Camara v. Holder , 725 F.3d 11 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2294
MOULAYE ABDEL CAMARA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW FROM AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Timothy J. Nutter on brief for petitioner.
Jason Wisecup, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Acting Assistant Attorney General,
Civil Division, and Carl H. McIntyre, Jr., Assistant Director,
Office of Immigration Litigation, on brief for respondent.
July 26, 2013
LYNCH, Chief Judge. Moulaye Abdel Camara of Senegal has
been ordered removed to Guinea and has foregone the opportunity for
voluntary departure. He petitions for review of a September 28,
2012, decision by the Board of Immigration Appeals (BIA), which
affirmed the decision of an immigration judge (IJ) denying his
application for withholding of removal (WOR) and protection under
the Convention Against Torture (CAT). Camara was found not to have
suffered past persecution and had not established the likelihood of
any future personal injury to him rising to the level of
persecution.
His claim of persecution was based on his future
opposition to the possible female genital mutilation (FGM) of his
daughters if he took them with him to Guinea. Camara was also
found ineligible for relief on the basis of any prospective harm to
his daughters. CAT protection was denied because Camara had not
established the likelihood of torture at the hands of or with the
acquiescence of his home government.
Camara makes two arguments in his petition. First, he
argues that the IJ and the BIA erred in finding that it would be
reasonable for him to relocate internally, away from his family and
home village in Guinea, to avoid any personal injury. Second, he
argues that both erred in failing to consider whether the threat of
forced FGM to his daughters, should they return with him,
constituted a threat of direct persecution to him in the form of
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emotional harm. The first argument fails because the findings of
reasonable relocation that Camara questions were supported by
substantial evidence. The second fails because Camara's theory of
"direct" persecution of him based on the possible risk to his
daughters has been foreclosed by the BIA, in a reasonable
interpretation of the statute, and by circuit precedent. We deny
his petition.
I.
Camara is a native of Senegal and a citizen of Guinea.
He entered the United States on May 1, 1999, as a visitor, with
permission to remain for five months. He did not leave. The
Department of Homeland Security served Camara with a Notice to
Appear almost a decade later, charging that he was removable
pursuant to 8 U.S.C. § 1227(a)(1)(B) as an alien who remained in
the United States beyond September 30, 1999, without authorization.
Camara conceded removability, requesting relief in the form of WOR
and protection under the CAT.
A merits hearing was held before an IJ on July 13, 2011.
There, Camara testified that, once he was in the United States, he
and his wife had three children. Camara's wife lacked legal
residence in the United States, and was pursuing cancellation of
removal in another proceeding. Their three children, two girls and
a boy, were all United States citizens. Camara testified that,
despite the children's legal residence in the United States, he
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would be forced to take them with him to Guinea if he was removed.
He claimed that this would be so even if his wife obtained legal
residence in the United States, as well. Camara said no one could
provide for the children like him.
Camara testified that, if removed to Guinea, he would be
subjected to beatings and voodoo at the hands of his family and
other members of his tribe. This would be on account of his
opposition to his daughters being subjected to FGM. Camara claimed
further that he would be subject to such violence even if his
daughters remained in the United States, because he had refused to
bring them to Guinea.
Camara denied that internal relocation would do any good,
although he had testified that his persecution would come from his
family and his tribe. FGM was a nationwide practice1 that,
although illegal, the Guinean government did nothing to prevent.
Wherever Camara might relocate within Guinea, the threat to him
would be the same, he said. When asked about relocating to
Senegal, Camara seemed to concede that his lack of Senegalese
citizenship would be no bar. What made that option infeasible,
however, was that he "ha[d] nothing there."
The IJ denied Camara's requests for relief. As to WOR,
she found that Camara had not been threatened in the past and had
1
State Department reports in the record state that somewhere
between 96% and 98.6% of women in Guinea are subjected to FGM.
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not established the probability of future persecution on a
protected ground. More specifically, she found that Camara had not
shown that his United States citizen daughters would be forced to
return with him to Guinea if he was removed. Further, she found
that any threat posed by his family and fellow tribespeople could
be avoided through relocation within Guinea, a course of action
that would be reasonable to expect him to follow under the
circumstances. As to CAT relief, the IJ found that the hostility
Camara feared came from private citizens. Camara had provided no
evidence that he would be targeted in any way by a government
actor, let alone targeted for persecution.
Camara appealed to the BIA, which dismissed the appeal on
September 28, 2012. The Board agreed with the IJ that Camara had
not established past persecution. It agreed further that Camara
had not established the likelihood of future persecution by his
family or by members of his tribe. The Board observed that,
although Camara had introduced evidence that FGM was widespread in
Guinea, that evidence did not establish a threat of harm rising to
the level of persecution to him in particular. In addition, the
Board agreed with the IJ that the evidence on the record did not
support a finding that relocation within Guinea would be
unreasonable.
Finally, the BIA held that, insofar as Camara's claim was
predicated upon a fear of his daughters being subjected to FGM, the
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Board had already determined in In re A-K-, 24 I. & N. Dec. 275(BIA 2007), that such a fear is, by itself, not a basis for WOR.
