*

 This opinion is being initially released in typescript form.

In the

United States Court of Appeals

for the Seventh Circuit

____________

No. 02-2964

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

____________

ON MOTION FOR STAY OF REMOVAL

DECEMBER 27, 2002*

____________

Before POSNER, RIPPLE and MANION, Circuit Judges.
No. 02-2964 Page 2

PER CURIAM. 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
No. 02-2964 Page 3

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 tenderedCountry 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.
No. 02-2964 Page 4

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
No. 02-2964 Page 5

1

 An IJ first found Ms. Nwaokolo deportable on December 11,

1985. See AR. 220-22. Ms. Nwaokolo did not appeal this decision

to the BIA; consequently, the order became a final order of

deportation after the expiration of ninety days (the time for appeal),

see 8 U.S.C. § 1101(a)(47)(B). 

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, 1996.1 Consequently, Ms.

Nwaokolo’s petition is not governed by the transition rules, but by

the former judicial review provision, 8 U.S.C. § 1105a. See Kalaw

v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997).

The former judicial review provision stated that “the venue

for any petition for review under this section shall be in the judicial

circuit 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 conducted
No. 02-2964 Page 6

in this circuit. That is because Ms. Nwaokolo’s motion to reopen is

part and parcel of her deportation proceedings. Cf. Chow v. INS,

113 F.3d 659, 664 (7th Cir. 1997) (“Congress has not clearly

expressed an intent to depart from the long line of Supreme Court

and appellate court decisions interpreting ‘order of deportation’ to

include orders denying motions to reconsider and reopen.”),

abrogated on other grounds by LeGuerre v. Reno, 164 F.3d 1035 (7th

Cir. 1998). The record reveals that in October 1996 the Executive

Office for Immigration Review advised Ms. Nwaokolo that her case

was “under the administrative control of the Immigration Court in

Chicago, Illinois,” and instructed Ms. Nwaokolo to "submit

appropriate documents to that office." It therefore is apparent that

the INS had transferred Ms. Nwaokolo's deportation proceedings to

its Chicago office. See 8 C.F.R. § 3.2(i) (“If the order [from the BIA

disposing of a motion to reopen] directs a reopening and further

proceedings are necessary, the record shall be returned to the

Immigration Court or the officer of the Service having

administrative control over the place where the reopened

proceedings are to be conducted.”). Thus, the proceedings were

conducted “in part” in Chicago where Ms. Nwaokolo was directed

to make her filings, and venue for Ms. Nwaokolo’s petition for

review lies with this court.

Even if the INS is incorrect, and the operative “final order”

is the BIA’s denial of Ms. Nwaokolo’s fourth motion to reopen

issued on June 28, 2002, the same result obtains. In that case, the

transition rules of IRRIRA would apply because they set forth the

venue requirements for deportation and exclusion cases in

proceedings on April 1, 1997 and in which a final order was issued

on or after October 31, 1996. The transition rule states that “the

petition for review shall be filed with the court of appeals for the

judicial circuit in which the administrative proceedings before the

special inquiry officer or immigration judge were completed.” With

respect to the BIA’s denial of Ms. Nwaokolo’s fourth motion to

reopen, the operative final order under this scenario, the
No. 02-2964 Page 7

2

 As noted above, the INS urges us to conclude that

§ 1252(b)(2) is a jurisdictional provision and argues that, because

the IJ initially decided this case in the Eighth Circuit, only that

court has jurisdiction to consider Ms. Nwaokolo’s petition for

review. Although some courts have used the term “jurisdictional”

in reference to § 1252(b)(2), see, e.g., Hyun Min Park v. Heston, 245

F.3d 665, 666 (8th Cir. 2001); Rodriguez v. Reno, 178 F.3d 1139,

1144 (11th Cir. 1999), we think it is clearly a venue provision. As an

initial matter, the above-cited cases offer no rationale that supports

construing § 1252(b)(2) to deprive any circuit court of appeals of

subject matter jurisdiction over any petition for review. Cf. Drakes

v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001) (characterizing

§ 1252(b)(2) as a “jurisdictional bar” to filing petitions for review in

federal district court). 

