                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

BOB BENITO BENYAMIN; ANABELLA             No. 05-71488
RODRIGUEZ; ANNISA SOFIA
BENYAMIN; ANAKARINA BENYAMIN;              Agency Nos.
BOBBY AMIN BENYAMIN,                       A095-592-450
                       Petitioners,
                                          A095-592-451
                                           A095-592-452
               v.
                                           A095-592-453
ERIC H. HOLDER JR., Attorney               A095-592-454
General,
                                            OPINION
                      Respondent.
                                      
         On Petition for Review of an Order of the
              Board of Immigration Appeals

                 Argued and Submitted
       December 9, 2008—San Francisco, California

                   Filed August 24, 2009

   Before: Betty B. Fletcher, M. Margaret McKeown and
             N. Randy Smith, Circuit Judges.

               Opinion by Judge McKeown




                           11579
11582                BENYAMIN v. HOLDER




                         COUNSEL

Eugene C. Wong and Robert G. Ryan, Law Offices of Eugene
C. Wong, P.C., San Francisco, California, for the petitioners.

Peter D. Keisler, Assistant Attorney General, David V. Ber-
nal, Assistant Director, Office of Immigration Litigation, John
E. Arbab, U.S. Department of Justice, Environment & Natural
Resources Division, S. Nicole Nardone, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation,
Washington, DC, for the respondent.

Robert E. LeFevre, Office of the District Counsel, Depart-
ment of Homeland Security, San Francisco, California, for the
respondent.
                         BENYAMIN v. HOLDER                       11583
                              OPINION

McKEOWN, Circuit Judge:

   Our circuit has wisely recognized the abhorrence of the
practice of female genital mutilation. Defined as an act that
“involves the cutting and removal of all or some of a girl or
a woman’s external genitalia[,] . . . the procedure is
‘extremely painful’ and ‘permanently disfigures the female
genitalia . . . expos[ing] the girl or woman to the risk of seri-
ous, potentially life-threatening complications.’ ” Mohammed
v. Gonzales, 400 F.3d 785, 789 (9th Cir. 2005) (alterations in
original) (quoting In re Kasinga, 21 I. & N. Dec. 357, 361
(BIA 1996)). Like forced sterilization, the damage is done at
the outset, but the medical and psychological consequences of
female genital mutilation linger for a lifetime. Our recognition
of the severity of female genital mutilation, even in its osten-
sibly least intrusive form, guides our decision in this troubling
case.

   Bob Benito Benyamin (“Benyamin”), a native and citizen
of Indonesia, petitions for review of the Board of Immigration
Appeals’ (“BIA”) denial of his application for asylum, with-
holding of removal, and relief under the Convention Against
Torture (“CAT”). Benyamin’s wife, Anabella Rodriguez
(“Rodriguez”), is a native and citizen of Venezuela. Rodri-
guez and the couple’s three children, Annisa Sofia Benyamin
(“Annisa”), Anakarina Benyamin (“Anakarina”), and Bobby
Amin Benyamin (“Bobby”), are listed as derivative beneficia-
ries of Benyamin’s application.

   Benyamin asserted that his daughter, Annisa, suffered per-
secution in Indonesia by enduring female genital mutilation as
a five-day-old infant, without his consent or that of his wife.1
  1
    Benyamin and Rodriguez describe the procedure that Annisa endured
as “circumcision.” The practice is known in our case law as “female geni-
tal mutilation.” See e.g., Mohammed, 400 F.3d at 789. We use the terms
interchangeably.
11584                BENYAMIN v. HOLDER
Benyamin further claimed that he fears that his younger
daughter, Anakarina, may face the threat of female genital
mutilation if the family is forced to return to Indonesia.
Finally, Benyamin argued that he faced past persecution and
the threat of future persecution on the basis of his membership
in a particular social group, defining the group as Muslim
men married to Roman Catholic women in Indonesia.

