Bathusi Musa v. Loretta Lynch
813 F.3d 1019
| 7th Cir. | 2016Background
- Musa, a Botswana national, entered the U.S. on a visitor visa, married a U.S. citizen, and later had her I-130 and adjustment application denied; she was placed in removal proceedings and divorced in 2010.
- She applied for asylum, withholding of removal, and CAT protection (claiming fear of forced female genital mutilation (FGM) by her family if returned).
- Musa testified (credited by the IJ) that her Kalanga-family had twice tried to force FGM on her as a teen, that a grandmother performs FGM, and that her family now seeks to force her into a marriage requiring FGM.
- Country reports in the record (State Department, UNICEF) indicated FGM is not widely practiced or had no known cases in Botswana.
- The IJ denied asylum as untimely, denied withholding of removal as not meeting the "clear probability" standard (relying in part on lack of countrywide evidence), and denied CAT relief for lack of government acquiescence; the BIA affirmed.
- The Seventh Circuit dismissed review of the asylum timeliness ruling for lack of jurisdiction, granted Musa withholding of removal, and denied CAT relief; the case was remanded to the BIA for implementation of withholding relief.
Issues
| Issue | Plaintiff's Argument (Musa) | Defendant's Argument (Gov't/BIA) | Held |
|---|---|---|---|
| Timeliness of asylum filing / changed or extraordinary circumstances | Musa argued marital/immigration events and denial of adjustment justified late filing | BIA/IJ: marriage/divorce not changed/extraordinary; filing was untimely and unreasonable delay after denial | Dismissed for lack of jurisdiction to review agency's factual application on timeliness |
| Withholding of removal — likelihood of persecution (FGM) | Credible testimony of family practice and two forcible attempts shows more-likely-than-not risk upon return | Agency emphasized lack of objective countrywide evidence of FGM in Botswana | Granted: substantial evidence did not support denial; credible testimony sufficient and agency erred in relying on national prevalence and unaddressed relocation issues |
| Relocation within Botswana | Musa: relocation not reasonable given family pressure and changed circumstances | BIA: Musa could relocate elsewhere in Botswana to avoid FGM | Court: BIA’s relocation conclusion was cursory and possibly beyond its authority; agency failed to analyze whether relocation was reasonable given record — remand required |
| CAT protection — government acquiescence | Musa: police/government would not prevent or would acquiesce in FGM | Gov't/BIA: record lacks evidence government would acquiesce or allow torture | Denied: substantial evidence supports agency finding that government acquiescence/torture by state unlikely |
Key Cases Cited
- Balogun v. Ashcroft, 374 F.3d 492 (7th Cir. 2004) (FGM recognized as persecution)
- Olowo v. Ashcroft, 368 F.3d 692 (7th Cir. 2004) (FGM as persecution context)
- Borovsky v. Holder, 612 F.3d 917 (7th Cir. 2010) (withholding: clear probability standard explained)
- Restrepo v. Holder, 610 F.3d 962 (7th Cir. 2010) (limits on judicial review of discretionary asylum-timeliness determinations)
- Mohideen v. Gonzales, 416 F.3d 567 (7th Cir. 2005) (multiple motives for persecution do not defeat claim if one statutory ground present)
- SEC v. Chenery, 318 U.S. 80 (1943) (agency may not rely on a new rationale on appeal that the agency did not invoke below)