FILED
NOT FOR PUBLICATION MAR 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
OMOYEMI OMOSALEWA No. 07-70662
ODESANYA,
Agency No. A079-274-282
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 18, 2011
Pasadena, California
Before: KLEINFELD and GRABER, Circuit Judges, and ZILLY,** Senior
District Judge.
The government initiated removal proceedings against Petitioner Omoyemi
Omosalewa Odesanya after she overstayed her visitor visa without authorization.
She conceded removability but applied for asylum, withholding of removal, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
protection under the Convention Against Torture ("CAT"). The BIA denied all
forms of relief. We review the BIA’s rulings of law de novo and its findings of
fact for substantial evidence. Cortez-Pineda v. Holder, 610 F.3d 1118, 1121 (9th
Cir. 2010).
1. On the asylum claim, Petitioner suffered past persecution in the form of
efforts to force her to undergo female genital mutilation (FGM), and she has a
well-founded fear of future persecution on the same ground. FGM qualifies as a
form of persecution. Mohammed v. Gonzales, 400 F.3d 785, 794–95 (9th Cir.
2005). The record compels a finding that the Nigerian government could not or
would not control the attempts by Petitioner’s in-laws to mutilate her forcibly in
the past and that she faces a reasonable possibility of their future efforts to mutilate
her. Violence inflicted by family members can establish eligibility for asylum in
this circumstance. See Faruk v. Ashcroft, 378 F.3d 940, 943 (9th Cir. 2004) ("[I]f
the government is unable or unwilling to control persecution, it matters not who
inflicts it."). The BIA’s conclusion that the government met its burden to prove
that internal relocation within Nigeria would be "reasonable" with respect to the
FGM claim is not supported by substantial evidence in view of the in-laws’
relentless pursuit of Petitioner wherever she has gone. See 8 C.F.R.
§ 1208.13(b)(3) (providing that the government bears the burden of rebutting a
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presumption that relocation is unreasonable when an asylum seeker proves past
persecution, and requiring adjudicators to consider "all the circumstances of the
case"). We therefore grant the petition and remand to the BIA for the Attorney
General to exercise his discretion under 8 U.S.C. § 1158(b) whether to grant
Petitioner asylum.
2. Petitioner also suffered past persecution on account of her Christian
religion. But the BIA’s finding that internal relocation would be "reasonable"
protection against this form of future persecution is supported by substantial
evidence.
3. With respect to withholding of removal, the BIA improperly refused to
consider the evidence of abuse inflicted by Petitioner’s in-laws. See Faruk, 378
F.3d at 943 (holding that violence inflicted by family members can establish
eligibility for relief). We therefore grant the petition on this claim and remand to
the BIA for reconsideration under the proper legal standard.
4. Substantial evidence supports the denial of CAT relief. The record does
not compel a conclusion that Petitioner more likely than not would face torture if
returned to Nigeria.
GRANTED in part; DENIED in part; REMANDED. Petitioner shall be
awarded costs on appeal.
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