   Reasoning that female circumcision practices in Indonesia
“appear to be of a less extreme variety” than those described
in a case involving Ethiopia, the BIA affirmed the Immigra-
tion Judge’s (“IJ”) decision that Benyamin had not established
that he suffered persecution or that he had a well-founded fear
of future persecution. The BIA also rejected Benyamin’s
argument of persecution based on his membership in a partic-
ular social group.

   The BIA’s determination concerning the persecution
Annisa suffered when she was forced to undergo female geni-
tal mutilation and the dismissal of that procedure as a lesser
form of circumcision was erroneous. Female genital mutila-
tion “constitutes persecution sufficient to support an asylum
claim.” Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.
2005) (en banc). The BIA’s conclusion to the contrary is at
odds with Ninth Circuit law and represents a misunderstand-
ing of the BIA’s own precedent. The BIA also erred in failing
to consider whether the threat that Anakarina would be forced
to undergo female genital mutilation in the future could be a
ground for relief in this matter. Substantial evidence supports
the rejection of Benyamin’s other proffered basis for relief.
We grant the petition for review and remand for further pro-
ceedings consistent with this opinion.

                        BACKGROUND

   Benyamin and Rodriguez were residing in the United States
under non-immigrant visas when they married in 1987. When
their visas expired, the couple moved to Jakarta, Indonesia.
                      BENYAMIN v. HOLDER                   11585
Their daughter, Annisa, was born in Indonesia in 1992. Soon
after Annisa’s birth, the family moved to Venezuela, where
Anakarina was born. In December 1994, the family returned
to Indonesia, where Bobby was born in 1996. The family
remained in Indonesia until September 1999, when they law-
fully entered the United States. Benyamin returned to Indone-
sia for a short period and entered the United States for the last
time in June 2000 under a business visa. His visa expired in
June 2002, and Benyamin filed an application for asylum and
withholding of removal in August 2002. Benyamin listed
Rodriguez, Annisa, Anakarina, and Bobby as derivative appli-
cants.

   In his application, Benyamin alleged that he and his family
suffered persecution while they lived in Indonesia. Benyamin
is Muslim, and his wife, Rodriguez, is Catholic. While
Benyamin described the mistreatment of Rodriguez at the
hands of his family, alienation and humiliation from friends,
societal restrictions on his wife’s activities, and discrimination
on the basis of religion perpetrated by the Indonesian govern-
ment against Rodriguez, the crucial allegation in his applica-
tion was that his daughter, Annisa, endured forced female
genital mutilation ordered by Benyamin’s stepmother when
Annisa was a newborn. Annisa suffered through this proce-
dure without the consent of her parents.

   During the hearing before the IJ, Rodriguez confirmed her
husband’s allegations about the female genital mutilation that
Annisa suffered. Rodriguez described that when Annisa was
five-days old and still in the hospital, Benyamin’s stepmother
ordered Annisa’s circumcision without the couple’s consent.
Benyamin’s testimony corroborated his application and his
wife’s testimony, including the fact that he did not consent to
the procedure. Rodriguez further explained that Annisa has
continually experienced pain as a result of the procedure,
most notably when she washes her genitals. These complica-
tions were at their worst when Annisa was four years old, but
were still ongoing as of the time of the hearing before the IJ.
11586                BENYAMIN v. HOLDER
   Rodriguez reported that the couple’s other daughter, Ana-
karina, is not circumcised, as she was born in Venezuela, not
Indonesia. Both Rodriguez and Benyamin testified, however,
that they fear that if the family is forced to return to Indone-
sia, Anakarina may become a victim of female genital mutila-
tion.

   In reviewing Benyamin’s application, the IJ concluded that
she could only consider whether Benyamin himself had suf-
fered past persecution or had a well-founded fear of future
persecution, as “none of the other respondents have specifi-
cally applied for asylum by submitting their own application.”
The IJ determined that Benyamin suffered no specific harm in
Indonesia as a result of his marriage to a Catholic woman.

