A-T

Cite as 25 I&N Dec. 4 (BIA 2009) Interim Decision #3644

Matter of A-T-, Respondent

Decided June 4, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Requests for asylum or withholding of removal premised on past persecution related to

female genital mutilation must be adjudicated within the framework set out by the

Attorney General in Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008).

(2) Once past persecution on account of an enumerated ground is shown, a presumption is

triggered that there would be future harm on the basis of the original claim or, in other

words, on account of the same statutory ground.

(3) An applicant for asylum or withholding should clearly indicate what enumerated

ground(s) he or she is relying upon in making a claim, including the exact delineation of

any particular social group to which the applicant claims to belong.

FOR RESPONDENT: Ronald D. Richey, Esquire, Rockville, Maryland

FOR THE DEPARTMENT OF HOMELAND SECURITY: George R. Martin, Appellate

Counsel

BEFORE: Board Panel: OSUNA, Chairman; NEAL, Vice Chairman; HOLMES, Board

Member.

OSUNA, Chairman:

On September 22, 2008, the Attorney General vacated our decision denying

the respondent withholding of removal and remanded the record to the Board

for further proceedings. See Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008)

(vacating in part Matter of A-T-, 24 I&N Dec. 296 (BIA 2007)). We conclude

that the record should be remanded to the Immigration Judge for additional

proceedings and for the entry of a new decision.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mali who was admitted to the

United States as a visitor on October 4, 2000. She applied for asylum in May

2004. The respondent testified that she underwent female genital mutilation

(“FGM”) as a young girl but had no memory of the procedure. She asserted

that she is opposed to FGM and that if she ever had a daughter, she would

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actively oppose having the procedure performed on the child. In August 2003,

the respondent learned that her father had formally arranged for her to marry

her first cousin, and she feared the consequences of refusing to comply with

her family’s wishes. The respondent’s uncle also testified on her behalf.

The Immigration Judge found the respondent barred from asylum because

she did not demonstrate that she filed her asylum application within 1 year of

her arrival in the United States, as required. Further, she did not qualify for an

exception to the filing deadline based on changed circumstances related to

when she learned about the arranged marriage. See 8 C.F.R. § 1208.4(a)(4)

(2005).

The Immigration Judge considered the merits of the respondent’s

requests for withholding of removal and protection under the United Nations

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,

G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States

Apr. 18, 1988) (“Convention Against Torture”). The Immigration Judge found

that the respondent’s past experience with FGM did not qualify her for the

prospective relief of withholding of removal. Further, the Immigration Judge

determined that the respondent did not demonstrate that it was more likely than

not that she would be forced into an arranged marriage against her will and

that she had failed to meet her burden of proof for withholding of removal on

that basis. The Immigration Judge additionally found that the respondent

failed to show that she would more likely than not be tortured if she is returned

to Mali, as was necessary to receive protection under the Convention Against

Torture. The Immigration Judge granted the respondent voluntary departure.

II. DECISIONS OF THE BOARD

The respondent filed an appeal with the Board, which we addressed in a

published decision. See Matter of A-T-, 24 I&N Dec. 296. We found that

even assuming that the respondent was a member of a particular social group

who suffered past persecution, there was no chance that she would be

persecuted again by the same procedure. Any presumption of further FGM

persecution was thus rebutted by the fundamental change in the respondent’s

situation arising from the reprehensible but one-time infliction of FGM upon

her. See id. at 299 (citing 8 C.F.R. § 1208.16(b)(1)(i)(A) (2007)); see also

8 C.F.R. § 1208.13(b)(1) (2007) (addressing the presumption of a

well-founded fear of persecution in asylum cases). We next addressed the

decision of the United States Court of Appeals for the Ninth Circuit in

Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005), which found that FGM

constitutes a continuing harm for purposes of asylum. The court analogized

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the procedure to forced sterilization, which was found to be continuing

persecution and a basis for asylum and withholding by the Board in Matter of

Y-T-L, 23 I&N Dec. 601 (BIA 2003). Although acknowledging that, like

sterilization, FGM had ongoing emotional and physical effects, we disagreed

with the Ninth Circuit’s analysis. We explained that Y-T-L- represented a

unique departure from the ordinarily applicable principles regarding asylum

and withholding of removal. This departure was based on Congress’s decision

to specifically identify sterilization as a basis for refugee status and the fact

that to preclude sterilization victims from asylum would have contradicted

congressional intent. To the contrary, there was no amendment to the refugee

definition addressing victims of FGM or any other specific kind of

persecution.

