PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANCOISE ANATE GOMIS,
Petitioner,
v.
No. 08-1389
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals.
Argued: March 25, 2009
Decided: July 6, 2009
Before NIEMEYER and GREGORY, Circuit Judges, and
Eugene E. SILER, Jr., Senior Circuit Judge of the United
States Court of Appeals for the Sixth Circuit,
sitting by designation.
Petition denied by published opinion. Judge Niemeyer wrote
the opinion, in which Senior Judge Siler joined. Judge Greg-
ory wrote a separate opinion concurring in part and dissenting
in part.
COUNSEL
ARGUED: Kell Enow, ENOW & PATCHA, Silver Spring,
Maryland, for Petitioner. Andrew B. Insenga, UNITED
2 GOMIS v. HOLDER
STATES DEPARTMENT OF JUSTICE, Office of Immigra-
tion Litigation, Washington, D.C., for Respondent. ON
BRIEF: Gregory G. Katsas, Assistant Attorney General, Civil
Division, M. Jocelyn Lopez Wright, Assistant Director,
UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondent.
OPINION
NIEMEYER, Circuit Judge:
Francoise Anate Gomis, a native and citizen of Senegal,
petitions for review of an order of the Board of Immigration
Appeals (BIA) that affirmed the decision of the immigration
judge denying her applications for asylum, withholding of
removal, and relief under the Convention Against Torture.
Gomis contends (1) that even though her asylum application
was not filed within the one-year statutory deadline, the BIA
erred in finding that she had not demonstrated changed or
extraordinary circumstances that excused the delay and (2)
that the BIA’s finding that it is not more likely than not that
Gomis will be subjected to female genital mutilation if
returned to Senegal is not supported by substantial evidence
and thus the BIA’s denial of withholding of removal is mani-
festly contrary to law.
For the reasons that follow, we conclude that we lack juris-
diction to review the BIA’s determination that Gomis did not
meet the changed or extraordinary circumstances exception
and that the BIA’s findings underlying its denial of withhold-
ing of removal are supported by substantial evidence. Accord-
ingly, we deny Gomis’ petition for review.
I
Gomis arrived in the United States on January 30, 2001,
coming to work as a nonimmigrant domestic servant for an
GOMIS v. HOLDER 3
employee of the International Monetary Fund. She was autho-
rized to remain in the United States until April 30, 2003. Over
two years later, in June 2005, Gomis filed an application for
asylum in which she claimed that she fled Senegal because
her family wanted her to undergo female genital mutilation
(FGM or circumcision) and participate in an arranged mar-
riage. After the Department of Homeland Security refused to
grant Gomis’ application, it issued a notice to appear on July
27, 2005, for removal proceedings and referred the matter to
an immigration judge. At the hearing before the immigration
judge, Gomis admitted removability and renewed her applica-
tion for asylum, withholding of removal, and protection under
the U.N. Convention Against Torture.
At the hearing before the immigration judge, Gomis testi-
fied that she was born in 1978 in Dakar, Senegal, and lived
with her family in the outskirts of Dakar. She is single and
does not have any children. Gomis and her family are mem-
bers of the Djola ethnic group, which still practices FGM, and
her father, who is a businessman, has two wives, both of
whom are circumcised.
Relating her circumstances, Gomis testified that in June
1999, her parents took her from school so that she could
undergo FGM and become married to a man in his sixties. In
exchange for this marriage commitment, her parents accepted
gifts from the man. Because Gomis desired to finish school
and retain her independence, she went to the police to report
her parents’ intentions, but the police told her to return home
and try to resolve the problem. When Gomis informed her
uncle, who lives in France, of the situation, he tried to per-
suade her father, unsuccessfully, to allow Gomis to return to
school. On her uncle’s advice, Gomis obtained a passport and
left home in November 2000, initially hiding at a friend’s
house in Senegal. After Gomis obtained a visa at the embassy,
one of her uncle’s friends drove her to the airport to leave
Senegal. Once in the United States, Gomis worked for an
employee of the International Monetary Fund for three years.
4 GOMIS v. HOLDER
While in the United States, Gomis learned that her parents
had forced her 15-year-old sister to undergo FGM before mar-
riage and that when Gomis’ brother filed a complaint with the
police, he was told to go home.
