Niang v. Gonzales

• Decision Date: 12 June 2007
• Docket Number: No. 06-1470.,06-1470.
• Citation: 492 F.3d 505
• Parties: Mame Fatou NIANG, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

492 F.3d 505

Mame Fatou NIANG, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 06-1470.

United States Court of Appeals, Fourth Circuit.

Argued: March 14, 2007.

Decided: June 12, 2007.

ARGUED: Peter Nyoh, Enow & Patcha, Silver Spring, Maryland, for Petitioner. Kristin Kay Edison, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Kell Enow, Enow & Patcha, Silver Spring, Maryland, for Petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, United

States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before NIEMEYER and WILLIAMS, Circuit Judges, and T.S. ELLIS, III, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge ELLIS wrote the majority opinion, in which Judge NIEMEYER joined. Judge WILLIAMS wrote an opinion concurring in part and dissenting in part.

OPINION

ELLIS, Senior District Judge:

This is an appeal from a final order of removal of the Board of Immigration Appeals ("BIA"), denying petitioner's application for withholding of removal because (i) she failed to establish a "clear probability" of persecution and (ii) she could not assert a claim based on a fear that her five-year old U.S. citizen daughter would be subjected to female genital mutilation ("FGM")¹ if petitioner were removed to Senegal and her daughter accompanied her. We affirm on the record presented.

I.

Petitioner, Mame Fatou Niang ("Niang"), is a native and citizen of Senegal. In August 2000, she was admitted to the United States as a non-immigrant visitor authorized to remain in the U.S. until November 8, 2000.

Soon after her arrival in the U.S., Niang became romantically involved with Papa Samba Ane ("Ane"), a Senegalese native who has nearly completed the process of adjusting his status in the U.S. On July 8, 2001, Niang gave birth to the couple's first child, a daughter named Fatime Ane ("Fatime"). Two years later, on February 11, 2003, Niang gave birth to the couple's second child, a son named Mohamed Ane ("Mohamed").

Several months after the birth of Mohamed, in August 2003, Niang filed an asylum application with the U.S. Department of Homeland Security ("DHS"), seeking relief from removal based on her religion and her membership in a particular social group. In an affidavit appended to her application, Niang stated that she is from northern Senegal and is a member of the Toucouleur ethnic group, a group that, as she put it, practices FGM at "an alarming[ly] high rate." J.A. 87.² Indeed, Niang stated she was subjected to FGM at a young age, causing her to suffer long-lasting health and psychological problems. Niang further stated that Fatime's paternal grandparents have been requesting, in "intimidating and threatening letters," that Niang take Fatime to Senegal to undergo FGM.³ Moreover, Niang stated Ane is "indifferent" to his parents' request and "[t]his indifference . . . means [Ane] tacitly accept[s] their request." J.A. 88-89. As a result of Ane's indifference and his parents' request, Niang stated she feared that if she were removed to Senegal, her daughter would be forced to undergo FGM there. J.A. 87.

On October 28, 2003, DHS charged Niang with removability, pursuant to 8 U.S.C. § 1227(a)(1)(B), for remaining in the U.S. beyond the time permitted by her non-immigrant visa. In response to this charge, Niang, represented by counsel, appeared before an Immigration Judge ("IJ") and admitted the charges against her, conceded removability, but sought relief from removal in the form of asylum, withholding of removal, protection under the Convention Against Torture ("CAT"), or, alternatively, voluntary departure.

At a December 7, 2004 hearing on her various requests for relief from removal, Niang testified that she is a citizen of Senegal and a member of both the Mandingo and Toucouleur tribes and that while in the U.S. she gave birth to Fatime and Mohamed, who, at the time of the hearing, were 3 years old and 22 months old, respectively. Initially, Niang testified that Ane lives with her, but later testified that Ane does not live with her, but that "he's around sometimes." J.A. 44, 54. She further testified that the Toucouleur tribe is "traditionalist" and continues to practice FGM and that although the Senegalese government has made FGM illegal, "people continue to practice excision in hiding" and she "saw many violations of that law." J.A. 42. She also testified that in 2002 she read a letter from Fatime's paternal grandfather asking that Fatime be sent to Senegal to undergo FGM and learned that Ane "agrees with his family." J.A. 45. Niang's asylum application was, in part, prompted by this letter.

