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In re A-T-, Respondent
Decided September 27, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Because female genital mutilation (“FGM”) is a type of harm that generally is inflicted
only once, the procedure itself will normally constitute a “fundamental change in
circumstances” such that an asylum applicant no longer has a well-founded fear of
persecution based on the fear that she will again be subjected to FGM.
(2) Unlike forcible sterilization, a procedure that also is performed only once but has lasting
physical and emotional effects, FGM has not been specifically identified as a basis for
asylum within the definition of a “refugee” under section 101(a)(42) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), so FGM does not qualify as
“continuing persecution.” Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003), distinguished.
FOR RESPONDENT: Ronald D. Richey, Esquire, Rockville, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Christopher R. Coxe, Jr.,
Assistant Chief Counsel
BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members.
FILPPU, Board Member:
In a decision dated January 19, 2005, an Immigration Judge denied the
respondent’s applications for asylum, withholding of removal, and protection
under the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,
G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”). The respondent has appealed
from that decision. The respondent’s request for oral argument is denied. See
8 C.F.R. § 1003.1(e)(7) (2007). The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 28-year-old native and citizen of Mali who was
admitted into the United States as a visitor on October 4, 2000, and applied for
asylum on May 12, 2004. The respondent testified that she underwent female
genital mutilation (“FGM”) as a young girl but has no memory of the
procedure. According to the respondent, she is opposed to the practice of
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FGM and, if she were to have a daughter in the future, would actively oppose
having the procedure performed on her child. The respondent further stated
that she had recently learned that her father had arranged for her to marry her
first cousin and that she fears the consequences of refusing to comply with her
family’s wishes. The respondent’s uncle also testified on her behalf.
The Immigration Judge determined that the respondent failed to file her
application for asylum within 1 year of arriving in the United States, as
required by section 208(a)(2)(B) of the Immigration and Nationality Act,
8 U.S.C. § 1158(a)(2)(B) (2000), and failed to demonstrate eligibility for an
exception based on changed circumstances. See 8 C.F.R. § 1208.4(a)(4)
(2005). Thus, the Immigration Judge found the respondent statutorily
ineligible for asylum and considered only her applications for withholding of
removal and protection under the Convention Against Torture. The
Immigration Judge found that the respondent’s past experience with FGM did
not qualify her for the prospective relief of withholding of removal. Further,
the Immigration Judge determined that the respondent had failed to
demonstrate that it is more likely than not that she would be forced into an
arranged marriage against her will, and that she had therefore failed to meet
the burden of proof for withholding of removal on that basis. Finally, the
Immigration Judge concluded that the respondent had failed to establish that
it is more likely than not that she would be tortured if she is returned to Mali.
II. APPLICABLE LAW
An applicant for asylum has the burden of establishing that she is a
“refugee” within the meaning of section 101(a)(42) of the Act, 8 U.S.C.
§ 1101(a)(42) (2000). See section 208 of the Act. To do this, the alien may
demonstrate that she has suffered past persecution on account of one of the
five enumerated grounds in section 101(a)(42) of the Act, which include race,
religion, nationality, membership in a particular social group, or political
opinion. See INS v. Elias-Zacarias, 502 U.S. 478 (1992); INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987).
Once an alien has shown past persecution, she is presumed to have a
well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1) (2007). The
presumption is based on the possibility that a persecutor, having once shown
an interest in harming the applicant, might seek to do so again if provided the
opportunity. See Matter of N-M-A-, 22 I&N Dec. 312, 318 (BIA 1998). In
such cases, the burden of proof then shifts to the Department of Homeland
Security (“DHS”) to rebut the presumption of a well-founded fear. 8 C.F.R.
§ 1208.13(b)(1)(ii). One way the DHS may meet its burden is to demonstrate
by a preponderance of the evidence that there has been a “fundamental change
in circumstances such that the applicant no longer has a well-founded fear of
persecution.” 8 C.F.R. § 1208.13(b)(1)(i)(A). If the Government successfully
297Cite as 24 I&N Dec. 296 (BIA 2007) Interim Decision #3584
rebuts the presumption, the burden shifts back to the applicant to demonstrate
a well-founded fear of future persecution. Aliens who cannot show past
persecution may otherwise obtain asylum under the Act if they can
demonstrate an objectively reasonable well-founded fear of future persecution
on account of a protected ground. 8 C.F.R. § 1208.13(b)(2)(i)(B); see also
Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
As we observed in Matter of N-M-A-, supra, at 318, asylum is a
forward-looking form of relief that provides “prophylactic protection” for
individuals who might face persecution in the future. The rationale for
considering past persecution is that the “‘past serves as an evidentiary proxy
for the future.’” Id. (quoting Marquez v. INS, 105 F.3d 374, 379 (7th Cir.
