Aminata Dieng v. Eric Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0381p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Petitioners, -
AMINATA DIENG, OUSSEYNOU N’DIAYE LO,
-
-
-
No. 10-3497
v.
,
>
-
Respondent. -
ERIC H. HOLDER, JR., Attorney General,
N
On Petition for Review of an Order
of the Board of Immigration Appeals.
Nos.: A88-197-111; A93-428-046.
Argued: November 16, 2011
Decided and Filed: November 8, 2012
Before: NORRIS, SUTTON, and GRIFFIN, Circuit Judges.

_________________

COUNSEL
ARGUED: William J. Kovatch, Jr., Alexandria, Virginia, for Petitioners. Lisa
Morinelli, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: William J. Kovatch, Jr., Alexandria, Virginia, for Petitioners.
Lisa Morinelli, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
_________________

OPINION
_________________

GRIFFIN, Circuit Judge. Lead petitioner Aminata Dieng and her husband
Ousseynou N’Diaye Lo are natives and citizens of Senegal. They seek review of the
Board of Immigration Appeals’ (“BIA’s”) final order of removal, denying their
applications for asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (“CAT”), 8 C.F.R. §§ 1208.16(c), 1208.17.
Because reasonable and substantial evidence supports the BIA’s finding that Dieng does

1
No. 10-3497 Dieng, et al. v. Holder Page 2

not harbor a well-founded fear of persecution for herself or her daughters—based on the
prospect of being subjected to female genital mutilation (“FGM”) in Senegal—we deny
the petition for review.

I.

Petitioner Lo entered the United States in 1997 with a non-immigrant student
visa for the purpose of attending the University of Tennessee. He reunited with Dieng,
whom he first met in Senegal in 1994, when she used a false passport to enter the United
States in September 2003. They married in November 2005 and their daughter Mame
was born in April 2006 in Virginia. Dieng has another daughter, Mariame, who was
born in Gambia in January 2003 as a result of Dieng’s out-of-wedlock relationship with
another Senegalese citizen. Since her birth, Mariame has remained in Gambia with her
maternal grandmother.

Petitioners submitted their affirmative asylum application in March 2007. The
U.S. Citizenship and Immigration Service denied the application and placed petitioners
in removal proceedings. On November 8, 2007, Dieng and Lo appeared before an
immigration judge (“IJ”), admitted all allegations in the Notices to Appear, and
conceded removability.1 Dieng requested asylum, withholding of removal, and
protection under the CAT, with Lo as a derivative applicant. Dieng alleged persecution
based on her race, religion, and membership in a particular social group (the Fulani
ethnic group), stemming from past unsuccessful attempts by relatives to circumcise her,
and her fear that if removed to Senegal, she and her daughters would be at risk of being
subjected to FGM.

On August 26, 2008, a removal hearing was held before an IJ in Cleveland.
Dieng and Lo, represented by counsel, both testified. Dieng, then twenty-five years old,
stated that she was born and raised in Dakar, Senegal, as a member of the Toucouleur

1
In the Notices to Appear, Dieng was charged with being subject to removal pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled; Lo was
charged under 8 U.S.C. § 1227(a)(1)(C)(i), for violating the conditions of his non-immigrant status by
failing to attend the university.
No. 10-3497 Dieng, et al. v. Holder Page 3

(Halpularen) tribe and the Fulani ethnic group, which commonly practices FGM. She
testified that her older sister died at the age of three from an infection caused by
circumcision. The FGM was performed by relatives with the consent of Dieng’s parents,
who allowed it because it was “part of the culture.” However, in the wake of her sister’s
death, Dieng’s parents opposed the practice of FGM and their relatives’ attempts to
circumcise Dieng.

