In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3861

DORIS C. OFORJI,

Petitioner,

v.

JOHN D. ASHCROFT, United States Attorney General,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A74 548 487

____________

ARGUED SEPTEMBER 23, 2003—DECIDED DECEMBER 31, 2003

____________

Before POSNER, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge. Doris C. Oforji appeals from an

order of the Board of Immigration Appeals (BIA) affirming,

without opinion, the decision of the Immigration Judge (IJ)

denying her application for asylum and withholding of

deportation. Oforji argues on appeal that the BIA erred by

failing to appropriately weigh and consider the evidence

presented; in failing to extend derivative asylum and relief

to Oforji on behalf of her United States citizen children; and

in issuing an affirmance without opinion. We affirm.
2 No. 02-3861

I. 

Oforji is a Nigerian citizen who sought entry into the

United States at Chicago on April 4, 1996. The Immigration

and Naturalization Service (INS) (now part of the

Department of Homeland Security) denied Oforji entry,

detained her, and charged her with being an alien seeking

to procure entry by fraud or willful misrepresentation, as

well as an alien not in possession of a valid immigration

document. 

Oforji’s exclusion proceedings commenced on April 4,

1996. After delays, an initial hearing before an IJ was held

on August 28, 1997, wherein Oforji admitted that she was an

alien not in possession of a valid immigration document at

the time of her entry, but denied the fraud and willful

misrepresentation charges. She also requested asylum,

withholding of deportation, and protection under the

Convention Against Torture.

At the hearing, Oforji testified that she is a member of

the Ogoni Tribe of Nigeria and that the Tribe lived without

roads, schools, and potable water. She further stated that

due to these poor living conditions, the Ogoni Tribe formed

the “Movement for the Survival of the Ogoni People” to

petition the Nigerian regime of General Sani Abacha for

these services. She also claimed that the Abacha regime

tortured and arrested, as well as killed members of the

Movement, and that she participated in demonstrations

against the Abacha administration. She testified that in 1995,

the Abacha administration arrested her husband,

“Chukwker,” at their house for his participation in the

Movement. She claims to have fled Nigeria to avoid arrest

because she was too “outspoken.” However, on crossexamination she admitted that she fled because “the back of

the house was, was falling any way.” In addition, at the

hearing she acknowledged that Abacha has died since she

fled, but stated in a conclusory fashion that the government
No. 02-3861 3

was nevertheless going to persecute her because of “oil.”

In addition, she claimed without corroboration that the

Nigerian government would persecute her because she left

the country without a visa and because she was a runaway

Ogoni. 

Finally, Oforji testified at the hearing that if she returned

to Nigeria, her two daughters, citizens born in the United

States, would undergo female circumcision or female genital

mutilation (hereinafter collectively referred to as “FGM”).

Oforji testified that she had undergone the procedure and

that the Ogoni people required this of all women, with

refusal punishable by death. She also testified that she did

not have anyone with whom to leave her children in this

country in the event she was deported to Nigeria. She

admitted on cross-examination that she did not mention the

fear that her then-unborn daughter would undergo FGM

when asked by the immigration inspector about her political

asylum claim. 

After hearing this testimony, the IJ held that the evidence

did not establish that she sought to procure entry by fraud

or willful misrepresentation, but found that she was

inadmissible on the separate ground of lacking a valid entry

document. The IJ then denied Oforji’s request for asylum

relief primarily on the basis of an adverse credibility finding

regarding her testimony, and due to the fact that she had

already suffered FGM. Oforji filed a timely notice of appeal

with the BIA. 

Pursuant to statutory streamlining procedures of 8 C.F.R.

§ 3.1(a)(7)(ii)(A)-(B), the BIA issued a written decision on

October 7, 2002, affirming without opinion the IJ’s decision.

Thus, the IJ’s decision became the final agency determination for purposes of judicial review. Oforji filed a timely

appeal to this court, arguing that the BIA incorrectly denied

her claims and that the BIA’s streamlined process was

invalid.
4 No. 02-3861

II.

