Salimatou BAH, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Mariama Diallo, Petitioner, v. Department of Homeland Security, Respondent. Haby Diallo, Petitioner, v. Department of Homeland Security, Respondent.
Docket Nos. 07-1715-ag, 07-1994-ag, 07-2120-ag
United States Court of Appeals, Second Circuit
June 11, 2008
Argued: April 29, 2008
Conclusion
For the foregoing reasons, the case is remanded for vacation of the sentence and resentencing.
Ronald S. Salomon, New York, NY, for Petitioner Salimatou Bah.
Michael C. Heyse & Jessica E. Sherman, Trial Attorneys (Peter D. Keisler, Assistant Attorney General, Jeffrey S. Bucholtz & Gregory G. Katsas, Acting Assistant Attorneys General, Mary Jane Candaux & Michelle Latour, Assistant Directors, Joshua Braunstein, Cindy S. Ferrier, Lyle D. Jentzer, & Margaret Perry, Senior Litigation Counsel, Stacey I. Young, Trial Attorney, Ali Manuchehry, Law Clerk, on the briefs), Civil Division, Office of Immigration Litigation, U.S. De-
Ana C. Reyes (Robin E. Jacobsohn, on the brief, Christopher N. Manning, of counsel), Washington, DC, for Amicus Curiae Center for Gender and Refugee Studies.
Before: STRAUB, POOLER, and SOTOMAYOR, Circuit Judges.
Judges STRAUB and SOTOMAYOR also concur in separate opinions.
STRAUB, Circuit Judge:
Petitioners, three women from Guinea who underwent female genital mutilation in the past, petition for review of decisions of the Board of Immigration Appeals (“BIA“) affirming, inter alia, the denial of their claims for withholding of removal and Convention Against Torture (“CAT“) relief based on female genital mutilation. The agency held that because the genital mutilation had already occurred, the presumption that petitioners’ lives or freedom would be threatened in the future was automatically rebutted by the fact that it had occurred. See
Because the agency committed significant errors in the application of its own regulatory framework for withholding of removal claims, we grant in part and dismiss in part the petitions for review with respect to petitioners’ withholding of removal and CAT claims based on female genital mutilation.1
BACKGROUND
I. Female Genital Mutilation
Female genital mutilation “is the collective name given to a series of surgical operations, involving the removal of some or all of the external genitalia, performed on girls and women primarily in Africa and Asia.” Abankwah v. INS, 185 F.3d 18, 23 (2d Cir. 1999).2 According to the World Health Organization, female genital mutilation can be classified into four different categories:
Type I Excision of the prepuce with or without excision of part or all of the clitoris.
Type II Excision of the prepuce and clitoris together with partial or total excision of the labia minora.
Type III Excision of part or all of the external genitalia and stitching/ narrowing of the vaginal opening (infibulation).
Type IV Unclassified: Includes pricking, piercing or incision of clitoris and/or labia; stretching of clitoris and/or labia; cauterization by burning of clitoris and surrounding tissues; scraping of the vaginal orifice or cutting of the vagina; Introduction of corrosive substances into the vagina to cause bleeding or herbs into the vagina with the aim of tightening or narrowing the vagina; any other procedure which falls under the definition of FGM . . . .3
Genital mutilation “is often performed under unsanitary conditions with highly rudimentary instruments.” Abankwah, 185 F.3d at 23.
The procedure is carried out with special knives, scissors, scalpels, pieces of glass or razor blades [in] poor light and septic conditions. The procedures are usually carried out by an elderly woman of the village who has been specially designated for this task, or by traditional birth attendants . . . . Anaesthetics and antiseptics are not generally used. Assistants and/or family members hold down the girl to prevent her struggling. . . . Paste mixtures made of herbs, local porridge, ashes, or other mixtures are rubbed on to the wound to stop bleeding.
WHO Information Pack at 3. Genital mutilation can have devastating, permanent effects on its victims, including immediate and long-term physical problems such as infection, difficulty during urination and menstruation, incontinence, and sexual dysfunction; complications during child birth such as fetal and maternal death, birth defects, and internal damage to the mother; and severe psychological problems.5 Id. at 7-10.
In light of the long-lasting and severe consequences of genital mutilation, paired with the reasons for its infliction, the practice has been largely condemned by the international community. See, e.g., World Health Organization, Eliminating Female Genital Mutilation: An Interagency Statement OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, WHO (2008), http://www.who.int/reproductive-health/publications/fgm/fgm_statement_2008.pdf (last visited June 10, 2008); Committee on the Elimination of All Forms of Discrimination Against Women, Female Circumcision General Recommendation No. 14, U.N. GAOR, 45th Sess., Supp. No. 38 & Corr. 1, at 80, ¶ 438, U.N. Doc. A/45/38 (1990); Declaration on the Elimination of Violence against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Art. 2(a), U.N. Doc. A/48/629 (1993) (including female genital mutilation as an example of violence sought to be eliminated). It has also been criticized and condemned by many activist groups within the countries where it is practiced. See, e.g., Inter-African Committee on Traditional Practices Homepage, http://www.iac-ciaf.com (last visited June 10, 2008) (stating that the “IAC was the first and largest NGO network in Africa to take up the issue of FGM at the grassroots, rеgional and international levels“); WHO Information Pack at 15 (stating that various conferences and seminars in Africa and Asia have recommended that “governments should adopt clear national policies to abolish FGM“). Moreover, in recognition of the harmful effects of genital mutilation, the United States Congress has criminalized female genital mutilation of minors in the United States. See
Petitioner Salimatou Bah seeks review of the March 26, 2007 order of the BIA affirming the August 23, 2005 decision of Immigration Judge (“IJ“) Barbara A. Nelson denying her applications for asylum, withholding of removal, and relief under the CAT. In re Salimatou Bah, No. A98 648 305 (B.I.A. Mar. 26, 2007), aff‘g No. A98 648 305 (Immig. Ct. N.Y. City Aug. 23, 2005). Salimatou,6 a native and citizen of Guinea, entered the United States without valid travel documents in June 2003, and in January 2005 was placed in removal proceedings by service of a Notice to Appear (“NTA“). She applied for asylum, withholding of removal, and relief under the CAT, alleging, inter alia, that as a young girl she “suffered” the “barbarous act” of female genital mutilation, and the event “still has dire consequences on [her] adult life.”
