Niang v. Gonzales

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

MAME FATOU NIANG, 
Petitioner,
v.  No. 06-1470
ALBERTO R. GONZALES,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals.
(A97-638-292)

Argued: March 14, 2007

Decided: June 12, 2007

Before NIEMEYER and WILLIAMS, Circuit Judges, and T. S.
ELLIS, III, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.

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.

COUNSEL

ARGUED: Peter Nyoh, ENOW & PATCHA, Silver Spring, Mary-
land, for Petitioner. Kristin Kay Edison, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. ON BRIEF: Kell Enow, ENOW
& PATCHA, Silver Spring, Maryland, for Petitioner. Peter D. Keis-
2 NIANG v. GONZALES
ler, 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

ELLIS, Senior District Judge:

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 sub-
jected to female genital mutilation ("FGM")1 if petitioner were
removed to Senegal and her daughter accompanied her. We affirm on
the record presented.

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 Novem-
ber 8, 2000.

1
"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, 472
F.3d 227, fn. 5 (4th Cir. 2007). These barbaric surgical procedures con-
stitute an extreme form of child abuse and are an insult to human dignity
and an affront to any civilized people. As we have previously noted,
FGM is "[o]ften performed under unsanitary conditions with highly rudi-
mentary instruments" and results in the painful, permanent disfigurement
of the female genitalia, and exposes victims to a myriad of serious and
potentially life-threatening complications. Id. (listing as possible compli-
cations: bleeding, infection, urine retention, stress, shock, psychological
trauma, and damage to the urethra and anus).
 NIANG v. GONZALES 3
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 ("Fatime"). 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.
87.2 Indeed, Niang stated she was subjected to FGM at a young age,
causing her to suffer long-lasting health and psychological problems.
Niang further stated that Fatime’s paternal grandparents have been
requesting, in "intimidating and threatening letters," that Niang take
Fatime to Senegal to undergo FGM.3 Moreover, Niang stated Ane is
"indifferent" to his parents’ request and "[t]his indifference . . . means
[Ane] tacitly accept[s] their request." J.A. 88-89. As a result of Ane’s
indifference and his parents’ request, Niang stated she feared that if
she were removed to Senegal, her daughter would be forced to
undergo FGM there. J.A. 87.

On October 28, 2003, DHS charged Niang with removability, pur-
suant 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 Immigra-
tion Judge ("IJ") and admitted the charges against her, conceded
removability, but sought relief from removal in the form of asylum,
2
Citations to the "J.A." refer to the joint appendix filed in this appeal.
3
Fatime’s maternal grandparents in Senegal do not appear to be a fac-
tor in the FGM equation, as Niang reports that they believe a daughter
belongs to her father’s family and that Niang "has no right to refuse to
have the child circumcised." If she does refuse, Niang believes "it will
be a shame on [Niang’s family] and they will be a target for insults from
other members of society." J.A. 89.
4 NIANG v. GONZALES
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. Ini-
tially, 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 gov-
ernment 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 asy-
lum 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 Sene-
gal passport and her children’s birth certificates; (iii) the June 12,
2002 letter, purportedly from Ane’s father; and (iv) a U.S. Depart-
ment 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 Halpu-
laren (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.
 NIANG v. GONZALES 5
The government also submitted documentary evidence, namely the
2003 Country Report on Human Rights Practices for Senegal, pre-
pared 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 popu-
lation;

(b) that one of the most extreme forms of FGM is some-
times practiced by the Toucouleur, particularly in rural
areas;

(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 order-
ing 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 edu-
cate 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 north-
ern 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 meritless because
Niang had not established that she would be persecuted on the basis
of any protected ground if removed to Senegal, nor had she estab-
6 NIANG v. GONZALES
lished any valid derivative claim given that her daughter, a U.S. citi-
zen, was entitled to remain in the U.S.4 The IJ also denied Niang’s
claim for withholding of removal based on a fear of persecution for
the same reasons, noting correctly that this result follows from the
fact that the standard applicable to a withholding claim is more rigor-
ous than the standard applicable to an asylum claim. See Camara v.
Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). The IJ further concluded
that Niang’s CAT claim failed and that she was ineligible for volun-
tary departure.