A. Application for Asylum and Withholding of Removal

Because the BIA adopted the IJ’s decision, we review the

IJ’s analysis for substantial evidence. Krouchevski v. Ashcroft,

344 F.3d 670, 673 (7th Cir. 2003); see generally Moin v.

Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003) (explaining why

the substantial evidence standard applies to cases in which

the INS employs its streamlined procedure). Oforji, as the

applicant for asylum, bears the burden of proof to establish

asylum eligibility. See 8 C.F.R. § 208.13(a) (2002); Dobrican v.

INS, 77 F.3d 164, 168 (7th Cir. 1996). We reverse in this

context only if “no reasonable fact-finder could fail to find”

that Oforji had suffered from past persecution or faced

future persecution. Georgis v. Ashcroft, 328 F.3d 962, 967-68

(7th Cir. 2003) (citing INS v. Elias-Zacarias, 502 U.S. 478, 484

(1992)).

To be eligible for asylum, Oforji is required to establish

“refugee” status, i.e., that she is an alien unwilling or unable

to return home “because of . . . a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1101(a)(42)(A); Elias-Zacarias, 502 U.S. at 481. She

could show this by proving either that she (1) suffered past

persecution on account of one of the enumerated categories,

creating a rebuttable presumption of future persecution, or

(2) has a well-founded fear of future persecution on account

of one of the enumerated categories. Yadegar-Sargis v. INS,

297 F.3d 596, 601-02 (7th Cir. 2002); Toptchev v. INS, 295 F.3d

714, 720 (7th Cir. 2002).

Although “persecution” is not statutorily defined, we

have said that it “means more than plain harassment and

may arise from actions such as ‘detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confisca-
No. 02-3861 5

tion of property, surveillance, beatings, or torture.’ ” Tesfu v.

Ashcroft, 322 F.3d 477, 481 (7th Cir. 2003) (quoting Mitev v.

INS, 67 F.3d 1325, 1330 (7th Cir. 1995)). Persecution can also

include threats of “death, imprisonment, or the infliction of

substantial harm or suffering.” Sharif v. United States, 87

F.3d 932, 935 (7th Cir. 1996). 

A well-founded fear of future persecution must be both

subjectively genuine and objectively reasonable. Mousa v.

INS, 223 F.3d 425, 430 (7th Cir. 2000). To establish the

objective reasonableness of the fear, the alien must show,

based upon credible, direct, and specific evidence, that a

reasonable person in the same circumstances would fear

persecution if returned to the petitioner’s native country.

Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir. 1999). 

We turn first to the IJ’s adverse credibility findings which

are entitled to “highly deferential review.” Mansour v. INS,

230 F.3d 902, 905 (7th Cir. 2000); Efe v. Ashcroft, 293 F.3d 899,

903 (5th Cir. 2002) (“We give great deference to an immigration judge’s decisions regarding an alien’s credibility.”). We

require that an adverse credibility finding merely be

supported by “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Ahmad v. INS, 163 F.3d 457, 461

(citations omitted). Adverse credibility findings are overturned only under “extraordinary circumstances.” Pop v.

INS, 270 F.3d 527, 531-32 (7th Cir. 2001). 

Here, the IJ found multiple inconsistencies in Oforji’s

testimony and these “specific, cogent reasons” “bear a

legitimate nexus” to the denial of her claim. As an initial

matter, Oforji does not dispute the IJ’s finding that she

presented no evidence such as a membership card or letter

from a party representative corroborating that she was in

fact a member of the Movement for the Survival of the

Ogoni People. Cf. Abdulrahman v. Ashcroft, 330 F.3d 587, 598-
6 No. 02-3861

99 (3d Cir. 2003) (upholding adverse credibility finding

based in part on alien’s failure to substantiate his generalized testimony by providing documentation of his membership or involvement in a politically active student union).

At the hearing, Oforji conceded that she told the immigration inspector on the date of her arrival that she was seeking

political asylum solely for economic reasons and that she

had not been persecuted in Nigeria. This is inconsistent with

her testimony at the hearing that she fled because of her

political activity and because the Abacha administration

had arrested and killed her husband. To this date, Oforji has

failed to explain why she told the immigration inspector

that she had never been persecuted in Nigeria. 

