Almaz Sayoum Abebe Sisay Mengistu v. Alberto R. Gonzales, Attorney General

432 F.3d 1037, 2005 U.S. App. LEXIS 29009, 2005 WL 3556910

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 30, 2005
• Docket: 02-72390
• Status: Published

Opinions

CLIFTON, Circuit Judge.

Mr. Sisay Mengistu and his wife, Ms. Almaz Abebe (together Petitioners), are natives and citizens of Ethiopia who petition for review of a final order of the Board of Immigration Appeals (BIA) denying their application for asylum and withholding of removal. The BIA adopted the decision of the Immigration Judge (IJ), who concluded that Petitioners had not demonstrated a well-founded fear of persecution. Petitioners argued that if the family were returned to Ethiopia, their nine-year-old daughter would be subjected to female genital mutilation (FGM) and Mr. Mengistu would be persecuted because of his political activities. We conclude that the IJ’s determination concerning Petitioners’ FGM argument is not supported by substantial evidence. FGM constitutes persecution sufficient to support an asylum claim. The record does not support the conclusion reached by the IJ and adopted by the BIA that the risk that Petitioners’ daughter will be subjected to FGM is too small to establish a well-founded fear of persecution. Substantial evidence ■ does support the rejection of Petitioners’ political persecution argument, however. Based upon the FGM ground, we grant the petition for review and remand for further proceedings consistent with this opinion.

I. BACKGROUND

On January 1, 1990, Mr. Mengistu came to the United States on a J-l student visa that required him to return to Ethiopia upon expiration of the visa. Ms. Abebe joined him on February 22, 1993. On July 13, 1993, Petitioners filed an application for asylum.¹ While awaiting resolution of their application, Petitioners had two children, a son, Mikaeh, born in 1994, and a daughter, Amen, born in 1996. Both children are U.S. citizens.

Nearly two and a half years after Petitioners filed their request, the asylum office denied their application. The office concluded that Petitioners were aliens who had overstayed their visas and referred them to an IJ for further proceedings. Before the IJ, Petitioners renewed their asylum application, arguing that if their family was required to return to Ethiopia, their daughter, Amen, would be subjected to FGM,² and that Mr. Mengistu would be persecuted because of his actual and imputed political activities. The IJ denied Petitioners’ application on November 17, 1997.

In a per curiam opinion, the BIA adopted and affirmed the IJ’s decision on July 2, 2002. Petitioners petitioned for review of the BIA’s decision, and on August 13, 2004, a three-judge panel of this court concluded, with one judge dissenting, that Petitioners did not establish a well-founded fear of persecution based upon either their concern that their daughter would be subjected to FGM or Mr. Mengistu’s political activities. On March 3, 2005, we granted Petitioners’ request for rehearing en banc, vacating the prior decision of the three-judge panel.

II. STANDARD OF REVIEW

Keeping in mind that when “the BIA adopts the decision of the IJ, we review the IJ’s decision as if it were that of the BIA.” Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir.2004); see also Tchoukhrova v. Gonzales, 404 F.3d 1181, 1188 (9th Cir.2005). We review the IJ’s findings of fact for substantial evidence and will uphold these findings if they are supported by “ ‘reasonable, substantial, and probative evidence on the record eonsidered as a whole.’ ” Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir.1997) (quoting 8 U.S.C. § 1105a(a)(4)). We review questions of law de novo. Baballah v. Ashcroft, 367 F.3d 1067,1073 (9th Cir.2004).

III. DISCUSSION

A. Female Genital Mutilation Ground

1. Exhaustion

As a preliminary matter, the government argues that we do not have jurisdiction to consider Petitioners’ FGM argument because Petitioners did not exhaust this argument before the BIA. In particular, the government contends that Petitioners did not put the BIA on notice that they were appealing the IJ’s decision on the FGM ground. As the government points out, Petitioners did not mention the FGM ground in their-notice of appeal to the BIA. Furthermore, only one sentence in the brief that Petitioners filed with the BIA referred to this ground. This sentence, which was included in the document’s statement of facts, stated: “Further, [Petitioners] submitted written and testimonial evidence regarding their fear that their daughter, Amen Mengistu, born in the United States on May 15, 1996, would be subjected to female genital mutilation if Petitioners are forced to return to Ethiopia.” No reference was made to Petitioners’ concern that their daughter would be subjected to FGM within the argument section of the brief. Instead, the argument focused solely on the political activities ground.