Dieng recalled two such attempts at FGM—once when she was approximately
three years old, and years later, in May 2001, when she was eighteen or nineteen. On
both occasions, Dieng’s parents intervened successfully to stop the circumcision, but not
without physical confrontations resulting in minor injuries to Dieng, threats, and a
deterioration in family relations. Neither of these altercations was reported to the
police, and Dieng remained at her parents’ house without further incident until April
2002 when, unmarried and pregnant with Mariame, her father advised her to leave the
country. Dieng and her mother traveled to Banjul, Gambia, and stayed there with a
family friend. In January 2003, Dieng gave birth to Mariame, who has remained in
Gambia with Dieng’s mother. Allegedly fearful that her relatives would find her in
Gambia, Dieng traveled to the United States in September 2003 and gained entry
through the use of a false passport.

Dieng testified that Lo, from a different area in Senegal, is a member of the
Wolof ethnic group, which does not practice FGM. Dieng stated that their daughter
Mame is considered to be a Wolof and, therefore, Wolof customs would govern Mame’s
circumstances. Dieng testified that if she and Lo were deported to Senegal, Mame
would accompany them “because I don’t have anybody to keep my daughter [in the
United States].”

Significantly, Dieng testified that if she returned to Senegal, it would be “too late
for them to have me circumcised now, since I’ve been married and now have two
children. I’m worried about my two girls. And they can act in a way that it can break
No. 10-3497 Dieng, et al. v. Holder Page 4

my marriage, because I’m married now.”2 Her attorney then asked her what she thought
would happen to her two daughters, and she answered, “My two girls are little, and they
[Dieng’s relatives] can circumcise them.” Even though Dieng’s Fulani relatives lived
in a rural area a considerable distance from Dakar, she claimed that there was no place
in Senegal where she would feel safe because they could find her anywhere, and the
police would not provide protection.

In his testimony at the hearing, Lo stated that when Dieng first arrived in the
United States, she told him that she moved to avoid FGM and that she was afraid to
return to Senegal. Lo testified that in the event of their deportation, he preferred not to
leave Mame behind in the United States, even though Lo’s brother was a United States
citizen, living in Virginia, who could “probably” care for Mame. Despite his
acknowledgment that the Wolofs do not practice circumcision, Lo thought that Mame
was at risk of being circumcised in Senegal; but when questioned as to who would
attempt the FGM, he answered, “I have—honestly, I don’t know. I would say the first
person who laid hands on her.” Like Dieng, he testified that there was no part of Senegal
where his family could relocate safely because extended family members who practiced
FGM would find and circumcise Mame. Lo acknowledged that he could report any
FGM attempts to the Senegalese police, but “they won’t be able to do anything about it,
because it’s a cultural thing.”

The parties proffered various reports and articles that addressed the current rate
of FGM in Senegal including, inter alia, the U.S. Department of State’s reports entitled
Senegal: Report on Female Genital Mutilation (FGM) or Female Genital Cutting
(FGC) (July 1, 2001) (the “FGM Report”); and Senegal, Country Reports on Human
Rights Practices—2007 (released on Mar. 11, 2008) (the “2007 Country Report”).
Overall, the FGM Report estimated that approximately twenty percent of the female
population of Senegal had undergone FGM, with higher rates among the rural
Halpularen (Peul and Toucouleur) ethnic groups.

2
Dieng explained that her relatives might not acknowledge her marriage to Lo and might try to
give or marry her to someone else. She added that Lo would not permit this to occur.
No. 10-3497 Dieng, et al. v. Holder Page 5

At the conclusion of the removal hearing, Dieng withdrew her contention,
originally set forth in her asylum application, that she had suffered persecution on
account of her race and religion, and limited her claim to alleged persecution on the basis
of her membership in a particular social group, i.e., her affiliation with the Fulani tribe,
which practices FGM.

