Seck v. U.S. Attorney Gen.

• Decision Date: 08 December 2011
• Docket Number: No. 09–16384.,09–16384.
• Citation: 23 Fla. L. Weekly Fed. C 615,663 F.3d 1356
• Parties: Ndeye Ndicke SECK, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 615
663 F.3d 1356

Ndeye Ndicke SECK, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

No. 09–16384.

United States Court of Appeals, Eleventh Circuit.

Dec. 8, 2011.

[663 F.3d 1359]

Dennis M. Clare, Sr., Louisville, KY, for Petitioner.

Jesse M. Bless, David V. Bernal, Stuart S. Nickum, Jennifer Paisner Williams, USDOJ, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.Before TJOFLAT, WILSON and SEYMOUR,^* Circuit Judges.SEYMOUR, Circuit Judge:

Ms. Ndeye Ndicke Seck, a native and citizen of Senegal, petitions for review of the Board of Immigration Appeals' (“BIA's”) final order, which affirmed an Immigration Judge's decision to deny her application for withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3). Ms. Seck claims that if she returns to Senegal, it is more likely than not that she will be beaten or killed for attempting to protect her U.S. citizen daughter, B.D., from being subjected to female genital mutilation.

We grant the petition for review because the BIA failed to give reasoned consideration to Ms. Seck's application when it found she could relocate within Senegal to avoid persecution. We vacate the BIA's decision with regard to Ms. Seck's application for withholding of removal and remand for proceedings consistent with this opinion.

I. A.

Female genital mutilation (“FGM”) is a general term used to describe several types of procedures involving the removal of some or all of the external genitalia, which is performed on girls and women primarily in Africa and Asia. Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.2004).

The Department of State has classified, based on World Health Organization typology, the prevalent forms of female genital mutilation. Type I, commonly referred to as “clitoridectomy,” is the removal of the clitoral hood with or without removal of all or part of the clitoris. Type II, commonly referred to as “excision,” is the removal of the clitoris together with part or all of the labia minora. Type III, commonly referred to as “infibulation,” is the removal

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of part or all of the external genitalia (clitoris, labia minora and labia majora) and stitching or narrowing of the vaginal opening, leaving a very small opening, about the size of a matchstick, to allow for the flow of urine and menstrual blood.

Id. at 638 n. 1. According to the State Department, Type II and Type III are both practiced by groups in Senegal. U.S. Dep't of State, Senegal: Report on Female Genital Mutilation (FGM) or Female Genital Cutting ( FGC) (June 1, 2001) (hereinafter “ Report on FGM ”), Rec. at 165.¹ These Senegalese groups believe that the Quran requires women to undergo FGM. “It is generally performed by women of the blacksmith's caste ... without the use of anesthesia.” Id.

The risks and effects of FGM are well documented. It exposes the victim to risks of “serious, potentially life-threatening complications,” including “bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to the urethra and anus.” In re Kasinga, 21 I. & N. Dec. 357, 361 (BIA 1996). In addition to permanently disfiguring the victim's genitalia, it “can result in permanent loss of genital sensation and can adversely affect sexual and erotic functions.” Id.

In September 2000, Ms. Seck was admitted to the United States as a tourist. During her stay, she gave birth to her daughter, B.D. Two months later Ms. Seck returned to Senegal with B.D. Although Ms. Seck is a member of the Lebou ethnic group, B.D. is a member of her father's ethnic or tribal group, the Toucouleur.² The Lebous do not practice any form of FGM, but the Toucouleur perform FGM on their girls, typically beginning at around age three.

In 2002, Ms. Seck lived in Dakar, Senegal's capital and largest city, where she worked for an airline. She returned home from work one day and discovered that B.D.'s paternal aunt had taken B.D. without Ms. Seck's permission. She immediately drove to the aunt's house, which was approximately thirty or forty minutes away. The aunt and her family tried to convince Ms. Seck to let them keep B.D. for the weekend, but Ms. Seck refused. She feared that if she allowed B.D. to stay, they would subject her to FGM. B.D. was approaching the age at which girls in the tribe are subjected to FGM, and all of her female cousins had already undergone FGM. In addition, B.D.'s father's family had begun to talk about and plan for performing FGM on her. Ms. Seck realized that B.D.'s father's family or his tribe could take B.D. “at any time,” and that Ms. Seck “would be essentially powerless to stop them” from performing FGM on her daughter. Rec. at 251.

A few months later, in July 2002, Ms. Seck and her daughter left Senegal and entered the United States. She subsequently had two sons in the United States by B.D.'s father.