In a statement accompanying her application, Salimatou explained that she belongs to the Fulani ethnic group, which strongly supports the practice of genital mutilation as “the best way to prevent the Fulani girls from having pre-marital sex,” and “to force the Fulani girls to keep their virginity until the marriage.” She claimed that at the age of eleven, her mother and aunt took her to a “small area fenced with wood and stuffed with cocоnut leaves.” She was taken into a tent where five “old ladies” with knives and other tools undressed her and had her lie on the ground. Salimatou, “scared and shaking,” tried to escape, but the women restrained her. She was then held down by two of the women while two others opened her legs so that a fifth could make a “deep cut of [her] private part” without “any anesthetic or sanitary precaution.” Salimatou screamed throughout the mutilation, and experienced “pain all over [her] body.” She began “bleeding heavily” and feeling dizzy to the point where she was unable to stand on her own. After she was given “traditional medicines,” she convalesced for weeks during which time she was “treated traditionally with dried leaves and some other local potions.” Salimatou further stated that she later had “problems with [her] menstrual period,” as well as complications during the deliveries of her children. She also stated that she “can barely feel any pleasure” during sexual intercourse with her husband. She sought asylum in order to “live free from that barbarous act still in practice” in Guinea.
On August 23, 2005, at the conclusion of her merits hearing, the IJ denied all of Salimatou‘s claims. The IJ pretermitted Salimatou‘s asylum application based on a finding that the application failed to meet the one-year deadline set forth in
III. Petitioner Mariama Diallo
Petitioner Mariama Diallo seeks review of an April 12, 2007 order of the BIA affirming the July 1, 2005 decision of IJ Barbara A. Nelson denying her applications for asylum, withholding of removal, relief under the CAT, and cancellation of removal. In re Mariama Diallo, Amadou Sow, Nos. A97 849 373; A97 849 374 (B.I.A. Apr. 12, 2007), aff‘g Nos. A97 849 373; A97 849 374 (Immig. Ct. N.Y. City July 1, 2005). Mariama, also a native and citizen of Guinea and a member of the Fulani ethnic group, was admitted into the United States in May 1992 on a nonimmigrant visa, which she overstayed. In September 2003, Mariama filed an application for asylum, withholding of removal, and CAT relief. In February 2005, Mariama amended her application to include a claim that she had been subjected to female genital mutilation as a child. She also
At a merits hearing in March 2005, Mariama testified that she underwent genital mutilation, including “removal of [her] clitoris,” when she was eight years old. According to Mariama, her parents were opposed to the practice of FGM, but her aunt and grandmother arranged for her to undergo the mutilation without their knowledge. Mariama further testified that she was ill for a month after the mutilation, suffering constant pain, excessive bleeding, and loss of consciousness. Mariama testified that childbirth was extremely difficult for her, and that she experiences pain every time she engages in intercourse as a result of the genital mutilation. She further testified that she suffered two miscarriages. Finally, Mariama stated that she feared that her daughters would be subject tо genital mutilation were she forced to return to Guinea. In support of her female genital mutilation claim, she submitted a gynecologist‘s report stating, inter alia: “Evaluation of the pelvis demonstrated a scarred anterior fourchette and surgically absent clitoris. The labia minora were rudimentary and anteriorly fused.” The report further stated that Mariama “has compromised intimacy and sexual satisfaction,” and that she “requires repetitive surgical correction of her anterior fourchette to accommodate vaginal deliveries.”
At the conclusion of the hearing, the IJ denied Mariama‘s applications in their entirety. First, the IJ found that Mariama‘s asylum claim was time-barred because she entered the country in 1992 but did not file her application until 2003. As to her withholding of removal claim, the IJ concluded that Mariama had established past persecution by submitting reliable evidence that she had undergone female genital mutilation. Nevertheless, the IJ denied the withholding of removal claim based on genital mutilation because there was “obviously no chance” that she would be subjected to genital mutilation again in the future. Finally, the IJ denied Mariama‘s application for cancellation of removal.