Gomis gave her opinion that 80 to 100% of the Djola
women have undergone FGM and have been forced to marry
older men. According to Gomis, when a woman’s parents
were ready to have her undergo FGM, they would come to her
room with other family members when she was asleep and
take her away. She noted that some families have FGM per-
formed on their daughters when they are young, while other
families wait until just before their daughters’ marriage.
She acknowledged, however, that the Senegalese govern-
ment is against the practice. Yet, families continue the prac-
tice of performing FGM because of tradition. Gomis stated
that because her family wanted her to undergo FGM, there
was nowhere in Senegal she could live without fear of being
subjected to it. She stated that her family is widely dispersed
throughout Senegal and that the country is small, where
everyone knows each other.*
Gomis submitted a letter from her sister dated September
12, 2006, stating that she underwent FGM in February 2005
and that as a result she became infected and still suffers per-
sistent pain. According to her sister, Gomis’ father is still
angry with Gomis and wants her to return home.
In addition, Gomis presented other letters and documents
confirming some of her testimony. She submitted her sister’s
medical file documenting her sister’s visit to the doctor with
medical complications after the circumcision; an attestation
from her uncle stating that he helped Gomis leave Senegal to
*The population of Senegal is over 12 million people with more than
1 million living in Dakar proper and some 2.5 million living in the Dakar
metropolitan area.
GOMIS v. HOLDER 5
go to the United States; an attestation from the person who
hired Gomis as a domestic servant, claiming that Gomis’
uncle arranged for the employment; a letter sent to Gomis
from her aunt in Senegal, who stated that her fiance provided
a dowry and that all the other women her age have been cir-
cumcised; a letter from her mother telling her that she cannot
avoid customs, that her fiance is losing patience with her, and
that the entire village is laughing at her family; a letter from
her father ordering her to return home so that she can be cir-
cumcised and marry her fiance; and finally a letter from her
uncle stating that he had seen her parents, and they had not
changed their minds and continue to want Gomis to undergo
the procedure.
The Department of State’s report on FGM in Senegal, dated
June 1, 2001, which was entered into the record, states that
FGM is most common among Muslim groups in the eastern
part of the country, but that most Senegalese women have not
undergone the procedure and that it is becoming less common
due to urbanization and education. The report refers to a study
published in 1988, which found that only 20% of Senegalese
women have undergone the procedure and which noted that
other estimates place the figure between 5 and 20%. The
report related that FGM is hardly practiced in populated urban
areas. Regarding Gomis’ ethnic group, the Djolas, the report
states that rural elements of the Djola group practice FGM as
a puberty initiation rite. For all of Senegal, 90% of the women
who had undergone the procedure were between two and five
years old at the time of the procedure, but for others it was
part of a puberty initiation rite.
In 1998, Senegal’s president called for the eradication of
FGM, and since 1999, there have been programs and seminars
to educate the public about it. Many rural villages have issued
declarations against the practice. In January 1999, Senegal
enacted a law criminalizing FGM with a sentence of one to
five years’ imprisonment. The report added that there had
been no convictions under this law, and, because many of
6 GOMIS v. HOLDER
those circumcised were very young, they were not in a posi-
tion to report violations.
Gomis also included in the record a State Department
report on human rights conditions in Senegal, issued in March
2006, which stated that FGM was practiced in thousands of
rural villages. It estimated that nearly 100% of the women in
the northern Fouta region were FGM victims and that nearly
60-70% of the women in the south and southeast were. The
report confirmed that FGM is a criminal offense, carrying a
sentence of six months to five years’ imprisonment, and stated
that there have been criminal prosecutions under the law. In
addition, the report noted that 140 villages have renounced
FGM but nonetheless, many people were still practicing it.
In denying Gomis relief, the immigration judge found that
Gomis was "genuinely credible" but that Gomis’ opinion tes-
timony regarding the prevalence of FGM, both in general and
within her ethnic group, was at odds with the State Depart-
ment reports. The judge allowed that this could be the result
of Gomis’ lack of knowledge of the actual facts, "rather than
an effort to deceive."
The immigration judge also found Gomis’ asylum applica-
tion untimely because it was filed more than one year after
she entered the United States and Gomis did not establish
changed or extraordinary circumstances warranting an exten-
sion of the filing period. Gomis’ evidence about her sister’s
circumcision, on which Gomis relied to prove changed cir-
cumstances, merely confirmed the condition Gomis claimed
existed when she left Senegal.
