In re A-T-, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
September 27, 2007
24 I&N Dec. 296 (BIA 2007); Interim Decision #3584
Because female genital mutilation (“FGM“) is a type of harm that generally is inflicted only once, the procedure itself will normally constitute a “fundamental change in circumstances” such that an asylum applicant no longer has a well-founded fear of persecution based on the fear that she will again be subjected to FGM. - Unlike forcible sterilization, a procedure that also is performed only once but has lasting physical and emotional effects, FGM has not been specifically identified as a basis for asylum within the definition of a “refugee” under section 101(a)(42) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(42) (2000) , so FGM does not qualify as “continuing persecution.” Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003), distinguished.
FOR RESPONDENT: Ronald D. Richey, Esquire, Rockville, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Christopher R. Coxe, Jr., Assistant Chief Counsel
BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members.
FILPPU, Board Member:
In a decision dated January 19, 2005, an Immigration Judge denied the respondent‘s applications for asylum, withholding of removal, and proteсtion under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against Torture“). The respondent has appealed from that decision. The respondent‘s request for oral argument is denied. See
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 28-year-old native and citizen of Mali who was admitted into the United States as a visitor on October 4, 2000, and аpplied for asylum on May 12, 2004. The respondent testified that she underwent female genital mutilation (“FGM“) as a young girl but has no memory of the procedure. According to the respondent, she is opposed to the practice of
The Immigration Judge determined that the respondent failed to file her application for asylum within 1 year of arriving in the United States, as required by section 208(a)(2)(B) of the Immigration and Nationality Act,
II. APPLICABLE LAW
An applicant for asylum has the burden of establishing that she is a “refugee” within the meaning of section 101(a)(42) of the Act,
Once an alien has shown past persecution, she is presumed to have a well-founded fear of future persecution.
As we observed in Matter of N-M-A-, supra, at 318, asylum is a forward-looking form of relief that provides “prophylactic protection” for individuals who might face persecution in the future. The rationale for considering past persecution is that the “‘past serves as an evidentiary proxy for the future.‘” Id. (quoting Marquez v. INS, 105 F.3d 374, 379 (7th Cir. 1997)). Nevertheless, in certain cases where the applicant has established past persecution but there is little likelihood of future persecution, a favorable exercise of discretion may still be warranted if the alien demonstrates compelling reasons for her unwillingness to return to her country arising out of the severity of the past persecution, or a reasonable possibility that she may suffer other serious harm upon removal to that country. See
An alien who is seeking withholding of removal must show that her life or freedom would be threatened on account of her race, religion, nationality, membership in a particular social group, or political opinion. See section 241(b)(3)(A) of the Act,
Finally, in order to qualify for protection under the Convention Against Torture, an alien must establish that if she is removed, it is more likely than not that she will be subject to torture, as it is defined by regulation. See
III. ANALYSIS
On appeal, the respondent argues that her past experience with FGM constitutes a continuing harm that rеnders her eligible for asylum. She further asserts that she has a well-founded fear of persecution if she returns to Mali
A. Female Genital Mutilation: “Continuing Persecution” Theory
In Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), we recognized that FGM can be a form of persecution and found that young women from a certain tribe in Togo who feared such a practice constituted a particular social group. Like the asylum applicant in Matter of Kasinga, the respondent is from a country in which FGM continues to be widespread. According to the Department of State 2006 country report on human rights practices in Mali, there are currently no laws prohibiting FGM.2 See Bureau of Democracy, Human Rights, and Labor, U.S. Dep‘t of State, Mali Country Reports on Human Rights Practices-2006 (Mar. 6, 2007), available at http://www.state.gov/g/drl/rls/hrrpt/2006/78745.htm; seе also
Nevertheless, the fact that FGM is generally performed only once, thereby eliminating the risk of identical future persecution, does not end the discussion. In Mohammed v. Gonzales, 400 F.3d 785, 800-01 (9th Cir. 2005), the United States Court of Appeals for the Ninth Circuit held that FGM constitutes a continuing harm for рurposes of asylum, analogizing the procedure to forced sterilization, which we found to be continuing persecution in Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003). We disagree with the analysis in Mohammed v. Gonzales and consider Matter of Y-T-L- to represent a unique departure from the ordinarily applicable principles regarding asylum and withholding of removal. See also Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007) (implicitly rejecting the theory that FGM constitutes continuing persecution such that the presumption of a well-founded fear of persecution can never be overcome).
We nevertheless found in Matter of Y-T-L-, supra, that involuntary sterilization and abortion represented an exceptiоn to this principle and constituted continuing persecution, because persons who suffered such harm have been singled out by Congress as having a basis for asylum in the “refugee” definition of section 101(a)(42) of the Act on the strength of the past harm alone. While FGM is similar to forced sterilization in the sense that it is a harm that is normally performed only once but has ongoing physical and emotional effects, Congress has not seen fit to recognize FGM (or any other specific kind of pеrsecution) in similar fashion with special statutory provisions. Hence, we deem it consistent with the statutory and regulatory scheme to view FGM in the same category as most other past injuries that rise to the level of persecution, including those that involve some lasting disability, such as the loss of a limb. We therefore do not subscribe to the Ninth Circuit‘s continuing harm analysis.
Stated another way, in Matter of Y-T-L-, supra, we treated sterilization as continuing persecution because it would have contradicted Congress‘s purpose tо find that the very act that constituted persecution under the coerced population control provisions was itself a “fundamental change in circumstances” that obviated a future well-founded fear.