In addition, at the hearing, Oforji testified that she fled

because the government had planned to arrest her because

she was too “outspoken,” but she offered no support for this

statement. On cross-examination, consistent with her

response to the immigration inspector at the time of her

attempted entry to this country, she admitted that she fled

the same night of her husband’s arrest because the back of

her house was falling away. Further, Oforji claimed that the

Ogoni Tribe lived in “River State,” and suffered from poor

roads, schools, and water. However, Oforji acknowledged

that her sister also lived in River State, but did not suffer

from a lack of water, nor did she have problems with the

Abacha administration. Similarly, Oforji also claimed that

the Abacha government was persecuting her because of

“oil” but failed to offer any facts supporting this conclusion,

other than her assertion that she “knew it to be true.”

Importantly, despite claiming that she fled because of persecution from the Abacha administration, she conceded that

Abacha was no longer in power in Nigeria due to his death.
No. 02-3861 7

1 Oforji’s request for asylum in this context is automatically

considered to include a request for withholding of deportation.

8 C.F.R. § 208.3(b); INS v. Stevic, 467 U.S. 407, 420 n.13 (1984). As

the standard of proof for withholding of deportation is higher

than that needed to establish eligibility for asylum, the failure to

sustain the burden of proof for asylum necessarily precludes

eligibility for withholding of deportation. See Bradvica v. INS, 128

F.3d 1009, 1014 (7th Cir. 1997). 

Contrary to Oforji’s contention, it was her responsibility

to ensure that the inspecting immigration authorities had

knowledge of her main reasons for seeking asylum in the

U.S. See, e.g., Roman v. INS, 233 F.3d 1027, 1034 (7th Cir.

2000) (placing burden on asylum applicant to prove eligibility for asylum by proffering sufficient evidence to

support her claim). Moreover, in an attempt to bolster the

asylum claim, the addition of new factual assertions that

were not originally set forth can be viewed as inconsistencies providing substantial evidence that the applicant is not

a reliable and truthful witness. See Malek v. INS, 198 F.3d

1016, 1020-21 (7th Cir. 2000) (citing “a number of clear inconsistencies” between applicant’s application and testimony). Oforji’s claim that her statements were made under

great stress and without the benefit of counsel not only

implies an acknowledgment that her statements were not

accurate, but also incorporates protections not required in

immigration inspection questioning.

The above inconsistencies and gaps in Oforji’s claim

establish substantial reasons for the IJ to question her credibility and deny her claim for asylum and withholding of

deportation.1

 See Khano v. INS, 999 F.2d 1203, 1208 (7th Cir.

1993).
8 No. 02-3861

B. Oforji’s Claim for Derivative Asylum Under the

Convention Against Torture

We turn next to Oforji’s argument that her United States

citizen daughters are likely to suffer FGM in Nigeria

if Oforji is deported. Oforji bases this claim of “derivative asylum” or “constructive deportation” (hereinafter used

interchangeably) on the United Nations Convention Against

Torture as made judicially enforceable through 8 C.F.R.

§§ 208.16(c) and 208.18(b)(2). See Castellano-Chacon v. INS,

341 F.3d 533, 551 (6th Cir. 2003) (explaining briefly the

process by which the non-self executing provisions of the

Convention Against Torture became judicially enforceable).

The conditions under which an alien may be found

eligible for the withholding of removal as a result of the

probability of being subjected to torture in the country of

removal are set forth in 8 C.F.R. § 208.16(c). The regulation

states in relevant part that: 

In considering an application for withholding of removal under the Convention Against Torture, the

immigration judge shall first determine whether the

alien is more likely than not to be tortured in the country

of removal. If the immigration judge determines that the

alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under

the Convention Against Torture. Protection under the

Convention Against Torture will be granted either in

the form of withholding of removal or in the form of

deferral of removal. 