The immigration judge further found that Gomis did not
meet her burden of establishing that it was more likely than
not that she would face FGM if she returned to Senegal. The
judge allowed that there was "some small chance, perhaps
what even amount[s] to a reasonable possibility" that Gomis
will become a victim of the practice, but not a more-likely-
GOMIS v. HOLDER 7
than-not chance. The judge found that most Senegalese
women have not undergone the procedure; that the practice is
becoming less common in Senegal; and that it is rarely prac-
ticed in urban areas. In addition, the judge found that the
"mostly rural elements of the Djola" groups who practice
FGM do so "as a puberty initiation rite," but Gomis was well
past the age of puberty, and she "lived in Dakar, a very large
city." The judge noted that FGM is a criminal offense in Sen-
egal and that the government has begun prosecuting people
for the offense. Moreover, because Gomis was 28 years old
and "relatively well-educated," she "would be better able to
relocate in a safe place in Senegal than [would] a younger or
less educated" woman. Accordingly, the judge denied Gomis’
petition to withhold removal, stating that "based on a totality
of the record of evidence in the case I simply cannot conclude
that [Gomis] has met her burden of proof of establishing that
it is more likely than not she would be subjected to this horri-
ble practice."
With respect to relief under the Convention Against Tor-
ture, the immigration judge found that even if FGM consti-
tuted torture, it was not more likely than not that Gomis will
be subjected to it. And moreover, any risk that Gomis faces
from her family is not with the consent or acquiescence of the
Senegalese government.
The BIA affirmed the immigration judge’s determinations.
It agreed that Gomis "failed to meet her burden of establish-
ing that it is objectively more likely than not that she would
be subjected to [FGM] if returned to Senegal." The BIA found
that FGM is becoming less common in Senegal and is rare in
large urban areas. In addition, it found that FGM is criminal-
ized by the government of Senegal; that there are prosecutions
under the law; and that the government has collaborated with
groups to educate the public on the inherent dangers of the
practice. The BIA also found that 90% of the women who
undergo FGM in Senegal are between the ages of two and
five. Because Gomis was 28 years old, she might have a sub-
8 GOMIS v. HOLDER
jective fear of undergoing FGM upon returning to Senegal,
but the BIA found that the record does not objectively support
that it is more likely than not that she would have to undergo
the procedure. The BIA thus upheld the denial of withholding
of removal. And finally, the BIA upheld the denial of relief
under the Convention Against Torture.
From the BIA’s order, Gomis petitions this court for
review.
II
Gomis contends first that even though she did not file her
application for asylum within one year of the date of her
arrival in the United States, as required by 8 U.S.C.
§ 1158(a)(2)(B), "she meets both the extraordinary circum-
stances and changed circumstances exception[s]" of 8 U.S.C.
§ 1158(a)(2)(D). Gomis claims that she did not file within one
year because she believed that with the passage of criminal
laws prohibiting FGM in Senegal, the practice would change.
She argues that when her sister had the procedure performed
on her in 2005 and the police failed to respond, she realized
she was in danger of FGM if she returned to Senegal.
The immigration judge found that the FGM performed on
Gomis’ sister in February 2005 did not constitute either
extraordinary or changed circumstances under 8 U.S.C.
§ 1158(a)(2)(D) because the threat of FGM was the very rea-
son Gomis claims to have left Senegal in 2001, and the BIA
"[found] no error in the Immigration Judge’s decision for the
reasons stated therein."
An alien applying for asylum must show "by clear and con-
vincing evidence that the application has been filed within 1
year after the date of the alien’s arrival in the United States."
8 U.S.C. § 1158(a)(2)(B). An asylum application may be con-
sidered after one year "if the alien demonstrates to the satis-
faction of the Attorney General either the existence of
GOMIS v. HOLDER 9
changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application within the period speci-
fied." Id. § 1158(a)(2)(D). But 8 U.S.C. § 1158(a)(3) provides
that "[n]o court shall have jurisdiction to review any determi-
nation of the Attorney General under paragraph (2)," which
includes both the Attorney General’s decision whether an
alien has complied with the one-year time limit and whether
there are changed or extraordinary circumstances excusing the
delay. Id. § 1158(a)(3) (emphasis added).
Thus, under the express language of § 1158(a)(3), we lack
jurisdiction to review the immigration judge’s determination.
See Zaidi v. Ashcroft, 377 F.3d 678, 680-81 (7th Cir. 2004)
(holding that the jurisdiction-stripping provision of 8 U.S.C.
