Niang v. Gonzales, No. 04-9547.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtHartz
Citation422 F.3d 1187
PartiesAwa NIANG, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
Decision Date08 September 2005
Docket NumberNo. 04-9547.
422 F.3d 1187
Awa NIANG, Petitioner,
v.
Alberto R. GONZALES, United States Attorney General, Respondent.
No. 04-9547.
United States Court of Appeals, Tenth Circuit.
September 8, 2005.

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Michael A. Walker of Walker Associates, LLP, Denver, CO, for Petitioner.

Luis E. Perez, Trial Attorney (Linda S. Wendland, Assistant Director, with him on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before TACHA, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HARTZ, Circuit Judge.

HARTZ, Circuit Judge.


Petitioner Awa Niang is a victim of female genital mutilation (FGM). She faces

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removal from this country because she overstayed her nonimmigrant visa, was working in the United States without permission of the Immigration and Naturalization Service (INS),1 and had falsely represented herself as a citizen to obtain employment. To avoid being returned to her native Senegal, she sought asylum and restriction on removal on the ground that she had suffered past persecution—FGM—in Senegal. She also sought relief under the Convention Against Torture (CAT),2 on the ground that she was likely to be tortured if returned to Senegal.

The immigration judge (IJ) who conducted her hearing found that she had not been subjected to past persecution because he disbelieved her account of how the FGM occurred. The Board of Immigration Appeals (BIA) affirmed on the same ground. Ms. Niang's claims for asylum and restriction on removal, however, do not rest solely on her narrative of the specific circumstances of the mutilation. She has consistently, although with less-than-optimal clarity, contended that she suffered FGM on account of her being a female member of the Tukulor Fulani tribe. Neither the IJ nor the BIA addressed this contention, much less explained why it was rejected. We therefore reverse the denial of asylum and restriction on removal, and we remand for further proceedings. We affirm the denial of relief under the CAT.

I. BACKGROUND

A. Ms. Niang's Account

The following summarizes the documents and testimony supporting Ms. Niang's claims for relief. She was born into the Tukulor Fulani tribe in Senegal in 1970. Her family is Muslim and believes in rigid adherence to certain gender roles and expectations. There was a strict separation between the men and women in her household, which included her parents, eight siblings, some cousins, and their spouses. Her family believed that women should not look at men, that family members should not display affection toward one another, and that women should obey their husbands.

According to tribal custom, when Ms. Niang was born she was promised in marriage to her cousin Daud, a man her father's age who had three other wives. Because she was considered married to Daud, she was not allowed to date other men. Although most Tukulor Fulani girls were subjected to FGM and consummated their marriages when they were 10 to 12 years old, Ms. Niang refused to do so and her family acquiesced in her wishes, believing she would eventually change her mind. Unlike most Tukulor Fulani women, Ms. Niang was permitted to attend school at age 12.

When Ms. Niang was nearly 25, her family had a meeting in which they decided that she must consummate her marriage

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with Daud that evening. She again refused, and her family threw themselves on her, stripping her of her clothes, beating her, and burning her with a hot iron. Some then performed FGM on her "[s]o that [she] wouldn't be able to commit adultery and so that no one would want to have anything to do with [her]. And then she would be ashamed to show [her] body in front of another man." Testimony of Ms. Niang, R. at 188. She left her house the next morning. For the next four years she stayed at her friend Maria's house in another town while attending the university to obtain her Senegalese law license. She had no contact with her family during this time.

Ms. Niang came to the United States in 1999 and stayed with friends in Denver. Although she "wanted to live in a country where [she] could feel free," and she still feared her family, id. at 194, she did not immediately seek asylum but entered as a nonimmigrant visitor, authorized to stay only until June 24, 2000. She met Elhadji Fall and married him on April 17, 2000. Because of her FGM, however, they could not have normal sexual relations and they separated. During her marriage Ms. Niang's Senegalese friend Maria wrote her a letter informing her that her family considered her an adulteress because of her marriage to Fall and would kill her if she returned. According to Ms. Niang, if she was returned to Senegal, her family was "ready" and "waiting for [her]," and it would be "the end of [her] days." R. At 204-05.

