In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2689
F ATOUMATA K ONE, L ASANNA D IARRA , and
K AMISSA D IARRA ,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of Orders of
the Board of Immigration Appeals.
Nos. A099-607-605, A099-607-606, A099-607-607
A RGUED M ARCH 31, 2010—D ECIDED A UGUST 31, 2010
Before M ANION and W ILLIAMS, Circuit Judges, and
D ARRAH, District Judge.
W ILLIAMS, Circuit Judge. Lead petitioner Fatoumata Kone
(“Kone”), her husband Lasanna Diarra (“Lasanna”),
The Honorable John W. Darrah, United States District Court
for the Northern District of Illinois, Eastern Division, sitting
by designation .
2 No. 09-2689
and their oldest daughter Kamissa Diarra (“Kamissa”) are
natives and citizens of Mali. They entered the United
States on August 18, 2001 and remained in the country
after the expiration of their visas. Kone and Lasanna
then had a second daughter, Mariam, who by virtue of
her birth here is a United States citizen. In 2006, Kone,
as lead petitioner for her family, filed for asylum, with-
holding of removal, and protection under the Conven-
tion Against Torture on the basis that if made to return
to Mali, Mariam would be forced to undergo female
genital mutilation (“FGM”), a common practice in Mali
to which both her mother and sister have already been
subjected. An immigration judge denied the application,
finding the asylum petition untimely and denying other
relief on the grounds that Kone could not make a “deriva-
tive” claim based on a threat of persecution to her daugh-
ter. The Board of Immigration Appeals (“BIA”) affirmed
the denial of relief, and Kone petitioned this court for
review. Because the BIA did not address Kone’s claim
that FGM of her daughter would constitute direct psycho-
logical persecution of her parents, we remand for
further consideration.
I. BACKGROUND
Kone, Lassana, and Kamissa are natives and citizens
of Mali and members of the Bambara ethnic group. Kone
and her family entered the United States on August 18,
2001 on nonimmigrant B2 visas and remained in the
country after they expired, living first in New York and
then Chicago. In November 2004, Kone and Lassana had
No. 09-2689 3
a second daughter, Mariam, born a United States citizen.
On January 5, 2006, Kone, as lead petitioner, filed an
application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”).1
Kone sought asylum based on her fear that if her
family were made to return to Mali, Mariam would be
forced to undergo FGM just as her sister and mother
had. Kone acknowledged that her asylum application
had been filed outside of the one-year deadline (at
that point it had been over four years), but stated that
she had only recently become aware of the fact that
she could apply.2
Kone, Lasanna, and Kamissa were deemed removable
and issued Notices to Appear in Immigration Court.
On July 10, 2007, a merits hearing was held before an
Immigration Judge (“IJ”). At the hearing, Kone testified
to the high likelihood that Mariam would be subjected
to FGM if brought to Mali, where, she said, all female
Bambara tribe members undergo the procedure. Kone’s
testimony regrettably is backed up by State Department
statistics indicating that approximately 95% of all
women in Mali have been subjected to FGM. See U.S.
Department of State, 2009 Human Rights Report: Mali,
http://www.state.gov/g/drl/rls/hrrpt/2009/af/135964.htm
1
The United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, as
implemented by 8 C.F.R. § 208.16(c).
2
Because Kone is the lead petitioner, we refer to her alone
throughout this opinion unless otherwise necessary.
4 No. 09-2689
(last visited August 3, 2010). Kone testified that she
herself underwent FGM at the age of five, and that it had
been performed on her first daughter Kamissa when she
was two years old, without Kone’s knowledge. Kone
explained that a relative snatched Kamissa away while
Kone was not home and performed the procedure
under primitive conditions without anesthesia. She
claimed that while she and her husband oppose FGM,
they would not be able to prevent it from being similarly
performed on Mariam. Kone stated that even if she
and her husband maintained constant vigilance over
Mariam, it was likely that she would still be forcibly
taken from them so that the procedure could be per-
formed. Kone also testified about the emotional trauma
she would feel if FGM were in fact performed on her
daughter against her will.
The IJ found Kone’s testimony to be credible and deter-
mined that it was more likely than not that Mariam
would be forced to undergo FGM if she were to go to
Mali. However, the IJ denied all requested relief in an
oral decision at the close of the hearing. The IJ first
denied Kone’s asylum claim as untimely under Sec-
tion 208(a)(2) of the Immigration and Nationality Act
(“INA”), which provides for a one-year time limit for
asylum applications except for when the alien demon-
strates changed or extraordinary circumstances war-
ranting the delay. 8 U.S.C. § 1158(a); see also 8 C.F.R.