8 C.F.R. § 208.16(c)(4) (emphasis added). 

We review the BIA’s determination against withholding

the removal of an alien for substantial evidence. See, e.g.,

Ambati v. Reno, 233 F.3d 1054, 1059 (7th Cir. 2000). The
No. 02-3861 9

2 It is undisputed that FGM as practiced in Nigeria constitutes

“torture” within the meaning of the CAT. See Nwaokolo v. INS, 314

F.3d 303 (7th Cir. 2003).

language of the regulation unambiguously permits withholding of removal due to torture personally suffered by the

alien:

The burden of proof is on the applicant for withholding

of removal under this paragraph to establish that it is

more likely than not that he or she would be tortured if

removed to the proposed country of removal. The testimony of the applicant, if credible, may be sufficient to

sustain the burden of proof without corroboration. 

8 C.F.R. § 208.16 (2) (emphasis added) 

Oforji has testified that she had already undergone FGM

before entering this country, thus there is no chance that she

would be personally tortured again by the procedure when

sent back to Nigeria.2

 The regulation language is confined

to the alien-applicant and seemingly forecloses a derivative

claim. Nevertheless, Oforji requests this court to “extend

derivative asylum” to her based on “new expansions and

considerations” reflected in case law such as Nwaokolo v.

INS, 314 F.3d 303 (7th Cir. 2002), and In re Kasinga, 21 I & N.

Dec. 357 (BIA 1996). Oforji bases this request on her claim

that “[t]his court has previously recognized that when an

alien minor’s parent is deported, the minor will have to

accompany the parent into exile and is also effectively

deported.”

It is important to understand that claims of constructive

deportation are cognizable only if such a claim falls

squarely within the narrow holdings of the cases creating

the doctrine. A brief review of these cases distinguishes

Oforji’s circumstances from the narrow ambit required for

a claim of constructive deportation.
10 No. 02-3861

3 The present version of this section, amended effective April 1,

1997, authorizes cancellation of removal upon a showing of, inter

alia, exceptional hardship and a minimum of ten years continuous physical presence in the United States. INA § 240A(b)(1), 8

U.S.C. § 1229a(b)(1) (2002). It is undisputed that Oforji does not

meet the seven-year physical presence requirement, in place at

the time her removal proceedings commenced, to qualify for

suspension under this law. See infra at 12-13.

Salameda involved a review of the now amended section

244(a)(1)3

 of the Immigration and Nationality Act, 8 U.S.C.

§ 1254(a)(1), which permitted the BIA to suspend deportation in its discretion if the alien proved, inter alia, physical

presence in the United States for at least seven years and

that deportation would “result in extreme hardship to the

alien or to his spouse, parent, or child, who is a citizen of the

United States or an alien lawfully admitted for permanent

residence.” The Salamedas’ child, Lancelot, was not a

United States citizen, nor was he admitted to the United

States for permanent residence. Accordingly, the IJ determined that the above statute precluded consideration of the

hardship to Lancelot due to his parents’ deportation. Id.

However, the Salameda court concluded that since Lancelot

was an alien with no legal right to remain in the United

States, the deportation of his parents would result in him

being “constructively deported” and that this hardship

should have been considered by the INS. Id.

Significantly, unlike Oforji’s children, the minor child in

Salameda was not a United States citizen. Yet he was subject

to deportation because his parents were being deported. The

question raised was whether he was “entitled to ask for

relief on his own account.” Id. at 451. Since he was not the

target of deportation, the order in that case “had the effect

of depriving him of the right to request suspension of
No. 02-3861 11

4 We may not reverse based on evidence outside of the administrative record. State of New York v. EPA, 133 F.3d 987, 993 (7th Cir.

1998).

deportation.” Id. The panel majority labeled the failure of

the INS to include the minor in his parents’ deportation

hearing as an “ignoble ploy.” 

Oforji’s claim does not fall within the narrow ambit of

Salameda. Oforji’s two female children potentially subject to

FGM are both United States citizens, and thus, unlike the

child in Salameda, have the legal right to remain in the

United States. Moreover, Salameda involved both parents of

the child being deported. Despite having the burden of

proof regarding eligibility for withholding of removal under

8 C.F.R. § 208.16 (2), Oforji has failed to set forth any

evidence regarding the existence or whereabouts of the

father (or on the additional alternative of having a guardian

appointed—a distasteful Solomonic choice) of her United

States citizen children.4

 The children, as citizens, have an

independent right to not be deported, but obviously they

are dependent on their mother. So depending on the father’s

whereabouts, or the appointment of a guardian, they may

have an opportunity to not follow their mother to Nigeria.

