YAYESHWORK ABAY and BURHAN AMARE v. JOHN ASHCROFT, United States Attorney General and IMMIGRATION AND NATURALIZATION SERVICE

*The Honorab le John Feikens, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0145P (6th Cir.)
File Name: 04a0145p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
YAYESHWORK ABAY and
BURHAN AMARE,
Petitioners,
v.
JOHN ASHCROFT, United
States Attorney General and
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondents.
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No. 02-3795
On Petition for Review of an Order of the
Board of Immigration Appeals.
No. A73 401 965.
Argued: January 29, 2004
Decided and Filed: May 19, 2004
Before: MERRITT and SUTTON, Circuit Judges;
FEIKENS, District Judge.*
2 Abay et al. v. Ashcroft et al. No. 02-3795
_________________
COUNSEL
ARGUED: E. Dennis Muchnicki, Dublin, Ohio, for
Petitioners. Julia K. Doig, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondents. ON BRIEF: E. Dennis Muchnicki, Dublin,
Ohio, for Petitioners. Nancy E. Friedman, Richard M. Evans,
UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondents.
MERRITT, J., delivered the opinion of the court, in which
FEIKENS, D. J., joined. SUTTON, J. (pp. 16-21), delivered
a separate opinion concurring in the judgment.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Yayeshwork Abay and her
minor daughter Burhan Amare, citizens and natives of
Ethiopia, petition the Court for review of an order in which
the Board of Immigration Appeals affirmed without opinion
the immigration judge’s denial of their consolidated claims
for asylum and withholding of deportation under section
208(a) and former section 243(h)(1) of the Immigration and
Nationality Act. 8 U.S.C. § 1158(a) (2004); 8 U.S.C.
§ 1253(h)(1) (1996). Both Abay and Amare seek asylum
based on their fear that, should they be returned to Ethiopia,
Amare will be subjected to “female genital mutilation,” a
practice “nearly universal” in Ethiopia and to which an
estimated 90% of women are subjected, according to State
Department reports. The immigration judge held that neither
Abay nor Amare established that she is a “refugee” eligible
for asylum or withholding of deportation. We find that the
evidence on the record as a whole compels the conclusion that
both the minor child Amare and her mother have a well-

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No. 02-3795 Abay et al. v. Ashcroft et al. 3
founded fear that Amare will be subjected to female genital
mutilation should they be returned to Ethiopia and thus are
“refugees” eligible for asylum under the Act. Accordingly,
the petition for review is GRANTED and the case is
remanded for further proceedings consistent with this opinion.
I. Background
Petitioner Abay and her daughter, petitioner Amare, entered
the United States on May 18, 1993, as visitors for pleasure.
On May 30, 1996, following an unsuccessful application for
asylum, Abay and Amare were each issued and served with
a referral notice and order to show cause. At a master
calendar hearing held by teleconference on August 29, 1996,
and at which the minor daughter waived appearance, their
separate cases were consolidated and Abay’s was designated
the “lead file.” On behalf of both respondents, counsel
conceded deportability and applied for relief in the form of
asylum, withholding of deportation, and in the alternative,
voluntary departure. On June 30, 1997, counsel submitted
Abay’s fully briefed application, in which she claimed that
she was persecuted in the past, and feared persecution in the
future, on account of her Amhara ethnicity, her Pentacostal
Christian religious practice, and her membership in the All
Amhara People’s Organization, an opposition political party
in Ethiopia. On August 6, 1997, counsel submitted a
supplemental brief and exhibits supporting Amare’s
application in which Amare claimed that she feared being
subjected to female genital mutilation upon her return to
Ethiopia.
II. Legal framework and standard of review
The Attorney General has discretion to grant asylum to a
person who qualifies as a “refugee” within the meaning of
section 101(a)(42)(A) of the Immigration and Nationality Act.
See 8 U.S.C. § 1158(b)(1). The Act defines a refugee as:
4 Abay et al. v. Ashcroft et al. No. 02-3795
any person who is outside any country of such person’s
nationality or, in the case of a person having no
nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling to
return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of
persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion . . . .
Id. § 1101(a)(42)(A). To obtain asylum, an alien must show
that she is a refugee entitled to a discretionary grant of
asylum. Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir.
1998); Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994). The
asylum applicant bears the burden of establishing that she
qualifies 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.” 8 C.F.R. § 208.13(b).
An alien may demonstrate a well-founded fear of future
persecution by showing that (1) he or she has a fear of
persecution in his or her country on account of race,
religion, nationality, membership in a particular social
group, or political opinion; (2) there is a reasonable
possibility of suffering such persecution if he or she were
to return to that country; and (3) he or she is unable or
unwilling to return to that country because of such fear.