Niang appealed the IJ’s decision to the BIA, which affirmed the
IJ’s factual findings and specifically concurred with the IJ’s conclu-
sions 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
4
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 coun-
try arising out of the severity of past persecution," may be granted discre-
tionary 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, 77 F. Appx. 235, 235 (5th Cir.
2003)(remanding to BIA to adjudicate humanitarian asylum claim where
applicants claimed their minor daughter, a U.S. citizen, would undergo
FGM if they were removed and she accompanied them).
 NIANG v. GONZALES 7
daughter will face if she accompanies Niang to Senegal and is there
subjected to FGM5

II.

At the outset, it is important to note that FGM — a barbaric prac-
tice unbecoming of a civilized society — is prohibited by law in this
and many other countries, including Senegal.6 Accordingly, we and
our sister circuits have appropriately recognized that FGM constitutes
"persecution" within the meaning of the Immigration and Nationality
Act ("INA"), 8 U.S.C. § 1101 et seq., and thus the threat of FGM may
serve as a basis for asylum or withholding of removal claims. See
Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir. 2006). This settled
principle is not at issue here. Instead, the essential question presented
in this appeal is whether the record in this case compels reversal of
5
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, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (stating that issues not
raised on appeal are waived).
It is worth noting that, even assuming Niang had not waived the time-
liness 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
Blade v. Gonzales, 2007 U.S. App. LEXIS 3563, at *1-2 (4th Cir. 2007)
(finding no jurisdiction to review asylum claim denied as untimely); Lin
v. Gonzales, 190 Fed. Appx. 301, 305 (4th Cir. 2006) (stating where an
alien simply challenges "the timeliness of an alien’s asylum application
[this] is usually a question of fact . . . [which] courts of appeal will not
have jurisdiction to review").
6
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).
8 NIANG v. GONZALES
the BIA’s determination that Niang is not eligible for withholding of
removal on the grounds she asserts.

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 free-
dom 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, 472 F.3d at 232.7 More precisely,
an applicant for withholding bears the burden of demonstrating a
"clear probability" that she will face persecution in the country of
removal. Rusu v. INS, 296 F.3d 316, 324 n.13 (4th Cir. 2002) (citing
INS v. Stevic, 467 U.S. 407, 430 (1984)); see 8 C.F.R. § 1208.16. It
follows from these principles that where, as here, the BIA has found
that the petitioner has not met this burden, we will affirm the BIA’s
determination if it is supported by substantial evidence on the record
considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Thus, the IJ’s or the BIA’s factual findings8 are "conclusive
unless the evidence before the BIA was such that any reasonable
adjudicator would have been compelled to conclude to the contrary."
Haoua, 472 F.3d at 231 (emphasis added). And significantly, where
the "record [ ] plausibly could support two results: the one the IJ
chose and the one [the petitioner] advances," reversal is only appro-
priate where the court "find[s] that the evidence not only supports [the
opposite] conclusion, but compels it." Balogun v. Ashcroft, 374 F.3d
492 (7th Cir. 2004) (emphasis added) (citing Elias-Zacarias, 502 U.S.
at 481 n.1).

In sum then, the specific questions presented, distilled to their
essence, are whether the record compels reversal of the BIA’s deter-
minations (i) that Niang cannot assert a claim for withholding of
7
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 coun-
try because of the alien’s race, religion, nationality, membership in a par-
ticular social group, or political opinion."
8
Because the BIA affirmed the IJ’s order and supplemented it, the fac-
tual findings and reasoning contained in both decisions are subject to
judicial review. See Haoua, 472 F.3d at 230.
 NIANG v. GONZALES 9
removal based on the psychological harm she will suffer if her daugh-
ter 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 psy-
chological harm she claims she will suffer if her daughter accompa-
nies her to Senegal and is there subjected to FGM. This claim fails
as a matter of law because it is well-established that "[p]ersecution
involves the infliction or threat of death, torture, or injury to one’s
person or freedom." Li v. Gonzalez, 405 F.3d 171, 177 (4th Cir. 2005)
(emphasis added). This settled principle is firmly anchored in the stat-
utory language stating that withholding of removal is warranted
where "the alien’s life or freedom would be threatened . . ." on the
basis of a protected ground. 8 U.S.C. § 1231(b)(3)(A) (emphasis
added). Thus, to establish a claim for withholding an applicant cannot
rely solely on psychological harm or a threat of such harm to others,
but must also establish injury or a threat of injury to the applicant’s
person or freedom.9 See Osigwe v. Ashcroft, 77 F. Appx. 235 (5th Cir.
2003) (finding petitioners could not establish an asylum claim "based
9
While the dissenting opinion argues that "[t]his holding stands in ten-
sion 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.
10 NIANG v. GONZALES
solely on their daughter’s risk of being subject to FGM if she is
returned to Nigeria").10 The record reflects that Niang has not met this
requirement.