The IJ issued an oral decision finding petitioners removable as charged and
denying all relief. As a preliminary matter, the IJ determined that petitioners’ asylum
application was time-barred under 8 C.F.R. § 1208.4(a)(2). Next, considering their
request for withholding of removal, the IJ found that although petitioners were credible
witnesses,3 Dieng failed to demonstrate past persecution or a well-founded fear of future
persecution based upon the threat of FGM to herself and her daughters. See generally
8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1)(i). Finally, the IJ held that the evidence
presented did not qualify petitioners for relief under the CAT. In lieu of a removal order,
the IJ granted petitioners’ request for voluntary departure.

Petitioners’ subsequent appeal to the BIA was unavailing. In its written order
issued on March 25, 2010, the BIA held that petitioners demonstrated changed
circumstances with the birth of their daughter Mame in April 2006 that materially
affected their eligibility for asylum, and because the asylum application was filed within
a reasonable period after her birth, it was timely filed under 8 C.F.R. § 1208.4(a)(4).
Further, contrary to the IJ’s findings, the BIA found that Dieng established past
persecution due to her membership in a particular social group, based upon her credible
testimony that her Fulani relatives twice attempted to subject her to FGM.

3
However, the same cannot be said for the translator who translated several documents that
petitioners submitted as exhibits. The IJ determined that at least one of these documents—an English-
language version of the death certificate for Dieng’s sister (which specified her cause of death as “vaginal
hemorrhage from female genital mutilation,” unlike the French-language version, which listed no cause
of death)—was clearly incorrect and had been fabricated by the translator. Although the IJ was hesitant
to impute this falsity to petitioners, he concluded that the “translator [was], in the judgment of the Court,
not worthy of belief and no document translated by him will be considered or given any weight
whatsoever.” Consequently, in addition to the death certificate, several other exhibits, including letters
from Dieng’s college-aged cousin (claiming that she had been forcibly circumcised during a return visit
to Senegal) and her uncle, were excluded.
No. 10-3497 Dieng, et al. v. Holder Page 6

However, the BIA held that the government successfully rebutted the resultant
presumption of a well-founded fear of future persecution by showing that there had been
a fundamental change in circumstances, i.e., Dieng testified that due to her age, marital
status, and the birth of her two children, she no longer feared being subjected to FGM.
See 8 C.F.R. § 1208.13(b)(1)(i)(A). Alternatively, a preponderance of the evidence
established that it was reasonable for petitioners to relocate to another area of Senegal
to avoid FGM. See 8 C.F.R. § 1208.13(b)(1)(i)(B). In this regard, the BIA cited
(1) Lo’s testimony that he was a member of the Wolof tribe, which does not practice
FGM; (2) the dearth of evidence showing that Dieng’s Fulani relatives (if still alive)
would learn of her whereabouts in Senegal and seek her out to attempt FGM; and (3) the
State Department’s reports indicating that while the outlawed practice of FGM is
common in Senegal, it is not universal.

The BIA also rejected Dieng’s separate claim arising from Abay v. Ashcroft,
368 F.3d 634 (6th Cir. 2004), that she had a well-founded fear of persecution because
her daughters would likely be subjected to FGM if they returned with her to Senegal:

[I]n [In re] A-K-, 24 I & N 275 (BIA 2007), we distinguished Abay on
facts very similar to those now present before us, and concluded that
Senegalese parents of a United States citizen daughter could not claim
asylum based on their fear that the daughter would be subject to FGM.
Abay, in contrast, had involved a non-U.S. citizen daughter who faced
return, with her parents, to Ethiopia, a country with a far higher
prevalence of FGM. The respondents’ appellate arguments do not
persuade us that the facts in their case are distinguishable from those in
[In re] A-K-, or that the holding in that case should not apply here.