   As to circumcision, the IJ found that the procedure per-
formed on Annisa was a “harm,” but nevertheless determined
that neither Benyamin nor Rodriguez “has alleged that any
particular harm has come to them or would come to them for
opposing Annisa’s circumcision . . . .” The IJ further noted
that a State Department report submitted with the asylum
application discussed female genital mutilation as practiced in
Indonesia and detailed that “the physical harm of the opera-
tion appear[s] to be minimal.” With respect to the possibility
that Anakarina would be forced to undergo female genital
mutilation if the family were returned to Indonesia, the IJ
found there was no evidence to support the couple’s fear. As
a result, the IJ determined that Benyamin failed to establish
statutory eligibility for asylum and denied Benyamin’s appli-
cation, along with his request for relief under the CAT. Nota-
bly, however, the IJ did not make an adverse credibility
finding in her decision.

   The BIA dismissed Benyamin’s appeal. First, the BIA
determined that the IJ correctly found that Benyamin did not
suffer past persecution in Indonesia and agreed with the IJ’s
finding that the discrimination and ill treatment Rodriguez
endured in Indonesia did not rise to the level of persecution.
                      BENYAMIN v. HOLDER                   11587
Second, by comparing the procedure that Annisa underwent
to the female genital mutilation described in Kasinga, 21 I &
N Dec. 357, the BIA determined that Annisa’s circumcision
did not rise to the level of persecution, as it was less severe
than the procedure described in Kasinga and “FGM as prac-
ticed in Indonesia involves minimal short-term pain, suffer-
ing, and complications.” Third, the BIA affirmed the IJ’s
determination that Benyamin failed to establish that there was
a risk of future persecution because the record did not indicate
that individuals in mixed-religion marriages are persecuted in
Indonesia or that parents who oppose female genital mutila-
tion are persecuted. Finally, the BIA agreed with the IJ’s
denial of Benyamin’s request for withholding of removal and
relief under the CAT.

                           ANALYSIS

   The BIA did not state whether it conducted a de novo or
abuse of discretion review in this matter. Where the standard
of review the BIA employed is unclear, we may look to both
the BIA’s decision and the IJ’s oral decision “as a guide to
what lay behind the BIA’s conclusion.” Avetova-Elisseva v.
INS, 213 F.3d 1192, 1197 (9th Cir. 2000). Because the IJ
made no adverse credibility determination, we take the testi-
mony of Benyamin and Rodriguez as true. See Sinha v.
Holder, 564 F.3d 1015, 1020 (9th Cir. 2009).

  We review factual findings for substantial evidence.
Mohammed, 400 F.3d at 791. Questions of law we review de
novo. Id. at 791-92. Significant to this case, we “will not defer
to BIA decisions that conflict with circuit precedent.”
Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003).

I.   CONSTRUCTIVE DEPORTATION

  [1] Benyamin’s application for asylum raises a unique
concern—the effect that the BIA’s decision to deny relief to
Benyamin will have on his alien minor children. “Because a
11588                 BENYAMIN v. HOLDER
minor alien has no legal right to remain in the United States,
‘deportation of [her] parents would result in [her] being con-
structively deported.’ ” Abebe, 432 F.3d at 1048-49 (Tallman,
J., dissenting in part and concurring in part) (alteration in
original) (quoting Oforji v. Ashcroft, 354 F.3d 609, 616 (7th
Cir. 2003)). “Thus, when addressing the parent[’s] application
for asylum, it is proper to consider not only the potential per-
secution the child may face, but also any hardship to the alien
child due to the deportation of her parent[ ].” Id. at 1049.