§ 1208.4(a). The IJ found that while Mariam’s birth was
a changed circumstance that excused part of the
delay in applying for asylum, the application was still
untimely because Kone had waited another 14 months
No. 09-2689 5
after the birth before filing. The IJ next denied Kone’s
claim for withholding of removal (for which there is
no analogous time limit), ruling that Kone could not
obtain withholding for herself based on potential hard-
ship to her daughter. Relying on our decisions in Olowo
v. Ashcroft, 368 F.3d 692 (7th Cir. 2004), and Oforji v.
Ashcroft, 354 F.3d 609 (7th Cir. 2003), the IJ concluded
that a petitioner cannot obtain “derivative” relief based
on a fear that a non-petitioner child will undergo FGM.
The IJ denied protection under the CAT for the same
reasons he denied withholding of removal.
Kone appealed to the BIA and made two main argu-
ments. She first argued that if Mariam were to be
subjected to FGM in Mali, the anguish that her parents
would suffer would constitute direct persecution of her
parents under the CAT. Alternatively, Kone advanced
a derivative asylum theory, arguing that while Olowo
and Oforji foreclose derivative asylum based on the
likelihood of FGM to a child in some situations,
those cases are distinguishable because they did not
involve a situation where both parents were in removal
proceedings.
In the BIA’s written ruling denying Kone’s appeal, it
concurred with the IJ’s ruling that Kone’s asylum ap-
plication was untimely for having failed to file it within
a reasonable time of the birth of Mariam. The BIA
also agreed with the IJ’s denial of withholding of re-
moval and protection under the Convention Against
Torture. The BIA cited Olowo and Oforji for the proposi-
tion that parents cannot establish derivative claims
for relief based on potential hardship to their children,
6 No. 09-2689
and rejected Kone’s argument that her situation
was distinguishable. The BIA was silent, however, as to
Kone’s argument that FGM of Mariam against her par-
ents’ will could constitute direct persecution of her parents.
Kone petitioned this court for review of the BIA’s denial
of withholding of removal and protection under the CAT.3
II. ANALYSIS
When, like here, the BIA issues its own written
analysis instead of summarily adopting that of the IJ,
we review the BIA’s decision. Chen v. Holder, 604 F.3d
324, 330 (7th Cir. 2010). We review the agency’s legal
conclusions de novo, Atunnise v. Mukasey, 523 F.3d 830,
835 (7th Cir. 2008), and factual findings for substan-
tial evidence. Huang v. Mukasey, 525 F.3d 559, 564 (7th
Cir. 2008). We will disturb factual findings only if
3
Kone does not appeal the BIA’s determination that her
asylum application was untimely, recognizing that we lack
jurisdiction to review that decision. 8 U.S.C. § 1158(a)(3); see
Ogayonne v. Mukasey, 530 F.3d 514, 519 (7th Cir. 2008). Kone’s
only argument on appeal regarding the asylum portion of her
application is that the agency erred when it did not consider
an “independent claim for asylum” from her daughter
Kamissa. Kone never raised this argument to the agency, and we
cannot entertain it here. 8 U.S.C. § 1252(d)(1); see also Ishitiaq
v. Holder, 578 F.3d 712, 717-18 (7th Cir. 2009). And in any
event, Kamissa has never filed a freestanding application for
asylum; her application was derivative of her mother’s, who
filed as lead petitioner on behalf of her family.
No. 09-2689 7
the evidence compels a conclusion contrary to that of
the BIA. Kedjouti v. Holder, 571 F.3d 718, 721 (7th Cir. 2009).
While our review is deferential, remand is appropriate
when the BIA “overlooks key aspects of an asylum-
seeker’s claim and might reach a different conclusion
after a more complete evaluation of the record.” Chen,
604 F.3d at 330; see also Gonzales v. Thomas, 547 U.S. 183,
186 (2006) (remand to agency is proper course when
additional determination or explanation is necessary);
I.N.S. v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (same).
Remand is proper for additional analysis if the BIA “has
not adequately explained its result and it seems possible
to us that the agency might be compelled to reach the
opposite conclusion depending how it evaluates the
record after remand.” Gomes v. Gonzales, 473 F.3d 746,
752 (7th Cir. 2007).
We conclude that the BIA overlooked a key aspect of
Kone’s claim and that a more complete evaluation is
necessary. See Chen, 604 F.3d at 330. The BIA effectively
only addressed half of Kone’s argument: it concluded
that Kone could not assert a derivative claim based
on potential hardship to her daughter, but failed to
address her assertion that FGM of Mariam would
also constitute direct persecution of her parents.
