PUBLISHED

Filed: September 21, 2009

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANCOISE ANATE GOMIS, 

Petitioner,

v.  No. 08-1389

ERIC H. HOLDER, JR., Attorney

General,

Respondent. 

O R D E R

In a poll requested by a member of the Court on whether

to rehear this case en banc, Judges Michael, Motz, King,

Gregory, and Duncan voted to rehear this case, and Chief

Judge Traxler, and Judges Wilkinson, Niemeyer, Shedd, and

Agee voted to deny rehearing en banc. As a majority of active

judges did not vote to rehear this case en banc, the poll failed.

Judge Niemeyer has written an opinion supporting the

denial of rehearing en banc, and Judge Gregory has written an

opinion dissenting from the denial of rehearing en banc.

Entered for the Court at the direction of Judge Niemeyer.

For the Court

/s/ Patricia S. Connor

Clerk
NIEMEYER, Circuit Judge, concurring in the denial of

rehearing en banc:

Female genital mutilation is an abhorrent practice, and Senegal enacted a law in 1999 criminalizing it. Since then, the

practice has been declining in Senegal, and the State Department’s reports on Senegal state that female genital mutilation

is now hardly practiced in populated areas, such as Dakar,

where Francoise Gomis lived.

While Gomis gave her opinion that the practice was more

prevalent than indicated in the State Department’s reports, the

administrative law judge chose to rely on the State Department’s reports, concluding that Gomis was not attempting to

be deceitful in giving her opinion but that she simply lacked

"knowledge of the actual facts." At bottom, the judge concluded that Gomis had not established that it was more likely

than not that she, as an educated adult, would be subjected to

female genital mutilation upon return to Dakar, and the Board

of Immigration Appeals (BIA) concurred.

On her petition for review of the BIA’s decision, our role

is not to make independent judgments on the facts but to defer

to the agency’s factfinding "unless any reasonable adjudicator

would be compelled to conclude to the contrary." 8 U.S.C.

§ 1252(b)(4)(B) (emphasis added). On this record, we are not

compelled to conclude to the contrary. The immigration judge

had reliable facts on which to rest his factfinding. Moreover,

contrary to Judge Gregory’s argument in his dissenting opinion, our earlier decision in Haoua v. Gonzales, 472 F.3d 227

(4th Cir. 2007), does not compel a contrary factual finding in

this case. That case was based on different facts in the context

of a different country, Niger. Indeed, our reversal of the

BIA’s decision in Haoua was based on the immigration

judge’s speculation that the petitioner had a 10% chance of

suffering female genital mutilation if she returned to Niger—

a finding we concluded was not supported by the facts in the

record—and on the government’s concession that if the peti2 GOMIS v. HOLDER
tioner returned to her family in Niger, "her likelihood of suffering FGM would approach 100%." Id. at 232.

Our deferential role in this case is well defined, and it

requires that we deny Gomis’ petition for the reasons given in

the panel opinion. In these circumstances, our decision not to

rehear this case is appropriate, especially in view of the fact

that Gomis did not herself seek a rehearing en banc.

GREGORY, Circuit Judge, dissenting from the order denying

sua sponte rehearing en banc:

Under the current immigration system in this country, refugees from Sub-Saharan Africa are some of the most disadvantaged petitioners before our courts. They are the beneficiaries

of very few rights which allow them to immigrate and seek

the protection of our law.

There is, however, one basis for asylum that is clearly

established in both this Circuit and the other federal courts:

protection from female genital mutilation. Barry v. Gonzalez,

445 F.3d 741, 745 (4th Cir. 2006). This procedure involves

anything from cutting off the clitoris with scissors to the

shearing off of the entirety of the visible parts of the female

sex organs with a knife and sewing them together using twine.

See World Health Organization, Female Genital Mutilation:

A Handbook for Frontline Workers 13 (2000). It is often done

to either very young girls or as a puberty rite, but may occur

at any time in a woman’s life. Beyond the risks of surgery

using unsterilized implements, many women experience

severe infection, become outcasts when they develop incontinence after losing so much of their genitals, or have lifethreatening difficulties with childbirth. World Health Organization et al., Eliminating Female Genital Mutilation: An

Interagency Statement 11 (2008) (describing some of the

harmful effects of female circumcision).

