Dieng v. Mukasey , 284 F. App'x 2 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1622
AMINATA DIENG,
Petitioner,
v.
MICHAEL B. MUKASEY, United States Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 26, 2008 Decided: July 7, 2008
Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and David C.
NORTON, Chief United States District Judge for the District of
South Carolina, sitting by designation.
Petition denied by unpublished per curiam opinion.
ARGUED: Kell Enow, ENOW & PATCHA, Silver Spring, Maryland, for
Petitioner. Andrew B. Insenga, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney
General, Civil Division, M. Jocelyn Lopez Wright, Assistant
Director, Lindsay L. Chichester, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aminata Dieng, a native and citizen of Senegal, petitions for
review of a final order of the Board of Immigration Appeals (“BIA”)
affirming the immigration judge’s (“IJ”) denial of her applications
for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”), as well as the denial of her
minor son’s derivative claims. For the reasons set forth below, we
deny the petition for review.
I.
Dieng and her minor son are natives and citizens of Senegal.
Dieng entered the United States on February 17, 2003, using a
Senegalese passport belonging to another person and an American
visa issued in someone else’s name. Her son entered the United
States shortly thereafter. The Immigration and Naturalization
Service initiated removal proceedings against Dieng and her son on
January 20, 2004, on grounds they had entered the United States
without a valid visa or other entry document. Dieng concedes she
and her son entered the United States without a valid visa or other
entry document as alleged in the notices of removal. Removal
proceedings were held before the IJ, who denied her applications.
The BIA affirmed the IJ’s decision by summary order.
As an initial matter, it is undisputed on appeal that Dieng
was subjected to female genital mutilation (“FGM”) in Senegal. At
2
the removal proceeding, Dieng testified that her parents ordered
FGM to be performed on her when she was five years old. She also
explained that FGM was and continues to be a common practice in
Senegal, and that it is prevalent among members of the Toucouleur
tribe, of which she is a member. The IJ, apparently crediting that
testimony and other documentary evidence, found that Dieng suffered
FGM as a child and therefore demonstrated past persecution. The
government does not challenge that finding.
Dieng grounded her asylum claim on two separate arguments.
First, Dieng asserted that she held a well-founded fear of future
persecution because, if removed to Senegal, she would object to FGM
being performed on her alleged daughter, who is still in Senegal.
That objection, she argued, would result in physical abuse by her
purported husband, who also still resides in Senegal. Second, Dieng
claimed that she personally endured past persecution in the form of
FGM, which automatically gives rise to a presumption that she holds
a well-founded fear of future persecution. In requesting
withholding of removal, Dieng claimed the severity of her past
persecution (i.e., FGM and domestic abuse) warranted a
discretionary grant of asylum. Finally, as to her application for
protection under the CAT, Dieng apparently claimed that she would
likely be “tortured” because her husband would abuse her and local
police authorities would, based on their past unwillingness to
intervene, acquiesce in that abuse.
3
A.
In her application and in testimony before the IJ, Dieng
summarized her life in Senegal and the circumstances that brought
her to the United States. She generally explained that women in her
tribe were expected to be subordinate to the men and that all girls
were circumcised at a young age. She recalled that her parents had
FGM performed on her when she was five years old.
Dieng testified that, in 1995, her parents arranged for her to
marry Malick Talla, who already had at least two other wives.1
Dieng objected to the marriage, which resulted in her parents
beating her severely. She eventually acquiesced to the marriage,
and allegedly had two children with Talla—her son, who was born in
1997, and a daughter, who was born in 2000 and still lives in
Senegal.2 Dieng testified that Talla was physically abusive,
beating her whenever she refused to have sexual intercourse with
him.
1
There are inconsistencies in the record as to the number of
other wives Talla had. Dieng testified before the IJ that he had
two other wives (making her the third wife). (J.A. 60, 78-79.)
However, she earlier told the asylum officer that Talla already had
three wives when she married him, thus making her the fourth wife.
(S.J.A 19.)
