           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Abay et al. v. Ashcroft et al.             No. 02-3795
        ELECTRONIC CITATION: 2004 FED App. 0145P (6th Cir.)
                    File Name: 04a0145p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: E. Dennis Muchnicki, Dublin, Ohio, for
                  FOR THE SIXTH CIRCUIT                                  Petitioners.      Julia K. Doig, UNITED STATES
                    _________________                                    DEPARTMENT OF JUSTICE, Washington, D.C., for
                                                                         Respondents. ON BRIEF: E. Dennis Muchnicki, Dublin,
 YAYESHWORK ABAY and             X                                       Ohio, for Petitioners. Nancy E. Friedman, Richard M. Evans,
 BURHAN AMARE ,                   -                                      UNITED STATES DEPARTMENT OF JUSTICE,
                                                                         Washington, D.C., for Respondents.
                    Petitioners, -
                                  -   No. 02-3795
                                  -                                         MERRITT, J., delivered the opinion of the court, in which
            v.                     >                                     FEIKENS, D. J., joined. SUTTON, J. (pp. 16-21), delivered
                                  ,                                      a separate opinion concurring in the judgment.
                                  -
 JOHN ASHCROFT , United           -                                                         _________________
 States Attorney General and      -
 IMMIGRATION AND                  -                                                             OPINION
 NATURALIZATION SERVICE,          -                                                         _________________
                  Respondents. -
                                  -                                        MERRITT, Circuit Judge. Yayeshwork Abay and her
                                 N                                       minor daughter Burhan Amare, citizens and natives of
         On Petition for Review of an Order of the                       Ethiopia, petition the Court for review of an order in which
               Board of Immigration Appeals.                             the Board of Immigration Appeals affirmed without opinion
                     No. A73 401 965.                                    the immigration judge’s denial of their consolidated claims
                                                                         for asylum and withholding of deportation under section
                   Argued: January 29, 2004                              208(a) and former section 243(h)(1) of the Immigration and
                                                                         Nationality Act. 8 U.S.C. § 1158(a) (2004); 8 U.S.C.
               Decided and Filed: May 19, 2004                           § 1253(h)(1) (1996). Both Abay and Amare seek asylum
                                                                         based on their fear that, should they be returned to Ethiopia,
        Before: MERRITT and SUTTON, Circuit Judges;                      Amare will be subjected to “female genital mutilation,” a
                  FEIKENS, District Judge.*                              practice “nearly universal” in Ethiopia and to which an
                                                                         estimated 90% of women are subjected, according to State
                                                                         Department reports. The immigration judge held that neither
                                                                         Abay nor Amare established that she is a “refugee” eligible
                                                                         for asylum or withholding of deportation. We find that the
                                                                         evidence on the record as a whole compels the conclusion that
    *
     The Honorab le John Feikens, United States District Judge for the   both the minor child Amare and her mother have a well-
Eastern District of Michigan, sitting by designation.

                                  1
No. 02-3795                Abay et al. v. Ashcroft et al.   3    4      Abay et al. v. Ashcroft et al.              No. 02-3795

founded fear that Amare will be subjected to female genital          any person who is outside any country of such person’s
mutilation should they be returned to Ethiopia and thus are          nationality or, in the case of a person having no
“refugees” eligible for asylum under the Act. Accordingly,           nationality, is outside any country in which such person
the petition for review is GRANTED and the case is                   last habitually resided, and who is unable or unwilling to
remanded for further proceedings consistent with this opinion.       return to, and is unable or unwilling to avail himself or
                                                                     herself of the protection of, that country because of
I. Background                                                        persecution or a well-founded fear of persecution on
                                                                     account of race, religion, nationality, membership in a
  Petitioner Abay and her daughter, petitioner Amare, entered        particular social group, or political opinion . . . .
the United States on May 18, 1993, as visitors for pleasure.
On May 30, 1996, following an unsuccessful application for       Id. § 1101(a)(42)(A). To obtain asylum, an alien must show
asylum, Abay and Amare were each issued and served with          that she is a refugee entitled to a discretionary grant of
a referral notice and order to show cause. At a master           asylum. Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir.
calendar hearing held by teleconference on August 29, 1996,      1998); Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994). The
and at which the minor daughter waived appearance, their         asylum applicant bears the burden of establishing that she
separate cases were consolidated and Abay’s was designated       qualifies as a refugee “either because he or she has suffered
the “lead file.” On behalf of both respondents, counsel          past persecution or because he or she has a well-founded fear
conceded deportability and applied for relief in the form of     of future persecution.” 8 C.F.R. § 208.13(b).
asylum, withholding of deportation, and in the alternative,
voluntary departure. On June 30, 1997, counsel submitted             An alien may demonstrate a well-founded fear of future
Abay’s fully briefed application, in which she claimed that          persecution by showing that (1) he or she has a fear of
she was persecuted in the past, and feared persecution in the        persecution in his or her country on account of race,
future, on account of her Amhara ethnicity, her Pentacostal          religion, nationality, membership in a particular social
Christian religious practice, and her membership in the All          group, or political opinion; (2) there is a reasonable
Amhara People’s Organization, an opposition political party          possibility of suffering such persecution if he or she were
in Ethiopia. On August 6, 1997, counsel submitted a                  to return to that country; and (3) he or she is unable or
supplemental brief and exhibits supporting Amare’s                   unwilling to return to that country because of such fear.
application in which Amare claimed that she feared being             An applicant’s fear of persecution must be both
subjected to female genital mutilation upon her return to            subjectively genuine and objectively reasonable.
