The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2046
BATHUSI MUSA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A087‐244‐589
____________________
ARGUED DECEMBER 15, 2015 — DECIDED FEBRUARY 19, 2016
____________________
Before BAUER, POSNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Bathusi Musa, a citizen of Bot‐
swana, petitions for review of the denial of her application
for asylum, withholding of removal, and protection under
the Convention Against Torture, all based on her fear that
her family will force her to undergo female genital mutila‐
tion (FGM) if she returns. We grant the portion of the peti‐
tion requesting withholding of removal. Substantial evi‐
dence does not support the agency’s conclusion that Musa
2 No. 15‐2046
likely will not be subjected to FGM. On the asylum applica‐
tion, however, we lack jurisdiction to review the agency’s
determination that Musa’s asylum application was untimely.
We must dismiss that portion. We also deny the portion of
her petition seeking relief under the Convention Against
Torture because the agency did not err by finding that the
government in Botswana would not acquiesce to forced
FGM.
Musa entered the United States in April 2008 on a visi‐
tor’s visa. She met a United States citizen and they married.
Musa’s husband filed an I‐130 “alien relative” petition on
her behalf, and Musa applied at the same time to adjust her
status to permanent resident. See 8 U.S.C. §§ 1151(b)(2)(A)(i),
1255(a); 8 C.F.R. § 245.2; In re Hashmi, 24 I. & N. Dec. 785,
789–90 (BIA 2009). In June 2009, however, the Department of
Homeland Security denied the I‐130 petition and Musa’s ap‐
plication to adjust status. The problem was that Musa’s hus‐
band was discovered not to have ended a previous marriage.
In November 2009 Musa was placed in removal proceedings
because her visa had expired while those applications were
pending. In April 2010, Musa and her husband divorced.
In October 2010, Musa applied for asylum, withholding
of removal, and protection under the Convention Against
Torture because she feared that if she returned to Botswana
her family would force her to undergo FGM.1 Musa, who
belongs to the Kalanga tribe, said that her mother and
1 FGM is defined by the World Health Organization as a collection of
“procedures that involve partial or total removal of the external female
genitalia, or other injury to the female genital organs for non‐medical
reasons.” See Female Genital Mutilation, World Health Organization,
http://www.who.int/mediacentre/factsheets/fs241/en/.
No. 15‐2046 3
grandmother hold strict traditional beliefs and think that if a
woman does not undergo FGM her entire family will be
cursed. Musa’s grandmother is, in Musa’s words, a “medi‐
cine woman” and has performed FGM on other women in
the past.
When she lived in Botswana, Musa said, her family on
two occasions tried unsuccessfully to force her to undergo
the mutilation. On the first attempt, when she was 16, Musa
was kidnapped by a group of women and brought to a place
where other girls were undergoing FGM. She managed to
escape through a bathroom window before the procedure
could be carried out, and then—suspecting that her family
had instigated the events—hid at a friend’s house. Musa’s
mother eventually acknowledged the family’s involvement
and promised not to force her to undergo the procedure, at
which point Musa returned home.
The second attempt came a year later. Musa said she was
attacked by several men who dragged her into some bushes
and attempted to “circumcise” her. They told Musa that her
mother had sent them. Musa was able to break away, but
she sustained bruises all over her body. Musa did not report
the incident to the police, she said, because everyone accept‐
ed that FGM was practiced and she believed the police
would not take her accusation seriously. She also testified
that she had two friends who had died from undergoing
FGM in Botswana in 2004. Musa continued to live with her
parents until later in 2004 or 2005 and then moved to another
city in Botswana. Her parents were able to contact her over
the phone, but Musa did not disclose her address.
More recently, since leaving Botswana, Musa said that
her parents had found her a significantly older marriage
4 No. 15‐2046
partner (he is 75, Musa is now 30), who could help the fami‐
ly financially. To marry the older man, Musa says, she
would have to undergo FGM. Her father, who used to resist
having the procedure performed on her, wants her to go
through with the marriage because he needs money from the
suitor to help his struggling business. Musa is afraid to re‐
turn to Botswana because she does not want to undergo
FGM or marry this man.
Further testimony about FGM in Botswana was present‐
ed by one of Musa’s friends from Botswana, Gaomongwe
Selawe said that FGM was practiced in Botswana as an initi‐
ation ritual for girls. She said that she had heard that FGM
was practiced by some members of the Kalanga tribe. And
she had friends who had undergone the procedure in Bot‐
swana. Selawe said that many women do not talk about be‐
ing forced to undergo FGM because it is a private ritual.
The record before the immigration judge contained doc‐
umentary evidence showing that FGM is not prevalent in
Botswana. The 2011 State Department Country Report in
Human Rights Practices for Botswana stated: “There were
no known cases of physically harmful traditional practices,
such as female genital mutilation.” According to UNICEF,
FGM is “not widely practiced” in Botswana, though its re‐
port in 2005 nevertheless counted 3 million girls in Africa at
risk of FGM each year. Finally, Musa attached a letter writ‐
ten by her mother imploring her to return to Botswana to
marry the older man the family had found for her.