2
Petitioner’s counsel raised at oral argument, apparently for
the first time in the course of these proceedings, the prospect
that Dieng has a second daughter, who was born in the United States
in 2006. After oral argument, petitioner moved to supplement the
record with the second daughter’s Virginia-issued birth
certificate. We denied the motion and, accordingly, do not rely on
the existence (or non-existence) of a native-born daughter to reach
our conclusions.
4
According to Dieng, Talla decided in May 2002 that FGM would
be performed on her daughter. Talla beat Dieng with a whip or belt
when she objected, and the physical abuse continued for as long as
she continued to object to the procedure. Dieng testified that,
although she sought assistance from local police on two occasions,
they were unwilling to help. After several months, Dieng fled with
her children to her friend Fama Sall’s home, and then later to the
home of Sall’s father. Dieng left for the United States on February
17, 2003, leaving her two children with Sall’s father in Senegal.
Shortly thereafter, her son came to the United States. According to
Dieng, Sall’s father is still sheltering her daughter.
Among the various documents Dieng submitted with her
application were a copy of her daughter’s birth certificate that
lists Malick Talla as the father and a copy of her son’s birth
certificate that lists “Le GrandBourre Louis” as the father. The
inconsistency concerning the identity of Mouhamed’s father would be
an important part of the IJ’s decision. Dieng also submitted the
statements of a Toucouleur “Excision Specialist” and others who
explained that all young Toucouleur girls undergo circumcision and
are forced to marry at a young age regardless of whether they
consent. A cousin and Sall provided statements corroborating the
circumstances of Dieng’s forced marriage to Talla.
During cross-examination before the IJ, Dieng explained how
she entered the United States by using a Senegalese passport issued
5
to Sall Aibibatou Talla, one of her husband’s other wives. Dieng
testified that she obtained the passport from her husband’s
unlocked briefcase while looking for jewelry that Talla took from
her. Dieng discarded the passport after her son arrived in the
United States.
Counsel for the government questioned Dieng about the history
of her visits to the United States. Dieng testified that she first
visited the United States with her son in September 1999 but
subsequently returned to Senegal. Dieng said she did not seek
asylum at that time because she had no money and because her
husband’s cousin was monitoring her actions. Although Dieng
testified that her son’s only entries into the United States
occurred in 1999 and in 2003, the government offered evidence that
her son had entered the country on at least three other occasions.
Dieng responded that her son may have traveled with her husband
without her knowledge.
Other inconsistencies appeared in Dieng’s testimony regarding
her husband’s name and identity. Despite Dieng’s testimony that
Talla was the father of both of her children, her son’s birth
certificate identified “Le Grandbourre Louis” as the father and
listed her son’s last name as “Rebeiz.” When the government
confronted Dieng with those inconsistencies, she testified that
Talla was also called Le GrandBourre Louis Rebeiz and that she only
neglected to mention that information earlier because she had not
6
been asked. She also testified that her son sometimes went by the
name “Le GrandBourre Rebeiz.” The government produced evidence in
the form of an internet search that showed “Legrande Rebeiz”
residing at Dieng’s house in Virginia with the same phone number
that Dieng put on her application for asylum.
The government sought further explanation of her daughter’s
current location and why Dieng left her in Senegal. Dieng explained
that she could not bring her daughter to the United States because
she lacked the required documentation to obtain a visa and that
trying to obtain the necessary paperwork would generate
“suspicions” in Senegal. Dieng provided a copy of her daughter’s
birth certificate, but the translation from French was incomplete
and the document had been issued in November 2004—even though her
daughter was supposedly born in 2000. When asked about these
inconsistent dates, Dieng responded that she had received the copy
from a friend in Senegal only a few months before; however, Dieng
added that she had her daughter’s original birth certificate with
her in the United States—she just happened to leave it at home on
the day of the hearing.