An applicant’s fear of persecution must be both
subjectively genuine and objectively reasonable.
Mikhailevitch, 146 F.3d at 389. If the applicant establishes
past persecution, the applicant is entitled to a presumption of
a well-founded fear of future persecution, and the burden then
shifts to the Immigration and Naturalization Service to show
by a preponderance of the evidence that “there has been a
fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution in the
applicant’s country . . . on account of race, religion,
nationality, membership in a particular social group, or

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No. 02-3795 Abay et al. v. Ashcroft et al. 5
political opinion.” 8 C.F.R. § 208.13(b)(1)(i)(A); see
Mikhailevitch, 146 F.3d at 389. To establish eligibility for
asylum, an alien is not required to present proof that future
persecution is more likely than not. INS v. Cardoza-Fonseca,
480 U.S. 421, 431 (1987). “One can certainly have a
well-founded fear of an event happening when there is less
than a 50% chance of the occurrence taking place.” Id.
The petitioners also seek relief in the form of withholding
of deportation under former § 1253(h)(1), a form of
nondiscretionary relief that must be granted to aliens who can
meet the more stringent standards governing such
applications. To establish eligibility for nondiscretionary
withholding of deportation, the alien must show that there is
a “clear probability” that her “life or freedom would be
threatened in such country on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” Mikhailevitch, 146 F.3d at 391. The
applicant who fails to establish that she is a “refugee” eligible
for asylum under § 1158 will necessarily fail to satisfy the
standard governing § 1253(h)(1). See INS v.
Cardoza-Fonseca, 480 U.S. 421, 449-50 (1987);
Mikhailevitch, 146 F.3d at 391. On the other hand, the
applicant who establishes that she is a “refugee” eligible for
asylum, but who is not granted asylum in the exercise of the
Attorney General’s discretion, may nevertheless be able meet
the more stringent standard to show she is eligible for
withholding of deportation.
Under our deferential standard of review, we must uphold
the Board’s decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered
as a whole.” Mikhailevitch, 146 F.3d at 388 (internal
quotation marks omitted); see INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). We may not reverse the Board’s
determination simply because we would have decided the
matter differently. See Klawitter v. INS, 970 F.2d 149,
151-52 (6th Cir. 1992). The petition for review may be
granted only if the evidence presented “not only supports a
6 Abay et al. v. Ashcroft et al. No. 02-3795
1The Departm ent of State has classified, based on W orld He alth
Organization typology, the prevalent forms of female genital mutilation.
Type I, commonly referred to as “clitoridectomy,” is the removal “of the
clitoral hood with or without removal of all or part of the clitoris.” Type
II, commo nly referred to as “excision,” is the removal “of the clitoris
together with part or all of the labia minora.” Type III, commonly referred
to as “infibulation,” is the removal “of part or all of the external genitalia
(clitoris, labia minora and labia majora) and stitching or narrowing of the
vaginal opening, leaving a very small opening, about the size of a
matchstick, to allow for the flow of urine and menstrual blo od.”
contrary conclusion, but indeed compels it.” Id. at 152
(emphasis in original). The appropriate inquiry is whether the
applicable evidence “was such that a reasonable factfinder
would have to conclude that the requisite fear of persecution
existed.” Elias-Zacarias, 502 U.S. at 481. Where, as here,
the Board of Immigration Appeals affirms the decision of an
immigration judge without opinion, we review the decision of
the immigration judge directly. Soadjede v. Ashcroft, 324
F.3d 830, 832 (5th Cir. 2003).
III. Discussion
A. Female genital mutilation
Forced female genital mutilation involves the infliction of
grave harm constituting persecution on account of
membership in a particular social group that can form the
basis of a successful claim for asylum. In re Fauziya
Kasinga, 21 I. & N. Dec. 357, 365, Int. Dec. 3278 (BIA
June 13, 1996); see Abankwah v. INS, 185 F.3d 18, 23-24 (2d
Cir. 1999) (holding that the evidence compelled the
conclusion that the petitioner had a well-founded fear of being
subjected to female genital mutilation in Ghana as
punishment for having engaged in premarital sex, and
reversing the Board’s decision to the contrary). Female
genital mutilation, or FGM, is 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.1 Often performed under

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No. 02-3795 Abay et al. v. Ashcroft et al. 7
Prevalence of the Practice of Female Genital Mutilation (FGM); Laws
Prohibiting FGM and Their Enforcement; Recommendations on How to
Best Work to E liminate FGM, U.S. Dep t. of State, R epo rt on Female
Genital Mutilation, a t 5 (updated June 27, 2001), available at
http://www.state.gov/g/wi/rls/rep/c6466 .htm. Type II (excision) is the
most widely practiced form . Id.
unsanitary conditions with highly rudimentary instruments,
female genital mutilation is “extremely painful,”
“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.” In re Fauziya Kasinga,
21 I. & N. Dec. at 361. Female genital mutilation can result
in the permanent loss of genital sensation in the victim and
the consequent elimination of sexual pleasure. See id.
