Mercy West v. William P. Barr ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0594n.06
No. 19-3841
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MERCY WEST, ) Oct 20, 2020
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
WILLIAM P. BARR, Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
BEFORE: ROGERS, SUTTON, and STRANCH, Circuit Judges.
ROGERS, J., delivered the opinion of the court in which SUTTON and STRANCH, JJ.,
joined. STRANCH, J. (pp. 15–16), delivered a separate concurring opinion.
ROGERS, Circuit Judge. Mercy West, a citizen of Nigeria, appeals the Board of
Immigration Appeals’ denial of her application for withholding of removal. Of the issues that
West raises in this appeal, two are beyond the court’s jurisdiction because they were not raised to
the Board, and another was not relied upon by the Board in its final ruling. The only remaining
aspect of the Board’s decision before us is its determination that West has not shown that, if she
returns to Nigeria, it is more likely than not that her daughters would be subjected to female genital
mutilation. That determination, however, is supported by substantial evidence, including a decline
in the incidence of FGM in Nigeria, as well as the ability of her daughters to avoid FGM by living
in Lagos rather than in West’s home village.
No. 19-3841, West v. Barr
West, who is forty-seven years old, comes from the Ibo tribe in Umu-Ejechi Umualum, a
village in the town of Nekede in southeastern Nigeria. At the age of seven, West became a victim
of female genital mutilation, a surgical operation “involving the removal of some or all of the
external genitalia, performed on girls and women primarily in Africa and Asia.” Abay v. Ashcroft,
368 F.3d 634, 638 (6th Cir. 2004). In 1994, West left her village and moved to Lagos, where she
went to college for accounting. She married Jerry Okoro two years later and gave birth to a
daughter in 2001. West, along with her husband and daughter, were admitted to the U.S. in April
2003 on nonimmigrant tourist visas, with authority to stay for six months. West and her daughter
have remained in the U.S. ever since. In 2005, West had a second daughter with Okoro. In 2008,
West divorced Okoro and married Marcel West. Marcel filed an alien relative petition on West’s
behalf, but that petition was denied in 2010 on the grounds that the marriage was fraudulent and
that Marcel had been convicted of a sex crime. West has since divorced Marcel and is now married
to Vernon Hill, a U.S. citizen.
Later in 2010, the Department of Homeland Security sought to remove West on the basis
that she was an alien who had overstayed her visa. See 8 U.S.C. § 1227(a)(1)(B). West, who was
represented by counsel, conceded removability, but filed an application for withholding of removal
under 8 U.S.C. § 1231(b)(3)(A) and, alternatively, for voluntary departure. West wrote in her
application that she feared her daughters would be subjected to female genital mutilation if she
were deported to Nigeria. In support of this statement, West recounted her own experience with
female genital mutilation and produced two letters that appeared to have been written in 2006 and
2007—one from her brother and the other from a community organization in her hometown—
warning her that she needed to have her daughters circumcised. The letter from West’s brother,
who resided in Nigeria, sounded a “warning concerning the need for you to either come home with
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your daughter . . . for her circumcision or you make sure it is done there [in the U.S.] without
delay,” said it would “avoid much pains” to have the procedure “done on time,” and explained that
“[i]n our tradition, it is mandatory that a newborn babe is circum[cis]ed, without which he or she
is not recognized as a true son or daughter of the soil.” The other letter, purportedly sent from the
“Muwejechi Umualum Town Women’s Development Union,” congratulated West on her new
baby, before “warning” West and her husband “not to forget that we have a culture in Umualum
village,” and that “no woman that is not circumcised will ever [live] among us here in Umualum
village,” “[s]o the earlier you circumcise your baby girls, the better for you.” The letter went on
to state that if West did not circumcise her daughter, she would be “creating a very big problem
for that baby because no [matter] how long you people lived [there], any time any day [you’re]
back here with that girl, she will never stay one day in this village without being circumcised, even
if she is one Hundred years old.”
West also included an excerpt of a State Department country report for Nigeria from 2001,
which cited studies on the prevalence of female genital mutilation in Nigeria. According to this
report, around 60% of women in Nigeria in 1996 and 1997 had been circumcised, with a 1997
study estimating that between 40 and 50% of women had been circumcised in West’s home state
of Imo.1
At a hearing before the Immigration Judge (“IJ”), West recounted her experience
undergoing female genital mutilation. West indicated that she did not know the whereabouts of
her daughters’ biological father and that, if she were removed to Nigeria, her children would not
be staying with their father. West further stated that she did not know of anyone who would take
care of her daughters in the U.S. if she left. When asked why she was afraid of going back to
1
It is not clear from the report whether the state-specific and national data came from the same 1997 study.
