* This opinion is being initially released in typescript form. 

# In the United States Court of Appeals for the Seve

nth Circuit

____________

No. 02-2964

PHILOME NA IWEKA NWAOK OLO,

Petitioner , v. IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.

____________ Petition f

or Review

of an Or der of the Board of Immigration Appeals

No. A27-226-360

____________ ON MOTION F OR STAY O F REMOVAL

DECEMBE R 27 , 2002 *

____________ Before POSNER, RIPPLE and M ANION, Circuit Judg

es

.No. 02-2964 Page 2
PER CURIAM. Philomena Nwa okolo asks that we stay her removal pending review of the d eni al 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 v

iew, Ms . Nwaokolo has met her burden of establishing

that sh e h a s a better than ne gligibl e chance of prevailing

on the mer

its and t hat she and her daughter, an Unite d Statescitizen, will su ffer irreparable injury

if she i s removed from the United States at this time . More precisely, she has demonstra

ted that th e INS has

failed t o consider

that her four-year ol d United States citizen daughter will be subj ected to the brut a l practice known as

female g

enital m utilation (commonly referred to as “FGM”) if she must accompany her mother to Nigeria.

I

Ms. Nwaokolo, a native and citi zen of Nig eria, l egally e ntered the United St ates in t he early 1980s on an F -2 visa f or spouses

or children of academic stude nts. Whe n Ms. Nw aokolo accep ted employment as a nursing aid in v iolation of the terms of the visa, the INS commenced deportation proceedings against her. The immigra ti on judge (“IJ”) ordered Ms. Nwaokolo deported, but granted her voluntary departure through May 1986. Ms. Nwaokolo did not ap peal the IJ’s order , but sh e failed to depart.

In October 1996, Ms. Nwaok olo, by then the mother of two

sons and a daughter, obtained counsel and be gan her eff orts to obtain permission to remain in this country. S he tw ice moved t o reopenher ca se, but an IJ denied both motions, one in February 1997 and one i n August 1997. The B oard of Immigration Appeals (“BIA”) affirmed, and Ms. Nwaokolo did not petition for review. In July199 9, Ms. Nwaokolo (again through counsel) filed a third motionto reopen her case under 8 C.F .R. § § 3.2 and 208.18(b)(3)(ii)(A), this time seeking protection under theNo. 02-2964 Page 3
Convention

Against Torture and Other Cruel , Inhu man or Degrading

Treatm ent or Pu nishment, as implemented by the INS,

see 8 C.F.R . § 208.16(c). Ms. Nwa ok ol o claimed that sh e and her thirteen-year old daug hter Ra chel, a United St ates citi zen who has spent her entire life in this country, would be subjected to FGM if Ms. Nwaokolo w ere depor ted t o Nigeria . In Ma y 2001, the BIA denied the motion

but gra ntedMs. Nwaokolo a

stay of d eportation 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 d ecision in cludes no discussion of FGM and does n ot mention Rach el. Ms. N waokolo did not seek review of the BIA’s decision.

In Februar

y 2002, Ms. Nwaokolo filed a fourth m otion to reopenher

case on the ground that her cir cumstanc es had ch anged,

see 8 § C.F.R. 3.2(c)(3)(ii), since she filed her third motion to reopen. It is t his motion

that gi ves rise to Ms. Nw aokolo’s peti tion for review and stay

motion. I n the moti on, Ms. Nwaokolo re asserted her claim under th e Conventi on Agains t Tortur e, but this time wit h respect to her second daughter Victoria (who was not yet born wh en Ms. Nwaokolo first asserted her torture claim). Ms. Nwaokolo ci ted

as change d circums tances (1) Vi ctoria’s b irth in October 1999, (2)

an unpublished November 23, 2001, deci sion wherein the BI A granted a motion to reopen under circumst an ces substantially similarto Ms. Nwaokolo’s, a nd (3) new l eg al protections and remedies