Ethiopia.
                                                                 Mikhailevitch, 146 F.3d at 389. If the applicant establishes
II. Legal framework and standard of review                       past persecution, the applicant is entitled to a presumption of
                                                                 a well-founded fear of future persecution, and the burden then
   The Attorney General has discretion to grant asylum to a      shifts to the Immigration and Naturalization Service to show
person who qualifies as a “refugee” within the meaning of        by a preponderance of the evidence that “there has been a
section 101(a)(42)(A) of the Immigration and Nationality Act.    fundamental change in circumstances such that the applicant
See 8 U.S.C. § 1158(b)(1). The Act defines a refugee as:         no longer has a well-founded fear of persecution in the
                                                                 applicant’s country . . . on account of race, religion,
                                                                 nationality, membership in a particular social group, or
No. 02-3795                 Abay et al. v. Ashcroft et al.     5    6        Abay et al. v. Ashcroft et al.                      No. 02-3795

political opinion.” 8 C.F.R. § 208.13(b)(1)(i)(A); see              contrary conclusion, but indeed compels it.” Id. at 152
Mikhailevitch, 146 F.3d at 389. To establish eligibility for        (emphasis in original). The appropriate inquiry is whether the
asylum, an alien is not required to present proof that future       applicable evidence “was such that a reasonable factfinder
persecution is more likely than not. INS v. Cardoza-Fonseca,        would have to conclude that the requisite fear of persecution
480 U.S. 421, 431 (1987). “One can certainly have a                 existed.” Elias-Zacarias, 502 U.S. at 481. Where, as here,
well-founded fear of an event happening when there is less          the Board of Immigration Appeals affirms the decision of an
than a 50% chance of the occurrence taking place.” Id.              immigration judge without opinion, we review the decision of
                                                                    the immigration judge directly. Soadjede v. Ashcroft, 324
  The petitioners also seek relief in the form of withholding       F.3d 830, 832 (5th Cir. 2003).
of deportation under former § 1253(h)(1), a form of
nondiscretionary relief that must be granted to aliens who can      III. Discussion
meet the more stringent standards governing such
applications. To establish eligibility for nondiscretionary             A. Female genital mutilation
withholding of deportation, the alien must show that there is
a “clear probability” that her “life or freedom would be              Forced female genital mutilation involves the infliction of
threatened in such country on account of race, religion,            grave harm constituting persecution on account of
nationality, membership in a particular social group, or            membership in a particular social group that can form the
political opinion.” Mikhailevitch, 146 F.3d at 391. The             basis of a successful claim for asylum. In re Fauziya
applicant who fails to establish that she is a “refugee” eligible   Kasinga, 21 I. & N. Dec. 357, 365, Int. Dec. 3278 (BIA
for asylum under § 1158 will necessarily fail to satisfy the        June 13, 1996); see Abankwah v. INS, 185 F.3d 18, 23-24 (2d
standard governing § 1253(h)(1).                  See INS v.        Cir. 1999) (holding that the evidence compelled the
Cardoza-Fonseca, 480 U.S. 421, 449-50 (1987);                       conclusion that the petitioner had a well-founded fear of being
Mikhailevitch, 146 F.3d at 391. On the other hand, the              subjected to female genital mutilation in Ghana as
applicant who establishes that she is a “refugee” eligible for      punishment for having engaged in premarital sex, and
asylum, but who is not granted asylum in the exercise of the        reversing the Board’s decision to the contrary). Female
Attorney General’s discretion, may nevertheless be able meet        genital mutilation, or FGM, is the collective name given to a
the more stringent standard to show she is eligible for             series of surgical operations, involving the removal of some
withholding of deportation.                                         or all of the external genitalia, performed on girls and women
                                                                    primarily in Africa and Asia.1 Often performed under
  Under our deferential standard of review, we must uphold
the Board’s decision if it is “supported by reasonable,                  1
substantial, and probative evidence on the record considered              The Departm ent of State has classified, b ased on W orld He alth
as a whole.” Mikhailevitch, 146 F.3d at 388 (internal               Organization typology, the prevalent forms of female genital mutilation.