   We recognized this parent-child conundrum, often referred
to as “constructive deportation,” in Abebe. See id. at 1048-49.
In that case, we considered the petition for review filed by
Sisay Mengistu and his wife, Almaz Abebe, after the BIA
denied their application for asylum and withholding of
removal. See id. at 1038. “Petitioners argued that if the family
were returned to Ethiopia, their nine-year-old daughter would
be subjected to female genital mutilation (FGM) . . . .” Id. at
1038-39. Sitting en banc, we underscored that it “is well-
settled that FGM constitutes persecution sufficient to warrant
a grant of asylum.” Id. at 1042. We also concluded that “the
evidence indicated that the probability that [the daughter]
would have to undergo this ritual [female genital mutilation]
[if the family were forced to return to Ethiopia] greatly
exceeded the threshold required to establish eligibility for asy-
lum.” Id. at 1043. As a result, following the Supreme Court’s
directive to allow the BIA the opportunity to address matters
in the first instance, see id. (citing INS v. Ventura, 537 U.S.
12, 17 (2002)), we remanded the petitioners’ case to the BIA
to consider “whether Petitioners, parents of a U.S. citizen
child likely to face persecution in her parents’ native country,
may derivatively qualify for asylum.” Id.

  [2] Our case law treats claims of past persecution with as
much rigor as those based on the threat of future persecution.
Claimants may either demonstrate eligibility for asylum by
demonstrating that they have suffered past persecution on the
basis of the statutory grounds, thereby creating a rebuttable
                     BENYAMIN v. HOLDER                   11589
presumption of future persecution, see Mohammed, 400 F.3d
at 798-99, or by showing that they have a well-founded fear
of future persecution on account of one of the listed grounds,
see Abebe, 432 F.3d at 1041-42. These are co-equal avenues
for eligibility. Thus, just as we remanded to the BIA in Abebe
for it to consider whether a parent of a child who is likely to
face future persecution in her parent’s native country may
derivatively qualify for asylum, the BIA should be afforded
the opportunity to consider whether a petitioner whose child
has faced past persecution in her parent’s native country may
derivatively qualify for asylum. As the partial dissent in
Abebe noted, the threat of constructive deportation is more
serious where, as here, the children are aliens with no inde-
pendent right to remain in the country, as opposed to U.S. citi-
zens, who may have alternate means of remaining in the
United States, even if their alien parents are deported. See
Abebe, 432 F.3d at 1048-49 (Tallman, J., dissenting in part
and concurring in part). With the concept of constructive
deportation in mind, we review Benyamin’s petition.

II.    FEMALE GENITAL MUTILATION

   The IJ erred in concluding that she could only consider
whether Benyamin himself had suffered past persecution or
had a well-founded fear of future persecution. The BIA’s
determinations regarding Annisa’s experience of female geni-
tal mutilation are fundamentally flawed and contrary to Ninth
Circuit and BIA precedent. As the BIA must be given an
opportunity to consider, in the first instance, whether
Benyamin may qualify for asylum based on persecution
already endured by his alien child, Annisa, or based on the
threat of future persecution faced by his alien child, Ana-
karina, we remand for the BIA to consider Benyamin’s claims
under a correct understanding of the governing law.

  A.    Past Persecution

  Here, the IJ determined—and the BIA agreed—that
Benyamin failed to demonstrate past persecution. With
11590                 BENYAMIN v. HOLDER
respect to the female genital mutilation perpetrated against
Annisa, the IJ determined that Benyamin did not demonstrate
how he was harmed as a result of the procedure, and further
noted that the physical harm that Annisa suffered appeared to
be “minimal.” The BIA detailed that the IJ found that the
female genital mutilation performed on Annisa “was not of
the nature described in Matter of Kasinga, 21 I&N Dec. 357
(BIA 1996).” The BIA highlighted a particular section of
Kasinga, in which the Board stated that “ ‘[t]he FGM prac-
ticed by her tribe, . . ., is of an extreme type involving cutting
the genitalia with knives, extensive bleeding, and a 40-day
recovery period,’ and is of an ‘[e]xtreme nature causing per-
manent damage, and not just a minor form of genital ritual.’ ”
The BIA “agree[d] with the Immigration Judge that Kasinga
is distinguishable from this case,” noting Rodriguez’s testi-
mony that Annisa’s recovery time was “short” and referenc-
ing a State Department report detailing that “FGM as
practiced in Indonesia involves minimal short term-pain, suf-
fering, and complications.”

