Edu v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSEPHINE EDU, 
Petitioner,
No. 06-72609
v.
 Agency No.
ERIC H. HOLDER Jr., Attorney A043-358-010
General,
Respondent.


JOSEPHINE EDU, 
Petitioner, No. 07-70590
v.
 Agency No.
A043-358-010
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
October 5, 2010—San Francisco, California

Filed October 26, 2010

Before: Ferdinand F. Fernandez and Barry G. Silverman,
Circuit Judges, and Kevin Thomas Duffy,* District Judge.

Opinion by Judge Fernandez

*The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

17705
 EDU v. HOLDER 17707

COUNSEL

César R. Ternieden, Law Office of César R. Ternieden, San
Francisco, California; Charles E. Nichol, Law Offices of
Charles E. Nichol, San Francisco, California for the peti-
tioner.

Liza Murcia, United States Department of Justice, Civil Divi-
sion, Washington, D.C., for the respondent.
17708 EDU v. HOLDER
OPINION

FERNANDEZ, Circuit Judge:

Josephine Edu, a native and citizen of Nigeria, petitions for
review of the Board of Immigration Appeals’ (BIA) denial of
her application for deferral of removal under the Convention
Against Torture1 (CAT), and from its denial of her motion to
reopen. Deferral was denied on the basis that Edu could avoid
torture by ceasing to exercise her political rights, and that the
mere fact that she had endured female genital mutilation was
insufficient to support CAT relief. We grant her petition in
part and remand.

BACKGROUND

Josephine Edu is a forty-seven-year-old woman from Nige-
ria. She is a member of the Ijaw (or Ijall) tribe which is con-
centrated in the Niger Delta area. She entered the United
States in December 1989, and became a lawful permanent res-
ident on January 7, 1993, after marrying her United States cit-
izen husband. On April 10, 2002, she was issued a notice to
appear by the Department of Homeland Security because she
had been convicted of an aggravated felony.2 She conceded
removability on that basis, but submitted an application for
deferral of removal under CAT.

Edu grew up in Lagos, Benin City and Potakot (that is, Port
Harcourt). Those are within the Niger Delta region. She stud-
ied to be a nurse and midwife from 1982 to 1987 in Benin
City. In November 1983, while at the university, she became
1
United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty
Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (implemented at 8 C.F.R.
§ 208.18).
2
She had been convicted of assault with a deadly weapon in California
after she used a piece of glass to stab and slash her supervisor.
 EDU v. HOLDER 17709
politically active by joining the Ijaw Youth Association, a
group of nurses and doctors. The purpose of the group was to
protest against the government’s failure to provide jobs to
minority graduates, and its failure to provide roads, good
schools, drinking water, lights, and payment of student loans
and salaries. Edu took on secretarial duties for the Associa-
tion, which included taking memos, contributing money, and
writing letters to politicians and younger military officers to
discuss the Association’s concerns. In addition, Edu partici-
pated in several demonstrations.

Edu testified to incidents where she was detained, raped
and beaten by the police or military in response to her politi-
cal activities. First, in November 1983, during her second or
third peaceful demonstration outside the governor’s office, the
police and military arrived. The police beat and pushed the
protestors. Edu fell and cut her legs on pieces of glass. After
that, she began demonstrating more. A few days later, she was
arrested after demonstrating for four hours. She was taken to
the barracks where she was raped by two officers in an inter-
rogation room. She was a virgin at the time of that assault,
and became pregnant as a result of it. Her mother made her
abort the child.

Thereafter, Edu did not demonstrate for several months
because she was scared and ill. However, in April of 1994,
while on vacation at her uncle’s home in Potakot, she joined
her cousins in a demonstration. This time she demonstrated
for two hours before she was arrested by the military. Those
officers beat her with a baton, and sexually assaulted her in
her cell. After that incident, Edu did not demonstrate because
her father threatened to prevent her from graduating and to cut
off her allowance. However, she continued her secretarial
duties for the Association.