Niang hopes to avoid this conclusion by relying on Abay v. Ash-
croft, 368 F.3d 634 (6th Cir. 2004). There, the Sixth Circuit, relying
on BIA decisions suggesting a "governing principle" in favor of
granting parents refugee status where their child faces physical tor-
ture, held that an alien mother was eligible for asylum, in her own
right, based upon her fear that her minor daughter, also an asylum
applicant, would be forced to undergo FGM if the daughter were
removed. Id. at 642. Significantly, Abay is the only federal decision
permitting a parent to seek relief, in her own right, based solely on
the psychological suffering she will endure if her daughter will be
subjected to FGM upon removal. We do not find Abay persuasive
here, both because it is factually distinguishable and because psycho-
logical harm, without any accompanying physical harm, does not con-
stitute "persecution." First, Abay is clearly distinguishable because,
unlike the asylum applicant in Abay, Niang’s daughter is a U.S. citi-
zen; accordingly, there is no clear probability that Niang’s daughter
will be subjected to FGM as she could remain in the U.S., albeit with-
out Niang, and avoid any potential persecution. Second, Abay is
unpersuasive because its holding is an unwarranted expansion of the
statutory definition of persecution. See 8 U.S.C. § 1231(b)(3)(A); Li
v. Gonzalez, 405 F.3d at 177).
10
See also Mengistu v. INS, No. 98-2003, 1999 U.S. App. LEXIS 5776,
at *6 (4th Cir. March 29, 1999) (affirming BIA’s determination where
petitioner "[a]lthough she may have been verbally abused, she did not
offer any evidence of a particular physical assault or other type of assault
that could be characterized as an act which would rise to the level of per-
secution"); Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir. 2004) (hold-
ing that petitioner’s psychological damages, resulting from the "rough
treatment" of government authorities and witnessing her father’s arrest,
did not rise to the level of persecution, noting "[w]hile mental or emo-
tional injury may in part constitute persecution, persecution is an extreme
concept."); but see Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir.
2004) ("Persecution may be emotional or psychological, as well as physi-
cal.").
 NIANG v. GONZALES 11
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 accom-
panies 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,11 she argues that we should nonetheless recognize
a derivative claim in this case because of the barbaric nature of FGM.
While we have not previously addressed whether such a claim may
be asserted, other circuits have done so and declined to recognize this
derivative claim. Oforji v. Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003)
(holding that "[A]n alien parent who has no legal standing to remain
in the United States 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 deportation."); Olowo v. Ashcroft, 368
F.3d 692 (7th Cir. 2004) (same); Axmed v. United States AG, 145 Fed.
11
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 omis-
sion may be intended to "prevent wholesale circumvention of the immi-
gration laws by persons who enter the country illegally and promptly
have children to avoid deportation." Hernandez-Rivera v. INS, 630 F.2d
1352, 1356 (9th Cir. 1980). While such omission may work a hardship
on U.S. citizen children, who may be forced to accompany their parents
to the country of removal, we and our sister circuits have held that this
hardship is countenanced by the INA and not violative of the children’s
constitutional rights. Gallanosa v. United States, 785 F.2d 116, 120 (4th
Cir. 1986).
12 NIANG v. GONZALES
Appx. 669, 675 (11th Cir. 2005) (upholding BIA’s decision to deny
motion to reopen asylum application, sought because petitioner feared
that if she were removed her U.S. citizen daughter would join her and
be subjected to FGM, agreeing with circuits declining to find a deriv-
ative claim where petitioner’s daughter is a U.S. citizen because "asy-
lum is only available to aliens who are personally at risk").

The INA compels this result because the statutory text is clear —
to establish eligibility for withholding of removal the alien must dem-
onstrate 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 circum-
stances not present here. Indeed, Niang’s counsel conceded at oral
argument that Niang is not entitled to relief under § 1229b, presum-
ably because she cannot satisfy the ten year physical presence require-
ment.

