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'Well-Founded Fear' is Critical in Asylum Appeal

By Robyn Hagan Cain | Last updated on

The Sixth Circuit Court of Appeals rejected a Senegalese couple’s asylum appeal this week, finding that the couple failed to assert a well-founded fear that their daughters would be subject to female genital mutilation if they returned.

Aminata Dieng and her husband Ousseynou N’Diaye Lo asked for review of a Board of Immigration Appeals’ (BIA’s) final order of removal denying their applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). Lo entered the United States in 1997 with a non-immigrant student visa. He reunited with Dieng, whom he first met in Senegal in 1994, when she used a false passport to enter the U.S. in 2003. They married in November 2005, and their daughter Mame was born in April 2006 in Virginia.

Dieng has another daughter, Mariame, who was born in Gambia in January 2003 as a result of a relationship with another Senegalese citizen. Since her birth, Mariame has remained in Gambia with her maternal grandmother.

Lo and Dieng submitted their asylum application in 2007. The U.S. Citizenship and Immigration Service denied the application and placed petitioners in removal proceedings.

While they conceded removability before the immigration judge (IJ), Dieng requested asylum, withholding of removal, and protection under the CAT, with Lo as a derivative applicant. Dieng alleged persecution based on her membership in a particular social group (the Fulani ethnic group), stemming from past unsuccessful attempts by relatives to circumcise her, and her fear that if removed to Senegal, she and her daughters would be at risk of being subjected to female genital mutilation (FGM).

Both the IJ and the BIA rejected the couple's claims, citing the reasonable option of relocation to a safe area, and Dieng's concession that she would not be subject to FGM if she returned to Senegal because she's married and has children. The BIA also noted that Dieng admitted Lo was a member of the Wolof ethnic group -- which does not practice FGM -- and that their daughter, Mame, is considered to be a Wolof. Therefore, Wolof customs would govern Mame's circumstances.

Reviewing the BIA's decision as the final agency determination, the Sixth Circuit affirmed the decision because reasonable and substantial evidence supported the BIA's finding that Dieng does not harbor a well-founded fear of persecution for herself or her daughters based on the prospect of being subjected to FGM.

While FGM can form the basis of a successful claim for asylum, the facts in this case did not support the couple's fears.

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