In support of her application and testimony, Niang submitted (i) medical documents indicating that she had been subjected to FGM and that in December 2000, she suffered from fibroids; (ii) her Senegal passport and her children's birth certificates; (iii) the June 12, 2002 letter, purportedly from Ane's father; and (iv) a U.S. Department of State report concerning FGM in Senegal, released June 1, 2001. This report states, inter alia,

(a) that studies estimate between 5% and 20% of the female population has been subjected to FGM;

(b) that up to 88% of "females among the minority Halpularen (Peul and Toucouleur) in rural areas of eastern and southern Senegal practice FGM;" and

(c) that in January 1999, the Senegalese government made FGM illegal, but there have been no convictions as of the 2001 report.

J.A. 112-15.

The government also submitted documentary evidence, namely the 2003 Country Report on Human Rights Practices for Senegal, prepared by the U.S. Department of State and released on February 25, 2004. This report states, inter alia,

(a) that FGM is not practiced by the Wolof, the largest ethnic group, constituting 43% of the Senegalese population;

(b) that one of the most extreme forms of FGM is sometimes practiced by the Toucouleur, particularly in rural areas (c) that FGM is most prevalent in eastern Senegal;

(d) that FGM is a criminal offense, carrying a jail term of 6 months to 5 years for those practicing FGM or ordering that it be carried out. As of the 2003 report, trials in a 2002 and a 2001 case were still pending;

(e) that the government has established programs to educate women about the dangers of FGM and there are national and local government action plans against FGM; and

(f) that since 1997, 1,031 villages, including 13 in northern Senegal, have prohibited FGM, constituting over 20% of the villages that had previously practiced FGM.

J.A. 64-75.

Following this hearing, the IJ denied all of Niang's applications for relief and ordered her removed to Senegal. Specifically, the IJ found Niang's asylum application untimely, as it was filed more than three years after her arrival in the U.S. The IJ also found that circumstances did not warrant tolling. Despite this finding, the IJ went on to address the substance of Niang's asylum claim and found it meritless because Niang had not established that she would be persecuted on the basis of any protected ground if removed to Senegal, nor had she established any valid derivative claim given that her daughter, a U.S. citizen, was entitled to remain in the U.S.⁴ The IJ also denied Niang's claim for withholding of removal based on a fear of persecution for the same reasons, noting correctly that this result follows from the fact that the standard applicable to a withholding claim is more rigorous than the standard applicable to an asylum claim. See Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir.2004). The IJ further concluded that Niang's CAT claim failed and that she was ineligible for voluntary departure.

Niang appealed the IJ's decision to the BIA, which affirmed the IJ's factual findings and specifically concurred with the IJ's conclusions that Niang's asylum application was untimely and that Niang had failed to demonstrate either past persecution or a clear probability of future persecution.

Niang now appeals only two aspects of the BIA's decision, thereby presenting two questions for review: (i) whether Niang can assert a claim for withholding of removal based on the psychological harm she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM; and (ii) whether Niang can assert a "derivative" claim for withholding of removal based on the alleged persecution her daughter will face if she accompanies Niang to Senegal and is there subjected to FGM⁵

II.

At the outset, it is important to note that FGM — a barbaric practice unbecoming of a civilized society — is prohibited by law in this and many other countries, including Senegal.⁶ Accordingly, we and our sister circuits have appropriately recognized that FGM constitutes "persecution" within the meaning of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., and thus the threat of FGM may serve as a basis for asylum or withholding of removal claims. See Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir.2006). This settled principle is not at issue here. Instead, the essential question presented in this appeal is whether the record in this case compels reversal of the BIA's determination that Niang is not eligible for withholding of removal on the grounds she asserts.

The question is appropriately framed in this fashion because an alien asserting a claim for withholding of removal on persecution grounds must show "that it is more likely than not that her life or freedom would be threatened in the proposed country of removal because of her race, religion, nationality, membership in a particular social group, or political opinion." Haoua, 472 F.3d at 232.⁷ More precisely, an applicant for withholding bears the burden of demonstrating a "clear probability" that she will face persecution in the...