(Footnote omitted.)4

The BIA reiterated the reasonable option of relocation to a safe area and further
noted that Mame would be considered a member of her father’s Wolof tribe, which does
not practice FGM. As to Mariame, the BIA found no evidence demonstrating that she
faced any threat—past or present—of FGM in Gambia or that she would return with

4
In his oral decision, the IJ similarly distinguished Abay from the present circumstances and
instead found In re A-K- to be persuasive authority.
No. 10-3497 Dieng, et al. v. Holder Page 7

petitioners to Senegal if they were removed from the United States. The BIA therefore
denied petitioners’ applications for asylum and withholding of removal, and found no
evidence to support their claim for relief under the CAT. Accordingly, the BIA
dismissed petitioners’ appeal. We granted petitioners’ motion to stay removal pending
a decision on the merits of their petition for review filed in this court.

II.

In cases where the BIA has issued a separate opinion, instead of summarily
affirming the IJ’s decision, we review the BIA’s decision as the final agency
determination. Khalil v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We review the
factual findings of the BIA under the highly deferential substantial-evidence standard.
Id. “Under this standard, we will not reverse a factual determination of the IJ unless we
find that the evidence not only supports a contrary conclusion, but compels it.” Ceraj
v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007) (citation and internal quotation marks
omitted); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary[.]”). “The appropriate inquiry is whether the applicable evidence was such that
a reasonable factfinder would have to conclude that the requisite fear of persecution
existed.” Abay, 368 F.3d at 637 (citation and internal quotation marks omitted). The
legal conclusions of the BIA are subject to our de novo review, but we will defer to the
agency’s reasonable interpretations of its own precedents. Bi Xia Qu v. Holder, 618 F.3d
602, 606 (6th Cir. 2010).

Asylum may be granted to an alien who establishes that he or she is a
“refugee”—one “who is unable or unwilling to return to . . . [his or her home country]
because of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(B)(i); see also Pilica v. Ashcroft, 388 F.3d 941, 950–51
(6th Cir. 2004). “If an individual is eligible for asylum, then the applicant bears the
burden of establishing that the favorable exercise of discretion [by the Attorney General]
No. 10-3497 Dieng, et al. v. Holder Page 8

is warranted.” Cruz-Samayoa v. Holder, 607 F.3d 1145, 1150–51 (6th Cir. 2010)
(citation and internal quotation marks omitted).

An alien who establishes past persecution on account of a statutorily enumerated
ground is presumed to have a well-founded fear of future persecution. Pilica, 388 F.3d
at 950; 8 C.F.R. § 1208.13(b)(1). “[A] moderate interpretation of the ‘well-founded
fear’ standard would indicate that so long as an objective situation is established by the
evidence, it need not be shown that the situation will probably result in persecution, but
it is enough that persecution is a reasonable possibility.” INS v. Cardoza-Fonseca,
480 U.S. 421, 440 (1987) (citation and internal quotation marks omitted). The fear of
future persecution must be based on reasonably specific information showing a real
threat to individual persecution, not mere assertions of fear of possible persecution or
speculative conclusions. Maypouya v. Gonzales, 487 F.3d 396, 412 (6th Cir. 2007).

The government can rebut the presumption if, by a preponderance of the
evidence, it shows that “[t]here has been a fundamental change in circumstances such
that the applicant no longer has a well-founded fear of persecution in the applicant’s
country of nationality,” or that “[t]he applicant could avoid future persecution by
relocating to another part of the applicant’s country of nationality . . . and under all the
circumstances, it would be reasonable to expect the applicant to do so.” 8 C.F.R.
§ 1208.13(b)(1)(i)(A)-(B); see also Hussein v. Holder, 380 F. App’x 474, 481 (6th Cir.
2010). The reasonableness of internal relocation requires the consideration of numerous
factors, including “‘whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country; administrative,
economic, or judicial infrastructure; geographical limitations; and social and cultural
constraints, such as age, gender, health, and social and familial ties.’” Ghanim v.
Holder, 425 F. App’x 463, 467 (6th Cir. 2011) (quoting 8 C.F.R. § 1208.13(b)(3)). State
Department reports are generally the best gauge of conditions in foreign countries.
Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004).
No. 10-3497 Dieng, et al. v. Holder Page 9

III.