A. Kone’s Derivative Claim
The BIA rejected Kone’s claim for derivative relief
based on a threat of FGM to her daughter, relying on
8 No. 09-2689
our rulings in Oforji and Olowo.4 In those cases, the peti-
tioners, both Nigerian women who had undergone
FGM, sought asylum and withholding of removal based
on their fear their daughters would be subjected to FGM
as well if brought to that country. In both cases, we
rejected the petitioners’ claims, holding that the parents
could not make a derivative claim for asylum based on
a likelihood of persecution not to themselves, but to
their children. See Olowo, 368 F.3d at 701; Oforji, 354
F.3d at 618. In Oforji, we noted that in contrast to the
cancellation-of-removal provision set forth in INA
§ 240A(b)(1), 8 U.S.C. § 1229a(b)(1), the statutory
scheme for asylum does not permit consideration of
hardship to a petitioner’s children when determining
eligibility. 354 F.3d at 616-17. We ruled that an alien
parent “may not establish a derivative claim for asylum
by pointing to potential hardship to the alien’s United
States citizen child in the event of the alien’s deporta-
tion.” Id. at 618. And a year later in Olowo, we again
concluded that both the asylum and withholding of
removal standards “require an applicant to demonstrate
4
Kone also argues that she and her daughter are entitled
to withholding of removal and protection under the CAT
based on their own past persecution. The government correctly
points out that Kone did not make this argument to the IJ or
the BIA. The IJ found that Kone’s claim was based “solely” on
a fear of future persecution of her daughter, and Kone did not
dispute this in her appeal to the BIA. Kone cannot seek
judicial review of issues she did not raise before the BIA. 8
U.S.C § 1252(d)(1); see also Zeqiri v. Mukasey, 529 F.3d 364, 369-
70 (7th Cir. 2008).
No. 09-2689 9
that she herself will be subject to persecution if removed,
and do not encompass any consideration of persecution
that may be suffered by others—even family mem-
bers—who may be obliged to return with her . . . .” Olowo,
368 F.3d at 701; see also Gumaneh v. Mukasey, 535 F.3d 785,
789 (8th Cir. 2008) (“an applicant may not establish a
derivative claim for withholding of removal based upon
the applicant’s child’s fear of persecution”); Niang v.
Gonzales, 492 F.3d 505, 513 (4th Cir. 2007) (same).
There is, however, a distinction between the situations
in Oforji and Olowo and Kone’s situation here. In both
Oforji and Olowo, only one parent was in removal pro-
ceedings, meaning there was at least the possibility that
the other parent could take care of the child in the
United States. Cf. Olowo, 368 F.3d at 701 (father was
available); Oforji, 354 F.3d at 618 (father may have been
available). Here, both parents are in removal proceedings.
The BIA somewhat cursorily rejected Kone’s attempt
to highlight this distinction, noting that because the
whereabouts of the petitioner’s husband in Oforji
were unknown, it was not clear that the children in
that case could have stayed with their father. The BIA
did not address Olowo, however. On remand, the BIA
should do so, in light of Olowo’s implication that there
may be a claim for constructive deportation when both,
not just one, parent is in proceedings. See Olowo, 368
F.3d at 701 (“[W]hen there is a parent who is available to
care for the daughters in the United States, they are
under no compulsion to leave. Accordingly, the facts here
do not support a claim for derivative asylum.”); see
also Gatimi v. Holder, 606 F.3d 344, 349 (7th Cir. 2010)
10 No. 09-2689
(“Gatimi II”) (noting that in Olowo and Oforji, “the
children had one parent with legal status and so were
not subject to removal.”); Benyamin v. Holder, 579 F.3d
970, 977 (9th Cir. 2009) (remanding to BIA to consider
whether father qualified for derivative asylum based on
threat of FGM to daughter, in case where both parents
were subject to removal).
B. Kone’s Claim of Direct Persecution
In addition to asserting a derivative claim, Kone also
made a separate argument to the BIA: that FGM of
Mariam would constitute direct persecution of her
parents cognizable under the Convention Against Tor-
ture.5 The BIA did not address this argument in its deci-
sion, but should have. Kone’s direct-persecution argu-
ment finds support in recent case law, both in our
circuit and in others.
In Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009)
(“Gatimi I”), a Kenyan man had defected from a
criminal political/religious organization in Kenya and
faced retribution for having done so. He sought asylum
(along with his wife and daughter as derivative appli-
cants) based on a fear of returning to Kenya where
5
It is clear that FGM constitutes persecution under the asylum
and withholding of removal standards, and torture under
the CAT. See Oforji, 354 F.3d at 615 n.2; Nwaokolo v. I.N.S., 314
F.3d 303, 308-09 (7th Cir. 2002) (stating FGM is a “horrifically
brutal procedure”). It is also clear that mental suffering
can qualify as torture. See 8 C.F.R. § 208.18(a)(1).