Turning to the remaining cases cited by Oforji, Nwaokolo

is inapposite because it presented an alien’s appeal from the

denial of a petition to reopen removal proceedings. The

appellant needed to show to this court “some” likelihood of

success on the merits, part of a relatively low standard of

review. Nwaokolo, involving an alien mother who had not

been subjected to FGM, merely noted that “[i]t 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
12 No. 02-3861

FGM as a direct consequence of the decision to remove her

mother.” Id. at 308 (citation omitted) (emphasis added).

Ms. Nwaokolo, also a native and citizen of Nigeria, legally

entered the United States in the early 1980’s. Because she

accepted a job in violation of the terms of her visa, she was

ordered deported but never left after being granted voluntary departure in 1986. She did not appeal, but beginning in

1996 filed several motions to reopen, seeking a stay of

deportation. At that point she had three children, including

a four-year-old girl who was a United States citizen. Also,

she apparently had a continuous presence in the country for

more than the prescribed seven-year time period. Given that

status, under 8 U.S.C. § 1229b(b)(1)(D), she had an opportunity to have her removal cancelled and her status adjusted

if she could establish that “removal would result in exceptional and extremely unusual hardship to [her] . . . child

who is a citizen of the United States. . .” Because the BIA

may have “failed to consider the threat that four-year-old

Victoria [would] be subjected to FGM as a direct consequence of the decision to remove her mother,” this court

concluded that the BIA did not exercise its discretion by

considering “all relevant factors” regarding the motion to

reopen. See id.

Unlike Nwaokolo, Oforji did not first enter the United

States legally, nor has she resided in the United States for

the required continuous seven-year period. Thus she does

not qualify for the “exceptional hardship” claim for her

child under 8 U.S.C. § 1229b(b)(1)(D). Although the threatened hardship for her children is apparent, there is no statutory or regulatory authority for Oforji to have her own

deportation suspended because she fears for her children if

they return to Nigeria with her. Of course, as indicated

above, as United States citizens they have the right to stay
No. 02-3861 13

5 See 8 U.S.C. § 1229b(b)(1)(D).

here without her, but that would likely require some form

of guardianship—not a Hobson’s choice, but a choice no

mother wants to make. Given the undesirable consequences

of the choice she has to make, Oforji is in effect requesting

that we amend the law to allow deportable aliens who have

not resided here continuously for seven or ten years to

attach derivatively to the right of their citizen children to

remain in the United States. Any such amendment is for

Congress, not the courts, to consider. 

Finally, Kasinga is of no avail to Oforji because it involved

an applicant who feared that she personally would be subjected to FGM if deported to her native country. Kasinga

made specific findings that the alien applicant for asylum

had a “well founded fear of persecution,” a fear that is obviously not present in Oforji’s case since she has already

been subjected to FGM.

Oforji is correct that the IJ’s opinion (adopted by the BIA)

does not reflect consideration of the hardship that her

deportation would cause in that it could potentially place

her children at risk of FGM; however, Oforji cannot identify

a legal basis for considering such hardships in the context of

this case. As an excludable alien, it is undisputed that Oforji

does not qualify for suspension of deportation. In addition,

the continuous presence requirement5

 for suspension of

deportation (which it is undisputed that Oforji does not

meet) demonstrates that Congress considered the possibility

of hardships to the family members of aliens not meeting

the requirements for suspension of deportation, but limited

the possibility of suspension to those who remained in the

United States continuously for ten years. See 8 U.S.C. §

1229a(b)(1) (2002).
14 No. 02-3861

Undoubtedly, any separation of a child from its mother is

a hardship. However, the question before us is whether this

potential hardship to citizen children arising from the

mother’s deportation should allow an otherwise unqualified

mother to append to the children’s right to remain in the

United States. The answer is no. Our prior cases have

suggested that the threat of FGM to a United States citizen

child resulting from the alien parents’ deportation is a relevant factor to be considered in the context of a motion to

reopen an alien’s case; however, we now hold that an alien

parent who has no legal standing to remain in the United

States may not establish a derivative claim for asylum by

pointing to potential hardship to the alien’s United States

citizen child in the event of the alien’s deportation.

