Lead Opinion
Affirmed by published opinion. Senior Judge ELLIS wrote the majority opinion, in which Judge NIEMEYER joined. Judge WILLIAMS wrote an opinion concurring in part and dissenting in part.
OPINION
This is an appeal from a final order of removal of the Board of Immigration Appeals (“BIA”), denying petitioner’s application for withholding of removal because (i) she failed to establish a “clear probability” of persecution and (ii) she could not assert a claim based on a fear that her five-year old U.S. citizen daughter would be subjected to female genital mutilation (“FGM”)
I.
Petitioner, Mame Fatou Niang (“Niang”), is a native and citizen of Senegal. In August 2000, she was admitted to the United States as a non-immigrant visitor authorized to remain in the U.S. until November 8, 2000.
Soon after, her arrival in the U.S., Niang became romantically involved with Papa Samba Ane (“Ane”), a Senegalese native who has nearly completed the process of adjusting his status in the U.S. On July 8, 2001, Niang gave birth to the couple’s first child, a daughter named Fatime Ane (“Fa-time”). Two years later, on February 11, 2003, Niang gave birth to the couple’s second child, a son named Mohamed Ane (“Mohamed”).
Several months after the birth of Mohamed, in August 2003, Niang filed an asylum application with the U.S. Department of Homeland Security (“DHS”), seeking relief from removal based on her religion and her membership in a particular social group. In an affidavit appended to her application, Niang stated that she is from northern Senegal and is a member of the Toucouleur ethnic group, a group that, as she put it, practices FGM at “an alarming[ly] high rate.” J.A. 87.
On October 28, 2003, DHS charged Niang with removability, pursuant to 8 U.S.C. § 1227(a)(1)(B), for remaining in the U.S. beyond the time permitted by her non-immigrant visa. In response to this charge, Niang, represented by counsel, appeared before an Immigration Judge (“IJ”) and admitted the charges against her, conceded removability, but sought relief from removal in the form of asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), or, alternatively, voluntary departure.
At a December 7, 2004 hearing on her various requests for relief from removal, Niang testified that she is a citizen of Senegal and a member of both the Mandingo and Toucouleur tribes and that while in the U.S. she gave birth to Fatime and Mohamed, who, at the time of the hearing, were 3 years old and 22 months old, respectively. Initially, Niang testified that Ane lives with her, but later testified that Ane does not live with her, but that “he’s around sometimes.” J.A. 44, 54. She further testified that the Toucouleur tribe is “traditionalist” and continues to practice FGM and that although the Senegalese government has made FGM illegal, “people continue to practice excision in hiding” and she “saw many violations of that law.” J.A. 42. She also testified that in 2002 she read a letter from Fatime’s paternal grandfather asking that Fatime be sent to Senegal to undergo FGM and learned that Ane “agrees with his family.” J.A. 45. Niang’s asylum application was, in part, prompted by this letter.
In support of her application and testimony, Niang submitted (i) medical documents indicating that she had been subjected to FGM and that in December 2000, she suffered from fibroids; (ii) her Senegal passport and her children’s birth certificates; (iii) the June 12, 2002 letter, purportedly from Ane’s father; and (iv) a U.S. Department of State report concerning FGM in Senegal, released June 1, 2001. This report states, inter alia,
(a) that studies estimate between 5% and 20% of the female population has been subjected to FGM;
(b) that up to 88% of “females among the minority Halpularen (Peul and Toucouleur) in rural areas of eastern and southern Senegal practice FGM;” and
(c) that in January 1999, the Senegalese government made FGM illegal, but ' there have been no convictions as of the 2001 report.
J.A. 112-15.
The government also submitted documentary evidence, namely the 2003 Country Report on Human Rights Practices for Senegal, prepared by the U.S. Department of State and released on February 25, 2004. This report states, inter alia,
(a) that FGM is not practiced by the Wolof, the largest ethnic group, constituting 43% of the Senegalese population;
(b) that one of the most extreme forms of FGM is sometimes practiced by the Toucouleur, particularly in rural areas;
*509 (c) that FGM is most prevalent in eastern Senegal;
(d) that FGM is a criminal offense, carrying a jail term of 6 months to 5 years for those practicing FGM or ordering that it be carried out. As of the 2003 report, trials in a 2002 and a 2001 case were still pending;
(e) that the government has established programs to educate women about the dangers of FGM and there are national and local government action plans against FGM; and
(f) that since 1997, 1,031 villages, including 13 in northern Senegal, have prohibited FGM, constituting over 20% of the villages that had previously practiced FGM.