A.

Petitioners first challenge the BIA’s finding that the government rebutted the
presumption of a well-founded fear of future persecution accorded to Dieng because it
has shown a fundamental change in her circumstances, or, alternatively, that they may
feasibly relocate to a safe area in Senegal to avoid the FGM threat. Our review of the
evidence does not compel a contrary result.

Unquestionably, “[FGM] involves the infliction of grave harm constituting
persecution on account of membership in a particular social group that can form the
basis of a successful claim for asylum.” Abay, 368 F.3d at 638; see also Niang v.
Gonzales, 492 F.3d 505, 512 (4th Cir. 2007); Hassan v. Gonzales, 484 F.3d 513, 517
(8th Cir. 2007); Bah v. Gonzales, 462 F.3d 637, 642 (6th Cir. 2006); Abebe v. Gonzales,
432 F.3d 1037, 1042 (9th Cir. 2005) (en banc). Thus, the fact that Dieng suffered past
persecution through the two attempts at FGM by her relatives is not to be discounted
given her credible testimony.

Nonetheless, substantial evidence supports the BIA’s conclusion that Dieng’s
personal circumstances have changed, such that her fear of FGM in the future is neither
subjectively genuine nor objectively reasonable. See Maypouya, 487 F.3d at 412. By
her own admission, Dieng has effectively “aged out” of the threat of FGM in Senegal.
The fact that she is now in her mid-twenties, married to a Wolof, and has given birth to
two children eliminates any reasonable possibility that she would be subjected to FGM
upon her return to Senegal.

That Dieng’s fear is not well founded is borne out by the State Department
reports for Senegal. Although FGM is still practiced in Senegal, despite its
criminalization in 1999 by the Senegalese government, the FGM Report estimated that
approximately twenty percent of the female population in Senegal has undergone FGM,
with ninety percent of these females being between the ages of two and five. The Wolof
and Serere ethnic groups, and most Christians, do not engage in FGM, and it is hardly
No. 10-3497 Dieng, et al. v. Holder Page 10

practiced at all in most heavily populated urban areas. The practice of FGM is primarily
concentrated in rural areas amongst the Halpularen (Peul and Toucouleur) ethnic group.
The 2007 Country Report noted that as a result of the government’s educational efforts
to eradicate FGM, 2,336 out of an estimated 5,000 communities had formally abandoned
the practice.

Against this backdrop of FGM’s steady decline in Senegal, Dieng does not fit the
demographic profile of a woman at risk of FGM. Her individualized fear of persecution
is negated by her age and marital status, her Wolof husband’s opposition to FGM, and
petitioners’ ability to relocate safely to an urban location or region of Senegal where the
outlawed practice of FGM is rare. Dieng’s nebulous claim that her relatives could
“break” her marriage is speculative at best, as is her belief that her Fulani relatives from
a rural area would find her in Senegal’s expanse with the purpose of circumcising her.

We therefore agree with the BIA that Dieng’s fear that she will fall victim to
FGM upon her return to Senegal is not well founded. See Gomis v. Holder, 571 F.3d
353, 360 (4th Cir. 2009), cert. denied, 130 S. Ct. 1048 (2010) (denying Senegalese
alien’s petition for review where “[t]he weight of the record evidence, including her age
[29], her education, and the decreased incidences of FGM in Senegal, specifically in
Dakar, supports the immigration judge and the BIA’s finding that it is not more likely
than not that [the alien] will face persecution.”); In re A-K-, 24 I. & N. Dec. at 277
(citing improved conditions in Senegal with regard to FGM and the feasible relocation
of the applicant with his daughters to an area of comparative safety in denying his
asylum claim); but see Seck v. U.S. Atty. Gen., 663 F.3d 1356, 1367–68 (11th Cir. 2011)
(remanding to the BIA for further consideration of the Senegalese alien’s application for
withholding of removal where the BIA failed to consider undisputed evidence of specific
family conditions that placed the alien and her daughter in greater danger of FGM than
what was reflected by the State Department reports).

