the Eighth Circuit. The parties have filed their briefs on that issue, and we conclude that venue is proper in this circuit and that a stay pending resolution of Ms. Nwaokolo's petition for review is appropriate.

II.

A. Venue

Section 1252(b)(2) of Title 8 of the United States Code, entitled "Venue and forms," provides that a "petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." Ms. Nwaokolo maintains that § 1252(b)(2) is merely a venue provision that, read properly, does not require us to transfer this case. Specifically, Ms. Nwaokolo argues that (1) her motion to reopen was filed and decided in Chicago, Illinois, so that the "proceedings" at issue were "completed" in the Seventh Circuit, and (2) even if the proceedings were completed in the Eighth Circuit, the INS has waived its objection to venue here.

The INS takes a different approach. In its view, Ms. Nwaokolo's "underlying case before the immigration judge began and ended prior to April 1, 1997. In light of this, the case is governed by the transition rules for judicial review as set forth in Section 309(c)(4)(D) of [IIRIRA]," Response at 2 (internal citations omitted). The transitional rules, in turn, apply the venue rule of § 1252(b). The INS further maintains that § 1252(b) is not only a venue requirement, but also a jurisdictional requirement. Consequently, the INS argues, jurisdiction over Ms. Nwaokolo's petition lies only with the Eighth Circuit--the circuit in which the underlying deportation proceedings were concluded.

It is true that Ms. Nwaokolo's case "began and ended prior to April 1, 1997." However, it is also true that Ms. Nwaokolo's proceedings were commenced, and a final order of deportation was first entered, prior to October 31, 1996. *fn1 Consequently, Ms. Nwaokolo's petition is not governed by the transition rules, but by the former judicial review ...


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