Mariama timely appealed the denial of her applications to the BIA. In a threemember unpublished order issued by Board Members Patricia A. Cole, Lauri S. Filppu (author), and Roger Pauley, the BIA found that the IJ properly pretermitted Mariama‘s asylum application. The BIA further concluded that the fact that Mariama had undergone genital mutilation was not a basis for the grant of withholding of removal, “even assuming arguendo that she is a member of a particular social group who suffered past рersecution.” As in Salimatou‘s case, the BIA reasoned that because genital mutilation could be performed only once, Mariama had not established a possibility of future persecution. The BIA explicitly rejected Mariama‘s argument that the genital mutilation constituted continuing persecution. The BIA again distinguished genital mutilation from forced sterilization, reasoning that Congress specifically singled out sterilization as a basis for asylum but has not designated genital mutilation in the same way. It also noted that Mariama was ineligible for discretionary relief on humanitarian grounds due to the fact that her asylum application was untimely filed. With respect to Mariama‘s CAT claim, the BIA concluded that Mariama had presented no evidence suggesting that she would more likely than not be tortured if she returned to Guinea. Finally, the BIA affirmed the denial of Mariama‘s application for cancellation of removal.
IV. Petitioner Haby Diallo
Petitioner Haby Diallo seeks review of an April 20, 2007 order of the BIA affirming the August 12, 2005 decision of IJ
Haby is also a native and citizen of Guinea and member of the Fulani ethnic group. She applied for asylum, withholding of removal, and relief under the CAT, alleging that she had been subjected to female genital mutilation as a child, that she “totally opposed” the practice, and that she did not want her “future daughters” to be subjected to it. At her merits hearing, Haby testified that she was forced to undergo genital mutilation when she was eight years old. She testified that during a visit to her grandmother, she was taken by “three old women” to “the bush.” There, one woman held her down while another spread her legs apart and the third performed the mutilation with a knife. Haby testified that she “suffered a lot” initially, and although she was bleeding heavily, she was not taken to a hospital. Instead, she was treated with “traditional medicine.” She further testified that she has problems menstruating as a result of the genital mutilation, and that she does “not have any type of pleasure when [she is] having [] sexual intercourse with a man.” Finally, she testified that she is “definitely” against female genital mutilation. In support of her claim, she submitted an affidavit from a doctor stating that his physical examination yielded results “compatible with” her allegation of having been subject to genital mutilation in the past.
In August 2005, the IJ denied Haby‘s application in its entirety. The IJ pretermitted Haby‘s asylum claim because Haby failed to establish that her application was filed within one year of her entry into the United States. The IJ further found Haby‘s claim that she had experienced genital mutilation “to be insufficient and lacking” because a doctor‘s written statement was “insufficient,” and both the doctor‘s failure to testify and the absence of affidavits from Haby‘s family members were “adverse” to her claim. Finally, the IJ found that Haby failed to demonstrate that it was more likely than not that she would be subjected to torture if she were returned to Guinea.
Haby timely appealed the IJ‘s decision to the BIA, and in a one-member unpublished order signed by Board Member Roger Pauley, the BIA dismissed Haby‘s appeal. The BIA affirmed the IJ‘s decision as to the one-year asylum bar. With respect to the IJ‘s denial of Haby‘s claims for relief based on female genital mutilation, the BIA agreed with the “overall outcome of the instant proceedings for reasons different” from those of the IJ. The BIA stated that Haby had “already had FGM,” but that, even “assuming arguendo that she is a member of a particular soсial group who suffered past persecution,” she was not entitled to withholding of removal because she would not be subjected to the procedure in the future. The BIA again rejected the Ninth Circuit‘s reasoning in Mohammed, and it again noted that Haby was ineligible for humanitarian relief. Finally, the BIA found that because Haby failed to establish eligibility for asylum,9 she necessarily failed to satisfy the higher standard for withholding of removal and CAT relief.
V. In re A-T-
Soon after the BIA issued the unpublished decisions in these three cases, the
Alima Traore,11 a native and citizen of Mali, claimed that she underwent genital mutilation as a young girl, that she opposed the practice, and that were she to have a daughter, she would oppose having genital mutilation performed on her daughter. She further claimed that if she were returned to Mali, she would be forcibly married to her cousin. She sought asylum, withholding of removal, and CAT relief. Id. at 296-97. As in the present cases, the IJ found Traore ineligible for asylum because her asylum application was untimely filed. The IJ further found that Traore‘s past experience with genital mutilation did not qualify her for the “prospective relief” of withholding of removal, and that Traore had not demonstrated that it was more likely than not that she would be forcibly married to her cousin. Finally, the IJ found that Traore failed to establish that it was more likely than nоt that she would be tortured upon return to Mali.
Accordingly, the IJ denied her application in its entirety. Id. at 297.
