09-2689 Kone v. Holder

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Immigration
Asylum; FGM

The BIA must consider an asylum claimant’s contention that, if removed, her citizen-daughter would be subjected to female genital mutilation.

“Other circuits have also recognized the possibility that the prospect of FGM of one’s child can constitute harm to an unwilling parent and similarly remanded to the BIA for further consideration of the issue. In Kone v. Holder, 596 F.3d 141, 143 (2d Cir. 2010) (no relation to petitioner in this case), a woman from Cote d’Ivoire sought asylum based on, inter alia, the fear that her daughters would be forcibly subjected to FGM against her wishes were they to go to that country. The Second Circuit remanded the case to the BIA, and indicated that it could consider ‘whether the mental anguish of a mother who was herself a victim of genital mutilation who faces the choice of seeing her daughter suffer the same fate, or avoiding that outcome by separation from her child’ would qualify as sufficient persecution of a petitioner so as to warrant a grant of asylum under 8 C.F.R. § 1208.13(b)(1)(iii)(B). Id. at 153. The court recognized, as Kone did in the argument she made to the BIA here, that such a theory is “distinct from a claim of derivative asylum.” Id.”

“In light of the precedent we have discussed above, Kone may have a viable claim that FGM of Mariam against her will constitutes direct persecution of her parents. In light of the BIA’s silence on the theory, it is ‘impossible to be confident’ that Kone’s claim has been ‘fully understood or analyzed.’ Chitay-Pirir v. I.N.S., 169 F.3d 1079, 1081 (7th Cir. 1999). Remand is appropriate so that the BIA can more fully address Kone’s direct-persecution claim in light of the case law we have set forth. See Gonzales, 547 U.S. at 186; Chen, 604 F.3d at 335; Gomes, 473 F.3d at 752.”

Petition Granted.

09-2689 Kone v. Holder

Petition for Review of Orders of the Board of Immigration Appeals, Williams, J.

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