After Edu finished her nursing education, she was unable
to find a job. She felt she had nothing to live for and partici-
pated in demonstrations several times. In February 1987, she
17710 EDU v. HOLDER
was arrested again and detained. She was beaten with a baton
and a whip. In addition, she was raped by military officers in
their mess hall. Those officers were different from the ones
who had assaulted her the first time. Following this rape, she,
again, abstained from demonstrating for four to five months,
but did continue to participate in meetings. Then, she began
protesting again because she “want[ed] the world to know
what [she] was going through.” At her next demonstration,
the media was present and she was photographed “in front of
[a] hospital with a banner” and medical file in her hands. A
politician used her image in advertisements for his campaign
to depict student discontent with his opponent. The advertise-
ment was shown on television and published in newspapers.

In December 1987, Edu was again arrested while demon-
strating. Two military officers grabbed her, beat her, and then
took her to a “top ranking military officer’s office.” The other
men left her alone with that officer. He informed Edu that he
recognized her from the politician’s commercials and asked
her if she had been modeling for him. When she replied that
she was standing up for her beliefs and protesting for change,
the officer told her that he would “show [her] how to be
tough;” that he would beat her and shut her mouth. He then
whipped her with his belt and beat her with his baton, which
caused her to pass out and bleed from her head. She awoke
to see the officer cutting off her underwear, and slicing her
thigh in the process. She was bleeding from her head, shoul-
der and thigh at that point. The officer then raped her. After-
wards, he instructed his subordinates to dump her body at the
hospital. She felt she was going to be killed that day, for it
was the most serious harm she had suffered.

Although Edu complained to the police after each of those
incidents, nothing ever happened. Indeed, her own family told
her that she deserved the abuse because women should not
demonstrate. Thereafter, she did not demonstrate but contin-
ued to participate in meetings.
 EDU v. HOLDER 17711
After the last incident, Edu left Benin City for Lagos where
she worked in a private hospital from 1988 to 1989. She lived
with her uncle, who owned a security company, at that time.
While in Lagos, she did not have any problems with the mili-
tary. She “was planning to come [to the United States] and . . .
[kept] a low profile so [she] could get out safely.” While in
the United States, she sent money to the Ijaw Association in
Nigeria in order to support their rallies and protests. She did
return to Nigeria in December 1992 to obtain her lawful per-
manent residency documents. She remained there for four
weeks, however her family was frightened for her life because
her cousins had recently been killed in Potakot while demon-
strating. Her uncle also feared for his own life because she
was staying with him. Thus, her uncle “compelled [her] to
remain indoors” and escorted her to and from the American
Embassy. While in Nigeria, Edu also managed to obtain a
character certificate from the police indicating that she had no
arrests or convictions.

Edu testified that she would demonstrate again if she were
returned to Nigeria. She stated that she had nothing to live for,
circumstances were now worse in Nigeria than before she left,
and that she had lost her cousins and younger brother to the
cause. Thus, she would demonstrate because she would “want
a better life” for herself and her people. However, she also
believed that she would be tortured and killed if she returned.
She stated that even if the military did not recognize her, mili-
tary informants would point her out as a member of the Asso-
ciation. She believes that anybody who is associated with
demonstrating, regardless of location, will be tortured or
killed. She noted that before her hearing she had learned that
her brother-in-law was demonstrating in Lagos and later on
his body was found burned and mutilated.

In addition to her own testimony, Edu presented the testi-
mony of Dr. Michael Watts, an expert on Nigeria. Dr. Watts
testified that her fear of future intimidation or torture by the
military or security forces was reasonable and “consistent
17712 EDU v. HOLDER
with the current political environment in Nigeria and particu-
larly in the Niger Delta.” His assessment was based on her
active and visible membership in politics in the 1980’s as well
as her ethnicity. Dr. Watts believed that Edu would be recog-
nized if she returned to Nigeria, and opined that she “would
be tortured if she were to continue her political activity.” If
arrested, she would be subject to “sexual violence and rape.”
Dr. Watts concluded: “If Ms. Edu upon her return were to be
politically active for all the reasons it motivated her earlier in
her life, there is no question that her life will be endangered.”