Moreover, we have held that comparable provisions in other

statutes are venue and not jurisdictional provisions. See State of

New York v. Envtl. Prot. Agency, 133 F.3d 987 (7th Cir. 1998)

(holding that § 7607(b)(1) of the Clean Air Act, which requires

“nationally applicable” petitions for review to be filed in the D.C.

Circuit and “locally 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

Chicago. Consequently, even assuming a later-in-time final order,

venue still lies with this court. 

In any event, the INS has waived any objection to venue in

this circuit by failing to object to this court’s consideration of the

case until we requested briefing on the transfer question months

after Ms. Nwaokolo filed her petition and stay motion. Willis v.

Caterpillar, Inc., 199 F.3d 902, 905 (7th Cir. 1999) (stating that

party waives venue if it fails to timely object on that ground).2
No. 02-2964 Page 8

2

(...continued)

explainedthe difference betweenvenue and jurisdictional provisions

as follows:

Provisions specifying where a suit shall be filed, as

distinct from specifying what kind of court or other

tribunal it shall be filed in, are generally considered to

be specifying venue rather than jurisdiction. It would

be usurpative for a federal court to assert jurisdiction

over a case that the Constitution or statute had

consigned to a state court, or even for a federal district

court to assert jurisdiction over a case that should

have been brought in a federal court of appeals . . .

But it is not usurpative for one federal court of appeals

to assert jurisdiction . . . over a case that it would have

been authorized to adjudicate if only the effects of the

order sought to be reviewed had been felt in one part

of the country rather than another.

133 F.3d at 990 (citations omitted); see also Sprague v. King, 23

F.3d 185, 188 (7th Cir. 1994) ("[T]hat [the APA] directs claims . . .

to the federal circuit rather than to the district courts and regional

courts of appeals, is more in the nature of a venue rule . . . than of

a limitation on jurisdiction."). We believe that State of New York

and Sprague control and, accordingly, that § 1252(b)(2) is a venue

and not a jurisdictional provision.

B. The Merits 

A movant seeking a stay of deportation must show (1) “some”

likelihood that her petition for review will succeed on the merits; (2)

that irreparable harm will occur if the stay is denied; (3) that the

potential harm to the movant outweighs the harm the INS will

suffer if a stay is granted; and (4) that a stay serves the public
No. 02-2964 Page 9

interest. Sofinet v. INS, 188 F.3d 703, 706-07 (7th Cir. 1999). To

satisfy the likelihood-of-success prong, Ms. Nwaokolo need only

show that her chances of success are “better than negligible.” Id.

We have described the Sofinet analysis as a “sliding scale.” Id.

Thus, the more likely it is that Ms. Nwaokolo will succeed on the

merits, the less the balance of irreparable harm needs to weigh in

her favor; similarly, the less likely success is, the more the balance

of harm must weigh in her favor. Id.

To prevail on her petition for review, Ms. Nwaokolo must

demonstrate that the BIA abused its discretion in denying her

motion to reopen. See Arreola-Arellano v. INS, 223 F.3d 653, 655

(7th Cir. 2000). Our review is “limited to whether the discretion

was actually exercised and whether it was exercised in an arbitrary

or capricious manner.” Akinyemi v. INS, 969 F.2d 285, 288 (7th

Cir. 1992). We shall reverse the BIA’s decision if it was made

“without a rational explanation.” Mansour v. INS, 230 F.3d 902,

907 (7th Cir. 2000); Akinyemi, 969 F.2d at 288.

1. Likelihood of Success

We believe that Ms. Nwaokolo has a better than negligible

chance of meeting her burden on appeal. “[T]he exercise of

discretion in a particular case necessarily requires [the BIA’s]

consideration of all facts and circumstances involved.” Akinyemi,

969 F.2d at 289. We have recognized that when an alien minor’s

parents are deported, the minor “will have to follow his parents into

exile . . . he is constructively deported and should therefore, one

might suppose, be entitled to ask—or more realistically his parents’

lawyer should be entitled to ask on his behalf—for [discretionary

relief].” Salameda v. INS, 70 F.3d 447, 451 (7th Cir. 1995). The

INS offers no reason why Victoria, a United States citizen with a

fundamental right to be in this country, see Schneider v. Rusk, 377

U.S. 163, 167 (1964), should be entitled to any less consideration
No. 02-2964 Page 10

from the BIA or this court, especially when she faces not simply the

hardship of living in another country, but, despite her United States

citizenship and her age, the prospect of torture in that country. It

is arguable, therefore, that the BIA abused its discretion in denying

Ms. Nwaokolo’s motion to reopen if it failed to consider the threat

that four-year old Victoria will be subjected to FGM as a direct

consequence of the decision to remove her mother. Cf. Casem v.