Traore appealed to the BIA, and the BIA affirmed the IJ‘s decision in all respects. First, while recognizing that female genital mutilation constituted persecution under its own precedent, the BIA held that “even assuming arguendo that [Traore] is a member of a particular social group, there is no chance that she would be personally persecuted again by the procedure.” Id. at 299 (internal alteration and quotation marks omitted). Accordingly, the BIA found that “[a]ny presumption of future FGM persecution is thus rebutted by the fundamental change in the respondent‘s situation arising from the reprehensible, but one-time, infliction of FGM upon her.” Id. The BIA again went on to “disagree with the analysis” in the Ninth Circuit‘s decision in Mohammed, stating that it viewed Y-T-L-‘s “continuing persecution” reasoning in the forced sterilization context “to represent a unique departure from the ordinarily applicable principles regarding asylum and withholding of removal.” A-T-, 24 I. & N. Dec. at 299. The BIA explained that even though it viewed forced sterilization as a “past harm” in Y-T-L-, it considered forced sterilization to be continuing persecution in order to give “full force to the intent of Congress in extending asylum to those who have sustained such family planning persecution in the past.” Id. at 300 (inter-
The BIA further affirmed the IJ‘s holding that Traore was not eligible for withholding of removal based on her fear of a forcible marriage. The BIA rejected Traore‘s argument 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 vulnerable to other forms of persecution on account of her membership in a particular social group.” Id. at 303-04.13 The BIA noted that the reasoning of Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), “appear[ed] to support [Traore‘s] theory,” but the BIA rejected it as “at odds” with the regulatory framework for asylum. A-T-, 24 I. & N. Dec. at 304. In Hassan, the Eighth Circuit held that the fact that a petitioner had undergone genital mutilation in the past does not mean that a fear of future perse-
cution is automatically rebutted, stating that the court has “never held that a petitioner must fear the repetition of the exact harm that she has suffered in the past.” 484 F.3d at 518. The BIA found that this reasoning contravened the regulation, which provides that “[i]f the applicant‘s fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded.” A-T-, 24 I. & N. Dec. at 304 (quoting
DISCUSSION
I. Standard of Review
We review the agency‘s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
We review decisions by the BIA interpreting the Immigration and Nationality Act (“INA“),
If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, . . . the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.
467 U.S. 837, 842-43 (1984).15 See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (holding that decisions of the BIA interpreting the INA are entitled to Chevron deference). And we give “substantial deference” to BIA decisions interpreting immigration regulations, Delgado v. Mukasey, 516 F.3d 65, 69
II. Regulatory Framework and Merits of the Petitions for Review
Pursuant to
If [an] applicant [for withholding of removal] is determined to have suffered past persecution in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant‘s life or freedom would be threatened in the future in the country of removal on the basis of the original claim.
For the reasons that follow, we hold that under the governing regulations the fact that an applicant has undergone female genital mutilation in the past cannot, in and of itself, be used to rebut the presumption that her life or freedom will be threatened in the future. In so holding, we join in part the Eighth and Ninth Circuits, which have previously rejected facets of the reasoning the BIA now advances on this front.16
We pause only to say that we are deeply disturbed by what we perceive to be fairly obvious errors in the agency‘s application of its own regulatory framework. Congress has entrusted the agency with the weighty and consequential task of granting safe harbor to the deserving of those who flee to this country for protection. The claims of the petitioners before us, as set forth below, did not receive the type of careful analysis they were due. Our concern is only heightened by the very serious nature of the harm suffered by petitioners
A. Female Genital Mutilation as Past Persecution
In 1996, the BIA, acting en banc, held for the first time in a published opinion that female genital mutilation can constitute persecution on account of membership in a particular social group. In re Kasinga, 21 I. & N. Dec. 357 (B.I.A. 1996) (en banc). The BIA reasoned:
FGM is extremely painful and at least temporarily incapacitating. It permanently disfigures the female genitalia. FGM exposes the girl or woman to the risk of serious, potentially life-threatening complications. These include, among others, bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to the urethra and anus. It can result in permanent loss of genital sensation and can adversely affect sexual and erotic functions.
Id. at 361. Fauziya Kasinga, who was seeking asylum based on her fear that she would be subjected to genital mutilation if sent back to Togo, claimed that she was part of the social group consisting of “young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, аnd who oppose the practice.” Id. at 365. In finding that the genital mutilation that Kasinga feared constituted persecution on account of membership in a particular social group, the BIA reasoned: “FGM is practiced, at least in some significant part, to overcome sexual characteristics of young women of the tribe who have not been, and do not wish to be, subjected to FGM. We therefore find that the persecution the applicant fears in Togo is ‘on account of her status as a member of the defined social group.‘” Id. at 367.
In Abankwah, we found that “FGM involves the infliction of grave harm constituting persecution“; a proposition that was “not disputed” in that case. Abankwah, 185 F.3d at 23. Since then, those of our sister circuits to have addressed the issue have agreed that female genital mutilation can constitute persecution for purposes of determining eligibility for asylum and withholding of removal. See, e.g., Niang v. Gonzales, 492 F.3d 505, 510 (4th Cir. 2007); Agbor v. Gonzales, 487 F.3d 499, 502 (7th Cir. 2007); Hassan, 484 F.3d at 517; Mohammed, 400 F.3d at 796; Toure v. Ashcroft, 400 F.3d 44, 49 n. 4 (1st Cir. 2005); Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir. 2004); Niang v. Gonzales, 422 F.3d 1187, 1197 (10th Cir. 2005).17
In the cases before us, as in A-T-, the BIA found that each of the petitioners had undergone genital mutilation, but “assum[ed] arguendo“—without deciding—that the petitioners had been persecuted on account of their membership in a particular social group. While the government does not dispute that the type of genital mutilation performed on the petitioners in the cases before us can rise to the level of persecution, it urges us to leave for the agency to decide in the first instance whether such harm was inflicted on account of the petitioners’ social group.
