                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 21 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

OMOYEMI OMOSALEWA                                No. 07-70662
ODESANYA,
                                                 Agency No. A079-274-282
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER JR., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted February 18, 2011
                              Pasadena, California

Before: KLEINFELD and GRABER, Circuit Judges, and ZILLY,** Senior
        District Judge.

       The government initiated removal proceedings against Petitioner Omoyemi

Omosalewa Odesanya after she overstayed her visitor visa without authorization.

She conceded removability but applied for asylum, withholding of removal, and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
protection under the Convention Against Torture ("CAT"). The BIA denied all

forms of relief. We review the BIA’s rulings of law de novo and its findings of

fact for substantial evidence. Cortez-Pineda v. Holder, 610 F.3d 1118, 1121 (9th

Cir. 2010).

      1. On the asylum claim, Petitioner suffered past persecution in the form of

efforts to force her to undergo female genital mutilation (FGM), and she has a

well-founded fear of future persecution on the same ground. FGM qualifies as a

form of persecution. Mohammed v. Gonzales, 400 F.3d 785, 794–95 (9th Cir.

2005). The record compels a finding that the Nigerian government could not or

would not control the attempts by Petitioner’s in-laws to mutilate her forcibly in

the past and that she faces a reasonable possibility of their future efforts to mutilate

her. Violence inflicted by family members can establish eligibility for asylum in

this circumstance. See Faruk v. Ashcroft, 378 F.3d 940, 943 (9th Cir. 2004) ("[I]f

the government is unable or unwilling to control persecution, it matters not who

inflicts it."). The BIA’s conclusion that the government met its burden to prove

that internal relocation within Nigeria would be "reasonable" with respect to the

FGM claim is not supported by substantial evidence in view of the in-laws’

relentless pursuit of Petitioner wherever she has gone. See 8 C.F.R.

§ 1208.13(b)(3) (providing that the government bears the burden of rebutting a


                                           2
presumption that relocation is unreasonable when an asylum seeker proves past

persecution, and requiring adjudicators to consider "all the circumstances of the

case"). We therefore grant the petition and remand to the BIA for the Attorney

General to exercise his discretion under 8 U.S.C. § 1158(b) whether to grant

Petitioner asylum.

      2. Petitioner also suffered past persecution on account of her Christian

religion. But the BIA’s finding that internal relocation would be "reasonable"

protection against this form of future persecution is supported by substantial

evidence.

      3. With respect to withholding of removal, the BIA improperly refused to

consider the evidence of abuse inflicted by Petitioner’s in-laws. See Faruk, 378

F.3d at 943 (holding that violence inflicted by family members can establish

eligibility for relief). We therefore grant the petition on this claim and remand to

the BIA for reconsideration under the proper legal standard.

      4. Substantial evidence supports the denial of CAT relief. The record does

not compel a conclusion that Petitioner more likely than not would face torture if

returned to Nigeria.

      GRANTED in part; DENIED in part; REMANDED. Petitioner shall be

awarded costs on appeal.


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