Abay v. Ashcroft

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Abay et al. v. Ashcroft et al. No. 02-3795 ELECTRONIC CITATION: 2004 FED App. 0145P (6th Cir.) File Name: 04a0145p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: E. Dennis Muchnicki, Dublin, Ohio, for FOR THE SIXTH CIRCUIT Petitioners. Julia K. Doig, UNITED STATES _________________ DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. ON BRIEF: E. Dennis Muchnicki, Dublin, YAYESHWORK ABAY and X Ohio, for Petitioners. Nancy E. Friedman, Richard M. Evans, BURHAN AMARE , - UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Petitioners, - - No. 02-3795 - MERRITT, J., delivered the opinion of the court, in which v. > FEIKENS, D. J., joined. SUTTON, J. (pp. 16-21), delivered , a separate opinion concurring in the judgment. - JOHN ASHCROFT , United - _________________ States Attorney General and - IMMIGRATION AND - OPINION NATURALIZATION SERVICE, - _________________ Respondents. - - MERRITT, Circuit Judge. Yayeshwork Abay and her N minor daughter Burhan Amare, citizens and natives of On Petition for Review of an Order of the Ethiopia, petition the Court for review of an order in which Board of Immigration Appeals. the Board of Immigration Appeals affirmed without opinion No. A73 401 965. the immigration judge’s denial of their consolidated claims for asylum and withholding of deportation under section Argued: January 29, 2004 208(a) and former section 243(h)(1) of the Immigration and Nationality Act. 8 U.S.C. § 1158(a) (2004); 8 U.S.C. Decided and Filed: May 19, 2004 § 1253(h)(1) (1996). Both Abay and Amare seek asylum based on their fear that, should they be returned to Ethiopia, Before: MERRITT and SUTTON, Circuit Judges; Amare will be subjected to “female genital mutilation,” a FEIKENS, District Judge.* practice “nearly universal” in Ethiopia and to which an estimated 90% of women are subjected, according to State Department reports. The immigration judge held that neither Abay nor Amare established that she is a “refugee” eligible for asylum or withholding of deportation. We find that the evidence on the record as a whole compels the conclusion that * The Honorab le John Feikens, United States District Judge for the both the minor child Amare and her mother have a well- Eastern District of Michigan, sitting by designation. 1 No. 02-3795 Abay et al. v. Ashcroft et al. 3 4 Abay et al. v. Ashcroft et al. No. 02-3795 founded fear that Amare will be subjected to female genital any person who is outside any country of such person’s mutilation should they be returned to Ethiopia and thus are nationality or, in the case of a person having no “refugees” eligible for asylum under the Act. Accordingly, nationality, is outside any country in which such person the petition for review is GRANTED and the case is last habitually resided, and who is unable or unwilling to remanded for further proceedings consistent with this opinion. return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of I. Background persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a Petitioner Abay and her daughter, petitioner Amare, entered particular social group, or political opinion . . . . the United States on May 18, 1993, as visitors for pleasure. On May 30, 1996, following an unsuccessful application for Id. § 1101(a)(42)(A). To obtain asylum, an alien must show asylum, Abay and Amare were each issued and served with that she is a refugee entitled to a discretionary grant of a referral notice and order to show cause. At a master asylum. Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. calendar hearing held by teleconference on August 29, 1996, 1998); Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994). The and at which the minor daughter waived appearance, their asylum applicant bears the burden of establishing that she separate cases were consolidated and Abay’s was designated qualifies as a refugee “either because he or she has suffered the “lead file.” On behalf of both respondents, counsel past persecution or because he or she has a well-founded fear conceded deportability and applied for relief in the form of of future persecution.” 8 C.F.R. § 208.13(b). asylum, withholding of deportation, and in the alternative, voluntary departure. On June 30, 1997, counsel submitted An alien may demonstrate a well-founded fear of future Abay’s fully briefed application, in which she claimed that persecution by showing that (1) he or she has a fear of she was persecuted in the past, and feared persecution in the persecution in his or her country on account of race, future, on account of her Amhara ethnicity, her Pentacostal religion, nationality, membership in a particular social Christian religious practice, and her membership in the All group, or political opinion; (2) there is a reasonable Amhara People’s Organization, an opposition political party possibility of suffering such persecution if he or she were in Ethiopia. On August 6, 1997, counsel submitted a to return to that country; and (3) he or she is unable or supplemental brief and exhibits supporting Amare’s unwilling to return to that country because of