Abay v. Ashcroft, 02-3795.

• Decision Date: 19 May 2004
• Docket Number: No. 02-3795.,02-3795.
• Citation: 368 F.3d 634
• Parties: Yayeshwork ABAY and Burhan Amare, Petitioners, v. John ASHCROFT, United States Attorney General and Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

368 F.3d 634

Yayeshwork ABAY and Burhan Amare, Petitioners, v. John ASHCROFT, United States Attorney General and Immigration and Naturalization Service, Respondents.

No. 02-3795.

United States Court of Appeals, Sixth Circuit.

Argued: January 29, 2004.

Decided and Filed: May 19, 2004.

E. Dennis Muchnicki (argued and briefed), Dublin, OH, for Petitioners.

Richard M. Evans (briefed), United States Department of Justice Office of Immigration Litigation, Washington, DC, Nancy E. Friedman (briefed), United States Department of Justice Office of Immigration Litigation, Washington, DC, Julia K. Doig (argued), United States Department of Justice, Washington, DC, for Respondents.

Before MERRITT and SUTTON, Circuit Judges; FEIKENS, District Judge.^*

MERRITT, J., delivered the opinion of the court, in which FEIKENS, D. J., joined. SUTTON, J. (pp. 643-46), delivered a separate opinion concurring in the judgment.

OPINION

MERRITT, Circuit Judge.

Yayeshwork Abay and her minor daughter Burhan Amare, citizens and natives of Ethiopia, petition the Court for review of an order in which the Board of Immigration Appeals affirmed without opinion the immigration judge's denial of their consolidated claims for asylum and withholding of deportation under section 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. § 1253(h)(1) (1996). Both Abay and Amare seek asylum based on their fear that, should they be returned to Ethiopia, Amare will be subjected to "female genital mutilation," a 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 both the minor child Amare and her mother have a well-founded fear that Amare will be subjected to female genital mutilation should they be returned to Ethiopia and thus are "refugees" eligible for asylum under the Act. Accordingly, the petition for review is GRANTED and the case is remanded for further proceedings consistent with this opinion.

I. Background

Petitioner Abay and her daughter, petitioner Amare, entered the United States on May 18, 1993, as visitors for pleasure. On May 30, 1996, following an unsuccessful application for asylum, Abay and Amare were each issued and served with a referral notice and order to show cause. At a master calendar hearing held by teleconference on August 29, 1996, and at which the minor daughter waived appearance, their separate cases were consolidated and Abay's was designated the "lead file." On behalf of both respondents, counsel conceded deportability and applied for relief in the form of asylum, withholding of deportation, and in the alternative, voluntary departure. On June 30, 1997, counsel submitted Abay's fully briefed application, in which she claimed that she was persecuted in the past, and feared persecution in the future, on account of her Amhara ethnicity, her Pentacostal Christian religious practice, and her membership in the All Amhara People's Organization, an opposition political party in Ethiopia. On August 6, 1997, counsel submitted a supplemental brief and exhibits supporting Amare's application in which Amare claimed that she feared being subjected to female genital mutilation upon her return to Ethiopia.

II. Legal framework and standard of review

The Attorney General has discretion to grant asylum to a person who qualifies as a "refugee" within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act. See 8 U.S.C. § 1158(b)(1). The Act defines a refugee as:

any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....

Id. § 1101(a)(42)(A). To obtain asylum, an alien must show that she is a refugee entitled to a discretionary grant of asylum. Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir.1998); Perkovic v. INS, 33 F.3d 615, 620 (6th Cir.1994). The asylum applicant bears the burden of establishing that she qualifies as a refugee "either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution." 8 C.F.R. § 208.13(b).

An alien may demonstrate a well-founded fear of future persecution by showing that (1) he or she has a fear of persecution in his or her country on account of race, religion, nationality, membership in a particular social group, or political opinion; (2) there is a reasonable possibility of suffering such persecution if he or she were to return to that country; and (3) he or she is unable or unwilling to return to that country because of such fear. An applicant's fear of persecution must be both subjectively genuine and objectively reasonable.

Mikhailevitch, 146 F.3d at 389. If the applicant establishes past persecution, the applicant is entitled to a presumption of a well-founded fear of future persecution, and the burden then shifts to the Immigration and Naturalization Service to show 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 in the applicant's country ... on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 C.F.R. § 208.13(b)(1)(i)(A); see Mikhailevitch, 146 F.3d at 389. To establish eligibility for asylum, an alien is not required to present proof that future persecution is more likely than not. INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). "One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place." Id.

The petitioners also seek relief in the form of withholding of deportation under former § 1253(h)(1), a form of nondiscretionary relief that must be granted to aliens who can meet the more stringent standards governing such applications. To establish eligibility for nondiscretionary withholding of deportation, the alien must show that there is a "clear probability" that her "life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Mikhailevitch, 146 F.3d at 391. The applicant who fails to establish that she is a "refugee" eligible for asylum under § 1158 will necessarily fail to satisfy the standard governing § 1253(h)(1). See INS v. Cardoza-Fonseca, 480 U.S. 421, 449-50, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Mikhailevitch, 146 F.3d at 391. On the other hand, the applicant who establishes that she is a "refugee" eligible for asylum, but who is not granted asylum in the exercise of the Attorney General's discretion, may nevertheless be able meet the more stringent standard to show she is eligible for withholding of deportation.

Under our deferential standard of review, we must uphold the Board's decision if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Mikhailevitch, 146 F.3d at 388 (internal quotation marks omitted); see INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We may not reverse the Board's determination simply because we would have decided the matter differently. See Klawitter v. INS, 970 F.2d 149, 151-52 (6th Cir.1992). The petition for review may be granted only if the evidence presented "not only supports a contrary conclusion, but indeed compels it." Id. at 152 (emphasis in original). The appropriate inquiry is whether the applicable evidence "was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. Where, as here, the Board of Immigration Appeals affirms the decision of an immigration judge without opinion, we review the decision of the immigration judge directly. Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir.2003).

III. Discussion

A. Female genital mutilation

Forced female genital mutilation involves the infliction of grave harm constituting persecution on account of membership in a particular social group that can form the basis of a successful claim for asylum. In re Fauziya Kasinga, 21 I. & N. Dec. 357, 365, Int. Dec. 3278 (BIA June 13, 1996); see Abankwah v. INS, 185 F.3d 18, 23-24 (2d Cir.1999) (holding that the evidence compelled the conclusion that the petitioner had a well-founded fear of being subjected to female genital mutilation in Ghana as punishment for having engaged in premarital sex, and reversing the Board's decision to the contrary). Female genital mutilation, or FGM, is the collective name given to a series of surgical operations, involving the removal of some or all of the external genitalia, performed on girls and women primarily in Africa and Asia.¹ Often performed under unsanitary conditions with highly rudimentary instruments, female genital mutilation is "extremely painful," "permanently disfigures the female genitalia, [and] exposes the girl or woman to the risk of serious, potentially life-threatening complications," including "bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to the urethra and anus." In re Fauziya Kasinga, 21 I. & N. Dec. at 361. Female genital mutilation can result in the permanent loss of genital sensation in the victim and the consequent elimination of sexual pleasure....