1997)). Nevertheless, in certain cases where the applicant has established past
persecution but there is little likelihood of future persecution, a favorable
exercise of discretion may still be warranted if the alien demonstrates
compelling reasons for her unwillingness to return to her country arising out
of the severity of the past persecution, or a reasonable possibility that she may
suffer other serious harm upon removal to that country. See 8 C.F.R.
§ 1208.13(b)(1)(iii); see also Matter of Chen, 20 I&N Dec. 16 (BIA 1989).
An alien who is seeking withholding of removal must show that her life or
freedom would be threatened on account of her race, religion, nationality,
membership in a particular social group, or political opinion. See section
241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2000). In order to make
this showing, the alien has the burden of proving that it is more likely than not
that she will be persecuted on account of a protected ground. See INS v.
Stevic, 467 U.S. 407, 413 (1984); 8 C.F.R. § 1208.16(b)(2) (2007). As with
asylum, an alien’s showing of past persecution in the proposed country of
removal gives rise to a presumption that her life or freedom would be
threatened there in the future.1 See 8 C.F.R. § 1208.16(b)(1).
Finally, in order to qualify for protection under the Convention Against
Torture, an alien must establish that if she is removed, it is more likely than not
that she will be subject to torture, as it is defined by regulation. See 8 C.F.R.
§§ 1208.16(c), 1208.18(a) (2007).
III. ANALYSIS
On appeal, the respondent argues that her past experience with FGM
constitutes a continuing harm that renders her eligible for asylum. She further
asserts that she has a well-founded fear of persecution if she returns to Mali
1 Unlike asylum, however, the regulations governing withholding of removal do not provide
for a discretionary grant of relief based solely on the severity of past harm.
298 Cite as 24 I&N Dec. 296 (BIA 2007) Interim Decision #3584
because she may someday give birth to a daughter who will also be subjected
to FGM. Additionally, the respondent claims to fear that her family will force
her to enter into an arranged marriage with her first cousin.
A. Female Genital Mutilation: “Continuing Persecution” Theory
In Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), we recognized that
FGM can be a form of persecution and found that young women from a certain
tribe in Togo who feared such a practice constituted a particular social group.
Like the asylum applicant in Matter of Kasinga, the respondent is from a
country in which FGM continues to be widespread. According to the
Department of State 2006 country report on human rights practices in
Mali, there are currently no laws prohibiting FGM.2 See Bureau of
Democracy, Human Rights, and Labor, U.S. Dep’t of State, Mali Country
Reports on Human Rights Practices–2006 (Mar. 6, 2007), available at
http://www.state.gov/g/drl/rls/hrrpt/2006/78745.htm; see also 8 C.F.R.
§ 1003.1(d)(3)(iv) (allowing the Board to take administrative notice of the
contents of official documents). In Kasinga, however, the applicant had not
yet undergone FGM and was facing an imminent threat of being subjected to
the procedure if returned to her country of origin. The respondent in this case
has already undergone FGM. Consequently, even assuming arguendo that she
is a member of a particular social group who suffered past persecution, “there
is no chance that she would be personally [persecuted] again by the
procedure.” Oforji v. Ashcroft, 354 F.3d 609, 615 (7th Cir. 2003). Any
presumption of future FGM persecution is thus rebutted by the fundamental
change in the respondent’s situation arising from the reprehensible, but
one-time, infliction of FGM upon her. 8 C.F.R. § 1208.16(b)(1)(i)(A).
Nevertheless, the fact that FGM is generally performed only once, thereby
eliminating the risk of identical future persecution, does not end the discussion.
In Mohammed v. Gonzales, 400 F.3d 785, 800-01 (9th Cir. 2005), the United
States Court of Appeals for the Ninth Circuit held that FGM constitutes a
continuing harm for purposes of asylum, analogizing the procedure to forced
sterilization, which we found to be continuing persecution in Matter of Y-T-L-,
23 I&N Dec. 601 (BIA 2003). We disagree with the analysis in Mohammed
v. Gonzales and consider Matter of Y-T-L-to represent a unique departure from
the ordinarily applicable principles regarding asylum and withholding of
removal. See also Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007)
(implicitly rejecting the theory that FGM constitutes continuing persecution
such that the presumption of a well-founded fear of persecution can never be
overcome).