On August 22, 2002, the Immigration Judge (IJ) granted
Edu’s application for deferral of removal under CAT. The IJ
found no reason to doubt Edu’s testimony, and, therefore,
accepted it as credible. He found that she had been tortured
in the past, and that she would be tortured if she returned. The
BIA reversed that decision, denied her application for protec-
tion under CAT3 and ordered her removed. In July 2005,
because of a prior ruling by this court, the BIA remanded the
case to the IJ so that he could issue the removal order in the
first instance. Accordingly, the IJ vacated his prior order and
issued a new one directing her removal to Nigeria. The IJ also
denied her motion to reconsider and reopen the proceedings.
In August and September 2005, Edu appealed the removal
order and the IJ’s denial of a motion to reconsider and reopen.
In April 2006, the BIA affirmed the IJ’s denial of the motion
to reopen and reconsider. Concomitantly, it construed Edu’s
appeal of the removal order as a motion to reconsider its Feb-
ruary 2004 decision vacating the grant of deferral under CAT.
It did reexamine the matter, but ultimately denied the motion
because it determined that it was not unreasonable to “suggest
that [Edu] could avoid torture by refraining from [political]
activities.” It declared that CAT was not intended to protect
voluntary behavior and political activism. The BIA also found
3
The BIA held that Edu credibly testified to past torture, but denied her
application because it concluded that “it is entirely appropriate to consider
respondent’s ability to avoid torture.”
 EDU v. HOLDER 17713
that Edu could reduce her risk of torture by relocating to
another part of the country. The dissenting member of the
BIA panel would have granted the motion because he found
that “nothing in the Torture Convention . . . would require that
the alien give up a central part of the alien’s life or avoca-
tion.”

Edu then filed a motion to reopen with the BIA based upon
alleged new evidence. The BIA denied that motion. These
appeals followed.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We
note that “[t]he jurisdiction-stripping provision of 8 U.S.C.
§ 1252(a)(2)(C) does not deprive us of jurisdiction over deni-
als of deferral of removal under the CAT, which are always
decisions on the merits.” Lemus-Galvan v. Mukasey, 518 F.3d
1081, 1083 (9th Cir. 2008); see also Owino v. Holder, 575
F.3d 956, 958 (9th Cir. 2009). Moreover, our jurisdiction
extends to both issues of law and issues of fact. See Morales
v. Gonzales, 478 F.3d 972, 980-81 (9th Cir. 2007); Bromfield
v. Mukasey, 543 F.3d 1071, 1075-76, 1079 (9th Cir. 2008).

We review the BIA’s factual findings for substantial evi-
dence. See Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.
2003); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 &
n.1, 112 S. Ct. 812, 815 & n.1, 117 L. Ed. 2d 38 (1992). We
review issues of law de novo. See Zheng, 332 F.3d at 1193.
“The BIA’s interpretations and applications of immigration
law, however, are ‘subject to established principles of defer-
ence.’ ” Id. at 1194.4
4
We recognize that this is technically an appeal from a motion to recon-
sider and a motion to reopen, both of which are normally subject to abuse
of discretion review. See Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th
Cir. 2007). As to the motion to reconsider at hand, however, we will apply
the usual standard of review on direct petitions because, due to the BIA’s
earlier remand to the IJ, this appeal amounts to a review of the BIA’s ini-
tial decision on the merits. In any event, the refusal to reconsider here
would have been an abuse of discretion for the reasons that we explicate
hereafter.
17714 EDU v. HOLDER
[1] That raises the question of just what established princi-
ples apply here. That question has not been clearly answered,
and, as we will note, we need not definitively answer it now.
The Supreme Court has declared that a court should apply
“the principles of deference described in Chevron U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.
Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984),” when it confronts
“ ‘[the BIA’s] construction of the statute which it adminis-
ters.’ ” INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S. Ct.
1439, 1445, 143 L. Ed. 2d 590 (1999). That seems plain
enough, but does not entirely answer the question of when the
agency is actually construing the law it administers in a form
that the agency intends to be ultimately authoritative. What
the regulation guiding the BIA in this regard provides is that
“decisions of the Board . . . shall be binding on all officers
and employees of the Department of Homeland Security or
immigration judges in the administration of the immigration
laws of the United States.” 8 C.F.R. § 1003.1(g). However, it
goes on to say: “By majority vote of the permanent Board
members, selected decisions of the Board rendered by a three-
member panel or by the Board en banc may be designated to
serve as precedents in all proceedings involving the same
issue or issues.” Id. We have declared that “the ‘essential fac-
tor’ in determining whether an agency action warrants Chev-
ron deference is its precedential value.” Garcia-Quintero v.
Gonzales, 455 F.3d 1006, 1012 (9th Cir. 2006). We went on
to note that in order to be precedential, a decision must be
issued by a three-judge panel, but that, in addition, only
selected decisions — those ordered published — are prece-
dential. Id. at 1012-13. However, that case involved a deci-
sion by a single judge and we stated that “[b]ecause the BIA
decision in this case does not fall into either category, it is
non-precedential.” Id. at 1013. Of course, that did not pre-
cisely answer the question of what would happen if the deci-
sion fell into one of the categories. On its face, the regulation
appears to say that three-judge panel rulings are binding on
agency actors, but that only published decisions constitute
precedent. In this case, the initial BIA decision was made by
 EDU v. HOLDER 17715
one judge, but the decision on the motion to reconsider was
made by a panel of three. Neither was designated for publica-
tion.