§ 1158(a)(3) precludes review of the immigration judge’s
determination that the alien had not demonstrated "changed
circumstances" or "extraordinary circumstances" under 8
U.S.C. § 1158(a)(2)(D) and collecting cases).
Although 8 U.S.C. § 1252(a)(2)(D), added by the REAL ID
Act of 2005, provides that "[n]othing . . . in any other provi-
sion of this chapter . . . which limits or eliminates judicial
review, shall be construed as precluding review of constitu-
tional claims or questions of law," the question whether the
changed or extraordinary circumstances exception applies to
excuse an alien’s delay in filing her asylum application is a
discretionary determination based on factual circumstances.
Therefore, absent a colorable constitutional claim or question
of law, our review of the issue is not authorized by
§ 1252(a)(2)(D). Nearly every circuit that has analyzed
§ 1158(a)(3) in light of § 1252(a)(2)(D) has held that even
after the REAL ID Act, the federal courts continue to lack
jurisdiction over the determination whether the alien demon-
strated changed or extraordinary circumstances that would
excuse an untimely filing. See, e.g., Jarbough v. Attorney
Gen., 483 F.3d 184, 188-90 (3d Cir. 2007); Ferry v. Gonzales,
457 F.3d 1117, 1130 (10th Cir. 2006); Almuhtaseb v. Gon-
10 GOMIS v. HOLDER
zales, 453 F.3d 743, 747-48 (6th Cir. 2006); Chen v. U.S.
Dep’t of Justice, 434 F.3d 144, 154-55 (2d Cir. 2006); Mehilli
v. Gonzales, 433 F.3d 86, 92-94 (1st Cir. 2005); Ignatova v.
Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005); Chacon-
Botero v. U.S. Attorney Gen., 427 F.3d 954, 956-57 (11th Cir.
2005) (per curiam); Vasile v. Gonzales, 417 F.3d 766, 768-69
(7th Cir. 2005). But see Ramadan v. Gonzales, 479 F.3d 646,
649-54 (9th Cir. 2007) (per curiam) (finding jurisdiction to
review whether an alien has demonstrated "changed circum-
stances" to excuse a late asylum application, characterizing
the issue as a mixed question of law and fact).
We join the majority of courts who have reached this issue
and hold that we lack jurisdiction to review the immigration
judge’s discretionary determination, as affirmed by the BIA,
that Gomis had not demonstrated changed or extraordinary
circumstances to excuse her untimely filing.
III
Gomis also contends that the BIA’s finding that it is not
more likely than not that Gomis will be subjected to FGM if
she is returned to Senegal "is speculative and not based on the
substantial evidence in the record." She argues that there "is
clear evidence in the record that she will be excised if she
were to return to Senegal" and therefore that the BIA’s denial
of withholding of removal is manifestly contrary to law.
Withholding of removal is available under 8 U.S.C.
§ 1231(b)(3) if the alien shows that it is more likely than not
that her life or freedom would be threatened in the country of
removal because of her "race, religion, nationality, member-
ship in a particular social group, or political opinion." 8
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2); see also
Haoua v. Gonzales, 472 F.3d 227, 232 (4th Cir. 2007). The
alien bears the burden of demonstrating that her life or free-
dom would be threatened on account of a protected ground.
See 8 C.F.R. § 208.16(b)(2). Because withholding of removal
GOMIS v. HOLDER 11
is mandatory if the alien meets the standard of proof, see INS
v. Stevic, 467 U.S. 407, 426, 429-30 (1984); Camara v. Ash-
croft, 378 F.3d 361, 367 (4th Cir. 2004), the alien must meet
a higher standard for withholding of removal than for asylum.
See Camara, 378 F.3d at 367.
On review, we afford the BIA’s determination of eligibility
for withholding of removal a high degree of deference. In
fact, "a decision that an alien is not eligible for admission to
the United States is conclusive unless manifestly contrary to
law." 8 U.S.C. § 1252(b)(4)(C). We review the administrative
findings of fact under the substantial evidence standard, see
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and these
"findings of fact are conclusive unless any reasonable adjudi-
cator would be compelled to conclude to the contrary." 8
U.S.C. § 1252(b)(4)(B); see Gandziami-Mickhou v. Gonzales,
445 F.3d 351, 354 (4th Cir. 2006) ("[T]he substantial evi-
dence test for review of the BIA’s conclusions mandates affir-
mance if the evidence is not ‘so compelling that no reasonable
factfinder could’ agree with the BIA’s factual conclusions."
