Niang v. Gonzales

492 F.3d 505, 2007 U.S. App. LEXIS 13723, 2007 WL 1676066

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 12, 2007
• Docket: 06-1470
• Status: Published

Opinions

Affirmed by published opinion. Senior Judge ELLIS wrote the majority opinion, in which Judge NIEMEYER joined. Judge WILLIAMS wrote an opinion concurring in part and dissenting in part.

OPINION

ELLIS, Senior District Judge:

This is an appeal from a final order of removal of the Board of Immigration Appeals (“BIA”), denying petitioner’s application for withholding of removal because (i) she failed to establish a “clear probability” of persecution and (ii) she could not assert a claim based on a fear that her five-year old U.S. citizen daughter would be subjected to female genital mutilation (“FGM”)¹ if petitioner were removed to Senegal and her daughter accompanied her. We affirm on the record presented.

I.

Petitioner, Mame Fatou Niang (“Niang”), is a native and citizen of Senegal. In August 2000, she was admitted to the United States as a non-immigrant visitor authorized to remain in the U.S. until November 8, 2000.

Soon after, her arrival in the U.S., Niang became romantically involved with Papa Samba Ane (“Ane”), a Senegalese native who has nearly completed the process of adjusting his status in the U.S. On July 8, 2001, Niang gave birth to the couple’s first child, a daughter named Fatime Ane (“Fa-time”). Two years later, on February 11, 2003, Niang gave birth to the couple’s second child, a son named Mohamed Ane (“Mohamed”).

Several months after the birth of Mohamed, in August 2003, Niang filed an asylum application with the U.S. Department of Homeland Security (“DHS”), seeking relief from removal based on her religion and her membership in a particular social group. In an affidavit appended to her application, Niang stated that she is from northern Senegal and is a member of the Toucouleur ethnic group, a group that, as she put it, practices FGM at “an alarming[ly] high rate.” J.A. 87.² Indeed, Niang stated she was subjected to FGM at a young age, causing.her to suffer long-lasting health and psychological problems. Niang further-stated that Fatime’s paternal grandparents have been requesting, in “intimidating and threatening letters,” that Niang take Fatime to Senegal to undergo FGM.³ Moreover, Niang stated Ane is “indifferent” to his parents’ request and “[t]his indifference ... means [Ane] tacitly accept[s] their request.” J.A. 88-89. As a result of Ane’s indifference and his parents’ request, Niang stated she feared that if she were removed to Senegal, her daughter would be forced to undergo FGM there. J.A. 87.

On October 28, 2003, DHS charged Niang with removability, pursuant to 8 U.S.C. § 1227(a)(1)(B), for remaining in the U.S. beyond the time permitted by her non-immigrant visa. In response to this charge, Niang, represented by counsel, appeared before an Immigration Judge (“IJ”) and admitted the charges against her, conceded removability, but sought relief from removal in the form of asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), or, alternatively, voluntary departure.

At a December 7, 2004 hearing on her various requests for relief from removal, Niang testified that she is a citizen of Senegal and a member of both the Mandingo and Toucouleur tribes and that while in the U.S. she gave birth to Fatime and Mohamed, who, at the time of the hearing, were 3 years old and 22 months old, respectively. Initially, Niang testified that Ane lives with her, but later testified that Ane does not live with her, but that “he’s around sometimes.” J.A. 44, 54. She further testified that the Toucouleur tribe is “traditionalist” and continues to practice FGM and that although the Senegalese government has made FGM illegal, “people continue to practice excision in hiding” and she “saw many violations of that law.” J.A. 42. She also testified that in 2002 she read a letter from Fatime’s paternal grandfather asking that Fatime be sent to Senegal to undergo FGM and learned that Ane “agrees with his family.” J.A. 45. Niang’s asylum application was, in part, prompted by this letter.

