Abebe v. Gonzales

• Decision Date: 30 December 2005
• Docket Number: No. 02-72390.,02-72390.
• Citation: 432 F.3d 1037
• Parties: Almaz Sayoum ABEBE; Sisay Mengistu, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1037

432 F.3d 1037

Almaz Sayoum ABEBE; Sisay Mengistu, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 02-72390.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 21, 2005.

Filed December 30, 2005.

Philip Hornik (argued), Portland, Oregon; Karen Musalo (argued), Stephen Knight and Tala Hartsough, Center for Gender and Refugee Studies, University of California Hastings College of the Law, San Francisco, CA, for the petitioners.

Peter D. Keisler, Assistant Attorney General, Donald E. Keener, Deputy Director and Alison R. Drucker, Senior Litigation Counsel (argued), United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A72-693-580, A72-693-581.

Before: SCHROEDER, Chief Judge, KOZINSKI, RYMER, THOMAS, W. FLETCHER, PAEZ, BERZON, TALLMAN, CLIFTON, BYBEE, and CALLAHAN, Circuit Judges.

CLIFTON, Circuit Judge.

Mr. Sisay Mengistu and his wife, Ms. Almaz Abebe (together Petitioners), are natives and citizens of Ethiopia who petition for review of a final order of the Board of Immigration Appeals (BIA) denying their application for asylum and withholding of removal. The BIA adopted the decision of the Immigration Judge (IJ), who concluded that Petitioners had not demonstrated a well-founded fear of persecution. Petitioners argued that if the family were returned to Ethiopia, their nine-year-old daughter would be subjected to female genital mutilation (FGM) and Mr. Mengistu would be persecuted because of his political activities. We conclude that the IJ's determination concerning Petitioners' FGM argument is not supported by substantial evidence. FGM constitutes persecution sufficient to support an asylum claim. The record does not support the conclusion reached by the IJ and adopted by the BIA that the risk that Petitioners' daughter will be subjected to FGM is too small to establish a well-founded fear of persecution. Substantial evidence does support the rejection of Petitioners' political persecution argument, however. Based upon the FGM ground, we grant the petition for review and remand for further proceedings consistent with this opinion.

I. BACKGROUND

On January 1, 1990, Mr. Mengistu came to the United States on a J-1 student visa that required him to return to Ethiopia upon expiration of the visa. Ms. Abebe joined him on February 22, 1993. On July 13, 1993, Petitioners filed an application for asylum.¹ While awaiting resolution of their application, Petitioners had two children, a son, Mikaeh, born in 1994, and a daughter, Amen, born in 1996. Both children are U.S. citizens.

Nearly two and a half years after Petitioners filed their request, the asylum office denied their application. The office concluded that Petitioners were aliens who had overstayed their visas and referred them to an IJ for further proceedings. Before the IJ, Petitioners renewed their asylum application, arguing that if their family was required to return to Ethiopia, their daughter, Amen, would be subjected to FGM,² and that Mr. Mengistu would be persecuted because of his actual and imputed political activities. The IJ denied Petitioners' application on November 17, 1997.

In a per curiam opinion, the BIA adopted and affirmed the IJ's decision on July 2, 2002. Petitioners petitioned for review of the BIA's decision, and on August 13, 2004, a three-judge panel of this court concluded, with one judge dissenting, that Petitioners did not establish a well-founded fear of persecution based upon either their concern that their daughter would be subjected to FGM or Mr. Mengistu's political activities. On March 3, 2005, we granted Petitioners' request for rehearing en banc, vacating the prior decision of the three-judge panel.

II. STANDARD OF REVIEW

Keeping in mind that when "the BIA adopts the decision of the IJ, we review the IJ's decision as if it were that of the BIA." Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir.2004); see also Tchoukhrova v. Gonzales, 404 F.3d 1181, 1188 (9th Cir.2005). We review the IJ's findings of fact for substantial evidence and will uphold these findings if they are supported by "`reasonable, substantial, and probative evidence on the record considered as a whole.'" Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir.1997) (quoting 8 U.S.C. § 1105a(a)(4)). We review questions of law de novo. Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir.2004).

