Hafza H. Hassan v. Alberto Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2084
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Hafza H. Hassan, *
*
Petitioner, *
* Petition for Review of a
v. * Final Decision of the Board
* of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States, *
*
Respondent. *
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Submitted: February 12, 2007
Filed: May 7, 2007
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Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
Hafza H. Hassan, a native and citizen of Somalia, petitions for review of an
order of the Board of Immigration Appeals (BIA) affirming an immigration judge's
(IJ) denial of her application for asylum. We grant the petition and remand the case
to the BIA for further proceedings.
I. Background
Hassan entered the United States in 1997. That same year, she applied for
asylum in Atlanta, Georgia, claiming that if returned to Somalia, her interclan
marriage to Abdullah Mohamed Kulmiye, a member of the Midgan tribe, would
subject her to persecution by members of her own clan, the Hawiye. The IJ rejected
this claim but granted Hassan asylum after concluding, sua sponte, that if Hassan were
returned, her American-born daughters would be forced to move to Somalia and
undergo female genital mutilation (FGM). The government appealed and the BIA
remanded for further factual findings.
On remand, venue was changed to Minnesota, where Hassan petitioned for
asylum stating three grounds: (1) her interclan marriage to Kulmiye would subject her
to persecution; (2) her own FGM experience entitled her to asylum and (3) her
daughters would be subject to FGM if they returned with her. To support her FGM
claim, Hassan produced a letter from a physician asserting that Hassan had undergone
FGM; her own testimony detailing her FGM experience at age six; and a Department
of State report noting that 98% of women in Somalia had undergone FGM.
The IJ concluded that (1) her interclan marriage claim lacked credibility; (2)
Hassan had undergone FGM but was not entitled to asylum based upon her
experience; and (3) if Hassan were returned, her daughters could remain in the United
States with Kulmiye, their father and a United States asylee. The BIA affirmed.
Hassan appeals her two FGM-based asylum claims.
II. Discussion
We review de novo the BIA's conclusions of law but give substantial deference
to its interpretations of statutes and regulations. Habtemicael v. Ashcroft, 370 F.3d
774, 779 (8th Cir. 2004). A denial of asylum is reviewed for abuse of discretion;
underlying factual findings are reviewed for substantial support in the record.
Manivong v. Dist. Dir., United States Dep't of Justice INS, 164 F.3d 432, 433 (8th Cir.
1999). An IJ's factual determinations must be upheld if supported by reasonable,
substantial, and probative evidence on the record considered as a whole. Tang v. INS,
223 F.3d 713, 718 (8th Cir. 2000). "[This] standard is a deferential one, requiring a
reviewing court to uphold a denial of asylum unless an alien demonstrates that the
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evidence he presented was so compelling that no reasonable fact finder could fail to
find the requisite fear of persecution." Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir.
2004) (internal quotations and citations omitted).
A. Fugitive Disentitlement Doctrine
Preliminarily, we address the government's claim that Hassan has waived her
asylum claim under the fugitive disentitlement doctrine. The BIA permitted Hassan
to depart voluntarily from the United States. She did so within the required 30-day
time frame, moving with her children to Canada. From Canada, Hassan requested a
stay of deportation. Because Hassan failed to meet with government officials to
discuss her request, the government asserts that she thus waived her claim.
The fugitive disentitlement doctrine is an extreme sanction that permits a court
to waive an appellant's right to appeal if the appellant fails to appear before a relevant
tribunal. Degen v. United States, 517 U.S. 820, 828 (1996). Disentitlement serves two
purposes: "[it] punishes those who evade the reach of the law and thus discourages
recourse to flight" and it avoids making judgments that could not be enforced should
the government prevail. Antonio-Martinez v. INS, 317 F.3d 1089, 1091 (9th Cir.
2003).
We decline to apply the doctrine here. Hassan's leaving the country is not
analogous to a fleeing felon avoiding prosecution. Hassan apparently left the country
in compliance with the IJ's and the BIA's order to leave the country within 30 days.
The record does not show Hassan's voluntary departure was an attempt to evade the
reach of the law. Her pursuit of additional legal remedies while in Canada does not
frustrate the execution of our judgment should the government prevail. We therefore
reject the government's waiver argument.
