          United States Court of Appeals
                      For the First Circuit


No. 12-2294

                      MOULAYE ABDEL CAMARA,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., Attorney General,

                           Respondent.


              PETITION FOR REVIEW FROM AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                       Lynch, Chief Judge,
              Torruella and Howard, Circuit Judges.


     Timothy J. Nutter on brief for petitioner.
     Jason Wisecup, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Acting Assistant Attorney General,
Civil Division, and Carl H. McIntyre, Jr., Assistant Director,
Office of Immigration Litigation, on brief for respondent.



                          July 26, 2013
           LYNCH, Chief Judge.        Moulaye Abdel Camara of Senegal has

been ordered removed to Guinea and has foregone the opportunity for

voluntary departure.        He petitions for review of a September 28,

2012, decision by the Board of Immigration Appeals (BIA), which

affirmed the decision of an immigration judge (IJ) denying his

application for withholding of removal (WOR) and protection under

the Convention Against Torture (CAT). Camara was found not to have

suffered past persecution and had not established the likelihood of

any   future   personal      injury   to    him   rising   to    the    level   of

persecution.

           His      claim   of   persecution      was   based   on   his   future

opposition to the possible female genital mutilation (FGM) of his

daughters if he took them with him to Guinea.                   Camara was also

found ineligible for relief on the basis of any prospective harm to

his daughters.       CAT protection was denied because Camara had not

established the likelihood of torture at the hands of or with the

acquiescence of his home government.

           Camara makes two arguments in his petition.                 First, he

argues that the IJ and the BIA erred in finding that it would be

reasonable for him to relocate internally, away from his family and

home village in Guinea, to avoid any personal injury.                  Second, he

argues that both erred in failing to consider whether the threat of

forced   FGM   to    his    daughters,     should   they   return      with   him,

constituted a threat of direct persecution to him in the form of


                                      -2-
emotional harm.    The first argument fails because the findings of

reasonable relocation that Camara questions were supported by

substantial evidence.    The second fails because Camara's theory of

"direct" persecution of him based on the possible risk to his

daughters   has   been   foreclosed    by   the   BIA,   in   a   reasonable

interpretation of the statute, and by circuit precedent.            We deny

his petition.

                                  I.

            Camara is a native of Senegal and a citizen of Guinea.

He entered the United States on May 1, 1999, as a visitor, with

permission to remain for five months.             He did not leave.     The

Department of Homeland Security served Camara with a Notice to

Appear almost a decade later, charging that he was removable

pursuant to 8 U.S.C. § 1227(a)(1)(B) as an alien who remained in

the United States beyond September 30, 1999, without authorization.

Camara conceded removability, requesting relief in the form of WOR

and protection under the CAT.

            A merits hearing was held before an IJ on July 13, 2011.

There, Camara testified that, once he was in the United States, he

and his wife had three children.            Camara's wife lacked legal

residence in the United States, and was pursuing cancellation of

removal in another proceeding. Their three children, two girls and

a boy, were all United States citizens.            Camara testified that,

despite the children's legal residence in the United States, he


                                  -3-
would be forced to take them with him to Guinea if he was removed.

He claimed that this would be so even if his wife obtained legal

residence in the United States, as well.   Camara said no one could

provide for the children like him.

          Camara testified that, if removed to Guinea, he would be

subjected to beatings and voodoo at the hands of his family and

other members of his tribe.     This would be on account of his

opposition to his daughters being subjected to FGM. Camara claimed

further that he would be subject to such violence even if his

daughters remained in the United States, because he had refused to

bring them to Guinea.

          Camara denied that internal relocation would do any good,

although he had testified that his persecution would come from his

family and his tribe.     FGM was a nationwide practice1 that,

although illegal, the Guinean government did nothing to prevent.

Wherever Camara might relocate within Guinea, the threat to him

would be the same, he said.      When asked about relocating to

Senegal, Camara seemed to concede that his lack of Senegalese

citizenship would be no bar.   What made that option infeasible,

however, was that he "ha[d] nothing there."