Making clear that it had reviewed the entire record, however, the BIA did not limit its decision to address only Petitioners’ political activities argument for asylum. Instead, the BIA effectively addressed Petitioners’ FGM argument and rejected it on substantive grounds. See Ghassan v. INS, 972 F.2d 631, 635 (5th Cir.1992) (noting that the BIA may consider an issue that has not been appealed by either party). In its opinion, the BIA specifically stated that it “adopt[ed] and affirm[ed] the thorough and well-reasoned decision of the Immigration Judge in this case, which correctly found that the [Petitioners] had not adequately demonstrated their eligibility for either asylum or withholding of removal.” While the BIA did not provide a more extensive discussion to support its conclusions, the BIA cited its decision in Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), to signify that it had conducted an independent review of the record and had exercised its own discretion in determining that its conclusions were the same as those articulated by the IJ.

Our caselaw establishes that where the BIA cites its decision in Burbano and does not express disagreement with any part of the IJ’s decision, the BIA adopts the IJ’s decision in its entirety.³ See Tchoukhrova, 404 F.3d at 1188. If the BIA intends to constrict the scope of its opinion to apply to only one ground upon which the IJ’s decision rested, the BIA can and should specifically state that it is so limiting its opinion.⁴ Compare Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir. 2005) (noting that the BIA affirmed on one ground upon which the IJ’s decision was based without considering the other issue raised by the petitioner); see also Singh v. Ashcroft,- 301 F.3d 1109, 1114 (9th Cir. 2002) (same); Falaja v. Gonzales, 418 F.3d 889, 897 n. 4 (8th Cir.2005) (same).

On this occasion, the BIA adopted the IJ’s decision in full without saying that it limited the scope of its decision to Petitioners’ political persecution argument. The IJ’s decision discussed both the political persecution ground and the FGM ground and denied both on the merits. We interpret the BIA’s express adoption and affirmance of what it described as the “thorough and well-reasoned decision of the Immigration Judge” to mean that it did the same. We take the BIA at its word and do not assume that the Board meant something other than what it said.

Recognizing that the BIA elected to consider both of Petitioners’ grounds for asylum in this instance, we further note that the BIA could have expressly declined to consider Petitioners’ FGM argument based on a finding that the argument was procedurally defective. It did not.⁵ The BIA is presumably aware of its ability to decline to review an argument when a petitioner has not properly raised the argument on appeal to the BIA. See Perez-Rodriguez v. INS, 3 F.3d 1074, 1080 (7th Cir.1993) (noting that the BIA declined to consider an argument because the petitioner did not raise it on appeal). When the BIA has ignored a procedural defect and elected to consider an issue on its substantive merits, we cannot then decline to consider the issue based upon this procedural defect. Cf Fed. Power Comm’n v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) (noting that a court can only uphold an agency decision “ ‘on the same basis articulated in the order by the agency itself ”) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). The BIA’s express adoption of the IJ’s decision which explicitly discussed the FGM ground is “enough to convince us that the relevant policy concerns underlying the exhaustion requirement — that an administrative agency should have a full opportunity to resolve a controversy or correct its own errors before judicial intervention-have been satisfied here.” Sager-mark v. INS, 767 F.2d 645, 648 (9th Cir. 1985); see also Socop-Gonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir.2001). Thus, we conclude that Petitioners’ FGM argument is not barred due to failure to exhaust it before the administrative agency.