The practice of FGM has been internationally recognized
as a violation of women’s and female children’s rights. See,
e.g., Report of the Committee on the Elimination of All
Forms of Discrimination Against Women, General
Recommendation No. 14, U.N. GAOR, 45th Sess., Supp. No.
38 & Corr. 1, at 80, ¶ 438, U.N. Doc. A/45/38 (1990);
Declaration on the Elimination of Violence Against Women,
G.A. Res. 104, U.N. GAOR, 48th Sess., Art. 2(a), U.N. Doc.
A/48/629 (1993) (including female genital mutilation as an
example of violence covered by the resolution); Traditional
or Customary Practices Affecting the Health of Women and
Girls, G.A. Res. 128, U.N. GAOR, 56th Sess., Supp. 49, at 2,
U.N. Doc. A/RES/56/128 (2001) (reaffirming that female
genital mutilation “constitute[s] a definite form of violence
against women and girls and a serious violation of their
human rights”). In September 1996, as part of the Illegal
Immigration Reform and Immigrant Responsibility Act
[IRRIRA], Congress criminalized the practice of female
genital mutilation under federal law. See 18 U.S.C. § 116
(providing that whoever “knowingly circumcises, excises, or
infibulates the whole or any part of the labia majora or labia
8 Abay et al. v. Ashcroft et al. No. 02-3795
2At the hearing, the parties used the term“circumcision” without
specifying the precise form of the practice involved. As noted above, the
term “female genital mutilation” has become the preferred generic term
when describing any form of physical mutilation to a female’s genitals.
The term “circumcision” is considered by m any to b e physically
inaccurate in describing the most common form of the practice, Type II
(excision), which results in the complete removal of the clitoris. See, e.g.,
Hope Lewis, Between Irua and “Female Genital Mu tilation”: Feminist
Human Rights Discourse and the Cultural Divide, 8 Harv. Hum. Rts. J.
1, 4-9 (1995) (discussing the debate over terminology and noting that
“many feminist human rights activists and scholars argue that the term
‘female circumcision’ is misleading” because “m ost form s of male
circumcision are far less invasive and physically damaging” than FGM ).
minora or clitoris of another person who has not attained 18
years” shall be fined or imprisoned).
At the hearing on the merits held on August 17, 1997, Abay
testified that she is married and has four daughters. After she
came to the United States with her youngest daughter, Abay’s
husband fled Ethiopia, leaving their three older daughters in
the care of Abay’s mother in Ethiopia. Abay herself was
circumcised by her mother when she was nine years old.2
Although she and her husband oppose the practice and have
not subjected any of their daughters to it, Abay’s mother had
previously attempted to circumcise the three older daughters.
It was only due to Abay’s intervention that the daughters were
not circumcised. Abay testified that her mother still wants all
the girls to be circumcised, and that Abay would not be able
to prevent the forced circumcision of any of her daughters by
their future husbands or in-laws.
Burhan Amare is Abay’s youngest daughter who, at the
time of the hearing, was nine years old. Amare suffers from
a profound hearing impairment. She testified through a sign
language interpreter that she knew about circumcision, did not
want to be subjected to it because she feared it would cause
pain and bleeding, and was afraid to go back to Ethiopia
because she feared her relatives or future husband or her
husband’s relatives would force her to be circumcised.

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No. 02-3795 Abay et al. v. Ashcroft et al. 9
3A recent State D epartment report on fem ale genital mutilation in
Ethiopia details the pre valence of the various forms of the practice.
Ethiopia: Report on Female Genital Mu tilation (FG M) o r Fem ale Genital
Cutting, U.S. Dept. of State, Office of the Senior Coordinator for
International W omen’s Issues (June 1, 2001), available at
www.state.gov/g/wi/rls/rep/crfgm (Ethiopia). Clitoridectomy and
excision are the two most common form practiced in Ethiopia, with
excision being the most common. See id.
