F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 8, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
AWA NIANG,
Petitioner,
v. No. 04-9547
ALBERTO R. GONZALES,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
(B.I.A. NO. A78-897-221)
Michael A. Walker of Walker Associates, LLP, Denver, Colorado, for Petitioner.
Luis E. Perez, Trial Attorney (Linda S. Wendland, Assistant Director, with him on
the brief), Office of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.
Before TACHA, Chief Circuit Judge, McWILLIAMS , Senior Circuit Judge, and
HARTZ , Circuit Judge.
HARTZ , Circuit Judge.
Petitioner Awa Niang is a victim of female genital mutilation (FGM). She
faces removal from this country because she overstayed her nonimmigrant visa,
was working in the United States without permission of the Immigration and
Naturalization Service (INS), 1 and had falsely represented herself as a citizen to
obtain employment. To avoid being returned to her native Senegal, she sought
asylum and restriction on removal on the ground that she had suffered past
persecution—FGM—in Senegal. She also sought relief under the Convention
Against Torture (CAT), 2 on the ground that she was likely to be tortured if
returned to Senegal.
The immigration judge (IJ) who conducted her hearing found that she had
not been subjected to past persecution because he disbelieved her account of how
the FGM occurred. The Board of Immigration Appeals (BIA) affirmed on the
same ground. Ms. Niang’s claims for asylum and restriction on removal,
however, do not rest solely on her narrative of the specific circumstances of the
mutilation. She has consistently, although with less-than-optimal clarity,
1
On March 1, 2003 the INS ceased to exist, and its responsibilities were
divided among three distinct agencies formed within the new Department of
Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296,
§§ 441, 451, 116 Stat. 2135 (November 25, 2002). But because the actions Ms.
Niang challenges in this appeal were taken prior to this reorganization, we will
refer to the relevant government agency as the INS.
2
The Convention Against Torture is formally referred to as The United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. The United States
implemented the Convention Against Torture through the Foreign Affairs Reform
and Restructuring Act of 1998, Pub.L. No. 105- 277, § 2242, 112 Stat. 2681
(1998). See Elzour v. Ashcroft, 378 F.3d 1143, 1150 n.8 (10th Cir. 2004).
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contended that she suffered FGM on account of her being a female member of the
Tukulor Fulani tribe. Neither the IJ nor the BIA addressed this contention, much
less explained why it was rejected. We therefore reverse the denial of asylum and
restriction on removal, and we remand for further proceedings. We affirm the
denial of relief under the CAT.
I. BACKGROUND
A. Ms. Niang’s Account
The following summarizes the documents and testimony supporting Ms.
Niang’s claims for relief. She was born into the Tukulor Fulani tribe in Senegal in
1970. Her family is Muslim and believes in rigid adherence to certain gender roles
and expectations. There was a strict separation between the men and women in
her household, which included her parents, eight siblings, some cousins, and their
spouses. Her family believed that women should not look at men, that family
members should not display affection toward one another, and that women should
obey their husbands.
According to tribal custom, when Ms. Niang was born she was promised in
marriage to her cousin Daud, a man her father’s age who had three other wives.
Because she was considered married to Daud, she was not allowed to date other
men. Although most Tukulor Fulani girls were subjected to FGM and
consummated their marriages when they were 10 to 12 years old, Ms. Niang
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refused to do so and her family acquiesced in her wishes, believing she would
eventually change her mind. Unlike most Tukulor Fulani women, Ms. Niang was
permitted to attend school at age 12.
When Ms. Niang was nearly 25, her family had a meeting in which they
decided that she must consummate her marriage with Daud that evening. She
again refused, and her family threw themselves on her, stripping her of her clothes,
beating her, and burning her with a hot iron. Some then performed FGM on her
“[s]o that [she] wouldn’t be able to commit adultery and so that no one would want
to have anything to do with [her]. And then she would be ashamed to show [her]
body in front of another man.” Testimony of Ms. Niang, R. at 188. She left her
house the next morning. For the next four years she stayed at her friend Maria’s
house in another town while attending the university to obtain her Senegalese law
license. She had no contact with her family during this time.