While the former was clearly non-precedential, the nature
of the weight of the latter is not quite so obvious. If it is pre-
cedential, the Chevron rules certainly apply, but if it is not, a
degree of deference is still owed. See Skidmore v. Swift &
Co., 323 U.S. 134, 140, 65 S. Ct. 161, 164, 89 L. Ed. 124
(1944), see also United States v. Mead Corp., 533 U.S. 218,
227-28, 121 S. Ct. 2164, 2171, 150 L. Ed. 2d 292 (2001)
(citations omitted). And in making that determination:

Justice Jackson summed things up in Skidmore v.
Swift & Co.:

“The weight [accorded to an administra-
tive] judgment in a particular case will
depend upon the thoroughness evident in its
consideration, the validity of its reasoning,
its consistency with earlier and later pro-
nouncements, and all those factors which
give it power to persuade, if lacking power
to control.” 323 U.S., at 140, [65 S. Ct.
161].

Mead Corp., 533 U.S. at 228, 121 S. Ct. at 2172.

[2] In this case we will keep both standards in mind, but
we are satisfied that the decision in question here could not
meet either standard.

DISCUSSION

As already noted, the major issue before us is whether the
BIA erred when it determined that Edu was not entitled to
deferral of removal pursuant to CAT. Before plunging further
17716 EDU v. HOLDER
into that issue, we will clear away the bosk that might other-
wise obscure our discussion.

The IJ determined that Edu was credible, and the BIA
accepted that determination.5 As a result, the facts to which
she testified are “ ‘deemed true, and the question remaining to
be answered becomes whether these facts, and their reason-
able inferences, satisfy the elements of the claim for relief.’ ”
Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005). That
being so, the following facts are established. Edu was tortured
in Nigeria when she participated in political activities (peace-
ful demonstrations), and if she is returned to Nigeria, she will
continue to participate in those activities.6 It is also proper to
infer that, in that event, she will be tortured again; the IJ so
determined and the BIA did not actually find to the contrary,
although we will say a bit more about that hereafter.

When it first considered this case on February 13, 2004, the
BIA, through a one-judge decision, declared as follows:

[T]he Convention Against Torture is not designed to
protect individuals from return to a place where they
are unable to exercise political rights. It merely pro-
tects individuals from torture that is more likely than
not to occur. We agree with the DHS that it is
entirely appropriate to consider the respondent’s
ability to avoid torture. In view of all the evidence
described above, we find that the respondent has not
met her burden of demonstrating that it is more
likely than not that she would be tortured if returned
to Nigeria.
5
To the extent that the determinations of credibility were not explicit,
it is important to note that there surely was no explicit adverse credibility
finding; thus she was credible in any event. See Kalubi v. Ashcroft, 364
F.3d 1134, 1137-38 (9th Cir. 2004).
6
Because that is so, it is quite beside the point that at some times in the
past she has been wise or weak enough to refrain from political activities
in Nigeria.
 EDU v. HOLDER 17717
On its second consideration of the issue on April 16, 2006, the
BIA elaborated as follows:

Finally, we note that the Convention Against Torture
was not designed to protect individuals from having
to return to a place where they are unable to exercise
their political rights, but merely to protect them from
torture that is more likely than not to occur. Thus, we
do not find it unreasonable to suggest that the
respondent could avoid torture by refraining from
activities that would put her in danger.