In January 2007, the Department of Homeland Security (formerly the Immigration

[663 F.3d 1361]

and Naturalization Service) served Ms. Seck with a Notice to Appear, charging her as removable pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). After securing counsel, she appeared before an Immigration Judge (“IJ”), admitted to the factual allegations contained in the Notice to Appear, and conceded removability.

In September 2007, Ms. Seck filed an application seeking asylum and withholding of removal under the INA and relief under the Convention Against Torture (“CAT”). She asserted that if the government removes her to Senegal, she will be forced to take B.D. with her. She explained that if they return to Senegal, she believes B.D. will be subjected to female genital mutilation and Ms. Seck will be beaten or killed when she tries to prevent the procedure.

During the asylum hearing before the IJ, Ms. Seck testified about the circumstances that led her to leave Senegal with B.D. In addition to the incident with B.D.'s paternal aunt, Ms. Seck explained that her sister, Awa, has a Toucouleur daughter. Although Awa is opposed to FGM, her daughter was subjected to the procedure at age five without Awa's knowledge. Awa's ex-husband took their daughter to a birthday party and left her there for the weekend. When the little girl returned, Awa discovered FGM had been performed on her.

Ms. Seck produced a written declaration from Awa and a medical certificate corroborating that Awa's daughter was subjected to FGM. Awa's declaration indicated that she lives in the Dakar region. Awa declared that she lives near B.D.'s father's family and knows them very well. According to Awa, the family of B.D.'s father will do anything to perform FGM on her. Awa explained that if Ms. Seck and B.D. return to Senegal, “they will be in perpetual danger,” and B.D. “surely” will be subjected to FGM. Rec. at 199. In her judgment, Ms. Seck will be unable to protect B.D. and will be “threaten[ed], beaten, insulted, or killed” for trying to do so. Id.

Ms. Seck testified that if she is required to return to Senegal, she will take her children with her because she does not know anyone in the United States who would care for them. She does not have any family members in this country, and she does not know where her children's father is, although she believes he is still in the United States. Moreover, she believes her children's father would allow his family to perform FGM on B.D., either by sending B.D. to Senegal or by permitting his family members to come to the United States to perform the procedure. Ms. Seck's attorney indicated that if the father is still in the United States, he is presumably here illegally.

Ms. Seck testified that she would not be safe anywhere in Senegal. This is so because B.D. is recognizable as Toucouleur due to her name and skin color, and the Toucouleur are everywhere. In addition, B.D.'s father's family continues to be in touch with Awa, and have said “they're waiting for [B.D.], that she's going to come back, they're going to do it [FGM] to her.” Id. at 133. When asked what would happen if she tried to protect B.D. and prevent FGM, she explained:

They might, they might persecute me. They might beat me or kill me. Because they consider that myself, I'm not a human being, because I was not circumcised; I'm impure. So, they don't want [B.D.] to be like me. They will do their best to get to her, because she is—they consider that she is part of them. She is supposed to be pure like her father's cousins.

Id. at 132. Although Ms. Seck personally does not know anyone who has been

[663 F.3d 1362]

harmed by trying to prevent FGM, she knows of an activist who was murdered after attempting to stop the practice in Senegal.

Ms. Seck also provided letters from friends explaining that all of the women on B.D.'s father's side of the family have undergone FGM, that FGM is inevitable for B.D., and that Ms. Seck will be risking her life if she returns to Senegal. A Senegalese friend of Ms. Seck's wrote, “Many women have been beaten, almost to death, for talking publicly [about FGM].” Id. at 220–21.

After the government cross-examined Ms. Seck, the IJ admitted on his own motion the Report on FGM referenced above, the U.S. Department of State, Senegal, 2007 Country Reports on Human Rights Practices (Mar. 11, 2008) (hereinafter “ Country Report ”), and the U.S. Department of State's Bureau of Democracy, Human Rights, and Labor, Senegal—Profile of Asylum Claims & Country Conditions (June 1998) (hereinafter “ Senegal Profile”). According to these reports, approximately twenty percent of the female population of Senegal has undergone FGM. Forty percent of previously-practicing communities in Senegal have stopped performing FGM. The Toucouleur, however, continue to perform FGM on girls and “one of the most extreme and dangerous forms of FGM[ ] was sometimes practiced by the Toucouleur ... particularly in rural and some urban areas.” Country Report, Rec. at 188. Among rural Toucouleur, up to 88% of women...