                                                                    Type I, commonly referred to as “clitoridectomy,” is the removal “of the
quotation marks omitted); see INS v. Elias-Zacarias, 502 U.S.       clitoral hood with or without removal of all or part of the clitoris.” Type
478, 481 (1992). We may not reverse the Board’s                     II, commo nly referred to as “excision,” is the removal “of the clitoris
determination simply because we would have decided the              together with part or all of the labia minora.” Type III, commonly referred
matter differently. See Klawitter v. INS, 970 F.2d 149,             to as “infibulation,” is the removal “of part or all of the external genitalia
151-52 (6th Cir. 1992). The petition for review may be              (clitoris, labia minora and labia majora) and stitching or narrowing of the
                                                                    vaginal opening, leaving a very small opening, about the size of a
granted only if the evidence presented “not only supports a         matchstick, to allow for the flow of urine and menstrual blo od.”
No. 02-3795                    Abay et al. v. Ashcroft et al.        7    8       Abay et al. v. Ashcroft et al.                      No. 02-3795

unsanitary conditions with highly rudimentary instruments,                minora or clitoris of another person who has not attained 18
female genital mutilation is “extremely painful,”                         years” shall be fined or imprisoned).
“permanently disfigures the female genitalia, [and] exposes
the girl or woman to the risk of serious, potentially                        At the hearing on the merits held on August 17, 1997, Abay
life-threatening complications,” including “bleeding,                     testified that she is married and has four daughters. After she
infection, urine retention, stress, shock, psychological trauma,          came to the United States with her youngest daughter, Abay’s
and damage to the urethra and anus.” In re Fauziya Kasinga,               husband fled Ethiopia, leaving their three older daughters in
21 I. & N. Dec. at 361. Female genital mutilation can result              the care of Abay’s mother in Ethiopia. Abay herself was
in the permanent loss of genital sensation in the victim and              circumcised by her mother when she was nine years old.2
the consequent elimination of sexual pleasure. See id.                    Although she and her husband oppose the practice and have
                                                                          not subjected any of their daughters to it, Abay’s mother had
  The practice of FGM has been internationally recognized                 previously attempted to circumcise the three older daughters.
as a violation of women’s and female children’s rights. See,              It was only due to Abay’s intervention that the daughters were
e.g., Report of the Committee on the Elimination of All                   not circumcised. Abay testified that her mother still wants all
Forms of Discrimination Against Women, General                            the girls to be circumcised, and that Abay would not be able
Recommendation No. 14, U.N. GAOR, 45th Sess., Supp. No.                   to prevent the forced circumcision of any of her daughters by
38 & Corr. 1, at 80, ¶ 438, U.N. Doc. A/45/38 (1990);                     their future husbands or in-laws.
Declaration on the Elimination of Violence Against Women,
G.A. Res. 104, U.N. GAOR, 48th Sess., Art. 2(a), U.N. Doc.                  Burhan Amare is Abay’s youngest daughter who, at the
A/48/629 (1993) (including female genital mutilation as an                time of the hearing, was nine years old. Amare suffers from
example of violence covered by the resolution); Traditional               a profound hearing impairment. She testified through a sign
or Customary Practices Affecting the Health of Women and                  language interpreter that she knew about circumcision, did not
Girls, G.A. Res. 128, U.N. GAOR, 56th Sess., Supp. 49, at 2,              want to be subjected to it because she feared it would cause
U.N. Doc. A/RES/56/128 (2001) (reaffirming that female                    pain and bleeding, and was afraid to go back to Ethiopia
genital mutilation “constitute[s] a definite form of violence             because she feared her relatives or future husband or her
against women and girls and a serious violation of their                  husband’s relatives would force her to be circumcised.
human rights”). In September 1996, as part of the Illegal
Immigration Reform and Immigrant Responsibility Act
[IRRIRA], Congress criminalized the practice of female                        2
                                                                                At the hearing, the parties used the term“circumcision” without
genital mutilation under federal law. See 18 U.S.C. § 116                 specifying the pre cise form of the practice invo lved. As noted above, the
(providing that whoever “knowingly circumcises, excises, or               term “female genital mutilation” has become the preferred generic term
infibulates the whole or any part of the labia majora or labia            when describing any form of physical mutilation to a female’s genitals.
                                                                          The term “circumcision” is considered by m any to b e physically
                                                                          inaccurate in describing the most common form of the practice, Type II
                                                                          (excision), which results in the complete removal of the clitoris. See, e.g.,
Prevalence of the Practice of Female Genital Mutilation (FGM); Laws       Hope Lewis, Between Irua and “Female Genital Mu tilation”: Feminist
Prohibiting FGM and Their Enforcement; Recommendations on Ho w to         Human Rights Discourse and the Cultural Divide, 8 Harv. Hum. Rts. J.