The immigration judge denied Musa’s application for
asylum, withholding of removal, and Convention Against
Torture relief. Musa was not eligible for asylum, the judge
found, because she had not filed a timely application within
No. 15‐2046 5
one year of her arrival in the United States. The judge also
found that neither her marriage to nor divorce from her hus‐
band was a changed circumstance justifying her delay. And
even if the denial of her application for adjustment of status
in June 2009 was a changed circumstance, the judge found,
Musa waited an unreasonably long time from that date—
more than a year—to file for asylum.
The judge denied Musa’s request for withholding of re‐
moval because he determined there was not a clear probabil‐
ity that if she returned to Botswana she would be subjected
to FGM. The judge believed Musa’s testimony that her fami‐
ly practices FGM and on two occasions had attempted to
subject her to it forcibly. The judge concluded, however, that
those incidents did not amount to past persecution because
Musa had not actually undergone the procedure. The judge
also believed Musa’s testimony that she feared returning to
Botswana, but he did not regard her fear as reasonable be‐
cause there was no evidence in the record showing that FGM
was practiced at all, let alone practiced widely in Botswana.
The judge noted Musa’s admission that her desire to avoid a
marriage to a much older man was the principal reason she
did not want to return to Botswana, not her fear of FGM.
Finally, the immigration judge denied Musa’s request for
protection under the Convention Against Torture because
she had not presented any evidence showing that the gov‐
ernment in Botswana would torture her or acquiesce to tor‐
ture by anyone else.
The Board of Immigration Appeals affirmed the immi‐
gration judge’s decision. The Board agreed with the judge’s
conclusion that Musa’s asylum application was untimely be‐
cause her marriage and divorce were neither changed nor
6 No. 15‐2046
extraordinary circumstances and she did not file the applica‐
tion in a reasonable amount of time after the denial of her
petition for adjustment of status. The Board then explained
that it agreed with the judge’s denial of Musa’s withholding
and Convention Against Torture claims because she “has not
been able to provide objective evidence of country condi‐
tions in Botswana that corroborates her stated fear of FGM.”
The Board agreed with the judge that Musa’s testimony was
credible, but it supplemented the judge’s reasoning by pro‐
posing that Musa could relocate to a different part of the
country: “in view of the paucity of FGM occurring in Bot‐
swana, and especially in view of the fact that the respondent
need not return specifically to her hometown, we cannot
conclude that the Immigration Judge clearly erred in con‐
cluding that the respondent did not show that … persecu‐
tion or torture—such as FGM—is likely to occur.”
Musa leads off her petition for judicial review with a
weak challenge to the agency’s determination that she did
not show changed circumstances materially affecting her el‐
igibility for asylum. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. §
1208.4(a)(4), (5). She recognizes that we lack jurisdiction to
review such a determination absent a related legal or consti‐
tutional argument, see 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D);
Almutairi v. Holder, 722 F.3d 996, 1002 (7th Cir. 2013); Restrepo
v. Holder, 610 F.3d 962, 964–65 (7th Cir. 2010), so she tries to
frame her disagreement with the agency as a legal issue. She
disagrees with the Board’s conclusions that her marriage
and divorce did not constitute changed or extraordinary cir‐
cumstances, and that it was unreasonable for her to have
waited more than a year to apply for asylum after the denial
of her application for adjustment of status.
No. 15‐2046 7
Those disagreements do not raise a justiciable legal ques‐
tion challenging the basis of the agency’s determination. She
disputes only the application of the law to her circumstance,
not the governing legal rules. We thus lack jurisdiction to
review the denial of her asylum application. See Restrepo, 610
F.3d at 964–65; Viracacha v. Mukasey, 518 F.3d 511, 515–16
(7th Cir. 2008).
Musa next argues that substantial evidence does not
support the denial of her application for withholding of re‐
moval because the judge wrongly disregarded her testimony
about her family’s FGM practice—testimony that he explicit‐
ly credited. We agree. The fact that FGM is not widespread
in Botswana as a whole does not contradict her statements
about her family’s practice.
We have held consistently that FGM is a form of persecu‐
tion. See Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir. 2004);
Olowo v. Ashcroft, 368 F.3d 692, 702–03 (7th Cir. 2004);
see also In re Kasinga, 21 I. & N. Dec. 357, 358 (BIA 1996).
Still, Musa bears a high burden to establish eligibility for
withholding of removal: she must show a clear probability
of persecution if removed to Botswana. See Borovsky v.
Holder, 612 F.3d 917, 921 (7th Cir. 2010); Guardia v. Mukasey,
526 F.3d 968, 971 (7th Cir. 2008); 8 C.F.R. § 1208.16(b)(2). A
clear probability means it appears more likely than not that
she will suffer persecution if removed. Bitsin v. Holder, 719
F.3d 619, 628 (7th Cir. 2013); see Zheng v. Gonzales, 409 F.3d
804, 809 (7th Cir. 2005); 8 C.F.R. § 1208.16(b)(2).