Assuming that the father of Oforji’s children is out of

the picture (which, as previously stated, cannot be assumed

based on the record), Oforji will be faced with the unpleasant dilemma of permitting her citizen children to remain in

this country under the supervision of the state of Illinois or

an otherwise suitable guardian, or taking her children back

to Nigeria to face the potential threat of FGM. Congress has

foreseen such difficult choices, but has opted to leave the

choice with the illegal immigrant, not the courts. The law is

clear that citizen family members of illegal aliens have no

cognizable interest in preventing an alien’s exclusion and

deportation. See, e.g., Garcia v. Boldin, 691 F.2d 1172, 1182-83

(5th Cir. 1982); Burrafato v. United States Dept. of State, 523

F.2d 554 (2d Cir. 1975), cert. denied, 424 U.S. 910 (1976);

Cervantes v. INS, 510 F.2d 89, 91-92 (10th Cir. 1995); Swartz

v. Rogers, 254 F.2d 338 (D.C. Cir.), cert. denied, 357 U.S. 938

(1958). Under the present law a woman who is otherwise a

deportable alien does not have any incentive to bear a child

(who automatically becomes a citizen) whose rights to stay

are separate from the mother’s obligation to depart.
No. 02-3861 15

6 The regulations are now found at 8 C.F.R. §§ 1003.1, 1003.2

(2003). Because the parties referred to the 2002 regulations and

because the new regulations are either identical or substantially

similar to the older versions, we continue to refer to the 2002

regulations. 

C. The BIA’s Decision to Affirm Without Opinion the

IJ’s Decision

The final issue raised by Oforji presents two challenges to

the BIA’s issuance of a decision without an opinion. Her

first argument is a facially-based challenge to the regulation

permitting an affirmance without opinion, and her second

argument challenges the Board’s actual decision to affirm

without an opinion in her particular case.

At issue is the streamlined procedure found at 8 C.F.R.

§ 3.1(e)(4) (Sept. 2002)6

, permitting a single Board Member

to affirm, without opinion, the results of an IJ’s decision

when the Board Member determines: that the result was

correct; that any errors were harmless or nonmaterial; and

that the issue on appeal is not novel, but is squarely controlled by existing Board or federal case precedent or that

the factual and legal issues are not substantial enough to

warrant a written opinion. 

This court has upheld the 1999 streamlining procedures as

not depriving the court of a basis for judicial review nor as

violating due process. See Georgis v. Ashcroft, 328 F.3d 962,

967 (7th Cir. 2003). Oforji fails to articulate any legally

significant difference between the 1999 streamlining regulations and the current 2002 streamlining regulations under review and we therefore uphold the 2002 streamlining

provisions.

The Georgis panel suggested that in some cases, the

Board’s decision to streamline and not publish an opinion
16 No. 02-3861

may be subject to judicial review. Id. at n.4. Regardless, this

appeal is not such a case since it merely involves Oforji’s

misapplication of established legal authority. The present

opinion demonstrates that the court may simply conduct a

full and fair review of the IJ’s decision directly without the

intervening step of a written BIA decision. Oforji’s appeal is

fact-dependent and, “[s]ince we review directly the decision

of the IJ when a case comes to us from the BIA pursuant to

[the streamlining provision], our ability to conduct a full

and fair appraisal of the petitioner’s case is not compromised, and the petitioner’s due process rights are not

violated.” Id. at 967.

III.

The decision to deny Oforji’s claim for asylum and

withholding of removal is supported by substantial evidence. Oforji’s claim to derivative asylum under regulations

implementing the Convention Against Torture is rejected

for lack of legal support. We reject Oforji’s facial challenge

to the BIA’s streamlining provisions, and we reject her

challenge to the BIA’s decision to streamline because that

decision did not harm her in this case. For these and the

foregoing reasons, we AFFIRM.