Best Work to E liminate FGM, U.S. Dep t. of State, R epo rt on Female     1, 4-9 (1995) (discussing the debate over terminology and noting that
Genital Mutilation, a t 5 (updated June 27, 2001), available at           “many feminist human rights activists and scholars argue that the term
http://www.state.gov/g/wi/rls/rep/c6466 .htm. Type II (excision) is the   ‘female circumcision’ is misleading” because “m ost form s of male
most widely practiced form . Id.                                          circumcision are far less invasive and physically damaging” than FGM ).
No. 02-3795                     Abay et al. v. Ashcroft et al.         9    10   Abay et al. v. Ashcroft et al.              No. 02-3795

  According to the U.S. State Department Ethiopia Country                     These conclusions underestimate the problem and do not
Report on Human Rights Practices for 1996, which was                        take the full picture into account. At the time of the hearing,
included in the record, the practice of female genital                      Amare was a nine-year-old child testifying in court about an
mutilation in Ethiopia in 1996 was “nearly universal.” Also                 extremely personal matter. Although her expression of fear
included was a State Department Report on Female Genital                    in that context may have come across as “general” or
Mutilation in Ethiopia in 1996, which indicated that                        “ambiguous,” we note that the Immigration and
approximately 90% of all females are subjected to some form                 Naturalization Service’s guidelines for children’s asylum
of the practice.3 The practice had not been specifically                    claims, following the recommendations of the United Nations
outlawed, and laws in place to prohibit harmful traditional                 High Commissioner for Refugees, Handbook on Procedures
practices are not, as a practical matter, enforced. Additional              and Criteria for Determining Refugee Status (1992), advises
articles and reports submitted in support of Amare’s claim                  adjudicators to assess an asylum claim keeping in mind that
explain that females who live in a culture where female                     very young children may be incapable of expressing fear to
genital mutilation is the norm and who do not undergo the                   the same degree or with the same level of detail as an adult.
procedure will be persecuted, subjected to ostracism, and                   See Guidelines for Children’s Asylum Claims, INS Policy and
considered unworthy of marriage.                                            Procedural Memorandum from Jack Weiss, Acting Director,
                                                                            Office of International Affairs to Asylum Officers,
  B. Amare’s asylum claim based on her fear of female                       Immigration Officers, and Headquarters Coordinators
     genital mutilation                                                     (Asylum and Refugees) at 26, Dec. 10, 1998, available at 1998
                                                                            WL 34032561 (INS). In recommending a course of action
   The immigration judge denied Amare’s claim for asylum                    for evaluating a child’s fear, the Children’s Guidelines note
because she has “no imminent fear [of female genital                        that the adjudicator must take the child’s statements into
mutilation], but rather a general ambiguous fear” if she is                 account, but that “children under the age of 16 may lack the
deported. He noted that “her parents are opposed to the                     maturity to form a well-founded fear of persecution, thus
practice and refuse to allow her to be circumcised” and that                requiring the adjudicator to give more weight to objective
“[s]he has three teenage sisters who have not been                          factors.” Id. at 19. Further, the Guidelines suggest that
circumcised.” Pointing out that these three sisters live with               “children’s testimony should be given liberal “benefit of the
the same relatives in Ethiopia who purportedly pose a threat                doubt” with respect to evaluating a child’s alleged fear of
to Amare, he concluded that he found it “hard to believe that               persecution. Id. at 26.
this one daughter [Amare] would be forcibly circumcised
when the other daughters are able to escape it.”                              Should Amare be returned to Ethiopia, a country where the
                                                                            practice is “nearly universal” with 90% of females having
                                                                            been subjected to some form of it, it is probable that she
    3                                                                       would be subjected to that painful practice should she marry.
      A recent State D epartment repo rt on fem ale genital mutilation in
Ethiopia details the pre valence of the various forms of the practice.      Abay testified that the threat of female genital mutilation
Ethiopia: Report on Female Genital Mu tilation (FG M) o r Fem ale Genital   comes not only from Amare’s own relatives, but also from
Cutting, U.S. Dept. of State, Office of the Senior Coordinator for          any future husband and his relatives. Abay testified that she
International W omen’s Issues (June 1, 2001), available at                  feared she would not be able to override the wishes of a
www.state.gov/g/wi/rls/rep/crfgm (Ethiopia).        Clitoridectomy and      husband or his family. At the time of the hearing, Amare’s
excision are the two most common form practiced in Ethiopia, with
excisio n being the most common. See id.                                    teenage sisters had not yet married. The fact that Amare’s
No. 02-3795                Abay et al. v. Ashcroft et al.   11    12       Abay et al. v. Ashcroft et al.                     No. 02-3795

sisters had been spared the practice at the hands of their own    based on her fear that her daughter will be subjected to the
relatives does not sufficiently outweigh Abay’s testimony that    torture of female genital mutilation. In support of her
she would not be able to prevent a future husband or his          argument, Abay points out that the Board has previously
relatives from demanding that it be done. Amare’s clearly         indicated that a family member may be eligible for asylum
expressed fear is rooted in the culture of Ethiopia. Should she   based upon the physical harm inflicted upon another family
be forced to choose between marriage and likely mutilation        member. For example, in Matter of C-Y-Z, 21 I. & N. Dec.