Ms. Niang came to the United States in 1999 and stayed with friends in
Denver. Although she “wanted to live in a country where [she] could feel free,”
and she still feared her family, id. at 194, she did not immediately seek asylum but
entered as a nonimmigrant visitor, authorized to stay only until June 24, 2000. She
met Elhadji Fall and married him on April 17, 2000. Because of her FGM,
however, they could not have normal sexual relations and they separated. During
her marriage Ms. Niang’s Senegalese friend Maria wrote her a letter informing her
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that her family considered her an adulteress because of her marriage to Fall and
would kill her if she returned. According to Ms. Niang, if she was returned to
Senegal, her family was “ready” and “waiting for [her],” and it would be “the end
of [her] days.” R. At 204-05.
B. Removal Proceedings
The INS apprehended Ms. Niang while she was working as a security
screener at the Denver International Airport. It initiated removal proceedings
against her for (1) staying in the country longer than permitted, Immigration and
Nationality Act (INA) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B); (2) failing to
comply with the conditions of her nonimmigrant status by working, INA
§ 237(a)(1)(C), 8 U.S.C. § 1227(a)(1)(C); and (3) falsely representing herself as a
citizen of the United States to gain employment, INA § 237(a)(3)(D), 8 U.S.C.
§ 1227(a)(3)(D). She contested the factual basis of the removal charges, but the IJ
found her removable on all three grounds. She then requested either (1) asylum
under INA § 208, 8 U.S.C. § 1158; (2) restriction on removal under INA
§ 241(b)(3), 8 U.S.C. § 1231(b)(3); (3) relief from removal under the CAT, or (4)
voluntary departure under INA § 240B, 8 U.S.C. § 229c.
At the asylum hearing Dr. Judith Wilson testified that Ms. Niang had been a
victim of FGM, that her “normal anatomy . . . had been obliterated essentially to
the extent that her ability to engage in normal sexual intercourse was virtually
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impossible,” that she would probably not be able to conceive children naturally,
and that she would not be able to deliver children vaginally. R. at 239-240.
Judging from the scar tissue, Dr. Wilson estimated that the mutilation must have
occurred at least three or four years before Ms. Niang’s 1999 examination, and it
could have been performed as early as her late teens. In a letter from Dr. Wilson
to Ms. Niang’s attorney that was admitted into the record, Dr. Wilson wrote that
Ms. Niang told her that the beating and genital mutilation occurred in her late
teens.
Ms. Niang also showed several burn scars to the IJ, and Dr. Wilson testified
that the scars were consistent with her proffered account of her beating by her
family. Finally, Dr. Wilson testified that the FGM did not look like a “medical[ly]
oriented procedure” and agreed with the description that “the lady was butchered.”
Id. at 247.
The IJ found that “[t]he evidence considered as a whole clearly shows that
the respondent has suffered FGM in the past,” id. at 60, that according to the
background material the FGM was most likely “excision,” id. at 59; and that “in
Senegal 80 percent of the women will undergo that form of FGM,” id. (The IJ
apparently confused the statistics for FGM victims in Senegal and Sierre Leone.
According to the 1997 United States Department of State Report entitled “Female
Genital Mutilation” (which appears in the record), Sierre Leone had an 80-90%
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victimization rate at that time, while Senegal’s was only 20%.) Ms. Niang’s
membership in the Tukulor Fulani tribe is not disputed. But the IJ did not find
Ms. Niang credible for several reasons: (1) she lied to gain employment; (2) on
her asylum application she listed her parents’ address as her address from 1978 to
1999, but she testified that she had fled her parents’ home in 1995 after the
alleged attack occurred; (3) she could name only two of the five pillars of Islam,
despite her characterization of her family as Islamic extremists; (4) he did not
understand why she did not undergo the mutilation before age 13, as her sisters
had; and (5) Dr. Wilson’s letter was inconsistent with Ms. Niang’s testimony that
the attack occurred when she was 25. Because the IJ found Ms. Niang’s account
of how the genital mutilation occurred not credible, he denied her petitions for
asylum, restriction on removal, and relief under the CAT.
Ms. Niang appealed to the BIA. The BIA affirmed the IJ’s decision and
dismissed the appeal through an order written by a single board member. See 8
C.F.R. § 1003.1(e)(5)(2003) (under new streamlining procedures one member of
board can address decision on the merits unless criteria require review by three-
member panel). The BIA summarized the IJ’s reasons for finding Ms. Niang’s
testimony not credible, and concluded that she had not demonstrated that the
adverse credibility ruling was clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i)
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(IJ’s credibility findings reviewed under clearly-erroneous standard). In reference
to the undisputed genital mutilation, the BIA stated:
We also acknowledge that the respondent has undergone FGM, has
other scarring, and that the practice of FGM can provide the basis for
an asylum claim. Yet, we have not held that all instances of FGM
will constitute past persecution and we decline to find that this
respondent’s FGM constituted persecution due to her incredible
testimony regarding the circumstances surrounding the FGM.