such fear. application in which Amare claimed that she feared being An applicant’s fear of persecution must be both subjected to female genital mutilation upon her return to subjectively genuine and objectively reasonable. Ethiopia. Mikhailevitch, 146 F.3d at 389. If the applicant establishes II. Legal framework and standard of review past persecution, the applicant is entitled to a presumption of a well-founded fear of future persecution, and the burden then The Attorney General has discretion to grant asylum to a shifts to the Immigration and Naturalization Service to show person who qualifies as a “refugee” within the meaning of by a preponderance of the evidence that “there has been a section 101(a)(42)(A) of the Immigration and Nationality Act. fundamental change in circumstances such that the applicant See 8 U.S.C. § 1158(b)(1). The Act defines a refugee as: no longer has a well-founded fear of persecution in the applicant’s country . . . on account of race, religion, nationality, membership in a particular social group, or No. 02-3795 Abay et al. v. Ashcroft et al. 5 6 Abay et al. v. Ashcroft et al. No. 02-3795 political opinion.” 8 C.F.R. § 208.13(b)(1)(i)(A); see contrary conclusion, but indeed compels it.” Id. at 152 Mikhailevitch, 146 F.3d at 389. To establish eligibility for (emphasis in original). The appropriate inquiry is whether the asylum, an alien is not required to present proof that future applicable evidence “was such that a reasonable factfinder persecution is more likely than not. INS v. Cardoza-Fonseca, would have to conclude that the requisite fear of persecution 480 U.S. 421, 431 (1987). “One can certainly have a existed.” Elias-Zacarias, 502 U.S. at 481. Where, as here, well-founded fear of an event happening when there is less the Board of Immigration Appeals affirms the decision of an than a 50% chance of the occurrence taking place.” Id. immigration judge without opinion, we review the decision of the immigration judge directly. Soadjede v. Ashcroft, 324 The petitioners also seek relief in the form of withholding F.3d 830, 832 (5th Cir. 2003). of deportation under former § 1253(h)(1), a form of nondiscretionary relief that must be granted to aliens who can III. Discussion meet the more stringent standards governing such applications. To establish eligibility for nondiscretionary A. Female genital mutilation withholding of deportation, the alien must show that there is a “clear probability” that her “life or freedom would be Forced female genital mutilation involves the infliction of threatened in such country on account of race, religion, grave harm constituting persecution on account of nationality, membership in a particular social group, or membership in a particular social group that can form the political opinion.” Mikhailevitch, 146 F.3d at 391. The basis of a successful claim for asylum. In re Fauziya applicant who fails to establish that she is a “refugee” eligible Kasinga, 21 I. & N. Dec. 357, 365, Int. Dec. 3278 (BIA for asylum under § 1158 will necessarily fail to satisfy the June 13, 1996); see Abankwah v. INS, 185 F.3d 18, 23-24 (2d standard governing § 1253(h)(1). See INS v. Cir. 1999) (holding that the evidence compelled the Cardoza-Fonseca, 480 U.S. 421, 449-50 (1987); conclusion that the petitioner had a well-founded fear of being Mikhailevitch, 146 F.3d at 391. On the other hand, the subjected to female genital mutilation in Ghana as applicant who establishes that she is a “refugee” eligible for punishment for having engaged in premarital sex, and asylum, but who is not granted asylum in the exercise of the reversing the Board’s decision to the contrary). Female Attorney General’s discretion, may nevertheless be able meet genital mutilation, or FGM, is the collective name given to a the more stringent standard to show she is eligible for series of surgical operations, involving the removal of some withholding of deportation. or all of the external genitalia, performed on girls and women primarily in Africa and Asia.1 Often performed under Under our deferential standard of review, we must uphold the Board’s decision if it is “supported by reasonable, 1 substantial, and probative evidence on the record considered The Departm ent of State has classified, b ased on W orld He alth as a whole.” Mikhailevitch, 146 F.3d at 388 (internal Organization typology, the prevalent forms of female genital mutilation. Type I, commonly referred to as “clitoridectomy,” is the removal “of the quotation marks omitted); see INS v. Elias-Zacarias, 502 U.S. clitoral hood with or without removal of all or part of the clitoris.” Type 478, 481 (1992). We may not reverse the Board’s II, commo nly referred to as “excision,” is the removal “of the clitoris determination simply because we would have decided the together with part or all of the labia minora.” Type III, commonly referred matter differently. See Klawitter v. INS, 970 F.2d 149, to as “infibulation,” is the removal “of part or all of the external genitalia 151-52 (6th Cir. 1992). The petition for review may be (clitoris, labia minora and labia majora) and stitching or narrowing of the vaginal