(quoting Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th
Cir. 1992))). Even "[t]he possibility of drawing two inconsis-
tent conclusions from the evidence does not prevent an
administrative agency’s finding from being supported by sub-
stantial evidence." Gonahasa v. INS, 181 F.3d 538, 541 (4th
Cir. 1999) (quoting Consolo v. Fed. Maritime Comm’n, 383
U.S. 607, 620 (1966)) (internal quotation marks omitted).
Where the BIA adopts and supplements the immigration
judge’s decision, "the factual findings and reasoning con-
tained in both decisions are subject to judicial review." Anim
v. Mukasey, 535 F.3d 243, 252 (4th Cir. 2008) (quoting Niang
v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007)) (internal
quotation marks omitted).
The immigration judge denied Gomis’ application for with-
holding of removal, finding that "there is some small chance,
perhaps what even amounts to a reasonable possibility, given
12 GOMIS v. HOLDER
her parents[’] interest and desire in having her undergo FGM,
that she would be subjected to this practice," but that "it is not
. . . anything close to a more likely than not chance." (Empha-
sis added). The judge detailed the evidence in the record that
supported his finding. On appeal, the BIA likewise deter-
mined that Gomis failed to demonstrate a clear probability
that she would be forced to undergo FGM and found no clear
error in the immigration judge’s factual findings. The BIA
stated that "while people continue to practice FGM in Senegal
in the rural areas, the practice of FGM is growing less com-
mon and is rare in large urban areas, and the government of
Senegal has enacted laws criminalizing the practice." It noted
that "[t]he record reflects that the government has prosecuted
those caught engaging in the practice of FGM and has fought
to end the practice by collaborating with other groups to edu-
cate people about the inherent dangers," emphasizing that
"140 villages renounced the use of FGM." "Further, the
record reflects that FGM is hardly practiced in the most heav-
ily populated urban areas such as that where respondent is
from and that 90 percent of the females who undergo FGM
are between 2 and 5 years of age." Thus, the BIA concluded:
"we acknowledge that the 28-year-old respondent may have
a subjectively genuine fear of FGM if she is returned to Sene-
gal; however, we agree that she has failed to meet her burden
of establishing that it is objectively more likely than not that
she would be subjected to the procedure if returned to Sene-
gal."
Because substantial evidence supports the immigration
judge and BIA’s findings, we affirm the denial of Gomis’
application for withholding of removal because a reasonable
adjudicator would not be compelled to conclude to the con-
trary. See 8 U.S.C. § 1252(b)(4)(B). The record shows that the
incidence of FGM in Senegal is low and that the practice
hardly occurs in urban areas, such as Dakar. Further, most
women have not been forced to undergo FGM, and the inci-
dence of FGM is decreasing. Gomis, as an adult, is even less
likely to be forced to undergo FGM because 90% of the
GOMIS v. HOLDER 13
women who undergo the procedure are between two and five
years old at the time of the procedure. In addition, both prac-
ticing FGM and ordering FGM to be carried out on a third
party are crimes, and prosecutors now bring criminal charges
against perpetrators. Gomis was 29 years old when the BIA
dismissed her appeal, and her family lives in Dakar. She is
relatively well educated, especially in a country where the
adult illiteracy rate approaches 40%, having had 12 years of
schooling. The weight of the record evidence, including her
age, her education, and the decreased incidence of FGM in
Senegal, specifically in Dakar, supports the immigration
judge and BIA’s finding that it is not more likely than not that
Gomis will face persecution.
Although there is evidence in the record that tends to sup-
port Gomis’ claim that if she returns to Senegal, she will face
a risk of FGM, we do not find that "any reasonable adjudica-
tor would be compelled to conclude" that she would, more
likely than not, be subjected to FGM. See 8 U.S.C.
§ 1252(b)(4)(B). The agency’s finding is supported by sub-
stantial evidence, and even if this court would be inclined to
decide differently in the first instance, it must affirm under the
deferential standard of review. See Niang, 492 F.3d at 511
("[W]here the ‘record . . . plausibly could support two results:
the one the IJ chose and the one [the petitioner] advances,’
reversal is only appropriate where the court ‘find[s] that the
evidence not only supports [the opposite] conclusion, but
compels it.’" (quoting Balogun v. Ashcroft, 374 F.3d 492 (7th
Cir. 2004) (alterations in original)); Gonahasa, 181 F.3d at
541 ("[T]he possibility of drawing two inconsistent conclu-
sions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evi-
dence." (alteration in original) (citation and internal quotation
marks omitted)).