under the Convention Against Torture. A l ong with

her motion, Ms. Nwaokolo presented a State Depar tment mem orandum describing

FGM and

the seri ous physi cal and p sycholog ical injury that the procedure inflicts on those subjected to it. Ms. Nwaokolo also tendere d Co untry Reports on H uman Rights Practices f or 2000, S. Rep. No. 107-32 (2001), authored by the S tate Departme nt, whi ch confirms that FGM

remain s “widely practiced ” in Niger ia. Th e BIA denied the motion to reopen on June 28, 2002, concluding that (1) the applica

ble regu lations l imit an alien to one motion t o reopen absent changed circumstances, see 8 C.F.R. § 3.2(c)(2), and (2) Ms.No. 02-2964 Page 4
Nwaokolo fail ed to es tablish that she should be excepted from the one-motion

limit ba sed on changed circumstances because she was simplyreasserting the same claim that the BIA h ad rejec

ted when it denied he r third

motion to reop en. The BIA decision is again silent about FGM

and incl

udes no di s cussion of

Ms. Nwa

okolo’s daughter Victoria.
Thereafter, Ms. Nwa

okolo filed

her peti tion for rev

iewin this court and requested that we stay her removal pending resolution

of the petit ion. We ordered a tempor ary sta

y to allow

the par ties to

more thoroughly brief the issu es raise d in the s tay motion . When the parties filed their briefs, a poten tial problem came to our attention: The IJ who original ly d ecided Ms. Nwaokolo's case was sitting in St. Paul, Minnesota, which i s within the jur isdiction of the United StatesCourt of Appeals for the Eighth C ircuit. We therefore ordered the parties to brief the question whether this case should be transfe rred

to the Eighth

Circuit. The parties have fi led their briefs

on that issue, and we conclude that venue is proper i n this cir cuit and that a stay pending resolution of Ms. Nwao kolo's petition f or review i s appropr

iate.

II

A. Venue

Section 1252(b)(2) of T itl e 8 of the United Sta tes Code, entitled “Venue and forms,” provides that a “petition fo r review shall be filed with the courto f appeals for the judicial circuit in which the imm igration

judge com

pleted the

proceedi ngs. ” Ms. Nwaokolo ma

intains that § 1252(b)(2) is merel y a venu e provisi on that , read properly, does not require us to transfer this cas e

. Specifically, Ms. Nwa

okolo argu es that (1) h er motion to reopen was filed and decided in C hica go, Illinois, so that the “proceedings” at i ssue were “completed” in the Seventh Circuit, and (2) even if theNo. 02-2964 Page 5

1 An IJ first found Ms . Nwaokolo deportabl e on December 11, 1985. See AR. 220-22. Ms. Nwa okolo d i d not appea

l this de cision to the BIA; con sequen tly , the ord er became a fina l order of deportati on after t he expira tion of ni nety

days (the time for

appeal),

see 8 U.S.C. § 1101(a)(47)(B). proceedings were completed in the Eight h C ircuit, the INS has waived its objection to venue here.

The INS takes a differentapp roach. In its view, Ms. Nwaokolo’s

“underlying case before the immigration judg e began and ended pri or to April 1, 1997. In light of this, the case is governed

by the t ransition 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

furthe r maint ains tha t § 1252(b) is not o nly a

venue require ment, but also a j urisdict ional req uirement

. Consequently, the INS a rgues, jurisdi ction over Ms. Nwa okolo’s pe titionlies only with the Eighth Circuit--the circuit in whi ch th e underlying deportation proceedings were concluded.

It is true th at Ms. N waokolo’s ca se “began

and ended

prior to April 1, 1997.” Howeve r, it is al so true th at Ms. N waokolo’s proceedings were comm enced, and a final order of deportation was first entered, prior to O ctober 31, 19 96. 1 Consequently, Ms. Nwaokolo’s

petition is not governed by the transition rules, but by the former judicial review pro vision, 8 U.S.C. § 1105a. See Kalaw v. INS , 133 F.3d 1147 , 1150 (9th C ir. 1997).