   [3] It is well-settled in this circuit that female genital muti-
lation constitutes persecution sufficient to warrant asylum
relief. See Abebe, 432 F.3d at 1042; Mohammed, 400 F.3d at
795-96. Many of our sister circuits have agreed. See Haoua
v. Gonzales, 472 F.3d 227, 231-32 (4th Cir. 2007) (affirming
that female genital mutilation constitutes persecution within
the meaning of the Immigration and Nationality Act); Niang
v. Gonzales, 422 F.3d 1187, 1197-98 (10th Cir. 2005) (same);
Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir. 2004) (same);
Abankwah v. INS, 185 F.3d 18, 23 (2d Cir. 1999) (same).

   [4] As we observed in Mohammed, “we 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.” 400 F.3d at 795 (emphasis added). Thus,
the BIA’s attempt to parse the distinction between differing
forms of female genital mutilation is not only a threat to the
rights of women in a civilized society, but also runs counter
                     BENYAMIN v. HOLDER                   11591
to our circuit precedent. We have recognized that “the mutila-
tion of women and girls is ‘a horrifically brutal procedure,
often performed without anesthesia’ that causes both short-
and long-term physical and psychological consequences.” Id.
(quoting Nwaokolo v. INS, 314 F.3d 303, 308 (7th Cir. 2002)).

   [5] In Mohammed we referenced the World Health Organi-
zation’s report that “even the least drastic form of female gen-
ital mutilation can cause a wide range of complications such
as infection, hemorrhaging from the clitoral artery during
childbirth, formation of abscesses, development of cysts and
tumors, repeated urinary tract infections, and psuedo [sic]
infibulation.” Id. at 800 (citing World Health Organization,
Female Genital Mutilation: An Overview at 14-15 (1998)). To
suggest, as did the IJ, that there is no persecution because of
minimal physical harm ignores both the involuntary nature of
the procedure and the very real follow-on consequences. It is
no surprise that, in describing the Department of State’s clas-
sifications of the prevalent forms of female genital mutilation,
and detailing that the petitioner seemed to have undergone
“Type I”—the least severe classified form—we nonetheless
determined with “no doubt” that the procedure rises to the
level of persecution. See id. at 795, 795 n.12. Considering our
precedent, the BIA’s determination that Annisa’s harm did
not constitute past persecution because the female genital
mutilation she endured was of a comparatively less brutal
form is wrong as a matter of law. Our precedent does not tol-
erate such line-drawing when it comes to this practice, which
the Department of State deems as “threaten[ing] the health
and violat[ing] the human rights of women.” Prevalence of
the Practice of Female Genital Mutilation (FGM); Laws Pro-
hibiting FGM and Their Enforcement; Recommendations on
How to Best Work to Eliminate FGM, U.S. Dept. of State,
Report on Female Genital Mutilation, at 4, available at http://
www.state.gov/documents/organization/9424.pdf.

  It also bears noting that the BIA’s attempt to distinguish
11592                   BENYAMIN v. HOLDER
Kasinga belies what Kasinga actually stands for.2 In Kasinga,
the BIA held that female genital mutilation is a form of perse-
cution that can be the basis for a grant of asylum. 21 I. & N.
Dec. at 366. Although the BIA described the type of female
genital mutilation at issue in Kasinga as “extreme,” see id. at
361, the decision does not create a floor for the requisite level
of physical invasion necessary to render female genital muti-
lation persecution under the law. Any suggestion otherwise is
a betrayal of the central holding of Kasinga.

   [6] In sum, the female genital mutilation that Annisa
endured undoubtedly constitutes past persecution. Conse-
quently, we vacate the portion of the BIA’s decision that
holds that Annisa’s mutilation does not constitute persecution.
As neither the BIA nor the IJ considered Annisa’s persecution
in its own right as a potential ground for granting relief to
Benyamin, we remand to give the BIA the opportunity to con-
sider the matter in the first instance, as instructed by the
Supreme Court in INS v. Ventura, 537 U.S. 12, 17 (2002). See
also Abebe, 432 F.3d at 1043.