J.A. 64-75.
Following this hearing, the IJ denied all of Niang’s applications for relief and ordered her removed to Senegal. Specifically, the IJ found Niang’s asylum application untimely, as it was filed more than three years after her arrival in the U.S. The IJ also found that circumstances did not warrant tolling. Despite this finding, the IJ went on to address the substance of Niang’s asylum claim and found it merit-less because Niang had not established that she would be persecuted on the basis of any protected ground if removed to Senegal, nor had she established any valid derivative claim given that her daughter, a U.S. citizen, was entitled to remain in the U.S.
Niang appealed the IJ’s decision to the BIA, which affirmed the IJ’s factual findings and specifically concurred with the IJ’s conclusions that Niang’s asylum application was untimely and that Niang had failed to demonstrate either past persecution or a clear probability of future persecution.
Niang now appeals only two aspects of the BIA’s decision, thereby presenting two questions for review: (i) whether Niang can assert a claim for withholding of removal based on the psychological harm she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM; and (ii) whether Niang can assert a “derivative” claim for withholding of removal based on the alleged persecution her
II.
At the outset, it is important to note that FGM—a barbaric practice unbecoming of a civilized society—is prohibited by law in this and many other countries, including Senegal.
The question is appropriately framed in this fashion because an alien asserting a claim for withholding of removal on persecution grounds must show “that it is more likely than not that her life or freedom would be threatened in the proposed country of removal because of her race, religion, nationality, membership in a particular social group, or political opinion.” Haoua,
In sum then, the specific questions presented, distilled to their essence, are whether the record compels reversal of the BIA’s determinations (i) that Niang cannot assert a claim for withholding of removal based on the psychological harm she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM; and (ii) that Niang cannot assert a “derivative” claim for withholding of removal based on the alleged persecution her daughter will face if she accompanies Niang to Senegal and is there subjected to FGM.
A.
Niang’s first claim for withholding of removal focuses on the psychological harm she claims she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM. This claim fails as a matter of law because it is well-established that “[persecution involves the infliction or threat of death, torture, or injury to one’s person or freedom.” Li v. Gonzales,
In sum then, because “persecution” cannot be based on a fear of psychological harm alone, Niang’s withholding claim fails as a matter of law because it focuses solely on the psychological harm she claims she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM. Accordingly, we affirm the BIA’s determination in this respect.
B.
Niang also asserts a “derivative” claim for withholding of removal based on the alleged persecution her daughter will face if she accompanies Niang to Senegal and is there subjected to FGM. While Niang concedes that the INA does not provide for a “derivative” withholding of removal claim,
The INA compels this result because the statutory text is clear—to establish eligibility for withholding of removal' the alien must demonstrate that “the alien’s life or freedom would be threatened” in the country of removal. 8 U.S.C. § 1231(b)(3) (emphasis added). Thus, the statute permitting withholding of removal does not encompass derivative withholding claims, that is, claims for withholding of removal based on persecution to another person; instead, an alien seeking withholding of removal must establish that they will suffer harm if removed. The one exception to this general rule is provided by § 1229b, which provides that the Attorney General may cancel removal of an alien if the alien (i) has been physically present in the U.S. for ten years or more before seeking cancellation of removal; (ii) has been of good moral character during such period; (iii) has not been convicted of certain statutory offenses; and (iv)' “establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States.” Thus, the INA provides that hardship to U.S. citizen children may be a basis for cancellation of removal in certain specific circumstances not present here. Indeed, Niang’s counsel conceded at oral argument that Niang is not entitled to relief under § 1229b, presumably because she cannot satisfy the ten year physical presence requirement.