According to the U.S. State Department Ethiopia Country
Report on Human Rights Practices for 1996, which was
included in the record, the practice of female genital
mutilation in Ethiopia in 1996 was “nearly universal.” Also
included was a State Department Report on Female Genital
Mutilation in Ethiopia in 1996, which indicated that
approximately 90% of all females are subjected to some form
of the practice.3 The practice had not been specifically
outlawed, and laws in place to prohibit harmful traditional
practices are not, as a practical matter, enforced. Additional
articles and reports submitted in support of Amare’s claim
explain that females who live in a culture where female
genital mutilation is the norm and who do not undergo the
procedure will be persecuted, subjected to ostracism, and
considered unworthy of marriage.
B. Amare’s asylum claim based on her fear of female
genital mutilation
The immigration judge denied Amare’s claim for asylum
because she has “no imminent fear [of female genital
mutilation], but rather a general ambiguous fear” if she is
deported. He noted that “her parents are opposed to the
practice and refuse to allow her to be circumcised” and that
“[s]he has three teenage sisters who have not been
circumcised.” Pointing out that these three sisters live with
the same relatives in Ethiopia who purportedly pose a threat
to Amare, he concluded that he found it “hard to believe that
this one daughter [Amare] would be forcibly circumcised
when the other daughters are able to escape it.”
10 Abay et al. v. Ashcroft et al. No. 02-3795
These conclusions underestimate the problem and do not
take the full picture into account. At the time of the hearing,
Amare was a nine-year-old child testifying in court about an
extremely personal matter. Although her expression of fear
in that context may have come across as “general” or
“ambiguous,” we note that the Immigration and
Naturalization Service’s guidelines for children’s asylum
claims, following the recommendations of the United Nations
High Commissioner for Refugees, Handbook on Procedures
and Criteria for Determining Refugee Status (1992), advises
adjudicators to assess an asylum claim keeping in mind that
very young children may be incapable of expressing fear to
the same degree or with the same level of detail as an adult.
See Guidelines for Children’s Asylum Claims, INS Policy and
Procedural Memorandum from Jack Weiss, Acting Director,
Office of International Affairs to Asylum Officers,
Immigration Officers, and Headquarters Coordinators
(Asylum and Refugees) at 26, Dec. 10, 1998, available at 1998
WL 34032561 (INS). In recommending a course of action
for evaluating a child’s fear, the Children’s Guidelines note
that the adjudicator must take the child’s statements into
account, but that “children under the age of 16 may lack the
maturity to form a well-founded fear of persecution, thus
requiring the adjudicator to give more weight to objective
factors.” Id. at 19. Further, the Guidelines suggest that
“children’s testimony should be given liberal “benefit of the
doubt” with respect to evaluating a child’s alleged fear of
persecution. Id. at 26.
Should Amare be returned to Ethiopia, a country where the
practice is “nearly universal” with 90% of females having
been subjected to some form of it, it is probable that she
would be subjected to that painful practice should she marry.
Abay testified that the threat of female genital mutilation
comes not only from Amare’s own relatives, but also from
any future husband and his relatives. Abay testified that she
feared she would not be able to override the wishes of a
husband or his family. At the time of the hearing, Amare’s
teenage sisters had not yet married. The fact that Amare’s

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No. 02-3795 Abay et al. v. Ashcroft et al. 11
sisters had been spared the practice at the hands of their own
relatives does not sufficiently outweigh Abay’s testimony that
she would not be able to prevent a future husband or his
relatives from demanding that it be done. Amare’s clearly
expressed fear is rooted in the culture of Ethiopia. Should she
be forced to choose between marriage and likely mutilation
on the one hand, and social ostracism on the other, we believe
that any young girl faced with such a choice would have a
legitimate fear of persecution and draw support from the
Second Circuit’s opinion in Abankwah, supra. Accordingly,
we find that the evidence presented compels the conclusion
that Amare has established that she is a “refugee” under the
Act.
C. Abay’s asylum claim based on her fear that her
daughter will be subjected to female genital
mutilation
Abay specifically testified that she feared that her daughter
would be forcibly circumcised by her relatives or her
daughter’s future husband and his family should she return to
Ethiopia. In his written opinion, however, the immigration
judge focused only on Abay’s relatives, with whom Amare’s
unmarried teenage sisters lived in Ethiopia, and stated that he
found it “hard to believe that this one daughter would be
forcibly circumcised when the other daughters are able to
escape it.” (J.A. at 50.) The judge concluded that there was
no objective basis upon which to base an asylum claim. As
we stated previously, however, there is overwhelming
objective evidence that a female child in Ethiopia will likely
undergo female genital mutilation at some point. The issue
before the Court is really whether Abay can seek asylum in
her own right based on a fear that her child will be subjected
to female genital mutilation.
