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Mulligan v Celestin Usdoj Immigration Review Female Genital Mutilation 2008

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U.S. Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike. Suite 1000
Falls Church, Virginia 2'2041

Mulligan, Dennis,. Esq.
1216 Arch Street, 4th Floor
Philadelphia, PA 19107

Office of the District Counsel/PHI
1600 Callowhill St., 4th Floor
Philadelphia, PA 19130

Name: B_. T

Qate of this notice: 4/21/2008

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
MILLER, NEIL P.

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. U.S. Department of Justice

Decision of the Board of J.m.mjgration Appeals

Executive Office for Immigration Review
Falls Church, Virginia 22041

- Philadelphia, PA

In re:

Date:

APR 2 1 2008

~IIIIIIIIIIIIIIIIIIIIIIII

IN REMOVAL PROCEEDINGS

APPEAL
ON BEHALF OF RESPONDENTS: Dennis Mulligan, Esquire
ON BE:flALF OF DHS: Jean L. Celestin
Assistant Chief Counsel
APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondents, a mother ("lead respondent") and her two minor daughters, are all natives
and citizens of Guinea. By a decision dated August 2,2007, an Immigration Judge granted the two
co-respondents' asylum pursuant to section 208 of the hmnigration and Nationality Act, 8 U.S.C.
§ 1158. 1 In that same opinion, the Immigration Judge pretennitted the lead respondent's asylmn
application, but granted her application for withholding ofremoval under 241(b)(3) of the Act
("withholding ofremoval"), 8U.S.c. § 1231 (b)(3). The Department ofHome1and Security ("DRS")
has filed a timely appeal of the hmnigration Judge's decision. The lead respondent has also filed a
cross-appeal. The request for oral argument is denied. See 8 C.F.R. § 1003.1(e). We adopt and
affinn the decision of the Immigration Judge, except as described below, and the record will be
remanded to the Immigration Court for the sole purpose of updating the background checks for the
respondeots. See Matter ofBurbano, 20 I&N Dec. 872, 874 (BlA 1994) (noting that adoptiou or
affrrmance ofa decision ofan Inunigration Judge, in whole or in part, is "simply a statement that the
Board's conclusions upon review of the record coincide with those which the Immigration Judge
articulated in his or her decision").
Initially, we shall address the timeliness ofllie respondents' applications for asylum.2 Every
applicant for asylum bears the burden ofdemonstrating by clear and convincing evidence either that
her application was filed within 1 year ofher arrival to the United States or that she qualifies for an
exception to the filing requirement. See section 208(a)(2)(D) of the Act; 8 C.F.R. § 1208.4(a)(2).
On appeal, the lead respondeut argues that she merits an exception to the filing requirement. We
agree. Specifically, We fmd the public expression ofthe lead respondent's opposition to the practice

\

I

This opinion amended a decision issued by the hmnigration Judge on March 19, 2007.

2

We fmd no clear error in the Immigration Judge's fmdings offact. See 8 C.F.R. § 1003.l(d)(3).

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offemale genital mutilation ("FGM") that resulted from her daughters' removal from Guinea after
their victinrization had an impact upon the objective reasonableness ofher fear of future hann and,
as such, c()nstitutes a changed circumstance within the meaning of 8 C.F.R. § l208.4(a)(4)(i)(B).
Tr. at 46-47, 49-50, 60-62, 91. Furthermore, insofar as record establishes that the lead
respondent requested asylum approximately 6 months after the co-respondents' arrival to the United
States, we conclude that she sUbmitted her application within a reasonable period ofthe "changed
circumstances." See LJ. at 3 (Aug. 2, 2007); Exh. IB; Exh. lC; Exh. 2; see also 8 C.F.R.
§ 1208.4(a)(4)(ii). Accordingly, we fmd that the respondents are all eligible to seek asylum. We will
now consider whether the Immigration Judge erred in granting the respondents applications for
relief.

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If an applicant is able to establish that she has been persecuted in the past on account of a
protected ground, such a showing will give rise to. a rebuttable presumption that she is entitled to
asylum. See 8 C.F.R. § 1208.13(b)(1). However, this preswnption is still rebuttable. See 8 C.F.R.
§§ 1208.16(b)(1 )(i), (ii). In this case, we find that the past hann suffered the respondents rises to the
level of past persecution. See Tr. at 44, 46-50, 60-62, 64, 77-83; Exh 6A; Exh. 6B; Exh. 6C; Exh.
9; Exh. 10 at II; see also Exh. 2; Exh. 2A; Exh. 3; Exh. 3A; Exh. 4AExh. 4B; see generally Exh.
11; Exh. 15. Moreover, although the record indicates that the respondents may no longer possess
a well-founded fear of future persecution, we find that they are nonetheless eligible for a grant of
asylwn based on humanitarian grounds. See 8 C.F.R§ 1208. 13(b)(l )(iii)(A); Matter afS-A-K- and
H-A-H-, 24 I&N Dec. 464 (BIA 2008); see also Matter afA-T-, 24 I&N Dec. 296 (BIA 2007);
Matteraf A-K-, 24 I&N Dec. 275 (BIA 2007). All three of the respondents have suffered an
atrocious form of persecution and, in view of the aggravating circumstances presented here, they
should not be expected to return to Guinea. We further fmd no discretionary grounds on which to
deny them asylUin.
Based on these considerations, the following orders will be entered.
ORDER: The Department of Homeland Security's appeal is dismissed.
FURTHER ORDER: The lead respondent's appeal is sustained.
FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.I(d)(6), the record is remanded to the
Inunigrati.on Judge for the purpose ofallowing the Department ofHomeland Security the opportunity
to complete or update identity, law enforcement, or security investigations or examinations, and
further proceedings, ifnecessary, and for the entry ofanotder as provided by 8 C.F.R. § 1003.47(h).

FOR THE BOARD

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