As some of our sister circuits have found in cases involving claims of female genital mutilation, it appears to us that petitioners’ gender—combined with their ethnicity, nationality, or tribal membership—satisfies the social group requirement. See, e.g., Niang, 422 F.3d at 1199; Hassan, 484 F.3d at 518; Mohammed,
B. Well Founded Fear of Future Threats to Life or Freedom
As stated above, the regulations provide that once past persecution on account of a protected ground such as a particular social group is established, the petitioner benefits from a presumption that her “life or freedom would be threatened in the future in the country of removal on the basis of the original claim.”
1. The BIA Erred in Assuming Categorically that Female Genital Mutilation is a “One-Time” Act
First, the BIA erred in stating categorically without citation to the record or relevant reports that female genital mutilation is a “one-time” act. See A-T-, 24 I. & N. Dec. at 299. A recent BIA decision reveals the error. In In re S-A-K- and H-A-H-, 24 I. & N. Dec. 464 (B.I.A. 2008), where the BIA granted humanitarian asylum to two victims of past FGM, the BIA stated with respect to one applicant that “her vaginal opening was sewn shut [approximately five times] after being opened to allow for sexual intercourse and childbirth.” Id. With respect to the other applicant, it stated that her “vaginal opening was sewn shut with a thorn,” so that “the man she was given to in marriage, who ultimately raped her, could not penetrate her for sexual intercourse. He was only able to rape her by cutting her open, causing her to bleed for many days.” Id. As these examples illustrate, female genital mutilation is not necessarily a one time event. See also, e.g., Bah, 462 F.3d at 644 n. 3 (Gibbons, J., concurring) (“In several cases asylum applicants have successfully produced evidence indicating a risk of further mutilation.“); Mohammed, 400 F.3d at 800 (“[The Petitioner] might also be at risk of further genital mutilation.“); Tunis v. Gonzales, 447 F.3d 547, 550 (7th Cir. 2006) (petitioner “fear[ed] that if . . . returned to Sierra Leone she w[ould] be forced to undergo the procedure again“). Although it is not petitioners’ burden to show that the mutilation will be repeated, record evidence reveals that genital mutilation, such as infibulation, is often repeated in Guinea.
Accordingly, the BIA erred in stating categorically that genital mutilation could оnly be performed once, without placing the burden on the government to show that these particular petitioners are not at risk of further mutilation. Cf., e.g., Tambadou v. Gonzales, 446 F.3d 298, 303-04 (2d Cir. 2006) (stating that the BIA is required to perform an “individualized analysis” as to whether the presumption of fear of future persecution has been rebutted by a showing of changed circumstances); Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004) (“[T]he [government] is obligated to introduce evidence that, on an individualized basis, rebuts a particular applicant‘s specific grounds for his well-founded fear of future persecution.” (quoting Rios v. Ashcroft, 287 F.3d 895, 901 (9th Cir. 2002))). Moreover, the BIA‘s assumption that mutilation is a “one-time” act, without citation to record evidence or country reports, amounted to impermissible speculation. See Cao He Lin, 428 F.3d at 405 (holding that “absent record evidence of practices in foreign countries, the [agency] must not speculate as to the existence or nature of such practices“).
On remand, the agency must hold the government to its regulatory burden of
2. The BIA Erred in Failing to Consider Other Forms of Persecution
Second, the BIA erred in assuming that genital mutilation is the only type of persecution relevant to the analysis of whether petitioners merited withholding of removal. See A-T-, 24 I. & N. Dec. at 299 (“[T]he fact that FGM is generally performed only once . . . eliminat[es] the risk of identical future persecution.“) (emphasis added). Nothing in the regulation suggests that the future threats to life or freedom must come in the same form or be the same act as the past persecution. The withholding regulation triggers a presumption that “the applicant‘s life or freedom would be threatened in the future . . . on the basis of the original claim.”
Apparently recognizing this error, the BIA in an unpublished and non-precedential opinion denying reconsideration in A-T-, conceded that Traore had made “a
Here, the records below provide ample evidence that Guinean and/or Fulani women are routinely subjected to various forms of persecution and harm beyond genital mutilation. For example, the 2004 State Department Country Report on Human Rights Practices for Guinea states that “[d]omestic violence against women [is] common,” and that “police rarely intervene[] in domestic disputes.” Id. at 9. Moreover, the report states that women in Guinea are commonly subject, without recourse, to crimes such as rape and sex trafficking. Id. at 10. The government in these cases did not even attempt to argue that petitioners would not be subject to forms of persecution other than genital mutilation on account of their membership in particular social groups upon return to Guinea.
Under the regulations, once the petitioners established past persecution on account of a protected ground in the form of female genital mutilation, it should have been presumed that their lives or freedom would be threatened in the future. By failing to require the government to show, by a preponderance of the evidence, that petitioners would not endure further mutilation or other threats to their lives or freedom upon return, the BIA turned the presumption on its head. The agency must, on remand, hold the government to its regulatory burden.