opening, leaving a very small opening, about the size of a granted only if the evidence presented “not only supports a matchstick, to allow for the flow of urine and menstrual blo od.” No. 02-3795 Abay et al. v. Ashcroft et al. 7 8 Abay et al. v. Ashcroft et al. No. 02-3795 unsanitary conditions with highly rudimentary instruments, minora or clitoris of another person who has not attained 18 female genital mutilation is “extremely painful,” years” shall be fined or imprisoned). “permanently disfigures the female genitalia, [and] exposes the girl or woman to the risk of serious, potentially At the hearing on the merits held on August 17, 1997, Abay life-threatening complications,” including “bleeding, testified that she is married and has four daughters. After she infection, urine retention, stress, shock, psychological trauma, came to the United States with her youngest daughter, Abay’s and damage to the urethra and anus.” In re Fauziya Kasinga, husband fled Ethiopia, leaving their three older daughters in 21 I. & N. Dec. at 361. Female genital mutilation can result the care of Abay’s mother in Ethiopia. Abay herself was in the permanent loss of genital sensation in the victim and circumcised by her mother when she was nine years old.2 the consequent elimination of sexual pleasure. See id. Although she and her husband oppose the practice and have not subjected any of their daughters to it, Abay’s mother had The practice of FGM has been internationally recognized previously attempted to circumcise the three older daughters. as a violation of women’s and female children’s rights. See, It was only due to Abay’s intervention that the daughters were e.g., Report of the Committee on the Elimination of All not circumcised. Abay testified that her mother still wants all Forms of Discrimination Against Women, General the girls to be circumcised, and that Abay would not be able Recommendation No. 14, U.N. GAOR, 45th Sess., Supp. No. to prevent the forced circumcision of any of her daughters by 38 & Corr. 1, at 80, ¶ 438, U.N. Doc. A/45/38 (1990); their future husbands or in-laws. Declaration on the Elimination of Violence Against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Art. 2(a), U.N. Doc. Burhan Amare is Abay’s youngest daughter who, at the A/48/629 (1993) (including female genital mutilation as an time of the hearing, was nine years old. Amare suffers from example of violence covered by the resolution); Traditional a profound hearing impairment. She testified through a sign or Customary Practices Affecting the Health of Women and language interpreter that she knew about circumcision, did not Girls, G.A. Res. 128, U.N. GAOR, 56th Sess., Supp. 49, at 2, want to be subjected to it because she feared it would cause U.N. Doc. A/RES/56/128 (2001) (reaffirming that female pain and bleeding, and was afraid to go back to Ethiopia genital mutilation “constitute[s] a definite form of violence because she feared her relatives or future husband or her against women and girls and a serious violation of their husband’s relatives would force her to be circumcised. human rights”). In September 1996, as part of the Illegal Immigration Reform and Immigrant Responsibility Act [IRRIRA], Congress criminalized the practice of female 2 At the hearing, the parties used the term“circumcision” without genital mutilation under federal law. See 18 U.S.C. § 116 specifying the pre cise form of the practice invo lved. As noted above, the (providing that whoever “knowingly circumcises, excises, or term “female genital mutilation” has become the preferred generic term infibulates the whole or any part of the labia majora or labia when describing any form of physical mutilation to a female’s genitals. The term “circumcision” is considered by m any to b e physically inaccurate in describing the most common form of the practice, Type II (excision), which results in the complete removal of the clitoris. See, e.g., Prevalence of the Practice of Female Genital Mutilation (FGM); Laws Hope Lewis, Between Irua and “Female Genital Mu tilation”: Feminist Prohibiting FGM and Their Enforcement; Recommendations on Ho w to Human Rights Discourse and the Cultural Divide, 8 Harv. Hum. Rts. J. Best Work to E liminate FGM, U.S. Dep t. of State, R epo rt on Female 1, 4-9 (1995) (discussing the debate over terminology and noting that Genital Mutilation, a t 5 (updated June 27, 2001), available at “many feminist human rights activists and scholars argue that the term http://www.state.gov/g/wi/rls/rep/c6466 .htm. Type II (excision) is the ‘female circumcision’ is misleading” because “m ost form s of male most widely practiced form . Id. circumcision are far less invasive and physically damaging” than FGM ). No. 02-3795 Abay et al. v. Ashcroft et al. 9 10 Abay et al. v. Ashcroft et al. No. 02-3795 According to the U.S. State Department Ethiopia Country These conclusions underestimate the problem and do not Report on Human Rights Practices for 1996, which was take the full picture into account. At the time of the hearing, included in the record, the practice of female genital Amare was a nine-year-old child testifying in court