The form er judicia

l review provision

stated that “the venue forany petition for review under this section shall be in the judicial cir cuit in which the administrative proceedings before a special inquiry officer were conducted in whole or in part . . . .” 8 U.S.C. § 1105a (1994). In this case, part of the proceedings were conductedNo. 02-2964 Page 6

in this circuit. That is

because Ms. Nwaokolo’s motion to reopen is part and par cel of her deportation proceedings. Cf. Chow v . INS , 113 F.3d 659, 664 (7 th Cir . 1997) (“Congress has not clearly expressed

an inten

t to depar

t from the long line of Supreme Court and appella

te court de cisions in

terpreti ng ‘order

of deportati on’ to include orders deny ing motion s to reconsi der and reopen.”), abrogat ed on other gr

ounds by LeGuer

re v. Reno , 164 F.3d 1035 (7th Cir. 1998). The re cord revea ls that in October

1996 the Executive Officefor

Immigr ationReview advised Ms. Nwaokolo that her case

was “under the administrative control of theImmigration Courtin Chicag o, Illinois, ” and ins truct ed Ms. Nwaokolo to "submit appropri ate documents to that office." It therefore is apparent that the INS had tra

nsferre d Ms. Nw aokolo's de portation proceedin gs to its Chicago office. See 8 C.F.R . § 3.2(i) (“ If the or der [from the BIA disposing

of a m otion to reopen] directs a reopening and fur ther proceedings are necessary, the record shall be retur ned to the Immigra tion Court or the officer o f the Service having administrative control ove r the pl ace wher e the reo pene d proceedings are to be conducted.”). Thus, the proceedings w e re condu cted “ in part” in Chi cago where Ms. Nwa okolo was d irected to mak e her fi lings, and venu e for Ms. Nwaokolo’s p etition for review l ies with

this cour

t.

Even if the INS is incorrect, and the operative “final order” is the BIA’s d e nial of Ms. Nwaokolo’s fou rth moti on to reopen issued on June 28, 2002, the same result obtains. In that case, the transit ion rules of IRRIRA would apply because they set forth the

venue require ments for deportati on and exc lusion cases in proceeding

s on April

1, 1997 and in which

a fina l order was issued

on or after October 31, 1996. The tran sition rule states that “the petition for rev iew shal l be file d with th e court of appeals fort he judic ial cir cuit in which the administrative proceedings before the special inquiry officer or immigration ju dge were comp leted.” With respect to the BIA’s deni al of Ms. Nwaokolo’s fourth moti on to reopen, the operative final order un der this scenario, theNo. 02-2964 Page 7

2 As noted ab ove, th e INS urges us to conclude that § 1252(b)(2) is a juri sdictional provision and argues that, because th e I J initially decided this case in the Eighth Circuit, only that

cour t has jurisdiction to consider Ms. Nwaokolo’s petition fo r review. Although

some court s have u sed the term “jurisdictional” in referen ce to § 1252(b)(2), see, e.g., Hyun Min Park v. Heston , 245 F.3d665, 666 (8th C ir. 2001); R od riguez v. R eno , 178 F.3d 1139 , 1144 (11th Cir. 1999), we think it is clearly a venue provision. As an initial matter, the above-cited cas es offer no rational e that supports construing

§ 1252(b)(2) to de prive an y circuit court o f appeal s of subject matter jurisdiction over any petition for review. Cf. Dra kes

v. Zimski , 240 F.3d 246, 247 (3d Cir . 2001) (characte rizin g § 1252(b)(2) as a “jurisdictional bar” to filin g petition s for review in federal district court).
Moreover, we have

held tha t compara

ble provi sions in other statutes are venue an d not j urisdictional provisions. See State of New York v. Envtl. P rot. Agency , 133 F.3d 987 (7th Cir . 1 998) (holding that § 7607(b)(1) of the Clean Air Act, whic h requires “nationally applica

ble” p etitions for review to be filed in the D.C. Circuit and “loca

lly or regionally

applicable” petitions to be filed in the regional circuits, is a venue provision). In State of New York , we (continued...) proceedings before the immigration judge were completed in Chicag o. Consequ ently, ev

en assuming a

later-in-time final order, venue still lies with this court.