We upheld the Immigration Judge’s findings that the respondent was barred

from asylum for not timely filing her asylum application and for failing to

establish an exception to this filing deadline.1 We emphasized that the

respondent likely had some awareness that her parents would arrange a

marriage before she learned about the specific arrangement with her cousin,

so this event did not constitute a materially changed circumstance that would

excuse an untimely asylum application. Further, even accepting that the

respondent was not aware of the possibility of arranged marriage until July

2003, she did not establish why 9 months was a “reasonable period” for her to

wait to file her asylum application. See 8 C.F.R. § 1208.4(a)(4)(ii).

We also agreed with the Immigration Judge that the respondent failed

to establish eligibility for withholding of removal based on her arranged

marriage, a situation which is generally not considered per se persecution

when it involves adults. In this case, there was no indication that the

arrangement would result in a disadvantaged position for the respondent

because of the age or economic status of her spouse. Further, there was

insufficient evidence regarding the potential consequences if she refused the

arrangement. We also questioned the visibility aspect of the particular social

group of which the respondent claimed to be a member, which was suggested

to be “young female members of the Bambara tribe who oppose arranged

marriage.” Matter of A-T-, 24 I&N Dec. at 303. Moreover, even if such a

group existed, the respondent failed to establish a clear probability that she

would be persecuted on that basis. Finally, we rejected the respondent’s

apparent argument that her FGM created a presumption of future harm other

1

We noted that, unlike asylum, withholding of removal had no discretionary component

allowing relief based solely on the severity of the past harm. See generally Matter of

S-A-K- & H-A-H-, 24 I&N Dec. 464 (BIA 2008) (holding that applicants subject to past

FGM with aggravated circumstances are eligible for a grant of asylum based on humanitarian

grounds regardless of whether they can establish a well-founded fear of persecution).

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than FGM, including an arranged marriage. We emphasized that in the

respondent’s case, the FGM bore no relationship to the motives behind the

arranged marriage. We also upheld the Immigration Judge’s denial of

protection under the Convention Against Torture.

The respondent subsequently filed a motion to reconsider. On April 14,

2008, we denied the motion in an unpublished decision. We were not

persuaded that we had misapplied the law in evaluating her claim as it related

to FGM. We pointed out that the respondent’s framing of her social group had

shifted since her appeal and that she now presented a much broader group in

arguing that FGM was only one aspect in the lifelong subjugation of women

in her culture. We did not dispute the respondent’s argument that an applicant

could present a successful claim on the theory that FGM is a single type of

harm in a series of injuries inflicted on account of one’s membership in a

particular social group and that an applicant continues to have a well-founded

fear based on the potential for related harm. The record in the respondent’s

case, however, did not support this particular type of claim.

The respondent also challenged our finding that she was ineligible for

asylum. We found her arguments to be without merit and did not disturb our

prior decision on the matter.

III. DECISION OF THE ATTORNEY GENERAL

The Attorney General directed us to refer our decisions in the respondent’s

case for his review. He subsequently vacated our denial of the respondent’s

claim for withholding of removal and remanded the record for reconsideration

of the matter in accordance with his opinion. See Matter of A-T-, 24 I&N Dec.

617.2

The Attorney General found that the Board erred in rejecting the

respondent’s withholding claim on the grounds that FGM cannot occur more

than once, and he pointed out that FGM is capable of repetition. Id. at 621

(citing Matter of S-A-K- & H-A-H-, 24 I&N Dec. 464, 465 (BIA 2008), and

other cases). In light of this factual error, there was no basis for the Board to

conclude that the past infliction of FGM by itself rebuts any presumption of

future FGM.

The Attorney General determined, more broadly, that the Board had

mistakenly focused on whether the future harm to life or freedom that the

respondent feared would take the identical form of the past harm. Rather, the

2

The Attorney General did not review the other aspects of the Board’s decision, and he

declined to review whether asylum or withholding was warranted based on a “continuing

persecution” theory like that extended in Matter of Y-T-L-, 23 I&N Dec. 601. See Matter of

A-T-, 24 I&N Dec. at 620, n.3.