about an mutilation in Ethiopia in 1996 was “nearly universal.” Also extremely personal matter. Although her expression of fear included was a State Department Report on Female Genital in that context may have come across as “general” or Mutilation in Ethiopia in 1996, which indicated that “ambiguous,” we note that the Immigration and approximately 90% of all females are subjected to some form Naturalization Service’s guidelines for children’s asylum of the practice.3 The practice had not been specifically claims, following the recommendations of the United Nations outlawed, and laws in place to prohibit harmful traditional High Commissioner for Refugees, Handbook on Procedures practices are not, as a practical matter, enforced. Additional and Criteria for Determining Refugee Status (1992), advises articles and reports submitted in support of Amare’s claim adjudicators to assess an asylum claim keeping in mind that explain that females who live in a culture where female very young children may be incapable of expressing fear to genital mutilation is the norm and who do not undergo the the same degree or with the same level of detail as an adult. procedure will be persecuted, subjected to ostracism, and See Guidelines for Children’s Asylum Claims, INS Policy and considered unworthy of marriage. Procedural Memorandum from Jack Weiss, Acting Director, Office of International Affairs to Asylum Officers, B. Amare’s asylum claim based on her fear of female Immigration Officers, and Headquarters Coordinators genital mutilation (Asylum and Refugees) at 26, Dec. 10, 1998, available at 1998 WL 34032561 (INS). In recommending a course of action The immigration judge denied Amare’s claim for asylum for evaluating a child’s fear, the Children’s Guidelines note because she has “no imminent fear [of female genital that the adjudicator must take the child’s statements into mutilation], but rather a general ambiguous fear” if she is account, but that “children under the age of 16 may lack the deported. He noted that “her parents are opposed to the maturity to form a well-founded fear of persecution, thus practice and refuse to allow her to be circumcised” and that requiring the adjudicator to give more weight to objective “[s]he has three teenage sisters who have not been factors.” Id. at 19. Further, the Guidelines suggest that circumcised.” Pointing out that these three sisters live with “children’s testimony should be given liberal “benefit of the the same relatives in Ethiopia who purportedly pose a threat doubt” with respect to evaluating a child’s alleged fear of to Amare, he concluded that he found it “hard to believe that persecution. Id. at 26. this one daughter [Amare] would be forcibly circumcised when the other daughters are able to escape it.” Should Amare be returned to Ethiopia, a country where the practice is “nearly universal” with 90% of females having been subjected to some form of it, it is probable that she 3 would be subjected to that painful practice should she marry. A recent State D epartment repo rt on fem ale genital mutilation in Ethiopia details the pre valence of the various forms of the practice. Abay testified that the threat of female genital mutilation Ethiopia: Report on Female Genital Mu tilation (FG M) o r Fem ale Genital comes not only from Amare’s own relatives, but also from Cutting, U.S. Dept. of State, Office of the Senior Coordinator for any future husband and his relatives. Abay testified that she International W omen’s Issues (June 1, 2001), available at feared she would not be able to override the wishes of a www.state.gov/g/wi/rls/rep/crfgm (Ethiopia). Clitoridectomy and husband or his family. At the time of the hearing, Amare’s excision are the two most common form practiced in Ethiopia, with excisio n being the most common. See id. teenage sisters had not yet married. The fact that Amare’s No. 02-3795 Abay et al. v. Ashcroft et al. 11 12 Abay et al. v. Ashcroft et al. No. 02-3795 sisters had been spared the practice at the hands of their own based on her fear that her daughter will be subjected to the relatives does not sufficiently outweigh Abay’s testimony that torture of female genital mutilation. In support of her she would not be able to prevent a future husband or his argument, Abay points out that the Board has previously relatives from demanding that it be done. Amare’s clearly indicated that a family member may be eligible for asylum expressed fear is rooted in the culture of Ethiopia. Should she based upon the physical harm inflicted upon another family be forced to choose between marriage and likely mutilation member. For example, in Matter of C-Y-Z, 21 I. & N. Dec. on the one hand, and social ostracism on the other, we believe 915, Dec. 3319 (BIA 1997), an alien seeking asylum argued that any young girl faced with such a choice would have a that the forced sterilization of his wife by government legitimate fear of persecution and draw support from the authorities in China conferred refugee status on him under Second Circuit’s opinion in Abankwah, supra. Accordingly, Act.4 The Board accepted the Service’s concession that an