As § 1229b does not apply here, Niang may be entitled to relief from'removal only if she satisfies the standard set forth in § 1231, that is, by demonstrating that she will suffer persecution if removed to Senegal. See 8 U.S.C. § 1231(b)(3) (requiring that “the alien’s life or freedom would be threatened” in the country of removal) (emphasis added). She has not done so on this record, choosing instead to rely on the alleged persecution her daughter will face if the daughter accompanies Niang to Senegal. Where, as here, an alien is not eligible for relief under § 1229b, there is simply no statutory or regulatory authority for her to claim withholding of removal based on threatened hardship to her U.S. citizen minor daughter.
For the foregoing reasons, we dismiss the petition for review and affirm the BIA’s decision. We do so reluctantly because we recognize that removal places Niang on the horns of a terrible dilemma. While it is entirely reasonable to believe that the law ideally should not present mothers with such dilemmas, the existing law does. Thus, the state of the law and the contents of this record require that we affirm the BIA.
AFFIRMED
Notes
."FGM” refers to a group of "surgical procedures involving the removal of some or all of the external genitalia, performed primarily on girls and young women in Africa and Asia.” Haoua v. Gonzales,
. Citations to the "J.A.” refer to the joint appendix filed in this appeal.
. Fatime’s maternal grandparents in Senegal do not appear to be a factor in the FGM equation, as Niang reports that they believe a
. The IJ noted that Niang was not eligible for a grant of humanitarian asylum because the fact that she was subjected to FGM thirty-three years ago was not sufficiently compelling under In re Chen, 20 I. & N. Dec. 16 (BIA 1989), which held that an IJ, in his discretion, may grant asylum in the absence of a well-founded fear of future persecution where an applicant suffered past atrocious forms of persecution. See 8 C.F.R. § 1208.13(b)(1)(iii)(A) (providing that an applicant who demonstrates "compelling reasons for being unwilling or unable to return to the country arising out .of the severity of past persecution,” may be granted discretionary asylum absent a well-founded fear of future persecution).
While Niang did not appeal this decision, it is worth noting that a humanitarian grant of asylum may be warranted in circumstances where a mother, who has been subjected to FGM, fears her daughter will be subjected to FGM if she accompanies her mother to the country of removal. See Osigwe v. Ashcroft,
. Notably, because Niang does not appeal the BIA's decision with respect to her untimely asylum application, her CAT claim, or her claim for voluntary departure, she has waived these issues. United States v. Al-Hamdi,
It is worth noting that, even assuming Niang had not waived the timeliness issue with respect to her asylum claim, we lack jurisdiction to review the BIA's decision in this respect. 8 U.S.C. § 1158(a)(3); see Balde v. Gonzales,
. See 18 U.S.C. § 116 (making the practice of FGM illegal); Senegal Law No. 99-05 of 29 January 1999 Amending Various Provisions of the Penal Code [Art. 2]; Report of the Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 14, U.N. GAOR, 45th Sess., Supp. No. 38 & Corr. 1, at 80, P 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); Traditional or Customary Practices Affecting the Health of Women and Girls, G.A. Res. 128, U.N. GAOR, 56th Sess., Supp. 49 at 2, U.N. Doc. A/RES/ 56/128 (2001).
.In particular, 8 U.S.C. § 1231(b)(3)(A) provides that the "Attorney General may not remove an alien to a country if the Attorney General decides that 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.”
. Because the BIA affirmed the IJ's order and supplemented it, the factual findings and reasoning contained in both decisions are subject to judicial review. See Haoua,
. While the dissenting opinion argues that "[t]his holding stands in tension with the BIA’s decision in In re C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997) (en banc),” a review of that decision reveals no such tension. As the dissent points out, C-Y-Z held that a petitioner could apply for asylum on the basis of his spouse’s forced sterilization. Importantly, the BIA reached this holding based on "the enactment of section 601(a) of the IIRIRA [defining refugee] and the agreement of the parties that forced sterilization of one spouse on account of a ground protected under the Act is an act of persecution against the other spouse." Id. at 919. Thus, the BIA's holding was not based on, nor did the BIA even discuss, any alleged psychological harm that would be suffered by the petitioner if his spouse was forced to be sterilized. It appears, then, that C-Y-Z stands for the proposition that the BIA permits a petitioner to support his petition by relying on harm to another person only in the limited context of forced sterilizations; it does not stand for the proposition that the BIA permits petitioners to rely on psychological harm, without physical harm, to establish eligibility for withholding of removal under the INA.