INS, 8 F.3d 700, 702-03 (9th Cir. 1993) (citing authority from the

Third, Fifth and Ninth Circuits holding that the exercise of

discretion requires the BIA to consider “all relevant factors” and

that the BIA abused its discretion in failing to consider the relevant

factor of the hardship to United States citizen children that would

result from deportation of alien parents).

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

ever considered the threat to Victoria from the widespread practice

of FGM in her mother’s home country of Nigeria. The BIA

concluded that Ms. Nwaokolo failed to show changed circumstances

based on its conclusion that it already had considered and rejected

Ms. Nwaokolo’s claim that she and her elder daughter Rachel would

become victims of FGM if she is removed to Nigeria. We find this

reasoning problematic in two respects. First, the BIA did not

consider at all the effect that removing her mother would have on

Rachel. The BIA’s written denial of Ms. Nwaokolo’s third motion

to reopen concludes only that Ms. Nwaokolo “offered no evidence or

claim that she would be tortured in Nigeria,” A.R. 118; the decision

is devoid of any discussion of the threat that Rachel would be

subjected to FGM. Second, even if we were to speculate from its

silence that the BIA had evaluated the threat to Rachel in refusing

to reopen proceedings as to Ms. Nwaokolo, that would not in our

view constitute consideration of the threat to Victoria. 

Our view is informed by an understanding of how FGM is

practiced in Nigeria, which information we take from the State

Department’s reports on the subject. Ms. Nwaokolo presented some
No. 02-2964 Page 11

of this information to the BIA. Regardless, we can take judicial

notice of the State Department’s reports on current country

conditions that the BIA failed 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

State Department, at all times during Ms. Nwaokolo’s efforts to

have the BIA consider the threat that her daughters would be

subjected to FGM, the ritual was widely practiced and legal in

Nigeria; indeed, 60 to 90 percent of the female population of Nigeria

are subjected to it “anytime from a few days after birth to a few days

after death.” See Nigeria: Report on Female Genital Mutilation

(FGM) or Female Genital Cutting (FGC), June 1, 2001, Dep’t St.

Bull., availableathttp:/www.state.gov/g/wi/rls/rep/crfgm/10106.htm.

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 Mutilation (FGM) is the removal or

infibulation (or both) of whole or part of the external

female genitals (clitoris, labia minora, and labia

majora). The procedure can include sewing the vagina

almost completely closed after the genitals are

removed (infibulation) . . . .

The World Health Organization and other United

Nations organizations, as well as the United States

government, recognize that FGM has very serious

effects on the health of women and girls. Immediate

complications of FGM include severe pain, shock,

hemorrhage, urine retention, ulceration of the genital

region, and injury to the adjacent tissue. Hemorrhage

and infection can cause death.

Long term consequences of FGM include cysts and

abscesses, keloid scar formation, painful intercourse,
No. 02-2964 Page 12

and sexual dysfunction. The most extreme forms of

FGM can cause infertility, and may also cause an

increase in the risk of stillbirths and maternal deaths.

Psychological consequences of FGM in childhood can

include behavior disturbances and loss of trust and

confidence in caregivers. As adults, these women may

suffer feelings of incompleteness, anxiety, depression,

chronic irritability, and frigidity, and may experience

marital conflicts.

See R. at 110-11. Further, FGM seems deeply embedded in Nigerian

culture. “Nigerians continue this practice out of adherence to a

cultural dictate that uncircumcised women are promiscuous,

unclean, unmarriageable, physically undesireable and/or potential

health risks to themselves and their children, especially during

childbirth.” See, infra, Nigeria: Report on Female Genital

Mutilation (FGM) or Female Genital Cutting (FGC). The BIA itself

has expressly recognized the prevalence and brutality of FGM:

This practice [FGM] clearly inflicts harm or suffering

upon the girl or woman who undergoes it. FGM is

extremely painful and at least temporarily

incapacitating. It permanently disfigures the female

genitalia. FGM exposes the girl or woman to the risk

of serious, potentially life-threatening complications.