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B. Asylum
To obtain asylum, an applicant must demonstrate a well-founded fear of
persecution on account of her race, religion, nationality, membership in a particular
social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). An asylum applicant
may establish a well-founded fear of persecution by showing that the applicant was
persecuted in the past. Eta-Ndu v. Gonzales, 411 F.3d 977, 983 (8th Cir. 2005). Once
an applicant demonstrates past persecution, she is entitled to a presumption of a
well-founded fear of persecution. 8 C.F.R. § 1208.13(b)(1)."The burden then shifts
to the government to show by a preponderance of the evidence that conditions in the
applicant's country have changed to such an extent that the applicant no longer has a
well founded fear of being persecuted if he or she were to return." Vonhm v. Gonzales,
454 F.3d 825, 828 (8th Cir. 2006).
1. Past Persecution
Hassan contends that she possesses a well-founded fear of persecution based
upon her past FGM experience .The government argues that Hassan failed to prove
that she suffered from past persecution. The government concedes that Hassan has
undergone FGM1 but avers that this court has never held that a petitioner who has
1
Experts divide FGM into three categories. The record indicates that Hassan
underwent Type III FGM, a conclusion that is consistent with State Department
reports noting that Type III is the most prevalent form of FGM in Somalia. See Report
on Female Genital Mutilation as Required by Conference Report (H.Rept.106-997)
to Pub.L. 106-429 (Foreign Operations, Export Financing and Related Programs
Appropriations Act, 2001); see also Female Genital Mutilation, Integrating the
Prevention and the Management of the Health Complications into the curricula of
nursing and midwifery. A Teacher's Guide. World Health Organization. (2001).
Type III FGM is by far the most invasive and painful form of the procedure. A
young woman, usually between the ages of four and twelve, is restrained as an old
woman or local barber slices the girl's clitoris, labia minora and labia majora with
knives, razors, scissors, shards of glass or sharp stone. Teachers Guide at 31;
Conference Report at 5. Anaesthesia, especially in rural areas, is rarely given and
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undergone FGM is entitled to a presumption of past persecution as a matter of law.
The government is correct. However, we now join the growing number of our sister
circuits that have considered this issue and concluded that there is "no doubt that the
range of procedures collectively known as female genital mutilation rises to the level
of persecution within the meaning of our asylum law." Mohammed v. Gonzales, 400
F.3d 785, 795 (9th Cir. 2005); see also Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir.
2006) (holding that "we recognize as an initial matter that FGM constitutes
persecution within the meaning of the Immigration and Nationality Act"); Niang v.
Gonzales, 422 F.3d 1187, 1197 (10th Cir. 2005) (holding that "FGM constitutes
persecution, whether for the purpose of determining past persecution or the purpose
of determining well-founded fear of persecution"); Abay v. Ashcroft, 368 F.3d 634,
638 (6th Cir. 2004) (holding that "[f]orced female genital mutilation involves the
infliction of grave harm constituting persecution . . . that can form the basis of a
successful claim for asylum"); Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir. 2004)
depending upon the sharpness of the instruments and the girl's resistence, the
procedure may take up to 20 minutes to complete. Teachers Guide at 31; Conference
Report at 5. In many instances, the instruments used to perform the procedure are not
sterilized. Conference Report at 5.
Once the cutting has concluded, the old woman or barber will remove the
amputated flesh and stitch the vaginal opening together, "leaving a very small
opening, about the size of a matchstick, to allow for the flow of urine and menstrual
blood." Conference Report at 5. "Thorns may be used for pricking the prepuce and for
holding the labia together." Teachers Guide at 31. To stop the risk of infection, the
wound is "dabbed with anything from alcohol or lemon juice to ash, herb mixtures,
porridge, coconut oil or cow dung. . ." Teachers Guide at 31. For 40 days, the young
woman is immobilized; her legs are bound together from hip to ankle, preventing her
from moving so that scar tissue can form along the mutilated vaginal opening.
Conference Report at 5.
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(stating that "[t]he Agency does not dispute, at least with any force, that the type of
FGM which Ms. Balogun has alleged is 'persecution"').
In addition to showing past persecution, Hassan must also show that this
persecution is "on account of" her membership in one of five protected categories.