.See also Mengistu v. INS, No. 98-2003,
. The INA does recognize a derivative asylum claim, thereby granting asylum status to a spouse or child who accompanies an alien who is granted asylum status, even though the spouse or child is not otherwise eligible for asylum. See 8 U.S.C. § 1158(b)(3). As Niang conceded at oral argument, this provision is inapplicable here because, even assuming § 1158(b)(3) extends to withholding claims, the statutory language does not provide a derivative claim to parents of U.S. citizens. See 8 C.F.R. § 207.7(b) (listing parents as ineligible for derivative asylum). This omission may be intended to "prevent wholesale circumvention of the immigration laws by persons who enter the country illegally and promptly have children to avoid deportation.” Hernandez-Rivera v. INS,
. Cf In re S-L-L, 24 I. & N. Dec. 1, 14 n. 1 (Pauley, concurring) ("While FGM may be a pernicious form of persecution, it is difficult to understand why a fear that it may be performed on another person, albeit one’s child, is a ground for asylum, any more than if a parent had a fear that a child would be singled out for persecution on account of political opinion, race, or religion”) (emphasis in original).
. It is worth noting that, in some circumstances, it might be appropriate to remand to the BIA a claim presenting such a Sophie's choice to determine whether it warrants a grant of humanitarian asylum. See Osigwe,
. Notably, even assuming Niang could assert a derivative claim, the record does not compel reversal as Niang did not establish a "clear probability” that Fatime would be subjected to FGM if Niang is removed. This is so because (i) Fatime is a U.S. citizen, entitled to remain in the U.S., despite her mother's removal; (ii) beyond Niang's testimony, there is no record evidence that Ane favors FGM; (iii) aside from the 2002 letter, purportedly from Ane's father, there is no evidence of "threatening or demanding letters” from Ane’s family, as Niang testified she received; (iv) there is no clear record evidence that FGM is practiced by the Toucouleur in northern Senegal; and (v) State Department reports indicate FGM is growing less common and "hardly practiced at all in the most heavily populated urban areas;” thus, Niang might protect Fa-time by residing in an urban area.
Concurrence Opinion
concurring in part and dissenting in part:
I concur in the majority’s analysis of Niang’s derivative claim of withholding of removal based on harm to her daughter.
I.
A.
Although the majority opinion purports to apply the substantial evidence standard, it in fact conducts a de novo inquiry into the meaning of the term “persecution” in 8 C.F.R. § 208.16 (West 2007). From this de novo inquiry, the majority derives a broad and potentially far-reaching legal precedent—that “psychological harm, without any accompanying physical harm, does not constitute ‘persecution’.” Ante at 512. This holding stands in tension with the BIA’s decision in In re C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997) (en banc), which held that an applicant for asylum and withholding of removal could establish persecution by virtue of his wife’s forced sterilization. Neither the statute nor its implementing regulations define “persecution,” and the majority, by (1) ignoring the BIA’s interpretation of the term “persecution” in In re C-Y-Z and (2) independently establishing such a broad precedent without remanding for the BIA to consider the question in the first instance, fails to afford appropriate deference to the agency.
Although we review de novo questions of law determined by the BIA, Blanco de Belbruno v. Ashcroft,
Under Chevron, a court reviewing an agency’s construction of the statute it administers must first determine “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A, Inc. v. Natural Resources Def. Council, Inc.,
The majority does not suggest that the term “persecution,” which both the INA and its implementing regulations leave undefined, is unambiguous. Nevertheless, the majority declines to afford deference to, or even address, the BIA’s interpretation of the term. The BIA, however, has not interpreted “persecution” to require a physical assault. To the contrary, in In re C-Y-Z, the Board, sitting en banc, held that an applicant for asylum and withholding of removal could establish persecution by virtue of his wife’s forced sterilization. The Board reversed the IJ’s determination that the applicant was “in effect ... seeking] to ride on his wife’s coattails” and had not himself been persecuted. Id. at 916. Board Member Rosenberg wrote a separate concurring opinion noting that it is not unusual in asylum cases for an applicant to demonstrate a well-founded fear of persecution “although the harm experienced was not by him, but by a family member,” and that “it ... constitutes persecution for the asylum applicant to witness or experience the persecution of family members.” Id. at 926 (Rosenberg, concurring).