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
 NIANG v. GONZALES 13
12
hardship to her U.S. citizen minor daughter. As Congress has not
provided for such a derivative withholding claim, we will not judi-
cially amend the statute to create one.

We are, of course, mindful that the result reached here presents
Niang with a heart-wrenching dilemma: either allow Fatime to remain
in the U.S. with her father but without her mother, or take Fatime to
Senegal where Niang fears Fatime will be forced to undergo FGM.
The tragic nature of this choice is undeniable, but it does not warrant
that we recognize a derivative claim where Congress has not seen fit
to provide for it.13 See Oforji, 354 F.3d at 618 (recognizing the diffi-
cult choice faced by petitioner, but explaining that "Congress has
foreseen such difficult choices, but has opted to leave the choice with
the illegal immigrant, not the courts"). Accordingly, consistent with
the other circuits that have considered this question, we conclude that
Niang may not assert a derivative claim for withholding of removal
based on the potential persecution of her U.S. citizen daughter if
Niang is removed to Senegal and her daughter accompanies her.14 See
12
Cf. In re S-L-L, 24 I. & N. Dec. 1, 31 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).
13
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 deter-
mine whether it warrants a grant of humanitarian asylum. See Osigwe,
77 F. Appx. at 235 (remanding to BIA to adjudicate humanitarian asylum
claim where applicants claimed their minor daughter, a U.S. citizen,
would undergo FGM if they were removed and she accompanied them).
In this case, the IJ considered whether the circumstances warranted
humanitarian asylum and decided that they did not. As the humanitarian
asylum claim was decided, and as Niang has not appealed that decision,
a remand is not appropriate here.
14
Notably, even assuming Niang could assert a derivative claim, the
record does not compel reversal as Niang did not establish a "clear prob-
ability" 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
14 NIANG v. GONZALES
Oforji, 354 F.3d 609; Olowo, 368 F.3d 692; Axmed, 145 Fed. Appx.
669.

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 pre-
sent 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

WILLIAMS, Circuit Judge, 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.1 I disagree,
however, with the majority’s disposition of Niang’s claim of with-
holding based on the psychological harm Niang claims she will suffer
if she is removed to Senegal and forced to subject her daughter to
female genital mutilation (FGM). For the reasons that follow, I

is no record evidence that Ane favors FGM; (iii) aside from the 2002 let-
ter, 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 Tou-
couleur 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 Fatime by
residing in an urban area.
1
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 volun-
tary departure, see Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999) (noting that Federal Rule of Appellate Procedure
28(a)(9)(A) requires an appellant’s opening brief to set forth the appel-
lant’s "contentions and the reasons for them" and that failure to comply
with the Rule’s dictates with respect to a particular claim triggers aban-
donment of that claim on appeal).
 NIANG v. GONZALES 15
believe that the majority, by independently creating a per se rule that
psychological harm alone cannot constitute persecution, without con-
sidering the Board of Immigration Appeals (BIA)’s interpretation of
the term "persecution" 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 BIA. Accordingly, I respect-
fully dissent.

I.

A.

Although the majority opinion purports to apply the substantial evi-
dence 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 10. 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 per-
secution by virtue of his wife’s forced sterilization. Neither the statute
nor its implementing regulations define "persecution," and the major-
ity, by (1) ignoring the BIA’s interpretation of the term "persecution"
in In re C-Y-Z and (2) independently establishing such a broad prece-
dent 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, 362 F.3d 272, 278 (4th Cir.
2004), we must afford appropriate deference to the BIA’s interpreta-
tion of the Immigration and Nationality Act (INA or "the Act") and
any attendant regulations, Christensen v. Harris County, 529 U.S.
576, 586-88 (2000) (stating that Chevron deference should be
afforded to an agency’s interpretation of an ambiguous statute and
Auer deference to an agency’s interpretation of its own regulation).
Because the BIA adopted, affirmed, and supplemented the Immigra-
tion Judge (IJ)’s decision, "we review the decision of the IJ as supple-
16 NIANG v. GONZALES
mented by the BIA." Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005).2

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., 476 U.S. 837, 842 (1984). "If
the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress." Id. at 842-43. If, however, "the statute
is silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s answer is based on a permissible
construction of the statute." Id. at 843. Pursuant to Auer, an agency’s
interpretation of its own regulations is "controlling unless plainly
erroneous or inconsistent with the regulation." Auer v. Robbins, 519
U.S. 452, 461 (1997) (internal quotation marks omitted).

