Kone v. Holder

• Decision Date: 25 February 2010
• Docket Number: Docket No. 08-1445-ag.
• Citation: 596 F.3d 141
• Parties: Nan Marie KONE, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

596 F.3d 141

Nan Marie KONE, Petitioner, v. Eric H. HOLDER, Jr., United States

Attorney General,^* Respondent.

Docket No. 08-1445-ag.

United States Court of Appeals, Second Circuit.

Argued: August 31, 2009.

Decided: February 25, 2010.

Brian I. Kaplan, Goldberg & Kaplan, LLP, New York, NY, for Petitioner.

Andrew B. Insenga, Trial Attorney (Gregory G. Katsas, Assistant Attorney General, and Carol Federighi, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before CALABRESI, CABRANES, AND LYNCH, Circuit Judges.^**

GERARD E. LYNCH, Circuit Judge:

Petitioner Nan Marie Kone, a native and citizen of Côte d'Ivoire,¹ petitions for review of an order of the Board of Immigration Appeals ("BIA"), affirming the decision of the Immigration Judge ("IJ"), denying Kone's applications for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture ("CAT")² based on female genital mutilation, religious, ethnic and political persecution, and Kone's fear that her daughters would be forcibly subjected to genital mutilation against Kone's wishes if she were removed. See In re Kone, A98-977-450 (B.I.A. Feb. 27, 2008), aff'g A98-977-450 (Immig. Ct. N.Y. City Apr. 11, 2006). We find that the agency doubly erred in its treatment of Kone's voluntary return trips to Côte d'Ivoire and that these errors compel a remand. First, the agency inappropriately rebutted the presumption of future persecution to which Kone was entitled based solely on Kone's voluntary return trips to her native country. Second, even if the burden were on Kone to prove a likelihood of future persecution, the agency's adverse credibility determination on this point is corrupted by reliance upon an erroneous factual finding and the failure to adequately consider the relevant circumstances. Because we cannot predict with confidence that the agency would reach the same result on remand absent these errors, we grant the petition for review, vacate the decision of the BIA, and remand the case for further proceedings consistent with this opinion. Additionally, we note that on remand, the parties and the agency may wish to consider Kone's eligibility for asylum without regard to a well-founded fear of future persecution under the portion of the asylum statute frequently referred to as "humanitarian asylum." See Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir.2007).

BACKGROUND

Kone last entered the United States on January 15, 2005, on a non-immigrant tourist visa, with permission to remain for six months. In May 2005, Kone applied for asylum, withholding of removal, and protection under the CAT. In July 2005, upon the expiration of her tourist visa, Kone was charged as removable from the United States by service of a Notice to Appear. In removal proceedings, Kone, through counsel, conceded removability, relying entirely on her applications for asylum and related forms of relief to prevent her removal to Côte d'Ivoire.

I. Claim of Persecution

In support of her applications, Kone claimed that she had been persecuted in Côte d'Ivoire by being subjected to genital mutilation, and feared that her two daughters both United States citizens, would be subjected to such mutilation if she were removed. Kone also alleged persecution because of her Dioula ethnicity, her Muslim religion, and her member in the opposition political group "Rally of the Republicans" ("RDR"), which is associated with the Dioula people. Through her Form I-589 asylum application and in testimony before the IJ, Kone provided the following account:

Born on September 30, 1973, in Abidjan, Côte d'Ivoire, Kone recalls that when she was eight years old,

[t]wo ... old ladies and my grandmother pushed me on the ground. They held my hands and opened my feet widely while [a] third old lady cut my private parts with an old and dirty knife. She cut my clitoris at the base. The pain was so unbearable that I passed out. I was bleeding heavily. There was no anesthesia to calm the pain. When I woke up, I was covered with sheets. I was still bleeding and the pain was too much for me. No one ever took me to the hospital or even call[ed] a doctor.

Those old ladies have no medical experience. My grandmother put herbs on the wound. They cleaned it and made a potion made of boiled herbs hoping to stop the bleeding. I suffered a lot. I felt my private parts burning every time I urinated.

Kone continues to suffer from this procedure, physically and emotionally, with "painful and disorganized periods" and a "very painful pregnancy and delivery."