R. at 2 (internal citations omitted). Ms. Niang appeals this decision, contending
that (1) the BIA erred in affirming the IJ’s adverse credibility finding and (2) her
undisputed genital mutilation constitutes past persecution on account of
membership in a social group regardless of how it occurred. We exercise
jurisdiction under 8 U.S.C. § 1252(a), see Tsevegmid v. Ashcroft, 336 F.3d 1231,
1234 (10th Cir. 2003). We affirm under the CAT but reverse and remand for
further proceedings with respect to the denials of asylum and restriction on
removal.
II. DISCUSSION
A. Overview of Applicable Law
There are three avenues of relief for an alien who fears persecution if
returned to a particular country. Under the INA a grant of asylum permits the
alien to remain in this country and a restriction on removal forbids removal to the
country where persecution may occur. Wiransane v. Ashcroft, 366 F.3d 889, 892-
93 (10th Cir. 2004). Although a grant of asylum is in the discretion of the
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Attorney General, a restriction on removal is granted to qualified aliens as a matter
of right. Id. at 893. The third avenue is the CAT, which prohibits removal to a
country where the alien would face torture. Elzour v. Ashcroft, 378 F.3d 1143,
1150 (10th Cir. 2004). Relief under the CAT is mandatory if the convention’s
criteria are satisfied. See 8 C.F.R. § 1208.16(c)(4) (an alien meeting CAT’s
criteria “shall be granted” withholding of removal or, at a minimum, deferral of removal).
1. Asylum
To be eligible for a discretionary grant of asylum, an alien must be a
refugee. 8 U.S.C. § 1158(b)(1); see Elzour v. Ashcroft, 378 F.3d at 1148. The
INA defines refugee as
any person who is outside any country of such person’s nationality . .
. who is unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, that 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). This definition is taken from the 1967 United Nations
Protocol Relating to the Status of Refugees (the Refugee Protocol), ratified by the
United States in 1968. 3 A primary purpose for which Congress adopted this
3
The Refugee Protocol defines refugee as one who:
owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is
(continued...)
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definition in 1980 was “ to bring United States refugee law into conformance with
the [Refugee Protocol].” INS v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987).
The governing regulation provides two ways of achieving refugee status:
one based on past persecution and the other based on a well-founded fear of future
persecution. See 8 C.F.R. § 1208.13(b)(2001). Our focus in this case is on past
persecution. The regulation states:
An applicant shall be found to be a refugee on the basis of past
persecution if the applicant can establish that he or she has suffered
persecution in the past in the applicant's country of nationality [on
one of the forbidden grounds]. . . , and is unable or unwilling to
return to, or avail himself or herself of the protection of, that country
owing to such persecution.
Id. § 1208.13(b)(1) (emphasis added). See 63 Fed. Reg. 31,945; 31,946 (June 11,
1998) (explaining that amended regulation effective January 5, 2001, “leaves
intact the important principle that an applicant who has established past
persecution on account of one of the five grounds is a refugee”). The persecution
must have been “imposed by the government or by groups which the government is
3
(...continued)
unable or, owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence as a result of
such events, is unable or, owing to such fear, is unwilling to return to
it.
The Refugee Protocol, Jan. 31, 1967, 19 U.S.T. 6223 (Nov. 1, 1968, date in
force).
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unwilling or unable to control”. Vatulev v. Ashcroft, 354 F.3d 1207, 1209 (10th
Cir. 2003) (internal quotation marks omitted). Thus, “to establish eligibility for
asylum on the basis of past persecution, an applicant must show: (1) an incident,
or incidents, that rise to the level of persecution; (2) that is on account of one of
the statutorily-protected grounds; and (3) is committed by the government or
forces the government is either unable or unwilling to control.” Berishaj v.
Ashcroft, 378 F.3d 314, 323 (3rd Cir. 2004) (internal quotation marks omitted).
Accord Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000).