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
. . . seek[ing] 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 "al-
though the harm experienced was not by him, but by a family mem-
ber," and that "it . . . constitutes persecution for the asylum applicant
2
The majority opinion correctly states that we review the BIA’s admin-
istrative findings of fact under the substantial evidence rule. See 8
U.S.C.A. § 1252(b)(4)(B) (West 2005); INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992) (stating that an appellate court must uphold the BIA’s
factual findings if they are "supported by reasonable, substantial, and
probative evidence on the record considered as a whole" (internal quota-
tion marks omitted)).
 NIANG v. GONZALES 17
to witness or experience the persecution of family members." Id. at
926 (Rosenberg, concurring).

Also, we have previously stated that torture may constitute perse-
cution. See Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (stating
that "[p]ersecution involves the infliction or threat of death, torture,
or injury to one’s person or freedom" (internal quotation marks omit-
ted)). The majority, however, does not consider legal and non-legal
definitions of "torture," which indicate that torture may be purely
mental. The United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT),
defines "torture" as involving an "act by which severe pain or suffer-
ing, whether physical or mental, is intentionally inflicted on a person
. . . ." CAT, Article 1 (emphasis added). Section 2340 of Title 18,
which implements the CAT, provides that "‘torture’ means an act
committed by a person acting under the color of law specifically
intended to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon another
person within his custody or physical control." 18 U.S.C.A. § 2340(1)
(West 2000 & Supp. 2006) (emphasis added). Similarly, dictionary
definitions of "torture" include anguish "of body or mind." See, e.g.,
Merriam-Webster’s Collegiate Dictionary 1320 (11th ed. 2004).

Prior to 1965, the INA authorized the Attorney General "to with-
hold the deportation of any alien within the United States to any coun-
try in which in his opinion the alien would be subject to physical
persecution . . . ." Pub. L. No. 82-414, 66 Stat. 163, 214 (1952) (codi-
fied at INA § 243(h), 8 U.S.C.A. § 1253(h)) (emphasis added). In
1965, Congress amended INA § 243(h) "by striking out ‘physical per-
secution’ 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 interpre-
tation 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
18 NIANG v. GONZALES
re C-Y-Z. This conflict has occurred because the majority, rather than
reviewing an interpretation of "persecution" advanced by the IJ or
BIA, has independently established a judicial interpretation of the
term that is unnecessary for the resolution of this case.

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, 537 U.S. 12, 16 (2002) (per curiam) ("A court of
appeals is not generally empowered to conduct a de novo inquiry into
the matter being reviewed and to reach its own conclusions based on
such an inquiry. . . . Rather, the proper course, except in rare circum-
stances, is to remand to the agency for additional investigation or
explanation." (internal quotation marks omitted)); SEC v. Chenery
Corp., 318 U.S. 80, 95 (1943) (holding that "an administrative order
cannot be upheld unless the grounds upon which the agency acted in
exercising its powers were those upon which its action can be sus-
tained").