Because we find that the case must be remanded based on the errors identified above, we do not reach the issue of whether the agency also erred in declining to apply its “continuing persecution” reasoning to claims based on female genital mutilation.22
In sum, we find that the BIA erred in its application of the withholding of removal regulatory framework to female genital mutilation claims. We accordingly decline to adopt the reasoning and holding of A-T- in our Circuit, and the cases before us must therefore be remanded to the BIA. “To the extent there is a need for further development of the factual record[s], a task outside the scope of the BIA‘s authority, see
For the foregoing reasons, the petitions for review are GRANTED in part and DISMISSED in part with respect to the claims relating to female genital mutilation. Other portions of the petitions for review are DENIED in part and DISMISSED in part for the reasons set forth in a separately filed summary order. The decisions of the BIA are VACATED, and the cases are REMANDED to the BIA for proceedings consistent with this opinion.
STRAUB, Circuit Judge, concurring:
I write separately because, although my colleagues believe we need not reach the issue of whether the BIA erred in declining to apply its “continuing persecution” reasoning in the genital mutilation context, I believe it prudent to decide the issue, as it provides petitioners with another potential avenue for relief.1 For the reasons that follow, I conclude that even assuming the government had met its burden of demonstrating that the petitioners will not be subject to further mutilation or other related threats to their lives or freedom in the future, the BIA erred in failing to recognize female genital mutilation as a form of continuing persecution.
I. Forced Sterilization and Y-T-L-
In In re Y-T-L-, 23 I. & N. Dec. 601 (B.I.A. 2003) (en banc), the BIA, assessing the asylum application of an applicant fleeing China due to its “one child” policy, held that even though forced sterilization was an act of persecution that would not be repeated, the fact that the act had occurred in the past could not in and of itself be used to rebut the presumption of a fear of future persecution because forced sterilization, unlike most other forms of persecution, constituted continuing persecution. Id. at 605. I conclude that the BIA erred in failing to treat female genital mutilation in the same manner, but in order to more fully explain my reasoning, some background as to the evolution of the assessment of forced sterilization claims is necessary.
[A] person who has been forced . . . to undergo involuntary sterilization . . . shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure . . . shall be deemed to have a well founded fear of persecution on account of political opinion.
In Y-T-L-, the BIA, acting en banc, applied the new regulatory framework to a case involving past forced sterilization. The BIA stated that “the [applicant] has no reasonable basis to fear [forced sterilization] in the future, based on the very fact that he has already been persecuted,” and that, as a result, under the new regulatory scheme, the presumption of fear of future persecution might be viewed as having been rebutted. 23 I. & N. Dec. at 606. However, the BIA, emphasizing “the special nature of the persecution at issue here,” as well as Congress‘s intent in defining forced sterilization as persecution on account of political opinion, held that the fact that an applicant had been forcibly sterilized in the past could not itself be used to rebut the presumption of a fear of future persecution. Id. at 605-07. Specifically, the BIA reasoned:
The Immigration Judge‘s conclusion fails to take into account the continuing nature of the persecution inflicted on the respondent and his wife. Moreover, the principal reason that the respondent and his wife no longer fear a coerced sterilization or abortion, or future fines for “over-birth,” is the fact that they have been rendered incapable of having children. Thus, the Immigration Judge‘s rationale could lead to the anomalous result that the act of persecution itself would also constitute the change in circumstances that would result in the denial of asylum to persons such as the respondent.2
The agency‘s understanding of certain types of persecution as constituting continuing persecution is consistent with the language of the regulations. See Zhen Nan Lin, 459 F.3d at 262; Qili Qu v. Gonzales, 399 F.3d 1195, 1203 (9th Cir. 2005). The BIA, acting within the regulatory framework, reasonably determined that the fact that an individual had already undergone forced sterilization could not itself rebut the presumption of a fear of future persecution because, unlike other types of persecution, the act of forced sterilization is “permanent and continuing.” Y-T-L-, 23 I. & N. Dec. at 607. That is to say, even though the actual act of forced sterilization occurred in the past, the act continues to “deprive[] a couple of the natural fruits of conjugal life, and the society and comfort of the child or children that might eventually have been born to them.” Id. Unlike most other types of persecution, such as “a term in prison, or an incident of severe beating or even torture,” id., forced sterilization is performed once because it need only be performed once: it is for life. It stands to reason that if an applicant continues to be perse-
ter to prohibit an act of persecution itself from being the “fundamental change in circumstances” that rebuts the presumption of fear of future persеcution or threats to life or freedom, I agree. The regulations specifically provide that once past persecution is established, it takes a showing of a “fundamental change in circumstances” to rebut the presumption.
II. Application of the “Continuing Persecution” Reasoning to the Female Genital Mutilation Context
Because female genital mutilation, like forced sterilization, is a continuing act of persecution that, at a minimum, permanently deprives a woman of certain aspects of her sexuality, it follows that, like forced sterilization, the act of mutilation itself could not rebut the presumption that the applicant‘s life or freedom would be threatened in the future.4 See Mohammed v. Gonzales, 400 F.3d 785, 799 n. 22 (9th Cir. 2005) (“[T]he principle that the fact of sterilization cannot be used by the government to rebut the fear of future harm was developed by the BIA . . . as a recognition of the special, continuing, and permanent nature of coercive population control. . . . [T]he reasoning in the forced sterilization cases would appear to apply equally to the case of genital mutilation.“).