In this respect, the respondent has not adequately
shown a likelihood of torture arising from her cur-
rent situation, including her past political activities.
. . . Given the unavailability of protection for politi-
cal expression, we see nothing to legally distinguish
the respondent’s alleged intention to be politically
active from any other form of voluntary behavior
that a criminal alien may assert will subject him or
her to torture upon removal. We do not interpret the
provisions implementing the Convention Against
Torture to envision that criminal aliens in the United
States can defeat their removal by non-frivolous
assertions that they will voluntarily engage in behav-
ior that creates a probability of torture where that
probability would not otherwise exist. This holds
whether the voluntary behavior is a new criminal act
in the country of removal or something, such as
political activism, that we would ordinarily protect
under other provisions of the immigration laws.[7]

[3] Is that determination an analysis of CAT which
7
The BIA, in response to a dissent by one member, asserted that it was
not making “a blanket declaration,” but its delineation of the rule it was
applying makes that disclaimer problematic — it leaves little room for
exceptions.
17718 EDU v. HOLDER
deserves deference due to the validity of its reasoning,8 or
“based on a permissible construction of the [law]”9? As we
will explain, we answer in the negative because we see no
basis for returning Edu to a country where she must either
give up her appropriate political behavior or face a substantial
risk of torture.

It would be well to first set forth the ringing words of CAT
itself, which define torture as the intentional infliction of
severe pain or suffering by (as relevant here) public officials
when it is: “for such purposes as . . . punishing him for an act
he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind . . . .”
CAT art. 1. And no State Party can return a person to another
State where there are “substantial grounds for believing that
he would be in danger of being subjected to torture.” Id. art.
3.

The United States signed CAT10 and it was ratified by the
Senate with certain reservations, understandings, declarations,
and a sovereignty provision.11 As relevant here, the terms of
CAT were not affected, except that the “substantial grounds
for believing” basis was clarified to mean “ ‘if it is more
likely than not that he would be tortured.’ ”12

Congress then implemented CAT in the Foreign Affairs
Reform and Restructuring Act of 1998, Pub. L. No. 105-277,
§ 2242, 112 Stat. 2681-761, 2682-822-823 (1998) (codified as
a note to 8 U.S.C. § 1231 (1991)). Congress expressly stated
that “[i]t shall be the policy of the United States not to expel,
8
Skidmore, 323 U.S. at 140, 65 S. Ct. at 164.
9
Chevron, 467 U.S. at 843, 104 S. Ct. at 2782.
10
See The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, S. Rep. No. 102-30, at 19 (1991).
11
See 136 Cong. Rec. S17486, S17491-92 (1990).
12
Id. at S17492.
 EDU v. HOLDER 17719
extradite, or otherwise effect the involuntary return of any
person to a country in which there are substantial grounds for
believing the person would be in danger of being subjected to
torture, regardless of whether the person is physically present
in the United States.” Id. at § 2242(a). Congress then clarified
that “[e]xcept as otherwise provided, the terms used in this
section have the meanings given those terms in the Conven-
tion, subject to any reservations, understandings, declarations,
and provisos contained in the United States Senate resolution
of ratification of the Convention.” Id. at § 2242(f)(2). Con-
gress charged the “appropriate agencies” to “prescribe regula-
tions to implement the obligations of the United States under
Article 3” of CAT “subject to any reservations, understand-
ings, declarations, and provisos” in the Senate ratification res-
olution. Id. at § 2242(b).

