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. ; •• L . 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). ,. 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. see 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 2