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law only required that once past persecution on account of an enumerated

ground was shown, a presumption was triggered that there would be a threat

to life or freedom “‘on the basis of the original claim’—in other words, on

account of the same statutory ground.” Matter of A-T-, 24 I&N Dec. at 622

(quoting 8 C.F.R. § 1208.16(b)(1)(i)). The respondent’s claim should

therefore not be characterized as FGM persecution; rather, it was a claim of

“persecution on account of membership in a particular (albeit not clearly

defined) social group.” Id. Under this rubric, if the respondent established

past persecution on account of membership in a particular social group, she

was entitled to the regulatory presumption of future harm. It then became the

Government’s burden to show “‘that changed conditions obviate[d] the risk to

life or freedom related to the original claim’— here, persecution on account

of membership in the particular social group—not to show ‘that the particular

act of persecution suffered by the victim in the past will not recur.’” Id. at

622-23 (quoting Bah v. Mukasey, 529 F.3d 99, 115 (2d Cir. 2008)).3

The Attorney General concluded by vacating the Board’s denial of the

respondent’s claim for withholding of removal. He remanded the record for

reconsideration of that claim consistent with his opinion, to include evaluation

of the following issues:

(i) whether respondent is entitled to the presumption described in 8 C.F.R.

§ 1208.16(b)(1)(i) because she has established past persecution on account of

membership in a particular social group (or one of the other grounds enumerated in

the Act and the regulations);

(ii) if so, whether the Government has satisfied or can satisfy its burden under 8 C.F.R

§§ 1208.16(b)(1)(i)(A)-(B) and (ii) of establishing one of the factors that would rebut

the presumption; and

(iii) what effect, if any, the “relatedness” provision in 8 C.F.R. § 1208.16(b)(1)(iii)

has on respondent’s claim for relief.

Id. at 623-24 (footnote omitted).

IV. POSITION OF THE PARTIES ON REMAND

The Board requested that the respondent and the Department of Homeland

Security (“DHS”) submit supplemental briefs on remand, and both parties

3

See also Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007) (rejecting the argument that an

applicant subject to FGM must fear repetition of the exact harm she suffered in the past);

Mohammed v. Gonzales, 400 F.3d 785 (stating that FGM is a form of gender persecution

and that those subject to FGM could be at risk for future harm, including further FGM);

cf. Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003) (stating that because the applicant already

underwent FGM, there was no chance that she would be personally tortured again by the

procedure when sent back to her native country).

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complied with thoughtful filings. The respondent’s initial position is that the

Board should remand the record to the Immigration Judge so that the case can

be further developed in accordance with the principles espoused by the

Attorney General. The respondent contends that there are factual matters that

need to be newly addressed or further developed, such as that of the harm she

will face in the future, including a repeat of FGM. Alternatively, the

respondent requests that withholding of removal be granted based on her past

persecution as a female member of the Bambara tribe and the DHS’s inability

to rebut the resulting presumption of future persecution.

The DHS agrees that a remand is necessary for further findings of fact

before the respondent’s claim can be evaluated in accordance with the

Attorney General’s decision. Because the matter was not consistently

presented below, the DHS requests that on remand the respondent specifically

delineate the particular social group(s) she claims to belong to and declare

whether she is invoking any other enumerated grounds as the basis of her

claim. The DHS also wants the respondent to identify her past persecutor and

state from whom she fears future harm.4 Additionally, the respondent should

address on remand why her FGM amounts to persecution in light of her lack

of memory of the incident. Citing to evidence indicating that not all women

consider FGM to be a persecutory act, the DHS asserts that the act of applying

for asylum itself should not be enough to establish whether unremembered

FGM constitutes persecution. Rather, the specific circumstances of each case

must be considered. The DHS acknowledges the difficult and sensitive nature

of this matter and states that where an alien has experienced FGM as a young

child and cannot recall the incident as an adult, “subsequent views about

the FGM held by the alien, when she is able to form such views, may, in

appropriate circumstances, be deemed sufficiently pertinent and persuasive to

establish whether she experienced the FGM as persecution.”

V. ANALYSIS

We agree with the parties that, at this juncture, the record should be

remanded for further fact-finding and for the parties and the Immigration

Judge to readdress the respondent’s withholding claim in light of the

framework set out by the Attorney General in Matter of A-T-, 24 I&N Dec.

617. See 8 C.F.R. § 1003.1(d)(3)(iv) (2009) (stating that the Board may not

engage in fact-finding in the course of deciding appeals, except for taking

4

As noted by the DHS, just as the method of future persecution need not be identical to the

method of past persecution under the regulations setting forth a presumption of future

persecution, the specific agent of future persecution need not necessarily be identical to the

specific agent of past persecution.