Also, we have previously stated that torture may constitute persecution. See Li v. Gonzales,
Prior to 1965, the INA authorized the Attorney General “to with-hold the deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution ....” Pub.L. No. 82-414, 66 Stat. 163, 214 (1952) (codified at INA § 243(h), 8 U.S.C.A. § 1253(h)) (emphasis added). In 1965, Congress amended INA § 243(h) “by striking out ‘physical persecution’ and inserting in lieu thereof ‘persecution on account of race, religion, or political opinion.’ ” An Act to Amend the Immigration and Nationality Act, Pub.L. No. 89-236, 79 Stat. 911, 913 (1965). Thus, it appears that when Congress has intended to restrict the availability of withholding of removal only to aliens who face persecution that is physical in nature, it has done so explicitly.
Accordingly, I believe that the majority has established an interpretation of “persecution” that the BIA might well consider too narrow. The majority’s expansive holding is in tension with, and makes no attempt to distinguish, the most analogous BIA decision available, In re C-Y-Z. This conflict has occurred because the majority, rather than reviewing an interpretation of
Neither the IJ nor the BIA purported to base its decision on the interpretation of “persecution” established by the majority. Because the BIA did not address whether the psychological harm Niang alleged could constitute “persecution” within the meaning of 8 C.F.R. § 208.16, I believe that we are required to remand Niang’s claim to the BIA for the agency to address the issue in the first instance. See INS v. Ventura,
B.
The IJ premised his ineligibility determination on the finding that Niang “ha[d] not shown that anything would happen to her because of the action that may be performed against her daughter,” and therefore “ha[d] not made a case for herself in regards to persecution.” (J.A. at 25.) In concluding that Niang had not shown anything would happen to her, the IJ did not address the evidence in the record that Niang would be prevented from protecting her daughter from FGM, an experience that would cause Niang severe mental suffering that she claimed would compound the psychological harm she had already suffered from enduring FGM as a young girl. The IJ also did not address evidence demonstrating the child’s relatives’ readiness to employ “mystical and social means [of making Niang] regret” her resistance to subjecting her daughter to FGM. (J.A. at 106.)
Niang described the Toucouleur ethnic group, to which she belongs, as “very traditional or traditionalist.” (J.A. at 41.) She explained that, for a Toucouleur girl, FGM represents an essential initiation ceremony, and although the government has made the practice illegal, “family ... has more weight than the laws,” and she saw many violations during her time in Senegal. (J.A. at 42.) Niang testified that, as a result, she will have no means of protecting her daughter in Senegal, where she will have “no power” and “wouldn’t have any choice” in whether her daughter was subjected to FGM. (J.A. at 50.)
Niang also supplied a letter from her daughter’s paternal grandparents urging the child’s father, Papa Samba Ane, to bring the child to Senegal for FGM. Niang testified that Ane “agrees with his family” and wants his daughter to undergo FGM. (J.A. at 45.) Niang’s parents also believe that Niang “ha[s] no right to refuse to have the child circumcised,” and that, if she refuses to subject her daughter to FGM, “it will be a shame on them and they will be a target for insults from other members of the society.” (J.A. at 89.)
