Bah v. Mukasey, Docket No. 07-1715-ag.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtStraub
Citation529 F.3d 99
PartiesSalimatou BAH, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Mariama Diallo, Petitioner, v. Department of Homeland Security, Respondent. Haby Diallo, Petitioner, v. Department of Homeland Security, Respondent.
Docket NumberDocket No. 07-1715-ag.,Docket No. 07-2120-ag.,Docket No. 07-1994-ag.
Decision Date11 June 2008
529 F.3d 99
Salimatou BAH, Petitioner,
v.
Michael B. MUKASEY, Attorney General, Respondent.
Mariama Diallo, Petitioner,
v.
Department of Homeland Security, Respondent.
Haby Diallo, Petitioner,
v.
Department of Homeland Security, Respondent.
Docket No. 07-1715-ag.
Docket No. 07-1994-ag.
Docket No. 07-2120-ag.
United States Court of Appeals, Second Circuit.
Argued: April 29, 2008.
Decided: June 11, 2008.

[529 F.3d 100]

Ronald S. Salomon, New York, NY, for Petitioner Salimatou Bah.

Theodore Vialet, New York, NY, for Petitioners Mariama Diallo and Haby Diallo.

Michael C. Heyse & Jessica E. Sherman, Trial Attorneys (Peter D. Keisler, Assistant Attorney General, Jeffrey S. Bucholtz & Gregory G. Katsas, Acting Assistant Attorneys General, Mary Jane Candaux & Michelle Latour, Assistant Directors, Joshua Braunstein, Cindy S. Ferrier, Lyle D. Jentzer, & Margaret Perry, Senior Litigation Counsel, Stacey I. Young, Trial Attorney, Ali Manuchehry, Law Clerk, on the briefs), Civil Division, Office of Immigration Litigation, U.S. Department

[529 F.3d 101]

of Justice, Washington, DC, for Respondents.

Ana C. Reyes (Robin E. Jacobsohn, on the brief, Christopher N. Manning, of counsel), Washington, DC, for Amicus Curiae Center for Gender and Refugee Studies.

Before: STRAUB, POOLER, and SOTOMAYOR, Circuit Judges.

Judges STRAUB and SOTOMAYOR also concur in separate opinions.

STRAUB, Circuit Judge:


Petitioners, three women from Guinea who underwent female genital mutilation in the past, petition for review of decisions of the Board of Immigration Appeals ("BIA") affirming, inter alia, the denial of their claims for withholding of removal and Convention Against Torture ("CAT") relief based on female genital mutilation. The agency held that because the genital mutilation had already occurred, the presumption that petitioners' lives or freedom would be threatened in the future was automatically rebutted by the fact that it had occurred. See 8 C.F.R. § 1208.16(b)(1)(i)(A).

Because the agency committed significant errors in the application of its own regulatory framework for withholding of removal claims, we grant in part and dismiss in part the petitions for review with respect to petitioners' withholding of removal and CAT claims based on female genital mutilation.1

BACKGROUND

I. Female Genital Mutilation

Female genital mutilation "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." Abankwah v. INS, 185 F.3d 18, 23 (2d Cir.1999).2 According to the World Health Organization, female genital mutilation can be classified into four different categories:

Type I Excision of the prepuce with or without excision of part or all of the clitoris.

Type II Excision of the prepuce and clitoris together with partial or total excision of the labia minora.

Type III Excision of part or all of the external genitalia and stitching/ narrowing of the vaginal opening (infibulation).

Type IV Unclassified: Includes pricking, piercing or incision of clitoris and/or labia; stretching of clitoris and/or labia; cauterization by burning of clitoris and surrounding tissues; scraping ... of the vaginal orifice or cutting ... of the vagina; Introduction of corrosive substances into the vagina to cause bleeding or herbs into the vagina with the aim of tightening or narrowing the vagina; any other procedure which falls under the definition of FGM. ...3

529 F.3d 102

World Health Organization, Female Genital Mutilation: Information Pack, at 2 (August 1996) (hereinafter "WHO Information Pack").4 The U.S. Department of State has largely adopted this classification. See Office of the Senior Coordinator for Women's Issues, U.S. Dep't of State, Prevalence of the Practice of Female Genital Mutilation (FGM); Laws Prohibiting FGM and Their Enforcement; Recommendations on How to Best Work to Eliminate FGM, U.S. Dept. of State 5 (June 27, 2001), available at www.state.gov/g/wi/rls/ rep/c6466.htm or http://www.state.gov/ documents/organization/9424.pdf (last visited June 10, 2008).