Gomis argues that this court’s decision in Haoua v. Gon-
zales, 472 F.3d 227 (4th Cir. 2007), entitles her to relief. In
Haoua, the alien, a native and citizen of Niger, petitioned for
14 GOMIS v. HOLDER
review of the BIA’s affirmance of the immigration judge’s
denial of her application for asylum, withholding of removal,
and relief under the Convention Against Torture. While the
alien, Mahaman Haoua, was living in the United States, her
parents arranged for her to marry the elderly chieftain of a
neighboring village, accepted a large dowry as consideration
for the wedding promise, and conducted the wedding in her
absence. Haoua, 472 F.3d at 229-30. In accordance with the
customs of the ethnic group of which Haoua was a member,
her parents planned on subjecting her to FGM before she
joined her husband’s household. Id. The evidence adduced at
Haoua’s hearing showed that one in five Nigerian women
undergo FGM and that certain ethnic groups still practice
FGM despite a new law criminalizing it. Id. at 230. Haoua
testified that her ethnic group continues to practice FGM,
requiring the procedure be performed before a woman mar-
ries, and that the Nigerian government’s efforts to suppress
FGM have been ineffective in rural Nigeria, where her family
resides. Id. The immigration judge found that Haoua had "at
least a 10 percent chance" of undergoing FGM if she returned
to her family in Niger. Id. The immigration judge also found,
however, that Haoua could relocate within Niger, concluding
that her "reasonably available internal relocation alternative
overcomes the 10 percent fear of FGM at the hands of her
family." Id. at 231. On that basis, the immigration judge
denied Haoua’s application for asylum, withholding of
removal, and relief under the Convention Against Torture. Id.
The BIA affirmed the immigration judge without opinion.
On appeal, we held that "the 10% finding was not sup-
ported by substantial evidence," id. at 232, noting that the
10% finding "was necessarily premised on speculation and
conjecture, in that there was no evidentiary basis for it." Id.
We placed considerable importance on the fact that "the
Attorney General conceded this very point during oral argu-
ment, acknowledging that, contrary to the [immigration
judge’s] finding, if [Haoua] returned to her family, her likeli-
hood of suffering FGM would approach 100%." Id. Even
GOMIS v. HOLDER 15
though the immigration judge had found that Haoua could
relocate in Niger to avoid FGM, which was an alternative
basis for denying her application for asylum, "the [immigra-
tion judge]’s finding regarding relocation was specifically
predicated on the 10% finding" inasmuch as he found that
Haoua’s "reasonably available internal relocation alternative
overcomes the 10 percent fear of FGM at the hands of her
family." Id. (first emphasis added). We found it problematic
that the immigration judge did not consider whether Haoua’s
relocation alternative could overcome a risk of FGM that was
greater than 10%, in light of both the immigration judge’s
finding that she had "at least a 10 percent chance" of under-
going FGM if she returned to Niger and the government’s
concession on appeal that the risk approached 100%. Id. at
232-33. Accordingly, we vacated the immigration judge’s
order denying her applications for asylum and withholding of
removal and remanded the case to the BIA for further pro-
ceedings. Id. at 233.
Although there are factual similarities between Haoua and
the case before us, the case before us is distinguishable inas-
much as there is substantial evidence to support the agency’s
finding that it is not more likely than not that Gomis will be
subjected to FGM. In Haoua, we held that the 10% finding,
on which the immigration judge based his conclusion, was
speculative and not based on substantial evidence in the
record, particularly in light of the government’s concession at
oral argument that her risk approached 100%. Here, the immi-
gration judge’s findings that there is "some small chance" that
she will undergo FGM, but that "it is not . . . anything close
to a more likely than not chance," findings which were
affirmed by the BIA, are supported by substantial evidence in
the record. This finding, quite unlike the 10% finding, is not
mere speculation or conjecture. As discussed above, the evi-
dence in this record shows that the incidence of FGM in Sene-
gal is low; that 90% of the victims of FGM in Senegal are
between two and five years of age at the time of the proce-
dure; that FGM is hardly practiced in urban areas like Dakar;
16 GOMIS v. HOLDER
and that the criminal law forbidding FGM is enforced. By
contrast, Gomis is an adult, she is relatively well educated in
light of her 12 years of schooling, and her family lives in
Dakar.