In any eve nt, the INS has waived any objection to venue in this circuit by failing

to object to this court’s consideration of the

case unt il we requested briefing on the transfer question months after Ms. Nwa

ok olo filed her petition and stay motion. Willis v. Caterpillar, Inc. , 1 99 F.3d 902, 905 (7th Cir. 1999) (stating that party wa ives venu e if it f

ails to ti mely obje ct on that ground). 2No. 02-2964 Page 8

2 (...conti nued) explained the difference between ve nue and jurisdictional provisions as follows:

Provisi ons specifying where a suit shall be f iled, as distinct from spe cifying

what ki nd o f court or other tribunal it shal l be file d in, are genera lly consid ered to be specifying venue rather than jurisdiction. It would be usurpa

tive for a federa

l court to assert j urisdict ion

ov er a case th at the C onstituti on or stat ute ha d consigned

to a state court, or even f or a federal distr

ict court to assert jurisdiction over a ca se that should hav e been bro ught in a federal court of appeals .

. . But it is not usurpative for one federal court of appeals to assert jurisdiction . . . over a case th at it would have been authorized to adjudicate if only the effects of the order sought to be reviewed had been feltin one part of the country rather than another.

133 F.3d at 990 (cita

tions omitt ed); see also S prague v. King , 23 F.3d 185, 188 (7th Cir. 1994) ("[T]hat [the APA] directs claims . . . to the federal circu it rath er than to the dis trictcourtsand regional courts of appeals, is more inthe nature of a venue rule . . . thanof

a limitat ion on jur

isdiction. "). Webelieve that State of New York and Sprague control and, accordingly, that§ 1252(b)(2) is a venue and not a jurisdictional provision. B. The Me rits

A movant seeking a stay of deportati on must sh ow (1) “some” likelih ood that he r petition for rev iew will succeed on the meri

ts; (2) that irreparable harm will occur if the stay is denied ; (3) that the potential harm to the mo vant outweighs the harm the INS will suffer if a sta y is gra nted; and (4) that a

stay serv es the publicNo. 02-2964 Page 9

interest. Sofinet v. INS , 188 F.3d 70 3, 706 -07 (7th Cir. 1999). To satisfythe likelihood-of-success prong, Ms. Nwaokolo need only show that he r chance s of succes s are “better th an n egligib le.” Id

. We have des cribed th e Sofinet analysis as a “slidin g scale.” Id

. Thus, the more likely it is that Ms. Nwa okolo will succeed on the merits, the less the bala nce of irreparabl e harm need s to wei gh in her favor; s imilarly, the l ess likel y success is, the m ore the ba lance of harm must weigh in h er favor. Id

. To prevail on her petition for revi ew, M s. Nwaokolo must demonstra

te that th e BIA abus ed its dis cretion in denying her motionto reopen. See Arreola-Arellano v. I NS , 2 23 F.3d 653, 65 5 (7th Cir. 2000 ). Our r eview is “limited t o whether the discr etion
was actually

exercised and whether it was exercised in an arbitrary

or capricious man ner.” Akinyemi v. INS , 969 F.2d 285, 288 (7th Cir. 1992). We shal l revers e the BIA’s decision i f it was made “w ithout a ration al explan ation.” Mansour v. INS , 230 F.3d 902, 907 (7th Cir . 2000); Akinyemi , 969 F.2d a t 288.