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Nigeria, West answered, “My children—my two young girls. They are female. I don’t want them
to go through what I have gone through under the circumcision.” West insisted that her family
back home would circumcise her daughters regardless of their age. West also told the IJ that in
2001, shortly after giving birth to her first daughter, two elders from her village came to visit her
in Lagos and inquired about getting West’s daughter circumcised. The women never came back,
however, and West left Lagos for the U.S. about a year and a half later. West further testified that
she dropped out of college in 1996 after she got married because her husband was supporting her
financially. West indicated that she would return to her village if deported to Nigeria and insisted
that wherever she lived in Nigeria—including Lagos—the village elders would find her.
In August 2017, the IJ denied West’s application for withholding of removal. The IJ first
found West not credible. According to the IJ, West’s “demeanor was inconsistent with that of a
credible witness and called her candor into question.” The IJ explained that West’s “answers were
often evasive and vague[,] lacked detail on important matters,” and that West “seemed to simply
recite the same information, that ‘it’s tradition,’ regardless of the question asked of her.” The IJ
found that West’s “testimony was implausible and embellished at times”—specifically, her
assertion that agents from her village could locate every individual who left the village throughout
Nigeria. The IJ also relied upon inconsistencies in West’s testimony regarding her relocation to
Lagos. The IJ noted that “[d]uring both direct and cross examination, she testified that she fled to
Lagos when her first daughter was born in 2001,” but that “when questioned by the Court, she
stated that she moved to Lagos to attend college in 1994, and had never moved back to her village.”
In the alternative, the IJ ruled that, even assuming that West was credible, she could not
show entitlement to withholding of removal. While West had established past persecution in the
form of subjection to female genital mutilation, and was therefore entitled to a presumption of
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future persecution, the IJ concluded that the Government had successfully rebutted that
presumption by demonstrating that conditions in Nigeria had improved and that West and her
children could safely relocate to Lagos.
With respect to the country conditions in Nigeria, the IJ noted a 2015 State Department
country report for Nigeria submitted by the Government, which stated that Nigeria had recently
banned the practice of female genital mutilation and that the Ministry of Health and non-
governmental organizations had sponsored public awareness campaigns regarding the dangers of
female genital mutilation. The IJ also reasoned in part as follows:
the United States Department of State 2001 Nigeria: Report on FGM (“2001 Report
on FGM”) indicates that according to a 1997 study, sixty percent of the nation’s
total female population had undergone some form of FGM. Additionally, the 2001
Report on FGM states that “the campaign against FGM has long been waged, for
the most part, by international, national, and non-governmental organizations,” and
that “the government has public[ly] opposed the practice . . . [but] there is no federal
law banning FGM in Nigeria.” On the other hand, the 2015 Human Rights Report
for Nigeria indicates that in 2008 only “29.6 percent of girls and women ages 15 to
49 had undergone FGM, and . . . in 2013, 14 percent of girls from newborn to age
14 had undergone FGM.” This demonstrates a significant decrease in the number
of women and girls who undergo FGM in Nigeria.
(Citations omitted.) The IJ concluded that “conditions in Nigeria have changed to such an extent
that it is no longer more likely than not that respondent would be similarly persecuted if she returns
to Nigeria.” (Emphasis in original.)
The IJ also concluded that West “has not established that she could not reasonably relocate
within Nigeria.” The IJ reasoned that West could go to the megacity of Lagos, where she had
safely lived with her daughter for a year and a half, and where the rate of female genital mutilation
was low. The IJ observed that while two village elders who had visited West when she lived in
Lagos did discuss circumcision for her daughter, they did not make any threats and did not contact
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her later. Finally, the IJ noted that the above-mentioned letters from her home village did not
threaten West with harm if she did not comply with the requests to circumcise her daughters.
In its opinion, the IJ rejected West’s argument that her case was analogous to Abay, which
applied the standard for asylum rather than withholding of removal. Abay held that a mother’s
fear that her minor alien daughter would be forced to undergo female genital mutilation in Ethiopia
was sufficient to demonstrate a fear of future persecution. 368 F.3d at 642. The IJ concluded that
the overall rate of female genital mutilation was significantly lower in Nigeria—around 30%—
than it had been in Ethiopia at the time Abay was decided—over 90%—and therefore Abay was
distinguishable. The IJ reasoned that the present case was much closer to Dieng v. Holder,
698 F.3d 866, 873 (6th Cir. 2012), where we held that an asylum seeker could not show a
likelihood that her daughter would be subjected to female genital mutilation in part because the
rate of the practice in her home country of Senegal was only 20%.