on the one hand, and social ostracism on the other, we believe    915, Dec. 3319 (BIA 1997), an alien seeking asylum argued
that any young girl faced with such a choice would have a         that the forced sterilization of his wife by government
legitimate fear of persecution and draw support from the          authorities in China conferred refugee status on him under
Second Circuit’s opinion in Abankwah, supra. Accordingly,         Act.4 The Board accepted the Service’s concession that an
we find that the evidence presented compels the conclusion        alien whose spouse was forced to undergo sterilization could
that Amare has established that she is a “refugee” under the      establish past persecution on account of political opinion and
Act.                                                              found that the alien established that he was a “refugee” within
                                                                  the meaning of the Act. See id. at 919-20. In a concurring
  C. Abay’s asylum claim based on her fear that her               opinion, Board member Rosenberg explained that a finding of
     daughter will be subjected to female genital                 persecution based on harm to an immediate family member is
     mutilation                                                   not uncommon:
  Abay specifically testified that she feared that her daughter     It is not as unusual as one or all of my colleagues writing
would be forcibly circumcised by her relatives or her               separately would make it seem that the applicant should
daughter’s future husband and his family should she return to       be granted asylum although the harm experienced was
Ethiopia. In his written opinion, however, the immigration          not by him, but by a family member.
judge focused only on Abay’s relatives, with whom Amare’s           ...
unmarried teenage sisters lived in Ethiopia, and stated that he     It not only constitutes persecution for the asylum
found it “hard to believe that this one daughter would be           applicant to witness or experience the persecution of
forcibly circumcised when the other daughters are able to           family members, but it serves to corroborate his or her
escape it.” (J.A. at 50.) The judge concluded that there was        own fear of persecution. The treatment of the applicant’s
no objective basis upon which to base an asylum claim. As           wife supports the conclusion that the applicant, by virtue
we stated previously, however, there is overwhelming                of the events culminating in his wife’s forced
objective evidence that a female child in Ethiopia will likely      sterilization, has suffered past persecution and that his
undergo female genital mutilation at some point. The issue          fear is well founded.
before the Court is really whether Abay can seek asylum in
her own right based on a fear that her child will be subjected
to female genital mutilation.
  Abay acknowledges that there is no express statutory                 4
                                                                        “[A] person who has been forced to abort a pregnancy or to undergo
authority for a parent to claim “derivative asylum” based on      involuntary sterilization, or who has been persecuted for failure or refusal
her child’s asylee status. See 8 U.S.C. § 1158 (b)(3). She        to undergo such a procedure or for other resistance to a coercive
argues instead that she is eligible for asylum in her own right   population control program, shall be deemed to have been persecuted on
                                                                  acco unt of political opinion . . . .” 8 U.S.C. § 110 1(a)(42)(B).
No. 02-3795                 Abay et al. v. Ashcroft et al.   13    14       Abay et al. v. Ashcroft et al.                    No. 02-3795

Id. at 926-27 (citations omitted).                                 circumcised, the Board found that she had presented a
                                                                   sufficient basis to reopen her case and apply for asylum based
   We further note that the Service has previously granted         on a well-founded fear of persecution. Id. In addition, the
other forms of relief, including relief under the more stringent   Board made clear that the alien need not “prove that she
standard of withholding of removal, to the parents of female       would take the child with her as part of her burden to
children who reasonably fear that the children would be            demonstrate eligibility for relief, if she has custody of the
subject to female genital mutilation should they return to their   child. . . . [N]ormally a mother would not be expected to leave
parents’ country of origin. See, e.g., Matter of Adeniji, No.      her child in the United States in order to avoid persecution.”
A41 542 131 (oral decision) (U.S. Dept. of Justice,                Id.