1. Likel ihood of Success

We belie ve that Ms. Nwaokolo has a better than n egligible chance of meeting h er burde n on appea l. “[T]he

exercise of discretion in a p articular case necessarily requires [the BIA’s] considera

tion of all f

acts and c ircum stances i nvolved.” Akinyemi , 969 F.2d at 289 . We h ave recog nized th at when an alien minor’s parents are deported, the minor “willhave to f ollow his parents into exile . . . he is constructively deported and shoul d therefore, one might suppose, be entitled to ask—or more realistically his parents’ lawy er should be entitled to ask on his behalf—for [discretionary relief].” Salamed

a v. INS , 70 F .3d 4 47, 451 (7th Cir. 1995). The INS offers no reason why Victoria, a United States citize n with a fundamental right to be inthis country, see Schneider v. Rusk , 377 U.S. 163, 167 (1964), should be entitled to any less consideratio nNo. 02-2964 Page 10
from the BIA or this court, especially when she faces not simply the hardship of livin g in another country, but, despite her United States citizenship and her age, the prospect of torture in that coun try. It is argua ble, therefore, that the BIA abused its discretion in denying Ms. Nwa

okolo’s motion

to reopen i f it failed to consi der the threat that four-year old Victoria w ill be su bjected to FGM as a

direct

cons equenceof the decision to remove her mother. Cf. Casem v

. INS , 8 F.3d 700, 702-03 (9th Ci r. 1993) (citing authority from the Third, Fifth and Ninth Cir cuits holding that th e exercise of discretio n requi res the BIA to consider “all relevant factors” and that the BIA abused itsdiscreti on in fai ling to con sider the relevant factor of the hardship to United States citizen children tha t would result f rom deport ation of a

lien par ents).

The record before us offers no reason to believe that the BIA

ever considered the threat to Victoria from the widespr ead prac

tice of FGM in her mother’s home country of Nig eria. Th e BIA concluded

that Ms . Nwaokolo failed t o show cha nged cir cumstanc es based on its conclusion that it alre ady had consi dered and

rejected Ms. Nwaokolo’s c

laim th at she a

nd her el derdaught er Rach el would become victims of FGM if sheis remov ed to Nigeria. We find this

r easoning

problema

tic in tw o respects. First, the BIA did no t consider a t all t he effect

that re moving h er mother would ha

ve on Rachel. The BIA’ s writte n denial of Ms. N waokolo’s third motion to reopen conc

ludes only tha

t Ms. Nwaokolo “offered no evidence or claim that she would be tortured in Niger ia,” A.R . 118; the decis ion is devoid of any discussion of the threat that Rac hel would be

s ubjected

to FGM. Second, even if we were to specula te from it s silencethat the BIA h ad evalu ated the threat to Rachel in refusing to re ope n proceedings as to Ms. Nwaokolo, that would not in our view constitute consideration of the threat to Victoria.

Our view is informed by an un derstanding of how FGM is practiced

in Nigeria, whi ch info rmation we take f rom the S tate Departmen

t’s reports on the subj ect. M s. Nwaokolo presented someNo. 02-2964 Page 11
of this in for mati on to the BIA. Regardless, we can take judicial

no tice of

the State Department’s reports on current country conditions that th e BIA fail ed to consider and that are crucial to our decision. See Meghani v . INS , 236 F.3d 843, 848 n.1 (7th Cir. 2001); Dobrota v. INS , 195 F.3d 970, 973 (7th Cir. 1999). According to the Sta te Department, at all times during M s. Nwaokolo’s efforts t o have the BIA con sider th e threat that her daughters would be subjected

to FGM, the ritual was widely p ract iced and legal in Nigeria; indeed, 60 to 90 percent of the female p opulation of Nigeria

are subjecte d to it “an

ytime fr om a few

days af ter birt h to a few days after death.” See Nigeria: Report on Femal e G enital M utilation (FGM) or Femal e Genital Cutti ng (FGC), Ju ne 1, 2001, De p’t St. Bull., available a t http:/www .state.g ov/g/wi/r ls/rep/cr fgm/10106.h

tm

. FGM is a horrifically brutal procedure, often performed without anesthesia. Id

. According to the State Department memorandum that Ms. Nwaokolo attached to her motion to reopen,