Here, in sharp contrast, there is no separate statutory ground of persecution predicated on an alien‘s being subjected to FGM. Consequently, there is no basis for following an approach outside the regulatory formula for assessing persecution claims founded on past persecution alone. Simply put, we do not
The loss of a limb also gives rise to enduring harm to the victim, but such forms of past persecution are routinely assessed under the past persecution standards specified in the asylum and withholding of removal regulations. See
B. Asylum 1-Year Bar
The respondent entered the United States in October 2000 and filed her asylum application in May 2004. The Immigration Judge determined that the respondent was statutorily barred from asylum for failure to file her aрplication within 1 year of arriving in the United States, as required by section 208(a)(2)(B) of the Act, and that she failed to demonstrate eligibility for an exception based on changed circumstances. See
Because we have rejected the continuing persecution theory put forth in Mohammed v. Gonzales, supra, we are unable to find the respondent eligible for withholding of removal based on her past experience with FGM. Moreover, despite the severity of harm she endured as a victim of FGM, she is ineligible for a humanitarian grant of asylum under
C. Arranged Marriage
Finally, we agree with the Immigration Judge that the respondent failed to establish eligibility for withholding of removal on the basis of her fear of an arranged marriage. Initially, we note that an arranged marriage between adults is not generally considered per se persecution. See, e.g., Mansour v. Ashcroft, 390 F.3d 667, 680 (9th Cir. 2004) (observing that arranged marriage, “while unfortunate and deplorable, may not constitute persecution if imposed on an adult“). It appears from the record that the respondent and her intended fiance are of similar ages and backgrounds, given the respondent‘s testimony that she and her сousin played together as children, and that the family used to joke that they would one day marry. Thus, if the respondent were to return to Mali and proceed with the marriage, it is not likely that she would be in a disadvantaged position in relation to her husband on account of her age or economic status.
It is understandable that the respondent, an educated young woman, would prefer to choose her own spouse rather than acquiesce to pressure from her family to marry someone she does not love and with whom she expects to be unhappy. The respondent has also expressed valid concerns about possible birth defects resulting from a union with her first cousin. While we do not discount the respondent‘s concerns, we do not see how the reluctant
Moreover, the respondent hаs presented insufficient evidence regarding the consequences she might face if she refuses to marry her intended fiance. She stated in her affidavit that her father “will stop at nothing to force me to marry who he dictates,” but she gives little indication of what he might do if she disobeys him. The respondent testified that her father might take out his anger on her mother and dissolve their marriage, but a letter from the respondent‘s mother expresses no such concerns. Likewise, a letter from the rеspondent‘s father states that she must proceed with the marriage “to uphold the reputation of our family,” but it includes no indication of possible consequences for failing to comply with the arrangement. Further, the respondent testified that if she refused to marry her cousin and was then shunned by her family, she could not relocate elsewhere in Mali because single women living alone are viewed as prostitutes. However, the respondent‘s uncle, who testified on her behalf, conceded that single women are indeed able to live alone and support themselves in Mali. Thus, we agree with the Immigration Judge that the respondent could reasonably relocate within Mali to avoid the marriage. See
Additionally, we concur with the Immigration Judge that the respondent failed to demonstrate a nexus between any harm she may fear and a protected ground. The respondent suggests that young female members of the Bambara tribe who opposе arranged marriage constitute a particular social group. Cf. Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006), petition for cert. filed, 75 U.S.L.W. 3513 (U.S. Mar. 16, 2007) (No. 06-1264). We question the viability of the respondent‘s proposed group, as we are doubtful that young Bambara women who oppose arranged marriage have the kind of social visibility that would make them readily identifiable to those who would be inclined to persecute them. See Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 74-75 (BIA 2007) (holding that “affluent Guatemalans” did not constitute a particular social group, partly because the perception of wealth is highly subjective); Matter of C-A-, 23 I&N Dec. 951, 959-61 (BIA 2006) (finding that noncriminal informants working against the Cali drug cartel in Colombia were not sufficiently visible to be a particular social group), aff‘d, Castillo-Arias v. U.S. Att‘y Gen., 446 F.3d 1190 (11th Cir. 2006), cert. denied sub nom. Castillo-Arias v. Gonzales, 127 S. Ct. 977 (2007). Moreover, even accepting the respondent‘s status as a member of such a group, we conclude that she has failed to demonstrate a clear probability that she would be persecuted on that basis. Rather, the respondent has expressеd only a generalized fear of disobeying her authoritarian father.
Finally, the respondent seems to suggest on appeal that her past experience with FGM creates a presumption that she is at risk of future persecution; that is, even if she cannot be subjected to FGM a second time, she may be
However, we find Hassan to be at odds with the regulatory structure for asylum, which provides: “If the aрplicant‘s fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded.”
D. Convention Against Torture
The Immigration Judge found that the respondent failed to present evidence that it is more likely than not that she would be tortured if she is returned to Mali. We agree and find that she does not qualify for protection under the Convention Against Torture. See
The Immigration Judge correctly determined that the respondent is barred from seeking asylum because her application was not timely filed or subject to an exception. We also concur with the Immigration Judge‘s conclusion that the respondent has failed to establish eligibility for withholding of removal or protection under the Convention Against Torture. Accordingly, the respondent‘s appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge‘s order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart from the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security. See section 240B(b) of the Act,
NOTICE: If the respondent fails to depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty of not less than $1,000 and not more than $5,000, and shall be ineligible for a period of 10 years for any furthеr relief under section 240B and sections 240A, 245, 248, and 249 of the Act,