Immigration Court, York, Penn., Mar. 10, 1998) (granting
application for withholding of removal to an alien father             We do not agree with government counsel that there is no
otherwise ineligible for asylum because his citizen daughters      authority for granting asylum to Abay based on her fear that
would be forced to return to Nigeria with him, where they          her daughter will be forced to undergo female genital
would likely be subject to female genital mutilation by            mutilation. The Board’s decision in Dibba, along with the
relatives despite their father’s wishes); Matter of Oluloro, No.   decisions cited above, suggest a governing principle in favor
A72 147 491 (oral decision) (U.S. Dept. of Justice,                of refugee status in cases where a parent and protector is
Immigration Court, Seattle, Wash., Mar. 23, 1994) (granting        faced with exposing her child to the clear risk of being
suspension of deportation, directly resulting in permanent         subjected against her will to a practice that is a form of
resident status, to an alien mother because the risk that her      physical torture causing grave and permanent harm. Given
U.S.-born daughters would be subjected to female genital           the evidence in the record that female genital mutilation is
mutilation in Nigeria “posed an extreme hardship” to the           “nearly universal” in Ethiopia; that Abay herself underwent
daughters).                                                        the procedure at a young age; that Abay’s mother has already
                                                                   attempted to mutilate Abay’s older daughters, who still faced
  In Matter of Dibba, No. A73 541 857 (BIA Nov. 23, 2001),         that prospect upon their marriage; that Abay would not be
an alien mother filed a motion to reopen her case to apply for     able to override any of her daughters’ future husbands or in-
asylum based on her fear that her citizen daughter would be        law’s wishes; and that the government of Ethiopia does not,
subject to female genital mutilation in The Gambia. She            as a practical matter, enforce laws intended to curb harmful
argued that “she would be forced to allow the mutilation of        traditional practices, we conclude that a rational factfinder
her daughter and that the event and its consequences would         would be compelled to find that Abay’s fear of taking her
cause her mental suffering sufficient to constitute                daughter into the lion’s den of female genital mutilation in
persecution.” Id. at 2. The Board noted that the record            Ethiopia and being forced to witness the pain and suffering of
supported the prevalence of female genital mutilation in The       her daughter is well-founded. Accordingly, we find that Abay
Gambia and that, although the government disapproves of the        is also a “refugee” within the meaning of the Act.5
practice, it is not illegal. The alien submitted evidence that
she herself was subjected to FGM at a young age, and that her
mother would demand that her daughter be similarly                      5
mutilated if she returned to The Gambia. Although the Board             Abay also seeks review of the Board’s denial of her claim for
found that the alien had not yet “fully demonstrated” that she     asylum based on her fear of persecution on acco unt of her mem bersh ip in
                                                                   the All Am hara P eop le’s Organiza tion, an opposition po litical party in
would be in fact forced to allow her daughter to be                Ethiopia. Because we decide the question of her refugee status based on
No. 02-3795                      Abay et al. v. Ashcroft et al.          15    16   Abay et al. v. Ashcroft et al.               No. 02-3795

IV. Conclusion                                                                                  _____________________
   For the reasons stated above, we reverse the decision of the                                    CONCURRENCE
Board of Immigration Appeals that the petitioners are not                                       _____________________
eligible for asylum. Because the immigration judge did not
reach the discretionary stage of their claims for asylum, we                     SUTTON, Circuit Judge, concurring in the judgment. I
remand for proceedings not inconsistent with this opinion.                     agree with the majority that the prospect of female genital
Further, because the standard for granting withholding of                      mutilation (FGM) may indeed give rise to a “well-founded
deportation is more stringent than the standard for granting                   fear” of persecution, and I agree with the majority that the
asylum, and because the immigration judge denied the request                   Immigration Judge’s efforts to resolve the claims of the
as an a fortiori conclusion, we also remand the request for                    daughter (Amare) and the mother (Abay) raise as many
withholding of deportation for further consideration in light                  questions as they answer. On this record, I thus agree that the
of our conclusions stated above.6                                              Immigration Judge’s decision cannot be affirmed.
                                                                                  I concur in the judgment rather than in the opinion because
                                                                               I fear that the majority’s opinion accepts two propositions in
                                                                               this area that current law does not support: (1) that women or
                                                                               girls may never be deported to a country where the incidence
                                                                               of FGM within the female population as a whole is high,
                                                                               regardless of the risk that a particular applicant will be
                                                                               subjected to FGM, and (2) that the parents of such children
                                                                               may not be deported either. As I read the relevant statutes,
                                                                               regulations and precedents, the law in this developing area
                                                                               does not support either generalization. In view of the stale
                                                                               nature of the evidence in this case as well as the fact that the
                                                                               administrative agency has not expressly given us its view on
                                                                               either point, I would prefer to ask the Immigration Judge to
                                                                               look at these issues in the first instance.
                                                                                                              I.
female genital mutilation, we do not rea ch the m erits of this claim.                                       A.
    6
      W hile we recognize that our colleague has written a concurrence,          In rejecting Amare’s claim for asylum based on her fear of
and not a d issent, it is important to note the differences between our        being subjected to FGM, the Immigration Judge relied
opinion and his co ncurrence. The basis o f the fear o f persecution in this
case is well-estab lished o n the rec ord. The Go vernm ent’s position, and    predominantly on the fact that Amare’s sisters—who still live
the decision of the Board of Imm igration App eals, to deport, despite that    in Ethiopia—have not been forced to undergo FGM. From
well-established fear of persecution, is clear. Therefore, based on the        this fact, the Immigration Judge reasoned that the threat to
record, and the position of the governm ent and BIA , the circumstances in     Amare could not be very serious either. That an asylum
this case are such that this issue must be confronted now.