These include, among others, bleeding, infection,

urine retention, stress, shock, psychological trauma,

and damage to the urethra and anus . . . . [I]t remains

practically true that [African] women have little legal

recourse and may face threats to their freedom,

threats or acts of physical violence, or social

ostracization for refusing to undergo this harmful

traditional practice or attempting 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 for seeking asylum).

Based on our understanding of FGM as practiced in Nigeria

and on the age difference between Rachel and Victoria, we believe

that, contrary to the INS’ assertion that the BIA considered

Victoria’s interests when it denied Ms. Nwaokolo’s third motion to

reopen, the threat FGM poses to Victoria is qualitatively different

from that to Rachel. Unlike Rachel, who was born July 18, 1985,

and as a seventeen-year old could 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 Ms. Nwaokolo to

Nigeria. Rachel, who was thirteen years old when Ms. Nwaokolo

argued to the BIA that the threat to Rachel from FGM was reason

to reopen her case, was already more capable, both physically and

mentally, of resisting FGM than Victoria would be now at age four.

Victoria also would have to live with the threat of FGM for many

years before she could choose to return to the United States, a much

longer period of time than Rachel would have to face the threat, if

the INS effectively compels both girls to involuntarily relocate to

Nigeria despite their United States citizenship. 

In short, we think it obvious that, even if the BIA had

considered and rejected the threat to Rachel from FGM (and there

is no indication that this consideration occurred), that fact would

not dispose of the threat to Victoria, which involves a different set

of circumstances. As a result, Ms. Nwaokolo has a colorable

argument that the BIA abused its discretion when it (1) failed to

consider the State Department’s reports on current conditions in

Nigeria, and (2) concluded without explanation, and in the face of

its own recognition in Kasinga of the serious threat FGM poses to

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

same. See Mansour, 230 F.3d at 907 (holding that BIA abused

discretion in denying Iraqi alien’s motion to reopen under CAT
No. 02-2964 Page 14

without addressing a State Department report suggesting that the

Iraqi government has engaged in abusesagainstAssyrian Christians

like petitioner and stating that silence regarding the report

indicated that BIA did not afford a complete review to Iraqi alien’s

claim); see also Abassi v. INS, 305 F.3d 1028, 1031 (9th Cir. 2002)

(holding that BIA abused discretion in failing to consider State

Department’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 propriety of a stay becomes even clearer. The severity

of the harm that Ms. Nwaokolo, Rachel, and Victoria face if Ms.

Nwaokolo is removed to 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 significant that, according to the record, the INS has known for

years exactly where Ms. Nwaokolo resides and has not actively

sought to expedite her removal. 

Finally, a stay promotes the public’s compelling interest in

ensuring that minor United States citizens are not forced into exile

to be tortured. This compelling interest is magnified here because

neither Rachel nor Victoria has ever been represented by counsel or

has ever had their interests considered by the BIA or any court.

Nor is there any evidence in the record that the INS has ever

notified responsible state authorities of the departure ofthese minor

United States citizens to a country where they would be in

immediate danger of significant harm. The government could never

do to these girls in this country what the INS seems all too willing

to allow to happen to them in Nigeria. At a minimum, the issues we
No. 02-2964 Page 15

have discussed here deserve a full airing by way of a petition for

review.

Accordingly, we GRANT Ms. Nwaokolo's stay motion and

order that 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 required to consider the hardship

of Ms. Nwaokolo’s United States citizen

daughters in denying her motion to reopen and,

if so, did the BIA adequately consider such

hardship?

2. When the INS has reason to believe that

removal of an alien parent will place the United

States citizen child at risk of physical injury,

does the INS have an obligation to notify the

appropriate state authorities charged with

protecting child welfare?

 IT IS FURTHER ORDERED that briefing in this appeal shall

proceed as follows:

1. Ms. Nwaokolo shall file her main brief by

January 27, 2003.

2. The INS shall file its response brief by

February 26, 2003.

3. Ms. Nwaokolo shall file her reply brief,

if any, by March 12, 2003.
No. 02-2964 Page 16

Ms. Nwaokolo’s “Motion For Default Judgement [sic] Based

On Late Filing By Respondent,” filed on November 18, 2002, is

DENIED.