we find that the evidence presented compels the conclusion alien whose spouse was forced to undergo sterilization could that Amare has established that she is a “refugee” under the establish past persecution on account of political opinion and Act. found that the alien established that he was a “refugee” within the meaning of the Act. See id. at 919-20. In a concurring C. Abay’s asylum claim based on her fear that her opinion, Board member Rosenberg explained that a finding of daughter will be subjected to female genital persecution based on harm to an immediate family member is mutilation not uncommon: Abay specifically testified that she feared that her daughter It is not as unusual as one or all of my colleagues writing would be forcibly circumcised by her relatives or her separately would make it seem that the applicant should daughter’s future husband and his family should she return to be granted asylum although the harm experienced was Ethiopia. In his written opinion, however, the immigration not by him, but by a family member. judge focused only on Abay’s relatives, with whom Amare’s ... unmarried teenage sisters lived in Ethiopia, and stated that he It not only constitutes persecution for the asylum found it “hard to believe that this one daughter would be applicant to witness or experience the persecution of forcibly circumcised when the other daughters are able to family members, but it serves to corroborate his or her escape it.” (J.A. at 50.) The judge concluded that there was own fear of persecution. The treatment of the applicant’s no objective basis upon which to base an asylum claim. As wife supports the conclusion that the applicant, by virtue we stated previously, however, there is overwhelming of the events culminating in his wife’s forced objective evidence that a female child in Ethiopia will likely sterilization, has suffered past persecution and that his undergo female genital mutilation at some point. The issue fear is well founded. before the Court is really whether Abay can seek asylum in her own right based on a fear that her child will be subjected to female genital mutilation. Abay acknowledges that there is no express statutory 4 “[A] person who has been forced to abort a pregnancy or to undergo authority for a parent to claim “derivative asylum” based on involuntary sterilization, or who has been persecuted for failure or refusal her child’s asylee status. See 8 U.S.C. § 1158 (b)(3). She to undergo such a procedure or for other resistance to a coercive argues instead that she is eligible for asylum in her own right population control program, shall be deemed to have been persecuted on acco unt of political opinion . . . .” 8 U.S.C. § 110 1(a)(42)(B). No. 02-3795 Abay et al. v. Ashcroft et al. 13 14 Abay et al. v. Ashcroft et al. No. 02-3795 Id. at 926-27 (citations omitted). circumcised, the Board found that she had presented a sufficient basis to reopen her case and apply for asylum based We further note that the Service has previously granted on a well-founded fear of persecution. Id. In addition, the other forms of relief, including relief under the more stringent Board made clear that the alien need not “prove that she standard of withholding of removal, to the parents of female would take the child with her as part of her burden to children who reasonably fear that the children would be demonstrate eligibility for relief, if she has custody of the subject to female genital mutilation should they return to their child. . . . [N]ormally a mother would not be expected to leave parents’ country of origin. See, e.g., Matter of Adeniji, No. her child in the United States in order to avoid persecution.” A41 542 131 (oral decision) (U.S. Dept. of Justice, Id. Immigration Court, York, Penn., Mar. 10, 1998) (granting application for withholding of removal to an alien father We do not agree with government counsel that there is no otherwise ineligible for asylum because his citizen daughters authority for granting asylum to Abay based on her fear that would be forced to return to Nigeria with him, where they her daughter will be forced to undergo female genital would likely be subject to female genital mutilation by mutilation. The Board’s decision in Dibba, along with the relatives despite their father’s wishes); Matter of Oluloro, No. decisions cited above, suggest a governing principle in favor A72 147 491 (oral decision) (U.S. Dept. of Justice, of refugee status in cases where a parent and protector is Immigration Court, Seattle, Wash., Mar. 23, 1994) (granting faced with exposing her child to the clear risk of being suspension of deportation, directly resulting in permanent subjected against her will to a practice that is a form of resident status, to an alien mother because the risk that her physical torture causing grave and permanent harm. Given U.S.