GOMIS v. HOLDER 3
Both past female circumcision as well as the threat of

future cutting have been held by this Circuit to qualify a

female refugee for asylum in the United States, a recognition

of the importance which our law attaches to the petitions of

females seeking protection from this dangerous and excruciatingly painful practice. Haoua v. Gonzalez, 472 F.3d 227, 231-

32 (4th Cir. 2007) (holding that the likelihood of the petitioner being subjected to female genital mutilation upon her

return to Niger qualified her for asylum). Our precedent has

been clear in the standards by which we review eligibility for

refugee status. This is why I felt compelled to call for an en

banc poll in this case, as I believe the Court’s opinion, see

Gomis v. Holder, 571 F.3d 353 (4th Cir. 2009), is blatantly

contrary to well-settled, unquestioned circuit precedent.*

The predictability of precedent and an evenhanded application of the law in like cases are principles which guide our

decisions in all cases before us. The precedent of this Circuit

is for us, and only us, to police and maintain. Therefore, while

I hope that the Supreme Court will grant certiorari to consider

Ms. Gomis’s case, it cannot remedy the departure from settled

precedent in our Circuit which this case represents. With all

*After our decision on the merits in this case, petitioner Gomis filed a

petition for writ of certiorari at the Supreme Court on August 11, 2009.

Gomis v. Holder, 571 F.3d 353 (4th Cir. 2009), petition for cert. filed, 78

U.S.L.W. 3091 (U.S. Aug. 11, 2009) (No. 09-194). I sought an en banc

poll on the forty-sixth day after our decision, giving the litigants the full

time available to them to seek en banc review in this Court. This Court

continues to exercise jurisdiction over the case and may rehear it en banc,

pending the Supreme Court’s decision on Ms. Gomis’s petition for writ of

certiorari. I am sure that she and her counsel would welcome the chance

to be heard before the full circuit. I am of the opinion that this Court

should "offer[ ] the Supreme Court whatever benefit this court can give it

by rehearing a case en banc before the Court decides whether to grant a

petition for writ of certiorari." Messer v. Kemp, 831 F.2d 946, 957 (11th

Cir. 1987) (granting the Eleventh Circuit jurisdiction over a sua sponte

rehearing en banc when the petitioner had already petitioned the Supreme

Court for relief and the Supreme Court had issued an emergency stay of

execution pending filing of the petition for certiorari). 

4 GOMIS v. HOLDER
due respect to the majority, the reasoning contained therein is

unsupported by precedent and makes no meaningful effort to

distinguish the case from this Circuit’s controlling decision in

Haoua v. Gonzalez. It is my opinion that the paucity of distinguishing logic is because the facts in Gomis cannot be squared

with that decision. In Haoua, the petitioner, a native of Niger,

presented evidence that her family had given her to an elderly

chieftain to be married and had performed the marriage ceremony in her absence while she was studying in the United

States. 472 F.3d at 229-30. Per the customs of her tribe and

as part of the marriage, she was required to undergo female

genital mutilation. Id. at 230. This Court held that she had

presented sufficient evidence for the Immigration Judge to

find that she qualified for protection as a refugee. Id. at 232.

Similarly in this case, the petitioner testified that she was

taken out of school by her parents and was to undergo female

genital mutilation in order to marry a man in his sixties.

Gomis, 571 F.3d at 355. She introduced evidence that after

she fled to the United States, her father wrote her letters

promising to use all means necessary to bring her back to

Senegal and go through with the circumcision and marriage

before his death. Id. at 364. Although my dissent to the

Court’s opinion sets out my reasoning more fully, see id. at

362-65, it suffices to note here that with facts so similar in the

two cases and a positive credibility finding for Gomis, Haoua

should have dictated the outcome in this case. Indeed, the case

here is stronger and the harm caused by an erroneous decision

greater because Gomis’s family made it clear that were she to

return to Senegal, there is no chance that she could escape circumcision at their hands. Neither invocation of sympathy nor

innovation in the law of asylum was necessary to grant Ms.

Gomis’s petition; it merely required the application of our

precedent—simple justice.

Again, for the reasons stated in my dissent to the decision

on the merits of Ms. Gomis’s claim and in this opinion, I

admit that I am concerned about the effect that allowing this

GOMIS v. HOLDER 5
precedent to stand will have on our consideration of the petitions of female refugees who seek protection from female

genital mutilation. They deserve the protection of the Haoua

precedent. I therefore must dissent.

Judge Michael, Judge Motz, Judge King, and Judge Duncan join in this dissent.

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