Maguette Faye v. Eric H. Holder, Jr., Attorney General

United States Court of Appeals
For the First Circuit
No. 09-1229
MAGUETTE FAYE,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
David L. Yavner on brief for petitioner.
John D. Williams, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Civil Division,
and Russell J. E. Verby, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.
September 2, 2009

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LYNCH, Chief Judge. Maguette Faye, of Senegal, petitions
for review of the Board of Immigration Appeals's ("BIA") denial of
her application for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"). We deny her
petition.
I.
Maguette Faye entered the United States on October 22,
2000, on a six-month tourist visa, which she overstayed.
Immigration authorities issued a Notice to Appear on July 10, 2003.
Faye admitted the facts in the Notice to Appear, and the
Immigration Judge ("IJ") found her removable.
Faye filed for asylum on January 18, 2005, after the one-
year filing deadline. She claimed she would be persecuted in
Senegal for her religious beliefs and because she is a member of a
persecuted social group in Senegal. Specifically, she claimed
membership in the following alleged social group: "women who had a
child out of wedlock/are considered adulterers because they gave
birth to a child allegedly not their husband's/have been abused by
their husbands." A.R. 4. Faye also sought withholding of removal
and protection under the CAT on the same grounds or, alternatively,
voluntary departure.
We summarize Faye's testimony before the IJ. Faye and
her family are Muslims. Faye testified that she first experienced
persecution when she gave birth to a child out of wedlock in 1990.

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When her father learned she was pregnant, he left the family and
did not return until after the baby was born. Her mother and
brothers blamed her for his departure and for disgracing the
family, and they beat her during her pregnancy to punish her. Faye
did not report this abuse to any government authorities because the
abusers were family members. Her family, however, allowed Faye and
her child to live in their house for ten more years, and she did
not say the beatings continued.
In 1996 Faye's father forced her to marry her first
cousin, Ibrahima Seck. Faye disliked Seck but feared her family
would beat her or evict her if she refused. Seck forced her to
have sex with him throughout their marriage. When Faye resisted,
Seck, a large man, beat, slapped, or choked her. Faye never
reported Seck to the police because he was "of my family." Faye
and Seck had a son, her second child, in 1997. Faye wanted a
divorce, but Seck would not agree.
Once she left Senegal, Faye called Seck, told him she was
in the United States, and asked again for a divorce. Seck visited
the United States for a week in December 2002. Faye allowed him to
sleep two nights in her living room because she hoped he would
agree to a divorce. During his visit, Seck again raped Faye. Faye
did not report the rape to police because she feared consequences,
including on her status in the United States. Faye and Seck
divorced in 2003.

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Faye became pregnant during Seck's visit to the United
States, but when she told Seck, he denied he could be the father
after only one sexual encounter. Faye admitted she was still
married to Seck in 2002 and that the child, her third, was not born
out of wedlock. According to Faye, however, her family and
Senegalese society would believe Seck, not Faye, and consequently
would view the child as illegitimate and Faye as an adulterer.
Faye testified that in Senegal, families punish adulterers by
beating or killing them; she also feared her family would evict her
if she returned. Faye did not believe she could avoid her family
by moving elsewhere in Senegal because they would find her when she
reunited with her children.
Faye also presented a one-page State Department country
report from Senegal that stated 87 percent of 515 women interviewed
were domestic violence victims. The report found that victims
rarely reported abuse and police were reluctant to intervene in
domestic matters. It noted that "[w]omen faced pervasive
discrimination, especially in rural areas where Islamic and
traditional customs . . . were strongest."
Finally, Faye presented a psychologist's report to
explain her filing delay. The psychologist found Faye suffered
from generalized anxiety disorder and major depressive disorder,
which made her hesitant to make important decisions like filing for
asylum.