As an adult, Kone traveled back and forth between Côte d'Ivoire and the United States several times before seeking asylum. She first came to the United States on a visitor's visa in July 2002, and returned to Côte d'Ivoire a month later. On November 15, 2002, while Kone was back in Côte d'Ivoire, the government arrested many members of the RDR political opposition party, including Kone, who had been a rank and file member since 1999. On that day, while Kone was at work at the National Agency for Rural Development ("ANADER") — a private firm in Abidjan, where she had worked as a cashier since finishing high school — two police officers found Kone carrying an RDR membership card and arrested her. Kone was jailed for ten days, during which time she was beaten daily, denied drinking water, and required to walk naked in front of the guards, one of whom attempted to rape her. Upon her release, the guards warned Kone that they would catch and kill her if she continued to support the RDR.

After this incident, Kone and her family discussed the possibility of her fleeing Côte d'Ivoire. At that point, however, Kone was optimistic that the political and ethnic strife in the country would resolve, and accordingly, she remained in Côte d'Ivoire, and continued her employment with ANADER.

Kone did, however, travel to the United States between March and September 2003, and during this second visit had a baby daughter. On September 13, 2003, Kone returned with her daughter to Côte d'Ivoire, where they stayed for two months before coming back to the United States on November 15 for a pediatric checkup.

Five days after Kone and her daughter came to the United States, Kone's father was killed while praying at a mosque in Abidjan that was stormed by armed supporters of Côte d'Ivoire's president. Kone remained in the United States for several months following this incident, returning to Côte d'Ivoire in March 2004. This time, Kone only remained in Côte d'Ivoire for two months before she returned to the United States.

Kone's last trip to Côte d'Ivoire occurred in October 2004. She had been back in Côte d'Ivoire for several weeks when the government bombed Dioula towns, killing more than 250 people. Because of the situation for the Dioula people, combined with the pressure Kone faced from her family to subject her daughter — who was nearing the age at which young girls in Côte d'Ivoire are subjected to genital mutilation — to that procedure, Kone resolved to leave the country for good.

Kone departed Côte d'Ivoire for the last time on January 11, 2005. She was admitted to the United States a few days later on a temporary visa and timely applied for asylum. While the application was pending, Kone gave birth to a second daughter.

II. Prior Proceedings

On April 11, 2006, IJ Sandy K. Hom denied Kone's petition for asylum, withholding of removal and protection under the CAT. The IJ framed the dispositive issues as whether Kone "was a victim of past persecution and if so, does she [have] a well-founded fear of future persecution or is it rebutted by the [her] continual and frequent return to the Ivory Coast," and whether Kone has a fear of future persecution based on the birth of her daughters. In re Kone, A98-977-450 (Immig. Ct. N.Y. City Apr. 11, 2006). The IJ found credible Kone's account of her experience of genital mutilation, which was corroborated by an expert medical report. He further accepted — as evidenced by the statement that a presumption of future persecution arose out of Kone's past persecution — that this experience constituted persecution. As foreshadowed by the framing of the inquiry, however, the IJ found that Kone's voluntary return trips to Côte d'Ivoire rebutted the presumption of future persecution. The IJ rejected Kone's other claims of persecution on an adverse credibility finding, primarily in light of Kone's voluntary returns to Côte d'Ivoire and of what the IJ believed was her employment by the government, following these events. The IJ extended this adverse credibility finding to negate Kone's assertion of a fear of future persecution. As to Kone's daughters, the IJ held that Kone lacked standing to assert a claim for asylum or withholding of removal based on a fear that her daughters would be mutilated if Kone were removed to Côte d'Ivoire. Finally, the IJ denied CAT relief, finding in a cursory manner that Kone failed to demonstrate that it was more likely than not that she would be tortured if she returned to Côte d'Ivoire or that she could not receive protection from the government there.

On February 27, 2008, the BIA, in a short two-paragraph opinion, adopted and affirmed the IJ's decision. In re Kone, A98-977-450 (B.I.A. Feb. 27, 2008). The BIA specifically concurred in the IJ's adverse credibility determination, finding that Kone failed to offer a credible explanation for returning to Côte d'Ivoire on multiple occasions after the events giving rise to her persecution claims. The BIA further held that "[t]he Immigration Judge also correctly concluded that [Kone's] fear that her United States citizen daughters will be subjected to female genital mutilation is not a legally valid basis for the respondent's persecution claim." Id.

This petition for review followed. Kone argues that substantial evidence does not...