Since Dieng has failed to meet her burden of proving eligibility for asylum, she
necessarily fails to meet the more stringent burden required for withholding of removal.
Lin v. Holder, 565 F.3d 971, 975 (6th Cir. 2009). Likewise, her failure to show that it
No. 10-3497 Dieng, et al. v. Holder Page 11

is more likely than not that she would be tortured if removed to Senegal precludes relief
under the CAT. 8 C.F.R. § 1208.16(c)(2).

B.

Although Dieng has failed to show that she will be singled out for persecution,
the question remains whether the evidence supports her separate and distinct claim of
direct persecution based on her fear that her daughters will be circumcised if they
accompany petitioners to Senegal. Both the IJ and the BIA rejected this claim as lacking
a factual basis, as do we.

In support of their argument, petitioners rely upon our court’s decision in Abay,
in which we held that an applicant “can seek asylum in her own right based on a fear that
her child will be subjected to [FMG].” Abay, 368 F.3d at 641. The Ethiopian
petitioners, a mother (Abay) and her nine-year-old daughter (Amare), sought review of
the BIA’s order denying their consolidated applications for asylum and withholding of
removal. Id. at 635–36. Their claim for relief rested upon their common fear that Amare
would be subjected to FGM if deported to Ethiopia. Id. at 636. We reversed the BIA’s
order and granted the petition, holding that the evidence compelled the conclusion that
both Amare’s and Abay’s fears were well-founded. Id.

The evidence consisted in part of State Department Reports for Ethiopia, which
indicated that FGM at that time had not been outlawed and was “nearly universal,” with
ninety percent of all females subjected to some form of FGM. Id. at 639. Additional
articles and reports established that because FGM was the cultural norm in Ethiopia,
females who did not undergo the procedure would be subjected to persecution and social
ostracism and would be considered unworthy of marriage. Id. Further, the testimony
introduced at the removal hearing indicated that Abay had been circumcised by her own
mother, and that she would be unable to prevent the forced circumcision of any of her
daughters, including Amare, by relatives or future husbands and in-laws. Id.

Recognizing that “there is no express statutory authority for a parent to claim
‘derivative asylum’ based on her child’s asylee status,” id. at 641 (citing 8 U.S.C.
No. 10-3497 Dieng, et al. v. Holder Page 12

§ 1158(b)(3)),5 a panel of this court gleaned from BIA decisions “a governing principle
in favor of refugee status in cases where a parent and protector is faced with exposing
her child to the clear risk of being subjected against her will to a practice that is a form
of physical torture causing grave and permanent harm.” Id. at 642. Applying this
principle to Abay’s circumstances, our court held:

Given the evidence in the record that [FGM] is “nearly universal” in
Ethiopia; that Abay herself underwent the procedure at a young age; that
Abay’s mother has already attempted to mutilate Abay’s older daughters,
who still faced the prospect upon their marriage; that Abay would not be
able to override any of her daughters’ future husbands or in-law’s
wishes; and that the government of Ethiopia does not, as a practical
matter, enforce laws intended to curb harmful traditional practices, we
conclude that a rational factfinder would be compelled to find that
Abay’s fear of taking her daughter into the lion’s den of [FGM] in
Ethiopia and being forced to witness the pain and suffering of her
daughter is well-founded. Accordingly, we find that Abay is also a
“refugee” within the meaning of the Act.

Id.6 But see Niang, 492 F.3d at 512 (disagreeing with Abay that psychological harm,
without any accompanying physical harm, can constitute persecution in the context of
persecution of a petitioner’s child by FGM).