No. 02-3795                  Abay et al. v. Ashcroft et al.    17    18    Abay et al. v. Ashcroft et al.               No. 02-3795

applicant fails to show “a reasonable possibility [that] . . . she   where 50% of the total female population has undergone
would be singled out individually for persecution,” however,         FGM, “the likelihood of forced FGM being visited on anyone
does not end the inquiry. 8 C.F.R. § 208.13(b)(2)(iii). An           outside [a specific] ethnic group or area is minimal to
asylum applicant may still qualify as a refugee if she can           nonexistent”).
show “that there is a pattern or practice . . . of persecution of
a group of persons similarly situated” and that she is included         The Immigration Judge did not consider any of these
within that group.         Id. § 208.13(b)(2)(iii)(C); see           points, and the current record is either conspicuously silent on
Ramsameachire v. Ashcroft, 357 F.3d 169, 183 (2d Cir.                each point or is not helpful to Amare’s application. In her
2004).                                                               case, for instance, it appears that she is of Amharic ethnicity
                                                                     and a Christian, two groups that practice FGM in Ethiopia.
   Correctly invoking this second ground for relief, Amare           But the Amharas, according to the State Department reports,
points to statistics collected by the State Department showing       practice the least severe form of FGM—Type I—and Amare’s
that 90% of women and girls in Ethiopia have undergone               age (17) may disqualify her even from that risk. In Ethiopia,
FGM, then argues that these statistics necessarily establish a       it turns out, FGM is most frequently performed within days
“pattern or practice of persecution.” Even if that is true,          of birth or between the age of seven and puberty. See U.S.
however, Amare still must show that she is included within a         Dep’t of State, Office of the Senior Coordinator for
group at risk of being subjected involuntarily to FGM. 8             Int’l     Women’s        Issues,     Ethiopia:    Report      on
C.F.R. § 208.13(b)(2)(iii)(C). FGM practices vary by ethnic          Female      Genital       Mutilation (FGM) or Female
group, religion and geographic region, as well as by the age         Genital       Cutting      (FGC)       (June 1, 2001), at
and marital status of the woman or girl. As a State                  http://www.state.gov/g/wi/rls/rep/crfgm/100098.htm.          On
Department report on FGM practices in Ethiopia                       this record, I submit, it makes sense to obtain more
acknowledges, some “population groups” within the country            information and more current information about these issues
“do not practice FGM.” JA 187. As the federal statute that           before announcing an opinion that grants relief not just to
criminalizes FGM in this country acknowledges in regulating          Amare but potentially to any girl or woman from Ethiopia.
the practice only with respect to girls under eighteen years of
age, the risks associated with FGM differ between girls and                                         B.
women. See 18 U.S.C. § 116; see also Nwaokolo v. INS, 314
F.3d 303, 309 (7th Cir. 2002) (describing threat of FGM to             The current paucity of evidence regarding Amare’s claim
four-year old girl as more significant than risk to 17-year old      not only fails to make clear exactly what kind of risk she
girl). And as another recent State Department report                 faces in returning to Ethiopia as a 17-year old girl, but it also
acknowledges, Maj. Op. at 6 n.1, the types of FGM practiced          fails to bring her within the orbit of any of the cases that have
in Ethiopia are neither uniform in nature nor uniformly              granted asylum in the context of an FGM claim. In the two
debilitating to a woman’s physical and psychological health.         instances in which a court of appeals granted relief on an
Significant as the 90% may be, in other words, it does not           FGM-based asylum claim, the evidence was far more
establish that all women and girls—no matter their age, ethnic       concrete than it is here and the risk of FGM was far more
group, marital status, religion or geographic residence—face         imminent than it is here. In one case, the applicant offered
the same FGM risks or in some instances face any material            evidence that she was a member of a particular tribe in Ghana
risk at all. See Matter of Oluloro, No. A72 147 491, Slip Op.        that practices FGM as punishment for premarital sex; that she
at 4 (Immigr. Ct. Mar. 23, 1994) (noting that in Nigeria,            had engaged in premarital sex; that her tribe would assuredly
No. 02-3795                 Abay et al. v. Ashcroft et al.    19    20   Abay et al. v. Ashcroft et al.              No. 02-3795

learn this fact; and that her tribe would punish her as a result.   persecution and would face “other serious harm” if deported,
See Abankwah v. INS, 185 F.3d 18 (2d Cir. 1999). In the             see 8 C.F.R. § 208.13(b)(1)(iii), a showing that Abay has not
other case, the court relied on still more particularized           yet made.
evidence: the applicant’s family had already paid the
traditional “bride price,” which created a binding marriage            Circuit court precedent does not advance this claim either,
contract that permitted the man to force his bride to undergo       particularly in the absence of testimony that the child
FGM. See Moshud v. Blackman, Nos. 98-6481 & 02-1545,                effectively would be deported alongside the parent. See, e.g.,
2003 WL 21404334, at *2 (3d Cir. June 18, 2003). Likewise,          Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)
the administrative decision that established FGM as a               (rejecting asylum claim to the extent it relied on mistreatment
legitimate basis of persecution involved an imminent threat of      of family members rather than of the applicant); Oforji v.
