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 *515Senegal and forced to subject her daughter to female genital mutilation (FGM). For the reasons that follow, I believe that the majority, by independently creating a per se rule that psychological harm alone cannot constitute persecution, without considering 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 respectfully dissent.
I.
A.
Although the majority opinion purports to apply the substantial evidence 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 512. 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 persecution by virtue of his wife’s forced sterilization. Neither the statute nor its implementing regulations define “persecution,” and the majority, by (1) ignoring the BIA’s interpretation of the term “persecution” in In re C-Y-Z and (2) independently establishing such a broad precedent 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 interpretation of the Immigration and Nationality Act (INA or “the Act”) and any attendant regulations, Christensen v. Harris County, 529 U.S. 576, 586-88, 120 S.Ct. 1655, 146 L.Ed.2d 621 (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 Immigration Judge (IJ)’s decision, “we review the decision of the IJ as supplemented 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., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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, 104 S.Ct. 2778. 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, 104 S.Ct. 2778. Pursuant to Auer, an agency’s interpretation of its own regulations is “controlling unless *516plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (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 ... seeking] 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 “although the harm experienced was not by him, but by a family member,” and that “it ... constitutes persecution for the asylum applicant to witness or experience the persecution of family members.” Id. at 926 (Rosenberg, concurring).
Also, we have previously stated that torture may constitute persecution. See Li v. Gonzales, 405 F.3d 171, 177 (4th Cir.2005) (stating that “[persecution involves the infliction or threat of death, torture, or injury to one’s person or freedom” (internal quotation marks omitted)). The majority, however, does not consider legal and nonlegal 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 suffering, 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 country in which in his opinion the alien would be subject to physical persecution ....” Pub.L. No. 82-414, 66 Stat. 163, 214 (1952) (codified at INA § 243(h), 8 U.S.C.A. § 1253(h)) (emphasis added). In 1965, Congress amended INA § 243(h) “by striking out ‘physical persecution’ 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 interpretation 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 re C-Y-Z. This conflict has occurred because the majority, rather than reviewing an interpretation of *517“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, 123 S.Ct. 353, 154 L.Ed.2d 272 (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 circumstances, is to remand to the agency for additional investigation or explanation.” (internal quotation marks omitted)); SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (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 sustained”).
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 therefore “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 resistance 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 explained that, for a Toucouleur girl, FGM represents an essential initiation 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 grandparents 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 circumcised,” 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
*518Niang further claimed that this mental suffering would be compounded 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 circumciser 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 complications ranging from vaginal infections [to] difficulty [in] conceiving] 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 experienced fibroids and bleeding and had an exam that was monitored as an emergency because she had a condition known as placenta previa.5 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 “considerably ham*519pered,” (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 complication[s]” resulting from FGM. (J.A. at 90.) She opposed excision, and because of this resistance, 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 problems as a result of FGM would experience severe mental suffering if she were forced to allow her daughter to suffer the same type of persecution. 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 suffering 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 concrete 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, “[additionally, 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 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 *520Senegal, 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.
II.
In sum, I believe that the majority, by independently establishing a per se rule that psychological harm alone cannot constitute persecution, without considering the BIA’s decision in In re C-Y-Z 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 agency. Accordingly, I respectfully dissent.
. 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 voluntary 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 appellant's "contentions and the reasons for them” and that failure to comply with the Rule’s dictates with respect to a particular claim triggers abandonment of that claim on appeal).
. The majority opinion correctly states that we review the BIA’s administrative 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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 quotation marks omitted)).
. I am unpersuadéd by the Government’s contention that Niang has not demonstrated a clear probability that her daughter’s relatives would subject her to FGM if the child accompanied Niang to Senegal because the Senegalese government has banned the practice, and, as a result of education and outreach programs, FGM is becoming less prevalent in Senegal. The Government concedes that ”[t]he State Department Report of record pro*518vided that ... in general, female genital mutilation was a problem in Senegal.” (Appel-lee'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 Toucouleur) 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 protection 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 particular 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.
.Both this court and the BIA have recognized that FGM constitutes persecution within the meaning of the INA and its implementing regulations. 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 omitted)); 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 507 n. 1, is "[o]ften performed under unsanitary conditions with highly rudimentary instruments, ... is extremely painful, permanently disfigures the female genitalia, 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).
. 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 Medical 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).
. It is unclear from the record whether Niang’s first child was also delivered by a Cesarean section.
. It is worth noting that, under the regulations governing adjustment of status applications,
the departure of an applicant who is not under exclusion, deportation, 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.