PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANCOISE ANATE GOMIS, 

Petitioner,

v.  No. 08-1389

ERIC H. HOLDER, JR., Attorney

General,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals.

Argued: March 25, 2009

Decided: July 6, 2009

Before NIEMEYER and GREGORY, Circuit Judges, and

Eugene E. SILER, Jr., Senior Circuit Judge of the United

States Court of Appeals for the Sixth Circuit,

sitting by designation.

Petition denied by published opinion. Judge Niemeyer wrote

the opinion, in which Senior Judge Siler joined. Judge Gregory wrote a separate opinion concurring in part and dissenting

in part.

COUNSEL

ARGUED: Kell Enow, ENOW & PATCHA, Silver Spring,

Maryland, for Petitioner. Andrew B. Insenga, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, D.C., for Respondent. ON

BRIEF: Gregory G. Katsas, Assistant Attorney General, Civil

Division, M. Jocelyn Lopez Wright, Assistant Director,

UNITED STATES DEPARTMENT OF JUSTICE, Office of

Immigration Litigation, Washington, D.C., for Respondent.

OPINION

NIEMEYER, Circuit Judge:

Francoise Anate Gomis, a native and citizen of Senegal,

petitions for review of an order of the Board of Immigration

Appeals (BIA) that affirmed the decision of the immigration

judge denying her applications for asylum, withholding of

removal, and relief under the Convention Against Torture.

Gomis contends (1) that even though her asylum application

was not filed within the one-year statutory deadline, the BIA

erred in finding that she had not demonstrated changed or

extraordinary circumstances that excused the delay and (2)

that the BIA’s finding that it is not more likely than not that

Gomis will be subjected to female genital mutilation if

returned to Senegal is not supported by substantial evidence

and thus the BIA’s denial of withholding of removal is manifestly contrary to law.

For the reasons that follow, we conclude that we lack jurisdiction to review the BIA’s determination that Gomis did not

meet the changed or extraordinary circumstances exception

and that the BIA’s findings underlying its denial of withholding of removal are supported by substantial evidence. Accordingly, we deny Gomis’ petition for review.

I

Gomis arrived in the United States on January 30, 2001,

coming to work as a nonimmigrant domestic servant for an

2 GOMIS v. HOLDER
employee of the International Monetary Fund. She was authorized to remain in the United States until April 30, 2003. Over

two years later, in June 2005, Gomis filed an application for

asylum in which she claimed that she fled Senegal because

her family wanted her to undergo female genital mutilation

(FGM or circumcision) and participate in an arranged marriage. After the Department of Homeland Security refused to

grant Gomis’ application, it issued a notice to appear on July

27, 2005, for removal proceedings and referred the matter to

an immigration judge. At the hearing before the immigration

judge, Gomis admitted removability and renewed her application for asylum, withholding of removal, and protection under

the U.N. Convention Against Torture.

At the hearing before the immigration judge, Gomis testified that she was born in 1978 in Dakar, Senegal, and lived

with her family in the outskirts of Dakar. She is single and

does not have any children. Gomis and her family are members of the Djola ethnic group, which still practices FGM, and

her father, who is a businessman, has two wives, both of

whom are circumcised.

Relating her circumstances, Gomis testified that in June

1999, her parents took her from school so that she could

undergo FGM and become married to a man in his sixties. In

exchange for this marriage commitment, her parents accepted

gifts from the man. Because Gomis desired to finish school

and retain her independence, she went to the police to report

her parents’ intentions, but the police told her to return home

and try to resolve the problem. When Gomis informed her

uncle, who lives in France, of the situation, he tried to persuade her father, unsuccessfully, to allow Gomis to return to

school. On her uncle’s advice, Gomis obtained a passport and

left home in November 2000, initially hiding at a friend’s

house in Senegal. After Gomis obtained a visa at the embassy,

one of her uncle’s friends drove her to the airport to leave

Senegal. Once in the United States, Gomis worked for an

employee of the International Monetary Fund for three years.