On West’s appeal to the Board of Immigration Appeals, the Board affirmed. The Board
assumed for purposes of its opinion that West had testified credibly, but in any event concluded
that the IJ had not clearly erred in determining that conditions in Nigeria had changed. In
particular, the Board noted that Nigeria had since criminalized FGM. The Board also noted the
two studies described in the 2015 State Department report, one showing that in 2008, 29.6% of
Nigerian women between the ages of 15 and 49 had been circumcised, and another showing that
in 2013, 14% of Nigerian girls under the age of 14 reported being circumcised. The Board
compared these studies to those described in the 2001 State Department report, which showed
overall circumcision rates for Nigerian women of about 60%. The Board also observed that West
had “not meaningfully challenge[d]” the IJ’s statistical analysis regarding changed conditions in
Nigeria.
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The Board also held that it was not clear error for the IJ to find that West could successfully
settle in Lagos upon returning to Nigeria. As the IJ had, the Board highlighted that West had lived
in Lagos from 1994 until 2003, and that despite having been visited by village elders in Lagos,
West and her baby had continued to live there unharmed until their departure to the U.S. a year
and a half later. The Board therefore dismissed West’s appeal.
West next petitioned this court for review of the Board’s decision. On the Government’s
unopposed motion, we remanded the case “so that the BIA may consider: (1) West’s claim of a
well-founded fear of future persecution based on the contention that her two daughters would be
subject to female genital mutilation in Nigeria; and (2) the reasonableness of internal relocation.”
On remand, the Board correctly noted that the Government’s motion for remand and this court’s
remand order referred in part to an incorrect standard. West has not applied for asylum, and
consideration of whether she has a well-founded fear of future persecution is part of the standard
for establishing asylum eligibility. See Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004);
8 C.F.R. § 208.13(b). Asylum and withholding of removal are distinct forms of relief, and
applications for withholding of removal are generally governed by a more demanding standard.
INS v. Cardoza-Fonesca, 480 U.S. 421, 428 n.6, 449 (1987); Berri v. Gonzales, 468 F.3d 390, 397
(6th Cir. 2006). In short, withholding of removal requires a showing that “it is more likely than
not that the alien would be subject to persecution in the country to which [s]he would be returned,”
whereas an asylum applicant need make only the lesser showing of “a well-founded fear” of such
persecution. Cardoza-Fonseca, 480 U.S. at 423, 427–28 (citations and internal quotation marks
omitted). Having identified the error, the Board proceeded to apply the appropriate standard for
West’s application for withholding of removal.
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The Board proceeded again to dismiss West’s appeal, for substantially the same reasons it
had relied upon before. In addition, the Board ruled that “the respondent is presently married to a
United States citizen; thus, the respondent’s two daughters can remain in the United States with
their stepfather in the event that she returns to Nigeria.” The BIA further stated in a footnote that
“although the respondent indicates on appeal that ‘she would not leave her children with’ her
husband [citing West’s brief], she has not articulated any reason as to why her daughters (one of
whom is a United States citizen) could not remain in the United States with their stepfather, save
for a brief, vague reference to ‘the past bad experiences in her prior marriages.’” West once again
sought reversal of the Board’s decision in a petition to this court.
On appeal, West asserts, and the Government does not directly challenge, that her
undergoing female genital mutilation in Nigeria constitutes past persecution on account of
membership in a particular social group; specifically, the Ibo tribe in Nekede, Nigeria that performs
female genital mutilation. West’s theory of future persecution is that she will suffer psychological
harm because of the likelihood that her daughters—who will accompany her back to Nigeria—
will be forced to undergo female genital mutilation. See Abay, 368 F.3d at 641–42. The
Government asserts, however, that the agency rebutted the presumption of future persecution by
showing that conditions in Nigeria have improved since West underwent female genital mutilation
and, in addition, that West and her daughters would be able to internally relocate to Lagos, where
the threat of female genital mutilation is significantly lower. Because substantial evidence
supports the Board’s determination, we must deny the petition.