Because the BIA’s determination in this case is not mani-
festly contrary to law and its finding that there is not a more-
likely-than-not chance that Gomis will be subjected to FGM
is supported by substantial evidence, we affirm its decision to
deny Gomis’ application for withholding of removal.
Having rejected Gomis’ arguments, we deny her petition
for review and affirm the BIA’s order.
PETITION DENIED
GREGORY, Circuit Judge, concurring in part and dissenting
in part:
Although the majority fairly characterized the facts in this
case, it errs in attempting to distinguish an indistinguishable
case: Haoua v. Gonzales, 472 F.3d 227 (4th Cir. 2007). In
Haoua, this Court found that substantial evidence did not sup-
port the IJ’s and the BIA’s finding that if petitioner were sent
back to her country she would have a ten percent likelihood
of facing FGM. Like Gomis, the petitioner in Haoua received
great pressure from her family to marry a man who had paid
a dowry for her and expected her to be circumcised. As in the
case at bar, Haoua’s future husband was growing impatient
waiting for her return. Haoua, like Gomis, was an adult
woman who was well past puberty. In fact, Haoua, at forty
years of age, was substantially older than Gomis. The only
distinguishable fact in Haoua was that the Attorney General
conceded at oral argument that if returned to her country, the
likelihood of the petitioner suffering FGM would approach
100%. Although there is no such concession here, Gomis
presents a mountain of evidence that clearly demonstrates that
the likelihood of her being forced to undergo FGM is cer-
GOMIS v. HOLDER 17
tainly 100%. Unfortunately, the majority repeats the errone-
ous analysis of the IJ and BIA in denying Gomis’s petition for
withholding of removal. I respectfully dissent from this por-
tion of the opinion, but concur in the majority’s judgment as
to the remaining issues.
I.
Like the IJ and the BIA before it, the majority incorrectly
focuses on general statistics without applying the relevant
information specific to Gomis’s situation.1 While the State
Department’s report finds that only 20% of Senegalese
women have undergone FGM and that 90% of the women
who had undergone the procedure were between the ages of
two and five, this does not contradict Gomis’s testimony that
80% to 100% of women in her specific ethnic group have
undergone FGM either as a puberty rite or just before they
were married. As the majority points out, Senegal has a popu-
lation of over 12 million people.2 If we estimate that half of
1
We would be remiss if we discussed in distant legalese the underlying
act, which can only be fully appreciated in plain language:
Female genital mutilation, commonly called FGM, is the designa-
tion generally given to a class of surgical procedures involving
the removal of some or all of the external genitalia performed pri-
marily on girls and young women in Africa and Asia. Often per-
formed under unsanitary conditions with highly rudimentary
instruments, FGM is extremely painful, permanently disfigures
the female genitalia, [and] exposes the girl or woman to the risk
of serious, potentially life-threatening complications, including
bleeding, infection, urine retention, stress, shock, psychological
trauma, and damage to the urethra and anus. FGM can result in
the permanent loss of genital sensation in the victim and can
adversely affect sexual function.
Haoua, 472 F.3d at 228 n.5 (internal citation and quotations omitted).
Where there is such a threat of permanent harm—a harm that also includes
Gomis’s real fear of exposure to HIV/AIDS—there is no room for error
or speculation.
2
The population is currently closer to 14 million, yet for the purpose of
this dissent I will use the figures asserted by the majority, which likely
refer to the period of Gomis’s petition. See https://www.cia.gov/library/
publications/the-world-factbook/geos/sg.html (last visited May 22, 2009).
18 GOMIS v. HOLDER
the population is female, then at least 1.2 million women have
undergone FGM in Senegal and 120,000 of those women
were over the age of five when they underwent the procedure.
Senegal is made up of a wide variety of ethnic groups.
Gomis’s ethnic group is one of the smaller ethnic groups,3
which makes her testimony—that a large percentage of a
small percentage of the population practices circumci-
sion—even more compatible with the State Department’s
report. The IJ found Gomis to be credible but discredited her
testimony because of a nonexistent conflict between her stated
percentages and those in the State Department’s report.