          The IJ denied Camara's requests for relief.   As to WOR,

she found that Camara had not been threatened in the past and had



     1
       State Department reports in the record state that somewhere
between 96% and 98.6% of women in Guinea are subjected to FGM.

                               -4-
not    established    the    probability      of   future     persecution   on   a

protected ground. More specifically, she found that Camara had not

shown that his United States citizen daughters would be forced to

return with him to Guinea if he was removed.                  Further, she found

that any threat posed by his family and fellow tribespeople could

be avoided through relocation within Guinea, a course of action

that   would   be    reasonable    to   expect     him   to   follow   under   the

circumstances.       As to CAT relief, the IJ found that the hostility

Camara feared came from private citizens.                Camara had provided no

evidence that he would be targeted in any way by a government

actor, let alone targeted for persecution.

            Camara appealed to the BIA, which dismissed the appeal on

September 28, 2012.         The Board agreed with the IJ that Camara had

not established past persecution.             It agreed further that Camara

had not established the likelihood of future persecution by his

family or by members of his tribe.                 The Board observed that,

although Camara had introduced evidence that FGM was widespread in

Guinea, that evidence did not establish a threat of harm rising to

the level of persecution to him in particular.                 In addition, the

Board agreed with the IJ that the evidence on the record did not

support    a   finding      that   relocation      within     Guinea   would     be

unreasonable.

            Finally, the BIA held that, insofar as Camara's claim was

predicated upon a fear of his daughters being subjected to FGM, the


                                        -5-
Board had already determined in In re A-K-, 24 I. & N. Dec. 275

(BIA 2007), that such a fear is, by itself, not a basis for WOR.

As to CAT relief, the Board noted that Camara had not specifically

challenged that denial on appeal.     And, anyway, it agreed with the

IJ that Camara had not established the likelihood of torture by or

with the acquiescence of Guinean officials.2       The Board ordered

that Camara be removed.

          On October 26, 2012, Camara petitioned this court for

review of the BIA's decision.

                                II.

          Where the BIA adopts the IJ's findings, we review the

BIA's decision in conjunction with those findings.        Romilus v.

Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004).      We review the agency's

findings of fact under the substantial evidence standard.     Matovu

v. Holder, 577 F.3d 383, 386 (1st Cir. 2009).            "Under this

deferential standard, we accept these findings so long as they are

grounded in reasonable, substantial, and probative evidence on the

record considered as a whole," id. (quoting Sharari v. Gonzáles,

407 F.3d 467, 473 (1st Cir. 2005)) (internal quotation marks

omitted), granting a petition only "if the record compels a


     2
        The IJ granted Camara a 60-day voluntary departure period,
subject to the condition that Camara post a $500 bond.      Camara
failed to post the bond. The BIA did not reinstate Camara's period
of voluntary departure in its final order because Camara had not
submitted within 30 days of filing his appeal any proof of having
posted the $500 voluntary departure bond.           See 8 C.F.R.
§ 1240.26(c)(3)(ii).

                                -6-
conclusion contrary to that reached by the agency," López Pérez v.

Holder, 587 F.3d 456, 460 (1st Cir. 2009).

           We review the agency's legal conclusions de novo, but

afford   "substantial deference to the BIA's interpretations of the

underlying statutes and regulations according to administrative law

principles."    Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.

2009); see also Holder v. Martínez Gutiérrez, 132 S. Ct. 2011, 2017

(2012) ("[The BIA's] position prevails if it is a reasonable

construction of the statute, whether or not it is the only possible

interpretation or even the one a court might think best." (citing

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 843-844 & n.11 (1984))); INS v. Aguirre-Aguirre, 526 U.S. 415,

425 (1999) ("[J]udicial deference to the Executive Branch is

especially appropriate in the immigration context . . . .").

