Abebe v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALMAZ SAYOUM ABEBE; SISAY 

MENGISTU, No. 02-72390

Petitioners, Agency Nos.

v.  A72-693-580

ALBERTO R. GONZALES, Attorney A72-693-581

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 21, 2005—San Francisco, California

Filed December 30, 2005

Before: Mary M. Schroeder, Chief Judge, Alex Kozinski,

Pamela Ann Rymer, Sidney R. Thomas, William A. Fletcher,

Richard A. Paez, Marsha S. Berzon, Richard C. Tallman,

Richard R. Clifton, Jay S. Bybee, and Consuelo M. Callahan,

Circuit Judges.

Opinion by Judge Clifton;

Partial Concurrence and Partial Dissent by Judge Tallman

16859

16862 ABEBE v. GONZALES

COUNSEL

Philip Hornik (argued), Portland, Oregon; Karen Musalo

(argued), Stephen Knight, and Tala Hartsough, Center for

Gender and Refugee Studies, University of California Has-

tings College of Law, San Francisco, California, for the peti-

tioners.

Peter D. Keisler, Assistant Attorney General, Donald E.

Keener, Deputy Director and Alison R. Drucker, Senior Liti-

gation Counsel (argued), United States Department of Justice,

Washington, D.C., for the respondent.

ABEBE v. GONZALES 16863

OPINION

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 Immigra-

tion 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. Petition-

ers 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 persecu-

tion 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 sub-

jected 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-1 student visa that required him to return to Ethi-

opia 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

1

Technically, Mr. Mengistu filed the application and listed Ms. Abebe

as a derivative applicant.

16864 ABEBE v. GONZALES

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’ applica-

tion 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 persecu-

tion 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 rehear-

ing en banc, vacating the prior decision of the three-judge

panel.

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 rudi-

mentary instruments, female genital mutilation is extremely pain-

ful, 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).

ABEBE v. GONZALES 16865

II. STANDARD OF REVIEW

Keeping in mind that when “the BIA adopt[s] 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 evi-

dence on the record considered 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. Babal-

lah 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 state-

ment of facts, stated: “Further, [Petitioners] submitted written

and testimonial evidence regarding their fear that their daugh-

ter, Amen Mengistu, born in the United States on May 15,

1996, would be subjected to female genital mutilation if

Respondents 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.

16866 ABEBE v. GONZALES

Instead, the argument focused solely on the political activities

ground.

Making clear that it had reviewed the entire record, how-

ever, the BIA did not limit its decision to address only Peti-

tioners’ 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 con-

sider 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 exer-

cised 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 deci-

sion 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

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

ABEBE v. GONZALES 16867

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. Ash-

croft, 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 Peti-

tioners’ political persecution argument. The IJ’s decision dis-

cussed 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.

[1] 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 argu-

ment was procedurally defective. It did not.5 The BIA is pre-

sumably 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

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.

16868 ABEBE v. GONZALES

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 (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 (1962)). The BIA’s

express adoption of the IJ’s decision which explicitly dis-

cussed the FGM ground is “enough to convince us that the

relevant policy concerns underlying the exhaustion require-

ment — 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.”

Sagermark 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

[2] Eligibility for asylum is established when an alien dem-

onstrates that he is “unable or unwilling to return to the coun-

try of origin ‘because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, member-

ship 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 (1987).

[3] It is well-settled that FGM constitutes persecution suffi-

cient to warrant a grant of asylum. See Matter of Kasinga, 21

ABEBE v. GONZALES 16869

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.

[4] 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 Ethi-

opia. The proper standard, however, is not whether the perse-

cution feared is “likely to be a threat.” Instead, as noted

above, the Supreme Court held in Cardoza-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.

[5] 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 testi-

16870 ABEBE v. GONZALES

fied 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.

[6] Documentary evidence in the record supported Petition-

ers’ 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

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 Depart-

ABEBE v. GONZALES 16871

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

“[a]lmost 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 infibula-

tion, the most extreme and dangerous form of FGM, can

occur any time between the age of 8 and the onset of puber-

ty.”

The State Department Report for 1994, at 5, indicated that

“[m]ost Ethiopian females have undergone some form of gen-

ital 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 pre-

vent 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 Ethi-

opia.

[7] 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 argu-

ment 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

ment’s Ethiopia: County Reports on Human Rights Practices — 2004,

available at http://www.state.gov/g/drl/rls/hrrpt/2004/41603.htm (last vis-

ited 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”).

16872 ABEBE v. GONZALES

because the denial of asylum was not based on substantial evi-

dence).