Refugee status does not, however, entitle the applicant to a grant of asylum;
that decision continues to remain within the Attorney General’s discretion. See
Cardoza-Fonseca, 480 U.S. at 428 n.5; 63 Fed. Reg. at 31,946. The regulation
describes how the IJ should exercise discretion with respect to an applicant who is
asylum eligible on the basis of past persecution. First, the past persecution
establishes a presumption of a well-founded fear of future persecution on the same
basis as established for the original persecution. 8 C.F.R. § 1208.13(b)(1). The
INS may rebut this presumption, however, by proving that “there 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. . . on account
of race, religion, nationality, membership in a particular social group, or political
opinion,” 8 C.F.R § 1208.13(b)(1)(i)(A), or proving that “[t]he applicant could
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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, ” id. § 1208.13(b)(1)(i)(B). If the INS successfully rebuts
the presumption, the IJ “in the exercise of his or her discretion, . . . shall deny the
asylum application,” id. § 1208.13(b)(1)(i), unless “[t]he applicant has
demonstrated compelling reasons for being unwilling or unable to return to the
country arising out of the severity of the past persecution,” or “[t]he applicant has
established that there is a reasonable possibility that he or she may suffer other
serious harm upon removal to that country.” id. at § 1208.13(b)(1)(iii). See 63
Fed. Reg. at 31,946. This avenue of obtaining a favorable discretionary grant of
asylum in the absence of a well-founded fear of future persecution is known as
humanitarian asylum. See Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004).
2. Restriction on Removal
To obtain a restriction on removal, an applicant must show that his “life or
freedom would be threatened in that country because of the alien's race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). The Attorney General may not remove an alien who
establishes “a clear probability of persecution in the country to which he would be
returned.” Wiransane, 366 F.3d at 894 (internal quotation marks omitted). Just as
an applicant can be granted refugee status on the basis of past persecution, an
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applicant can establish a presumptive entitlement to restriction on removal on the
same basis. And just as a refugee can be denied asylum because of a change in
circumstances or the opportunity to relocate, an applicant for restriction on
removal can lose the presumption of entitlement for that reason. The regulation
states:
(1) Past threat to life or freedom. (i) If the applicant is determined to
have suffered past persecution in the proposed country of removal on
account of race, religion, nationality, membership in a particular
social group, or political opinion, it shall be presumed that the
applicant's life or freedom would be threatened in the future in the
country of removal on the basis of the original claim. This
presumption may be rebutted if an asylum officer or immigration
judge finds by a preponderance of the evidence:
(A) There has been a fundamental change in circumstances such that
the applicant's life or freedom would not be threatened on account of
any of the five grounds mentioned in this paragraph upon the
applicant's removal to that country; or
(B) The applicant could avoid a future threat to his or her life or
freedom by relocating to another part of the proposed country of
removal and, under all the circumstances, it would be reasonable to
expect the applicant to do so.
8 C.F.R. § 1208.16 (b)(1).
3. Convention Against Torture
The CAT prohibits the return of an alien to a country where “it is more
likely than not that he or she would be tortured.” 8 C.F.R. § 1208.16(c)(2). “A
claim under the CAT differs from a claim for asylum or withholding of removal
under the INA because there is no requirement that the petitioner[] show that
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torture will occur on account of a statutorily protected ground.” Cruz-Funez v.
Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (internal quotation marks
omitted). The alien must show, however, that the persecution would be so severe
that it would rise to the level of torture. Elzour, 378 F.3d at 1150. Torture is
defined as:
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
8 C.F.R. § 1208.18(a)(1) (1999). Under the CAT future torture is not presumed on
the basis of a showing of past torture. But “[i]n assessing whether it is more likely
than not that an applicant would be tortured . . . , all evidence relevant to the
possibility of future torture shall be considered, including . . . [e]vidence of past
torture inflicted upon the applicant.” 8 C.F.R. § 1208.16(c)(3).
B. Standard of Review
We review the BIA’s legal determinations de novo, and its findings of fact
under a substantial-evidence standard. Elzour v. Ashcroft, 378 F.3d at 1150.
Under the substantial-evidence standard “our duty is to guarantee that factual
determinations are supported by reasonable, substantial and probative evidence
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considering the record as a whole.” Id. “The BIA's findings of fact are conclusive
unless the record demonstrates that any reasonable adjudicator would be compelled
to conclude to the contrary.” Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir.
2004) (internal quotation marks omitted).