Hassan argues that her Somali persecution is on account of her gender, a particular
social group. In Safaie v. INS, 25 F.3d 636 (8th Cir. 1994), we rejected a petitioner's
argument that the Iranian government's oppression of women was sufficient to make
Iranian women a recognized particular social group. We held that such a
categorization was "overbroad, because no factfinder could reasonably conclude that
all Iranian women had a well-founded fear of persecution based solely on their
gender." Id. at 640. Here, however, we hold that a factfinder could reasonably
conclude that all Somali females have a well-founded fear of persecution based solely
on gender given the prevalence of FGM. As the Ninth Circuit noted in Mohammed,
"there is little question that genital mutilation occurs to a particular individual because
she is a female. That is, possession of the immutable trait of being female is a
motivating factor–if not a but-for cause-of the persecution. "Mohammed, 400 F.3d at
797. We, therefore, conclude that Hassan was persecuted on account of her
membership in a particular social group, Somali females.
The BIA acknowledged, and the government does not dispute, that Hassan, a
Somali woman, underwent FGM as a child. Accordingly, Hassan has satisfied her
burden of showing that she suffered previous persecution and is entitled to the
presumption that she has a well-founded fear of future persecution.
2. Future Persecution
Hassan's establishment of past persecution creates a presumption that she also
possesses a well-founded fear of future persecution. The proof burden should have
then shifted to the government to show by a preponderance of the evidence that
conditions in Somalia have changed to such an extent that Hassan's well-founded fear
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of future persecution if returned to Somalia has ceased. The record is clear that the
BIA failed to shift the burden of proof from Hassan to the government.
The government, however, argues that the case should not be remanded,
because the record establishes that Hassan does not have well-founded fear of
persecution as she cannot be subjected to FGM a second time. In essence, the
government argues that FGM cannot be done to her again so she should not be afraid.
The government's argument erroneously assumes that FGM is the only form of
persecution in Somalia and that having undergone the procedure, Hassan, as a Somali
woman, is no longer at risk of other prevalent forms of persecution. Ramirez Rivas v.
INS, 899 F.2d 864, 869–70 (9th Cir. 1990). We have never held that a petitioner must
fear the repetition of the exact harm that she has suffered in the past. Our definition
of persecution is not that narrow. Pavlovich v. Gonzales, 476 F.3d 613, 616 (8th Cir.
2007) (defining persecution as "the infliction or threat of death, torture, or injury to
one's person or freedom on account of a statutorily protected ground").
The government also argues that the IJ's adverse credibility determination
adequately rebuts Hassan's past persecution. However, the IJ's credibility findings
only addressed Hassan's interclan marriage claim. Hassan's FGM evidence, which
included a letter from a physician, the State Department Report, and her own
testimony, were unrebutted. On remand, the government must prove, by a
preponderance of the evidence, that conditions in Somalia have changed to such an
extent that Hassan no longer has a well-founded fear of the infliction or threat of
death, torture, or injury to her person or freedom.2
2
We note that, in this case, the government faces a significant challenge. The
record before us indicates that Somali women face severe hardships. The 2005
Somalian Report on Human Rights Practices prepared by the Department of State
notes that "societal discrimination and violence against women and widespread abuse
of children continued to be serious problems." The report states that "[l]aws
prohibiting rape exist; however, they generally were not enforced. There were no laws
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C. Derivative Asylum
Hassan also argues that she is entitled to asylum based upon her well-founded
fear that her daughters would be persecuted. The IJ rejected Hassan's argument
without analysis believing that Hassan's children could remain in the United States
with their father Kulmiye. After the IJ issued his decision, the government reopened
Kulmiye's asylum proceedings and terminated his asylum status. He too was ordered
removed to Somalia. Given the falsity of the IJ's assumption, we remand Hassan's
derivative asylum claim for consideration by the BIA on its merits. INS v. Orlando
Ventura, 537 U.S. 12 (2002); Gonzales v. Thomas, 547 U.S. 183 (2006).
III. Conclusion
For the foregoing reasons, we grant the petition for review and remand the
case to the BIA for further proceedings consistent with this opinion.
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against spousal rape. There were no reports that rape cases were prosecuted during the
year." Id. "Police and militia members raped women, and rape was commonly
practiced in inter-clan conflicts." Id. "In Somaliland there was an increase in incidents
of gang rape in urban areas, primarily by youth gangs, members of police forces and
male students." Id. See also Hernandez-Montiel v. INS, 225 F.3d 1084, 1097–98 (9th
Cir. 2000) (holding that rape by police officers that is ignored by the government
constitutes persecution sufficient to establish asylum).
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