Here, the BIA declined to apply Abay to Dieng’s case, finding that Abay was
factually distinguishable. Instead, the BIA followed the rationale set forth in its own
post-Abay decision, In re A-K-, in which the Board denied relief to a Senegalese
applicant, a member of the Fulani tribe, who sought asylum or withholding of removal

5
Or, for that matter, withholding of removal. See Castellano-Chacon v. INS, 341 F.3d 533, 545
(6th Cir. 2003) (“Unlike an application for asylum, . . . a grant of an alien’s application for withholding
is not a basis for adjustment to legal permanent resident status, [and] family members are not granted
derivative status . . . .”); Gaziev v. Holder, No. 11-3595, 2012 WL 3126754, at *3 (6th Cir. Aug. 2, 2012)
(unpublished) (“[T]he plain language of [8 C.F.R.] § 1208.16(e) does not create a derivative beneficiary
status to applications for withholding of removal . . . .”).
6
Judge Sutton concurred in the judgment only, expressing concerns 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.
Abay, 368 F.3d at 643 (Sutton, J., concurring).
No. 10-3497 Dieng, et al. v. Holder Page 13

based solely on his fear that his United States citizen daughters would be subjected to
FGM upon their return with him to Senegal. In re A-K-, 24 I. & N. Dec. at 279. In
concluding that the petitioner’s claim was not viable, the BIA cited two key factual
differences that rendered Abay inapposite:

[Abay] involved a situation where the daughter of the alien in removal
proceedings had no lawful status in the United States and could not
legally remain in the country in the event of her mother’s removal in
order to avoid persecution. Thus, unlike the situation in Abay, where the
alien parent was “faced with exposing her child to the clear risk” of
FGM, . . . the children in the instant matter could avoid this risk
altogether by remaining in the United States, which they are legally
entitled to do, either by staying with the parent who is not currently in
removal proceedings, or through the appointment of a guardian to ensure
their welfare until such time as they reach majority. Finally, in Abay, the
Sixth Circuit determined that the practice of FGM in Ethiopia was
“nearly universal,” and thus that there was little doubt that the
respondent’s daughters would undergo the procedure if they
accompanied their mother to that country.
By contrast, the State Department’s 2005 country report on human rights
practices in Senegal indicates that FGM is common only in certain areas
of the country. A State Department asylum profile of Senegal also
indicates that FGM is not practiced at all by the country’s largest social
group. Accordingly, it appears that even if the respondent’s children
were to accompany him to Senegal, they could avoid FGM by relocating
to an area of comparative safety.

Id. at 277 (citations omitted); see also Sinayoke v. Holder, 474 F. App’x 34, 36 (2d Cir.
2012) (“[A]sylum eligibility cannot be based solely on the risk of FGM being performed
on a U.S. citizen child, absent the risk of persecution to the applicant individually.”);
Niang, 492 F.3d at 512 (denying withholding of removal based on the psychological
harm the petitioner would suffer if her daughter accompanied her to Senegal because
“unlike the asylum applicant in Abay, Niang’s daughter is a U.S. citizen; accordingly,
there is no clear probability that Niang’s daughter will be subjected to FGM as she could
remain in the U.S., albeit without Niang, and avoid any potential persecution”); but cf.
Kone v. Holder, 620 F.3d 760, 766 (7th Cir. 2010) (remanding case to the BIA to
consider whether the threat of FGM to an alien’s U.S. citizen child constituted direct
persecution of the parents under the CAT).
No. 10-3497 Dieng, et al. v. Holder Page 14

In its subsequent denial of the petition for review in In re A-K-, the Fifth Circuit
Court of Appeals underscored the importance of differentiating between derivative and
direct claims for asylum:

Derivative asylum claims typically involve the grant of asylum status to
a spouse or minor child (but not a parent) who accompanies an alien
already eligible for asylum status, even though the spouse or child might
not otherwise be eligible for asylum. See 8 U.S.C. § 1158(b)(3). The
reverse is presented here: Kane (the parent) seeks asylum or withholding
based on the potential hardship that his removal might occasion for his
minor children, both of whom hold birthright U.S. citizenship. The
difference is significant. In the former, the child’s derivative claim flows
from the parent’s—a result that is expressly contemplated, through
statute, by the initial grant of asylum. Under the latter framework,
however, which is not contemplated by the INA, an illegal immigrant
from a country that practices FGM could “create” a right to remain in the
United States via asylum or withholding of removal simply by having a
female child at any time during the immigrant's presence here.

