Diarra v. Holder

• Decision Date: 31 August 2010
• Docket Number: No. 09-2689.,09-2689.
• Citation: 620 F.3d 760
• Parties: Fatoumata KONE, Lasanna Diarra, and Kamissa Diarra, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

620 F.3d 760

Fatoumata KONE, Lasanna Diarra, and Kamissa Diarra, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09-2689.

United States Court of Appeals,Seventh Circuit.

Argued March 31, 2010.

Decided Aug. 31, 2010.

Isuf Kola, Attorney (argued), Kola & Associates, Ltd., Glen Ellyn, IL, for Petitioners.

Linda Y. Cheng, Attorney (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before MANION and WILLIAMS, Circuit Judges, and DARRAH, District Judge. ^*

WILLIAMS, Circuit Judge.

Lead petitioner Fatoumata Kone (“Kone”), her husband Lasanna Diarra (“Lasanna”), and their oldest daughter Kamissa Diarra (“Kamissa”) are natives and citizens of Mali. They entered the United States on August 18, 2001 and remained in the country after the expiration of their visas. Kone and Lasanna then had a second daughter, Mariam, who by virtue of her birth here is a United States citizen. In 2006, Kone, as lead petitioner for her family, filed for asylum, withholding of removal, and protection under the Convention Against Torture on the basis that if made to return to Mali, Mariam would be forced to undergo female genital mutilation (“FGM”), a common practice in Mali to which both her mother and sister have already been subjected. An immigration judge denied the application, finding the asylum petition untimely and denying other relief on the grounds that Kone could not make a “derivative” claim based on a threat of persecution to her daughter. The Board of Immigration Appeals (“BIA”) affirmed the denial of relief, and Kone petitioned this court for review. Because the BIA did not address Kone's claim that FGM of her daughter would constitute direct psychological persecution of her parents, we remand for further consideration.

I. BACKGROUND

Kone, Lasanna, and Kamissa are natives and citizens of Mali and members of the Bambara ethnic group. Kone and her family entered the United States on August 18, 2001 on nonimmigrant B2 visas and remained in the country after they expired, living first in New York and then Chicago. In November 2004, Kone and Lasanna had a second daughter, Mariam, born a United States citizen. On January 5, 2006, Kone, as lead petitioner, filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). ¹ Kone sought asylum based on her fear that if her family were made to return to Mali, Mariam would be forced to undergo FGM just as her sister and mother had. Kone acknowledged that her asylum application had been filed outside of the one-year deadline (at that point it had been over four years), but stated that she had only recently become aware of the fact that she could apply. ²

Kone, Lasanna, and Kamissa were deemed removable and issued Notices to Appear in Immigration Court. On July 10, 2007, a merits hearing was held before an Immigration Judge (“IJ”). At the hearing, Kone testified to the high likelihood that Mariam would be subjected to FGM if brought to Mali, where, she said, all female Bambara tribe members undergo the procedure. Kone's testimony regrettably is backed up by State Department statistics indicating that approximately 95% of all women in Mali have been subjected to FGM. See U.S. Department of State, 2009 Human Rights Report: Mali, http:// www. state. gov/ g/ drl/ rls/ hrrpt/ 2009/ af/ 135964. htm (last visited August 3, 2010). Kone testified that she herself underwent FGM at the age of five, and that it had been performed on her first daughter Kamissa when she was two years old, without Kone's knowledge. Kone explained that a relative snatched Kamissa away while Kone was not home and performed the procedure under primitive conditions without anesthesia. She claimed that while she and her husband oppose FGM, they would not be able to prevent it from being similarly performed on Mariam. Kone stated that even if she and her husband maintained constant vigilance over Mariam, it was likely that she would still be forcibly taken from them so that the procedure could be performed. Kone also testified about the emotional trauma she would feel if FGM were in fact performed on her daughter against her will.