Dieng’s cousin, Ibrahim Ndiaye, testified on her behalf at the
removal proceeding. Ndiaye corroborated Dieng’s statements that
Talla abused her because of her opposition to subjecting her
daughter to FGM. Further, Ndiaye testified that Dieng said she went
to the police twice for help but that they refused to provide
7
assistance. However, on cross-examination, Ndiaye did not know that
Dieng had two sisters, could not recall their names, and did not
know the name of Dieng’s mother. He also admitted that much of his
knowledge of Dieng’s circumstances was based solely on facts
relayed to him by Dieng.
B.
The IJ issued an oral order denying Dieng’s application. The
IJ concluded that FGM constitutes “persecution” under the
applicable law and, as discussed above, found that Dieng suffered
FGM as a child. The IJ apparently credited State Department
reports, which Dieng offered into evidence, stating domestic
violence is common in Senegal, that women in Senegal are often
discriminated against, and-while FGM is not practiced by the
largest tribe in Senegal—“FGM is performed on girls of most other
ethnic groups.” (J.A. 28-29.)
Other than Dieng’s testimony that she suffered FGM, the IJ
concluded the remainder of her testimony was not credible. He found
that “there are simply too many problems with the respondent’s
testimony . . . to find her credible.” (J.A. 30.) He specifically
referred to the inconsistencies surrounding the number of other
wives Talla had, her husband’s name, the name of her son’s father,
the name by which she calls her son, and her son’s multiple prior
visits to the United States. He also referred to the government’s
evidence that a “Legrand Rebeiz” resides at Dieng’s home in
8
Virginia. The IJ found all of her explanations refuting the
discrepancies to be unconvincing, illogical, and unsupported by
corroborating evidence.
The IJ also questioned the credibility of Dieng’s testimony
concerning Talla’s abusive and controlling nature. In particular,
he doubted Dieng’s testimony about her husband’s abuse and
controlling nature because, as the IJ stated, it did “not seem
logical” that he would allow her and their son to visit the United
States unaccompanied. (J.A. 31.) The IJ further questioned why
Dieng returned to Talla in Senegal after her 1999 trip to the
United States if he inflicted such severe abuse. Finally, he noted
that it did not seem plausible, given Dieng’s testimony that Talla
was so controlling and untrusting, that Talla would leave someone
else’s passport, their son’s passport, and their son’s birth
certificate where she could find them.
The IJ noted at least three problems concerning Dieng’s
testimony as to her daughter. First, the IJ found that it was
“unusual” that Dieng would come to the United States with her son
and while she was pregnant with her daughter, but then return to
her “abusive, controlling husband in Senegal.” (J.A. 32.) Next, if
Dieng actually feared her daughter would subjected to FGM, the IJ
found it“unusual” for her to leave her daughter in Senegal where
Talla could find her. Id. Those statements indicate the IJ
9
discredited even the portions of Dieng’s testimony concerning her
purported daughter.
Having discredited the bulk of Dieng’s testimony, the IJ
examined whether the evidence she submitted rehabilitated her
claims. First, he discounted her cousin’s testimony because he had
little personal knowledge of the events, receiving most of the
information second-hand from others. Second, the IJ found the birth
certificates were “suspect” because her daughter’s was issued in
2004 and was only partially translated, and her son’s contained an
unusual name for the father. The IJ concluded that the other
documentary evidence, specifically the statements of persons in
Senegal, were unreliable because those individuals were unavailable
for cross-examination. “Even taken cumulatively, they are
insufficient to overcome the difficulties in the respondent’s
testimony.” (J.A. 33.) Finally, the IJ “agree[d] with DHS counsel
that there is little reliable evidence of the existence of the
respondent’s daughter other than a copy of a birth certificate with
an incomplete translation from French.” (J.A. 32.)
Because the IJ found that Dieng has been subjected to FGM, he
concluded that she had established past persecution. However, he
determined the government rebutted the presumption of a well-
founded fear of future persecution by demonstrating “fundamentally
changed personal circumstances.” (J.A. 33.) The IJ explained the
basis for that decision:
10
I find that the respondent’s decision to re-avail herself
of the protection of Senegal and return to her husband in
1999 when she was approximately 27 years old after she
had allegedly been abused, and when she had her son with
her and was pregnant with her daughter, constitutes a
fundamental change in personal circumstances that
eliminates the future fear of persecution on the basis of
FGM.