The immigration judge here erred by placing too much
weight on the absence of background evidence confirming
prior cases of FGM in Botswana at large. The absence of
documented cases of FGM in that country does not contra‐
8 No. 15‐2046
dict Musa’s testimony—testimony that the judge explicitly
credited—that her family practiced FGM. The judge found
that Musa testified credibly that her family practiced FGM,
that they had twice attempted to force her to undergo it, and
that her family—including her father, who once opposed
subjecting her to the practice—now wants her to enter into a
marriage conditioned upon her undergoing it.
Whether FGM is widely practiced in Botswana or not has
no bearing on whether Musa’s own family is likely to subject
her to it. The judge credited Musa’s testimony about her
family’s FGM practice. He erred by failing to acknowledge
the likelihood that she will be subjected to FGM upon re‐
turning to Botswana and acceding to the marriage. Musa’s
credible testimony is sufficient to sustain her burden of
proof. Neither the judge nor the Board denied Musa’s claim
based on a lack of corroboration under the Real ID Act, 8
U.S.C. § 1158(b)(1)(B)(ii). (Under that act, an immigration
judge may require an applicant who testifies credibly to
provide reliable corroborating evidence as well. See Tian v.
Holder, 745 F.3d 822, 828 (7th Cir. 2014).)
The judge also erred by characterizing Musa’s principal
motivation for seeking withholding of removal as her fear of
marrying a much older man rather than fear of FGM. Once
the judge accepts an applicant’s testimony about fear of per‐
secution as genuine, the existence of other fears does not un‐
dermine her claim. See Mohideen v. Gonzales, 416 F.3d 567,
570 (7th Cir. 2005) (“an individual may qualify for asylum if
his or her persecutors have more than one motive as long as
one of the motives is specified in the Immigration and Na‐
tionality Act”).
No. 15‐2046 9
The Board’s conclusion that Musa could safely relocate to
another part of the country is also problematic. The immi‐
gration judge did not address whether Musa could relocate
to a different part of Botswana to avoid her family’s pressure
to undergo FGM, or whether she could reasonably be ex‐
pected to do so. See 8 C.F.R. § 1208.16(b)(2). The possibility
of relocation, for that matter, was not even argued by the
government before the Board.
As an initial matter, it is not clear that the Board has the
authority to make a finding in the first instance that Musa
could relocate. See 8 C.F.R. § 1003.1(d)(3)(i) (“The Board will
not engage in de novo review of findings of fact determined
by an immigration judge. Facts determined by the immigra‐
tion judge … shall be reviewed only to determine whether
the findings of the immigration judge are clearly errone‐
ous.”). Even if the Board were permitted to determine the
relocation issue in the first instance, its cursory declaration
about the feasibility of relocation gave no rationale. The
Board did not address whether Musa’s ability to relocate
safely might be compromised in light of her testimony that
she now faces greater danger because of her family’s marital
arrangements and her father’s apparent change of heart re‐
garding his prior opposition to her undergoing FGM. “‘[I]t
seems possible … that the agency might be compelled to
reach the opposite conclusion depending how it evaluates
the record after remand.’” Kone v. Holder, 620 F.3d 760, 764
(7th Cir. 2010), quoting Gomes v. Gonzalez, 473 F.3d 746, 752
(7th Cir. 2007).
We add that the agency has waived any argument about
denying withholding based on Musa’s failure to provide ev‐
idence of government involvement or acquiescence in the
10 No. 15‐2046
practice of FGM in Botswana. Neither the immigration judge
nor the Board relied on that ground as a basis to deny with‐
holding. See SEC v. Chenery, 318 U.S. 80, 87–88 (1943); Sarhan
v. Holder, 658 F.3d 649, 661 (7th Cir. 2011); Moab v. Gonzales,
500 F.3d 656, 659 (7th Cir. 2007).
Although we vacate and remand the decision regarding
withholding of removal, we agree with the Board that Musa
is not entitled to relief under the Convention Against Tor‐
ture. The implementing regulations define torture as “severe
pain or suffering … inflicted by or at the instigation of or
with the consent or acquiescence of a public official.”
8 C.F.R. § 208.18. Female genital mutilation is torture, of
course. But the judge did not err by finding that Musa failed
to show that torture is likely to be carried out by or with the
acquiescence of the government in Botswana. See Khan v.
Holder, 766 F.3d 689, 698 (7th Cir. 2014); Ishitiaq v. Holder, 578
F.3d 712, 718 n.3 (7th Cir. 2009); 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1). The judge justifiably discounted Selawe’s tes‐
timony and was unswayed by Musa’s, and Musa has not
pointed to evidence in the record to substantiate her testi‐
mony that the government would have permitted her family
to subject her to FGM even if she had reported their attempts
in 2002 and 2003.
Accordingly, the portion of the petition relating to Musa’s
request for asylum is DISMISSED, the portion of the petition
relating to withholding of removal is GRANTED, and the
portion of the petition relating to protection under the Con‐
vention Against Torture is DENIED. The case is remanded to
the Board of Immigration Appeals.