forced FGM by the asylum applicant’s aunt and husband               Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003) (rejecting
stemming from an arranged marriage. See In re Kasinga, 21           mother’s claim for avoiding deportation based on the threat of
I. & N. Dec. 357 (BIA 1996).                                        FGM to her daughters as lacking in statutory or regulatory
                                                                    authority); Osigwe v. Ashcroft, No. 02-60725, 2003 WL
                               II.                                  22287540, at *1 (5th Cir. Oct. 6, 2003) (noting that the
                                                                    parents of a girl who would be forced to undergo FGM if
   The immigration statutes and case law also fail to support       returned to Nigeria “are not eligible for asylum under the
Abay’s—the mother’s—derivative claim of asylum, at least            general asylum provisions based solely on their daughter’s
on the current record. “A spouse or child . . . of an alien who     risk of being subject to FGM”); Tamas-Mercea v. Reno, 222
is granted asylum,” the applicable statute says, “may, if not       F.3d 417, 424 (7th Cir. 2000). The Seventh Circuit, it is true,
otherwise eligible for asylum . . . , be granted the same           once endorsed a “constructive deportation” theory, which
status.” 8 U.S.C. § 1158(b)(3)(A). By its terms, the statute        covered parents who established that their children (who
does not include parents as individuals who may obtain a            otherwise had a legal right to remain in the country) would in
derivative grant of asylum. And to the extent Abay, like the        effect be deported along with their parents and face “extreme
applicant in the Oluloro case, supra, see Maj. Op. at 12,           hardship.” See Salameda v. INS, 70 F.3d 447, 451 (7th Cir.
seeks a suspension of deportation based on “extreme                 1995). But, again, this theory rested on the now-repealed
hardship” to her child, see 8 U.S.C. § 1254(a)(2) (1995), that      immigration statute mentioned above. To the extent recent
provision was repealed.         See Omnibus Consolidated            cases suggest that the theory has continuing currency, they do
Appropriations Act of 1997, Pub. L. No. 104-208,                    so in the context of concrete indications that the child would
§ 308(b)(7), 110 Stat. 3009 (1996). The replacement                 be forced to accompany the deported parent. See Obazee v.
provision does not encompass Abay’s claim. See 8 U.S.C.             Ashcroft, No. 02-3416, 2003 WL 22473831, at *3 (7th Cir.
§ 1229b (allowing “cancellation of removal” for permanent           Oct. 24, 2003) (acknowledging the “constructive deportation”
resident aliens who, among other requirements, “establish[]         theory but refusing to grant relief because the petitioner did
that removal would result in exceptional and extremely              not point to any evidence that her daughter would necessarily
unusual hardship to the alien’s . . . child, who is a citizen of    have to leave the United States); Nwaokolo, 314 F.3d at 310
the United States or [an alien permanent resident]”). Nor           (granting reopening to determine whether a mother could
does the regulatory authority that permits “humanitarian”           obtain relief under the Convention Against Torture based on
grants of asylum add traction to Abay’s derivative claim. It        the fear that her four-year old daughter would face
is reserved for individuals who have established past               involuntary FGM if she were deported).
No. 02-3795                 Abay et al. v. Ashcroft et al.    21

  No more helpful to this claim are the administrative
decisions of the agency. Matter of C-Y-Z, 21 I. & N. Dec.
915 (BIA 1997), involved the asylum claim of a man whose
wife was at risk of being forced to undergo sterilization. In
considering whether the husband qualified as a “refugee”
under 8 U.S.C. § 1101(a)(42), the parties agreed that “the
forced sterilization of one spouse . . . is an act of persecution
against the other spouse.” Id. at 919. And while Matter of
Adeniji, No. A41 542 131, Slip Op. at 10 (Immigr. Ct. Mar.
10, 1998), extended the C-Y-Z logic to the FGM context, it
did so with respect to five- and six-year old children.
  Also missing from the record is any evidence that Abay
will be “faced with exposing her child to the [] risk of being
subjected to” FGM unless she is granted asylum. Maj. Op. at
13. The record contains nothing but silence on whether
Amare would follow her mother to Ethiopia if she were
deported. As a 17-year old girl who has been in this country
for almost 11 years, Amare may well have other options.
More critically, this evidentiary void ought to be filled before
relief is granted.
                              III.
   Even though the relevant statutes and case law currently do
not support Amare’s claim and do not support granting
asylum to Abay on a derivative basis, I agree with the
decision to remand the case. Each claim is of recent vintage,
the record is conspicuously meager with respect to each
claim, and the Immigration Judge ought to be given a chance
to address each claim in the context of a fresh, recently-
supplemented record and after consideration of the agency’s
“considerable experience and expertise” on these issues.
Azanor v. Ashcroft, 364 F.3d. 1013, 1021 (9th Cir. 2004)
(remanding case for consideration of an FGM-based
derivative torture claim and treating the claim as a question of
“first impression”).
