Olivia C. Kipkemboi v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 05-4198/06-1895
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Olivia Chebet Kipkemboi, et al., *
*
Petitioners, *
* Petitions for Review from the Board
v. * of Immigration Appeals.
*
Alberto Gonzales, Attorney General *
of the United States, * [UNPUBLISHED]
*
Respondent. *
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Submitted: January 12, 2007
Filed: January 23, 2007
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Before COLLOTON, BRIGHT, and GRUENDER, Circuit Judges.
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PER CURIAM.
Olivia Kipkemboi petitions for review of an order of the Board of Immigration
Appeals (“BIA”) denying her claim for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). She also seeks review of the BIA’s
denial of her motion to reopen the administrative proceedings. Her husband, Wilfred
Kipkemboi Sugut, sought asylum based on his wife’s claim, and he also petitions for
review of the agency’s decisions. The petitioners are citizens of Kenya who entered
the United States in 1999, and they have two young children, both of whom are
citizens of the United States.
Before the agency, Kipkemboi argued, among other things, that she had a well
founded fear that upon removal to her native Kenya, she would be subjected to female
genital mutilation (“FGM”). She contended that FGM is widespread in the Rift
Valley area of Kenya where she and her husband were raised and married, and that the
government of Kenya is unable or unwilling to control the practice. Kipkemboi also
argued that her daughter would be subjected to FGM, and that the emotional trauma
associated with witnessing the pain and suffering of the child would constitute
persecution of Kipkemboi.
Kipkemboi testified before the immigration court that although her husband
does not approve of FGM, her husband’s family opposed his marriage to her because
she had not been circumcised. She averred that her husband’s family still wants her
to undergo FGM, and that she also fears that her young daughter would be subjected
to the procedure. Kipkemboi testified that she fears returning to Kenya, because
although she would live in Nairobi, which is a five-hour drive from the Rift Valley,
she would not be safe from her husband’s family. Kipkemboi also introduced the
State Department’s country report on Kenya from 2003, which reported that FGM is
still significantly practiced in the country, despite laws against it, and which recounted
the story of a 28 year-old woman who was seized by her in-laws and forcibly
subjected to FGM.
The immigration judge noted the decision of the BIA in In re Kasinga, 21 I&N
Dec. 357 (BIA 1996), which held that female genital mutilation may, under certain
circumstances, constitute persecution based on membership in a “particular social
group,” see 8 U.S.C. § 1101(a)(42)(A), such that a well-founded fear of the practice
could qualify an individual for a grant of asylum. The immigration court harbored
“no doubt that FGM is a significant violation of human rights,” but found not credible
the testimony of the male petitioner that members of his family had traveled three
times to Nairobi in 1999 for the purpose of seizing Kipkemboi and subjecting her to
FGM. In stating his ultimate conclusion concerning Kipkemboi’s eligibility for
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asylum, the immigration judge opined that “[s]imply put, the Court does not believe
that the evidence in this case indicates that there is a significant likelihood that the
female respondent or any child of both respondents would face FGM upon returning
to Kenya.” (Addendum at 81; emphasis added). For similar reasons, the immigration
judge concluded that petitioners were not eligible for withholding of removal or relief
under the CAT. The BIA affirmed without opinion, and later denied a motion to
reopen the proceedings.
We conclude that this case must be remanded to the agency for further
consideration, because we cannot determine that the immigration judge applied the
correct legal standard in rejecting Kipkemboi’s claim for asylum. The Supreme Court
has explained that a fear of persecution may be “well-founded” even where there is
less than a 50% chance that the act of persecution will take place, and the Court
endorsed the view of a commentator that a well-founded fear of persecution would
exist where every tenth adult male person in an applicant’s country of origin is either
put to death or sent to some remote labor camp. INS v. Cardoza-Fonseca, 480 U.S.
421, 431 (1987). While the immigration judge appeared to acknowledge this
framework at an early stage of his opinion, the critical conclusion of the opinion’s
analysis section applied a standard requiring a “significant likelihood” of persecution.
The phrase “significant likelihood” has no universal definition, but it has been equated
with “more likely than not” by adjudicators in the immigration context and elsewhere.
E.g., Tagaga v. INS, 228 F.3d 1030, 1034 (9th Cir. 2000) (holding that petitioner met
the higher standard for withholding of deportation where he established a “substantial
likelihood” that he would be tried for treason if removed to country of origin); Rogers
v. Okin, 634 F.2d 650, 654 n.3 (1st Cir. 1980) (observing that “[t]he exact meaning
of the term ‘substantial likelihood’ is unclear on its face,” and then agreeing with
suggestion of the district court and the parties that it should be construed to mean
“more likely than not”), vacated and remanded on other grounds sub nom. Mills v.
Rogers, 457 U.S. 291 (1982); cf. Duke Power Co. v. Carolina Envtl. Study Group,
Inc., 438 U.S. 59, 75 n.20 (1978) (equating “substantial likelihood” with “likely”);
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G.A. Thompson & Co., Inc. v. Partridge, 636 F.2d 945, 955 (5th Cir. 1981)
(characterizing “substantial likelihood” as a standard of proof higher than “reasonable
likelihood”).
For these reasons, we cannot be confident that the immigration judge and the
BIA applied the proper legal standard in this case. We therefore grant the petition for
review and remand for further proceedings. See Corado v. Ashcroft, 384 F.3d 945,
948 (8th Cir. 2004) (per curiam). We express no view on whether the evidence
compels the conclusion that petitioners have a well-founded fear of persecution upon
return to Kenya, and we leave the determination of eligibility for asylum to the
Attorney General in the first instance.
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