Lead Opinion
Judges STRAUB and SOTOMAYOR also concur in separate opinions.
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 8 C.F.R. § 1208.16(b)(l)(i)(A).
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.
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,
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 (infibu-lation).
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,
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.
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 cоndemned 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 “LAC was the first and largest NGO network in Africa to take up the issue of FGM at the grassroots, regional 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 18 U.S.C. § 116(a) (providing that “whoever knowingly circumcises, excises, or infibu-lates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years” shall be fined or imprisoned for up to five years).
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,
In a statement accompanying her application, Salimatou explained that she belongs to the Fulani ethnic .group, which strongly supports thе 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 coconut leaves.” She was taken into a tent where five “old ladies” with knives and other tools undressed her and had her he 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 8 U.S.C. § 1158(a)(2)(B).
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 nonimmi-grant 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, Ma-riama 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 to 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 four-chette 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 аpplications to the BIA. In a three-member unpublished order issued by Board Members Patricia A. Cole, Lauri S. Filppu (author), and Roger Pauley, the BIA found that the IJ properly pretermit-ted 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 persecution.” 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 tо 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 preter-mitted 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 social 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,
V. In re A-T-
Soon after the BIA issued the unpublished decisions in these three cases, the
Alima Traore,
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 оf 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.
DISCUSSION
7. 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.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Manzur v. U.S. Dep’t of Homeland Sec.,
We review decisions by the BIA interpreting the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., according to the standard set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.:
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 nоt 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.
II. Regulatory Framework and Merits of the Petitions for Review
Pursuant to 8 U.S.C. § 1231(b)(3)(A), an alien may not be removed to a country if “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” Under the relevant regulations:
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.
8 C.F.R. § 1208.16(b)(1)®. The presumption that arises upon a showing of past persecution can be rebutted if the IJ finds, by a preponderance of the evidence, that “[t]here has been a fundamental change in circumstances such that the applicant’s life or freedom would not be threatened on account of any of the five grounds mentioned in this paragraph upon the applicant’s removal to that country,” or that “[t]he applicant could avoid a future threat to his or her life or freedom by relоcating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so.” 8 C.F.R. §§ 1208.16(b)(l)(i)(A), (B). If an applicant has established past persecution on account of one of the protected grounds, the government bears the burden of rebutting the presumption that the applicant’s life or freedom will be threatened in the future by a preponderance of the evidence. 8 C.F.R. § 1208.16(b)(1)(h).
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.
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, and 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,
In the cases before us, as in A-T-, the BIA found that eaсh of the petitioners had undergone genital mutilation, but “as-sum[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,
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.” 8 C.F.R. § 1208.16(b)(1)®. At that point, the burden shifts to the government, which may rebut the presumрtion upon a showing by a preponderance of the evidence that “[t]here has been a fundamental change in circumstances such that the applicant’s life or freedom would not be threatened on account of any of the five [protected grounds for relief] upon the applicant’s removal to that country.” 8 C.F.R. § 1208.16(b)(l)(i)(A). Cf, e.g., Hassan,
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 child birth.” 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,
Accordingly, the BIA erred in stating categorically that genital mutilation could only 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,
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.” 8 C.F.R. § 1208.16(b)(1)®. Thus, to rebut the regulatory presumption, the government must show that changed conditions obviate the risk to life or freedom related to the original claim, e.g., persecution on account of membership in her particular social group. It cannot satisfy its burden solely by showing that the particular act of persecution suffered by the victim in the past will not recur. See Hassan,
Apparently recognizing this error, the BIA in an unpublished and non-prece-dential 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 “[djomestic 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.
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 AT- 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 8 C.F.R. §§ 1008.1(d)(3)®, (iv), we instruct that on remand, the BIA send th[ese] case[s] to an IJ for further findings of fact.” Delgado v. Mukasey,
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 Vaoated, and the cases áre Remanded to the BIA for proceedings consistent with this opinion.
Notes
. The remainder of petitioners' claims are addressed separately in a summary order filed today. The three cases were heard in tandem and have been consolidated for disposition.
. The term "female genital mutilation” (often referred to as "FGM”) is sometimes used interchangeаbly with other terms, including female genital “circumcision,” "cutting,” "surgery,” or "alteration.” See, e.g., Dena S. Davis, Male and Female Genital Alteration: A Collision Course with the Law?, 11 Health Matrix 487, 487-93 (2001). We use the term "female genital mutilation” because it is the term used by all parties, amicus, and the BIA.
.The World Health Organization defines female genital mutilation as "all procedures which involve partial or total removal of the external female genitalia or other injury to the
. This document and other similar documents were contained in the records before the BIA.