In the United States, female genital mutilation is a felony punishable by up to 5 years of
imprisonment. See 18 U.S.C. § 116 (2000).
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Generally, persons who have experienced past persecution, but who have
no present well-founded fear, may obtain refugee status only if they
demonstrate compelling reasons for being unwilling to return to their country
arising out of the severity of the past persecution, or they face a reasonable
possibility of other serious harm in the future. See Matter of N-M-A-, supra,
at 318. This principle, derived originally from case law such as Matter of
Chen, supra, is embodied in the regulations that govern asylum adjudications.
See 8 C.F.R. § 1208.13(b)(1)(iii).
We nevertheless found in Matter of Y-T-L-, supra, that involuntary
sterilization and abortion represented an exception to this principle and
constituted continuing persecution, because persons who suffered such harm
have been singled out by Congress as having a basis for asylum in the
“refugee” definition of section 101(a)(42) of the Act on the strength of the past
harm alone. While FGM is similar to forced sterilization in the sense that it is
a harm that is normally performed only once but has ongoing physical and
emotional effects, Congress has not seen fit to recognize FGM (or any other
specific kind of persecution) in similar fashion with special statutory
provisions. Hence, we deem it consistent with the statutory and regulatory
scheme to view FGM in the same category as most other past injuries that rise
to the level of persecution, including those that involve some lasting disability,
such as the loss of a limb. We therefore do not subscribe to the Ninth Circuit’s
continuing harm analysis.
Stated another way, in Matter of Y-T-L-, supra, we treated sterilization as
continuing persecution because it would have contradicted Congress’s purpose
to find that the very act that constituted persecution under the coerced
population control provisions was itself a “fundamental change in
circumstances” that obviated a future well-founded fear. 8 C.F.R.
§ 1208.13(b)(1)(i)(A). The statute defined victims of forced sterilization, for
example, as qualifying for relief. Thus, it would have been anomalous to
rule that the sterilization also formed a basis for denying relief. In Matter of
Y-T-L-, supra, at 606, we specifically spoke of the “dilemma” presented
between the “bedrock principle” that refugee law in the main requires a
“prospective view” of persecution and the “manifestly clear” intent of
Congress to make past victims of China’s coercive family planning policy
eligible for asylum, “not simply those who could be [future] victims if returned
to China.” We resolved this dilemma by recognizing the “special nature of the
persecution at issue” in the coercive family planning context, and by giving
“full force to the intent of Congress in extending asylum to those who have
sustained” such family planning persecution in the past. Id.
Here, in sharp contrast, there is no separate statutory ground of persecution
predicated on an alien’s being subjected to FGM. Consequently, there is no
basis for following an approach outside the regulatory formula for assessing
persecution claims founded on past persecution alone. Simply put, we do not
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face a “dilemma” between the fundamental principles of refugee law and the
application of specific statutory directives.
The loss of a limb also gives rise to enduring harm to the victim, but such
forms of past persecution are routinely assessed under the past persecution
standards specified in the asylum and withholding of removal regulations. See
8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1). Neither set of regulations adopts a
“continuing” harm or continuing persecution theory for injuries that have a
lingering or permanent impact on the victim. We do not consider the ruling in
Matter of Y-T-L-, supra, to amount to a general repeal or revision of these
regulations, such as the asylum provisions specifying the nature of the inquiry
for a grant of asylum based on past persecution in the absence of a
well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1)(iii). In
the absence of a specific contrary statutory provision, such as the one at issue
in Y-T-L-, we consider these regulations to be binding. Accordingly, because
we reject the continuing persecution theory, we are unable to find the
respondent eligible for withholding of removal based on her past experience
with FGM.3
Further, as previously explained, the regulations do not provide
for a discretionary grant of withholding of removal based on the severity of
past persecution.
B. Asylum 1-Year Bar
The respondent entered the United States in October 2000 and filed her
asylum application in May 2004. The Immigration Judge determined that the
respondent was statutorily barred from asylum for failure to file her application
within 1 year of arriving in the United States, as required by section
208(a)(2)(B) of the Act, and that she failed to demonstrate eligibility for an
exception based on changed circumstances. See 8 C.F.R. § 1208.4(a)(4). We
agree with the Immigration Judge’s conclusion. Although the respondent
testified that she did not find out that her parents had arranged for her to marry
her first cousin until August 2003, a letter from her father reflects that she
likely had some awareness of the arrangement much earlier. Moreover, even
accepting the respondent’s testimony that she discovered her parents’ plans in
August 2003, she has not explained why she waited an additional 9 months
before filing her asylum application. See 8 C.F.R. § 1208.4(a)(4)(ii) (requiring
The Fourth Circuit, in which this case arises, cited Mohammed v. Gonzales, supra, with
approval in Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir. 2006). However, the opinion
cited Mohammed (along with authorities from two other circuits) only for the proposition
that FGM is persecution and did not address the merits of the Ninth Circuit’s continuing
persecution theory. As such, Barry represents mere dicta in this regard and is not binding
on us here. See also Niang v. Gonzales, 492 F.3d 505, 510 (4th Cir. 2007) (recognizing as
“settled principle” the view that the imminent threat of FGM may form the basis of a claim
for asylum or withholding of removal).