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 there-
fore "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
resistence 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
 NIANG v. GONZALES 19
explained that, for a Toucouleur girl, FGM represents an essential ini-
tiation 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 grandpar-
ents 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 cir-
cumcised," 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.)3
3
I am unpersuaded by the Government’s contention that Niang has not
demonstrated a clear probability that her daughter’s relatives would sub-
ject her to FGM if the child accompanied Niang to Senegal because the
Senegalese government has banned the practice, and, as a result of edu-
cation and outreach programs, FGM is becoming less prevalent in Sene-
gal. The Government concedes that "[t]he State Department Report of
record provided that . . . in general, female genital mutilation was a prob-
lem in Senegal." (Appellee’s Br. at 22.) Moreover, a State Department
Report specifically addressing FGM in Senegal provides that "up to 88
percent of females among the minority Halpularen (Peul and Tou-
couleur) in rural areas of eastern and southern Senegal practice [FGM]."
(J.A. at 112.) This report states that, "[a]lthough the government has been
actively seeking to eradicate this practice, we are unaware of any protec-
tion in place that might help a woman who wishes to avoid it." (J.A. at
114.) Furthermore, in addition to reports addressing generalized country
conditions, Niang presented evidence specifically related to her particu-
lar case. Her testimony and corroborating documentation revealed that
her daughter’s relatives have a strong desire to subject the child to FGM,
and that the father agrees with his parents that his daughter should
undergo FGM, but has thus far been indifferent to their demands. The
Government does not question the reliability of the evidence related to
Niang’s family, and the IJ’s decision does not address the likelihood that
the child would suffer FGM in Senegal.
20 NIANG v. GONZALES
Niang further claimed that this mental suffering would be com-
pounded by the lasting effects of the FGM that was performed on
Niang as a child. When Niang was seven years old, her parents took
her to a family circumsiser for "excision," which the World Health
Organization classifies as "Type II" FGM. This form of FGM
involves "the excision (removal) of the clitoral hood with or without
removal of all or part of the clitoris." (J.A. at 112.)4 Niang’s affidavit
provided that, as a result of this abuse, she "developed health compli-
cations ranging from vaginal infections [to] difficulty [in] conceiv-
[ing] to vaginal bleeding." (J.A. at 88.) A doctor in Gabon diagnosed
Niang with primary sterility and informed her that she would be
unable to have children. Nevertheless, Niang, "fought all [her] life to
have children." (J.A. at 48.) She was fortunate to have the benefit of
the excellent gynecological and obstetrical assistance available in the
United States, and, in 2001, at age 37, she gave birth to her daughter.
In 2003, when Niang was 39, her son was born. Niang had difficult
pregnancies with both children. During her first pregnancy, she expe-
rienced fibroids and bleeding and had an exam that was monitored as
an emergency because she had a condition known as placenta previa.5
4
Both this court and the BIA have recognized that FGM constitutes
persecution within the meaning of the INA and its implementing regula-
tions. 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 omit-
ted)); 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 2 n.1, is "[o]ften
performed under unsanitary conditions with highly rudimentary instru-
ments, . . . is extremely painful, permanently disfigures the female geni-
talia, 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).
5
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 Med-
ical 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).
 NIANG v. GONZALES 21
Medical records submitted with her application also reveal that she
required a Cesarean section to deliver her second child.6

Niang also asserted that her psychological development was "con-
siderably hampered," (J.A. at 88), by the physical trauma that she
experienced as a young girl. She stated that "[t]he pains that I went
through and the blood that was shed on [the day she was mutilated]
keeps on revisiting me up until today." (J.A. at 88.) While in Senegal,
Niang "witnessed young girls and at times women die due to compli-
cation[s]" resulting from FGM. (J.A. at 90.) She opposed excision,
and because of this resistence, became estranged from her parents,
who "considered [her] as a rebel against established rules and customs
of the Toucouleur society." (J.A. at 88.) The IJ recognized that Niang
had been a victim of FGM and did not make an adverse credibility
finding or otherwise indicate that he disbelieved Niang. And, as
Niang asserts, no reasonable fact-finder could deny that a devoted
mother who continues to experience health and psychological prob-
lems as a result of FGM would experience severe mental suffering if
she were forced to allow her daughter to suffer the same type of per-
secution. The IJ’s finding that Niang "ha[d] not shown that anything
would happen to her because of the action that may be performed
against her daughter," (J.A. at 25), is irreconcilable with the record,
which reveals that Niang would experience considerable mental suf-
fering if her relatives prevented her from sparing her daughter the
same persecution she endured as a child. Thus, I believe the record
compels the conclusion that Niang would suffer an actual and con-
crete psychological harm if she were prevented from protecting her
daughter from FGM. Accordingly, the IJ’s conclusion that she would
be unaffected is not supported by substantial evidence.

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, "[a]dditionally, 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
6
It is unclear from the record whether Niang’s first child was also
delivered by a Cesarean section.
22 NIANG v. GONZALES
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.7

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 Senegal, where she will be powerless to prevent
her daughter’s relatives from subjecting her to FGM.

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.
7
It is worth noting that, under the regulations governing adjustment of
status applications,
the departure of an applicant who is not under exclusion, depor-
tation, 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.
 NIANG v. GONZALES 23
II.

In sum, I believe that the majority, by independently establishing
a per se rule that psychological harm alone cannot constitute persecu-
tion, without considering the BIA’s decision in In re C-Y-Z and with-
out remanding the case for the BIA to address the issue in the first
instance, oversteps its bounds and fails to afford appropriate defer-
ence to the agency. Accordingly, I respectfully dissent.