           To qualify for WOR, "[t]he burden of proof is on the

applicant . . . to establish that his or her life or freedom would

be threatened in the proposed country of removal on account of

race, religion, nationality, membership in a particular social

group, or political opinion."    8 C.F.R. § 208.16(b); see also 8

U.S.C. § 1231(b)(3)(A).   An applicant can satisfy this burden by

demonstrating past persecution, which gives rise to a rebuttable

presumption of a future threat to the applicant's life or freedom,

or by showing that it is "more likely than not" that he or she will

suffer future persecution on account of one of the protected


                                -7-
grounds.   8 C.F.R. § 208.16(b)(1)(I), (b)(2); see also Tay-Chan v.

Holder, 699 F.3d 107, 111 (1st Cir. 2012).

           Here, substantial evidence supports the determination

that Camara faced neither past persecution nor a likelihood of

future persecution.   Camara argues that, because the practice of

FGM within Guinea is "nearly universal," the IJ and in turn the BIA

erred in finding that internal relocation had not been shown to be

unreasonable.3   This argument suffers from at least two defects.

First, the evidence in the record does not clearly establish that

any harm would be inflicted upon the parents who oppose FGM in

Guinea, or that it would rise to the level of persecution of those

parents.    Indeed, the evidence that Camara relies upon here

indicates only that "parents who do not have their daughter cut

might be considered neglectful."      R. Van Rossem & A. Gage, The

Effects of Female Genital Mutilation on the Onset of Sexual

Activity and Marriage in Guinea, 38 Archive Sexual Behav. 178, 179

(2009) (emphasis added); see also Barsoum v. Holder, 617 F.3d 73,

79 (1st Cir. 2010) ("To show persecution, an alien must show more



     3
        Camara argues further that the burden is on the Government
to establish that relocation would be reasonable, citing In re M-Z-
M-R-, 26 I. & N. Dec. 28 (BIA 2012). In that case, however, the
applicant had shown past persecution, creating a presumption of
risk of future persecution and shifting the burden onto the
Government to rebut that presumption by establishing the
reasonability of relocation. Id. at 29. By contrast, where, as
here, the applicant has not shown past persecution, the burden
rests with him or her to establish that relocation would be
unreasonable. 8 C.F.R. § 208.13(b)(3)(i).

                                -8-
than 'unpleasantness, harassment, and even basic suffering.'"

(quoting Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir. 2008))).

Second, the argument assumes, without support, that if Camara is

removed, his two daughters would be forced to accompany him to

Guinea. Camara also claims that, even if his daughters were not to

come to Guinea, he would face persecution for failing to present

them for FGM.    The IJ reasonably disregarded this claim.   As the IJ

observed, no law would require Camara's United States citizen

daughters to leave this country if Camara were removed.      Moreover,

at the time of his hearing, Camara conceded that his wife's

separate application for cancellation of removal was still under

consideration.     This court requested a supplemental filing from

both parties on the matter, and we have been informed that Camara's

wife was granted cancellation as well as permanent residence on

October 2, 2012.      She may thus lawfully remain in the United

States.4

           Camara also argues that the IJ and the BIA erred in

failing to consider whether the threat of FGM to his daughters

constituted a threat of "direct" persecution5 to him in the form of


     4
       On October 24, 2012, Camara's wife filed a petition for her
husband to obtain an immigrant visa as an immediate relative (an
I–130 petition) under the Immigration and Nationality Act section
204(a), 8 U.S.C. § 1154. That petition is still pending.
     5
       In addition, Camara argues that the IJ and the BIA erred in
failing to consider whether the (alleged) threat to his daughters
constituted a threat of direct torture to him. As both the IJ and
the BIA observed, Camara presented no evidence of prospective

                                 -9-
psychological injury.   Again, this argument suffers from at least

two defects.   First, it assumes without support that Camara's

removal would result in his daughters' accompanying him to Guinea.

          Second and more fundamental, it relies on a theory of

persecution that has been foreclosed by the BIA and this court. In

In re A-K-, a FGM case, the BIA held squarely that "allowing an

applicant to obtain asylum or withholding of removal through

persecution to his child would require granting relief outside the

statutory . . . scheme established by Congress."   24 I. & N. Dec.

at 278; see also Negusie v. Holder, 555 U.S. 511, 516 (2009)

("[T]he BIA is entitled to deference in interpreting ambiguous

provisions of the [immigration statutory scheme].").