POSNER, Circuit Judge, concurring. I join Judge Manion’s

opinion in the main, though we interpret some of the facts

in this confusing record differently. I write separately not
No. 02-3861 17

to quibble over these differences but to invite congressional attention to a pair of anomalies in the immigration

laws.

Doris Oforji was turned down for asylum. One of her

grounds for seeking it was that she has two young daughters (Nina, 6 years old, and Ingozi, 4) who if they go to

Nigeria with her will be subject to a very high risk of undergoing when they reach puberty the procedure that has

come to be called “female genital mutilation,” although I

prefer the older terms “female circumcision” and (in the

alternative) “clitoridectomy and infibulation,” because

they are slightly less loaded and remind us that a related

practice, male circumcision, is widespread in this country

without being described as mutilation. I do not mean to

suggest that I approve of female circumcision, but we

should recognize that the cultures that do approve of it

don’t think that what they are doing is aptly described as

“mutilation.” But that is an aside; the risk of being forced

to undergo the procedure is a recognized ground for asylum in this country. Abankwah v. INS, 185 F.3d 18, 20, 25-

26 (2d Cir. 1999); In re Kasinga, 21 I. & N. Dec. 357 (BIA

1996). And in the case of a child, especially a small one,

the parent will ordinarily be the child’s proper representative and therefore authorized to file the asylum claim on

the child’s behalf. See Gonzales v. Reno, 212 F.3d 1338 (11th

Cir. 2000); Guidelines for Children’s Asylum Claims INS Policy and Procedural Memorandum from Jack Weiss, Acting Director, Office of International Affairs, to Asylum

Officers, Immigration Officers, and Headquarters Coordinators (Asylum and Refugees), Dec. 10, 1998, 1998 WL

34032561 (INS).

But because Oforji’s daughters were born in the United

States, they are U.S. citizens, and since U.S. citizens can-
18 No. 02-3861

not be deported they are ineligible for asylum. And because Oforji does not argue that the children will be circumcised as a way of persecuting her, the risk of their being subjected to that procedure, great as that risk is conceded to be, does not strengthen her claim, and so they

will be separated from their mother unless they return to

Nigeria with her. Apparently the children have no relatives in the United States with whom they might live

(they are also very young to be separated from their

mother), for when asked at the immigration hearing,

“Well, couldn’t you leave your children here if you

wanted to return?” she answered: “Who would I leave

it for? Who is going to take care of it? Only I survive

because when I was little my mother passed on so I know

what I went through so how, how can—when in my life

my children start going into the 15th year.” This is obscure, but the implication is that the children have no relatives living in the United States, at least relatives capable

of taking care of two young girls. We know that the father

of the older girl is either dead or in Nigeria, where she

was conceived. There is nothing in the record about the

father of the younger girl. Probably, then, the only condition in which the girls could remain in the United States

after their mother returned to Nigeria would be as foster

children. That is the same unlovely status they would occupy were they aliens granted asylum while their mother

was deported. So although they are citizens they are

treated as badly as aliens.

Had their mother lived in the United States for at least

seven years before deportation proceedings were instituted, however, she could plead hardship to the children

as a basis for suspension of deportation. The period has

been lengthened to ten years for deportation proceedings—now called “removal” proceedings—begun after
No. 02-3861 19

April 1, 1997, see Romero-Torres v. Ashcroft, 327 F.3d 887,

888-89 and nn. 3-4 (9th Cir. 2003); Jimenez-Angeles v.

Ashcroft, 291 F.3d 594, 597 (9th Cir. 2002), but it seems that

deportation proceedings were begun against Oforji in

1996. However, she hadn’t been here for seven years, so

she can’t obtain a suspension of deportation even under

the earlier rule. And so the U.S. citizen children are to suffer severe hardship, either by being returned to Nigeria to

face a procedure that we regard as torture or by being

separated from their mother and consigned to a foster

home, because the mother didn’t have the wit to elude the

Immigration Service for seven years.