[8] We do not reach the issue of whether Petitioners, par-

ents 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. Ventura v. INS, 537 U.S. 12,

17 (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’ testi-

mony 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 Peti-

tioners’ political persecution argument was supported by sub-

stantial evidence.

To put Petitioners’ political persecution argument into con-

text, 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

7

The dissenting opinion describes this result as treading “boldly.” Dis-

sent at 16884. 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 pro-

poses to consider grounds not relied upon by the BIA or argued by the

government in order to deny the petition.

ABEBE v. GONZALES 16873

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 sup-

porters. 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 him-

self 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 sug-

gested 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 gov-

ernment would assume that Mr. Mengistu was a Derg sup-

porter 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. Mengis-

tu’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 sim-

16874 ABEBE v. GONZALES

ply 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.

[9] The fact that Petitioner is a member of Medhin, how-

ever, 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 Med-

hin. See Singh v. INS, 134 F.3d 962, 968 (9th Cir. 1998)

(explaining that when there is no evidence of significant phys-

ical violence or specific threats of serious harm, we are

unlikely to find persecution). Thus, we conclude that substan-

tial 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.

ABEBE v. GONZALES 16875

PETITION FOR REVIEW GRANTED; REMANDED

WITH INSTRUCTIONS.

TALLMAN, Circuit Judge, with whom Judges KOZINSKI,

RYMER, BYBEE, and CALLAHAN join, dissenting in part

and concurring in part:

I

I respectfully dissent. The Petitioners failed to adequately

raise the Female Genital Mutilation (FGM) issue in their

appeal to the Board of Immigration Appeals (BIA). It remains

administratively unexhausted and I would dismiss the petition

for lack of subject matter jurisdiction. See 8 U.S.C.

§ 1252(d)(1); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.

2004) (holding that the “[f]ailure to raise an issue in an appeal

to the BIA constitutes a failure to exhaust remedies with

respect to that question and deprives this court of jurisdiction

to hear the matter” (alteration in original) (quoting Vargas v.

United States Dep’t of Imm. & Nat., 831 F.2d 906, 907-08

(9th Cir. 1987))). By neglecting to raise the FGM issue in

their counseled Notice of Appeal, or to challenge the decision

of the Immigration Judge (IJ) within their counseled brief to

the BIA, the Petitioners did not put the BIA on notice of their

claim or give the agency “a full opportunity to resolve [the]

controversy or correct its own errors before judicial interven-

tion.” Ladha v. INS, 215 F.3d 889, 903 (9th Cir. 2000) (alter-

ation in original) (quoting Sagermark v. INS, 767 F.2d 645,

648 (9th Cir. 1985)).

The Petitioners referred only to the IJ’s decision denying

asylum on grounds of political persecution in their Notice of

Appeal to the BIA. Specifically, the Petitioners argued that

the IJ’s decision was in error because “[t]hrough their testi-

mony and written evidence, [Petitioners] met their burden of

proving that Mr. Mengistu had a well-founded fear of perse-

16876 ABEBE v. GONZALES

cution due to his actual and imputed political opinion.” They

made no mention of FGM, their daughter’s fear of FGM, or

the likelihood that their daughter would be ostracized for not

undergoing FGM. Nor did the Petitioners alert the BIA to the

fact that they sought derivative asylum through their daughter,

who allegedly fears persecution if forced to travel to her par-

ents’ homeland. The Petitioners have no direct claim to asy-

lum based on FGM. Since “[n]otices of appeal are filed

directly with the BIA, and the regulations specifically con-

template that supporting briefs are not required to be filed by

a party . . . , the notice of appeal is of great importance in rais-

ing claims before the BIA.” Ladha, 215 F.3d at 903 (internal

citations omitted).

A party who fails to raise an issue in the Notice of Appeal

may still exhaust his administrative remedies by adequately

addressing the issue within his brief to the BIA. Zhang v. Ash-

croft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam) (holding

that petitioner had exhausted his claim by “explicitly men-

tion[ing] in his brief to the BIA that he was requesting rever-

sal of the IJ’s denial of relief under the Convention Against

Torture”); see also Ladha, 215 F.3d at 901 n.13 (finding

exhaustion when the IJ considered and rejected a claim and

the party challenged “this very aspect of the IJ’s opinion”

within its brief before the BIA). The Petitioners failed to meet

this standard as well. The Notice of Appeal says nothing

about FGM. The only reference to FGM in the brief to the

BIA is a general, one-sentence proclamation buried within the

fact section.1 This summary statement served only as a side

1

Although the majority quotes that statement verbatim, see maj. op.