. As one scholar explained:
Long term physical problems include the formation of keloid scars, ruptures in the vagina that can lead to incontinence later in life, dysmennorhea or extremely painful menstruation, the development of neuroma, which h could cause the entire genital area to become permanently too painful to even touch, dyspareunia or extreme pain during sexual intercourse and sterility due to infections that can spread through the cervix and into the uterus, Fallopian tubes and ovaries. In addition, infibulated women can experience problems especially if the opening left is too small. The opening may be too small to allow menstrual blood to escape, or in some extreme cases, urine may not even be able to pass through the opening normally. Often, if a woman has been infibulated, it can take her ten to fifteen minutes to urinate. It is clear, therefore, that many women who undergo female genital mutilation continue to suffer daily pain throughout their lives.
Childbirth is a dangerous event for women who have undergone FGM, especially infi-bulated women. ... Fetal and maternal death, brain-damaged babies and severe internal damage to the mother are often associated with women who have undergone FGM, and particularly infibulation.
FGM can cause severe psychological problems as well. ... Some researchers have concluded that the severe pain of FGM, concentrated in such a sensitive and delicate area, and performed during early formative years, does cause psychological problems. In addition, many girls experience fear and anxiety when they first learn they will have to undergo the procedure. The procedure itself is also frightening; the young girls are held down, sometimes gagged, their legs are spread apart, and they are cut without anesthesia. Often, their mother or some other female relative is involved, which can add a sense of immense betrayal as well.
*103 FGM has also been associated with psychological problems surrounding sexual intercourse .... According to some studies, women who have experienced FGM are often afraid of sex, experience extreme pain from the act, and receive little, if any, enjoyment from sexual relations.
Alexi Nicole Wood, A Cultural Rite of Passage or a Form of Torture: Female Genital Mutilation from an International Law Perspective, 12 Hastings Women’s L.J. 347, 363-67 (Summer 2001) (internal footnotes and quotation marks omitted).
. While we normally use parties’ last names, two of the petitioners in these cases have the same last name; therefore, to avoid confusion, we will use the petitioners' first names.
. This deadline does not apply to withholding of removal or CAT claims. See 8 C.F.R. § 208.4(a).
. 8 C.F.R. § 1208.13(b)(l)(ili) provides that, even in the absence of a •well founded fear of future persecution, an applicant may be granted asylum "in the exercise of the decision-maker’s discretion, if ... [t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or ... [t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country." No such authority exists with respect to claims for withholding of removal under 8 U.S.C. § 1231(b)(3)(A). See 8 C.F.R. § 1208.16.
. It is unclear why the BIA in this concluding sentence treated Haby’s female genital mutilation claim as though it were a claim for asylum, even though it had already determined that her asylum application was properly pretermitted.
. The Board Members who decided A-T- are Patricia A. Cole, Lauri S. Filppu (author), and Roger Pauley. As previously noted, Board Member Pauley decided Salimatou's and Haby's cases, and all three Board Members on A-T- decided Manama’s case. The BIA recently denied reconsideration in A-T- in an unpublished decision authored by Board Member Pauley on behalf of all three Board Members. See In re Alima Traore, No. A72 169 850 (B.I.A. Apr. 14, 2008), appeal docketed, No. 08-1557 (4th Cir. May 16, 2008). The original A-T- decision and the denial of the motion for reconsideration are currently on appeal to the Fourth Circuit.
. Although the BIA case refers to Traore as "A-T-” or "respondent,” the Fourth Circuit’s docket as well as the BIA’s denial of the motion for reconsideration indicate that the petitioner’s name is "Alima Traore.” See Traore v. Mukasey, No. 07-2080 (4th Cir. filed Nov. 1, 2007); In re Alima Traore, No. A72 169 850 (B.I.A. Apr. 14, 2008).
. Subsequently, in In re S-A-K- and H-A-H-, 24 I. & N. Dec. 464 (B.I.A.2008), the BIA explicitly held that victims of past female genital mutilation could qualify for discretionary grants of asylum under 8 C.F.R. § 1208.13(b)(1)(iii)(A) based on the severity of the past harm alone.
. The BIA also affirmed the IJ's holding that Traore was not eligible for withholding of removal based solely on her fear of forcible marriage. The BIA initially "note[d] that an arranged marriage between adults is not generally considered per se persecution.” A-T-, 24 I. & N. Dec. at 302. It then reasoned that Traore had "presented insufficient evidence regarding the consequences she might face if she refuses to marry her intended fiancé,” that she could "reasonably relocate within Mali to avoid the marriage,” and that Traore "failed to demonstrate a nexus between any harm she may fear and a protected ground.” Id. at 303. The BIA stated that it doubted "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.” Id.