Moreover, the BIA’s interpretations of ambiguous provisions in the INA are
entitled to particular respect under Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984). The Supreme Court has instructed that “the
BIA should be accorded Chevron deference as it gives ambiguous statutory terms
concrete meaning through a process of case-by-case adjudication.” INS v.
Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (internal quotation marks omitted).
See Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir. 2001). Indeed, “judicial
deference to the Executive Branch is especially appropriate in the immigration
context where officials exercise especially sensitive political functions that
implicate questions of foreign relations.” Aguirre-Aguirre, 526 U.S. at 425
(internal quotation marks omitted). Thus, if the INA “is silent or ambiguous with
respect to the specific issue before it, . . . the question for the court [is] whether
the [BIA’s] answer is based on a permissible construction of the statute.” Id. at
424 (internal quotation marks omitted).
Finally, we must be cautious not to assume the role of the BIA. Decisions
should be made in the first instance by the BIA. And when it has failed to address
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a ground raised by an applicant in support of her claim, we should ordinarily not
reverse on that ground but should instead remand if the ground appears to have
any substance. See INS v. Orlando Ventura, 53 U.S. 12 (2002).
C. Application to FGM
As acknowledged by the BIA in its decision in this case, FGM can be the
basis of a claim of past persecution. An alien making such a claim must establish
that (1) the FGM constituted persecution; (2) the alien belonged to a particular
social group; and (3) there was a nexus between the FGM and membership in the
group—that is, the FGM was performed on account of her membership in that
group. We proceed to examine each of the components of such a claim.
1. Persecution
The INA does not define persecution. We have held that persecution
“requires the infliction of suffering or harm . . . in a way regarded as offensive,”
Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001) (internal quotation
marks omitted), and “encompasses more than just restrictions or threats to life and
liberty,” Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992) (internal quotation
marks and brackets omitted). The BIA has explicitly recognized that FGM
constituted persecution. In re Fauziya Kasinga, 21 I. & N. Dec. 357, 358 (1996).
That opinion provides the following description of such mutilation:
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[T]he FGM practiced by her tribe . . . is an extreme type involving
cutting the genitalia with knives, extensive bleeding, and a 40-day
recovery period.
...
FGM is extremely painful and at least temporarily incapacitating. It
permanently disfigures the female genitalia. FGM exposes the girl or
woman to the risk of serious, potentially life-threatening
complications. These include, among others, bleeding, infection,
urine retention, stress, shock, psychological trauma, and damage to
the urethra and anus. It can result in permanent loss of genital
sensation and can adversely affect sexual and erotic functions.
Id. at 361.
Although many cases construing persecution involve persecutors who had
the subjective intent to punish their victims, “this subjective punitive or malignant
intent is not required for harm to constitute persecution.” Id. at 365 (internal
quotation marks omitted). Thus, whether Ms. Niang suffered the mutilation when
she was 25 in an attack by her family, or at about the age of 10 as is customary for
other members of her tribe, appears to be irrelevant in deciding whether her
mutilation constituted persecution.
Other circuits agree that FGM constitutes persecution, whether for the
purpose of determining past persecution or the purpose of determining well-
founded fear of persecution. See Mohammed v. Gonzales, 400 F.3d 785, 795 (9th
Cir. 2005) (past persecution) (“[W]e have no doubt that the range of procedures
collectively known as female genital mutilation rises to the level of persecution
within the meaning of our asylum law.”); Abay v. Ashcroft, 368 F.3d 634, 638 (6th
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Cir. 2004) (future persecution) (“Forced female genital mutilation involves the
infliction of grave harm constituting persecution . . . that can form the basis of a
successful claim for asylum.”); Nwaokolo v. INS, 314 F.3d 303, 308 (7th Cir.
2002) (per curiam) (future persecution) (“FGM is a horrifically brutal procedure”).
2. Social Group
Although Ms. Niang has added various factual embellishments, her central
claim has been that she was subjected to FGM because she was a female within a
tribe practicing this ritual. Even if her embellishments are disbelieved, she may be
entitled to relief if females in the Tukulor Fulani tribe constitute a social group
within the meaning of the INA and she suffered FGM because she is a female in
that group.