GOMIS v. HOLDER 3
While in the United States, Gomis learned that her parents

had forced her 15-year-old sister to undergo FGM before marriage and that when Gomis’ brother filed a complaint with the

police, he was told to go home.

Gomis gave her opinion that 80 to 100% of the Djola

women have undergone FGM and have been forced to marry

older men. According to Gomis, when a woman’s parents

were ready to have her undergo FGM, they would come to her

room with other family members when she was asleep and

take her away. She noted that some families have FGM performed on their daughters when they are young, while other

families wait until just before their daughters’ marriage.

She acknowledged, however, that the Senegalese government is against the practice. Yet, families continue the practice of performing FGM because of tradition. Gomis stated

that because her family wanted her to undergo FGM, there

was nowhere in Senegal she could live without fear of being

subjected to it. She stated that her family is widely dispersed

throughout Senegal and that the country is small, where

everyone knows each other.*

Gomis submitted a letter from her sister dated September

12, 2006, stating that she underwent FGM in February 2005

and that as a result she became infected and still suffers persistent pain. According to her sister, Gomis’ father is still

angry with Gomis and wants her to return home.

In addition, Gomis presented other letters and documents

confirming some of her testimony. She submitted her sister’s

medical file documenting her sister’s visit to the doctor with

medical complications after the circumcision; an attestation

from her uncle stating that he helped Gomis leave Senegal to

*The population of Senegal is over 12 million people with more than

1 million living in Dakar proper and some 2.5 million living in the Dakar

metropolitan area. 

4 GOMIS v. HOLDER
go to the United States; an attestation from the person who

hired Gomis as a domestic servant, claiming that Gomis’

uncle arranged for the employment; a letter sent to Gomis

from her aunt in Senegal, who stated that her fiance provided

a dowry and that all the other women her age have been circumcised; a letter from her mother telling her that she cannot

avoid customs, that her fiance is losing patience with her, and

that the entire village is laughing at her family; a letter from

her father ordering her to return home so that she can be circumcised and marry her fiance; and finally a letter from her

uncle stating that he had seen her parents, and they had not

changed their minds and continue to want Gomis to undergo

the procedure.

The Department of State’s report on FGM in Senegal, dated

June 1, 2001, which was entered into the record, states that

FGM is most common among Muslim groups in the eastern

part of the country, but that most Senegalese women have not

undergone the procedure and that it is becoming less common

due to urbanization and education. The report refers to a study

published in 1988, which found that only 20% of Senegalese

women have undergone the procedure and which noted that

other estimates place the figure between 5 and 20%. The

report related that FGM is hardly practiced in populated urban

areas. Regarding Gomis’ ethnic group, the Djolas, the report

states that rural elements of the Djola group practice FGM as

a puberty initiation rite. For all of Senegal, 90% of the women

who had undergone the procedure were between two and five

years old at the time of the procedure, but for others it was

part of a puberty initiation rite.

In 1998, Senegal’s president called for the eradication of

FGM, and since 1999, there have been programs and seminars

to educate the public about it. Many rural villages have issued

declarations against the practice. In January 1999, Senegal

enacted a law criminalizing FGM with a sentence of one to

five years’ imprisonment. The report added that there had

been no convictions under this law, and, because many of

GOMIS v. HOLDER 5
those circumcised were very young, they were not in a position to report violations.

Gomis also included in the record a State Department

report on human rights conditions in Senegal, issued in March

2006, which stated that FGM was practiced in thousands of

rural villages. It estimated that nearly 100% of the women in

the northern Fouta region were FGM victims and that nearly

60-70% of the women in the south and southeast were. The

report confirmed that FGM is a criminal offense, carrying a

sentence of six months to five years’ imprisonment, and stated

that there have been criminal prosecutions under the law. In

addition, the report noted that 140 villages have renounced

FGM but nonetheless, many people were still practicing it.