Accordingly, the Immigration and Naturalization Service
and Executive Office for Immigration Review prescribed reg-
ulations 8 C.F.R. §§ 1208.16-1208.18,13 and in so doing rec-
ognized that CAT “ ‘does not permit any discretion or provide
for any exceptions.’ ”14 The regulations adopt CAT’s defini-
tion of torture,15 set forth the alien’s burden of persuasion,16
and declare that credible testimony from the alien may suffice
to meet the burden.17

[4] Nonetheless, the BIA must consider all evidence in
deciding whether it is more likely than not that the alien
13
Regulations Concerning the Convention Against Torture, 64 Fed. Reg.
8478, 8478-79, 8481, 8488-8492 (Feb. 19, 1999) (hereafter Fed. Reg.).
14
Id. at 8481.
15
8 C.F.R. § 1208.18(a)(1).
16
That standard is, as Congress directed, that “it is more likely than not
that he or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2). That means a greater than fifty per-
cent chance of torture. See Wakkary v. Holder, 558 F.3d 1049, 1067-68
(9th Cir. 2009); Khup v. Ashcroft, 376 F.3d 898, 907 (9th Cir. 2004).
17
8 C.F.R. § 1208.16(c)(2).
17720 EDU v. HOLDER
would face future torture,18 but the existence of past torture “is
ordinarily the principal factor on which we rely.”19 That Edu
was tortured in the past is not in question here, and that alone
ought to heighten concern for her well-being should she be
returned to Nigeria. That being so, what cuts against deferral?
Nothing much that was submitted as far as we can scry. The
BIA did suggest that because no particular basis for torture
need be shown, her condition is not any better than that of a
person who plans to return to his own country and commit
crimes. But the BIA’s reasoning in that regard obnebulates the
issue by approaching it in the wrong way. True it is that if
criminals are tortured in the country to which an alien is to be
returned, CAT does not deny relief to that alien, even if his
actions were criminal there. In fact, even if a person was
deserving of punishment in that country, torture would not be
justified. See 8 C.F.R. § 1208.18(a)(1); Nuru, 404 F.3d at
1221. And in adopting the regulations, the agencies them-
selves recognized that even those who assisted in Nazi perse-
cutions, or engaged in genocide, or pose a danger to our own
security are not excluded from the protections of CAT. See
Fed. Reg. at 8478-79. In other words, even if a person does
not meet the more stringent standards — like political opinion
— under which asylum could be granted,20 he might be enti-
tled to CAT relief.21 There is nothing new about that.

[5] What is new is the notion that CAT’s precepts mean
that an alien can be required to give up the benign, encour-
aged, and oft protected practice of political beliefs in order to
avoid torture, and, therefore, cannot claim that it is more
likely than not that he will be tortured. We have rejected that
kind of thinking in the asylum area, and have declared that it
is “contrary to our basic principles.” Zhang v. Ashcroft, 388
18
8 C.F.R. § 1208.16(c)(3).
19
Nuru, 404 F.3d at 1218.
20
See 8 U.S.C. § 1101(a)(42)(A).
21
See Kamalthas v. INS, 251 F.3d 1279, 1281-83 (9th Cir. 2001).
 EDU v. HOLDER 17721
F.3d 713, 719 (9th Cir. 2004) (per curiam); see also Mamouz-
ian v. Ashcroft, 390 F.3d 1129, 1137 & n.6 (9th Cir. 2004).
We think that the BIA’s conception of CAT protection is
equally contrary to our basic principles, and suggests that we
will not protect individuals like Edu who are unwilling, as a
matter of conscience, to give up acting on their political
beliefs. To put it another way, the BIA reads CAT as if it
believes that CAT was designed to prevent the return of only
those who will sit quietly by, watching life flow around them
— never speaking, never complaining, never acting. But the
words of CAT do not express that belief; they reach out to
protect even the most vile of actors against state vileness. Nor
is there aught to suggest that the practical, vigorous, worldly
men who negotiated and drafted CAT meant to express that
belief; or that the United States did when it signed on to CAT;
or that the senators of the United States did when they ratified
CAT; or, for that matter, that the writers of the regulations
did. No, that construction of CAT must be seen as an aberra-
tion that cannot survive even the most deferential review.
Thus, even if CAT, the statute, and the regulations do not
expressly eschew that reading by the BIA, we are satisfied
that the reading is so antithetical to the intent of the law that
it cannot stand.22