In support of her application and testimony, Niang submitted (i) medical documents indicating that she had been subjected to FGM and that in December 2000, she suffered from fibroids; (ii) her Senegal passport and her children’s birth certificates; (iii) the June 12, 2002 letter, purportedly from Ane’s father; and (iv) a U.S. Department of State report concerning FGM in Senegal, released June 1, 2001. This report states, inter alia,

(a) that studies estimate between 5% and 20% of the female population has been subjected to FGM;

(b) that up to 88% of “females among the minority Halpularen (Peul and Toucouleur) in rural areas of eastern and southern Senegal practice FGM;” and

(c) that in January 1999, the Senegalese government made FGM illegal, but ' there have been no convictions as of the 2001 report.

J.A. 112-15.

The government also submitted documentary evidence, namely the 2003 Country Report on Human Rights Practices for Senegal, prepared by the U.S. Department of State and released on February 25, 2004. This report states, inter alia,

(a) that FGM is not practiced by the Wolof, the largest ethnic group, constituting 43% of the Senegalese population;

(b) that one of the most extreme forms of FGM is sometimes practiced by the Toucouleur, particularly in rural areas;

(c) that FGM is most prevalent in eastern Senegal;

(d) that FGM is a criminal offense, carrying a jail term of 6 months to 5 years for those practicing FGM or ordering that it be carried out. As of the 2003 report, trials in a 2002 and a 2001 case were still pending;

(e) that the government has established programs to educate women about the dangers of FGM and there are national and local government action plans against FGM; and

(f) that since 1997, 1,031 villages, including 13 in northern Senegal, have prohibited FGM, constituting over 20% of the villages that had previously practiced FGM.

J.A. 64-75.

Following this hearing, the IJ denied all of Niang’s applications for relief and ordered her removed to Senegal. Specifically, the IJ found Niang’s asylum application untimely, as it was filed more than three years after her arrival in the U.S. The IJ also found that circumstances did not warrant tolling. Despite this finding, the IJ went on to address the substance of Niang’s asylum claim and found it merit-less because Niang had not established that she would be persecuted on the basis of any protected ground if removed to Senegal, nor had she established any valid derivative claim given that her daughter, a U.S. citizen, was entitled to remain in the U.S.⁴ The IJ also denied Niang’s claim for withholding of removal based on a fear of persecution for the same reasons, noting correctly that this result follows from the fact that the standard applicable to a withholding claim is more rigorous than the standard applicable to an asylum claim. See Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir.2004). The IJ further concluded that Niang’s CAT claim failed and that she was ineligible for voluntary departure.

Niang appealed the IJ’s decision to the BIA, which affirmed the IJ’s factual findings and specifically concurred with the IJ’s conclusions that Niang’s asylum application was untimely and that Niang had failed to demonstrate either past persecution or a clear probability of future persecution.

Niang now appeals only two aspects of the BIA’s decision, thereby presenting two questions for review: (i) whether Niang can assert a claim for withholding of removal based on the psychological harm she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM; and (ii) whether Niang can assert a “derivative” claim for withholding of removal based on the alleged persecution her daughter will face if she accompanies Niang to Senegal and is there subjected to FGM⁵

II.

At the outset, it is important to note that FGM—a barbaric practice unbecoming of a civilized society—is prohibited by law in this and many other countries, including Senegal.⁶ Accordingly, we and our sister circuits have appropriately recognized that FGM constitutes “persecution” within the meaning of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 eh seq., and thus the threat of FGM may serve as a basis for asylum or withholding of removal claims. See Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir.2006). This settled principle is not at issue here. Instead, the essential question presented in this appeal is whether the record in this case compels reversal of the BIA’s determination that Niang is not eligible for withholding of removal on the grounds she asserts.

