Kane v. Holder

• Decision Date: 26 August 2009
• Docket Number: No. 07-60757.,07-60757.
• Citation: 581 F.3d 231
• Parties: Abou KANE, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

581 F.3d 231

Abou KANE, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 07-60757.

United States Court of Appeals, Fifth Circuit.

August 26, 2009.

Alicia J. Triche, Herbert Todd Nesom, Nesom Law Office, Oakdale, LA, for Kane.

David J. Schor, Thomas Ward Hussey, Dir., Aviva Lea Poczter, Emily Anne Radford, Asst. Dir., U.S. Dept. of Justice, OIL, Washington, DC, Trey Lund, U.S. Imm. & Customs Enforcement, Field Office Dir., Attn: Carl Perry, New Orleans, LA, for Holder.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.

WIENER, Circuit Judge:

Petitioner Abou Kane, a native of Senegal unlawfully present in the United States, seeks review of an order of the Board of Immigration Appeals ("the BIA") reversing a decision of the immigration judge ("the IJ") that had granted Kane's application for withholding of removal. The BIA rejected Kane's derivative claims grounded in allegations that his minor U.S. citizen-daughters would be subjected to female genital mutilation ("FGM") when they accompany him and his wife to Senegal. Agreeing with the BIA that, under the current state of the law, Kane's derivative claim for withholding of removal is not cognizable and that we lack jurisdiction to consider his asylum claim, we deny review.

I. FACTS AND PROCEEDINGS

Kane first entered the United States in 1989, staying for approximately 10 months before leaving for Gabon, where he operated a clothing business. In 1996, Kane illegally re-entered the United States, followed shortly thereafter by his wife, whom he had married two years earlier. They now have five children, including two daughters who are under ten years old and hold birthright citizenship of the United States.

In 2006, the Department of Homeland Security ("DHS") commenced proceedings against Kane by issuing a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Following a hearing on that charge, the IJ found that Kane's removability had been established by clear and convincing evidence. After Kane declined to specify a country for removal, the IJ designated Kane's native Senegal as the removal country.

Kane then filed an application for cancellation of removal, withholding of removal, and protection under the Convention Against Torture ("CAT"). He claimed to be seeking to remain in the United States because his minor daughters would be subjected to FGM if he were removed to Senegal.

During a subsequent hearing before the IJ, Kane testified that he, his wife, and his daughters are all members of the Fulani tribe, which practices FGM. Kane stated that, because he would be unable to earn enough money in Senegal to support his family in the United States, his wife and daughters would have to accompany him if he were removed. According to Kane, he would be helpless to prevent members of his tribe from subjecting his minor daughters to FGM once they were in Senegal. As evidence of the risk to his daughters, Kane testified that his relatives recently requested that he bring the girls to Senegal for the express purpose of FGM. When questioned whether he feared for his own safety, Kane replied that his family members and fellow tribesmen would likely humiliate him for opposing FGM, but that he did not believe that he would be beaten or physically tortured for his opposition, insisting that his primary concern was for his young daughters' health and well-being.

Kane's wife also testified at the hearing, explaining that, like her mother and sisters, she had been subjected to FGM as a young girl and had suffered serious negative health effects, including FGM-related complications in giving birth. Mrs. Kane testified that the Fulani tribal edict of FGM is so deeply ingrained that, if she and her daughters followed her husband to Senegal, it would only be a matter of time before someone—likely one of her or her husband's relatives—would perform FGM on her daughters, regardless where in Senegal the Kane family might choose to live or how vocal their opposition might be.

The IJ granted Kane's application for withholding of removal but dismissed his CAT claim as moot and did not address asylum. Finding that both Kane and his wife were credible witnesses, the IJ concluded that, if Kane were removed to Senegal, members of the Fulani tribe would likely take any steps necessary to ensure that his young daughters were subjected to FGM. The IJ reasoned further that Kane himself would likely suffer persecution for his opposition to FGM if he attempted to prevent tribal elders from subjecting his daughters to the process. Citing humanitarian grounds as an additional basis for granting Kane's request, the IJ explained that "it is, quite frankly, difficult for this Court to expose two young U.S. citizens to this practice, simply because their parents were not of status in this country."