We do recognize that another factor in the evidence mix is
the question of whether Edu could move to a different part of
Nigeria, and, thus, avoid torture. See 8 C.F.R.
§ 1208.16(c)(3)(ii). The BIA alluded to that, almost as an
afterthought, when it declared that she “could reduce her risk
of torture by relocating to another part of the country.” Of
course, that would not make a great deal of sense because her
concern is with her tribe and the other people in the Niger
Delta region, where her activity took place and where the
22
We have no occasion to and do not take up the question of what would
happen if an alien credibly said that if he were removed to his country he
would be tortured for committing some awful crime which he planned to
commit when he got there. That situation is not before us.
17722 EDU v. HOLDER
most severe problems with the government occur.23 Moreover,
the record is replete with evidence that problems for those
who protest politically exist throughout the country, and the
BIA itself noted that “Nigeria has a poor human rights
record.” In addition, while not directly on point, we have indi-
cated that when a nation’s government is itself persecuting its
citizens, “[i]t has never been thought that there are safe places
within [that] nation.” Singh v. Moschorak, 53 F.3d 1031, 1034
(9th Cir. 1995); see also Fakhry v. Mukasey, 524 F.3d 1057,
1065 (9th Cir. 2008); Melkonian v. Ashcroft, 320 F.3d 1061,
1070 (9th Cir. 2003). Those are cases when the burden was
upon the government, and in this area the burden is upon the
alien. See Hasan v. Ashcroft, 380 F.3d 1114, 1122 (9th Cir.
2004); cf. Kaiser v. Ashcroft, 390 F.3d 653, 659, 660 (9th Cir.
2004) (holding that where threats pervaded a country, reloca-
tion was not a viable alternative). Still, the record shows that
there is danger to political activists throughout Nigeria.

[6] More importantly, and in this context conclusive, the
BIA itself did not declare that Edu could relocate to a place
where she “is not likely to be tortured;”24 it only said that if
she did relocate she “could reduce her risk of torture.” That
may have had some validity if Edu could be required to give
up political activity, for then the risk would only be from her
past activities, it seems. As it is, on this record that factor can-
not sufficiently bolster the BIA’s decision. Therefore, due to
the substantial danger of torture Edu would face if she were
returned to Nigeria, the BIA erred when it determined that she
was not entitled to deferral of removal under CAT.25
23
Obviously, demonstrating in some remote region would not be very
effective or to the point, even if she would be more safe.
24
8 C.F.R. § 1208.16(c)(3)(ii).
25
The government concedes that we should remand Edu’s separate
claim that the fact that she was subjected to female genital mutilation
when she was a child is sufficient to show that she is currently at the risk
of torture in Nigeria. Edu agrees. Thus, we will do so.
 EDU v. HOLDER 17723
[7] Finally, because the facts and law were already fully
developed at the BIA, we see no basis on this record to return
this issue to the BIA for further consideration. Simply put, no
questions remain — she was tortured and there is a substantial
danger that she will be, if returned. We therefore direct that
Edu be accorded CAT deferral relief upon remand. See Nuru,
404 F.3d at 1223; see also Zhang, 388 F.3d at 722.26

CONCLUSION

[8] Edu was tortured in Nigeria when she engaged in polit-
ical activity, and there are substantial grounds for believing
that she will be tortured again if she is returned there and con-
tinues to engage in that activity. She credibly assured the IJ
that she will. We reject the BIA’s decision that in order to
avoid torture she must simply give up an activity that most
countries (including Nigeria per its constitution27) guarantee
to their citizens. The apotropaic effect of CAT is not so lim-
ited. Thus, we grant her petition and order relief because she
cannot be forced to choose between her conscience and tor-
ture. However, we remand as to Edu’s female genital mutila-
tion claim so that the BIA can consider that separate,
additional basis for CAT relief.

Petition in No. 06-72609 GRANTED, and REMANDED.
Petition in No. 07-70590 DISMISSED as moot.

26
In light of this determination, we dismiss as moot the petition for
review of the BIA’s refusal to grant Edu’s motion to reopen. See Doissaint
v. Mukasey, 538 F.3d 1167, 1171 (9th Cir. 2008).
27
See U.S. Dept. of State, Country Reports on Human Rights Practices
(Nigeria, 2001), §§ 2b, 3 (2002) (discussing Nigerian Constitutional provi-
sions protecting political freedom and freedom of assembly).