Since the day after it issued its decision in Y-T-L- on May 22, 2003, the BIA has, on numerous occasions in unpublished decisions, granted asylum or withholding of removal to victims of genital mutilation based on the finding that female genital mutilation is a continuing form of persecution. See, e.g., In re Bosede Olawumi, No. A70 651 629 (B.I.A. May 23, 2003) (per curiam) (“Forced female genital mutilation is better viewed as a permanent and continuing act of persecution that has permanently removed from a woman a physical part of her body, deprived her of the chance for sexual enjoyment as a result of such removal, and has forced her to [sic] potential medical problems relating to this removal.“); In re Mariama Dalanda Bah, No. A97 166 217 (B.I.A. Sept. 1, 2005) (per curiam) (“The persecution resulting from FGM is therefore continuing and permanent. Considering the continuing effects of such persecution, we find that the presumption of future harm has not been adequately rebutted simply because the procedure may not bе repeated on the [applicant].“); In re Aisatou Sillah, No. A72 784 955 (B.I.A. Nov. 7, 2005) (“[T]he [IJ] observed in his decisions that the [applicant], who had been subjected to FGM, had suffered past persecution on account of a protected ground. The [IJ] noted that there was no indication that the effects of her persecution would dissipate and may be taken as permanent. . . . We find that the [IJ]‘s observations are fully consistent with our decision in Matter of Y-T-L-.“) (citations omitted). Nevertheless, in September 2007, the BIA issued In re A-T-, 24 I. & N. Dec. 296 (B.I.A. 2007), in which it reversed course and held that female genital mutilation was not a continuing
First, in A-T-, the BIA reasoned that it “treated sterilization as continuing persecution [in Y-T-L-] because it would have contradicted Congress‘s purpose to 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.” A-T-, 24 I. & N. Dec. at 300 (quoting
In Y-T-L-, the BIA itself noted that Congress‘s purpose in amending section
of the amendment confirms this notion. See, e.g., H.R. Rep. No. 104-469(I) at 173-74, 1996 WL 168955 (1996) (“The primary intent of [the amendment] is to overturn several decisions of the Board of Immigration Appeals, principally Matter of Chang and Matter of G- . . . . Nothing in [the amendment] is intended to lower the evidentiary burden of proof for any alien, no matter how serious the nature of the claim.“). Congress, in effect, did for forced sterilization claims what the BIA did in In re Kasinga, 21 I. & N. Dec. 357 (B.I.A. 1996) (en banc), for genital mutilation claims: it provided for basic qualification for asylum and withholding of removal by defining forced sterilization as persecution on account of one of the protected grounds, without altering the regulatory framework for assessing such claims.6 See Shi Liang Lin, 494 F.3d at 309 (“Congress has relieved . . . persons who actually experienced, or are threatened with, a forcible abortion or sterilization from the burden of proving a political nexus in their particular cases.“). Thus, the reasoning of Y-T-L-—that it would be “anomalous” under the statutory and regulatory framework to allow the “act of persecution itself [to] constitute the change in circumstances that would result in the denial of asylum,” 23 I. & N. Dec. at 605—applies with equal force in the forced sterilization and female genital mutilation contexts. Accordingly, in my view, the BIA‘s attempt in A-T- to distinguish the two contexts in this manner fails.7
Like forced sterilization and unlike most other types of persecution, female genital mutilation continues to persecute its victims well beyond the initial act of mutilation. In In re Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), overruled in part on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987), in which the BIA for the first time announced parameters for the statutory term “particular social group,” the BIA stated that the purpose of persecution is to “punish [an individual] for possessing a belief or characteristic a persecutor seeks to overcome.” Id. at 223. In Kasinga, the BIA affirmed that genital mutilation fulfills this purpose, because “FGM is practiced, at least in some significant part, to overcome sexual characteristics of young women.” 21 I. & N. Dec. at 367. See also Mohammed, 400 F.3d at 798. In particular, as stated above, female genital mutilation is often performed in order to eliminate sexual pleasure in its victims, see, e.g., Abay, 368 F.3d at 638; Abankwah, 185 F.3d at 23, in order to ensure the victim‘s fidelity in
ing and holding of Y-T-L-. The BIA in Y-T-L- determined how to apply the new regulatory framework to forced sterilization cases, not that it need not apply it at all. But if the BIA in Y-T-L- had truly interpreted the statute as conferring per se relief to anyone who had suffered forced sterilization in the past, the “continuing persecution” reasoning would not be necessary because such cases would not be subject to the burden shifting regulations. See Mohammed, 400 F.3d at 799 n. 22. Indeed, the authoring member of A-T- noted as much in his dissent in Y-T-L-, which was joined by yet another member on A-T-. See Y-T-L-, 23 I. & N. Dec. at 613 (Filppu, Board Member, dissenting) (“The majority is correct that the statute equates persecution arising from a coercive population control program as being persecution ‘on account of political opinion.’ The statute, however, does not direct that persons suffering suсh persecution be exempt from the normal rules that apply to all persons who have suffered past persecution on account of political opinion but who lack a reasonable fear of future persecution.“). To the extent applicants now receive relief based on the past act of forced sterilization alone, it is because of the reasoning set forth in Y-T-L-, namely that the persecution is continuing and thus a fear of future persecution cannot be rebutted. See Xue Hong Yang v. U.S. Dep‘t of Justice, 426 F.3d 520, 522 (2d Cir. 2005) (“The BIA has held that forced sterilization constitutes a form of permanent and continuing persecution that qualifies an alien for asylum under the INA.“) (citing Y-T-L-, 23 I. & N. Dec. at 606-07); Li Yong Cao v. U.S. Dep‘t of Justice, 421 F.3d 149, 155-56 (2d Cir. 2005) (“The BIA has held that because the persecution of forcible sterilization or abortion is ‘permanent and continuous,’ it inherently generates an irrebuttable presumption of a well-founded fear of future persecution.“) (citing Y-T-L-, 23 I. & N. Dec. at 605-08). Moreover, even if the BIA were correct in stating that the statute itself provides for per se relief in the forced sterilization context based on “the past harm alone,” A-T-, 24 I. & N. Dec. at 300, for the reasons set forth below, it would still be reasonable to apply the “continuing persecution” reasoning in the female genital mutilation context.