B. Removal Proceedings

The INS apprehended Ms. Niang while she was working as a security screener at the Denver International Airport. It initiated removal proceedings against her for (1) staying in the country longer than permitted, Immigration and Nationality Act (INA) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B); (2) failing to comply with the conditions of her nonimmigrant status by working, INA § 237(a)(1)(C), 8 U.S.C. § 1227(a)(1)(C); and (3) falsely representing herself as a citizen of the United States to gain employment, INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D). She contested the factual basis of the removal charges, but the IJ found her removable on all three grounds. She then requested either (1) asylum under INA § 208, 8 U.S.C. § 1158; (2) restriction on removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); (3) relief from removal under the CAT, or (4) voluntary departure under INA § 240B, 8 U.S.C. § 229c.

At the asylum hearing Dr. Judith Wilson testified that Ms. Niang had been a victim of FGM, that her "normal anatomy . . . had been obliterated essentially to the extent that her ability to engage in normal sexual intercourse was virtually impossible," that she would probably not be able to conceive children naturally, and that she would not be able to deliver children vaginally. R. at 239-240. Judging from the scar tissue, Dr. Wilson estimated that the mutilation must have occurred at least three or four years before Ms. Niang's 1999 examination, and it could have been performed as early as her late teens. In a letter from Dr. Wilson to Ms. Niang's attorney that was admitted into the record, Dr. Wilson wrote that Ms. Niang told her that the beating and genital mutilation occurred in her late teens.

Ms. Niang also showed several burn scars to the IJ, and Dr. Wilson testified that the scars were consistent with her proffered account of her beating by her family. Finally, Dr. Wilson testified that the FGM did not look like a "medical[ly] oriented procedure" and agreed with the description that "the lady was butchered." Id. at 247.

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The IJ found that "[t]he evidence considered as a whole clearly shows that the respondent has suffered FGM in the past," id. at 60, that according to the background material the FGM was most likely "excision," id. at 59; and that "in Senegal 80 percent of the women will undergo that form of FGM," id. (The IJ apparently confused the statistics for FGM victims in Senegal and Sierre Leone. According to the 1997 United States Department of State Report entitled "Female Genital Mutilation" (which appears in the record), Sierre Leone had an 80-90% victimization rate at that time, while Senegal's was only 20%.) Ms. Niang's membership in the Tukulor Fulani tribe is not disputed. But the IJ did not find Ms. Niang credible for several reasons: (1) she lied to gain employment; (2) on her asylum application she listed her parents' address as her address from 1978 to 1999, but she testified that she had fled her parents' home in 1995 after the alleged attack occurred; (3) she could name only two of the five pillars of Islam, despite her characterization of her family as Islamic extremists; (4) he did not understand why she did not undergo the mutilation before age 13, as her sisters had; and (5) Dr. Wilson's letter was inconsistent with Ms. Niang's testimony that the attack occurred when she was 25. Because the IJ found Ms. Niang's account of how the genital mutilation occurred not credible, he denied her petitions for asylum, restriction on removal, and relief under the CAT.

Ms. Niang appealed to the BIA. The BIA affirmed the IJ's decision and dismissed the appeal through an order written by a single board member. See 8 C.F.R. § 1003.1(e)(5)(2003) (under new streamlining procedures one member of board can address decision on the merits unless criteria require review by three-member panel). The BIA summarized the IJ's reasons for finding Ms. Niang's testimony not credible, and concluded that she had not demonstrated that the adverse credibility ruling was clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i) (IJ's credibility findings reviewed under clearly-erroneous standard). In reference to the undisputed genital mutilation, the BIA stated:

We also acknowledge that the respondent has undergone FGM, has other scarring, and that the practice of FGM can provide the basis for an asylum claim. Yet, we have not held that all instances of FGM will constitute past persecution and we decline to find that this respondent's FGM constituted persecution due to her incredible testimony regarding the circumstances surrounding the FGM.

