WILLIAMS, Circuit Judge.
Lead petitioner Fatoumata Kone ("Kone"), her husband Lasanna Diarra ("Lasanna"), and their oldest daughter Kamissa Diarra ("Kamissa") are natives and citizens of Mali. They entered the United States on August 18, 2001 and remained in the country after the expiration of their visas. Kone and Lasanna then had a second daughter, Mariam, who by virtue of her birth here is a United States citizen. In 2006, Kone, as lead petitioner for her family, filed for asylum, withholding of removal, and protection under the Convention Against Torture on the basis that if made to return to Mali, Mariam would be forced to undergo female genital mutilation ("FGM"), a common practice in Mali to which both her mother and sister have already been subjected. An immigration judge denied the application, finding the asylum petition untimely and denying other relief on the grounds that Kone could not make a "derivative" claim based on a threat of persecution to her daughter. The Board of Immigration Appeals ("BIA") affirmed the denial of relief, and Kone petitioned this court for review. Because the BIA did not address Kone's claim that FGM of her daughter would constitute direct psychological persecution
Kone, Lasanna, and Kamissa are natives and citizens of Mali and members of the Bambara ethnic group. Kone and her family entered the United States on August 18, 2001 on nonimmigrant B2 visas and remained in the country after they expired, living first in New York and then Chicago. In November 2004, Kone and Lasanna had a second daughter, Mariam, born a United States citizen. On January 5, 2006, Kone, as lead petitioner, filed an application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").
Kone, Lasanna, and Kamissa were deemed removable and issued Notices to Appear in Immigration Court. On July 10, 2007, a merits hearing was held before an Immigration Judge ("IJ"). At the hearing, Kone testified to the high likelihood that Mariam would be subjected to FGM if brought to Mali, where, she said, all female Bambara tribe members undergo the procedure. Kone's testimony regrettably is backed up by State Department statistics indicating that approximately 95% of all women in Mali have been subjected to FGM. See U.S. Department of State, 2009 Human Rights Report: Mali, http://www.state.gov/g/drl/rls/ hrrpt/2009/af/135964.htm (last visited August 3, 2010). Kone testified that she herself underwent FGM at the age of five, and that it had been performed on her first daughter Kamissa when she was two years old, without Kone's knowledge. Kone explained that a relative snatched Kamissa away while Kone was not home and performed the procedure under primitive conditions without anesthesia. She claimed that while she and her husband oppose FGM, they would not be able to prevent it from being similarly performed on Mariam. Kone stated that even if she and her husband maintained constant vigilance over Mariam, it was likely that she would still be forcibly taken from them so that the procedure could be performed. Kone also testified about the emotional trauma she would feel if FGM were in fact performed on her daughter against her will.
The IJ found Kone's testimony to be credible and determined that it was more likely than not that Mariam would be forced to undergo FGM if she were to go to Mali. However, the IJ denied all requested relief in an oral decision at the close of the hearing. The IJ first denied Kone's asylum claim as untimely under Section 208(a)(2) of the Immigration and Nationality Act ("INA"), which provides for a one-year time limit for asylum applications except for when the alien demonstrates changed or extraordinary circumstances warranting the delay. 8 U.S.C. § 1158(a); see also 8 C.F.R. § 1208.4(a). The IJ found that while Mariam's birth was a changed circumstance that excused part of the delay in applying for asylum, the application was still untimely because
Kone appealed to the BIA and made two main arguments. She first argued that if Mariam were to be subjected to FGM in Mali, the anguish that her parents would suffer would constitute direct persecution of her parents under the CAT. Alternatively, Kone advanced a derivative asylum theory, arguing that while Olowo and Oforji foreclose derivative asylum based on the likelihood of FGM to a child in some situations, those cases are distinguishable because they did not involve a situation where both parents were in removal proceedings.
In the BIA's written ruling denying Kone's appeal, it concurred with the IJ's ruling that Kone's asylum application was untimely for having failed to file it within a reasonable time of the birth of Mariam. The BIA also agreed with the IJ's denial of withholding of removal and protection under the Convention Against Torture. The BIA cited Olowo and Oforji for the proposition that parents cannot establish derivative claims for relief based on potential hardship to their children, and rejected Kone's argument that her situation was distinguishable. The BIA was silent, however, as to Kone's argument that FGM of Mariam against her parents' will could constitute direct persecution of her parents. Kone petitioned this court for review of the BIA's denial of withholding of removal and protection under the CAT.