In denying Gomis relief, the immigration judge found that

Gomis was "genuinely credible" but that Gomis’ opinion testimony regarding the prevalence of FGM, both in general and

within her ethnic group, was at odds with the State Department reports. The judge allowed that this could be the result

of Gomis’ lack of knowledge of the actual facts, "rather than

an effort to deceive."

The immigration judge also found Gomis’ asylum application untimely because it was filed more than one year after

she entered the United States and Gomis did not establish

changed or extraordinary circumstances warranting an extension of the filing period. Gomis’ evidence about her sister’s

circumcision, on which Gomis relied to prove changed circumstances, merely confirmed the condition Gomis claimed

existed when she left Senegal.

The immigration judge further found that Gomis did not

meet her burden of establishing that it was more likely than

not that she would face FGM if she returned to Senegal. The

judge allowed that there was "some small chance, perhaps

what even amount[s] to a reasonable possibility" that Gomis

will become a victim of the practice, but not a more-likely6 GOMIS v. HOLDER
than-not chance. The judge found that most Senegalese

women have not undergone the procedure; that the practice is

becoming less common in Senegal; and that it is rarely practiced in urban areas. In addition, the judge found that the

"mostly rural elements of the Djola" groups who practice

FGM do so "as a puberty initiation rite," but Gomis was well

past the age of puberty, and she "lived in Dakar, a very large

city." The judge noted that FGM is a criminal offense in Senegal and that the government has begun prosecuting people

for the offense. Moreover, because Gomis was 28 years old

and "relatively well-educated," she "would be better able to

relocate in a safe place in Senegal than [would] a younger or

less educated" woman. Accordingly, the judge denied Gomis’

petition to withhold removal, stating that "based on a totality

of the record of evidence in the case I simply cannot conclude

that [Gomis] has met her burden of proof of establishing that

it is more likely than not she would be subjected to this horrible practice."

With respect to relief under the Convention Against Torture, the immigration judge found that even if FGM constituted torture, it was not more likely than not that Gomis will

be subjected to it. And moreover, any risk that Gomis faces

from her family is not with the consent or acquiescence of the

Senegalese government.

The BIA affirmed the immigration judge’s determinations.

It agreed that Gomis "failed to meet her burden of establishing that it is objectively more likely than not that she would

be subjected to [FGM] if returned to Senegal." The BIA found

that FGM is becoming less common in Senegal and is rare in

large urban areas. In addition, it found that FGM is criminalized by the government of Senegal; that there are prosecutions

under the law; and that the government has collaborated with

groups to educate the public on the inherent dangers of the

practice. The BIA also found that 90% of the women who

undergo FGM in Senegal are between the ages of two and

five. Because Gomis was 28 years old, she might have a subGOMIS v. HOLDER 7
jective fear of undergoing FGM upon returning to Senegal,

but the BIA found that the record does not objectively support

that it is more likely than not that she would have to undergo

the procedure. The BIA thus upheld the denial of withholding

of removal. And finally, the BIA upheld the denial of relief

under the Convention Against Torture.

From the BIA’s order, Gomis petitions this court for

review.

II

Gomis contends first that even though she did not file her

application for asylum within one year of the date of her

arrival in the United States, as required by 8 U.S.C.

§ 1158(a)(2)(B), "she meets both the extraordinary circumstances and changed circumstances exception[s]" of 8 U.S.C.

§ 1158(a)(2)(D). Gomis claims that she did not file within one

year because she believed that with the passage of criminal

laws prohibiting FGM in Senegal, the practice would change.

She argues that when her sister had the procedure performed

on her in 2005 and the police failed to respond, she realized

she was in danger of FGM if she returned to Senegal.

The immigration judge found that the FGM performed on

Gomis’ sister in February 2005 did not constitute either

extraordinary or changed circumstances under 8 U.S.C.

§ 1158(a)(2)(D) because the threat of FGM was the very reason Gomis claims to have left Senegal in 2001, and the BIA

"[found] no error in the Immigration Judge’s decision for the

reasons stated therein."

An alien applying for asylum must show "by clear and convincing evidence that the application has been filed within 1

year after the date of the alien’s arrival in the United States."

