United States v. 2005-12-29 | 02-72390 | ABEBE VGONZALES | precedential | opinion |

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  A72-693-581ALBERTO R. GONZALES, Attorney
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
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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.
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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
1Technically, Mr. Mengistu filed the application and listed Ms. Abebe
as a derivative applicant.
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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.
2FGM 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).
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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.
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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
3We 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)).
4That 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
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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.
5Petitioners 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.
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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
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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-
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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
6In 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-
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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”).
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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
7The 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.
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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-
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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.
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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-
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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
1Although 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,
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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.
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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
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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
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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
2I agree there was no sufficient showing on the political persecution
claim.
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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-
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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
3Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, 110 Stat. 3009.
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[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
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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.
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