-born daughters would be subjected to female genital the evidence in the record that female genital mutilation is mutilation in Nigeria “posed an extreme hardship” to the “nearly universal” in Ethiopia; that Abay herself underwent daughters). the procedure at a young age; that Abay’s mother has already attempted to mutilate Abay’s older daughters, who still faced In Matter of Dibba, No. A73 541 857 (BIA Nov. 23, 2001), that prospect upon their marriage; that Abay would not be an alien mother filed a motion to reopen her case to apply for able to override any of her daughters’ future husbands or in- asylum based on her fear that her citizen daughter would be law’s wishes; and that the government of Ethiopia does not, subject to female genital mutilation in The Gambia. She as a practical matter, enforce laws intended to curb harmful argued that “she would be forced to allow the mutilation of traditional practices, we conclude that a rational factfinder her daughter and that the event and its consequences would would be compelled to find that Abay’s fear of taking her cause her mental suffering sufficient to constitute daughter into the lion’s den of female genital mutilation in persecution.” Id. at 2. The Board noted that the record Ethiopia and being forced to witness the pain and suffering of supported the prevalence of female genital mutilation in The her daughter is well-founded. Accordingly, we find that Abay Gambia and that, although the government disapproves of the is also a “refugee” within the meaning of the Act.5 practice, it is not illegal. The alien submitted evidence that she herself was subjected to FGM at a young age, and that her mother would demand that her daughter be similarly 5 mutilated if she returned to The Gambia. Although the Board Abay also seeks review of the Board’s denial of her claim for found that the alien had not yet “fully demonstrated” that she asylum based on her fear of persecution on acco unt of her mem bersh ip in the All Am hara P eop le’s Organiza tion, an opposition po litical party in would be in fact forced to allow her daughter to be Ethiopia. Because we decide the question of her refugee status based on No. 02-3795 Abay et al. v. Ashcroft et al. 15 16 Abay et al. v. Ashcroft et al. No. 02-3795 IV. Conclusion _____________________ For the reasons stated above, we reverse the decision of the CONCURRENCE Board of Immigration Appeals that the petitioners are not _____________________ eligible for asylum. Because the immigration judge did not reach the discretionary stage of their claims for asylum, we SUTTON, Circuit Judge, concurring in the judgment. I remand for proceedings not inconsistent with this opinion. agree with the majority that the prospect of female genital Further, because the standard for granting withholding of mutilation (FGM) may indeed give rise to a “well-founded deportation is more stringent than the standard for granting fear” of persecution, and I agree with the majority that the asylum, and because the immigration judge denied the request Immigration Judge’s efforts to resolve the claims of the as an a fortiori conclusion, we also remand the request for daughter (Amare) and the mother (Abay) raise as many withholding of deportation for further consideration in light questions as they answer. On this record, I thus agree that the of our conclusions stated above.6 Immigration Judge’s decision cannot be affirmed. I concur in the judgment rather than in the opinion because I fear that the majority’s opinion accepts two propositions in this area that current law does not support: (1) that women or girls may never be deported to a country where the incidence of FGM within the female population as a whole is high, regardless of the risk that a particular applicant will be subjected to FGM, and (2) that the parents of such children may not be deported either. As I read the relevant statutes, regulations and precedents, the law in this developing area does not support either generalization. In view of the stale nature of the evidence in this case as well as the fact that the administrative agency has not expressly given us its view on either point, I would prefer to ask the Immigration Judge to look at these issues in the first instance. I. female genital mutilation, we do not rea ch the m erits of this claim. A. 6 W hile we recognize that our colleague has written a concurrence, In rejecting Amare’s claim for asylum based on her fear of and not a d issent, it is important to note the differences between our being subjected to FGM, the Immigration Judge relied opinion and his co ncurrence. The basis o f the fear o f persecution in this case is well-estab lished o n the rec ord. The Go vernm ent’s position, and predominantly on the fact that Amare’s sisters—who still live the decision of the Board of Imm igration App eals, to deport, despite that in Ethiopia—have not been forced to undergo FGM. From well-established fear of persecution, is clear. Therefore, based on the this fact, the Immigration Judge reasoned that the threat to record, and the position of the governm ent and BIA , the circumstances in Amare could not be very serious either. That an asylum this case are such that this issue must be confronted now. No. 02-3795 Abay et al. v. Ashcroft et al. 17 18 Abay et al. v. Ashcroft et al. No. 02-3795 applicant fails to show “a reasonable possibility [that] . . . she where 50% of the total female population has undergone would be singled out individually for persecution,” however, FGM, “the likelihood of forced FGM being visited on anyone does not end the inquiry. 