8 U.S.C. § 1158(a)(2)(B). An asylum application may be considered after one year "if the alien demonstrates to the satisfaction of the Attorney General either the existence of

8 GOMIS v. HOLDER
changed circumstances which materially affect the applicant’s

eligibility for asylum or extraordinary circumstances relating

to the delay in filing an application within the period specified." Id. § 1158(a)(2)(D). But 8 U.S.C. § 1158(a)(3) provides

that "[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)," which

includes both the Attorney General’s decision whether an

alien has complied with the one-year time limit and whether

there are changed or extraordinary circumstances excusing the

delay. Id. § 1158(a)(3) (emphasis added).

Thus, under the express language of § 1158(a)(3), we lack

jurisdiction to review the immigration judge’s determination.

See Zaidi v. Ashcroft, 377 F.3d 678, 680-81 (7th Cir. 2004)

(holding that the jurisdiction-stripping provision of 8 U.S.C.

§ 1158(a)(3) precludes review of the immigration judge’s

determination that the alien had not demonstrated "changed

circumstances" or "extraordinary circumstances" under 8

U.S.C. § 1158(a)(2)(D) and collecting cases).

Although 8 U.S.C. § 1252(a)(2)(D), added by the REAL ID

Act of 2005, provides that "[n]othing . . . in any other provision of this chapter . . . which limits or eliminates judicial

review, shall be construed as precluding review of constitutional claims or questions of law," the question whether the

changed or extraordinary circumstances exception applies to

excuse an alien’s delay in filing her asylum application is a

discretionary determination based on factual circumstances.

Therefore, absent a colorable constitutional claim or question

of law, our review of the issue is not authorized by

§ 1252(a)(2)(D). Nearly every circuit that has analyzed

§ 1158(a)(3) in light of § 1252(a)(2)(D) has held that even

after the REAL ID Act, the federal courts continue to lack

jurisdiction over the determination whether the alien demonstrated changed or extraordinary circumstances that would

excuse an untimely filing. See, e.g., Jarbough v. Attorney

Gen., 483 F.3d 184, 188-90 (3d Cir. 2007); Ferry v. Gonzales,

457 F.3d 1117, 1130 (10th Cir. 2006); Almuhtaseb v. GonGOMIS v. HOLDER 9
zales, 453 F.3d 743, 747-48 (6th Cir. 2006); Chen v. U.S.

Dep’t of Justice, 434 F.3d 144, 154-55 (2d Cir. 2006); Mehilli

v. Gonzales, 433 F.3d 86, 92-94 (1st Cir. 2005); Ignatova v.

Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005); ChaconBotero v. U.S. Attorney Gen., 427 F.3d 954, 956-57 (11th Cir.

2005) (per curiam); Vasile v. Gonzales, 417 F.3d 766, 768-69

(7th Cir. 2005). But see Ramadan v. Gonzales, 479 F.3d 646,

649-54 (9th Cir. 2007) (per curiam) (finding jurisdiction to

review whether an alien has demonstrated "changed circumstances" to excuse a late asylum application, characterizing

the issue as a mixed question of law and fact). 

We join the majority of courts who have reached this issue

and hold that we lack jurisdiction to review the immigration

judge’s discretionary determination, as affirmed by the BIA,

that Gomis had not demonstrated changed or extraordinary

circumstances to excuse her untimely filing.

III

Gomis also contends that the BIA’s finding that it is not

more likely than not that Gomis will be subjected to FGM if

she is returned to Senegal "is speculative and not based on the

substantial evidence in the record." She argues that there "is

clear evidence in the record that she will be excised if she

were to return to Senegal" and therefore that the BIA’s denial

of withholding of removal is manifestly contrary to law.

Withholding of removal is available under 8 U.S.C.

§ 1231(b)(3) if the alien shows that it is more likely than not

that her life or freedom would be threatened in the country of

removal because of her "race, religion, nationality, membership in a particular social group, or political opinion." 8

U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2); see also

Haoua v. Gonzales, 472 F.3d 227, 232 (4th Cir. 2007). The

alien bears the burden of demonstrating that her life or freedom would be threatened on account of a protected ground.