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The IJ issued an oral opinion on September 13, 2005. He
refused to find Faye's mental illness was an "extraordinary
circumstance[]" excusing her delay, 8 U.S.C. § 1158(a)(2)(D)
(2006), and so he held her asylum claim was pretermitted. The IJ
also rejected her withholding of removal claim. He found Faye
credible but found no "persuasive evidence" that Faye would face
persecution if she returned to Senegal. The IJ saw no evidence
that Faye would be considered an adulterer for having her third
child while married to Seck; even if her family did consider her an
adulterer, they did not evict her after she had her first child out
of wedlock. He also concluded Faye could avoid her family by
moving to another part of Senegal. Finally, the IJ rejected her
claim under the CAT, holding that no evidence showed the Senegalese
government would torture her or consent to her being tortured. The
IJ granted Faye's request for voluntary departure.
On August 1, 2009, the BIA reversed the IJ's ruling that
Faye's asylum claim was pretermitted, holding Faye demonstrated an
"exceptional circumstance" excusing her delay, a mental disability.
But it determined the error was harmless because Faye failed to
prove she had been or would be persecuted based on membership in a
protected social group. Although the country report observed
widespread domestic abuse, the BIA noted the report did not treat
women who were adulterers or had children out of wedlock as
particularly persecuted; in fact, the report did not mention them.

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The BIA also affirmed the IJ's dismissal of Faye's CAT claim
because no evidence showed the Senegalese government would torture
her or permit her to be tortured. It granted Faye voluntary
departure.
Faye petitioned for review. This court granted the
government's unopposed motion to remand the case to the BIA to
further consider whether Faye was a member of a protected social
group.
The BIA issued a new decision, from which this petition
for review is taken, on January 16, 2009. It again excused Faye's
filing delay but ruled that Faye had not proven membership in a
legally protected social group, to wit, "women who had a child out
of wedlock/are considered adulterers because they gave birth to a
child allegedly not their husband's/have been abused by their
husbands." The BIA explained that a social group has (1) shared
characteristics making it socially visible and (2) particular and
well-defined boundaries. It held Faye's proposed group failed this
test for several reasons, of which we mention only a few. First,
the BIA held the proposed group was too "amorphous" because society
would not generally recognize Faye as an adulterer or a woman who
had a child out of wedlock. Second, the group of "women who had a
child out of wedlock/are considered adulterers because they gave
birth to a child allegedly not their husband's/have been abused by

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their husbands" did not provide well-defined boundaries for
determining the group's membership.
The BIA also denied Faye's asylum and withholding of
removal claims because Faye could avoid further harm by moving away
from her family when she returned to Senegal. Finally, the BIA
denied Faye's claim under the CAT because she failed to demonstrate
"she would be tortured by or with the acquiescence of the
Senegalese government[]." It again granted Faye voluntary
departure. Faye timely petitioned for review.
II.
We review the BIA's findings of fact for substantial
evidence, accepting those findings as long as they are "supported
by reasonable, substantial, and probative evidence on the record
considered as a whole." Shahari v. Gonzáles, 407 F.3d 467, 473
(1st Cir. 2005) (quoting INS v. Elias Zacarias, 502 U.S. 478, 481
(1992)) (internal quotation marks omitted). When the BIA adopts
parts of the IJ's opinion, we also review those parts of the IJ's
opinion. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
We review the BIA's legal interpretations de novo, but we
give "substantial deference to the BIA's interpretations of the
underlying statutes and regulations according to administrative law
principles." Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.
2009). When statutes are silent or ambiguous, we uphold the BIA's
reasonable interpretation of them. Id.

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Aliens seeking asylum must prove they have suffered past
persecution or have a well-founded fear of future persecution
because of their "race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C. §
1101(a)(42)(A); id. § 1231(b)(3)(A); Ratnasingam v. Holder, 556
F.3d 10, 13 (1st Cir. 2009). Aliens seeking withholding of removal
must meet a higher burden of proof; they must show that it is more
likely than not they will suffer persecution because of a protected
ground. Datau v. Mukasey, 540 F.3d 37, 42 (1st Cir. 2008).
Faye seeks asylum and withholding of removal based on two
protected grounds, religion and membership in a social group. She
specifically claims membership in the social group, "women who had
a child out of wedlock/are considered adulterers because they gave
birth to a child allegedly not their husband's/have been abused by
their husbands." The Immigration and Nationality Act does not
define "social group," and the term is unclear. See In re C-A-, 23
I. & N. Dec. 951, 955-57 (B.I.A. 2006) (describing disagreement
among courts and the United Nations). We therefore show some
deference to the BIA's interpretation of the term.
The BIA has held that members of a social group must
share a common, immutable characteristic, either innate or based on
past experiences. Ruiz v. Mukasey, 526 F.3d 31, 36 (1st Cir.
2008). That characteristic should make the group (1) generally
recognizable in the community and (2) sufficiently particular to