8 C.F.R. § 208.13(b)(2)(iii). An outside [a specific] ethnic group or area is minimal to asylum applicant may still qualify as a refugee if she can nonexistent”). show “that there is a pattern or practice . . . of persecution of a group of persons similarly situated” and that she is included The Immigration Judge did not consider any of these within that group. Id. § 208.13(b)(2)(iii)(C); see points, and the current record is either conspicuously silent on Ramsameachire v. Ashcroft, 357 F.3d 169, 183 (2d Cir. each point or is not helpful to Amare’s application. In her 2004). case, for instance, it appears that she is of Amharic ethnicity and a Christian, two groups that practice FGM in Ethiopia. Correctly invoking this second ground for relief, Amare But the Amharas, according to the State Department reports, points to statistics collected by the State Department showing practice the least severe form of FGM—Type I—and Amare’s that 90% of women and girls in Ethiopia have undergone age (17) may disqualify her even from that risk. In Ethiopia, FGM, then argues that these statistics necessarily establish a it turns out, FGM is most frequently performed within days “pattern or practice of persecution.” Even if that is true, of birth or between the age of seven and puberty. See U.S. however, Amare still must show that she is included within a Dep’t of State, Office of the Senior Coordinator for group at risk of being subjected involuntarily to FGM. 8 Int’l Women’s Issues, Ethiopia: Report on C.F.R. § 208.13(b)(2)(iii)(C). FGM practices vary by ethnic Female Genital Mutilation (FGM) or Female group, religion and geographic region, as well as by the age Genital Cutting (FGC) (June 1, 2001), at and marital status of the woman or girl. As a State http://www.state.gov/g/wi/rls/rep/crfgm/100098.htm. On Department report on FGM practices in Ethiopia this record, I submit, it makes sense to obtain more acknowledges, some “population groups” within the country information and more current information about these issues “do not practice FGM.” JA 187. As the federal statute that before announcing an opinion that grants relief not just to criminalizes FGM in this country acknowledges in regulating Amare but potentially to any girl or woman from Ethiopia. the practice only with respect to girls under eighteen years of age, the risks associated with FGM differ between girls and B. women. See 18 U.S.C. § 116; see also Nwaokolo v. INS, 314 F.3d 303, 309 (7th Cir. 2002) (describing threat of FGM to The current paucity of evidence regarding Amare’s claim four-year old girl as more significant than risk to 17-year old not only fails to make clear exactly what kind of risk she girl). And as another recent State Department report faces in returning to Ethiopia as a 17-year old girl, but it also acknowledges, Maj. Op. at 6 n.1, the types of FGM practiced fails to bring her within the orbit of any of the cases that have in Ethiopia are neither uniform in nature nor uniformly granted asylum in the context of an FGM claim. In the two debilitating to a woman’s physical and psychological health. instances in which a court of appeals granted relief on an Significant as the 90% may be, in other words, it does not FGM-based asylum claim, the evidence was far more establish that all women and girls—no matter their age, ethnic concrete than it is here and the risk of FGM was far more group, marital status, religion or geographic residence—face imminent than it is here. In one case, the applicant offered the same FGM risks or in some instances face any material evidence that she was a member of a particular tribe in Ghana risk at all. See Matter of Oluloro, No. A72 147 491, Slip Op. that practices FGM as punishment for premarital sex; that she at 4 (Immigr. Ct. Mar. 23, 1994) (noting that in Nigeria, had engaged in premarital sex; that her tribe would assuredly No. 02-3795 Abay et al. v. Ashcroft et al. 19 20 Abay et al. v. Ashcroft et al. No. 02-3795 learn this fact; and that her tribe would punish her as a result. persecution and would face “other serious harm” if deported, See Abankwah v. INS, 185 F.3d 18 (2d Cir. 1999). In the see 8 C.F.R. § 208.13(b)(1)(iii), a showing that Abay has not other case, the court relied on still more particularized yet made. evidence: the applicant’s family had already paid the traditional “bride price,” which created a binding marriage Circuit court precedent does not advance this claim either, contract that permitted the man to force his bride to undergo particularly in the absence of testimony that the child FGM. See Moshud v. Blackman, Nos. 98-6481 & 02-1545, effectively would be deported alongside the parent. See, e.g., 2003 WL 21404334, at *2 (3d Cir. June 18, 2003). Likewise, Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003) the administrative decision that established FGM as a (rejecting asylum claim to the extent it relied on mistreatment legitimate basis of persecution involved an imminent