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applications to be filed within a “reasonable period” after discovering changed
circumstances). We therefore conclude that the respondent is ineligible for
asylum and may be considered only for withholding of removal and protection
under the Convention Against Torture.
Because we have rejected the continuing persecution theory put forth in
Mohammed v. Gonzales, supra, we are unable to find the respondent eligible
for withholding of removal based on her past experience with FGM.
Moreover, despite the severity of harm she endured as a victim of FGM, she
is ineligible for a humanitarian grant of asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii). Additionally, the respondent’s current status as an
unmarried woman with no children renders her claim that her future child or
children may be subjected to FGM in Mali too speculative to warrant
consideration. See generally Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006).
Moreover, we held in Matter of A-K-, 24 I&N Dec. 275 (BIA 2007), that an
alien may not establish eligibility for asylum or withholding of removal based
solely on the fear that his or her daughter might be forced to undergo FGM in
the alien’s home country. See also Niang v. Gonzales, 492 F.3d 505, 512 (4th
Cir. 2007) (rejecting an alien’s withholding claim “based solely on the
psychological suffering” she might endure if her daughter were required to
submit to FGM in Senegal).
C. Arranged Marriage
Finally, we agree with the Immigration Judge that the respondent failed to
establish eligibility for withholding of removal on the basis of her fear of an
arranged marriage. Initially, we note that an arranged marriage between adults
is not generally considered per se persecution. See, e.g., Mansour v. Ashcroft,
390 F.3d 667, 680 (9th Cir. 2004) (observing that arranged marriage, “while
unfortunate and deplorable, may not constitute persecution if imposed on an
adult”). It appears from the record that the respondent and her intended fiancé
are of similar ages and backgrounds, given the respondent’s testimony that she
and her cousin played together as children, and that the family used to joke
that they would one day marry. Thus, if the respondent were to return to Mali
and proceed with the marriage, it is not likely that she would be in a
disadvantaged position in relation to her husband on account of her age or
economic status.
It is understandable that the respondent, an educated young woman, would
prefer to choose her own spouse rather than acquiesce to pressure from her
family to marry someone she does not love and with whom she expects to be
unhappy. The respondent has also expressed valid concerns about
possible birth defects resulting from a union with her first cousin. While we
do not discount the respondent’s concerns, we do not see how the reluctant
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acceptance of family tradition over personal preference can form the basis for
a withholding of removal claim.
Moreover, the respondent has presented insufficient evidence regarding the
consequences she might face if she refuses to marry her intended fiancé. She
stated in her affidavit that her father “will stop at nothing to force me to marry
who he dictates,” but she gives little indication of what he might do if she
disobeys him. The respondent testified that her father might take out his anger
on her mother and dissolve their marriage, but a letter from the respondent’s
mother expresses no such concerns. Likewise, a letter from the respondent’s
father states that she must proceed with the marriage “to uphold the reputation
of our family,” but it includes no indication of possible consequences for
failing to comply with the arrangement. Further, the respondent testified that
if she refused to marry her cousin and was then shunned by her family, she
could not relocate elsewhere in Mali because single women living alone are
viewed as prostitutes. However, the respondent’s uncle, who testified on her
behalf, conceded that single women are indeed able to live alone and support
themselves in Mali. Thus, we agree with the Immigration Judge that the
respondent could reasonably relocate within Mali to avoid the marriage. See
8 C.F.R. § 1208.16(b)(3).
Additionally, we concur with the Immigration Judge that the respondent
failed to demonstrate a nexus between any harm she may fear and a protected
ground. The respondent suggests that young female members of the Bambara
tribe who oppose arranged marriage constitute a particular social group. Cf.
Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006), petition for cert. filed,
75 U.S.L.W. 3513 (U.S. Mar. 16, 2007) (No. 06-1264). We question the
viability of the respondent’s proposed group, as we are doubtful that young
Bambara women who oppose arranged marriage have the kind of social
visibility that would make them readily identifiable to those who would be
inclined to persecute them. See Matter of A-M-E- & J-G-U-, 24 I&N Dec.