The BIA—in the present cases and in A-T-—again attempts to distinguish female genital mutilation from forced sterilization, stating that it is more analogous to other “lasting disabilit[ies], such as the loss оf a limb,” A-T-, 24 I. & N. Dec. at 300, and reasoning, “[t]he 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,” id. at 301.8 But the BIA conveniently stops short of taking this analogy to its logical conclusion. The loss of a limb or organ on account of a protected ground could never, in and of itself, be used to rebut a fear of future persecution or threats to life or freedom.9 Indeed, as noted in the majority opinion, the parties have been unable to point us to a single instance outside the genital mutilation context where the BIA has accepted such an argument.
More importantly, in advancing this analogy, the BIA conflates continuing persecution with continuing harm. Compare Y-T-L-, 23 I. & N. Dec. at 607 (forced sterilization is viewed as a “permanent and
continuing act of persecution“), with A-T-, 24 I. & N. Dec. at 299-300 (stating that female genital mutilation is a “continuing harm” that “has ongoing physical and emotional effects“). While the loss of a limb or organ undoubtedly carries with it lasting physical effects and continuing harm, the physical effects and harm will rarely be directly related to the protected ground on account of which the victim was persecuted. In contrast, in the genital mutilation context, as in the forced sterilization context, the form of persecution itself—and consequently the harm suffered by the victim—is directly related to the victim‘s protected group and the “characteristic[s][the] persecutor seeks to overcome,” Acosta, 19 I. & N. Dec. at 223, i.e., in the forced sterilization context, the ability to have children, and in the genital mutilation context, the woman‘s “sexual characteristics,” Kasinga, 21 I. & N. Dec. at 367. As substantiated by petitioners’ testimony—including that they will for life be unable to experience pleasure from intercourse—and record evidence, at least some of the “sexual characteristics” of victims of female genital mutilation are suppressed by the act of mutilation itself and will continue to be suppressed for the rest of their lives as a result of the act. Such victims, therefore, not only continue to be harmed as a result of the form of persecution they endured, but also continue to be persecuted. In contrast, victims of most other types of persecution may experience lasting effects or harm resulting from the persecution, but the characteristics their persecutors “seek[] to overcome” will not have been suppressed or overcome for life based solely on the method of persecution.
***
In sum, although I agree with my colleagues that the errors identified in the majority opinion themselves require remand, I would further hold that the BIA erred in failing to recognize female genital mutilation as continuing persecution because (1) the “continuing persecution” reasoning, which has been fully briefed and argued by аll parties and amicus, provides petitioners with another potential avenue for relief; (2) the agency‘s understanding of certain types of persecution, such as forced sterilization, as constituting continuing persecution is consistent with the regulatory framework for asylum and withholding of removal; and (3) the BIA‘s attempt to distinguish female genital mutilation from forced sterilization does not withstand scrutiny.
I conclude by expressing my strong disapproval of the actions of the BIA in these cases. The BIA in the cases before us and in A-T- has attempted (unsuccessfully, in my opinion) to limit the reasoning and holding of Y-T-L- to the forced sterilization context. In so doing, as set forth in our majority opinion, it has failed even to treat claims based on female genital mutilation as it would (and should) claims based on any other type of persecution. The BIA refers, in passing, to the act of female genital mutilation as “reprehensible,” Matter of A-T-, 24 I. & N. Dec. at 299, but its entirely dismissive treatment of such claims in these cases belies any sentiment to that effect. I am aware of the limited resources available to the agency in adjudicating its cases, see, e.g., Kadia v. Gonzales, 501 F.3d 817, 820-21 (7th Cir. 2007); however, despite difficulties that may be presented by a lack of time or staffing, the BIA is expected to adequately fulfill its adjudicatory role by “exercis[ing] care commensurate with the stakes” in cases such as these. Id. at 821. As set forth in the majority opinion, and as the BIA and the vast majority of the courts of appeals have recognized, female genital mutilation is a horrendous act of persecution that can have serious, life-long consequences. Victims of this practice, such as
SOTOMAYOR, Circuit Judge, concurring:
I fully join the majority opinion. I write separately only to note that I do not necessarily agree with my colleague‘s analysis or conclusions in his concurring opinion on the issue of “continuing persecution,” and to further explain why I think it is imprudent for us to rule on the matter at this time. Withholding of removal is a form of relief that by statute is prospective looking only.