Seck v. U.S. Attorney General
663 F.3d 1356
| 11th Cir. | 2011Background
- Ms. Seck, a Senegalese citizen, seeks withholding of removal to prevent FGM on her U.S. citizen daughter, B.D.
- She claims she would be beaten or killed if she attempts to stop FGM upon their return to Senegal.
- Record shows B.D. is Toucouleur and thus at higher FGM risk; Seck is Lebou, who do not practice FGM.
- IJ denied relief, relying on State Department reports and a finding that internal relocation within Senegal could avoid persecution.
- BIA affirmed the denial, endorsing relocation as a safe option and noting derivative aspects about B.D.’s risk, but did not fully analyze with specific evidence.
- Court remands, holding the BIA failed to provide reasoned consideration of the record and to assess B.D.’s heightened risk in Dakar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA violated by not giving reasoned consideration to relocation evidence | Seck argues BIA ignored specific evidence showing higher risk in Dakar and for her as protector. | Government contends BIA relied on IJ’s relocation findings and country reports. | Remand for a reasoned, individualized analysis of relocation evidence. |
| Whether Seck established eligibility for withholding based on personal persecution (not solely for daughter) | Seck asserts she would be persecuted for opposing FGM and protecting B.D. | Government argues relief requires denial if relocation could avert risk or if proceedings rely on derivative claims. | Remand to evaluate Seck’s explicit personal risk evidence. |
| Whether B.D.'s higher risk in Dakar defeats internal relocation as a safe haven | Record shows B.D. faces elevated FGM risk due to paternal family connections and Dakar proximity. | State reports show urban areas have lower FGM rates; relocation could suffice. | Remand to consider B.D.’s specific risk in Dakar rather than general country data. |
| Whether BIA adequately analyzed evidence showing family-specific risk cues | Credible testimony and corroborating documents indicate multiple family-level risks and intent to perform FGM. | BIA reasonably relied on country-wide statistics. | Remand for full consideration of family-specific evidence. |
| Whether the correct standard applies to derivative or family-based persecution claims | Seck argues her protection duties against FGM should be viewable as persecution to herself. | Question of derivative asylum/withholding claims is unsettled; agency should decide in first instance on remand. | Issue left for Board on remand; court does not resolve derivative-group question. |
Key Cases Cited
- Tan v. U.S. Att'y Gen., 446 F.3d 1369 (11th Cir. 2006) (BIA must consider all evidence and provide reasoned decision)
- Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (substantial evidence standard for withholding of removal)
- Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004) (weighs evidence and standard for withholding relief)
- Mendoza v. U.S. Att'y Gen., 327 F.3d 1283 (11th Cir. 2003) (burden to show more likely than not persecution)
- Reyes-Sanchez v. U.S. Att'y Gen., 369 F.3d 1239 (11th Cir. 2004) (use of country reports; individualized analysis required)
- Kazemzadeh v. U.S. Att'y Gen., 577 F.3d 1341 (11th Cir. 2009) (remand when Board failed to consider important evidence)
- Imelda v. U.S. Att'y Gen., 611 F.3d 724 (8th Cir. 2010) (country reports cannot substitute for individualized analysis)
- Kone v. Holder, 620 F.3d 760 (7th Cir. 2010) (consideration of psychological harms in asylum analyses)
- Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004) (recognizes potential asylum based on psychological harm to child)