Abay acknowledges that there is no express statutory
authority for a parent to claim “derivative asylum” based on
her child’s asylee status. See 8 U.S.C. § 1158 (b)(3). She
argues instead that she is eligible for asylum in her own right
12 Abay et al. v. Ashcroft et al. No. 02-3795
4“[A] person who has been forced to abort a pregnancy or to undergo
involuntary sterilization, or who has been persecuted for failure or refusal
to undergo such a procedure or for other resistance to a coercive
population control program, shall be deemed to have been persecuted on
acco unt of political opinion . . . .” 8 U.S.C. § 110 1(a)(42)(B).
based on her fear that her daughter will be subjected to the
torture of female genital mutilation. In support of her
argument, Abay points out that the Board has previously
indicated that a family member may be eligible for asylum
based upon the physical harm inflicted upon another family
member. For example, in Matter of C-Y-Z, 21 I. & N. Dec.
915, Dec. 3319 (BIA 1997), an alien seeking asylum argued
that the forced sterilization of his wife by government
authorities in China conferred refugee status on him under
Act.4 The Board accepted the Service’s concession that an
alien whose spouse was forced to undergo sterilization could
establish past persecution on account of political opinion and
found that the alien established that he was a “refugee” within
the meaning of the Act. See id. at 919-20. In a concurring
opinion, Board member Rosenberg explained that a finding of
persecution based on harm to an immediate family member is
not uncommon:
It is not as unusual as one or all of my colleagues writing
separately would make it seem that the applicant should
be granted asylum although the harm experienced was
not by him, but by a family member.
. . .
It not only constitutes persecution for the asylum
applicant to witness or experience the persecution of
family members, but it serves to corroborate his or her
own fear of persecution. The treatment of the applicant’s
wife supports the conclusion that the applicant, by virtue
of the events culminating in his wife’s forced
sterilization, has suffered past persecution and that his
fear is well founded.

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No. 02-3795 Abay et al. v. Ashcroft et al. 13
Id. at 926-27 (citations omitted).
We further note that the Service has previously granted
other forms of relief, including relief under the more stringent
standard of withholding of removal, to the parents of female
children who reasonably fear that the children would be
subject to female genital mutilation should they return to their
parents’ country of origin. See, e.g., Matter of Adeniji, No.
A41 542 131 (oral decision) (U.S. Dept. of Justice,
Immigration Court, York, Penn., Mar. 10, 1998) (granting
application for withholding of removal to an alien father
otherwise ineligible for asylum because his citizen daughters
would be forced to return to Nigeria with him, where they
would likely be subject to female genital mutilation by
relatives despite their father’s wishes); Matter of Oluloro, No.
A72 147 491 (oral decision) (U.S. Dept. of Justice,
Immigration Court, Seattle, Wash., Mar. 23, 1994) (granting
suspension of deportation, directly resulting in permanent
resident status, to an alien mother because the risk that her
U.S.-born daughters would be subjected to female genital
mutilation in Nigeria “posed an extreme hardship” to the
daughters).
In Matter of Dibba, No. A73 541 857 (BIA Nov. 23, 2001),
an alien mother filed a motion to reopen her case to apply for
asylum based on her fear that her citizen daughter would be
subject to female genital mutilation in The Gambia. She
argued that “she would be forced to allow the mutilation of
her daughter and that the event and its consequences would
cause her mental suffering sufficient to constitute
persecution.” Id. at 2. The Board noted that the record
supported the prevalence of female genital mutilation in The
Gambia and that, although the government disapproves of the
practice, it is not illegal. The alien submitted evidence that
she herself was subjected to FGM at a young age, and that her
mother would demand that her daughter be similarly
mutilated if she returned to The Gambia. Although the Board
found that the alien had not yet “fully demonstrated” that she
would be in fact forced to allow her daughter to be
14 Abay et al. v. Ashcroft et al. No. 02-3795
5Abay also seeks review of the Board’s denial of her claim for
asylum based on her fear of persecution on acco unt of her mem bership in
the All Am hara P eop le’s Organiza tion, an opposition po litical party in
Ethiopia. Because we decide the question of her refugee status based on
circumcised, the Board found that she had presented a
sufficient basis to reopen her case and apply for asylum based
on a well-founded fear of persecution. Id. In addition, the
Board made clear that the alien need not “prove that she
would take the child with her as part of her burden to
demonstrate eligibility for relief, if she has custody of the
child. . . . [N]ormally a mother would not be expected to leave
her child in the United States in order to avoid persecution.”