This circuit has not yet addressed the meaning of “membership in a
particular social group.” 8 U.S.C. § 1101(a)(42)(A). But the BIA did so in In re
Acosta, 19 I. & N. Dec. 211, 233-234 (1985), overruled on other grounds by In re
Mogharrabi, 19 I. & N. Dec. 439 (1987). Acosta began its analysis by noting the
ambiguity of the statutory term:
Congress did not indicate what it understood [membership in a
particular social group] to mean, nor is its meaning clear in the
[Refugee] Protocol. This ground was not included in the definition of
a refugee proposed by the committee that drafted the U.N.
Convention; rather it was added as an afterthought. International
jurisprudence interpreting this ground of persecution is sparse. It has
been suggested that the notion of a 'social group' was considered to be
of broader application than the combined notions of racial, ethnic, and
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religious groups and that in order to stop a possible gap in the
coverage of the U.N. Convention, this ground was added to the
definition of a refugee. A purely linguistic analysis of this ground of
persecution suggests that it may encompass persecution seeking to
punish either people in a certain relation, or having a certain degree
of similarity, to one another or people of like class or kindred
interests, such as shared ethnic, cultural, or linguistic origins,
education, family background, or perhaps economic activity. The
[United Nations High Commissioner for Refugees] has suggested that
a 'particular social group' connotes persons of similar background,
habits, or social status and that a claim to fear persecution on this
ground may frequently overlap with persecution on other grounds
such as race, religion, or nationality.
Id. at 232-33 (internal citations omitted).
Applying the canon of construction ejusdem generis, see Black’s Law
Dictionary 535 (7th ed. 1999) (defining ejusdem generis as “[a] canon of
construction that when a general word or phrase follows a list of specific . . .
things, the general word or phrase will be interpreted to include only . . . things of
the same type as those listed.”), the BIA construed membership in a particular
social group in a manner consistent with the more specific grounds listed.
Because race, religion, nationality, and political opinion “describe[] persecution
aimed at an immutable characteristic: a characteristic that either is beyond the
power of an individual to change or is so fundamental to individual identity or
conscience that it ought not be required to be changed,” the BIA reasoned that the
characteristics defining a particular social group must also be so limited.
19 I. & N. Dec. at 233. It concluded:
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[W]e interpret the phrase ‘persecution on account of membership in a
particular social group’ to mean persecution that is directed toward an
individual who is a member of a group of persons all of whom share a
common, immutable characteristic. The shared characteristic might
be an innate one such as sex, color, or kinship ties, or in some
circumstances it might be a shared past experience such as former
military leadership or land ownership. . . . [W]hatever the common
characteristic that defines the group, it must be one that the members
of the group either cannot change, or should not be required to change
because it is fundamental to their individual identities or consciences.
Id. at 233.
As we have previously stated, we must defer to the BIA’s permissible
interpretation of ambiguous language in the INA. See INS v. Aguirre-Aguirre, 526
U.S. at 424-25. We agree that the term social group is ambiguous and find the
BIA’s above analysis to be reasonable. The BIA’s construction of “membership in
a particular social group” is therefore a permissible construction of the statute to
which we must defer. See id. Five other circuits have done the same. See
Alvarez-Flores v. INS, 909 F.2d 1, 7 (1st. Cir 1990); Elien v. Ashcroft, 364 F.3d
392, 396-97 (1st Cir. 2004); Fatin v. INS, 12 F.3d 1233, 1240 (3rd. Cir. 1993);
Castellano-Chacon v. INS, 341 F.3d 533, 546-48 (6th Cir. 2003); Lwin v. INS, 144
F.3d 505, 512 (7th Cir. 1998); Thomas v. Gonzales, 409 F.3d 1177, 1184-87 (9th
Cir. 2005) (en banc).
We recognize that two circuits may take a different view. But the leading
case in one does not even cite Acosta, much less explain why the court should not
defer to the BIA’s definition of social group. See Gomez v. INS, 947 F.2d 660,
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664 (2d Cir. 1991) (“A particular social group is comprised of individuals who
possess some fundamental characteristic in common which serves to distinguish
them in the eyes of a persecutor—or in the eyes of the outside world in general.”).
And the Eighth Circuit, although quoting with apparent approval a formulation not
found in Acosta, proceeds to apply the reasoning of the Third Circuit’s opinion in
Fatin, 12 F.3d at 1240, which follows Acosta, to deny relief. See Safaie v. INS, 25
F.3d 636, 640 (8th Cir. 1994). Neither of these opinions persuades us to reject or
modify the Acosta definition.