The majority seems to accept the IJ’s and the BIA’s asser-
tion that Gomis’s age will save her from circumcision, despite
the fact that her family sent her many letters while she was in
her twenties indicating that they continued to insist that she be
circumcised. It is clear that Gomis’s age will provide no pro-
tection. Further, the logic that her urban upbringing will pro-
tect her is also fallacious. Considering that her ethnic group
is largely from rural areas, her family likely adheres to deep-
rooted cultural practices that exist outside of her immediate
family’s urban location.
The majority emphasizes that "[t]he BIA stated that ‘while
people continue to practice FGM in Senegal in rural areas, the
practice of FGM is growing less common and is rare in large
urban areas, and the government of Senegal has enacted laws
criminalizing the practice.’" (Maj. Op. 12.) Yet, the IJ, who
found Gomis credible, heard testimony that both Gomis and
her brother attempted to report her parents to the authorities
for their practice of FGM, and their urban area police told
them that it was beyond their jurisdiction, as FGM is a family
affair. This testimony is not surprising. The State Depart-
ment’s report, which the IJ relied upon, stated that although
Senegal banned FGM in 1999, since the passage of the law
3
Gomis’s ethnic group represents only 3.7% of the population of Sene-
gal. (Id.)
GOMIS v. HOLDER 19
there have been no convictions. The report provides that "al-
though the government has been active in seeking to eradicate
the practice, we are unaware of any protection in place that
might help a woman who wished to avoid it." (J.A. 225.)
Additionally, the report mentions that a family was arrested
for forcing a five-year-old child to undergo FGM; however,
"the cases were not pursued and no convictions resulted"
because of an "emotional public outcry" against the criminal-
ization of such practices. (Id.)
It was unreasonable for the IJ to rely on the portion of the
country report that says that FGM is outlawed in a country
and ignore the other evidence from the report, and elsewhere,
that the country in question is not enforcing such laws. See
Agbor v. Gonzales, 487 F.3d 499, 504 (7th Cir. 2007) (finding
that despite the fact that Cameroon officially opposed FGM
and publicly endorsed the efforts of NGO to end the practice,
the BIA could not "simply seize on a few ‘flowery bromides’
of governmental concern over human rights violations when
the remainder of the report describes incidents of persecution
consistent with a petitioner’s claim." (internal citation omit-
ted)). Gomis has put forth a substantial amount of evidence
that the Senegalese police will not help protect her from FGM
despite the illegality of the practice in Senegal. Therefore, the
record before this Court indicates not only that Gomis will
more likely than not be forcibly circumcised, but also that she
will have little recourse or hope of bringing her assailants to
justice.
Next, although the majority notes that Gomis offered a let-
ter from her father, the majority appears to miss the grave cir-
cumstances she will face should she return to Senegal. The
certainty of her persecution is made clear in her father’s letter
dated September 20, 2006, where he wrote:
Francoise, I will advise you [in] this last letter very
seriously. . . . I am ashamed and humiliated because
of what you did to me an [sic] the entire Gomis fam-
20 GOMIS v. HOLDER
ily. You know the gravity on [sic] what you’ve
caused. I guarantee you that you’ll not get from this
situation. I think all means will be necessary to bring
you back in Senegal, and I mean it. You’ll be cir-
cumcised and sent into marriage before my death. I
will never forgive you, if you don’t return to Dakar
for the circumcision.
(J.A. 98.) It is difficult to understand how the majority can
essentially nullify the unequivocal language in her father’s
letter. This is a rare case where we need not speculate on per-
centages. Her father clearly states, "I guarantee you that you’ll
not get from this situation. . . . You’ll be circumcised and sent
into marriage before my death." Therefore, if this Court found
that the likelihood of Haoua suffering FGM if returned to her
home country "would approach 100%," Haoua, 472 F.3d at
232 (emphasis added), then the likelihood that Gomis will be
circumcised if returned to Senegal is 100%.
The IJ found Gomis credible, which means that her testi-
mony regarding the practices of her specific ethnic group
should have been properly considered, along with the abun-
dance of evidence from her family that she will be circum-
cised upon her return. Only by reading the State Department’s
report generally, and isolating Gomis’s age and urban
upbringing in order to apply them blindly to the statistics
presented, can one possibly conclude that Gomis is unlikely
to undergo FGM. To deny her withholding of removal and
send her back to Senegal, to virtually certain circumcision,
would be a great miscarriage of justice. If we choose to ignore
the blatant evidence before us of her specific situation by
shielding our eyes with general statistics, then we will be
sending her to a torturous future of which I shudder to imag-
ine. Thus, I dissent.