Badiatu Tunis v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3465
B ADIATU T UNIS ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
On Petition for Review of an Order of the
Board of Immigration Appeals.
No. A77-603-197.
____________
A RGUED M ARCH 28, 2006—D ECIDED M AY 15, 2006
____________
Before P OSNER , E ASTERBROOK , and W ILLIAMS , Circuit
Judges.
P OSNER , Circuit Judge. Badiatu Tunis, a native of Sierra
Leone who became a permanent resident of the United
States, was ordered removed (deported) on the basis of her
conviction in a Wisconsin state court of two counts of selling
a small amount of cocaine (less than a gram). These were
felonies for which the court sentenced her to two years in
prison plus two years of “extended supervision” but
suspended all but seven months of the prison term. Were it
not for the classification by the immigration judge, seconded
by the Board of Immigration Appeals, of her offense as a

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2 No. 05-3465
“particularly serious crime,” she would be eligible for
asylum and alternatively for withholding of removal. She
challenges the classification, together with the denial of
relief under the Convention Against Torture.
A drug offense, state or federal, that would be a felony
under federal law, as Tunis’s would be, is an “aggravated
felony” for purposes of immigration law and bars the re-
lief sought (other than under the Convention). Gonzales-
Gomez v. Achim, 441 F.3d 532, 533 (7th Cir. 2006). But if the
prison sentence is shorter than five years, the Attorney
General has discretion to rule that the alien’s “aggravated
felony” is not a “particularly serious crime” and hence does
not bar that relief. 8 U.S.C. § 1231(b)(3)(B)(ii). The statute
provides no guidance to his exercise of that discretion, but
in In re Y-L, 23 I. & N. Dec. 270, 276-77 (BIA 2002), he stated
that the “unusual circumstances”
would need to include, at a minimum: (1) a very small
quantity of controlled substance; (2) a very modest
amount of money paid for the drugs in the offending
transaction; (3) merely peripheral involvement by the
alien in the criminal activity, transaction, or conspiracy;
(4) the absence of any violence or threat of violence,
implicit or otherwise, associated with the offense; (5) the
absence of any organized crime or terrorist organization
involvement, direct or indirect, in relation to the offend-
ing activity; and (6) the absence of any adverse or
harmful effect of the activity or transaction on juveniles.
Only if all of these criteria were demonstrated by an
alien would it be appropriate to consider whether other,
more unusual circumstances (e.g., the prospective
distribution was solely for social purposes, rather than
for profit) might justify departure from the default
interpretation that drug trafficking felonies are “partic-

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No. 05-3465 3
ularly serious crimes.” I emphasize here that such
commonplace circumstances as cooperation with law
enforcement authorities, limited criminal histories,
downward departures at sentencing, and post-arrest (let
alone post-conviction) claims of contrition or innocence
do not justify such a deviation.
The courts have (with an immaterial exception) no juris-
diction to review discretionary determinations by the
Attorney General concerning immigration, 8 U.S.C.
§ 1252(a)(2)(B)(ii), including determinations under 8
U.S.C. § 1231(b)(3)(B)(ii), Afridi v. Gonzales, 442 F.3d 1212,
1218 (9th Cir. 2006); Unuakhaulu v. Gonzales, 416 F.3d 931,
935 (9th Cir. 2005), except to consider “constitutional claims
or questions of law.” 8 U.S.C. § 1252(a)(2)(D); Cevilla v.
Gonzales, No. 05-2387, 2006 WL 1133148, at *1-3 (7th Cir.
May 1, 2006). Neither the constitutionality of the informal
regulation promulgated in In re Y-L nor the authority of
the Attorney General to formulate criteria for the exercise of
the discretion granted to him by section 1231(b)(3)(B)(ii) is
questioned. And if Tunis met the six listed criteria but failed
to persuade the Board that “other, more unusual circum-
stances (e.g., the prospective distribution was solely for
social purposes, rather than for profit) might justify depar-
ture from the default interpretation that drug trafficking
felonies are ‘particularly serious crimes,’ ” we would have
no jurisdiction to review the Attorney General’s ruling
unless in making it he managed somehow to violate the
Constitution, as by basing denial on a forbidden ground
such as race or sex.
Still, the immigration judge committed a mistake of law
when he ruled that Tunis could not satisfy criterion
(4)—“the absence of any violence or threat of violence,
implicit or otherwise, associated with the offense”—on the

