Nafissatou Kane v. Alberto R. Gonzales, Attorney General of the United States of America

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NO. 04-1467
____________________
NAFISSATOU KANE,
Petitioner
v.
*ALBERTO R. GONZALES, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
*{Substituted pursuant to Rule 43(c), F.R.A.P.}
_____________________
On Petition for Review of Order of the
Board of Immigration Appeals
(Board No. A70-901-721)
______________________
Submitted Under Third Circuit LAR 34.1(a)
February 8, 2005
Before: BARRY, FUENTES and BECKER, Circuit Judges
(Filed March 1, 2005)
________________________
OPINION OF THE COURT
________________________
BECKER, Circuit Judge.
Nafissatou Kane petitions for review of an order of the Board of Immigration

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Appeals (BIA) which denied her motion for reconsideration of its prior order which in
turn reversed the decision of an Immigration Judge (IJ) granting Kane asylum and
withholding of removal. For the reasons that follow, we deny the petition.
We acknowledge that this is a sympathetic case. Kane is a native and citizen of
Mali who suffered female genital mutilation (FGM) at the age of one to two weeks. At
age 11, Kane was given by her father, who was a religiously fanatical man and the Imam
of a large mosque, for marriage to a 40-year-old man. After being slapped by her
husband, Kane asked for a divorce, which she ultimately obtained from the court in Mali.
Kane returned to her father’s house but was turned away and told that she was to stay
married (and hence remain in an abusive relationship). A family member finally helped
Kane go to Saudi Arabia and study, telling her that she had spoiled her life in Mali and
there was nothing left there for her. Kane studied language, education and computer
programming and eventually found a job in Saudi Arabia. She returned to Mali on three
different occasions: for her father’s funeral, her sister’s funeral, and her grandmother’s
funeral. During these visits the community and her family shunned her because she
rejected her family’s values and because of her education and willingness to speak out
against the rules that govern Muslim women in Mali.
In reversing the IJ, the BIA stated, inter alia:
The Immigration Judge also found that the respondent has a well-
founded fear of future persecution based on her status as a “westernized
woman.” The respondent did not claim to have suffered past persecution on
this basis. Although the Immigration Judge cited evidence in the record

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that the respondent would be treated as a “pariah” if returned to Mali, such
treatment does not rise to the level of persecution.
In denying the motion for reconsideration, the BIA wrote:
The respondent must do more than define a particular social group. The
respondent must show that she was persecuted at least in part on account of
her membership in the group. As the respondent defines the group, she
could not have been a member at the moment when she was subjected to
FGM. The respondent became a member of the social group as a result of
the alleged persecution. The membership did not prompt the persecution.
We find no legal or factual error in any aspect of our prior decision.
Kane seeks reversal of the BIA’s decision on the ground that she endured severe
past persecution and has compelling reasons for being unwilling to return to M ali
warranting a grant of asylum, and that she also has a well-founded fear of future
persecution due to her inability to accept the traditional, oppressed role of a Muslim
woman in a Muslim society.
The government’s brief, and its subsequent motion for summary affirmance, are
devoted largely to jurisdictional issues. According to the government, the Court lacks
jurisdiction over Kane’s challenge to the BIA’s July 2003 decision denying her asylum
application because she did not file a petition for review of that decision. In addition, the
government submits, the Court lacks jurisdiction over Kane’s challenge to the Board’s
December 2003 decision denying rehearing because she has not challenged any aspect of
that decision in her brief. Kane forcefully counters these arguments. First she points out
that the BIA did reconsider its decision but that that reconsideration reaffirmed the
previous decision and that its opinion discussed the merits of the asylum issue, see supra.

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She adds that the motion to reopen, to reconsider, and to stay deportation is inextricably
linked to the prior decision dated July 11, 2003, and that it must therefore incorporate the
prior decision and the initial asylum issue.
We need not, however, decide the jurisdictional arguments, for we are satisfied
that the petition for review must be denied on the merits. First, we cannot say that the
BIA’s refusal to extend this holding to women who have already undergone FGM was
arbitrary, irrational, or contrary to law. Moreover, as the BIA noted in its order denying
the motion for reconsideration, in addition to demonstrating that she is a member of a
particular social group, Kane was required to “show that she was persecuted at least in
part on account of her membership in that group.” See 8 U.S.C. § 1101(a)(42)(A);
Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2000). Kane defines her social group as
women who have been forced to undergo FGM, and she defines the persecution as the
FGM itself. But the “particular social group” must have existed before the persecution
began. Lukwago, 329 F.3d at 172. It is a logical impossibility for Kane to have been a
member of the social group of women subjected to FGM prior to the time when she
underwent FGM (as a one-week-old infant).
Moreover, Kane’s claim that she would be a social outcast if she returned to Mali
does not rise to the level of persecution. At all events, Kane did not claim to have
suffered persecution on this basis. See Fatin v. INS, 12 F.3d 1233, 1242-43 (3d Cir.
1993) (denying asylum claim where petitioner was a member of a group consisting of

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Iranian women who found their country’s gender-specific laws offensive, but had not
shown that adverse consequences would befall her).
The petition for review will be denied.

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