See 8 C.F.R. § 208.16(b)(2). Because withholding of removal

10 GOMIS v. HOLDER
is mandatory if the alien meets the standard of proof, see INS

v. Stevic, 467 U.S. 407, 426, 429-30 (1984); Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004), the alien must meet

a higher standard for withholding of removal than for asylum.

See Camara, 378 F.3d at 367.

On review, we afford the BIA’s determination of eligibility

for withholding of removal a high degree of deference. In

fact, "a decision that an alien is not eligible for admission to

the United States is conclusive unless manifestly contrary to

law." 8 U.S.C. § 1252(b)(4)(C). We review the administrative

findings of fact under the substantial evidence standard, see

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and these

"findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8

U.S.C. § 1252(b)(4)(B); see Gandziami-Mickhou v. Gonzales,

445 F.3d 351, 354 (4th Cir. 2006) ("[T]he substantial evidence test for review of the BIA’s conclusions mandates affirmance if the evidence is not ‘so compelling that no reasonable

factfinder could’ agree with the BIA’s factual conclusions."

(quoting Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th

Cir. 1992))). Even "[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an

administrative agency’s finding from being supported by substantial evidence." Gonahasa v. INS, 181 F.3d 538, 541 (4th

Cir. 1999) (quoting Consolo v. Fed. Maritime Comm’n, 383

U.S. 607, 620 (1966)) (internal quotation marks omitted).

Where the BIA adopts and supplements the immigration

judge’s decision, "the factual findings and reasoning contained in both decisions are subject to judicial review." Anim

v. Mukasey, 535 F.3d 243, 252 (4th Cir. 2008) (quoting Niang

v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007)) (internal

quotation marks omitted).

The immigration judge denied Gomis’ application for withholding of removal, finding that "there is some small chance,

perhaps what even amounts to a reasonable possibility, given

GOMIS v. HOLDER 11
her parents[’] interest and desire in having her undergo FGM,

that she would be subjected to this practice," but that "it is not

. . . anything close to a more likely than not chance." (Emphasis added). The judge detailed the evidence in the record that

supported his finding. On appeal, the BIA likewise determined that Gomis failed to demonstrate a clear probability

that she would be forced to undergo FGM and found no clear

error in the immigration judge’s factual findings. The BIA

stated that "while people continue to practice FGM in Senegal

in the rural areas, the practice of FGM is growing less common and is rare in large urban areas, and the government of

Senegal has enacted laws criminalizing the practice." It noted

that "[t]he record reflects that the government has prosecuted

those caught engaging in the practice of FGM and has fought

to end the practice by collaborating with other groups to educate people about the inherent dangers," emphasizing that

"140 villages renounced the use of FGM." "Further, the

record reflects that FGM is hardly practiced in the most heavily populated urban areas such as that where respondent is

from and that 90 percent of the females who undergo FGM

are between 2 and 5 years of age." Thus, the BIA concluded:

"we acknowledge that the 28-year-old respondent may have

a subjectively genuine fear of FGM if she is returned to Senegal; however, we agree that she has failed to meet her burden

of establishing that it is objectively more likely than not that

she would be subjected to the procedure if returned to Senegal." 

Because substantial evidence supports the immigration

judge and BIA’s findings, we affirm the denial of Gomis’

application for withholding of removal because a reasonable

adjudicator would not be compelled to conclude to the contrary. See 8 U.S.C. § 1252(b)(4)(B). The record shows that the

incidence of FGM in Senegal is low and that the practice

hardly occurs in urban areas, such as Dakar. Further, most

women have not been forced to undergo FGM, and the incidence of FGM is decreasing. Gomis, as an adult, is even less

likely to be forced to undergo FGM because 90% of the

12 GOMIS v. HOLDER
women who undergo the procedure are between two and five

years old at the time of the procedure. In addition, both practicing FGM and ordering FGM to be carried out on a third

party are crimes, and prosecutors now bring criminal charges

against perpetrators. Gomis was 29 years old when the BIA

dismissed her appeal, and her family lives in Dakar. She is

relatively well educated, especially in a country where the

adult illiteracy rate approaches 40%, having had 12 years of

schooling. The weight of the record evidence, including her

age, her education, and the decreased incidence of FGM in

Senegal, specifically in Dakar, supports the immigration

judge and BIA’s finding that it is not more likely than not that

Gomis will face persecution.