The seven-year (now ten-year) rule has only a tenuous

relation to the hardship of children whose parent is ordered deported. What is true is that the longer the children have lived in the United States, the greater the hardship to them of being sent back to their parent’s native

country—one of the unappetizing choices facing these

children and a choice made more excruciating the longer

they remain here and become acclimated to American

ways. But the length of time a child has lived in the

United States depends on when she was born as well as

on when her parent came to the United States. The parent

may have been here for ten years but the child have been

born six months ago; or the parent may have been here

for nine years but the child have been born eight years

ago. The seven-year (or ten-year) rule is irrational viewed

as a device for identifying those cases in which the hardship to an alien’s children should weigh against forcing

her to leave the country.

That is one rule that Congress should rethink and another is awarding citizenship to everyone born in the

United States (with a few very minor exceptions, such as
20 No. 02-3861

the children of accredited foreign diplomats and of foreign heads of state on official visits to the U.S., United

States v. Wong Kim Ark, 169 U.S. 649, 693 (1898); United

States Citizenship, United States Department of Justice Immigration & Naturalization Service Interpretation Letter,

Interpretation 301.1(a)(4)(i), 2001 WL 1333852 (INS); 8

C.F.R. §§ 101.3(a)(1), 1101.3(a)(1)), including the children

of illegal immigrants whose sole motive in immigrating

was to confer U.S. citizenship on their as yet unborn children. This rule, though thought by some compelled by

section 1 of the Fourteenth Amendment, which provides

that “all persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside,” and

in any event codified in 8 U.S.C. § 1401(a), which provides that “the following shall be nationals and citizens of

the United States at birth: (a) a person born in the United

States, and subject to the jurisdiction thereof,” makes no

sense. “The Federation for American Immigration Reform

estimates that 165,000 babies are born each year in the

United States to illegal immigrants and others who come

here to give birth so their children will be American citizens.” Kelley Bouchard, “An Open-Door Refugee Policy

Has Its Critics,” Maine Sunday Telegram, June 30, 2002, p.

11A. “Captured fighter Yaser Esam Hamdi is not a U.S.

citizen, despite his Louisiana birth, argues the Friends of

Immigration Law Enforcement. The group says the citizenship clause of the 14th Amendment doesn’t mandate

the practice of granting ‘birthright citizenship’ to children

born on U.S. soil to temporary workers, illegal immigrants and tourists. . . . ‘The situation we have today is

absurd,’ says the group’s director. . . .‘ For example, there

is a huge and growing industry in Asia that arranges

tourist visas for pregnant women so they can fly to the
No. 02-3861 21

United States and give birth to an American. Obviously,

this was not the intent of the 14th Amendment; it makes a

mockery of citizenship.’ ” John McCaslin, “Inside the Beltway: Rotund Tourists,” Wash. Times, Aug. 27, 2002, p. A7.

We should not be encouraging foreigners to come to the

United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that

abuse of hospitality is to remove the incentive by changing the rule on citizenship, rather than to subject U.S. citizens to the ugly choice to which the Immigration Service

is (legally) subjecting these two girls. A constitutional

amendment may be required to change the rule whereby

birth in this country automatically confers U.S. citizenship, but I doubt it. Peter H. Schuck & Rogers M. Smith,

Citizenship Without Consent: Illegal Aliens in the American

Polity 116-17 (1985); Dan Stein & John Bauer, “Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants,” 7 Stanford L. & Policy Rev.

127, 130 (1996). The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for

children of foreign diplomats and heads of state shows

that Congress does not read the citizenship clause of the

Fourteenth Amendment literally. Congress would not be

flouting the Constitution if it amended the Immigration

and Nationality Act to put an end to the nonsense. On

May 5, 2003, H.R. 1567, a bill “To amend the Immigration

and Nationality Act to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens,” was referred to the

House Subcommittee on Immigration, Border Security,

and Claims. I hope it passes.
22 No. 02-3861

Our hands, however, are tied. We cannot amend the

statutory provisions on citizenship and asylum.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-31-03