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define the group's membership. In re A-M-E & J-G-U, 24 I.& N. Dec.
69, 74 (B.I.A. 2007); Scatambuli, 558 F.3d at 59. Whether a group
meets the first test, the "social visibility" test, depends on the
country and the persecution feared. In re A-M-E & J-G-U-, 24 I.&
N. Dec. at 74; see also Scatambuli, 558 F.3d at 60 (holding
informants who feared retaliation by two private individuals were
not sufficiently visible in Brazilian society). "Although a social
group cannot be defined exclusively by the fact that its members
have been subjected to harm," courts may consider past harm when
considering a group's social visibility. In re A-M-E & J-G-U-, 24
I.& N. Dec. at 74.
In In re A-M-E & J-G-U-, for example, the BIA ruled that
"affluent Guatemalans" were not a social group because they failed
both the social visibility and particularity tests. A country
report found widespread violence against Guatemalans of all
economic classes, and the BIA concluded no evidence showed
"societal perception would be otherwise." Id. at 75. The BIA also
found terms like "wealthy" and "affluent" were "too amorphous to
provide an adequate benchmark for determining group membership."
Id. at 76.
Substantial evidence supports the BIA's conclusion that
Faye similarly failed to show her proposed group is socially
visible and sufficiently particular. Faye presented almost no
evidence of how Senegalese society views her proposed group. Her

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testimony focused, rather, on how her family would view her because
Seck denies he is the father of her third child. But she did not
explain how Senegalese society generally would perceive her and
women in a similar position. She did not describe experiences
being persecuted or shunned by anyone in Senegal other than her
family; indeed, Faye admitted she told no one that her family and
Seck were abusing her.
Even the one page from the country report she submitted,
as the BIA pointed out, does not mention women perceived as
adulterers or mothers of children born out of wedlock. This report
is simply too general to provide evidence that "women who had a
child out of wedlock/are considered adulterers because they gave
birth to a child allegedly not their husband's/have been abused by
their husbands" is a recognized social group in Senegal.
We cannot displace the BIA's determination that Faye's
proposed group is not sufficiently particular because it is
difficult to identify women whom society would consider
"adulterers" who "had a child out of wedlock." Faye's story
demonstrates how these terms are ambiguous. She admits that her
second and third children were not born out of wedlock. It would
be difficult to determine when similar women are nevertheless
perceived in Senegalese society as adulterers with illegitimate
children. We affirm the BIA's decision that Faye failed to meet

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her burden of showing she is eligible for asylum based on
membership in a social group.
Turning to Faye's asylum claim alleging persecution
because of her religious beliefs, we also have no basis to reverse
the BIA's decision. Nothing in the record discusses Faye's
beliefs, and she has presented no evidence showing she was
persecuted because of them.
The BIA's denial of Faye's claim under the CAT also
stands. Applicants for protection under the CAT must show it is
more likely than not they will be tortured if removed to their
destination country. 8 C.F.R. § 208.16. Torture is "severe pain
or suffering" that a government official inflicts or consents or
acquiesces to. 8 C.F.R. § 208.18(a)(1).
The IJ and BIA concluded Faye failed to prove the
Senegalese government would torture her or permit her to be
tortured if she returned to Senegal. Faye did not report her abuse
to authorities, and the report's cursory observation that the
government is reluctant to intervene in domestic disputes is not a
sufficient link to the Senegalese government. See, e.g., Dianie v.
U.S. Att'y General, 293 Fed. App'x 170, 174 (3d Cir. 2008) (finding
no "pattern or practice of governmental acquiescence to domestic
abuse" despite evidence, including U.S. government reports, showing
"the judicial procedure is skewed against women who complain of
domestic abuse") (internal quotation marks omitted.

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The petition for review is denied.

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