2. Substantive Merits of the FGM Argument

Eligibility for asylum is established when an alien demonstrates that he is “unable or unwilling to return to the country of origin ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003) (quoting 8 U.S.C. § 1101(a)(42)(A)). An alien does not have to prove that it is more likely than not that he will actually be persecuted; even a ten percent chance of persecution may be sufficient to establish eligibility for asylum based upon a well-founded fear of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 438, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

It is well-settled that FGM constitutes persecution sufficient to warrant a grant of asylum. See In re Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996); Mohammed v. Gonzales, 400 F.3d 785, 795-96 (9th Cir.2005); Toure v. Ashcroft, 400 F.3d 44, 49 n. 4 (1st Cir.2005); Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir.2004); Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.2004); Abankwah v. INS, 185 F.3d 18, 23 (2d Cir.1999). The government has not argued otherwise.

It is uncertain whether the IJ used the correct standard in evaluating Petitioners’ FGM argument. In explaining the standard used to determine whether a well-founded fear of persecution exists, the IJ stated in his oral decision that “[a] reasonable person may well fear persecution even where the likelihood is significantly less than clearly probable, however, there must be a reasonable possibility of actually suffering such persecution.” The IJ then concluded that FGM “is not likely to be a threat” to Amen if her family is returned to Ethiopia. The proper standard, however, is not whether the persecution feared is “likely to be a threat.” Instead, as noted above, the Supreme Court held in Cardozar-Fonseca that even an alien who can demonstrate only a ten percent chance of future persecution may prevail in a claim for asylum. Whether that is what the IJ meant by “a reasonable possibility” was not made clear.

Substantial evidence in the record does not, in any event, support a finding that there was less than a ten percent chance that Amen would be subjected to FGM in Ethiopia. In his ruling, the IJ mischaracterized Petitioners’ testimony on this subject. The IJ noted that:

[Mr. Mengistu] ... testified that he has no family other than his elderly parents and his siblings and the State Department material does indicate and the Court does not believe that FGM would be forced upon his daughter without his and his wife’s consent. [Mr. Mengistu’s] testimony that his wife would not be able to prevent such actions by her relatives was contradicted by [Ms. Abebe’s] testimony. She testified that she would be able to prevent it but that her family would probably reject her if she did prevent it.

Contrary to the IJ’s findings, however, neither Mr. Mengistu nor Ms. Abebe actually testified that they would be able to prevent Amen from being subjected to FGM.

Mr. Mengistu testified that FGM is a ritual that “almost practically all females have to undergo” in Ethiopia. He explained that while he and his wife both oppose the practice, “[i]t’s not as easy as that. I mean there will be pressure from the society, from the grandparents. I mean it’s everybody is [sic] forced to go through that....” He further clarified that while he would try to prevent Amen from being subjected to the ritual, if he were imprisoned or otherwise separated from his family after their return to Ethiopia, Ms. Abebe would be unable to prevent Amen from being subjected to FGM.

Ms. Abebe testified that FGM was performed on her when she was a child. She explained that she does not believe in FGM and does not want her daughter to be subjected to the procedure. She stated, however, that she would be rejected by her family, her husband’s family, and her society if she opposed the ritual.

Documentary evidence in the record supported Petitioners’ contention that they had an objectively reasonable fear that Amen would be subjected to FGM if the family were returned to Ethiopia. One report indicated that as of 1993, 90% of women in Ethiopia were subjected to FGM.⁶ Another report substantiated Petitioners’ argument that the ethnic group to which their families belong, the Amharas, regularly practiced FGM. The State Department’s Ethiopia Country Report on Human Rights Practices for 1996, at 17, stated that “[ajlmost all girls [in Ethiopia] undergo some form of female genital mutilation .... Clitorectomies are typically performed 7 days after birth, and the excision of the labia and infibulation, the most extreme and dangerous form of FGM, can occur any time between the age of 8 and the onset of puberty.”