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administrative notice of commonly known facts). On remand, the parties may

present additional evidence to support their positions on the respondent’s

eligibility for withholding of removal.5

It is essential that the respondent clearly indicate on remand what

enumerated ground(s) she is relying upon in making her claim, including the

exact delineation of any particular social group(s) to which she claims to

belong. See Matter of A-T-, 24 I&N Dec. at 623, n.7 (discussing the

importance of establishing the “on account of” element in asylum and

withholding claims and explaining that it is the applicant’s burden to initially

identify the particular social group or groups in which membership is claimed);

see also id. at n.6. This is an issue that has not been consistently presented by

the respondent in these proceedings, and this alone precludes us from resolving

her case on the record now before us.6 Similarly, the respondent should

identify, to the extent possible, who was responsible for her past persecution

and, if necessary, from whom she fears future harm. In this regard, we agree

with the DHS that the respondent’s claim does not fail because her past and

future persecutors are not identical. See infra n.4. Further, if the respondent

cannot identify the particular persons who inflicted her past FGM, this should

not serve as a barrier to her claim.

The DHS requests that the respondent present evidence on remand as to

why her past FGM rises to the level of persecution, because she does not

remember the event and her application alone should not be enough to

establish that she views FGM as a persecutory action. The deplorable and

extremely harmful nature of FGM has been long recognized by this Board and

the Federal courts. See, e.g., Matter of S-A-K- & H-A-H-, 24 I&N Dec. 464;

Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996); see also Bah v. Mukasey,

529 F.3d 99; Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007); Barry

v. Gonzales, 445 F.3d 741 (4th Cir. 2006); Mohammed v. Gonzales, 400 F.3d

785. In this case, the respondent presented unchallenged evidence to establish

that she was subject to a severe form of FGM. It is difficult to think of a

situation, short of a claimant asserting that she did not consider FGM to be

persecution, where the type of FGM suffered by the respondent, at any age,

would not rise to the level of persecution. In any event, the respondent

has submitted more than just an asylum application to establish her

5

This includes evidence about whether the respondent faces further risk of FGM upon return

to Mali. See Matter of A-T-, 24 I&N Dec. at 621 (stating that FGM is “indeed capable of

repetition”); see also Bah v. Mukasey, 529 F.3d at 114.

6

For example, the nexus element must be established before it can be determined whether

any presumption of future harm is triggered or whether the respondent’s fear of forced

marriage is on account of the same enumerated ground as any past persecution.

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opposition to FGM, as she expressed her opposition to the practice before the

Immigration Court.7 Therefore, we do not think that this aspect of the

respondent’s claim needs to be further developed below.

If the respondent meets her burden of showing that her past persecution

was on account of an enumerated ground, the burden will then shift to the

Government to establish by a preponderance of the evidence that (1) there has

been a fundamental change in circumstances such that the respondent’s life or

freedom would not be threatened on account of any of the five enumerated

grounds for persecution; or (2) the respondent could avoid a future threat to

her life or freedom by relocating to another part of the country of removal, and

under all circumstances, it would be reasonable to expect her to do so. See

8 C.F.R. § 1208.16(b)(1)(i); see also Matter of D-I-M-, 24 I&N Dec. 448 (BIA

2008) (discussing burden shifting upon establishment of past persecution).

The findings made by the Immigration Judge on this matter, as well as in all

other aspects of the respondent’s case, are to be made in accordance with the

Attorney General’s guidance in Matter of A-T-, 24 I&N Dec. 617.8

VI. CONCLUSION

In accordance with the position of the parties, the record will be remanded

for further proceedings to address the respondent’s request for withholding of

removal. Our findings that the respondent’s asylum application is time barred

and that she was not eligible for protection under the Convention Against

Torture were not disturbed by the Attorney General. We accordingly

incorporate our findings on those issues as set forth in our decisions denying

the respondent’s appeal and motion to reconsider, and we will not revisit them

at this time. We also find no reason at this juncture to readdress the issue

whether a “continuing persecution” theory, like that employed in Matter of

Y-T-L-, 23 I&N Dec. 601, should be utilized outside of the context of coerced

family planning.

ORDER: The record is remanded for further proceedings consistent with

the foregoing opinion and for the entry of a new decision.

7

We note that the Immigration Judge limited the respondent’s testimony about the physical

consequences of her FGM. The respondent did, however, provide some details in her

asylum application.

8

The Attorney General inquired in Matter of A-T- as to the effect, if any, the relatedness

provision in 8 C.F.R. § 1208.16(b)(1)(iii) has on the respondent’s claim. This provision will

come into play if the respondent does not establish past persecution on account of an

enumerated ground and therefore fails to trigger the presumption of future persecution, or

if the presumption is triggered but is successfully rebutted by the DHS. See generally Matter

of D-I-M-, 24 I&N Dec. at 450; Matter of N-M-A, 22 I&N Dec. 312 (BIA 1998).

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