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4 No. 05-3465
ground that all drug transactions involve an “inherent risk
of violence.” If “all” drug transactions flunk criterion (4),
there can be no drug offense that is not “a particularly
serious crime,” which is contrary to In re Y-L. But this
mistake cannot save the day for Tunis. An alien must satisfy
all six criteria to reach the threshold for consideration and
number (3) is that his or her involvement “in the criminal
activity, transaction, or conspiracy” have been “merely
peripheral” (emphasis added). Tunis was the seller in the
two drug transactions. The seller cannot be a peripheral
figure in a transaction—the person who drove the seller to
the place of sale, or supplied the seller with a Ziploc bag in
which to place the drugs, perhaps; but not the seller or the
buyer. Compare United States v. Valles, 41 F.3d 355, 358-
59 (7th Cir. 1994); Bellavia v. Fogg, 613 F.2d 369, 378 (2d Cir.
1979).
That leaves for consideration Tunis’s claim for relief under
the Convention Against Torture. She must prove that it is
more likely than not that if returned to Sierra Leone she will
be tortured. 8 C.F.R. § 208.16(c)(2); Mabasa v. Gonzales, 440
F.3d 902, 907-08 (7th Cir. 2006). Her claim is based on the
procedure (really procedures—and that will become
important in our analysis but can be ignored for the mo-
ment) that used to be called “female circumcision” or
“clitoridectomy and infibulation” but is now more com-
monly referred to, in places where it is not an acceptable
practice, as “female genital mutilation” (FGM). It is well-
nigh universal in Sierra Leone, where it is not illegal, and is
performed not by doctors but by members of women’s
secret societies. Tunis underwent it when she was 10 years
old, but later, when she first had sexual intercourse, her
sexual partner complained that she was only a “half-
woman”, which was taken to mean that the procedure had
been somehow incomplete. Tunis fears that if she is re-

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No. 05-3465 5
turned to Sierra Leone she will be forced to undergo the
procedure again. She claims without contradiction that she
does not want this to happen, and we have held that
forcibly subjecting a girl or woman to the procedure is
torture. Oforji v. Ashcroft, 354 F.3d 609, 615 n. 2 (7th Cir.
2003); Nwaokolo v. INS, 314 F.3d 303, 308-09 (7th Cir. 2002)
(per curiam); see also Mohammed v. Gonzales, 400 F.3d 785,
802 (9th Cir. 2005).
The government argues that Tunis’s fears are chimerical.
It points out that most females in Sierra Leone are subjected
only to clitoridectomy—more precisely, to “excision,” which
is “the removal ‘of the clitoris together with part or all of the
labia minora,’ ” Abay v. Ashcroft, 368 F.3d 634, 638 n. 1 (6th
Cir. 2004) (quoting a Department of State study)—and not
to infibulation as well, which is “stitching or narrowing [as
by rings] of the vaginal opening, leaving a very small
opening, about the size of a matchstick, to allow for the flow
of urine and menstrual blood.” Id. So even if Tunis just
underwent excision the first time, she need have little fear
of being forced to undergo infibulation. But this misses the
point. As far as the record reveals, she had a botched
procedure when she was 10 years old, as a result of which
her excision was only partial. This exposes her to the risk of
being forced (should she be returned to Sierra Leone) to
repeat the excision, and we have held that involuntary
excision, even if unaccompanied by infibulation, is torture.
Nwaokolo v. INS, supra, 314 F.3d at 308-09; see also Moham-
med v. Gonzales, supra, 400 F.3d at 795 n. 12.
At argument, the government’s lawyer pointed out that
notes of a pelvic exam of Tunis imply that she is infibulated.
This seems mistaken, since the notes include a hand-drawn
picture of her pelvic area that clearly shows an entirely open
vagina. More important, the statement in the notes that