The question is appropriately framed in this fashion because an alien asserting a claim for withholding of removal on persecution grounds must show “that it is more likely than not that her life or freedom would be threatened in the proposed country of removal because of her race, religion, nationality, membership in a particular social group, or political opinion.” Haoua, 472 F.3d at 232.⁷ More precisely, an applicant for withholding bears the burden of demonstrating a “clear probability” that she will face persecution in the country of removal. Rusu v. INS, 296 F.3d 316, 324 n. 13 (4th Cir.2002) (citing INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)); see 8 C.F.R. § 1208.16. It follows from these principles that where, as here, the BIA has found that the petitioner has not met this burden, we will affirm the BIA’s determination if it is supported by substantial evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Thus, the IJ’s or the BIA’s factual findings⁸ are “conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been compelled to conclude to the contrary.” Haoua, 472 F.3d at 231 (emphasis added). And significantly, where the “record [] plausibly could support two results: the one the IJ chose and the one [the petitioner] advances,” reversal is only appropriate where the court “find[s] that the evidence not only supports [the opposite] conclusion, but compels it.” Balogun v. Ashcroft, 374 F.3d 492 (7th Cir.2004) (emphasis added) (citing Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812).

In sum then, the specific questions presented, distilled to their essence, are whether the record compels reversal of the BIA’s determinations (i) that Niang cannot assert a claim for withholding of removal based on the psychological harm she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM; and (ii) that Niang cannot assert a “derivative” claim for withholding of removal based on the alleged persecution her daughter will face if she accompanies Niang to Senegal and is there subjected to FGM.

A.

Niang’s first claim for withholding of removal focuses on the psychological harm she claims she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM. This claim fails as a matter of law because it is well-established that “[persecution involves the infliction or threat of death, torture, or injury to one’s person or freedom.” Li v. Gonzales, 405 F.3d 171, 177 (4th Cir.2005) (emphasis added). This settled principle is firmly anchored in the statutory language stating that withholding of removal is warranted where “the alien’s life or freedom would be threatened ...” on the basis of a protected ground. 8 U.S.C. § 1231(b)(3)(A) (emphasis added). Thus, to establish a claim for withholding an applicant cannot rely solely on psychological harm or a threat of such harm to others, but must also establish injury or a threat of injury to the applicant’s person or freedom.⁹ See Osigwe v. Ashcroft, 77 Fed.Appx. 235 (5th Cir.2003) (finding petitioners could not establish an asylum claim “based solely on their daughter’s risk of being subject to FGM if she is returned to Nigeria”).¹⁰ The record reflects that Niang has not met this requirement.

Niang hopes to avoid this conclusion by-relying on Abay v. Ashcroft, 368 F.3d 634 (6th Cir.2004). There, the Sixth Circuit, relying on BIA decisions suggesting a “governing principle” in favor of granting parents refugee status where their child faces physical torture, held that an alien mother was eligible for asylum, in her own right, based upon her fear that her minor daughter, also an asylum applicant, would be forced to undergo FGM if the daughter were removed. Id. at 642. Significantly, Abay is the only federal decision permitting a parent to seek relief, in her own right, based solely on the psychological suffering she will endure if her daughter will be subjected to FGM upon removal. We do not find Abay persuasive here, both because it is factually distinguishable and because psychological harm, without any accompanying physical harm, does not constitute “persecution.” First, Abay is clearly distinguishable because, unlike the asylum applicant in Abay, Niang’s daughter is a U.S. citizen; accordingly, there is no clear probability that Niang’s daughter will be subjected to FGM as she could remain in the U.S., albeit without Niang, and avoid any potential persecution. Second, Abay is unpersuasive because its holding is an unwarranted expansion of the statutory definition of persecution. See 8 U.S.C. § 1231(b)(3)(A); Li v. Gonzales, 405 F.3d at 177.

In sum then, because “persecution” cannot be based on a fear of psychological harm alone, Niang’s withholding claim fails as a matter of law because it focuses solely on the psychological harm she claims she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM. Accordingly, we affirm the BIA’s determination in this respect.

B.