It will help to isolate the issue before us by clearing the underbrush of a number of other
issues that were either not raised before the agency, or, although addressed below, are not contested
on this appeal. For instance, West argues for the first time on appeal that she is entitled to
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withholding of removal by virtue of continuing harm to herself from the FGM that she suffered as
a child, apart from harm from any FGM that her daughters may suffer. She relies in this respect
upon Mohammed v. Gonzales, 400 F.3d 785, 802 (9th Cir. 2005). Under 8 U.S.C. § 1252(d), “[a]
court may review a final order of removal only if . . . the alien has exhausted all administrative
remedies available to the alien as of right.” We have held that this exhaustion requirement is
jurisdictional. See Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004). Accordingly, because
West did not previously present her argument of “continuing harm” to herself, the argument is
jurisdictionally barred.
West contends that she raised her continuing harm argument to the Board when she “argued
that she underwent FGM and . . . argued that she established eligibility for withholding of
removal.” In West’s view, the continuing harm theory “is simply an iteration of the claim for
withholding of removal” and therefore need not have been raised separately. But an argument is
not preserved for appeal simply because it happens to fall under the umbrella of a properly
presented claim. Rather, “the exhaustion requirement requires that the petitioner press all
reviewable issues to the BIA” and, furthermore, “each issue ‘must be reasonably developed in the
petitioner’s brief to the BIA.’” Garcia-Romo v. Barr, 940 F.3d 192, 198 (6th Cir. 2019) (emphasis
added) (quoting Khalili v. Holder, 557 F.3d 429, 432–33 (6th Cir. 2009)). West’s brief to the
Board focused on the potential for harm to her daughters, stating that “[t]he unresolved matter is
whether Respondent has established eligibility for withholding of removal based on her fear that
a United States citizen child . . . and Nigerian citizen child . . . will be persecuted by subjecting
them to FGM procedure, if the Respondent is removed.” Further, West in her brief relied
principally on our decision in Abay, which dealt with a mother’s claim for asylum based on her
fear that her daughter would be forced to undergo female genital mutilation. Moreover, West
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characterized her claim similarly in her notice of appeal to the Board, which stated, “if forced to
return to Nigeria, [West’s] female children will be forced to undergo the savage FGM
procedure. . . . Respondent has been informed by her family and her town’s elders to bring her
female children back to Nigeria for circumcision.” In none of her submissions to the Board did
West raise a theory of continuing harm based on her own subjection to female genital mutilation.
Unsurprisingly, then, the Board did not address the theory of continuing harm to West in its written
decision.2 One of the purposes of § 1252(d)(1)’s exhaustion requirement is “to ensure that the
agency responsible for constructing and applying the immigration laws and implementing
regulations[] has had a full opportunity to consider a petitioner’s claims.” Garcia-Romo, 940 F.3d
at 198 (quoting Bi Xia Qu v. Holder, 618 F.3d 602, 609 (6th Cir. 2010)). The Board was deprived
of that opportunity here with respect to West’s claim of continuing harm.
Hasson v. Mukasey, 281 F. App’x 453 (6th Cir. 2008) (per curiam), relied upon by West,
is not to the contrary. There, we determined that the petitioner had exhausted his claims for
asylum, withholding of removal, and protection under the Convention Against Torture despite the
petitioner’s having phrased his arguments to the Board only in terms of the denial of his asylum
claim. Id. at 456. This was so because “Hasson’s arguments regarding his asylum claim also
addressed the first necessary element of his claims for withholding of removal and CAT
protection,” and thus “Hasson’s failure to independently argue his claims for withholding of
removal and CAT protection [did] not impact any of the purposes of the exhaustion requirement.”
2
West’s assertion in the alternative that the Board sua sponte raised the continuing harm issue—and thus preserved
the issue for appeal—is unfounded. West points to the following passage in the Board’s opinion as evidence that the
Board reached the continuing harm issue: “[Mercy] is not eligible for withholding of removal because she has not
established that it is more likely than not that she would be subject to persecution on account of a protected ground if
she returns to Nigeria.” When read in context, however, this statement is clearly referring to West’s argument that
her fear of persecution stems from the belief that her daughters would be forced to undergo female genital mutilation
in Nigeria. Nowhere in its opinion does the Board mention the continuing harm theory, and in fact stated at the outset
that West “fears harm in Nigeria because her two daughters will be forced to undergo female genital mutilation.”
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Id. Here, in contrast, West’s claim of persecution based on continuing harm to herself from having
undergone female genital mutilation is not subsumed by a claim of persecution based on a fear of
harm to her daughters.