          This court has recognized the authority of that holding.

See, e.g., Mariko v. Holder, 632 F.3d 1, 8 (1st Cir. 2011) (citing

In re A-K- and holding scheme does not permit relief for parent on

basis of threat of FGM to child); Kechichian v. Mukasey, 535 F.3d

15, 22 (1st Cir. 2008) (observing that In re A-K- "foreclose[s]"




government involvement or acquiescence in the harms that he fears,
aside from his bare and uncorroborated claim that "[i]f you go to
the police to file a complaint or to seek protection, they won't
even, you know, look at you." Camara does nothing to challenge
those findings here, and so the CAT claim must fail. See also
Warui v. Holder, 577 F.3d 55, 58 (1st Cir. 2009) (expressing
skepticism concerning cognizability of claims of "derivative"
torture under CAT); In re A-K-, 24 I. & N. Dec. 275, 280 (BIA 2007)
("There is no legal basis for a derivative grant of [CAT]
protection where, as here, the respondent has not alleged any past
torture, or fear of future torture, to himself.").

                               -10-
any claim by a parent of "psychological harm based solely on a

child's potential persecution").

            Other circuits agree that, in situations parallel to

this, fear that a petitioner's children will be subjected, if they

accompany   the    parent,    to   FGM   is   not   in   itself   a   basis   for

immigration relief to the petitioner.           See, e.g., Kane v. Holder,

581 F.3d 231, 241-43 (5th Cir. 2009) (denial of WOR); Gumaneh v.

Mukasey, 535 F.3d 785, 788-90 (8th Cir. 2008) (denial of WOR);

Oforji v. Ashcroft, 354 F.3d 609, 614-18 (7th Cir. 2003) (denial of

CAT relief).

            Camara invokes Abay v. Ashcroft, 368 F.3d 634 (6th Cir.

2004), as contrary precedent. See id. at 640-42 (affording refugee

status to parent based on fear of child being subjected to FGM).

Abay preceded In re A-K-, and did not have the benefit of the BIA's

reasoning in that case.        Indeed, the concurring opinion notes the

need to first get guidance from the agency.                  See id. at 646

(Sutton, J.).       Moreover, as this court has noted, Abay "is the

'only federal decision' to have reached such a result . . . and in

any event it does not bind this circuit."            Kechichian, 535 F.3d at

22 (quoting Niang v. Gonzales, 492 F.3d 505, 512 (4th Cir. 2007)).

            Camara argues that In re A-K- dealt only with theories of

"derivative" persecution, whereas the persecution that he theorizes

is "direct."      Not so.    In re A-K- distinguished claims of "direct"

persecution (cognizable under the statutory scheme) from claims of


                                     -11-
"derivative"    persecution   (not   cognizable).   Thus,   the   BIA

explained, in "cases where a person persecutes someone close to an

applicant . . . with the intended purpose of causing emotional harm

to the applicant . . . the persecution would not be 'derivative,'

as the applicant himself would be the target of . . . emotional

persecution."    In re A-K-, 24 I. & N. Dec. at 278 (emphasis

added).6   Label aside, the risk of persecution Camara alleges is

thus derivative, not direct.

           The petition is denied.

           So ordered.




     6
        Camara has not alleged that this is a case in which his
daughters are at risk of being persecuted as a means of inflicting
psychological harm upon him. Nor could he at this stage, having
made no such allegation during the administrative stages of the
proceeding. See Kandamar v. Gonzales, 464 F.3d 65, 71 (1st Cir.
2006) (requiring exhaustion of administrative remedies); 8 U.S.C.
§ 1252(d)(1) (same).    Rather, Camara has alleged only that his
daughters are at risk of FGM, and that he is in turn at risk of
incidental albeit "extreme and grave emotional suffering."

                                 -12-
