Dieng v. Mukasey ( 2008 )


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  •                                UNPUBLISHED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    Petition denied by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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
    

Document Info

Docket Number: 06-1622

Judges: Williams, Traxler, Norton

Filed Date: 7/7/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024

Authorities (22)

Abdul Majeed Khattak v. John Ashcroft, Attorney General ( 2003 )

Nasser Mustapha Karouni v. Alberto Gonzales, Attorney ... ( 2005 )

Haile Abadi Naizgi v. Alberto R. Gonzales, Attorney General ( 2006 )

Yayeshwork Abay and Burhan Amare v. John Ashcroft, United ... ( 2004 )

Qiao Hua Li v. Alberto R. Gonzales, Attorney General ( 2005 )

Yong Hao Chen v. U.S. Immigration & Naturalization Service ( 1999 )

Khadija Mohammed v. Alberto R. Gonzales, Attorney General, ... ( 2005 )

Aissatou Barry v. Alberto R. Gonzales, Attorney General ( 2006 )

David Daada Gonahasa v. U.S. Immigration & Naturalization ... ( 1999 )

Igor Bereza v. Immigration and Naturalization Service ( 1997 )

Niang v. Ashcroft ( 2005 )

Rafael Figeroa, A/K/A Rafael Najarro-Morales v. U.S. ... ( 1989 )

Nataliya Vladimironva Kondakova Yuriy Leonidovich Kondakov ... ( 2004 )

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David Wachira Ngarurih v. John D. Ashcroft, Attorney ... ( 2004 )

Adelaide Abankwah v. Immigration and Naturalization Service ( 1999 )

Djenaba Camara v. John Ashcroft, in His Official Capacity ... ( 2004 )

Ela Gandziami-Mickhou v. Alberto R. Gonzales, Attorney ... ( 2006 )

Jhonny A. Huaman-Cornelio v. Board of Immigration Appeals ( 1992 )

constantin-rusu-v-us-immigration-naturalization-service-john-ashcroft ( 2002 )

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