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

> Court of Appeals for the Ninth Circuit · December 30, 2005 · 432 F.3d 1037

URL: https://www.frixlaw.com/law-library/cases/9498582

## Case

- **Full name:** Almaz Sayoum ABEBE; Sisay Mengistu, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** December 30, 2005
- **Citations:** 432 F.3d 1037; 2005 U.S. App. LEXIS 29009; 2005 WL 3556910
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tallman
- **Judges:** Schroeder, Kozinski, Rymer, Thomas, Fletcher, Paez, Berzon, Tallman, Clifton, Bybee, Callahan
- **Cited by:** 403 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498582

## How later opinions describe it (automated extraction)

- explaining that a Matter of Burbano citation “signif[ies] that [the BIA] ha[s] conducted an independent review of the record and ha[s] exercised its own discretion in determining that its conclusions were the same as those articulated by the IJ”
- explaining that a summary affirmance “signif[ies] that [the BIA] ha[s] conducted an independent review of the record and ha[s] exercised its own discretion in determining that its conclusions were the same as those articulated by the IJ”
- holding that an issue was sufficiently exhausted even though it was mentioned only in one sentence of the facts section of the petitioner’s BIA brief, because the BIA’s opinion indicated that it had reached the issue
- holding that “[w]hen 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”
- stating that a Burbano affirmance signifies that the BIA has conducted an independent review of the record and has determined that its conclusions are the same as those articulated by the IJ

## Opinion text

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 “[fjailure 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 intervention.” Ladha v. INS, 215 F.3d 889, 903 (9th Cir. 2000) (alteration in original) (quoting Sagennark 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 testimony and written evidence, [Petitioners] met their burden of proving that Mr. Mengistu had a well-founded fear of persecution 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 parents’ homeland. The Petitioners have no direct claim to asylum based on FGM. Since “[n]otices of appeal are filed directly with the BIA, and the regulations specifically contemplate that supporting briefs are not required to be filed by a party ..., the notice of appeal is of great importance in raising 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. Ashcroft, 388 F.3d 713, 721 (9th Cir.2004) (per curiam) (holding that *1046 petitioner had exhausted his claim by “explicitly mention[ing] in his brief to the BIA that he was requesting reversal 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 note; it did not provide notice to the BIA that the Petitioners sought to challenge the IJ’s decision with regard to the possibility 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 jurisdiction 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 concluding remarks in their BIA brief where, again with the assistance of their lawyer, they addressed only the IJ’s decision on political asylum:
Mr. Mengistu’s actual political beliefs and activities, 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 persecution if he returns to Ethiopia. By the same token, these factors establish a clear probability of persecution if he returns to Ethiopia.
Therefore, the Immigration Judge’s decision denying Respondents’ applications for asylum and withholding 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 possibility of persecution of their daughter because of FGM, or their entitlement to derivative asylum as a result of this possibility, 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 affirmance 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 decision when only parts of that decision are appealed. See Mabugat v. INS, 937 F.2d 426 , 430 & n. 2 (9th Cir. 1991) (reviewing the IJ’s decision because the “[BIA] appeared] to have adopted (or at least relied upon) the immigration *1047 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 previously (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 -OS.
In Matter of Burbano, the BIA emphasized that when reviewing the “discretionary determination by an immigration judge, [it] reifies] 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 decision.” Id. at 874 (emphasis added). Therefore, depending 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 decision 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 abandoned 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 hot 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 burden 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 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 challenge to the IJ’s decision to deny asylum to the father based on political persecution. Given that the deriv *1048 ative FGM claim was not preserved on appeal, the BIA’s issuance of a Burbano affirmance does not signify its agreement with the Id’s decision 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 reaching] 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 entitled 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 cannot 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 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 daughter. 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 rebuttable presumption of a well-founded fear of future persecution if “the applicant can establish that he or she has suffered persecution in the past”); id. § 1208.13(b)(l)(i)(A) (stating that the government can overcome that presumption if it establishes “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)(h) (hmiting eligibility if “the applicant e[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 *1049 right to remain in the United States, “deportation of [her] parents would result in [her] being ‘constructively 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 application of the parents). In this case, there is no threat of “constructive 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.
Ill
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-IIRIRA 3 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] 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 Congress 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 suspension to those who remained in the United States continuously 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 *1050 no legislative power to create a new exception, much less impose such a new exception on the BIA by remanding the application for asylum. Doing so implicitly gives judicial imprimatur to the legitimacy 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 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 authority within the statutes or the regulations permitting the Attorney General to exercise any discretion to grant derivative asylum to alien parents based on the persecution of the Petitioners’ child, who is a United States citizen.
IV
If we reach the merits by ignoring the procedural jurisdictional default, the petition must still be denied. Because the Petitioners cannot meet the eligibility criteria clearly delineated 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 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (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 automatically 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.
. 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 pursued this issue on appeal, they surely would have discussed the statistics and/or reports upon which the majority now relies. Instead, the only reference to FGM in the thirteen-page brief is the following: "Further, [Petitioners] submitted written and testimonial evidence regarding their fear that their daughter, Amen Mengistu, bom in the United States on May 15, 1996, would be subjected to female genital mutilation if [they] are forced to return to Ethiopia." By stating at page 1040 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.
. I agree there was no sufficient showing on the political persecution claim.
. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498582. Public record. Not legal advice.