Female Genital M util ation (FGM ) is the r emoval or infibul ation(or both) of whole or part of the external female genitals ( clito ris, labia minora, and la bia majora ). The procedure can include sewing the vagina

a lmost completely closed after the genital s ar e removed (infibulation) . . . .

The World Health Organization an d o ther Uni ted Nations organizations, as well as the United St ates governme nt, recognize that FGM has very ser ious effec ts o n the hea

lth of wom en and girls. Im mediate complications of FGM include severe pain, shock, hemorrh age, urine retention, ulceration of the genital region, and injury to theadjacent tissue. Hemorrhage and infection can cause death.
Long term cons equen c es of FGM include cysts and abscesses, keloid sca

r forma tion, pai nful intercourse ,No. 02-2964 Page 12
and sexual dysfunc tion. The mos t extreme f orms of FGM can caus e infertility, and may also cause an increase in the risk of stillbirths and m aternal deaths.
Psychological consequences of FGM in childhood can include b ehavior disturbances and loss of trust and confidence

in careg ivers. As adults, these wom en may suffer feelings of incompleteness, anxiety, depression, chronic irritability, and frigidity, and may exper

ience marital conflicts.

See R. at 110-11. Further , FGM see ms deeply embedded in Nigerian culture. “Nigerians continue this practi ce out of a dherence to a cultural dictate t hat uncircumcise d women are p ro miscuous, unclean, unmarriageable, ph ysicallyundesir eable an d/orpotential health ri sk s to themselves and their children, especially during childbirth.” See, infra , Nigeria: Re port on Female Genital Mutilat ion (FGM) or Female Genital Cutting (FGC). The BIA itself has express ly recognize d the prevale nce and brutal ity of FGM:

This practice

[FGM] clea

rly inf licts harm or suffering upon the gir

l or woma

n who u ndergoes it. FGM is extr emely painfu l and at least tem por aril y incapacitating. It perma nently di sfigur es t he female genitalia. FGM exposes the girl or woman to the risk of serious, potentially

life-threatening

complications. These include, among oth ers, ble e di ng, infection, urine retention, stress, shock, psychological tra u ma, and damage to the urethra and an us . . . . [I]t remains practically

true th at [Afric an] women have little legal

rec ourse and may face threats to their freedom, threats or acts of physical vi ole nce, or social ostraciz ationfor ref

using to undergo th is harmful traditional practice or attemp ting to protect their female children.No. 02-2964 Page 13

In re Kasinga , 21 I. & N. Dec. 357, 361-62 (BIA 1996 ) (holding that fear of FGM is a

basis f or seeking

asylum)

. Based on our un derstanding of FGM as p racticed

in Nigeria and on the ag

e differ ence betwee n Rachel and Victoria, we believe that, contrar

y to the IN S ’ asserti on that th e BIA conside red Victoria’s

interests when it denied Ms. Nwaokolo’s third motionto reopen, the thr eat FGM p oses to Vict ori a is qualitatively different from that to R

achel. Unlike Rachel, w ho was bor

n July 18, 1985, and as a sev

enteen-yea

r old cou ld 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 M s. Nwaokolo to Nigeria. Rachel , who w as thir teen years old when Ms. Nwaokolo argued to the BIA th at the th reat to Rachelfrom FGM was reason to reope n he r case, was already more capable, both physically and mentally, of resisting FGM than Victoria would be now at a ge four. Vic toria also woul d have to live wit h the threat of F GM for man y years before sh e could choos e to return to the Un itedStates, a much longer pe riodof time th an Rach el would h ave to fa ce the threat, if the INS effec

t ivel y compels b oth girl s to involu ntarily relocate to Nigeria despite their United States citizenship.