(J.A. 33-34.) The IJ also refused to issue a discretionary grant of
asylum, concluding: (1) that the long period of time since she
underwent FGM and her return to Senegal in 1999 indicated that
asylum based on severity of past harm was not warranted; and (2)
that there was no credible evidence supporting a grant of asylum
based on serious harm if she returned to Senegal.
The IJ went on to consider Dieng’s application for withholding
of removal and for protection under the CAT. He denied the
applications for withholding of removal because she failed to meet
the lower burden of proof required for asylum. As to the CAT, he
concluded that, even if the domestic violence women experience in
Senegal qualified as “torture,” Dieng failed to show a probability
that she would be subjected to such treatment by the Senegalese
government or with that government’s acquiescence. Accordingly, he
denied the application and ordered Dieng and her son’s removal to
Senegal.
Dieng appealed to the BIA, which affirmed the IJ’s decision by
summary order on May 2, 2006. Dieng timely filed the instant
petition for review of the BIA’s order.
11
II.
This Court has jurisdiction to review the BIA’s order pursuant
to 8 U.S.C. § 1252(a). When the BIA issues a summary opinion, the
IJ’s order becomes the sole basis for review. See Kattak v.
Ashcroft, 332 F.3d 250, 253 (4th Cir. 2003). We will uphold the
agency’s legal conclusions “unless manifestly contrary to law.” 8
U.S.C. § 1252(b)(4)(C). The agency’s findings of fact “are
conclusive unless any reasonable adjudicator would be compelled to
conclude the contrary.” Id. § 1252(b)(4)(B).
III.
Dieng first argues the IJ predicated his decision on an
erroneous adverse credibility determination. Because of that
determination, the IJ chose not to consider the bulk of Dieng’s
testimony and denied her asylum application insofar as she claimed
a well-founded fear of future persecution unconnected to any past
persecution. As to her asylum claim based on past persecution,
Dieng argues the IJ erred in concluding that the government
rebutted the presumption of a well–founded fear of persecution that
arose from her past subjection to FGM.
Alternatively, Dieng contends that even if the government did
overcome the presumption, the IJ should have granted asylum for two
reasons. First, Dieng established a well-founded fear of future
persecution in that she would be physically abused because of her
12
objection to her daughter’s threatened FGM procedure. Second, she
is entitled to a discretionary grant of asylum given the severity
of her past persecution. Finally, Dieng challenges the IJ’s
decision denying her applications for withholding of removal and
for protection under the CAT.
A.
The applicant generally bears the burden of proving
eligibility for asylum. 8 C.F.R. § 1208.13(a); Naizgi v. Gonzales,
455 F.3d 484, 486 (4th Cir. 2006); Gandziami-Mickhou v. Gonzales,
445 F.3d 351, 353 (4th Cir. 2006). Under the Immigration and
Naturalization Act, an alien who qualifies as a “refugee” is
eligible for asylum. See 8 U.S.C. § 1158(b)(1)(A). The definition
of a “refugee” includes an alien who is unable or unwilling to
return to their country of citizenship “because of persecution or
a well-founded fear of future persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.” Id. § 1101(a)(42)(A). “Persecution involves the
infliction or threat of death, torture, or injury to one’s person
or freedom, on account of one of the enumerated grounds.” Li v.
Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal quotations
omitted) (quoting Kondakova v. Ashcroft, 383 F.3d 792, 797 (8th
Cir. 2004)).
Dieng sought asylum claiming that she had a well-founded fear
of future persecution. An applicant who seeks asylum based on a
13
well-founded fear of future persecution “must show (1) that a
reasonable person in the circumstances would fear persecution; and
(2) that the fear has ‘some basis in the reality of the
circumstances’ and is validated with ‘specific, concrete facts.’”
Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir. 1992) (quoting
M.A. v. INS, 899 F.2d 304, 311 (4th Cir. 1990) (en banc)). That
test has both a subjective and objective element: “a subjective
inquiry into what the applicant for asylum fears and an objective
finding of facts on which to base that fear.” Id. The subjective
element requires the applicant to demonstrate a “genuine fear of
persecution.” Chen v. United States INS, 195 F.3d 198, 201 (4th
Cir. 1999).
The IJ’s decision on Dieng’s application for asylum, as well
as his resolution of the other issues in this case, is tied to the
adverse credibility determination with respect to Dieng’s
testimony. We defer to the agency’s credibility determinations if
supported by substantial evidence. Camara v. Aschroft, 378 F.3d
361, 367 (4th Cir. 2004). That is, the determinations must be
supported by “evidence that is ‘reasonable, substantial, and
probative . . . on the record considered as a whole.’” Dankam v.
Gonzales, 495 F.3d 113, 120 (4th Cir. 2007) (alterations in
original) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)). The deference afforded to the agency’s credibility
determinations “is not absolute,” meaning that, in addition to
14
being supported by substantial evidence, the trier of fact must
offer “‘a specific, cogent reason’” for rejecting the witness’s
testimony. See id. at 120-21 (citing Camara, 378 F.3d at 367;
Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989)). An applicant’s
inconsistent statements or the presence of contradictory evidence
“qualify as cogent reasons that could support an adverse
credibility finding.” Id. at 121. We will not defer, however, to an
adverse credibility finding that is grounded on the IJ’s
speculation, conjecture, or unsupported personal opinion. Id.The IJ based his adverse credibility finding on
inconsistencies in Dieng’s statements and unexplained discrepancies
between her statements and the documentary evidence, including: (1)
the number of wives Talla, her purported husband, had; (2) the
number of times her son had traveled to the United States without
her knowledge; (3) Talla allowing her to travel to the United
States with her son despite his alleged controlling and abusive
nature; (4) her husband’s name and the name of her son’s father,
who was identified as “Le GrandBourre Louis” on the birth
certificate; (5) evidence that a person named “Legrand Rebeiz”
lived at her home in Virginia; and (6) the easy availability of her
son’s passport and birth certificate and a passport she could use
compared with the lack of access to similar information for her
alleged daughter.
15
We conclude the IJ’s adverse credibility determination was
based on substantial evidence and that the IJ offered “specific,
cogent reasons” for that finding. Dieng never explained why she
told the asylum officer that she was Talla’s fourth wife, but
testified at the removal proceedings that she was his third wife.
Dieng’s testimony that her husband allowed her and her son to
travel to the United States in 1999 was inconsistent with the
general picture she painted of him. Indeed, Dieng testified that,
before coming to the United States in 2003, she had to wait until
her husband went to mosque before fleeing and that her husband was
“very angry” and “looking for [her].” (J.A. 70.) Dieng’s apparent
easy access to her son’s important documentation and a passport she
could use also stand in sharp contrast to her general description
of Talla’s controlling nature.
Dieng gave repeated statements in her written applications and
testimony that Malick Talla was the father of her two children.
However, her son’s birth certificate lists “Le GrandBourre Louis”
as the father and as Dieng’s husband. (J.A. 231.) She first
attempted to explain that the discrepancy as the result of a custom
whereby the name of the child’s grandfather is placed on the birth
certificate. (J.A. 90.) When further pressed by government’s
counsel and the IJ on the fact that the birth certificate expressly
refers to Le GrandBourre Louis as the “father,” she then
explained–apparently for the first time–that Talla is also known as
16
Le GrandBourre Louis. (J.A. 90-92.) Government counsel also
questioned Dieng about an internet directory search that showed a
person by the name of Legrand Rebeiz lived at her address in
Virginia Beach, Virginia. Dieng stated that she had “no idea” why
such a name would be revealed on an internet directory search, but
Dieng’s counsel offered–without providing any basis for his
statement–that her son also goes by the name of Legrand Rebeiz.