Genital mutilation "is often performed under unsanitary conditions with highly rudimentary instruments." Abankwah, 185 F.3d at 23.

The procedure is carried out with special knives, scissors, scalpels, pieces of glass or razor blades [in] poor light and septic conditions. The procedures are usually carried out by an elderly woman of the village who has been specially designated for this task, or by traditional birth attendants. ... Anaesthetics and antiseptics are not generally used. Assistants and/or family members hold down the girl to prevent her struggling. ... Paste mixtures made of herbs, local porridge, ashes, or other mixtures are rubbed on to the wound to stop bleeding.

WHO Information Pack at 3. Genital mutilation can have devastating, permanent effects on its victims, including immediate and long-term physical problems such as infection, difficulty during urination and menstruation, incontinence, and sexual dysfunction; complications during child birth such as fetal and maternal death, birth defects, and internal damage to the mother; and severe psychological problems.5 Id. at 7-10.

529 F.3d 103

The reasons for infliction of genital mutilation vary. Id. at 4. Some of the most prevalent reasons for genital mutilation are to preserve virginity before marriage and encourage fidelity during marriage. See, e.g., James Rice, A Successful Case is Made for Granting Refugee Status to a Woman Fleeing Her Own Country to Protect Her Daughter from Female Genital Mutilation, Gonz. J. Int'l L., Vol. 4, No. 4, at 3 (2000-2001) ("To a large extent, [female genital mutilation] is done to discourage sexual activity before marriage."); Leigh A. Trueblood, Female Genital Mutilation: A Discussion of International Human Rights Instruments, Cultural Sovereignty and Dominance Theory, 28 Denv. J. Int'l L. & Pol'y 437, 449 (Fall 2000) ("Supporters of FGM believe that they can reduce sexual desire in females by eliminating the sensitive tissue of the outer genitalia, particularly the clitoris. By attenuating women's sexual desire, the women can maintain their chastity and virginity before marriage and fidelity during marriage. ... They also believe that removal of female genitalia results in higher male sexual pleasure."); WHO Information Pack at 4 (listing "protection of virginity and prevention of promiscuity" as reasons for the practice).

In light of the long-lasting and severe consequences of genital mutilation, paired with the reasons for its infliction, the practice has been largely condemned by the international community. See, e.g., World Health Organization, Eliminating Female Genital Mutilation: An Interagency Statement OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, WHO (2008), http:// www.who.int/reproductive-health/ publications/fgm/ fgm_statement_2008.pdf (last visited June 10, 2008); Committee on the Elimination of All Forms of Discrimination Against Women, Female Circumcision General Recommendation No. 14, U.N. GAOR, 45th Sess., Supp. No. 38 & Corr. 1, at 80, ¶ 438, U.N. Doc. A/45/38 (1990); Declaration on the Elimination of Violence against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Art. 2(a), U.N. Doc. A/ 48/629 (1993) (including female genital mutilation as an example of violence sought to be eliminated). It has also been criticized and condemned by many activist groups within the countries where it is practiced. See, e.g., Inter-African Committee on Traditional Practices Homepage, http://www.iac-ciaf.com (last visited June 10, 2008) (stating that the "IAC was the first and largest NGO network in Africa to take up the issue of FGM at the grassroots, regional and international levels"); WHO Information Pack at 15 (stating that various conferences and seminars in Africa and Asia have recommended that "governments should adopt clear national policies to abolish FGM"). Moreover, in recognition of the harmful effects of genital mutilation, the United States Congress has criminalized female genital mutilation of minors in the United States. See 18 U.S.C. § 116(a) (providing that "whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years" shall be fined or imprisoned for up to five years).