Niang also asserted that her psychological development was “considerably ham
Finally, I note that, after finding that nothing would happen to Niang as a result of her daughter’s persecution, the IJ reached another conclusion. The IJ found that, “[additionally, there’s no showing that the daughter would have to go back to Senegal,” because the father, Ane, “seemingly [wa]s getting ready to be able to adjust his status through his employment,” and Niang could allow the children to remain with him. (J.A. at 25.) That the child would not have to return to Senegal to live, however, does not resolve the issue of whether the child would be sent to Senegal to undergo FGM. The IJ noted that although Niang feared that Ane would acquiesce and see that his daughter suffered FGM, Ane had not previously made any effort to take the child to Senegal. It is unclear, however, whether the IJ viewed Ane’s past indifference as sufficient to support a finding that there was no clear probability Ane would acquiesce to his parent’s demands if Niang’s opposition were no longer an impediment to sending the child to Senegal.
Moreover, the IJ’s conclusion that the child would not have to return to Senegal ignores Niang’s definitive statement that she would take her children with her to Senegal, where she would be sent if removed. Niang seems to face a Catch-22— either leave her daughter with a father who believes the child should undergo FGM, or take her daughter with her to
Because the IJ assumed that Niang would be unaffected by her daughter’s persecution, the IJ did not consider whether the harm Niang would suffer constituted persecution within the meaning of the INA and its implementing regulations. And, as a result, the IJ did not fully consider whether the harm Niang would suffer was more likely than not to occur. Because the IJ’s findings contradict the record and do not take into account all of the evidence submitted by Niang, and because neither the IJ nor the BIA fully considered whether the type of harm Niang alleges can constitute persecution, the best course of action would be to remand to allow the BIA to address these issues.
II.
In sum, I believe that the majority, by independently establishing a per se rule that psychological harm alone cannot constitute persecution, without considering the BIA’s decision in In re C-Y-Z and without remanding the case for the BIA to address the issue in the first instance, oversteps its bounds and fails to afford appropriate deference to the agency. Accordingly, I respectfully dissent.
. I agree with the majority that we lack jurisdiction to review the BIA's denial of Niang's asylum application as untimely, see INA § 208(a)(3), 8 U.S.C.A. § 1158(a)(3) (West 2005), and that Niang has waived appeal of her Convention Against Torture (CAT) claim and her claim of voluntary departure, see Edwards v. City of Goldsboro,
. The majority opinion correctly states that we review the BIA’s administrative findings of fact under the substantial evidence rule. See 8 U.S.C.A. § 1252(b)(4)(B) (West 2005); INS v. Elias-Zacarias,
. I am unpersuadéd by the Government’s contention that Niang has not demonstrated a clear probability that her daughter’s relatives would subject her to FGM if the child accompanied Niang to Senegal because the Senegalese government has banned the practice, and, as a result of education and outreach programs, FGM is becoming less prevalent in Senegal. The Government concedes that ”[t]he State Department Report of record pro
.Both this court and the BIA have recognized that FGM constitutes persecution within the meaning of the INA and its implementing regulations. See Haoua v. Gonzales, 472 F.3d 227, 231 (4th Cir.2007) (“We have heretofore recognized that FGM constitutes persecution within the meaning of the Act (internal quotation marks and alteration omitted)); In re Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996) (concluding that FGM constitutes persecution within the meaning of the Act). We have previously noted that the practice, which the majority aptly describes as "an extreme form of child abuse ... [,] an insult to human dignity and an affront to any civilized people,” ante at 507 n. 1, is "[o]ften performed under unsanitary conditions with highly rudimentary instruments, ... is extremely painful, permanently disfigures the female genitalia, and exposes the girl or woman to the risk of serious, potentially life-threatening complications,” Haoua, 472 F.3d at 230 n. 5 (internal quotation marks and alteration omitted).
. Placenta previa is a condition in which the placenta develops in the lower uterine segment, in the zone of dilation, so that it completely or partially covers the cervical os (opening). See Dorland's Illustrated Medical Dictionary 1442 (30th ed.2003). Complete placenta previa creates a risk of blood loss, and may become life threatening. See Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 223 & n. 3 (3d Cir.2000).
. It is unclear from the record whether Niang’s first child was also delivered by a Cesarean section.
. It is worth noting that, under the regulations governing adjustment of status applications,
the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service ..., and was inspected upon returning to the United States.
8 C.F.R. § 245.2(a)(4)(ii)(A) (West 2007). Thus, Ane could not freely depart to Senegal while his adjustment of status application was pending.