Kane v. Holder, 581 F.3d 231, 242 n.36 (5th Cir. 2009); see also In re A-K-, 24 I & N
Dec. at 278 (“Automatically treating harm to a family member as being persecution to
others within the family is inconsistent with the derivative asylum provisions, as it would
obviate the need for these provisions in many respects.”).

The factual distinctions from Abay drawn in In re A-K- and confirmed in Kane
are equally valid and determinative in Dieng’s case. The virtually unavoidable threat of
FGM in Ethiopia is not comparable to conditions in Senegal, and from Mame’s
particular standpoint, as a Wolof with parents who oppose FGM, she would not be
in jeopardy if she chose to return to Senegal with petitioners. See Hounmenou v.
Holder, - - - F.3d- - - -, 2012 WL 3930991, at *4 (8th Cir. Sept. 11, 2012) (“Assuming
without deciding that [the petitioner] was entitled to raise a claim of direct persecution
based on the threat of FGM to his daughter Marine, such a claim would necessarily fail
because the IJ expressly found that Marine herself did not have a well-founded fear of
being subjected to FGM.”).

In any event, as a U.S. citizen, Mame is legally entitled to remain in the United
States, thereby completely avoiding any risk of FGM in Senegal and effectively quelling
No. 10-3497 Dieng, et al. v. Holder Page 15

Dieng’s fear that Mame will be persecuted. As in In re A-K-, Mame can remain in the
United States either by staying with Lo’s relative, or through the appointment of a
guardian until she reaches the age of majority. “Although this admittedly presents
[petitioners] with a difficult and painful decision, we see no reversible error in the BIA’s
determination.” Kane, 581 F.3d at 240; see also Niang, 492 F.3d at 513 n.11 (noting that
such a choice “may work a hardship on U.S. citizen children, who may be forced to
accompany their parents to the country of removal, . . . [but] this hardship is
countenanced by the INA and not violative of the children’s constitutional rights”).

To the extent Dieng rests her application for relief on the fear that her oldest
daughter Mariame, who resides in Gambia and is not a U.S. citizen, will be subjected to
FGM, it is based on conjecture and therefore infirm. Cf. Bah, 462 F.3d at 643 (holding
that the petitioner could not establish a derivative asylum claim where her daughters
continued to live abroad in a country where they faced the threat of FGM and never
sought asylum in the United States based on their fear of persecution).

As this case demonstrates, the governing principle that we announced in Abay
must be tempered by an overriding obligation under the INA to examine the unique facts
of each case. “[A]n asylum determination entails an individualized assessment,” Ashafi
v. Holder, 418 F. App’x 447, 450 (6th Cir. 2011), and “the determination of whether or
not a particular applicant’s fear is rebutted by general country conditions information
requires an individualized analysis that focuses on the specific harm suffered and [its]
relationship to . . . the particular information contained in the relevant country reports.”
Chand v. INS, 222 F.3d 1066, 1079 (9th Cir. 2000). In particular, “FGM practices vary
by ethnic group, religion and geographic region, as well as by the age and marital status
of the woman or girl.” Abay, 368 F.3d at 644 (Sutton, J., concurring).

Here, upon this record, the BIA’s conclusion that Dieng did not prove her direct
persecution claim on the basis of her fears for her daughters is supported by reasonable
and substantial evidence.
No. 10-3497 Dieng, et al. v. Holder Page 16

IV.

For the foregoing reasons, we deny the petition for review.