III. DISCUSSION

A. Female Genital Mutilation Ground

1. Exhaustion

As a preliminary matter, the government argues that we do not have jurisdiction to consider Petitioners' FGM argument because Petitioners did not exhaust this argument before the BIA. In particular, the government contends that Petitioners did not put the BIA on notice that they were appealing the IJ's decision on the FGM ground. As the government points out, Petitioners did not mention the FGM ground in their notice of appeal to the BIA. Furthermore, only one sentence in the brief that Petitioners filed with the BIA referred to this ground. This sentence, which was included in the document's statement of facts, stated: "Further, [Petitioners] submitted written and testimonial evidence regarding their fear that their daughter, Amen Mengistu, born in the United States on May 15, 1996, would be subjected to female genital mutilation if Petitioners are forced to return to Ethiopia." No reference was made to Petitioners' concern that their daughter would be subjected to FGM within the argument section of the brief. Instead, the argument focused solely on the political activities ground.

Making clear that it had reviewed the entire record, however, the BIA did not limit its decision to address only Petitioners' political activities argument for asylum. Instead, the BIA effectively addressed Petitioners' FGM argument and rejected it on substantive grounds. See Ghassan v. INS, 972 F.2d 631, 635 (5th Cir.1992) (noting that the BIA may consider an issue that has not been appealed by either party). In its opinion, the BIA specifically stated that it "adopt[ed] and affirm[ed] the thorough and well-reasoned decision of the Immigration Judge in this case, which correctly found that the [Petitioners] had not adequately demonstrated their eligibility for either asylum or withholding of removal." While the BIA did not provide a more extensive discussion to support its conclusions, the BIA cited its decision in Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), to signify that it had conducted an independent review of the record and had exercised its own discretion in determining that its conclusions were the same as those articulated by the IJ.

Our caselaw establishes that where the BIA cites its decision in Burbano and does not express disagreement with any part of the IJ's decision, the BIA adopts the IJ's decision in its entirety.³ See Tchoukhrova, 404 F.3d at 1188. If the BIA intends to constrict the scope of its opinion to apply to only one ground upon which the IJ's decision rested, the BIA can and should specifically state that it is so limiting its opinion.⁴ Compare Krotova v Gonzales, 416 F.3d 1080, 1084 (9th Cir.2005) (noting that the BIA affirmed on one ground upon which the IJ's decision was based without considering the other issue raised by the petitioner); see also Singh v. Ashcroft, 301 F.3d 1109, 1114 (9th Cir.2002) (same); Falaja v. Gonzales, 418 F.3d 889, 897 n. 4 (8th Cir.2005) (same).

On this occasion, the BIA adopted the IJ's decision in full without saying that it limited the scope of its decision to Petitioners' political persecution argument. The IJ's decision discussed both the political persecution ground and the FGM ground and denied both on the merits. We interpret the BIA's express adoption and affirmance of what it described as the "thorough and well-reasoned decision of the Immigration Judge" to mean that it did the same. We take the BIA at its word and do not assume that the Board meant something other than what it said.

Recognizing that the BIA elected to consider both of Petitioners' grounds for asylum in this instance, we further note that the BIA could have expressly declined to consider Petitioners' FGM argument based on a finding that the argument was procedurally defective. It did not.⁵ The BIA is presumably aware of its ability to decline to review an argument when a petitioner has not properly raised the argument on appeal to the BIA. See Perez-Rodriguez v. INS, 3 F.3d 1074, 1080 (7th Cir.1993) (noting that the BIA declined to consider an argument because the petitioner did not raise it on appeal). When the BIA has ignored a procedural defect and elected to consider an issue on its substantive merits, we cannot then decline to consider the issue based upon this procedural defect. Cf. Fed. Power Comm'n v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) (noting that a court can only uphold an agency decision "`on the same basis articulated in the order by the agency itself'") (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). The BIA's express adoption of the IJ's decision which explicitly discussed the FGM ground is "enough to convince us that the relevant policy concerns underlying the exhaustion requirement — that an administrative agency should have a full opportunity to resolve a controversy or correct its own errors before judicial intervention-have been satisfied here." Sagermark v. INS, 767 F.2d 645, 648 (9th Cir.1985); see also Socop-Gonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir.2001). Thus, we conclude that Petitioners' FGM argument is not barred due to failure to exhaust it before the administrative agency.

2. Substantive Merits of the FGM Argument

Eligibility for asylum is established when an alien demonstrates that he is "unable or unwilling to return to the country of origin `because of persecution or a...