Although there is evidence in the record that tends to support Gomis’ claim that if she returns to Senegal, she will face

a risk of FGM, we do not find that "any reasonable adjudicator would be compelled to conclude" that she would, more

likely than not, be subjected to FGM. See 8 U.S.C.

§ 1252(b)(4)(B). The agency’s finding is supported by substantial evidence, and even if this court would be inclined to

decide differently in the first instance, it must affirm under the

deferential standard of review. See Niang, 492 F.3d at 511

("[W]here the ‘record . . . plausibly could support two results:

the one the IJ chose and the one [the petitioner] advances,’

reversal is only appropriate where the court ‘find[s] that the

evidence not only supports [the opposite] conclusion, but

compels it.’" (quoting Balogun v. Ashcroft, 374 F.3d 492 (7th

Cir. 2004) (alterations in original)); Gonahasa, 181 F.3d at

541 ("[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative

agency’s finding from being supported by substantial evidence." (alteration in original) (citation and internal quotation

marks omitted)).

Gomis argues that this court’s decision in Haoua v. Gonzales, 472 F.3d 227 (4th Cir. 2007), entitles her to relief. In

Haoua, the alien, a native and citizen of Niger, petitioned for

GOMIS v. HOLDER 13
review of the BIA’s affirmance of the immigration judge’s

denial of her application for asylum, withholding of removal,

and relief under the Convention Against Torture. While the

alien, Mahaman Haoua, was living in the United States, her

parents arranged for her to marry the elderly chieftain of a

neighboring village, accepted a large dowry as consideration

for the wedding promise, and conducted the wedding in her

absence. Haoua, 472 F.3d at 229-30. In accordance with the

customs of the ethnic group of which Haoua was a member,

her parents planned on subjecting her to FGM before she

joined her husband’s household. Id. The evidence adduced at

Haoua’s hearing showed that one in five Nigerian women

undergo FGM and that certain ethnic groups still practice

FGM despite a new law criminalizing it. Id. at 230. Haoua

testified that her ethnic group continues to practice FGM,

requiring the procedure be performed before a woman marries, and that the Nigerian government’s efforts to suppress

FGM have been ineffective in rural Nigeria, where her family

resides. Id. The immigration judge found that Haoua had "at

least a 10 percent chance" of undergoing FGM if she returned

to her family in Niger. Id. The immigration judge also found,

however, that Haoua could relocate within Niger, concluding

that her "reasonably available internal relocation alternative

overcomes the 10 percent fear of FGM at the hands of her

family." Id. at 231. On that basis, the immigration judge

denied Haoua’s application for asylum, withholding of

removal, and relief under the Convention Against Torture. Id.

The BIA affirmed the immigration judge without opinion.

On appeal, we held that "the 10% finding was not supported by substantial evidence," id. at 232, noting that the

10% finding "was necessarily premised on speculation and

conjecture, in that there was no evidentiary basis for it." Id.