When, like here, the BIA issues its own written analysis instead of summarily adopting that of the IJ, we review the BIA's decision. Chen v. Holder, 604 F.3d 324, 330 (7th Cir.2010). We review the agency's legal conclusions de novo, Atunnise v. Mukasey, 523 F.3d 830, 835 (7th Cir.2008), and factual findings for substantial evidence. Huang v. Mukasey, 525 F.3d 559, 564 (7th Cir.2008). We will disturb factual findings only if the evidence compels a conclusion contrary to that of the BIA. Kedjouti v. Holder, 571 F.3d 718, 721 (7th Cir.2009).
While our review is deferential, remand is appropriate when the BIA "overlooks key aspects of an asylum-seeker's claim and might reach a different conclusion after a more complete evaluation of the record." Chen, 604 F.3d at 330; see also Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (remand to agency is proper course when additional determination or explanation is necessary); I.N.S. v. Ventura, 537 U.S. 12,
We conclude that the BIA overlooked a key aspect of Kone's claim and that a more complete evaluation is necessary. See Chen, 604 F.3d at 330. The BIA effectively only addressed half of Kone's argument: it concluded that Kone could not assert a derivative claim based on potential hardship to her daughter, but failed to address her assertion that FGM of Mariam would also constitute direct persecution of her parents.
The BIA rejected Kone's claim for derivative relief based on a threat of FGM to her daughter, relying on our rulings in Oforji and Olowo.
There is, however, a distinction between the situations in Oforji and Olowo and Kone's situation here. In both Oforji and Olowo, only one parent was in removal proceedings, meaning there was at least the possibility that the other parent could take care of the child in the United States. Cf. Olowo, 368 F.3d at 701 (father was available); Oforji, 354 F.3d at 618 (father may have been available). Here, both parents are in removal proceedings. The BIA somewhat cursorily rejected Kone's attempt to highlight this distinction, noting that because the whereabouts of the petitioner's husband in Oforji were unknown, it was not clear that the children in that
In addition to asserting a derivative claim, Kone also made a separate argument to the BIA: that FGM of Mariam would constitute direct persecution of her parents cognizable under the Convention Against Torture.
In Gatimi v. Holder, 578 F.3d 611 (7th Cir.2009) ("Gatimi I"), a Kenyan man had defected from a criminal political/religious organization in Kenya and faced retribution for having done so. He sought asylum (along with his wife and daughter as derivative applicants) based on a fear of returning to Kenya where he claimed the persecution could continue. Id. at 613-14. Part of Gatimi's claim was that his wife would be subjected to FGM if returned to Kenya, because the organization compelled wives of defectors to undergo the procedure. Id. We found that this potential harm to Gatimi's wife could "constitute persecution of him." Id. at 617 (emphasis in original). We noted:
Id.; see also Gatimi II, 606 F.3d at 348 ("persecution of Mrs. Gatimi can constitute persecution of Mr. Gatimi, and so her fear of persecution is relevant to his (and therefore their) claim for asylum.") (emphasis added). While not directly analogous to the situation before us—we see no evidence in this case indicating that Mariam would be subjected to FGM as a way to "punish" her family—the Gatimi cases are relevant here because they address the concept that genital mutilation of a petitioner's family member can constitute direct, as opposed to derivative, persecution of the petitioner. Kone made this argument on appeal, and the BIA should consider it.
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 Sixth Circuit has similarly indicated that a petitioner can potentially qualify for relief in her own right based on threats of FGM to a child. In Abay v. Ashcroft, 368 F.3d 634, 636 (6th Cir.2004), an Ethiopian mother and daughter sought asylum and withholding of removal based on the fear that the daughter would be subjected to FGM, as her mother had previously been, if they were deported to Ethiopia. Surveying previous BIA decisions, the court found that Abay could demonstrate persecution based on the harm she would suffer by "being forced to witness the pain and suffering of her daughter" if she were subjected to FGM. Id. at 642. The BIA itself has also addressed the possibility. See Matter of Dibba, No. A73 541 857 (BIA Nov. 23, 2001) (mother's argument that being forced to allow FGM of daughter in Gambia would cause her mental suffering was sufficient to reopen case).
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, 126 S.Ct. 1613; Chen, 604 F.3d at 335; Gomes, 473 F.3d at 752.
We GRANT the petition for review, VACATE the BIA's decision, and REMAND for further proceedings consistent with this opinion.