Id.
We do not agree with government counsel that there is no
authority for granting asylum to Abay based on her fear that
her daughter will be forced to undergo female genital
mutilation. The Board’s decision in Dibba, along with the
decisions cited above, suggest a governing principle in favor
of refugee status in cases where a parent and protector is
faced with exposing her child to the clear risk of being
subjected against her will to a practice that is a form of
physical torture causing grave and permanent harm. Given
the evidence in the record that female genital mutilation is
“nearly universal” in Ethiopia; that Abay herself underwent
the procedure at a young age; that Abay’s mother has already
attempted to mutilate Abay’s older daughters, who still faced
that prospect upon their marriage; that Abay would not be
able to override any of her daughters’ future husbands or in-
law’s wishes; and that the government of Ethiopia does not,
as a practical matter, enforce laws intended to curb harmful
traditional practices, we conclude that a rational factfinder
would be compelled to find that Abay’s fear of taking her
daughter into the lion’s den of female genital mutilation in
Ethiopia and being forced to witness the pain and suffering of
her daughter is well-founded. Accordingly, we find that Abay
is also a “refugee” within the meaning of the Act.5

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No. 02-3795 Abay et al. v. Ashcroft et al. 15
female genital mutilation, we do not reach the m erits of this claim.
6W hile we recognize that our colleague has written a concurrence,
and not a dissent, it is important to note the differences between our
opinion and his co ncurrence. The basis of the fear of persecution in this
case is well-estab lished o n the rec ord. The Governm ent’s position, and
the decision of the Board of Imm igration App eals, to deport, despite that
well-established fear of persecution, is clear. Therefore, based on the
record, and the position of the governm ent and BIA , the circumstances in
this case are such that this issue must be confronted now.
IV. Conclusion
For the reasons stated above, we reverse the decision of the
Board of Immigration Appeals that the petitioners are not
eligible for asylum. Because the immigration judge did not
reach the discretionary stage of their claims for asylum, we
remand for proceedings not inconsistent with this opinion.
Further, because the standard for granting withholding of
deportation is more stringent than the standard for granting
asylum, and because the immigration judge denied the request
as an a fortiori conclusion, we also remand the request for
withholding of deportation for further consideration in light
of our conclusions stated above.6
16 Abay et al. v. Ashcroft et al. No. 02-3795
_____________________
CONCURRENCE
_____________________
SUTTON, Circuit Judge, concurring in the judgment. I
agree with the majority that the prospect of female genital
mutilation (FGM) may indeed give rise to a “well-founded
fear” of persecution, and I agree with the majority that the
Immigration Judge’s efforts to resolve the claims of the
daughter (Amare) and the mother (Abay) raise as many
questions as they answer. On this record, I thus agree that the
Immigration Judge’s decision cannot be affirmed.
I concur in the judgment rather than in the opinion because
I fear that the majority’s opinion accepts two propositions in
this area that current law does not support: (1) that women or
girls may never be deported to a country where the incidence
of FGM within the female population as a whole is high,
regardless of the risk that a particular applicant will be
subjected to FGM, and (2) that the parents of such children
may not be deported either. As I read the relevant statutes,
regulations and precedents, the law in this developing area
does not support either generalization. In view of the stale
nature of the evidence in this case as well as the fact that the
administrative agency has not expressly given us its view on
either point, I would prefer to ask the Immigration Judge to
look at these issues in the first instance.
I.
A.
In rejecting Amare’s claim for asylum based on her fear of
being subjected to FGM, the Immigration Judge relied
predominantly on the fact that Amare’s sisters—who still live
in Ethiopia—have not been forced to undergo FGM. From
this fact, the Immigration Judge reasoned that the threat to
Amare could not be very serious either. That an asylum

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No. 02-3795 Abay et al. v. Ashcroft et al. 17
applicant fails to show “a reasonable possibility [that] . . . she
would be singled out individually for persecution,” however,
does not end the inquiry. 8 C.F.R. § 208.13(b)(2)(iii). An
asylum applicant may still qualify as a refugee if she can
show “that there is a pattern or practice . . . of persecution of
a group of persons similarly situated” and that she is included
within that group. Id. § 208.13(b)(2)(iii)(C); see
Ramsameachire v. Ashcroft, 357 F.3d 169, 183 (2d Cir.
2004).