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6 No. 05-3465
mentions infibulation supports the hypothesis of an incom-
plete excision: “Clitoris—absent. s/p anterior
infibulation. . . . Labia—present posteriorly, absent anteri-
orly” (emphasis added). That is, Tunis’s labia have not been
entirely removed, and the labia that remain may have been
what gave rise to the “half-woman” comment.
The examining doctor may have thought infibulation a
generic term for clitoridectomy and infibulation—as did the
immigration judge, who said “there is one procedure
I believe and the one procedure involves infibulation,
I believe that’s the term, for everything. It is infibulation
where all of the female genitalia is removed. But that’s only
15 percent of [women in Sierra Leone]” (emphasis added).
Infibulation is neither here nor there, as far as the present
case is concerned. Tunis’s argument is that the excision, a
separate procedure, was incomplete.
Besides assuming that Tunis had undergone a complete
excision and that the “half-woman” comment, if it had been
made at all, was a reference to her not having undergone
infibulation as well, the immigration judge refused to credit
the comment, on the ground that it was “quadruple hear-
say.” Tunis, he said, had “testified in a general manner that
a male friend had related this to her sister who related this
to her mother who related this to” Tunis. What Tunis
actually testified was that people from the village had
taunted her about the incomplete procedure; that a member
of the secret society had told her mother that the members
realized they’d “never finished what they did” and would
have “to complete what they started”; and that the “half-
woman” comment had been made directly to her. That
testimony was not hearsay; she was testifying to what she
had heard, not to the truth of the statement. Likewise her
testimony about taunts made to her. And although

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No. 05-3465 7
the statement by her mother was hearsay, immigration
judges, like other administrative adjudicators, are not bound
by the rules of evidence. Niam v. Ashcroft, 354 F.3d 652, 658-
59 (7th Cir. 2004).
The judge also ruled that the government of Sierra Leone
does not direct or acquiesce in female circumcision, and
without such acquiescence the Convention Against Torture
cannot provide any protection to Tunis. The procedure is
performed by the secret societies, which are private groups,
and the judge said that “the government is not responsible
for individuals whom it is unable to control.” True, but
irrelevant: Female circumcision is legal in Sierra Leone,
obviously well known to the government, and, consider-
ing the strong international condemnation of the practice,
condoned and thus acquiesced in by the government,
therefore entitling Tunis to the Convention’s protection.
8 C.F.R. §§ 1208.18(a)(1), (7); Cruz-Funez v. Gonzales, 406 F.3d
1187, 1192 (10th Cir. 2005); Khouzam v. Ashcroft, 361 F.3d 161,
171 (2d Cir. 2004).
The determination that Tunis is unlikely to be subjected to
government-condoned torture if she is returned to her
village cannot stand, given the errors committed by the
immigration judge and left uncorrected by the Board of
Immigration Appeals. But if she can be returned to some
place in Sierra Leone where she would not be forced to
undergo another excision, the Convention’s “more likely
than not” criterion would not be satisfied. This issue has yet
to be addressed in this proceeding and we cannot assume
that it will be resolved against Tunis. For it is unclear
whether there is any region in Sierra Leone where she
would not be regarded as a “half-woman” by any man she
has intercourse with and subjected to excision. That is an
issue for exploration on remand, as is another unexplored

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8 No. 05-3465
and unresolved issue—whether the secret societies would
force a mature woman to undergo a remedial excision.
Tunis was only 15 when she was threatened with that
procedure and fled Sierra Leone, and she is now 23. So it
would be premature to rule that Tunis is in fact entitled by
the Convention Against Torture to remain in the United
States. But the immigration judge’s opinion is not reasoned,
and its defects were not repaired by the Board’s perfunctory
discussion of the torture issue in its opinion affirming the
immigration judge.
The petition for review is therefore granted (though only
with respect to the issue of torture) and the case returned to
the Board for further proceedings consistent with this
opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-15-06

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