Niang also asserts a “derivative” claim for withholding of removal based on the alleged persecution her daughter will face if she accompanies Niang to Senegal and is there subjected to FGM. While Niang concedes that the INA does not provide for a “derivative” withholding of removal claim,¹¹ she argues that we should nonetheless recognize a derivative claim in this case because of the barbaric nature of FGM. While we have not previously addressed whether such a claim may be asserted, other circuits have done so and declined to recognize this derivative claim. Oforji v. Ashcroft, 354 F.3d 609, 618 (7th Cir.2003) (holding that “[A]n alien parent who has no legal standing to remain in the United States may not establish a derivative claim for asylum by pointing to potential hardship to the alien’s United States citizen child in the event of the alien’s deportation.”); Olowo v. Ashcroft, 368 F.3d 692 (7th Cir.2004) (same); Axmed v. United States AG, 145 Fed.Appx. 669, 675 (11th Cir.2005) (upholding BIA’s decision to deny motion to reopen asylum application, sought because petitioner feared that if she were removed her U.S. citizen daughter would join her and be subjected to FGM, agreeing with circuits declining to find a derivative claim where petitioner’s daughter is a U.S. citizen because “asylum is only available to aliens who are personally at risk”).

The INA compels this result because the statutory text is clear—to establish eligibility for withholding of removal' the alien must demonstrate that “the alien’s life or freedom would be threatened” in the country of removal. 8 U.S.C. § 1231(b)(3) (emphasis added). Thus, the statute permitting withholding of removal does not encompass derivative withholding claims, that is, claims for withholding of removal based on persecution to another person; instead, an alien seeking withholding of removal must establish that they will suffer harm if removed. The one exception to this general rule is provided by § 1229b, which provides that the Attorney General may cancel removal of an alien if the alien (i) has been physically present in the U.S. for ten years or more before seeking cancellation of removal; (ii) has been of good moral character during such period; (iii) has not been convicted of certain statutory offenses; and (iv)' “establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States.” Thus, the INA provides that hardship to U.S. citizen children may be a basis for cancellation of removal in certain specific circumstances not present here. Indeed, Niang’s counsel conceded at oral argument that Niang is not entitled to relief under § 1229b, presumably because she cannot satisfy the ten year physical presence requirement.

As § 1229b does not apply here, Niang may be entitled to relief from'removal only if she satisfies the standard set forth in § 1231, that is, by demonstrating that she will suffer persecution if removed to Senegal. See 8 U.S.C. § 1231(b)(3) (requiring that “the alien’s life or freedom would be threatened” in the country of removal) (emphasis added). She has not done so on this record, choosing instead to rely on the alleged persecution her daughter will face if the daughter accompanies Niang to Senegal. Where, as here, an alien is not eligible for relief under § 1229b, there is simply no statutory or regulatory authority for her to claim withholding of removal based on threatened hardship to her U.S. citizen minor daughter.¹² As Congress has not provided for such a derivative withholding claim, we will not judicially amend the statute to create one.

We are, of course, mindful that the result reached here presents Niang with a heart-wrenching dilemma: either allow Fatime to remain in the U.S. with her father but without her mother, or take Fatime to Senegal where Niang fears Fa-time will be forced to undergo FGM. The tragic nature of this choice is undeniable, but it does not warrant that we recognize a derivative claim where Congress has not seen fit to provide for it.¹³ See Oforji 354 F.3d at 618 (recognizing the difficult choice faced by petitioner, but explaining that “Congress has foreseen such difficult choices, but has opted to leave the choice with the illegal immigrant, not the courts”). Accordingly, consistent with the other circuits that have considered this question, we conclude that Niang may not assert a derivative claim for withholding of removal based on the potential persecution of her U.S. citizen daughter if Niang is removed to Senegal and her daughter accompanies her.¹⁴ See Oforji 354 F.3d 609; Olowo, 368 F.3d 692; Axmed, 145 Fed.Appx. 669.

For the foregoing reasons, we dismiss the petition for review and affirm the BIA’s decision. We do so reluctantly because we recognize that removal places Niang on the horns of a terrible dilemma. While it is entirely reasonable to believe that the law ideally should not present mothers with such dilemmas, the existing law does. Thus, the state of the law and the contents of this record require that we affirm the BIA.

AFFIRMED

1 ."FGM” refers to a group of "surgical procedures involving the removal of some or all of the external genitalia, performed primarily on girls and young women in Africa and Asia.” Haoua v. Gonzales, 472 F.3d 227, fn. 5 (4th Cir.2007). These barbaric surgical procedures constitute an extreme form of child abuse and are an insult to human dignity and an affront to any civilized people. As we have previously noted, FGM is “[ojften performed under unsanitary conditions with highly rudimentary instruments” and results, in the painful, permanent disfigurement of the female genitalia, and exposes victims to a myriad of serious and potentially life-threatening complications. Id. (listing as possible complications: bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to the urethra and anus).