The DHS appealed the IJ's decision to the BIA, framing the issue on appeal as whether an alien father may succeed on a derivative withholding claim based on a fear that his minor daughters—both U.S. citizens—would be subjected to FGM if the father were removed to his native country. The DHS advocated reversal of the IJ's decision on the grounds that (1) the Immigration and Nationality Act ("INA") does not authorize derivative claims for withholding of removal, and (2) the practice of FGM was in decline, as evidenced by the Senegalese government's criminalizing FGM and providing for terms of up to five years imprisonment for anyone who either directly commits the offense or orders it committed against a third person.

In Kane's brief on appeal to the BIA, he insisted that, although the IJ had correctly granted withholding of removal, he had failed to consider whether Kane is also eligible for asylum in addition to his eligibility for withholding of removal. Kane contended that, if removed to Senegal, he would be subject to persecution (1) as a member of a social group of "parents of minor daughters of the Fulani Tribe who have not had FGM, and who oppose the practice," (2) as a result of his political and religious opposition to FGM, and (3) by having to endure his daughters' FGM. Kane urged that if it deemed the IJ's withholding of removal to be in error, the BIA should not order him removed but should remand the case to the IJ for a determination regarding Kane's claims for asylum and relief under CAT.

The BIA reversed the IJ's order and directed that Kane be removed from the United States.¹ In holding that Kane could not establish eligibility for withholding of removal based solely on the fear that his daughters would be forced to undergo FGM in Senegal, the BIA determined, inter alia, that (1) the INA does not authorize derivative claims for withholding of removal, (2) Kane had not established that he himself would be persecuted or tortured as a result of his opposition to the practice of FGM, (3) Kane's daughters, as United States citizens, could remain safely in the United States in the custody of their mother or a guardian ad litem after Kane's removal, and (4) if Kane's daughters did accompany him to Senegal, the family could likely prevent the girls from being subjected to FGM by settling in an area of relative safety. The BIA also declined to remand to the IJ for further consideration, ruling instead that (1) Kane's CAT claim failed because he did not allege that he had been tortured in the past or had a reasonable fear of torture in the future, and (2) Kane had waived any right to seek asylum by failing timely to raise the issue before the IJ.

In addition to petitioning this court for review of the BIA's removal decision, Kane asked the BIA to reconsider its rejection of his asylum application as untimely, contending that he had failed to raise the issue of asylum during the proceedings before the IJ because he had mistakenly believed that he was ineligible to do so. Kane insists that the IJ was obligated to inform him that he might be eligible for asylum, and that the failure to do so entitles Kane to apply for asylum now. The BIA denied reconsideration of Kane's asylum claim, and he did not seek review of that denial in his petition to us.

II. ANALYSIS

A. Standard of Review

When the BIA conducts a de novo review of the record evidence and does not adopt any part of the IJ's decision, our review is limited to the BIA's decision.² For review of orders of removal under the INA, "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude the contrary."³ We review factual findings to determine if they are supported by substantial evidence in the record.⁴ "The substantial evidence standard requires only that the [BIA's] conclusion be based upon the evidence presented and be substantially reasonable."⁵ We will reverse the BIA only when the evidence is "so compelling that no reasonable fact finder could fail to find" in favor of the petitioner.⁶ "We may not reverse merely because we would have decided the case differently."⁷

B. Asylum

Before reaching the merits of Kane's petition for review, we must first address any jurisdictional problems that it raises. In his brief to us, Kane claims—as he did to the BIA in his motion for reconsideration —that the IJ had a duty under 8 C.F.R. § 1240.11(c) to inform him that he was apparently eligible to apply for asylum. According to Kane, the IJ's failure to inform him of his apparent eligibility entitles him to apply for asylum now. In response, the DHS contends that we lack jurisdiction to resolve this issue because Kane did not raise it before the BIA in his direct appeal, and that only matters addressed in that direct appeal are properly before us for review at this time.

We have jurisdiction to review a final order of removal.⁸ Judicial review of such an order is only available, however, if the applicant has exhausted all...