16865, I find it necessary to produce it again here in order to demonstrate

the matter-of-fact approach taken by the Petitioners. Had they truly pur-

sued this issue on appeal, they surely would have discussed the statistics

and/or reports upon which the majority now relies. Instead, the only refer-

ence to FGM in the thirteen-page brief is the following: “Further, [Peti-

tioners] submitted written and testimonial evidence regarding their fear

that their daughter, Amen Mengistu, born in the United States on May 15,

ABEBE v. GONZALES 16877

note; it did not provide notice to the BIA that the Petitioners

sought to challenge the IJ’s decision with regard to the possi-

bility of FGM being forced by Ethiopian culture upon the

Petitioners’ American-born daughter. See Zara, 383 F.3d at

930 (dismissing the petition for lack of subject matter juris-

diction because a general challenge to the IJ’s decision is

insufficient to satisfy the exhaustion requirement).

The absence of notice is further evidenced by the conclud-

ing remarks in their BIA brief where, again with the assis-

tance of their lawyer, they addressed only the IJ’s decision on

political asylum:

Mr. Mengistu’s actual political beliefs and activi-

ties, as well as those that will be imputed to him

because of his DERG-funded education abroad and

his parents’ political activities on behalf of the

DERG, give rise to a well[-]founded fear of persecu-

tion if he returns to Ethiopia. By the same token,

these factors establish a clear probability of persecu-

tion if he returns to Ethiopia.

Therefore, the Immigration Judge’s decision deny-

ing Respondents’ applications for asylum and with-

holding was erroneous and should be reversed.

Clearly, Petitioners sought review only of the IJ’s asylum

decision as it pertained to the father on political persecution

grounds. They raised no substantive argument as to the possi-

bility of persecution of their daughter because of FGM, or

their entitlement to derivative asylum as a result of this possi-

1996, would be subjected to female genital mutilation if [they] are forced

to return to Ethiopia.” By stating at page 16872 of the majority opinion

“[t]hat [this] was not a ground relied upon or even discussed by the IJ or

the BIA in this case,” the majority concedes that the issue was not

exhausted below. We have no jurisdiction to consider the issue or even to

remand it back to the agency.

16878 ABEBE v. GONZALES

bility, and, consequently, the BIA did not have an opportunity

to resolve the controversy or correct its own alleged errors.

We cannot intervene in the administrative process if the BIA

was not first given such an opportunity; therefore, we do not

have jurisdiction over the FGM claim.

The BIA’s issuance of a Burbano affirmance does not

change this analysis or the necessary result. A Burbano affir-

mance signals only that the BIA has adopted the IJ’s decision

as it pertains to those issues adequately raised on appeal; it

does not equate to a blanket acceptance of the IJ’s entire deci-

sion when only parts of that decision are appealed. See Mabu-

gat v. INS, 937 F.2d 426, 430 & n.2 (9th Cir. 1991)

(reviewing the IJ’s decision because the “[BIA] appear[ed] to

have adopted (or at least relied upon) the immigration judge’s

findings and conclusions to make its decision” but dismissing

the arguments that the petitioner failed to raise before the

BIA). In contrast, the majority opinion unjustifiably expands

the scope of a Burbano affirmance beyond the issues actually

raised on appeal to all issues decided by the IJ. The result can

only be to encourage shifting theories on appeal when previ-

ously (and properly) presented issues are rejected. We have an

entire body of immigration jurisprudence that requires issues

to be fully and squarely presented below. See Zara, 383 F.3d

at 930; Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004);

Cortez-Acosta v. INS, 234 F.3d 476, 480 (9th Cir. 2000) (per

curiam); Mabugat, 937 F.2d at 430; Vargas, 831 F.2d at 907-

08.

In Matter of Burbano, the BIA emphasized that when

reviewing the “discretionary determination by an immigration

judge, [it] rel[ies] upon [its] own independent judgment in

deciding the ultimate disposition of the case.” 20 I. & N. Dec.

872, 873 (BIA 1994). However, this independent review

“does not preclude the [BIA] from adopting or affirming a

decision of the immigration judge, in whole or in part, when

[it is] in agreement with the reasoning and result of that deci-

sion.” Id. at 874 (emphasis added). Therefore, depending

ABEBE v. GONZALES 16879

upon the issues raised on appeal, the BIA may agree with the

IJ’s decision in its entirety, or it may agree with the IJ’s deci-

sion only as to the issues relevant to deciding the appeal.

