Case: 09-60948 Document: 00511393878 Page: 1 Date Filed: 02/25/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 25, 2011
                                     No. 09-60948
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JANE OMI WATSON-BAILEY,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A096 030 874


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Jane Omi Watson-Bailey appeals the dismissal by the Board of
Immigration Appeals (BIA) of her appeal of the order of the immigration judge
(IJ) denying her asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). She conceded before the IJ that she was
subject to removal under 8 U.S.C. § 1182(a)(7)(A)(i)(I), which provides that any
immigrant who, at the time of application for admission, is not in possession of
a valid entry document is inadmissible.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-60948

      She argues that such relief should have been granted because of the threat
that her two United States citizen daughters would be forced to undergo female
genital mutilation (FGM) if she were removed to Nigeria, and because of the
threat that she would be beaten and subjected to discrimination for her
opposition to the practice. Whether an alien has demonstrated eligibility for
asylum, withholding of removal, and CAT relief is a factual determination that
we review for substantial evidence. See Chen v. Gonzales, 

, 1134
(5th Cir. 2006). Under the substantial evidence standard, Watson-Bailey has
the burden of showing that the evidence in support of her claims is so compelling
that no reasonable fact-finder could reach a contrary conclusion.         Id.; see
8 U.S.C. § 1252(b)(4)(B).
      Watson-Bailey sought asylum on the basis of “a well-founded fear of future
persecution.” 8 C.F.R. § 1208.13(b). However, under § 1208.13(b)(2)(ii), “[a]n
applicant [for asylum] does not have a well-founded fear of persecution if the
applicant could avoid persecution by relocating to another part of the applicant’s
country of nationality . . . if under all the circumstances it would be reasonable
to expect the applicant to do so.” The BIA found that Watson-Bailey could
relocate to a part of Nigeria where FGM is rarely practiced, and the evidence
does not compel a contrary conclusion. See 

. She now
contends that the BIA applied the wrong standard when considering whether
relocation was reasonable, and she argues that the record evidence shows that
civil strife and ethnic discrimination make it unreasonable to expect her to
relocate. However, she did not raise these arguments before the BIA, and we
lack jurisdiction over them. 8 U.S.C. § 1252(d)(1).
      Watson-Bailey also challenges the BIA’s ruling on her request for asylum
on humanitarian grounds. The Attorney General has discretion to grant asylum
in the absence of a well-founded fear of persecution if an applicant “has
demonstrated compelling reasons for being unwilling or unable to return . . .
arising out of the severity of the past persecution” or if she establishes a

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                                 No. 09-60948

reasonable possibility of suffering “other serious harm” upon removal. 8 C.F.R.
§ 1208.13(b)(1)(iii). Although Watson-Bailey argues that the BIA should have
remanded her humanitarian asylum claim to the IJ for further fact-finding, she
did not file a motion to remand with the BIA as required by 8 C.F.R.
§ 1003.1(d)(3)(iv). Accordingly, we lack jurisdiction to review the BIA’s failure
to remand the humanitarian asylum claim to the IJ. See § 1252(d)(1). Watson-
Bailey also contends that the BIA erred by considering only whether she had
demonstrated compelling reasons arising out of past persecution instead of also
considering whether there was a reasonable probability that she would suffer
“other serious harm” upon removal, but the BIA’s order responded to the specific
argument presented in her brief, in which she cited only a BIA case dealing with
humanitarian asylum based on past persecution. That the BIA responded to her
specific arguments does not make its decision “manifestly contrary to the law
and an abuse of discretion.” § 1252(b)(4)(D).
      As with her asylum claim, Watson-Bailey failed to argue before the BIA
that she should be granted withholding of removal because relocation was
unreasonable in light of country conditions such as civil strife and
discrimination. To the extent that she now challenges the denial of withholding
of removal on that basis, we lack jurisdiction to review her claim. § 1252(d)(1).
Substantial evidence otherwise supports the BIA’s denial of asylum on the basis
that Watson-Bailey could relocate to an area of Nigeria where the risk of FGM
is much lower. See 8 C.F.R. § 1208.16(b)(2); 

.
      Watson-Bailey also contends that the BIA erred in denying her request for
relief under the CAT, but the regulations governing such relief define torture,
in part, as involving the consent or acquiescence of a public official. 8 C.F.R.
§ 1208.18(a)(1).   The record shows that several Nigerian states, including
Watson-Bailey’s home state of Bayelsa, have banned FGM and that the federal
government publicly opposed the practice.       Accordingly, while the record
evidence also indicated that enforcement of anti-FGM laws at the local level has

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been inconsistent, substantial evidence supports the BIA’s finding that she is not
likely to be tortured if she is removed to Nigeria. See 

record
evidence shows that Watson-Bailey could relocate to a part of Nigeria where
fewer than 1% of women have undergone FGM, and she cannot show that the
evidence in support of her claim “is so compelling that no reasonable factfinder
could reach a contrary conclusion.”          

; see also
§ 1208.16(c)(3) (“[A]ll evidence relevant to the possibility of future torture shall
be considered, including, but not limited to . . . [e]vidence that the applicant
could relocate to a part of the country of removal where he or she is not likely to
be tortured.”).
      PETITION DENIED.




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