The IJ found Kone's testimony to be credible and determined that it was more likely than not that Mariam would be forced to undergo FGM if she were to go to Mali. However, the IJ denied all requested relief in an oral decision at the close of the hearing. The IJ first denied Kone's asylum claim as untimely under Section 208(a)(2) of the Immigration and Nationality Act (“INA”), which provides for a one-year time limit for asylum applications except for when the alien demonstrates changed or extraordinary circumstances warranting the delay. 8 U.S.C. § 1158(a); see also 8 C.F.R. § 1208.4(a). The IJ found that while Mariam's birth was a changed circumstance that excused part of the delay in applying for asylum, the application was still untimely because Kone had waited another 14 months after the birth before filing. The IJ next denied Kone's claim for withholding of removal (for which there is no analogous time limit), ruling that Kone could not obtain withholding for herself based on potential hardship to her daughter. Relying on our decisions in Olowo v. Ashcroft, 368 F.3d 692 (7th Cir.2004), and Oforji v. Ashcroft, 354 F.3d 609 (7th Cir.2003), the IJ concluded that a petitioner cannot obtain “derivative” relief based on a fear that a non-petitioner child will undergo FGM. The IJ denied protection under the CAT for the same reasons he denied withholding of removal.

Kone appealed to the BIA and made two main arguments. She first argued that if Mariam were to be subjected to FGM in Mali, the anguish that her parents would suffer would constitute direct persecution of her parents under the CAT. Alternatively, Kone advanced a derivative asylum theory, arguing that while Olowo and Oforji foreclose derivative asylum based on the likelihood of FGM to a child in some situations, those cases are distinguishable because they did not involve a situation where both parents were in removal proceedings.

In the BIA's written ruling denying Kone's appeal, it concurred with the IJ's ruling that Kone's asylum application was untimely for having failed to file it within a reasonable time of the birth of Mariam. The BIA also agreed with the IJ's denial of withholding of removal and protection under the Convention Against Torture. The BIA cited Olowo and Oforji for the proposition that parents cannot establish derivative claims for relief based on potential hardship to their children, and rejected Kone's argument that her situation was distinguishable. The BIA was silent, however, as to Kone's argument that FGM of Mariam against her parents' will could constitute direct persecution of her parents. Kone petitioned this court for review of the BIA's denial of withholding of removal and protection under the CAT. ³

II. ANALYSIS

When, like here, the BIA issues its own written analysis instead of summarily adopting that of the IJ, we review the BIA's decision. Chen v. Holder, 604 F.3d 324, 330 (7th Cir.2010). We review the agency's legal conclusions de novo, Atunnise v. Mukasey, 523 F.3d 830, 835 (7th Cir.2008), and factual findings for substantial evidence. Huang v. Mukasey, 525 F.3d 559, 564 (7th Cir.2008). We will disturb factual findings only if the evidence compels a conclusion contrary to that of the BIA. Kedjouti v. Holder, 571 F.3d 718, 721 (7th Cir.2009).

While our review is deferential, remand is appropriate when the BIA “overlooks key aspects of an asylum-seeker's claim and might reach a different conclusion after a more complete evaluation of the record.” Chen, 604 F.3d at 330; see also Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (remand to agency is proper course when additional determination or explanation is necessary); I.N.S. v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) (same). Remand is proper for additional analysis if the BIA “has not adequately explained its result and it seems possible to us that the agency might be compelled to reach the opposite conclusion depending how it evaluates the record after remand.” Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir.2007).

We conclude that the BIA overlooked a key aspect of Kone's claim and that a more complete evaluation is necessary. See Chen, 604 F.3d at 330. The BIA effectively only addressed half of Kone's argument: it concluded that Kone could not assert a derivative claim based on potential hardship to her daughter, but failed to address her assertion that FGM of Mariam would also constitute direct persecution of her parents.

A. Kone's Derivative Claim

The BIA rejected Kone's claim for derivative relief based on a threat of FGM to her daughter, relying on our rulings in Oforji and Olowo. ⁴ In those cases, the petitioners, both Nigerian women who had undergone FGM, sought asylum and withholding of removal based on their fear their daughters would be subjected to FGM as well if brought to that country. In both cases, we rejected the petitioners' claims, holding that the parents could not make a derivative claim for asylum based on a likelihood of persecution not to themselves, but to their children. See Olowo, 368 F.3d at 701; Oforji, 354 F.3d at 618. In Oforji, we noted that in contrast to the cancellation-of-removal provision set forth in INA § 240A(b)(1), 8 U.S.C. § 1229a(b)(1), the statutory scheme for asylum does not permit consideration of hardship to a petitioner's children when determining eligibility. 354 F.3d at 616-17. We ruled that an alien parent “may not establish a derivative claim for asylum by pointing to potential hardship to the alien's United States citizen child in the event of the alien's deportation.” Id. at 618. And a year later in Olowo, we again concluded that both the asylum and withholding of...