529 F.3d 104

II. Petitioner Salimatou Bah

Petitioner Salimatou Bah seeks review of the March 26, 2007 order of the BIA affirming the August 23, 2005 decision of Immigration Judge ("IJ") Barbara A. Nelson denying her applications for asylum, withholding of removal, and relief under the CAT. In re Salimatou Bah, No. A98 648 305 (B.I.A. Mar. 26, 2007), aff'g No. A98 648 305 (Immig. Ct. N.Y. City Aug. 23, 2005). Salimatou,6 a native and citizen of Guinea, entered the United States without valid travel documents in June 2003, and in January 2005 was placed in removal proceedings by service of a Notice to Appear ("NTA"). She applied for asylum, withholding of removal, and relief under the CAT, alleging, inter alia, that as a young girl she "suffered" the "barbarous act" of female genital mutilation, and the event "still has dire consequences on [her] adult life."

In a statement accompanying her application, Salimatou explained that she belongs to the Fulani ethnic group, which strongly supports the practice of genital mutilation as "the best way to prevent the Fulani girls from having pre-marital sex," and "to force the Fulani girls to keep their virginity until the marriage." She claimed that at the age of eleven, her mother and aunt took her to a "small area fenced with wood and stuffed with coconut leaves." She was taken into a tent where five "old ladies" with knives and other tools undressed her and had her lie on the ground. Salimatou, "scared and shaking," tried to escape, but the women restrained her. She...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 5, 2022
    ...8 U.S.C. § 1252(b)(4). We nevertheless "review de novo questions of law and the application of law to undisputed fact." Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008) ; see also Prenga v. Sessions , 745 F. App'x 392, 394 (2d Cir. 2018).C. Claims Because Alvarez moves, among other things, ......
  • Kone v. Holder, Docket No. 08-1445-ag.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 25, 2010
    ...may have been persecuted through this experience on account of her membership in a particular social group. E.g., Bah v. Mukasey, 529 F.3d 99, 112-13 (2d Cir.2008); In re Kasinga, 21 I. & N. Dec. 357 (B.I.A.1996) (en banc). Here, the IJ found that Kone was a victim of such mutilation and th......
  • Perriello v. Napolitano, Docket No. 05-2868-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 1, 2009
    ...Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotation marks omitted); see also Bah v. Mukasey, 529 F.3d 99, 110-11 (2d In order to analyze Perriello's arguments and to appreciate the anomaly that complicates the analysis, it is necessary to describe th......
  • Alvarez v. Garland, 22-6021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 5, 2022
    ...8 U.S.C. § 1252(b)(4). We nevertheless "review de novo questions of law and the application of law to undisputed fact." Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); see also Prenga v. Sessions, 745 Fed.Appx. 392, 394 (2d Cir. 2018). C. Frivolous Claims Because Alvarez moves, among other......
  • Request a trial to view additional results
209 cases
  • Alvarez v. Garland, 22-6021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 5, 2022
    ...8 U.S.C. § 1252(b)(4). We nevertheless "review de novo questions of law and the application of law to undisputed fact." Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008) ; see also Prenga v. Sessions , 745 F. App'x 392, 394 (2d Cir. 2018).C. Claims Because Alvarez moves, among other things, ......
  • Kone v. Holder, Docket No. 08-1445-ag.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 25, 2010
    ...may have been persecuted through this experience on account of her membership in a particular social group. E.g., Bah v. Mukasey, 529 F.3d 99, 112-13 (2d Cir.2008); In re Kasinga, 21 I. & N. Dec. 357 (B.I.A.1996) (en banc). Here, the IJ found that Kone was a victim of such mutilation and th......
  • Perriello v. Napolitano, Docket No. 05-2868-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 1, 2009
    ...Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotation marks omitted); see also Bah v. Mukasey, 529 F.3d 99, 110-11 (2d In order to analyze Perriello's arguments and to appreciate the anomaly that complicates the analysis, it is necessary to describe th......
  • Alvarez v. Garland, 22-6021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 5, 2022
    ...8 U.S.C. § 1252(b)(4). We nevertheless "review de novo questions of law and the application of law to undisputed fact." Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); see also Prenga v. Sessions, 745 Fed.Appx. 392, 394 (2d Cir. 2018). C. Frivolous Claims Because Alvarez moves, among other......
  • Request a trial to view additional results

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