. Since publication of A-T-, various members of Congress as well as organizations have requested that the Attorney General certify the decision to himself pursuant to 8 C.F.R. § 1003.1(h)(l)(i) and reverse it. See, e.g., Letter and Addendum from Members of Congress to Michael Mukasey, U.S. Attorney General (Dec. 20, 2007; Mar. 24, 2008), htlp://cgrs.uchastings.edu/pdfs/DOC3-% 20Ad-dendum_FGM% 20Letter_HOUSE-032408. pdf (last visited June 10, 2008); Press Release, Reps. Lofgren and Conyers Call on Attorney General to Review Female Genital Mutilation Ruling (Jan. 30, 2008), http://lofgren. house.gov/PRArticle.aspxPNewsID=1879 (last visited June 10, 2008); Press Release, Snowe, Levin Call on Attorney General to Review Female Genital Mutilation Ruling (Apr. 29, 2008), http://snowe.senate.gov/public/ (click on press room/press releases, search for press release by date) (last visited June 10, 2008), text of letter available at http://cgrs. uchastings.edu/documents/advocacy/ matlerofa1_senate_letter_Mukasey.pdf (last visited June 10, 2008); Letter from Physicians for Human Rights Asylum Network to Michael B. Mukasey, U.S. Attorney Genеral (Mar. 6, 2008), http://cgrs.uchastings.edu/ pdfs/DOC12-Letter_physicians_psychologists_ PHR.pdf (last visited June 10, 2008); Letter from Barry M. Kamins, President, New York City Bar, to Michael B. Mukasey, U.S. Attorney General (Jan. 4, 2008), http://www. nycbar.org/pdf/report/0424_001.pdf (last visited June 10, 2008).
. No such deference is warranted where, as here, the agency decisions are unpublished, because those decisions do not constitute binding agency interpretations of law. See Mizrahi v. Gonzales,
. The government argues that petitioners have failed to exhaust and have waived certain arguments raised by amicus with respect to their withholding of removal claims arising from their own genital mutilation. We disagree. All three petitioners argued in their briefs to the BIA as well as to this Court that the BIA erred in its application of the regulatory framework with respect to the genital mutilation claims. Moreover, the BIA addressed the vast majority of the issues we now review on appeal in its decisions. Those issues are therefore deemed exhausted, see Xian Tuan Ye v. Dep’t of Homeland Sec.,
. In addition, we note that the Third Circuit has recognized that female genital mutilation can constitute persecution in an unpublished opinion. See Moshud v. Blackman,
. In Abankwah, we noted that the government "did not dispute that Abankwah's fear of genital mutilation was on account of her membership in a cognizable social group” and held that she had demonstrated a well founded fear of future mutilation.
. Although petitioners and amicus argue that the BIA's "assum[ption]” of a social group is sufficient to vest in this Court the authority to determine petitioners’ social groups, we need not decide this issue. Because we are remanding these cases to the BIA to properly apply the regulatory framework in any event, we leave it to the agency to define the particular social groups in the first instance.
. The BIA in Kasinga, adopting a definition similar to the one advanced by the parties in that case, defined the applicant’s particular social group as "young women of the Tcham-ba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.” 21 I. & N. Dec. at 365. Since then, our sister circuits have criticized the BIA's inclusion of opposition to genital mutilation in its definition of the social group. See, e.g., Niang,
. As noted above, the BIA in A-T- rejected the Eighth Circuit's holding in Hassan as “at odds with the regulatory structure” for withholding of removal claims. In so doing, the BIA relied on 8 C.F.R. § 1208.16(b)(l)(iii), which provides that "[i]f the applicant’s fear of future threat to life or freedom is unrelated to the past persecution, the applicant bears the burden of establishing that it is more likely than not that he or she would suffer such harm.” Here, the record reveals that petitioners are potentially at risk of forms of persecution based on the same social group on account of which they were subject to genital mutilation. Thus, section 1208.16(b)(l)(iii) does not provide a basis for placing the burden on petitioners in these cases.
. All three petitioners also argue before this Court that they should be granted withholding of removal based on their fears that their daughters (or potential daughters) will be subject to genital mutilation should they be forced to return to Guinea; however, each petitioner failed to raise this argument in her brief to the BIA. Accordingly, as these arguments are unexhausted, we will not consider them. See 8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice,
Concurrence Opinion
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.
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 wоuld 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 рrocedure ... shall be deemed to have a well founded fear of persecution on account of political opinion.
8 U.S.C. § 110I(a)(42). At the time Congress enacted this amendment, the regulations provided that the presumption of a well founded fear of future persecution could only be rebutted by changed country conditions. See 8 C.F.R. § 208.13(b)(1)® (1997). Accordingly, the fact that a person had been forcibly sterilized in the past could not, in and of itself, be used to rebut the presumption of fear of future persecution. In 2000, however, the regulation was amended to provide that any fundamental change in circumstances could be used to rebut the presumption. See 8 C.F.R. § 1208.13(b)(1)®; 65 Fed.Reg. 76121-01 (Dec. 6, 2000).