The flaw in the majority’s decision can be illustrated by the

very case on which it relies, Tchoukhrova v. Gonzales, 404

F.3d 1181 (9th Cir. 2005). In Tchoukhrova, the IJ determined

that the petitioners had failed to establish past persecution or

a well-founded fear of future persecution and, therefore,

denied both the application for asylum and the claim for relief

under the Convention Against Torture. Id. at 1187. On appeal,

the petitioners pursued only their asylum claim, and aban-

doned their Convention Against Torture claim. Id. at 1187

n.2. The BIA upheld the IJ’s decision through a Burbano

affirmance. The Tchoukhrova court explained that it was

going to review the IJ’s decision as if it were that of the BIA.

Id. at 1188. The court reasoned that “[w]hen the BIA does not

express any disagreement with any part of the immigration

judge’s decision, but instead cites Burbano, the BIA adopts

his decision in its entirety.” Id. If this were true, the BIA not

only adopted the IJ’s decision on asylum, but also his decision

on the Convention Against Torture claim. This conclusion is

unjustified given the BIA’s express acknowledgment that the

Tchoukhrovs had abandoned the claim on appeal. In any

event, because we are sitting en banc, we are not bound by

Tchoukhrova, and I would overrule Tchoukhrova on this

point.

The burden is not on the BIA to expressly delineate what

is and what is not being considered on appeal; rather, the bur-

den is on the petitioner to “specify which issues form the

basis of the appeal.” Zara, 383 F.3d at 930; see, e.g., Cortez-

Acosta, 234 F.3d at 480 (dismissing petitioner’s arguments

regarding domicile and due process because he had failed to

address those issues in his appeal to the BIA). Then, when

deciding those issues pursued on appeal, if the BIA does not

agree fully with the IJ’s decision as to those particular issues,

the “BIA can and should specifically state that it is so limiting

16880 ABEBE v. GONZALES

its opinion.” Maj. op. at 16866. However, the BIA is not

required to specify whether it agrees with irrelevant parts of

the IJ’s reasoning.

In this case, the only issue pressed on appeal was a chal-

lenge to the IJ’s decision to deny asylum to the father based

on political persecution. Given that the derivative FGM claim

was not preserved on appeal, the BIA’s issuance of a Burbano

affirmance does not signify its agreement with the IJ’s deci-

sion on that issue. The BIA was never asked to review it.

Consequently, we must dismiss this newly minted appellate

issue for lack of subject matter jurisdiction.2

II

Even if we had jurisdiction to reach the merits, there is a

fatal flaw in the majority’s analysis. The majority says that it

is “not reach[ing] 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.” Maj. op.

at 16872. However, by sleight of hand in remanding the entire

petition back to the BIA, the majority implicitly assumes that

parents of a United States citizen child are nonetheless enti-

tled to claim derivative asylum relief based on the possibility

that their citizen child would be subjected to FGM. In so

assuming, the majority’s remand is illusory. Although the

practice of FGM is considered persecution under our law,

there is no threat here since a United States citizen child can-

not be deported to the country of her parents’ birth, and the

parents cannot claim an unrecognized form of derivative relief

when they themselves cannot establish entitlement to asylum.

By usurping the prerogative of Congress, which alone has the

power to create a new basis for cancellation of removal, the

majority violates the separation of powers doctrine and

creates an unnecessary conflict with the Seventh Circuit. See

2

I agree there was no sufficient showing on the political persecution

claim.

ABEBE v. GONZALES 16881

Oforji v. Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003) (holding

that an alien parent “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”).

Like the petitioner in Oforji, Mr. and Mrs. Mengistu are

seeking derivative entitlement to asylum through their daugh-

ter. See id. at 615 (stating that Oforji requested the Seventh

Circuit to extend derivative asylum to her based on the fear

that her daughter, a United States citizen, would be subjected

to FGM). The Oforji court noted that there is no authority for

granting such a derivative asylum claim. The statutory and

regulatory provisions governing asylum make it applicant

specific. See 8 U.S.C. § 1101(a)(42)(A) (defining a refugee to

be a person unwilling or unable to return to his or her native

country because of persecution or a well-founded fear of

future persecution); 8 C.F.R. § 1208.13(b) (“The applicant

may qualify as a refugee either because he or she has suffered

past persecution or because he or she has a well-founded fear

of future persecution.”); id. § 1208.13(b)(1) (creating a rebut-

table presumption of a well-founded fear of future persecution

if “the applicant can establish that he or she has suffered per-

secution in the past”); id. § 1208.13(b)(1)(i)(A) (stating that

the government can overcome that presumption if it estab-

lishes “that the applicant no longer has a well-founded fear of

persecution”); id. § 1208.13(b)(2)(i)(A)-(C) (defining a “well-

founded fear of persecution” in terms of fear of the applicant);

id. § 1208.13(b)(2)(ii) (limiting eligibility if “the applicant

c[an] avoid persecution by relocating to another part of the

applicant’s country”).