(J.A. 92-93.) The IJ found it highly unlikely that Dieng’s seven-
year-old son would be included in the search. Such a conclusion was
supported by substantial evidence given that Dieng herself
testified that she had “no idea” why the search would reveal that
name–a statement that directly contradicts counsel’s contention
that it was her son’s alias. Dieng would presumably be more
familiar with her son’s names, nicknames, and aliases than her
counsel.
These inconsistencies went to the core of Dieng’s asylum
claim. Dieng claimed a well-founded fear of future persecution on
grounds that she, if returned to Senegal, would object to FGM being
performed on her daughter. That objection would draw physical
retribution by her purported husband. Thus, her husband’s identity,
his history of abusing her, and his controlling nature lie at the
heart of her claim–making them more than just minor details.
We have explained the effect of an adverse credibility
determination in asylum cases:
17
It is true that an unfavorable credibility determination
is likely to be fatal to an asylum claim because often
the applicant must establish a well-founded fear of
persecution, which contains both subjective and objective
components, and the subjective element cannot generally
be proved other than through the applicant’s testimony.
Thus, a determination that the applicant’s testimony is
not credible will generally defeat the claim.
Camara, 378 F.3d at 369 (internal quotations and citations
omitted). The IJ’s adverse credibility determination made it
substantially more difficult for Dieng to show a subjective fear of
persecution. There was no other evidence in the record
demonstrating that Dieng held such a subjective fear of future
persecution. Thus, the IJ did not err in denying Dieng’s asylum
claim to the extent it was grounded on a well-founded fear of
future persecution resulting from objections to her daughter’s
threatened circumcision.
B.
Although the IJ discredited nearly all of Dieng’s testimony,
he credited her testimony and supporting evidence showing that she
had undergone FGM as a child. As a result, the IJ concluded that
Dieng demonstrated that she had suffered from past persecution, a
conclusion the government does not dispute.3 Upon showing past
3
It is well-established in this circuit and other circuits
that FGM generally qualifies as “persecution” under the Immigration
and Naturalization Act. See Barry v. Gonzales, 445 F.3d 741, 745
(4th Cir. 2006); Mohammed v. Gonzales, 400 F.3d 785, 796, 797 n.16
(9th Cir. 2005); Niang v. Gonzales, 422 F.3d 1187, 1197, 1199-1200
(10th Cir. 2005); Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.
2004); Abankway v. INS, 185 F.3d 18, 23-24 (2d Cir. 1999).
18
persecution, the alien is presumed to have a well-founded fear of
future persecution. 8 C.F.R. § 1208.13(b)(1); Li, 405 F.3d at 176.
The government “may rebut this presumption by demonstrating by a
preponderance of the evidence . . . ‘a fundamental change in
circumstances such that the applicant no longer has a well-founded
fear of persecution.’” Essohou v. Gonzales, 471 F.3d 518, 520 (4th
Cir. 2006) (quoting 8 C.F.R. § 1203.13(b)(1)(i)(A)). Alternatively,
the government may rebut the presumption by showing “that the
applicant could avoid future persecution by internally relocating
to another part of the country and it would be reasonably possible
to do so.” Id. (citing 8 C.F.R. 1208.13(b)(1)(i)(B)).4
The IJ concluded that Dieng’s return to Senegal in 1999 with
her son following her first visit to the United States “constitutes
a fundamental change in personal circumstances that eliminates the
future fear of persecution on the basis of FGM.” (J.A. 34.) The
evidence does not compel a contrary conclusion. The evidence was
4
The Ninth Circuit has applied a “continuing harm theory” in
asylum cases involving FGM. See Mohammed v. Gonzales, 400 F.3d 785,
796, 801 (9th Cir. 2005). The Ninth Circuit reasoned in Mohammed
that victims of FGM suffer from permanent, lasting effects that
“render[] a petitioner eligible for asylum, without more.” Id. at
799. Thus, under Mohammed, it would be impossible for the
government to rebut the presumption that arises because of past
persecution. See id. at 801. However, the ongoing harm theory has
no application in this case for two reasons. First, petitioner did
not rely on the theory to support her asylum claim in proceedings
before the agency nor does she rely on the theory in support of her
petition for review. Second, any application of the theory here
would likely be foreclosed by the BIA’s decision in In re A-T, 24
I & N Dec. 296, 299-301 (BIA 2007), which declined to adopt the
Ninth Circuit’s analysis in FGM cases.