For the same reason, we also lack jurisdiction to consider West’s argument, not raised
below, that she would suffer persecution at the hands of the United States as a result of being
separated from her children. West argues that the Board considered this claim by reasoning that
West’s daughters could avoid the risk of female genital mutilation by staying in the United States
with West’s U.S. citizen husband. But the Board’s recognition of the possibility that West would
be separated from her daughters is hardly a decision on the merits of whether that separation would
constitute persecution. West has thus failed to preserve her family-separation claim for review.3
West also argues at length that her testimony before the IJ was credible. However, the
Board assumed in its first decision that West’s testimony was credible, and did not address the IJ’s
adverse credibility determination in its decision following the remand. We review the Board’s
opinion as the final agency decision, Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007), and
agency decisions are reviewed “solely by the grounds invoked by the agency,” SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947). Accordingly, we likewise assume for purposes of this petition
for review that West’s testimony was credible, and need not address the issue.
Thus, the only issue before us is whether substantial evidence supported the Board’s
rejection of withholding of removal on the basis of changed circumstances, and on the possibility
3
Moreover, this argument cuts against West’s primary argument that she is more likely than not to suffer from the
imposition of FGM upon one of her daughters. We need not, however, rely on the possibility noted by the BIA that
West’s daughters would stay in the United States if West were removed to Nigeria. One of West’s daughters is a U.S.
citizen—that child could “remain in the United States either by staying with [her] relative, or through the appointment
of a guardian until she reaches the age of majority.” Dieng, 698 F.3d at 876. West’s other daughter, who was born
in Nigeria, has now reached the age of majority and thus is no longer legally dependent upon West for care. The
Government, however, does not rely in its brief on the possibility that West’s daughters would not accompany West
to Nigeria if she is removed, and we accordingly assume that they would.
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of relocation in Nigeria, with respect to harm from the imposition of FGM on one or both of West’s
daughters. Substantial evidence supports these conclusions.
Withholding of removal was properly denied because West failed to demonstrate that, upon
her deportation to a designated country, her “life or freedom would be threatened in that country
because of [her] race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). “An applicant must provide evidence showing . . . ‘that it is
more likely than not that [she] would be subject to persecution.’” Berri, 468 F.3d at 397 (quoting
INS v. Stevic, 467 U.S. 407, 423 (1984)). Moreover, an alien who demonstrates past persecution
on the basis of a protected ground is entitled to a rebuttable presumption of future persecution on
that same ground. 8 C.F.R. § 1208.16(b)(1). The Government has first rebutted that presumption
by showing that “[t]here has been a fundamental change in circumstances such that [West’s] life
or freedom would not be threatened on account of” any of the protected grounds in the statute. Id.
§ 1208.16(b)(1)(i)(A). The Government has also rebutted the presumption by showing that West
“could avoid a future threat to . . . her life or freedom by relocating to another part of the proposed
country of removal and, under all the circumstances, it would be reasonable to expect [her] to do
so.” Id. § 1208(b)(1)(i)(B). In this case, substantial evidence supports these two rebuttal bases.
First, the agency’s determination that relevant conditions in Nigeria had sufficiently
changed was supported by substantial evidence. As it had in the first instance, the Board, in its
decision following the remand, cited evidence that FGM has been criminalized in Nigeria since
2015 and that, according to the 2015 report, only 29.6% of Nigerian women between the ages of
15 to 49 had been circumcised. West’s contention that, because other laws in Nigeria have been
ineffectual, the criminalization of FGM would not affect the incidence of future procedures is
insufficient to compel a conclusion contrary to the Board’s and, thus, does not require the court to
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reverse the agency’s decision. See Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007) (stating
the review standard). The same is true of her arguments challenging the probative value of the
cited data, and we should not reverse simply because the agency’s decision might have relied on
“questionable assumptions and conclusions.” Singh v. Ashcroft, 398 F.3d 396, 404 (6th Cir. 2005).
West takes issue with the following analysis, stated in the BIA’s first decision, and partially
restated in its second decision:
The Immigration Judge noted that, according to the 2015 State Department report
on country conditions in Nigeria, in 2008 only 29.6 percent of girls and women
ages 15 to 49 had undergone FGM, and in 2013, 14 percent of girls from newborn
to age 14 had undergone FGM, as compared with a 1997 study, which indicates
that 60% of Nigeria’s total female population had undergone some form of FGM.