We placed considerable importance on the fact that "the

Attorney General conceded this very point during oral argument, acknowledging that, contrary to the [immigration

judge’s] finding, if [Haoua] returned to her family, her likelihood of suffering FGM would approach 100%." Id. Even

14 GOMIS v. HOLDER
though the immigration judge had found that Haoua could

relocate in Niger to avoid FGM, which was an alternative

basis for denying her application for asylum, "the [immigration judge]’s finding regarding relocation was specifically

predicated on the 10% finding" inasmuch as he found that

Haoua’s "reasonably available internal relocation alternative

overcomes the 10 percent fear of FGM at the hands of her

family." Id. (first emphasis added). We found it problematic

that the immigration judge did not consider whether Haoua’s

relocation alternative could overcome a risk of FGM that was

greater than 10%, in light of both the immigration judge’s

finding that she had "at least a 10 percent chance" of undergoing FGM if she returned to Niger and the government’s

concession on appeal that the risk approached 100%. Id. at

232-33. Accordingly, we vacated the immigration judge’s

order denying her applications for asylum and withholding of

removal and remanded the case to the BIA for further proceedings. Id. at 233.

Although there are factual similarities between Haoua and

the case before us, the case before us is distinguishable inasmuch as there is substantial evidence to support the agency’s

finding that it is not more likely than not that Gomis will be

subjected to FGM. In Haoua, we held that the 10% finding,

on which the immigration judge based his conclusion, was

speculative and not based on substantial evidence in the

record, particularly in light of the government’s concession at

oral argument that her risk approached 100%. Here, the immigration judge’s findings that there is "some small chance" that

she will undergo FGM, but that "it is not . . . anything close

to a more likely than not chance," findings which were

affirmed by the BIA, are supported by substantial evidence in

the record. This finding, quite unlike the 10% finding, is not

mere speculation or conjecture. As discussed above, the evidence in this record shows that the incidence of FGM in Senegal is low; that 90% of the victims of FGM in Senegal are

between two and five years of age at the time of the procedure; that FGM is hardly practiced in urban areas like Dakar;

GOMIS v. HOLDER 15
and that the criminal law forbidding FGM is enforced. By

contrast, Gomis is an adult, she is relatively well educated in

light of her 12 years of schooling, and her family lives in

Dakar.

Because the BIA’s determination in this case is not manifestly contrary to law and its finding that there is not a morelikely-than-not chance that Gomis will be subjected to FGM

is supported by substantial evidence, we affirm its decision to

deny Gomis’ application for withholding of removal.

Having rejected Gomis’ arguments, we deny her petition

for review and affirm the BIA’s order.

PETITION DENIED

GREGORY, Circuit Judge, concurring in part and dissenting

in part:

Although the majority fairly characterized the facts in this

case, it errs in attempting to distinguish an indistinguishable

case: Haoua v. Gonzales, 472 F.3d 227 (4th Cir. 2007). In

Haoua, this Court found that substantial evidence did not support the IJ’s and the BIA’s finding that if petitioner were sent

back to her country she would have a ten percent likelihood

of facing FGM. Like Gomis, the petitioner in Haoua received

great pressure from her family to marry a man who had paid

a dowry for her and expected her to be circumcised. As in the

case at bar, Haoua’s future husband was growing impatient

waiting for her return. Haoua, like Gomis, was an adult

woman who was well past puberty. In fact, Haoua, at forty

years of age, was substantially older than Gomis. The only

distinguishable fact in Haoua was that the Attorney General

conceded at oral argument that if returned to her country, the

likelihood of the petitioner suffering FGM would approach

100%. Although there is no such concession here, Gomis

presents a mountain of evidence that clearly demonstrates that

the likelihood of her being forced to undergo FGM is cer16 GOMIS v. HOLDER
tainly 100%. Unfortunately, the majority repeats the erroneous analysis of the IJ and BIA in denying Gomis’s petition for

withholding of removal. I respectfully dissent from this portion of the opinion, but concur in the majority’s judgment as

to the remaining issues.

I.