R. at 2 (internal citations omitted). Ms. Niang appeals this decision, contending that (1) the BIA erred in affirming the IJ's adverse credibility finding and (2) her undisputed genital mutilation constitutes past persecution on account of membership in a social group regardless of how it occurred. We exercise jurisdiction under 8 U.S.C. § 1252(a), see Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003). We affirm under...

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  • In re A-B, Interim Decision #3929
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    • U.S. DOJ Board of Immigration Appeals
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    ...2012); Lizama v. Holder, 629 F.3d 440, 446 (4th Cir. 2011); Ngengwe v. Mukasey, 543 F.3d 1029, 1033 (8th Cir. 2008); Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72 (2d Cir. 2007); Fatin, 12 F.3d at 1238-39 (3d Cir. 1993). 7. Other appellate ......
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    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
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    ...decisions by the BIA. See Aple's Br. at 8 (citing Ochieng v. Mukasey, 520 F.3d 1110, 1114 (10th Cir.2008) and Niang v. Gonzales, 422 F.3d 1187, 1196-97 (10th Cir.2005)). However, those single member decisions themselves involved applications of BIA precedent. See Ochieng, 520 F.3d at 1114-1......
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    • U.S. Court of Appeals — Second Circuit
    • June 11, 2008
    ...Cir.2005); Toure v. Ashcroft, 400 F.3d 44, 49 n. 4 (1st Cir.2005); Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.2004); Niang v. Gonzales, 422 F.3d 1187, 1197 (10th In the cases before us, as in A-T-, the BIA found that each of the petitioners had undergone genital mutilation, but "assum[ed]......
  • Valdiviezo-Galdamez v. Attorney Gen. of the United States, No. 08–4564.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 8, 2011
    ...104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). 10. Several other courts of appeals have adopted the Acosta construction. See Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir.2005); Castellano–Chacon v. INS, 341 F.3d 533, 546–48 (6th Cir.2003); Yadegar–Sargis v. INS, 297 F.3d 596, 603 (7th Cir.2002)......
  • Request a trial to view additional results
88 cases
  • In re A-B, Interim Decision #3929
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • June 11, 2018
    ...2012); Lizama v. Holder, 629 F.3d 440, 446 (4th Cir. 2011); Ngengwe v. Mukasey, 543 F.3d 1029, 1033 (8th Cir. 2008); Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72 (2d Cir. 2007); Fatin, 12 F.3d at 1238-39 (3d Cir. 1993). 7. Other appellate ......
  • Carpio v. Holder, No. 08-9536.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 12, 2010
    ...decisions by the BIA. See Aple's Br. at 8 (citing Ochieng v. Mukasey, 520 F.3d 1110, 1114 (10th Cir.2008) and Niang v. Gonzales, 422 F.3d 1187, 1196-97 (10th Cir.2005)). However, those single member decisions themselves involved applications of BIA precedent. See Ochieng, 520 F.3d at 1114-1......
  • Bah v. Mukasey, Docket No. 07-1715-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 11, 2008
    ...Cir.2005); Toure v. Ashcroft, 400 F.3d 44, 49 n. 4 (1st Cir.2005); Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.2004); Niang v. Gonzales, 422 F.3d 1187, 1197 (10th In the cases before us, as in A-T-, the BIA found that each of the petitioners had undergone genital mutilation, but "assum[ed]......
  • Valdiviezo-Galdamez v. Attorney Gen. of the United States, No. 08–4564.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 8, 2011
    ...104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). 10. Several other courts of appeals have adopted the Acosta construction. See Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir.2005); Castellano–Chacon v. INS, 341 F.3d 533, 546–48 (6th Cir.2003); Yadegar–Sargis v. INS, 297 F.3d 596, 603 (7th Cir.2002)......
  • Request a trial to view additional results

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