No. 09-2689 11
he claimed the persecution could continue. Id. at 613-14.
Part of Gatimi’s claim was that his wife would be sub-
jected to FGM if returned to Kenya, because the organ-
ization compelled wives of defectors to undergo the
procedure. Id. We found that this potential harm to
Gatimi’s wife could “constitute persecution of him.” Id.
at 617 (emphasis in original). We noted:
Genital mutilation of one’s wife, unless one hap-
pens to be a supporter of the practice, is a way
to punish one, and so the menace to Mrs. Gatimi
is a legitimate component of Mr. Gatimi’s case. To
send her back to Kenya to face female genital
mutilation would be to enable persecution of him.
Id.; see also Gatimi II, 606 F.3d at 348 (“persecution of
Mrs. Gatimi can constitute persecution of Mr. Gatimi, and so
her fear of persecution is relevant to his (and there-
fore their) claim for asylum.”) (emphasis added). While
not directly analogous to the situation before us—we
see no evidence in this case indicating that Mariam
would be subjected to FGM as a way to “punish” her
family—the Gatimi cases are relevant here because
they address the concept that genital mutilation of a
petitioner’s family member can constitute direct,
as opposed to derivative, persecution of the petitioner.
Kone made this argument on appeal, and the
BIA should consider it.6
6
Both of the Gatimi cases were decided after the BIA issued
its decision in this case.
12 No. 09-2689
Other circuits have also recognized the possibility
that the prospect of FGM of one’s child can constitute
harm to an unwilling parent and similarly remanded to
the BIA for further consideration of the issue. In Kone v.
Holder, 596 F.3d 141, 143 (2d Cir. 2010) (no relation
to petitioner in this case), a woman from Cote d’Ivoire
sought asylum based on, inter alia, the fear that her daugh-
ters would be forcibly subjected to FGM against her
wishes were they to go to that country. The Second
Circuit remanded the case to the BIA, and indicated
that it could consider “whether the mental anguish of a
mother who was herself a victim of genital mutilation
who faces the choice of seeing her daughter suffer
the same fate, or avoiding that outcome by separation
from her child” would qualify as sufficient persecution
of a petitioner so as to warrant a grant of asylum under
8 C.F.R. § 1208.13(b)(1)(iii)(B). Id. at 153. The court recog-
nized, as Kone did in the argument she made to the
BIA here, that such a theory is “distinct from a claim
of derivative asylum.” Id.7
The Sixth Circuit has similarly indicated that a peti-
tioner can potentially qualify for relief in her own right
based on threats of FGM to a child. In Abay v. Ashcroft,
368 F.3d 634, 636 (6th Cir. 2004), an Ethiopian mother
and daughter sought asylum and withholding of
removal based on the fear that the daughter would be
7
Kone made her direct-persecution claim to the BIA for
relief under the CAT, not asylum, but the theory is the
same—that harm to the child can constitute direct persecu-
tion of the parents who are unable to stop it.
No. 09-2689 13
subjected to FGM, as her mother had previously been,
if they were deported to Ethiopia. Surveying previous
BIA decisions, the court found that Abay could demon-
strate persecution based on the harm she would suffer
by “being forced to witness the pain and suffering
of her daughter” if she were subjected to FGM. Id. at
642. The BIA itself has also addressed the possibility.
See Matter of Dibba, No. A73 541 857 (BIA Nov. 23,
2001) (mother’s argument that being forced to allow
FGM of daughter in Gambia would cause her mental suf-
fering was sufficient to reopen case).
In light of the precedent we have discussed above,
Kone may have a viable claim that FGM of Mariam
against her will constitutes direct persecution of her
parents. In light of the BIA’s silence on the theory, it is
“impossible to be confident” that Kone’s claim has
been “fully understood or analyzed.” Chitay-Pirir v. I.N.S.,
169 F.3d 1079, 1081 (7th Cir. 1999). Remand is appropriate
so that the BIA can more fully address Kone’s direct-
persecution claim in light of the case law we have set
forth. See Gonzales, 547 U.S. at 186; Chen, 604 F.3d at 335;
Gomes, 473 F.3d at 752.
III. CONCLUSION
We G RANT the petition for review, V ACATE the BIA’s
decision, and R EMAND for further proceedings con-
sistent with this opinion.
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