The State Department Report for 1994, at 5, indicated that “[m]ost Ethiopian females have undergone some form of genital mutilation.” This report also advised that “the practice varies widely and in degree depending on ethnicity and urban/ rural status.... Most urban women under the age of 25 are unlikely to be mutilated. Reportedly, women are able to prevent their daughters from being subjected to circumsion [sic] by relatives.” These statements alone, however, should not have been sufficient to persuade a reasonable factfinder that there was less than a ten percent chance that Amen would be forcibly subjected to FGM if the family were returned to Ethiopia.

Instead, the evidence indicated that the probability that Amen would have to undergo this ritual greatly exceeded the threshold required to establish eligibility for asylum. Thus, since the IJ’s conclusion regarding Petitioners’ FGM argument was not based on substantial evidence, we vacate this portion of the IJ’s decision. See Knezevic v. Ashcroft, 367 F.3d 1206, 1215 (9th Cir.2004) (remanding to the BIA because the denial of asylum was not based on substantial evidence).

We do not reach the issue of whether Petitioners, parents of a U.S. citizen child likely to face persecution in her parents’ native country, may derivatively qualify for asylum. That was not a ground relied upon or even discussed by the IJ or the BIA in this case. We remand to give the BIA the opportunity to address the matter in the first instance, as the Supreme Court has instructed. INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).⁷

B. Political Persecution Argument

Petitioners also argued before the IJ that they had a well-founded fear that Mr. Mengistu would be persecuted based upon his actual and imputed political activities if the family were returned to Ethiopia. After considering Petitioners’ testimony and the documentary evidence in the record, the IJ determined that Petitioners had not demonstrated eligibility for asylum on this basis. The IJ’s conclusion regarding Petitioners’ political persecution argument was supported by substantial evidence.

To put Petitioners’ political persecution argument into context, some background regarding Ethiopia’s recent political history is necessary. From 1974 to 1991, Ethiopia was ruled by a dictatorial Marxist regime, known as the Derg, which was dominated by members of the Amhara ethnic group, to which Petitioners belong. In 1991, the Derg regime was over-thrown by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a coalition of political parties predominately controlled by the Tigrean ethnic group. Since the overthrow of the Derg, Amharas have experienced open hostility and harassment from other ethnic groups.

In claiming that Mr. Mengistu would be persecuted by the EPRDF, Petitioners essentially offered three arguments. First, Petitioners asserted that it was likely that the EPRDF would assume that Mr. Mengistu was a supporter of the former Derg regime because he is Amhara and his parents were Derg supporters. Petitioners point out that after the Derg regime was overthrown, Mr. Mengistu’s parents were imprisoned for two weeks and were denied their civil rights, including the right to vote.

There is no evidence, however, concerning the location or conditions of his parents’ detention. Nor is there any evidence that the EPRDF would treat Mr. Mengistu, who was not himself a Derg supporter, more harshly than it treated his parents, who were active Derg supporters. The IJ concluded that the fact that his parents were only detained for two weeks suggested that Mr. Mengistu, whose only connection to the Derg organization was through his parents, would not be treated any more harshly and would therefore not be persecuted. The BIA adopted that reasoning, and we cannot say that the record compels a contrary finding. Furthermore, Mr. Mengistu has four siblings and seven half-siblings, and with the exception of one sister, who was an active Derg supporter, his siblings have remained in Ethiopia largely without incident.

Second, Petitioners argued that it was possible that the government would assume that Mr. Mengistu was a Derg supporter because he received a scholarship to study abroad while the Derg regime was in power. The record indicates, however, that after the EPRDF came to power, Mr. Mengistu’s passport was renewed so that he could remain abroad and continue to take advantage of the scholarship. There was no evidence that the new government wanted to prevent him from returning home, or that it was persecuting persons simply because they were returning from education paid for by scholarships awarded under the Derg regime.

Finally, Petitioners argued that the EPRDF would persecute Mr. Mengistu because in 1993 Mr. Mengistu joined Medhin, a political organization that opposes the EPRDF. Some of Medhin’s members viewed violence as an acceptable means to overthrow the EPRDF, but Mr. Mengistu testified that he did not believe in using violence to achieve the organization’s goals. As a Medhin member, Mr. Mengistu has attended meetings, helped recruit members, and attended a Medhin conference in Washington, D.C.