19
uncontroverted (and Dieng herself testified) that she and her son
entered the United States in 1999 and then returned to Senegal
approximately one month later. An alien’s interim return to her
country of citizenship can be evidence she does not hold a well-
founded fear of future persecution. See Karouni v. Gonzales, 399
F.3d 1163, 1175-76 (9th Cir. 2005); Ngarurih v. Ashcroft, 371 F.3d
182, 189-90 (4th Cir. 2004); Bereza v. INS, 115 F.3d 468, 474 (7th
Cir. 1997). In this case, Dieng lived in Senegal for many years
after enduring FGM and before coming to the United States in 1999.
She then returned to Senegal, where she lived for more than three
additional years. There is no evidence, aside from Dieng’s
discredited statements and the undisputed fact that she suffered
FGM decades ago, that she was persecuted during those long periods
when she resided in Senegal, both before and after coming to the
United States in 1999. Thus, the IJ could reasonably conclude that
Dieng lacked a well-founded fear of future persecution. See
Ngarurih, 371 F.3d at 184 (upholding IJ’s denial of asylum where
there was no evidence of persecution during alien’s two-month
interim return to native country); Bereza, 115 F.3d at 474 (stating
that an alien’s six-to-seven-month interim return without incident
supports the conclusion that his “fear of persecution is not well-
founded”).
There was certainly evidence in the record apart from Dieng’s
discredited testimony, particularly her cousin’s testimony and her
20
friend Sall’s statement, showing that she had been physically
abused by her purported husband. Although the IJ discredited that
evidence as lacking a basis in personal knowledge or as unreliable,
that evidence–even if credited–did not show that the abuse was
“persecution” under the Act, particularly that it was committed on
account of an enumerated ground. See 8 U.S.C. § 1101(a)(42)(A)
(providing that an alien is eligible for asylum when she holds a
“well-founded fear of future persecution on account of race,
religion, nationality, membership in particular social group, or
political opinion.”)
Accordingly, we conclude that the evidence does not compel a
conclusion contrary to that reached by the IJ and that his decision
is supported by substantial evidence.
C.
Dieng next challenges the IJ’s decision not to issue a
discretionary grant of asylum on humanitarian grounds. “Even if the
[agency] meets its burden to establish that a victim of past
persecution does not have a well-founded fear of future
persecution, the applicant may still be eligible for asylum on
‘humanitarian’ grounds.” Naizgi, 455 F.3d at 486 (citing 8 C.F.R.
§ 1208.13(b)(1)(iii)). The IJ has discretion to grant asylum to a
refugee in those circumstances if: (1) “[t]he applicant has
demonstrated compelling reasons for being unwilling or unable to
return to the country arising out of the severity of the past
21
persecution;” or (2) “[t]he applicant has established that there is
a reasonable possibility that he or she may suffer other serious
harm upon removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii).
We have held that a discretionary grant of asylum based on the
severity of the past persecution is “reserved for the most
atrocious abuse,” meaning that the past persecution was so severe
as to make it “inhumane to return the alien even in the absence of
any risk of future persecution.” Gonahasa v. INS, 181 F.3d 538, 544
(4th Cir. 1999). Following that narrow construction, we have
declined to find abuse of discretion in cases involving an entire
family’s forced expatriation from their native country, see Naizgi,
455 F.3d at 488, political interrogation under threat of execution
accompanied by months of solitary confinement, see Ngarurih, 371
F.3d at 185, and torture that included the removal of the
petitioner’s teeth with pliers and a screwdriver, see Rusu v.
United States, 296 F.3d 316, 325 (4th Cir. 2002). In light of our
decisions involving past persecution, the IJ’s decision not to
issue a discretionary grant of asylum based on Dieng’s subjection
to FGM–which occurred approximately thirty years ago–was not
manifestly contrary to law or an abuse of discretion.