In short, we think it obvious t hat, e ven if the BIA had considered

and rej ectedthe threat to Rachel from FGM (and there is no indica

tion that th is consideration occurred), that fact would not dispose of the threat to Victoria, which involves a different set of circums tances. As a resu lt, Ms. Nwaokolo has a colorable argument that th e BIA abused i ts discre tion when it (1) failed to consider the Sta te Departm ent’s repor ts on current conditions in Nigeria, and (2) concluded without explana ti on, and i n the fa ce of its own recognition in Kasinga of the ser ious thr eat FGM

poses to its victims, that Rachel’s and Victoria’s interests are one in the

sa me. See Mansour , 230 F.3d a t 907 (holdin g that B IA abuse d discretion

in denying Iraqi a lien’s moti on to reopen under C

ATNo. 02-2964 Page 14
without addressing a

State Department report suggesting that the Iraqi government has engaged in abuses against Assyrian Christians like petitioner and stating that silence regarding the report indicated

that BIA did not af

ford a complete rev

iew to Iraqi a

lien’s claim); see also Ab assi v. INS , 305 F.3d 1028, 103 1 (9th Cir. 2002 ) (holding that B IA abus ed discret ion in fa iling to consider S tate Departmen

t’s easily obtainable reports on current country conditions even though applicant failed to attach report to asylum application).

2. The Remaining Sofinet Factors

When we consider the foregoing along with the other Sofinet factors, the propriet

y of a sta

y becomes ev

en cleare r. The

severity of the har m th at Ms. N waokolo, Rachel, and Victoria face if Ms. Nwaokolo is removed t o 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 signif icant th at, accor ding to th e record, the INS h as known for years exactly w

here M s. Nwa okolo resides and has not actively sought to expedite her removal.
Finally, a stay promotes the public’s compe lli ng interest in ensuring that mi nor United

States citizens are not forced into exile to be tortured. This compelling interest is magnified here because neither Rachel nor Victori a has ev er been represen

ted by coun sel or has ever had their interests considered by the BIA or a ny court. Nor is ther e any evi dence in th e record th at the INS has ever notified responsi ble state authorities of th e dep arture of these mino r United States ci

ti z ens to a country where they would be in immediat e danger of significant harm

. The governm ent could n ever do to these girls in this country what the INS seems all too willing to allow to happen

to them i n Nigeri a. At a m inimum, the issu es weNo. 02-2964 Page 15
have discussed here deserve a full airing by way of a petit ion for review.
Accordingly, we GRANT Ms. N waokolo's stay motion and

or der t hat her removal be STAYED pending resolution of the petition for review. Additionally, we DIRECT the parties to brief, in addition to any other issues they choose to address in their merits briefs, the following questions:

1. Was the BIA r equired t o consider the hardship of Ms. Nwa

okolo’ s United St ates citi zen daughters in denyi ng her m otion to reop en and, if so, did th e BIA adequ ately cons ider such hardship?

2. When the INS has reas on to believe that removal of an alien parent will place th e United Statescitizen child at risk of phy sical injury, does the INS have an ob ligation to notify the appropri ate state authori t ies char ged with protecting

child we lfare?

IT IS FURTHE R ORDE RED that briefing in this a ppeal shall proceed as follows:

1. Ms. Nwaokolo shall file her main br ief by Januar y 27, 2003.

2. The INS shall file its response brief by Februar y 26, 2003.

3. Ms. Nwaokolo shall file her reply brief , if any, by Mar ch 12, 2003.No. 02-2964 Page 16

Ms. Nwaokolo’s “ Motion For Default Judgemen

t [sic] Bas ed On Late Fil ing By Respondent, ” filed o n Nove mber 18, 2002, is DENIED.