As to CAT relief, the Board noted that Camara had not specifically
challenged that denial on appeal. And, anyway, it agreed with the
IJ that Camara had not established the likelihood of torture by or
with the acquiescence of Guinean officials.2 The Board ordered
that Camara be removed.
On October 26, 2012, Camara petitioned this court for
review of the BIA's decision.
II.
Where the BIA adopts the IJ's findings, we review the
BIA's decision in conjunction with those findings. Romilus v.
Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004). We review the agency's
findings of fact under the substantial evidence standard. Matovu
v. Holder, 577 F.3d 383, 386 (1st Cir. 2009). "Under this
deferential standard, we accept these findings so long as they are
grounded in reasonable, substantial, and probative evidence on the
record considered as a whole," id. (quoting Sharari v. Gonzáles,
407 F.3d 467, 473 (1st Cir. 2005)) (internal quotation marks
omitted), granting a petition only "if the record compels a
2
The IJ granted Camara a 60-day voluntary departure period,
subject to the condition that Camara post a $500 bond. Camara
failed to post the bond. The BIA did not reinstate Camara's period
of voluntary departure in its final order because Camara had not
submitted within 30 days of filing his appeal any proof of having
posted the $500 voluntary departure bond. See 8 C.F.R.
§ 1240.26(c)(3)(ii).
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conclusion contrary to that reached by the agency," López Pérez v.
Holder, 587 F.3d 456, 460 (1st Cir. 2009).
We review the agency's legal conclusions de novo, but
afford "substantial deference to the BIA's interpretations of the
underlying statutes and regulations according to administrative law
principles." Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.
2009); see also Holder v. Martínez Gutiérrez, 132 S. Ct. 2011, 2017
(2012) ("[The BIA's] position prevails if it is a reasonable
construction of the statute, whether or not it is the only possible
interpretation or even the one a court might think best." (citing
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 843-844 & n.11 (1984))); INS v. Aguirre-Aguirre, 526 U.S. 415,
425 (1999) ("[J]udicial deference to the Executive Branch is
especially appropriate in the immigration context . . . .").
To qualify for WOR, "[t]he burden of proof is on the
applicant . . . to establish that his or her life or freedom would
be threatened in the proposed country of removal on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 C.F.R. § 208.16(b); see also 8
U.S.C. § 1231(b)(3)(A). An applicant can satisfy this burden by
demonstrating past persecution, which gives rise to a rebuttable
presumption of a future threat to the applicant's life or freedom,
or by showing that it is "more likely than not" that he or she will
suffer future persecution on account of one of the protected
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grounds. 8 C.F.R. § 208.16(b)(1)(I), (b)(2); see also Tay-Chan v.
Holder, 699 F.3d 107, 111 (1st Cir. 2012).
Here, substantial evidence supports the determination
that Camara faced neither past persecution nor a likelihood of
future persecution. Camara argues that, because the practice of
FGM within Guinea is "nearly universal," the IJ and in turn the BIA
erred in finding that internal relocation had not been shown to be
unreasonable.3 This argument suffers from at least two defects.
First, the evidence in the record does not clearly establish that
any harm would be inflicted upon the parents who oppose FGM in
Guinea, or that it would rise to the level of persecution of those
parents. Indeed, the evidence that Camara relies upon here
indicates only that "parents who do not have their daughter cut
might be considered neglectful." R. Van Rossem & A. Gage, The
Effects of Female Genital Mutilation on the Onset of Sexual
Activity and Marriage in Guinea, 38 Archive Sexual Behav. 178, 179
(2009) (emphasis added); see also Barsoum v. Holder, 617 F.3d 73,
79 (1st Cir. 2010) ("To show persecution, an alien must show more
3
Camara argues further that the burden is on the Government
to establish that relocation would be reasonable, citing In re M-Z-
M-R-, 26 I. & N. Dec. 28 (BIA 2012). In that case, however, the
applicant had shown past persecution, creating a presumption of
risk of future persecution and shifting the burden onto the
Government to rebut that presumption by establishing the
reasonability of relocation. Id. at 29. By contrast, where, as
here, the applicant has not shown past persecution, the burden
rests with him or her to establish that relocation would be
unreasonable. 8 C.F.R. § 208.13(b)(3)(i).
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than 'unpleasantness, harassment, and even basic suffering.'"
(quoting Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir. 2008))).
Second, the argument assumes, without support, that if Camara is
removed, his two daughters would be forced to accompany him to
Guinea. Camara also claims that, even if his daughters were not to
come to Guinea, he would face persecution for failing to present
them for FGM. The IJ reasonably disregarded this claim. As the IJ
observed, no law would require Camara's United States citizen
daughters to leave this country if Camara were removed. Moreover,
at the time of his hearing, Camara conceded that his wife's
separate application for cancellation of removal was still under
consideration. This court requested a supplemental filing from
both parties on the matter, and we have been informed that Camara's
wife was granted cancellation as well as permanent residence on
October 2, 2012. She may thus lawfully remain in the United
States.4
Camara also argues that the IJ and the BIA erred in
failing to consider whether the threat of FGM to his daughters
constituted a threat of "direct" persecution5 to him in the form of
4
On October 24, 2012, Camara's wife filed a petition for her
husband to obtain an immigrant visa as an immediate relative (an
I–130 petition) under the Immigration and Nationality Act section
204(a), 8 U.S.C. § 1154. That petition is still pending.