West calls this analysis “apples to oranges” because the 2015 report looks at a specific age group
while the 1997 study looks at total female population. But that is precisely the point of the IJ’s
comparison: the 60% number included women who were subjected to FGM many years ago, while
the lesser number referred to women who could have been subjected to FGM only in the previous
14 years. If the numbers are accurate, the difference supports the finding that there has been a
decrease in the incidence of FGM.
Second, the Board’s determination that West and her daughters would be able to internally
relocate to Lagos, where the threat of female genital mutilation is significantly lower, was also
supported by substantial evidence. West’s contention that the Board failed to adequately address
the factors set forth in 8 C.F.R. § 1208.16(b)(3) is unavailing. After citing the applicable regulation
and the factors that should be considered, the Board discussed how West had lived in Lagos from
1994 to 2003, and for almost two years of that time with one of her daughters, who was not harmed
or threatened. Contrary to West’s argument, the Board did not ignore that West had been visited
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in Lagos by women from her former village; rather, the Board acknowledged that visit and noted
that these women did not threaten or harm the child, and they never returned.
A claim for withholding of removal requires an applicant to make a greater showing than
does an asylum claim. The relevant question here is not whether West has a well-founded fear of
future persecution but, rather, whether the Government has shown either that “[t]here has been a
fundamental change in circumstances such that [her] life or freedom would not be threatened on
account of” any of the grounds specified in the statute, or that West “could avoid the future threat
to [her] life or freedom by relocating to another part of [Nigeria] and, under all the circumstances,
it would be reasonable to expect [her] to do so.” 8 C.F.R. § 1208.16(b)(1)(i). There was substantial
evidence to reject West’s claim for withholding of removal, and the record does not compel
conclusions contrary to the Board’s: that conditions in Nigeria have sufficiently changed and that
West and her daughters could relocate to Lagos.
The petition for review is denied.
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JANE B. STRANCH, Circuit Judge, concurring. Mercy West was subjected to female
genital mutilation when she was seven years old in her home country of Nigeria. In Mohammed
v. Gonzales, 400 F.3d 785, 796 (9th Cir. 2005), the Ninth Circuit described that procedure as
“extremely painful, physically invasive, psychologically damaging and permanently disfiguring.”
For Mercy West, it was both “mandatory” and “very painful.” She describes how the village elders
restrained her arms and legs and used a machete. The procedure took “hours, because of the
struggle” and she testified that “I thought I—you know, I would bleed to death.”
I agree with the Ninth Circuit that “female genital mutilation is a permanent and continuing
act of persecution,” which should here make West’s presumption of future persecution
unrebuttable. Sene v United States Attorney General, 679 F. App’x 463, 466 (6th Cir. 2017)
(Stranch, J., concurring). In the Ninth Circuit’s view, the procedure West underwent is analogous
to forced sterilization, and a person who has endured either horror “does not need to have a fear of
the same persecution recurring in the future in order to be eligible for withholding of removal.”
Mohammed, 400 F.3d at 799. I agree, and I would hold that West qualifies for withholding of
removal. But our opinion does not provide West with withholding of removal because our circuit
has failed to adopt Mohammad’s reasoning.
West, moreover, is also faulted here for having presented arguments to the BIA concerning
only her fear for her daughters, and for failing to have raised the issue of her own continuing and
permanent injury. I find that sadly ironic—in Sene, we acknowledged that our precedent found
insufficient fear of FGM for adult women and I suggested Sene should have pursued the claim
based on her fear that “the terrible legacy of female genital mutilation” would be borne by her
daughter. 679 F. App’x at 467. So, Mercy West did that here. And now we tell her that because
she has not pursued to exhaustion the claim for her own continuing harm, this court cannot now
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consider it as the Board was deprived of “a full opportunity to consider” her claim. Bi Xia Qu v.
Holder, 618 F.3d 602, 609 (2010).
Our decision recognizes the BIA’s explanation that the 2015 State Department County
Report for Nigeria shows that only about 30% of “girls and women ages 15 to 49 had undergone
FGM” in 2008. This statistic makes Mercy West’s case more like Dieng v Holder, 698 F.3d 866
(6th Cir. 2012), in which the rate of female genital mutilation in the destination country was 20%
and this court denied asylum, than it is Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004), where the
rate was 90% and this court granted asylum. Given our regrettable precedent, I am constrained to
concur with the majority. So here we remain, denying the protection of our shores to another
woman suffering the continuing and permanent injury of female genital mutilation while living in
grave fear that the same harm will be perpetrated on her own daughters.
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