Applying the Acosta definition of social group, the female members of a
tribe would be a social group. Both gender and tribal membership are immutable
characteristics. Indeed, Acosta itself identified sex and kinship ties as
characteristics that can define a social group. See Acosta, 19 I. & N. Dec. at 233.
There may be understandable concern in using gender as a group-defining
characteristic. One may be reluctant to permit, for example, half a nation’s
residents to obtain asylum on the ground that women are persecuted there. See
Safaie, 25 F.3d at 640 (rejecting claim that “Iranian women, by virtue of their
innate characteristic (their sex) and the harsh restrictions placed upon them, are a
particular social group”). Cf. Gomez v. INS, 947 F.2d 660, 663-64 (2d Cir. 1991)
(rejecting claim that “women who have been previously battered and raped by
Salvadoran guerillas” are a particular social group). But the focus with respect to
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such claims should be not on whether either gender constitutes a social group
(which both certainly do) but on whether the members of that group are
sufficiently likely to be persecuted that one could say that they are persecuted “on
account of” their membership. 8 U.S.C. § 1101(a)42(A). It may well be that only
certain women—say, those who protest inequities—suffer harm severe enough to
be considered persecution. The issue then becomes whether the protesting women
constitute a social group.
We are not persuaded that the BIA, contrary to the language of Acosta,
requires more than gender plus tribal membership to identify a social group. The
one decision that may suggest this requirement is Kasinga, in which the BIA
granted asylum to a woman who feared being subjected to FGM if returned to her
native land. The BIA described her social group as “young women of the
Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and
who oppose the practice.” 21 I. & N. Dec. at 365. The Board noted that its
description was “very similar to the formulations suggested by the parties.” Id.
See id. at 372 (Filppu, Bd. Mem., concurring) (“the social group definition has not
been a real source of dispute between the parties”). It explained its ruling as
follows:
The defined social group meets the test we set forth in Matter
of Acosta [, 21 I. & N. Dec.] at 233. See also Matter of H-, Interim
Decision 3276 (BIA 1996) (finding that identifiable shared ties of
kinship warrant characterization as a social group). It also is
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consistent with the law of the United States Court of Appeals for the
Third Circuit, where this case arose. Fatin v. INS, 12 F.3d 1233, 1241
(3d Cir.1993) (stating that Iranian women who refuse to conform to
the Iranian Government's gender-specific laws and social norms may
well satisfy the Acosta definition).
In accordance with Acosta, the particular social group is
defined by common characteristics that members of the group either
cannot change, or should not be required to change because such
characteristics are fundamental to their individual identities. The
characteristics of being a "young woman" and a "member of the
Tchamba-Kunsuntu Tribe" cannot be changed. The characteristic of
having intact genitalia is one that is so fundamental to the individual
identity of a young woman that she should not be required to change
it.
Id. at 365-66. We find it noteworthy that Kasinga’s explanation provides no
reason why more than gender or tribal membership would be required to identify a
social group. Indeed, the opinion states that it is “[i]n accordance with Acosta,”
id. at 366, and Acosta specifically identifies “sex [and] kinship ties” as shared
characteristics that can define a social group. Acosta, 19 I. & N. Dec. at 233.
This is not to say that an asylum applicant cannot include opposition to FGM as an
identifying characteristic of the social group to which she belongs. She may
choose to do so to assist in establishing the nexus component of her claim to
refugee status. See Fatin v. INS, 12 F.3d 1233, 1240-41 (3d Cir. 1993) (Iranian
woman could not establish a well-founded fear of persecution based solely on her
gender, but she might be able to show fear based on gender plus opposition to
Iranian gender-specific laws). The point is only that opposition is not a necessary
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component of a social group otherwise defined by gender and tribal membership.
We now turn to the nexus requirement.
3. Nexus
For persecution to be “on account of” membership in a social group, the
victim’s protected characteristic must be central to the persecutor’s decision to act
against the victim. See Gebremichael v. INS, 10 F.3d 28, 35 (1st Cir. 1994) (“An
applicant qualifies as a ‘refugee’ under the INA if membership in a social group is
‘at the root of persecution,’ such that membership itself generates a ‘specific threat
to the applicant’.”). This requirement is relatively straightforward. It is important
to note, however, that opposition to FGM need not be proved to establish nexus.