Moreover, the concept of “constructive deportation” should

not apply here because the Petitioners’ daughter, a United

States citizen, has a legal right to remain in this country. As

the Seventh Circuit recognized in Oforji, deportation when

minor aliens are involved raises a separate issue. Because a

minor alien has no legal right to remain in the United States,

“deportation of [her] parents would result in [her] being ‘con-

16882 ABEBE v. GONZALES

structively deported.’ ” Oforji, 354 F.3d at 616 (quoting

Salameda v. INS, 70 F.3d 447, 451 (7th Cir. 1995)). Thus,

when addressing the parents’ application for asylum, it is

proper to consider not only the potential persecution the child

may face, but also any hardship to the alien child due to the

deportation of her parents. Id. (reasoning that because the

minor alien is not the target of deportation, any hardship that

the minor alien may face must be considered in the applica-

tion of the parents). In this case, there is no threat of “con-

structive deportation.” Because the Petitioners’ daughter has

a legal right to remain in the United States as an American-

born United States citizen, Congress has provided no statutory

exception to consider the hardship she may face due to the

deportation of her alien parents.

III

Congress has considered similar situations, and while it has

chosen to grant relief in some circumstances, those provisions

do not apply in this case. Since the Petitioners’ deportation

proceedings began on January 10, 1996, they are governed by

pre-IIRIRA3 law. See Romero-Torres v. Ashcroft, 327 F.3d

887, 888 n.3 (9th Cir. 2003). Under the pre-IIRIRA rules

regarding the suspension of deportation, the Attorney General

may cancel deportation of a deportable alien who meets all of

the following criteria:

[1] has been physically present in the United States

for a continuous period of not less than seven years

immediately preceding the date of such application;

...

[2] proves that during all of such period he was

and is a person of good moral character; and

3

Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208, 110 Stat. 3009.

ABEBE v. GONZALES 16883

[3] is a person whose deportation would, in the

opinion of the Attorney General, result in extreme

hardship to the alien or to his spouse, parent, or

child, who is a citizen of the United States or an

alien lawfully admitted for permanent residence.

Immigration and Nationality Act, § 244(a)(1), 8 U.S.C.

§ 1254(a)(1) (repealed 1996).

Congress recognized that there may be situations where the

deportation of a parent may cause undue hardship to family

members who are able to remain in the United States due to

their citizenship. However, when it crafted its limited relief,

Congress sought to keep separate a citizen child’s right to stay

in the United States from the alien mother’s obligation to

depart. Oforji, 354 F.3d at 618. Congress did not want to

create an incentive for an otherwise deportable alien to bear

a child who would automatically become a citizen. Id. This

policy decision is illustrated by the time requirements Con-

gress built into the statute. “[T]he continuous presence

requirement for suspension of deportation . . . demonstrates

that Congress considered the possibility of hardships to the

family members of aliens not meeting the requirements for

suspension of deportation, but limited the possibility of sus-

pension to those who remained in the United States continu-

ously for [seven] years.” Id. at 617. At the time their

deportation proceedings commenced, the Petitioners had not

satisfied the continuous presence requirement. Consequently,

they may not claim an unrecognized exception to deportation

under this statute. Our Court has no legislative power to

create a new exception, much less impose such a new excep-

tion on the BIA by remanding the application for asylum.

Doing so implicitly gives judicial imprimatur to the legiti-

macy of a parental derivative asylum claim.

The Petitioners claim that they have a well-founded fear of

persecution because their daughter likely would be subjected

to FGM should they be forced to return to Ethiopia. In the

16884 ABEBE v. GONZALES

alternative, they claim that even if they are able to protect

their daughter from FGM, she would still face persecution

because she would be ostracized by their family and the rest

of society. For the reasons discussed above, under current

United States immigration law, their claims must fail. The

Petitioners do not personally fear FGM and there is no author-

ity within the statutes or the regulations permitting the Attor-

ney General to exercise any discretion to grant derivative

asylum to alien parents based on the persecution of the Peti-

tioners’ child, who is a United States citizen.

IV

If we reach the merits by ignoring the procedural jurisdic-

tional default, the petition must still be denied. Because the

Petitioners cannot meet the eligibility criteria clearly delin-

eated by Congress for asylum or the remedy of cancellation

of removal, remand is not appropriate. See Chevron U.S.A.

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43

(1984) (“If the intent of Congress is clear, that is the end of

the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.”);

see also He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003)

(declining to issue a remand when the applicant was automati-

cally eligible for asylum and statutory interpretation was

unnecessary). Because the law does not permit us to go where

the majority so boldly wishes to tread, I respectfully dissent.