2 . Citations to the "J.A.” refer to the joint appendix filed in this appeal.

3 . Fatime’s maternal grandparents in Senegal do not appear to be a factor in the FGM equation, as Niang reports that they believe a daughter belongs to her father’s family and that Niang "has no right to refuse to have the child circumcised.” If she does refuse, Niang believes "it will be a shame on [Niang’s family] and they will be a target for insults from other members of society.” J.A. 89.

4 . The IJ noted that Niang was not eligible for a grant of humanitarian asylum because the fact that she was subjected to FGM thirty-three years ago was not sufficiently compelling under In re Chen, 20 I. & N. Dec. 16 (BIA 1989), which held that an IJ, in his discretion, may grant asylum in the absence of a well-founded fear of future persecution where an applicant suffered past atrocious forms of persecution. See 8 C.F.R. § 1208.13(b)(1)(iii)(A) (providing that an applicant who demonstrates "compelling reasons for being unwilling or unable to return to the country arising out .of the severity of past persecution,” may be granted discretionary asylum absent a well-founded fear of future persecution).

While Niang did not appeal this decision, it is worth noting that 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. See Osigwe v. Ashcroft, 77 Fed.Appx. 235, 235 (5th Cir.20f3)(remanding to BIA to adjudicate humanitarian asylum claim where applicants claimed their minor daughter, a U.S. citizen, would undergo FGM if they were removed and she accompanied them).

5 . Notably, because Niang does not appeal the BIA's decision with respect to her untimely asylum application, her CAT claim, or her claim for voluntary departure, she has waived these issues. United States v. Al-Hamdi, 356 F.3d 564, 571 n. 8 (4th Cir.2004) (stating that issues not raised on appeal are waived).

It is worth noting that, even assuming Niang had not waived the timeliness issue with respect to her asylum claim, we lack jurisdiction to review the BIA's decision in this respect. 8 U.S.C. § 1158(a)(3); see Balde v. Gonzales, 223 Fed.Appx. 265, 266 (4th Cir.2007) (finding no jurisdiction to review asylum claim denied as untimely); Lin v. Gonzales, 190 Fed.Appx. 301, 305 (4th Cir.2006) (stating where an alien simply challenges “the timeliness of an alien's asylum application [this] is usually a question of fact ... [which] courts of appeal will not have jurisdiction to review").

6 . See 18 U.S.C. § 116 (making the practice of FGM illegal); Senegal Law No. 99-05 of 29 January 1999 Amending Various Provisions of the Penal Code [Art. 2]; Report of the Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 14, U.N. GAOR, 45th Sess., Supp. No. 38 & Corr. 1, at 80, P 438, U.N. Doc. A/45/38 (1990); Declaration on the Elimination of Violence Against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Art. 2(a), U.N. Doc. A/48/629 (1993); Traditional or Customary Practices Affecting the Health of Women and Girls, G.A. Res. 128, U.N. GAOR, 56th Sess., Supp. 49 at 2, U.N. Doc. A/RES/ 56/128 (2001).

7 .In particular, 8 U.S.C. § 1231(b)(3)(A) provides that the "Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.”

8 . Because the BIA affirmed the IJ's order and supplemented it, the factual findings and reasoning contained in both decisions are subject to judicial review. See Haoua, 472 F.3d at 230.