Correctly invoking this second ground for relief, Amare
points to statistics collected by the State Department showing
that 90% of women and girls in Ethiopia have undergone
FGM, then argues that these statistics necessarily establish a
“pattern or practice of persecution.” Even if that is true,
however, Amare still must show that she is included within a
group at risk of being subjected involuntarily to FGM. 8
C.F.R. § 208.13(b)(2)(iii)(C). FGM practices vary by ethnic
group, religion and geographic region, as well as by the age
and marital status of the woman or girl. As a State
Department report on FGM practices in Ethiopia
acknowledges, some “population groups” within the country
“do not practice FGM.” JA 187. As the federal statute that
criminalizes FGM in this country acknowledges in regulating
the practice only with respect to girls under eighteen years of
age, the risks associated with FGM differ between girls and
women. See 18 U.S.C. § 116; see also Nwaokolo v. INS, 314
F.3d 303, 309 (7th Cir. 2002) (describing threat of FGM to
four-year old girl as more significant than risk to 17-year old
girl). And as another recent State Department report
acknowledges, Maj. Op. at 6 n.1, the types of FGM practiced
in Ethiopia are neither uniform in nature nor uniformly
debilitating to a woman’s physical and psychological health.
Significant as the 90% may be, in other words, it does not
establish that all women and girls—no matter their age, ethnic
group, marital status, religion or geographic residence—face
the same FGM risks or in some instances face any material
risk at all. See Matter of Oluloro, No. A72 147 491, Slip Op.
at 4 (Immigr. Ct. Mar. 23, 1994) (noting that in Nigeria,
18 Abay et al. v. Ashcroft et al. No. 02-3795
where 50% of the total female population has undergone
FGM, “the likelihood of forced FGM being visited on anyone
outside [a specific] ethnic group or area is minimal to
nonexistent”).
The Immigration Judge did not consider any of these
points, and the current record is either conspicuously silent on
each point or is not helpful to Amare’s application. In her
case, for instance, it appears that she is of Amharic ethnicity
and a Christian, two groups that practice FGM in Ethiopia.
But the Amharas, according to the State Department reports,
practice the least severe form of FGM—Type I—and Amare’s
age (17) may disqualify her even from that risk. In Ethiopia,
it turns out, FGM is most frequently performed within days
of birth or between the age of seven and puberty. See U.S.
Dep’t of State, Office of the Senior Coordinator for
Int’l Women’s Issues, Ethiopia: Report on
Female Genital Mutilation (FGM) or Female
Genital Cutting (FGC) (June 1, 2001), at
http://www.state.gov/g/wi/rls/rep/crfgm/100098.htm. On
this record, I submit, it makes sense to obtain more
information and more current information about these issues
before announcing an opinion that grants relief not just to
Amare but potentially to any girl or woman from Ethiopia.
B.
The current paucity of evidence regarding Amare’s claim
not only fails to make clear exactly what kind of risk she
faces in returning to Ethiopia as a 17-year old girl, but it also
fails to bring her within the orbit of any of the cases that have
granted asylum in the context of an FGM claim. In the two
instances in which a court of appeals granted relief on an
FGM-based asylum claim, the evidence was far more
concrete than it is here and the risk of FGM was far more
imminent than it is here. In one case, the applicant offered
evidence that she was a member of a particular tribe in Ghana
that practices FGM as punishment for premarital sex; that she
had engaged in premarital sex; that her tribe would assuredly

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No. 02-3795 Abay et al. v. Ashcroft et al. 19
learn this fact; and that her tribe would punish her as a result.
See Abankwah v. INS, 185 F.3d 18 (2d Cir. 1999). In the
other case, the court relied on still more particularized
evidence: the applicant’s family had already paid the
traditional “bride price,” which created a binding marriage
contract that permitted the man to force his bride to undergo
FGM. See Moshud v. Blackman, Nos. 98-6481 & 02-1545,
2003 WL 21404334, at *2 (3d Cir. June 18, 2003). Likewise,
the administrative decision that established FGM as a
legitimate basis of persecution involved an imminent threat of
forced FGM by the asylum applicant’s aunt and husband
stemming from an arranged marriage. See In re Kasinga, 21
I. & N. Dec. 357 (BIA 1996).
II.
The immigration statutes and case law also fail to support
Abay’s—the mother’s—derivative claim of asylum, at least
on the current record. “A spouse or child . . . of an alien who
is granted asylum,” the applicable statute says, “may, if not
otherwise eligible for asylum . . . , be granted the same
status.” 8 U.S.C. § 1158(b)(3)(A). By its terms, the statute
does not include parents as individuals who may obtain a
derivative grant of asylum. And to the extent Abay, like the
applicant in the Oluloro case, supra, see Maj. Op. at 12,
seeks a suspension of deportation based on “extreme
hardship” to her child, see 8 U.S.C. § 1254(a)(2) (1995), that
provision was repealed. See Omnibus Consolidated
Appropriations Act of 1997, Pub. L. No. 104-208,
§ 308(b)(7), 110 Stat. 3009 (1996). The replacement
provision does not encompass Abay’s claim. See 8 U.S.C.