threat of of family members rather than of the applicant); Oforji v. forced FGM by the asylum applicant’s aunt and husband Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003) (rejecting stemming from an arranged marriage. See In re Kasinga, 21 mother’s claim for avoiding deportation based on the threat of I. & N. Dec. 357 (BIA 1996). FGM to her daughters as lacking in statutory or regulatory authority); Osigwe v. Ashcroft, No. 02-60725, 2003 WL II. 22287540, at *1 (5th Cir. Oct. 6, 2003) (noting that the parents of a girl who would be forced to undergo FGM if The immigration statutes and case law also fail to support returned to Nigeria “are not eligible for asylum under the Abay’s—the mother’s—derivative claim of asylum, at least general asylum provisions based solely on their daughter’s on the current record. “A spouse or child . . . of an alien who risk of being subject to FGM”); Tamas-Mercea v. Reno, 222 is granted asylum,” the applicable statute says, “may, if not F.3d 417, 424 (7th Cir. 2000). The Seventh Circuit, it is true, otherwise eligible for asylum . . . , be granted the same once endorsed a “constructive deportation” theory, which status.” 8 U.S.C. § 1158(b)(3)(A). By its terms, the statute covered parents who established that their children (who does not include parents as individuals who may obtain a otherwise had a legal right to remain in the country) would in derivative grant of asylum. And to the extent Abay, like the effect be deported along with their parents and face “extreme applicant in the Oluloro case, supra, see Maj. Op. at 12, hardship.” See Salameda v. INS, 70 F.3d 447, 451 (7th Cir. seeks a suspension of deportation based on “extreme 1995). But, again, this theory rested on the now-repealed hardship” to her child, see 8 U.S.C. § 1254(a)(2) (1995), that immigration statute mentioned above. To the extent recent provision was repealed. See Omnibus Consolidated cases suggest that the theory has continuing currency, they do Appropriations Act of 1997, Pub. L. No. 104-208, so in the context of concrete indications that the child would § 308(b)(7), 110 Stat. 3009 (1996). The replacement be forced to accompany the deported parent. See Obazee v. provision does not encompass Abay’s claim. See 8 U.S.C. Ashcroft, No. 02-3416, 2003 WL 22473831, at *3 (7th Cir. § 1229b (allowing “cancellation of removal” for permanent Oct. 24, 2003) (acknowledging the “constructive deportation” resident aliens who, among other requirements, “establish[] theory but refusing to grant relief because the petitioner did that removal would result in exceptional and extremely not point to any evidence that her daughter would necessarily unusual hardship to the alien’s . . . child, who is a citizen of have to leave the United States); Nwaokolo, 314 F.3d at 310 the United States or [an alien permanent resident]”). Nor (granting reopening to determine whether a mother could does the regulatory authority that permits “humanitarian” obtain relief under the Convention Against Torture based on grants of asylum add traction to Abay’s derivative claim. It the fear that her four-year old daughter would face is reserved for individuals who have established past involuntary FGM if she were deported). No. 02-3795 Abay et al. v. Ashcroft et al. 21 No more helpful to this claim are the administrative decisions of the agency. Matter of C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997), involved the asylum claim of a man whose wife was at risk of being forced to undergo sterilization. In considering whether the husband qualified as a “refugee” under 8 U.S.C. § 1101(a)(42), the parties agreed that “the forced sterilization of one spouse . . . is an act of persecution against the other spouse.” Id. at 919. And while Matter of Adeniji, No. A41 542 131, Slip Op. at 10 (Immigr. Ct. Mar. 10, 1998), extended the C-Y-Z logic to the FGM context, it did so with respect to five- and six-year old children. Also missing from the record is any evidence that Abay will be “faced with exposing her child to the [] risk of being subjected to” FGM unless she is granted asylum. Maj. Op. at 13. The record contains nothing but silence on whether Amare would follow her mother to Ethiopia if she were deported. As a 17-year old girl who has been in this country for almost 11 years, Amare may well have other options. More critically, this evidentiary void ought to be filled before relief is granted. III. Even though the relevant statutes and case law currently do not support Amare’s claim and do not support granting asylum to Abay on a derivative basis, I agree with the decision to remand the case. Each claim is of recent vintage, the record is conspicuously meager with respect to each claim, and the Immigration Judge ought to be given a chance to address each claim in the context of a fresh, recently- supplemented record and after consideration of the agency’s “considerable experience and expertise” on these issues. Azanor v. Ashcroft, 364 F.3d. 1013, 1021 (9th Cir. 2004) (remanding case for consideration of an FGM-based derivative torture claim and treating the claim as a question of “first impression”).