  B.     Humanitarian Exception

   [7] Annisa suffered a form of past persecution that we have
recognized as “a particularly severe form of past persecution.”
Mohammed, 400 F.3d at 801. Considering the severity of
Annisa’s persecution, the BIA has discretion to grant humani-
tarian asylum. 8 C.F.R. § 1208.13(b)(1)(iii)(A). Because the
BIA did not determine whether Annisa’s past persecution
makes Benyamin and his family eligible for humanitarian asy-
lum, we remand to the BIA to consider in the first instance
whether this form of relief should be granted. See Silaya v.
Mukasey, 524 F.3d 1066, 1072 (9th Cir. 2008).
  2
    We accord the BIA’s single-member order in this case deference under
Skidmore v. Swift & Co., 323 U.S. 134 (1944). See Garcia-Quintero v.
Gonzales, 455 F.3d 1006, 1014-15 (9th Cir. 2006). Nevertheless, the
BIA’s decision in this case represents a fundamental misreading of
Kasinga.
                     BENYAMIN v. HOLDER                   11593
  C.   Future Persecution

   [8] The BIA did not address whether Anakarina had a well-
founded fear of future persecution based on the threat that
she, like her sister, might suffer female genital mutilation. If
Anakarina has established a well-founded fear of future perse-
cution, the BIA should consider whether Benyamin may
derivatively qualify for asylum based on the threat of harm to
Anakarina. See Abebe, 432 F.3d at 1043. We remand to give
the BIA the opportunity to address the matter in the first
instance. See id.; Ventura, 537 U.S. at 17.

III.   PERSECUTION BASED ON A PARTICULAR SOCIAL GROUP

   Benyamin also argued that he suffered past persecution and
faced the threat of future persecution in Indonesia based on
his mixed-religion marriage. After considering testimony
from Benyamin and Rodriguez, the IJ and the BIA determined
that Benyamin did not demonstrate eligibility for asylum on
that basis. Benyamin “acknowledged that other than having
his feelings hurt by having his friends shun him and having
difficulties with his family, he has suffered no specific harm
in Indonesia due to his marriage to a Catholic.” Similarly, the
indignities and religious denigration suffered by Rodriquez at
the hands of her in-laws and others did not rise to the level of
persecution.

   [9] The BIA aptly noted that the IJ “accurately pointed out
that [Benyamin] was able to leave and return to Indonesia
numerous times without experiencing harm.” The BIA
explained that “[s]uch actions undermine [Benyamin’s] claim
that he is a ‘refugee,’ where that term is defined as a person
who is ‘unable or unwilling to return’ to the country of origin
because of persecution.” Nothing in the record compels us to
conclude that Benyamin established eligibility for asylum on
this ground.
11594                   BENYAMIN v. HOLDER
IV.     SAFE HAVEN

  Benyamin and the government both concede that the BIA
did not address the IJ’s finding that Benyamin and his family
could find a “safe haven” in Venezuela. On remand, the BIA
may consider this issue in the first instance. See Ventura, 537
U.S. at 17.

                            CONCLUSION

   [10] While substantial evidence supports the determination
that Benyamin failed to show that he faced past persecution
or the threat of future persecution on account of his social
group membership, the IJ and the BIA erred in concluding
that Benyamin failed to establish that Annisa had endured
past persecution by female genital mutilation. The BIA also
erred in failing to consider whether Benyamin established a
well-founded fear of future persecution based on the possibil-
ity that Anakarina would be forced to endure female genital
mutilation if forced to return to Indonesia. The BIA should
consider in the first instance whether Benyamin may deriva-
tively qualify for asylum.3 See Abebe, 432 F.3d at 1043, 1048-
49. Consequently, we grant the petition, vacate the order of
removal, and remand for further proceedings consistent with
this opinion.

 PETITION FOR REVIEW GRANTED; REMANDED
WITH INSTRUCTIONS.




  3
   Because Benyamin might derivatively qualify based on the persecution
suffered by his children, we do not reach his withholding of removal and
CAT claims. See Li v. Holder, 559 F.3d 1096, 1113 n.18 (9th Cir. 2009).