9 . While the dissenting opinion argues that "[t]his holding stands in tension with the BIA’s decision in In re C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997) (en banc),” a review of that decision reveals no such tension. As the dissent points out, C-Y-Z held that a petitioner could apply for asylum on the basis of his spouse’s forced sterilization. Importantly, the BIA reached this holding based on "the enactment of section 601(a) of the IIRIRA [defining refugee] and the agreement of the parties that forced sterilization of one spouse on account of a ground protected under the Act is an act of persecution against the other spouse." Id. at 919. Thus, the BIA's holding was not based on, nor did the BIA even discuss, any alleged psychological harm that would be suffered by the petitioner if his spouse was forced to be sterilized. It appears, then, that C-Y-Z stands for the proposition that the BIA permits a petitioner to support his petition by relying on harm to another person only in the limited context of forced sterilizations; it does not stand for the proposition that the BIA permits petitioners to rely on psychological harm, without physical harm, to establish eligibility for withholding of removal under the INA.

10 .See also Mengistu v. INS, No. 98-2003, 1999 WL 170091, at *2, 1999 U.S.App. LEXIS 5776, at *6 (4th Cir. March 29, 1999) (affirming BIA’s determination where petitioner "[although she may have been verbally abused, she did not offer any evidence of a particular physical assault or other type of assault that could be characterized as an act which would rise to the level of persecution”); Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir.2004) (holding that petitioner's psychological damages, resulting from the "rough treatment” of government authorities and witnessing her father's arrest, did not rise to the level of persecution, noting "[wjhile mental or emotional injury may in part constitute persecution, persecution is an extreme concept.”); but see Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir.2004) ("Persecution may be emotional or psychological, as well as physical.”).

11 . The INA does recognize a derivative asylum claim, thereby granting asylum status to a spouse or child who accompanies an alien who is granted asylum status, even though the spouse or child is not otherwise eligible for asylum. See 8 U.S.C. § 1158(b)(3). As Niang conceded at oral argument, this provision is inapplicable here because, even assuming § 1158(b)(3) extends to withholding claims, the statutory language does not provide a derivative claim to parents of U.S. citizens. See 8 C.F.R. § 207.7(b) (listing parents as ineligible for derivative asylum). This omission may be intended to "prevent wholesale circumvention of the immigration laws by persons who enter the country illegally and promptly have children to avoid deportation.” Hernandez-Rivera v. INS, 630 F.2d 1352, 1356 (9th Cir.1980). While such omission may work a hardship on U.S. citizen children, who may be forced to accompany their parents to the country of removal, we and our sister circuits have held that this hardship is countenanced by the INA and not violative of the children's constitutional rights. Gallanosa v. United States, 785 F.2d 116, 120 (4th Cir.1986).

12 . Cf In re S-L-L, 24 I. & N. Dec. 1, 14 n. 1 (Pauley, concurring) ("While FGM may be a pernicious form of persecution, it is difficult to understand why a fear that it may be performed on another person, albeit one’s child, is a ground for asylum, any more than if a parent had a fear that a child would be singled out for persecution on account of political opinion, race, or religion”) (emphasis in original).

13 . It is worth noting that, in some circumstances, it might be appropriate to remand to the BIA a claim presenting such a Sophie's choice to determine whether it warrants a grant of humanitarian asylum. See Osigwe, 77 Fed.Appx. at 235 (remanding to BIA to adjudicate humanitarian asylum claim where applicants claimed their minor daughter, a U.S. citizen, would undergo FGM if they were removed and she accompanied them). In this case, the IJ considered whether the circumstances warranted humanitarian asylum and decided that they did not. As the humanitarian asylum claim was decided, and as Niang has not appealed that decision, a remand is not appropriate here.

14 . Notably, even assuming Niang could assert a derivative claim, the record does not compel reversal as Niang did not establish a "clear probability” that Fatime would be subjected to FGM if Niang is removed. This is so because (i) Fatime is a U.S. citizen, entitled to remain in the U.S., despite her mother's removal; (ii) beyond Niang's testimony, there is no record evidence that Ane favors FGM; (iii) aside from the 2002 letter, purportedly from Ane's father, there is no evidence of "threatening or demanding letters” from Ane’s family, as Niang testified she received; (iv) there is no clear record evidence that FGM is practiced by the Toucouleur in northern Senegal; and (v) State Department reports indicate FGM is growing less common and "hardly practiced at all in the most heavily populated urban areas;” thus, Niang might protect Fa-time by residing in an urban area.