§ 1229b (allowing “cancellation of removal” for permanent
resident aliens who, among other requirements, “establish[]
that removal would result in exceptional and extremely
unusual hardship to the alien’s . . . child, who is a citizen of
the United States or [an alien permanent resident]”). Nor
does the regulatory authority that permits “humanitarian”
grants of asylum add traction to Abay’s derivative claim. It
is reserved for individuals who have established past
20 Abay et al. v. Ashcroft et al. No. 02-3795
persecution and would face “other serious harm” if deported,
see 8 C.F.R. § 208.13(b)(1)(iii), a showing that Abay has not
yet made.
Circuit court precedent does not advance this claim either,
particularly in the absence of testimony that the child
effectively would be deported alongside the parent. See, e.g.,
Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)
(rejecting asylum claim to the extent it relied on mistreatment
of family members rather than of the applicant); Oforji v.
Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003) (rejecting
mother’s claim for avoiding deportation based on the threat of
FGM to her daughters as lacking in statutory or regulatory
authority); Osigwe v. Ashcroft, No. 02-60725, 2003 WL
22287540, at *1 (5th Cir. Oct. 6, 2003) (noting that the
parents of a girl who would be forced to undergo FGM if
returned to Nigeria “are not eligible for asylum under the
general asylum provisions based solely on their daughter’s
risk of being subject to FGM”); Tamas-Mercea v. Reno, 222
F.3d 417, 424 (7th Cir. 2000). The Seventh Circuit, it is true,
once endorsed a “constructive deportation” theory, which
covered parents who established that their children (who
otherwise had a legal right to remain in the country) would in
effect be deported along with their parents and face “extreme
hardship.” See Salameda v. INS, 70 F.3d 447, 451 (7th Cir.
1995). But, again, this theory rested on the now-repealed
immigration statute mentioned above. To the extent recent
cases suggest that the theory has continuing currency, they do
so in the context of concrete indications that the child would
be forced to accompany the deported parent. See Obazee v.
Ashcroft, No. 02-3416, 2003 WL 22473831, at *3 (7th Cir.
Oct. 24, 2003) (acknowledging the “constructive deportation”
theory but refusing to grant relief because the petitioner did
not point to any evidence that her daughter would necessarily
have to leave the United States); Nwaokolo, 314 F.3d at 310
(granting reopening to determine whether a mother could
obtain relief under the Convention Against Torture based on
the fear that her four-year old daughter would face
involuntary FGM if she were deported).

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No. 02-3795 Abay et al. v. Ashcroft et al. 21
No more helpful to this claim are the administrative
decisions of the agency. Matter of C-Y-Z, 21 I. & N. Dec.
915 (BIA 1997), involved the asylum claim of a man whose
wife was at risk of being forced to undergo sterilization. In
considering whether the husband qualified as a “refugee”
under 8 U.S.C. § 1101(a)(42), the parties agreed that “the
forced sterilization of one spouse . . . is an act of persecution
against the other spouse.” Id. at 919. And while Matter of
Adeniji, No. A41 542 131, Slip Op. at 10 (Immigr. Ct. Mar.
10, 1998), extended the C-Y-Z logic to the FGM context, it
did so with respect to five- and six-year old children.
Also missing from the record is any evidence that Abay
will be “faced with exposing her child to the [] risk of being
subjected to” FGM unless she is granted asylum. Maj. Op. at
13. The record contains nothing but silence on whether
Amare would follow her mother to Ethiopia if she were
deported. As a 17-year old girl who has been in this country
for almost 11 years, Amare may well have other options.
More critically, this evidentiary void ought to be filled before
relief is granted.
III.
Even though the relevant statutes and case law currently do
not support Amare’s claim and do not support granting
asylum to Abay on a derivative basis, I agree with the
decision to remand the case. Each claim is of recent vintage,
the record is conspicuously meager with respect to each
claim, and the Immigration Judge ought to be given a chance
to address each claim in the context of a fresh, recently-
supplemented record and after consideration of the agency’s
“considerable experience and expertise” on these issues.
Azanor v. Ashcroft, 364 F.3d. 1013, 1021 (9th Cir. 2004)
(remanding case for consideration of an FGM-based
derivative torture claim and treating the claim as a question of
“first impression”).

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