Nor can we conclude that the IJ abused his discretion by
denying asylum on grounds that Dieng “may suffer other serious harm
upon” her return to Senegal. Dieng’s discredited testimony was the
only evidence supporting her argument that she would suffer harm
22
upon returning to Senegal. We have indicated that some
circumstances involving a mother who had been subjected to FGM and
a daughter who will be subjected to FGM may warrant a grant of
discretionary asylum. See Niang v. Gonzales, 492 F.3d 505, 509 n.4
(4th Cir. 2007) (“[A] humanitarian grant of asylum may be warranted
in circumstances where a mother, who has been subjected to FGM,
fears her daughter will be subjected to FGM if she accompanies her
mother to the country of removal.”) In this case, however, there
was no credible evidence to indicate that Dieng even has a daughter
in Senegal.5 Accordingly, the IJ did not abuse his discretion in
denying Dieng’s application for asylum to the extent it was based
on a claim that she would suffer “other serious harm” if returned
to Senegal.
D.
To qualify for withholding of removal, the petitioner must
demonstrate that upon return her “life or freedom would be
threatened . . . because of his race, religion, nationality,
membership in a particular social group, or political opinion. 8
5
Additionally, whatever psychological harm Dieng would suffer
from the fact that her purported daughter may undergo FGM does not
rise to the level of persecution, and thus would not rise to the
level of severity requiring a grant of discretionary asylum. See
Niang, 492 F.3d at 512 (holding that “‘persecution’ cannot be based
on a fear of psychological harm alone”); 65 Fed. Reg. 76121, 76127
(Dec. 6., 2000) (explaining that “other serious harm” is “harm that
is not inflicted on account of race, religion, nationality,
membership in a particular social group, or political opinion, but
is so serious that it equals the severity of persecution.”)
23
U.S.C. § 1231(b)(3). While closely related to an application for
asylum, withholding of removal requires satisfaction of a higher
burden of proof. Camara, 378 F.3d at 367. “Because the burden of
proof for withholding of removal is higher than for asylum-even
though the facts that must be proved are the same-an applicant who
is ineligible for asylum is necessarily ineligible for withholding
of removal under § 1231(b)(3).” Id. Given Dieng’s failure to
demonstrate eligibility for asylum, the IJ did not err in denying
her application for withholding of removal.
E.
Under the CAT, Dieng qualifies for protection if she shows
that “it is more likely than not that . . . she would be tortured
if removed to the proposed country of removal,” 8 C.F.R. §
1208.16(c)(2), and that the torture would be “inflicted by or at
the instigation or acquiescence of a public official or other
person acting in an official capacity,” id. § 1208.18(a)(1). Dieng
apparently claims that Talla’s purported abuse is “torture” under
the CAT because law enforcement officers failed to intervene when
asked, thereby acquiescing in her husband’s abusive conduct.
However, the IJ did not err in denying Dieng’s application for
protection under the CAT because there was no credible evidence to
support her claim. The IJ’s adverse credibility determination as to
Dieng’s testimony eliminated the best evidence before the agency
that supported her claim for protection under the CAT, and the
24
remainder of the evidence in the record either failed to support
her claim or was otherwise not credible.6 Thus, as with Dieng’s
application for asylum and withholding of removal, the adverse
credibility determination as to her testimony proved fatal to her
claim for protection under the CAT.
IV.
For the foregoing reasons, we deny the petition for review.
PETITION DENIED
6
Ibrahim Ndiaye testified at the removal proceedings that
Dieng went to the authorities regarding her husband’s abuse, but
that they did not “do anything” about it. (J.A. 122.) While that
testimony could provide some support for Dieng’s claim under the
CAT, Ndiaye also noted he had no personal knowledge of Dieng’s
interactions with the police. Rather, his knowledge came from what
Dieng told him. Id. Given Ndiaye’s lack of personal knowledge and
his own credibility problems, and the fact that what knowledge he
had came from Dieng (whose own testimony was deemed not credible),
the IJ was entitled to disregard Ndiaye’s testimony.
25