69, 74-75 (BIA 2007) (holding that “affluent Guatemalans” did not constitute
a particular social group, partly because the perception of wealth is
highly subjective); Matter of C-A-, 23 I&N Dec. 951, 959-61 (BIA 2006)
(finding that noncriminal informants working against the Cali drug cartel in
Colombia were not sufficiently visible to be a particular social group),
aff’d, Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir. 2006),
cert. denied sub nom. Castillo-Arias v. Gonzales, 127 S. Ct. 977 (2007).
Moreover, even accepting the respondent’s status as a member of such a group,
we conclude that she has failed to demonstrate a clear probability that she
would be persecuted on that basis. Rather, the respondent has expressed only
a generalized fear of disobeying her authoritarian father.
Finally, the respondent seems to suggest on appeal that her past experience
with FGM creates a presumption that she is at risk of future persecution; that
is, even if she cannot be subjected to FGM a second time, she may be
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vulnerable to other forms of persecution on account of her membership in a
particular social group. Hassan v. Gonzales, supra, appears to support the
respondent’s theory. In Hassan, the Eighth Circuit recognized FGM as past
persecution and Somali women as a particular social group.4 Id. at 518
(quoting Mohammed v. Gonzales, supra, at 797, in observing that “‘the
immutable trait of being female is a motivating factor’” for FGM). It held that
although FGM is a form of persecution that can happen only once, the DHS
nevertheless retains the burden of rebutting the presumption of a well-founded
fear with regard to other common types of persecution a Somali woman might
endure, such as rape. Id. at 518-19.
However, we find Hassan to be at odds with the regulatory structure for
asylum, which provides: “If the applicant’s fear of future persecution is
unrelated to the past persecution, the applicant bears the burden of establishing
that the fear is well-founded.” 8 C.F.R. § 1208.13(b)(1); see also Matter of
N-M-A-, supra, at 321-23 (finding that an asylum applicant who suffered past
persecution under a regime no longer in power bears the burden of
demonstrating a well-founded fear of future persecution from a new
persecutor); 8 C.F.R. § 1208.16(b)(1)(B)(iii) (placing the same burden on
applicants for withholding of removal). Unlike FGM, family pressures to
accede to arranged marriages are not necessarily confined to females. Within
the contemplation of 8 C.F.R. § 1208.16(b)(1)(B)(iii), we find that the FGM
suffered by the respondent is unrelated to her father’s desire that she uphold
her family’s reputation by marrying her cousin. In this instance, the
respondent has not met her burden of showing a clear probability either that
she would be forced into an arranged marriage against her will or that she
would be persecuted on account of her rejection of the marriage.
D. Convention Against Torture
The Immigration Judge found that the respondent failed to present evidence
that it is more likely than not that she would be tortured if she is returned to
Mali. We agree and find that she does not qualify for protection under the
Convention Against Torture. See 8 C.F.R. §§ 1208.16(c), 1208.18(a).
4 Because gender is an immutable trait that is generally recognizable, Somali women would
appear to meet the social visibility requirement discussed above. We find it unnecessary in
this instance to resolve whether such a broadly defined group could constitute a particular
social group for purposes of asylum and withholding of removal.
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IV. CONCLUSION
The Immigration Judge correctly determined that the respondent is barred
from seeking asylum because her application was not timely filed or subject to
an exception. We also concur with the Immigration Judge’s conclusion that
the respondent has failed to establish eligibility for withholding of removal or
protection under the Convention Against Torture. Accordingly, the
respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondent is permitted to voluntarily depart from the
United States, without expense to the Government, within 60 days from the
date of this order or any extension beyond that time as may be granted by the
Department of Homeland Security. See section 240B(b) of the Act, 8 U.S.C.
§ 1229c(b) (2000); 8 C.F.R. §§ 1240.26(c), (f) (2007). In the event the
respondent fails to so depart, the respondent shall be removed as provided in
the Immigration Judge’s order.
NOTICE: If the respondent fails to depart the United States within the time
period specified, or any extensions granted by the DHS, the respondent shall
be subject to a civil penalty of not less than $1,000 and not more than $5,000,
and shall be ineligible for a period of 10 years for any further relief under
section 240B and sections 240A, 245, 248, and 249 of the Act, 8 U.S.C.
§§ 1229b, 1255, 1258, and 1259 (2000). See section 240B(d) of the Act.
305