5
In addition, Camara argues that the IJ and the BIA erred in
failing to consider whether the (alleged) threat to his daughters
constituted a threat of direct torture to him. As both the IJ and
the BIA observed, Camara presented no evidence of prospective
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psychological injury. Again, this argument suffers from at least
two defects. First, it assumes without support that Camara's
removal would result in his daughters' accompanying him to Guinea.
Second and more fundamental, it relies on a theory of
persecution that has been foreclosed by the BIA and this court. In
In re A-K-, a FGM case, the BIA held squarely that "allowing an
applicant to obtain asylum or withholding of removal through
persecution to his child would require granting relief outside the
statutory . . . scheme established by Congress." 24 I. & N. Dec.
at 278; see also Negusie v. Holder, 555 U.S. 511, 516 (2009)
("[T]he BIA is entitled to deference in interpreting ambiguous
provisions of the [immigration statutory scheme].").
This court has recognized the authority of that holding.
See, e.g., Mariko v. Holder, 632 F.3d 1, 8 (1st Cir. 2011) (citing
In re A-K- and holding scheme does not permit relief for parent on
basis of threat of FGM to child); Kechichian v. Mukasey, 535 F.3d
15, 22 (1st Cir. 2008) (observing that In re A-K- "foreclose[s]"
government involvement or acquiescence in the harms that he fears,
aside from his bare and uncorroborated claim that "[i]f you go to
the police to file a complaint or to seek protection, they won't
even, you know, look at you." Camara does nothing to challenge
those findings here, and so the CAT claim must fail. See also
Warui v. Holder, 577 F.3d 55, 58 (1st Cir. 2009) (expressing
skepticism concerning cognizability of claims of "derivative"
torture under CAT); In re A-K-, 24 I. & N. Dec. 275, 280 (BIA 2007)
("There is no legal basis for a derivative grant of [CAT]
protection where, as here, the respondent has not alleged any past
torture, or fear of future torture, to himself.").
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any claim by a parent of "psychological harm based solely on a
child's potential persecution").
Other circuits agree that, in situations parallel to
this, fear that a petitioner's children will be subjected, if they
accompany the parent, to FGM is not in itself a basis for
immigration relief to the petitioner. See, e.g., Kane v. Holder,
581 F.3d 231, 241-43 (5th Cir. 2009) (denial of WOR); Gumaneh v.
Mukasey, 535 F.3d 785, 788-90 (8th Cir. 2008) (denial of WOR);
Oforji v. Ashcroft, 354 F.3d 609, 614-18 (7th Cir. 2003) (denial of
CAT relief).
Camara invokes Abay v. Ashcroft, 368 F.3d 634 (6th Cir.
2004), as contrary precedent. See id. at 640-42 (affording refugee
status to parent based on fear of child being subjected to FGM).
Abay preceded In re A-K-, and did not have the benefit of the BIA's
reasoning in that case. Indeed, the concurring opinion notes the
need to first get guidance from the agency. See id. at 646(Sutton, J.). Moreover, as this court has noted, Abay "is the
'only federal decision' to have reached such a result . . . and in
any event it does not bind this circuit." Kechichian, 535 F.3d at
22 (quoting Niang v. Gonzales, 492 F.3d 505, 512 (4th Cir. 2007)).
Camara argues that In re A-K- dealt only with theories of
"derivative" persecution, whereas the persecution that he theorizes
is "direct." Not so. In re A-K- distinguished claims of "direct"
persecution (cognizable under the statutory scheme) from claims of
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"derivative" persecution (not cognizable). Thus, the BIA
explained, in "cases where a person persecutes someone close to an
applicant . . . with the intended purpose of causing emotional harm
to the applicant . . . the persecution would not be 'derivative,'
as the applicant himself would be the target of . . . emotional
persecution." In re A-K-, 24 I. & N. Dec. at 278 (emphasis
added).6 Label aside, the risk of persecution Camara alleges is
thus derivative, not direct.
The petition is denied.
So ordered.
6
Camara has not alleged that this is a case in which his
daughters are at risk of being persecuted as a means of inflicting
psychological harm upon him. Nor could he at this stage, having
made no such allegation during the administrative stages of the
proceeding. See Kandamar v. Gonzales, 464 F.3d 65, 71 (1st Cir.
2006) (requiring exhaustion of administrative remedies); 8 U.S.C.
§ 1252(d)(1) (same). Rather, Camara has alleged only that his
daughters are at risk of FGM, and that he is in turn at risk of
incidental albeit "extreme and grave emotional suffering."
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