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 rеason 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 v. U.S. Dep’t of Justice,
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.
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 frоm 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 be 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 8 C.F.R. § 1208.13(b)(1)(i)(A)). This was because, in the BIA’s view, unlike victims of genital mutilation, “[t]he statute defined victims of forced sterilization ... as qualifying for relief.” Id. But the fact that Congress specifically defined forced sterilization аs persecution does nothing to meaningfully distinguish it from female genital mutilation, which, as set forth in the majority opinion, has been found to constitute persecution by the BIA and the vast majority of the courts of appeals.
In Y-T-L-, the BIA itself noted that Congress’s purpose in amending section 1101(a)(42) was to supersede prior BIA decisions that had held that forced sterilization did not constitute persecution on account of a protected ground. See 23 I. & N. Dec. at 603-04, 607 (“The principal issue of contention ... was whether such harm was on account of a ground protected under the Act. Congress has definitively answered that question ....”) (internal citations omitted). The legislative history of the amendment confirms the this notion. See, e.g., H.R.Rep. No. 104-469(1) at 173-74,
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,
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 disabilities], such as the loss of 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.
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 all 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,
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. 8 U.S.C. § 1231(b)(3)(A). It is only by regulation that a finding of past persecution gives rise to a presumption of a future threat to life or freedom for purposes of withholding of removal eligibility. 8 C.F.R. § 1208.16(b)(1)®. Thus, in the event that the government is able on remand to satisfy its burden of proving the unlikelihood of a future threat to petitioners’ life or freedom upon their return to Guinea, I cannot say at this time that it would be impermissible for the agency to deem petitioners ineligible for withholding relief. Cf. Auer v. Robbins,
. In particular, I note that the two bases for remand identified in the majority opinion are not necessarily determinative of the outcome of petitioners’ applications. Cf., e.g., Fay v. Oxford Health Plan,
. To the extent that the BIA by these words is interpreting the regulations as a general mat
. I note that in Y-T-L-, it was the applicant’s wife — as opposed to the applicant himself— who had been sterilized. We subsequently held in Shi Liang Lin v. U.S. Dep’t of Justice,
. My colleague attempts to distinguish these cases from Y-T-L- by noting that withholding of removal “is a form of relief that by statute is prospective looking only.” However, this observation does nothing to distinguish Y-TL-, where thе BIA also noted that asylum is a "prospective” form of relief. 23 I. & N. Dec. at 606 ("[T]his prospective view is not only unobjectionable, but is a bedrock principle of refugee law....”). Indeed, the asylum regulations provide that the only way an asylum applicant can be granted asylum based on the past persecution alone is based on the severity of the past persecution, see 8 C.F.R. § 1208.13(b)(l)(iii)(A), but the BIA was not operating under this regulation in Y-T-L-. The BIA was operating only within the parameters of the forward-looking portion of the asylum framework, and it satisfied the provisions of that framework by reasoning that forced sterilization was a form of persecution that continued on into the future. Accordingly, for the reasons set forth below, this reasoning applies with equal force in the context of withholding of removal claims based on female genital mutilation.
. The BIA apparently, for some unspecified period in advance of A-T-, began issuing unpublished decisions, such as the ones before us now, advancing the reasoning which later appeared in A-T-.
. Although the BIA's unpublished decisions are not precedential, see Ajdin v. BCIS,
.To the extent that the BIA in A-T- now attempts to distinguish the two contexts on the ground that the amendment provides automatic relief to forced sterilization victims, such an interpretation is belied by the reason
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 bеlow, it would still be reasonable to apply the "continuing persecution” reasoning in the female genital mutilation context.
. Similarly, in the cases before us, the BIA analogized genital mutilation to the loss of “a bodily organ.”
. See Diallo v. Mukasey,
. This distinction obviates the concern hinted at in my colleague’s concurrence that all cases "where ongoing physical or emotional harm from a prior persecutory act is alleged” would have to be granted under the "continuing persecution” reasoning. In order to invoke the "continuing persecution” reasoning in other contexts, victims of past persecution would have to show that they continued to be persecuted — not merely harmed — as a result of the form of persecution, that is to say, their particular "characteristic^” that their persecutors sought "to overcome” continue to be suppressed or overcome into the future as a result of the method of past persecution. Such a showing will be impossible in most cases outside the forced sterilization and female genital mutilation contexts.
. I am mindful of the fact that the continuing persecution that results from genital mutilation would occur regardless of whether the applicant was located in this country or in her home country; however, this fact does not serve to distinguish genital mutilation from forced sterilization. Moreover, there are obvious concerns with sending a person who continues to be persecuted to live among her persecutors.