The fact that Petitioner is a member of Medhin, however, does not in and of itself demonstrate that he has a well-founded fear of persecution. Evidence in the record indicates that the EPRDF has not ordinarily targeted individuals who renounce violence. Also, as the IJ recognized, Mr. Mengistu’s association with Medhin was limited, and Mr. Mengistu did not receive any threats arising from his membership in Medhin. See Singh v. INS, 134 F.3d 962, 968 (9th Cir.1998) (explaining that when there is no evidence of significant physical violence or specific threats of serious harm, we are unlikely to find persecution). Thus, we conclude that substantial evidence supports the IJ’s determination that Petitioners failed to demonstrate that they have a well-founded fear that Mr. Mengistu would be persecuted because of his actual or imputed political activities.

IV. CONCLUSION

While substantial evidence supports the IJ’s determination concerning Petitioners’ political persecution argument, the IJ erred in concluding that Petitioners failed to demonstrate a well-founded fear that their daughter will be subjected to FGM if the family is returned to Ethiopia. Consequently, we grant the petition, vacate the order of removal, and remand for further proceedings consistent with this opinion.

PETITION FOR REVIEW GRANTED; REMANDED WITH INSTRUCTIONS.

1 . Technically, Mr. Mengistu filed the application and listed Ms. Abebe as a derivative applicant.

2 . FGM has been described by the Sixth Circuit as:

the collective name given to a series of surgical operations, involving the removal of some or all of the external genitalia, performed on girls and women primarily in Africa and Asia. Often performed under unsanitary conditions with highly rudimentary instruments, female genital mutilation is extremely painful, permanently disfigures the female genitalia, [and] exposes the girl or woman to the risk of serious, potentially life-threatening complications, including bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to the urethra and anus.

Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir. 2004) (internal quotation marks and citation omitted).

3 . We have explained that "a Burbano affirmance is different from a streamlined affirmance which signifies only 'that the result reached in the decision under review was correct; that any errors in the decision under review were harmless or nonmaterial.' ” Tchoukhrova, 404 F.3d at 1188 n. 3 (quoting 8 C.F.R. § 1003.1 (a)(7)(ii)).

4 . That is, for example, what the BIA did in the Tchoukhrova case. In its decision in that case, the BIA included a footnote which expressly noted that the Tchoukhrovas ''did not contest on appeal the Immigration Judge's ruling regarding protection under the Convention Against Torture.” In re Tchoukhrova, Board of Immigration Appeals, No. A75 772 599 (February 25, 2003) at 1, n. 1. By so noting, the Board made clear that it did not pass on that issue and that its adoption of the reasoning of the IJ did not extend to that issue. In contrast, no such limitation was expressed in the BIA's decision in the case at hand.

5 . Petitioners argue that the reference to the FGM ground contained in their brief to the BIA was sufficient to raise the issue. We do not address that argument, because we conclude that the BIA did not reject the FGM argument in this case on the ground that it was not sufficiently raised.

6 . In reviewing an IJ’s determination, we look to the facts and evidence in the record at the time of the original decision. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996). We are mindful, however, that in asylum cases, circumstances sometimes change in the countries at issue during the course of the litigation. In this instance, though, the practice of FGM appears to be have remained prevalent in Ethiopia. See the State Department’s Ethiopia: County Reports on Human Rights Practices — 2004, available at http:// www.state.gov/g/drl/rls/hrrpl/2004/41603.htm (last visited December 6, 2005) (noting that a government survey released in 2003 indicates that ’’90 percent of women undergo one of four forms of FGM circumcision, clitoridectomy, excision, and infibulation”).

7 . The dissenting opinion describes this result as treading "boldly.” Dissent at 1050. But remanding all other issues to the BIA is exactly what the government has urged us to do at this point. It is the dissent which proposes to consider grounds not relied upon by the BIA or argued by the government in order to deny the petition.