We agree with the Ninth Circuit’s discussion of this point in Mohammed v.
Gonzales, 400 F.3d 785, 797 (9th Cir. 2005). The court held that the petitioner, a
female member of a tribe that subjected its females to FGM, had established past
persecution on account of being a member of a social group defined by her gender
and tribal membership. It explained:
We believe that opposition is not required in order to meet the “on
account of” prong in female genital mutilation cases. The persecution
at issue in these cases—the forcible, painful cutting of a female's
body parts—is not a result of a woman's opposition to the practice but
rather a result of her sex and her clan membership and/or nationality.
That is, the shared characteristic that motivates the persecution is not
opposition, but the fact that the victims are female in a culture that
mutilates the genitalia of its females.
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Mohammed v. Gonzales, 400 F.3d at 797 n.16. This is not to say that an adult’s
voluntary submission to FGM necessarily constitutes persecution.
D. Ms. Niang’s Claims
1. Asylum and Restriction on Removal
As previously explained, if Ms. Niang can establish that she has suffered
persecution on account of her membership in a social group, she may be a refugee
eligible for asylum and she may be presumptively entitled to a restriction on
removal. The IJ, affirmed by the BIA, rejected her claim of past persecution,
however, because he found incredible her account of how she suffered FGM. We
will not set aside such a credibility determination if the “IJ . . . give[s] specific,
cogent reasons for an adverse credibility finding” that are not “based on
speculation or conjecture.” Wiransane, 366 F.3d 889, 897-898 (10th Cir. 2004).
The IJ and BIA sufficiently supported the credibility determination here.
But Ms. Niang’s claim of past persecution does not depend entirely on her
account of the attack by her family. She has made the broader claim that she
suffered FGM on account of her being a female member of the Tukulor Fulani
tribe. It is undisputed that she suffered FGM, and the injuries described by
Dr. Wilson—her scarring, inability to engage in normal sexual relations, and
inability to bear children naturally—would certainly be sufficiently serious to
qualify her FGM as persecution. It is also undisputed that she is a female Tukulor
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Fulani, and the IJ did not appear to question that the custom of the tribe is to
perform FGM on its female members. The State Department Report on Female
Genital Mutilation reports that about 20% of Senegalese women have undergone
the mutilation and lists the “Toucouleur” tribe as one of the specific ethnic groups
that practice the ritual. R. at 326. The IJ apparently believed Ms. Niang’s
statements that all her sisters had undergone the genital mutilation at a younger
age, because he used that information to discredit her testimony that her family
performed the FGM when she was 25.
Yet neither the IJ nor the BIA addressed this broader claim. We therefore
must remand for further proceedings to resolve it. If the BIA determines that she
did suffer persecution in the form of FGM as the result of her tribal membership, it
would next need to address whether the persecution was “committed by the
government or forces the government is either unable or unwilling to control.”
Berishaj, 378 F.3d at 323. If the BIA finds this third element of refugee status,
Ms. Niang is a refugee, and she is also entitled to a presumption for asylum
purposes that she has a well-founded fear of future harm on account of her social
group and a presumption for restriction-on-removal purposes that she will be
persecuted in her home country on account of her social group. The BIA would
therefore need to determine on remand whether the presumptions have been
overcome.
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2. Convention Against Torture
In contrast to the presumptions applicable in asylum and restriction-on-
removal proceedings, under the CAT a petitioner is not entitled to a presumption
of future torture based on evidence of past torture; nor does a showing of past
torture automatically render her CAT eligible. Although past torture is a relevant
consideration for the IJ in assessing the likelihood of future torture, 8 C.F.R.
§1208.16(c)(3)(i), it is only one factor in the assessment. Here, our review of Ms.
Niang’s CAT claim is controlled by the permissible finding that she is untruthful.
See Wiransane, 366 F.3d 897-98. Once one discredits Ms. Niang’s description of
her family’s attack on her and the threats of future harm from her family, one
could rationally decide that she had failed to show that if she returned to Senegal
she would be killed or otherwise subjected to torture. We therefore affirm the
BIA’s rejection of this claim.
III. CONCLUSION
We AFFIRM the denial of relief under the CAT, REVERSE the decision of
the BIA with respect to asylum and restriction on removal, and REMAND this case
for further proceedings consistent with this opinion.
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Niang v. Ashcroft
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-09-08
Citations: 422 F.3d 1187
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