Like the IJ and the BIA before it, the majority incorrectly

focuses on general statistics without applying the relevant

information specific to Gomis’s situation.1 While the State

Department’s report finds that only 20% of Senegalese

women have undergone FGM and that 90% of the women

who had undergone the procedure were between the ages of

two and five, this does not contradict Gomis’s testimony that

80% to 100% of women in her specific ethnic group have

undergone FGM either as a puberty rite or just before they

were married. As the majority points out, Senegal has a population of over 12 million people.2

 If we estimate that half of

1We would be remiss if we discussed in distant legalese the underlying

act, which can only be fully appreciated in plain language: 

Female genital mutilation, commonly called FGM, is the designation generally given to a class of surgical procedures involving

the removal of some or all of the external genitalia performed primarily on girls and young women in Africa and Asia. Often performed under unsanitary conditions with highly rudimentary

instruments, FGM is extremely painful, permanently disfigures

the female genitalia, [and] exposes the girl or woman to the risk

of serious, potentially life-threatening complications, including

bleeding, infection, urine retention, stress, shock, psychological

trauma, and damage to the urethra and anus. FGM can result in

the permanent loss of genital sensation in the victim and can

adversely affect sexual function. 

Haoua, 472 F.3d at 228 n.5 (internal citation and quotations omitted).

Where there is such a threat of permanent harm—a harm that also includes

Gomis’s real fear of exposure to HIV/AIDS—there is no room for error

or speculation. 

2The population is currently closer to 14 million, yet for the purpose of

this dissent I will use the figures asserted by the majority, which likely

refer to the period of Gomis’s petition. See https://www.cia.gov/library/

publications/the-world-factbook/geos/sg.html (last visited May 22, 2009).

GOMIS v. HOLDER 17
the population is female, then at least 1.2 million women have

undergone FGM in Senegal and 120,000 of those women

were over the age of five when they underwent the procedure.

Senegal is made up of a wide variety of ethnic groups.

Gomis’s ethnic group is one of the smaller ethnic groups,3

which makes her testimony—that a large percentage of a

small percentage of the population practices circumcision—even more compatible with the State Department’s

report. The IJ found Gomis to be credible but discredited her

testimony because of a nonexistent conflict between her stated

percentages and those in the State Department’s report.

The majority seems to accept the IJ’s and the BIA’s assertion that Gomis’s age will save her from circumcision, despite

the fact that her family sent her many letters while she was in

her twenties indicating that they continued to insist that she be

circumcised. It is clear that Gomis’s age will provide no protection. Further, the logic that her urban upbringing will protect her is also fallacious. Considering that her ethnic group

is largely from rural areas, her family likely adheres to deeprooted cultural practices that exist outside of her immediate

family’s urban location.

The majority emphasizes that "[t]he BIA stated that ‘while

people continue to practice FGM in Senegal in rural areas, the

practice of FGM is growing less common and is rare in large

urban areas, and the government of Senegal has enacted laws

criminalizing the practice.’" (Maj. Op. 12.) Yet, the IJ, who

found Gomis credible, heard testimony that both Gomis and

her brother attempted to report her parents to the authorities

for their practice of FGM, and their urban area police told

them that it was beyond their jurisdiction, as FGM is a family

affair. This testimony is not surprising. The State Department’s report, which the IJ relied upon, stated that although

Senegal banned FGM in 1999, since the passage of the law

3Gomis’s ethnic group represents only 3.7% of the population of Senegal. (Id.) 

18 GOMIS v. HOLDER
there have been no convictions. The report provides that "although the government has been active in seeking to eradicate

the practice, we are unaware of any protection in place that

might help a woman who wished to avoid it." (J.A. 225.)

Additionally, the report mentions that a family was arrested

for forcing a five-year-old child to undergo FGM; however,

"the cases were not pursued and no convictions resulted"

because of an "emotional public outcry" against the criminalization of such practices. (Id.)

It was unreasonable for the IJ to rely on the portion of the

country report that says that FGM is outlawed in a country

and ignore the other evidence from the report, and elsewhere,

that the country in question is not enforcing such laws. See

Agbor v. Gonzales, 487 F.3d 499, 504 (7th Cir. 2007) (finding

that despite the fact that Cameroon officially opposed FGM

and publicly endorsed the efforts of NGO to end the practice,

the BIA could not "simply seize on a few ‘flowery bromides’

of governmental concern over human rights violations when

the remainder of the report describes incidents of persecution

consistent with a petitioner’s claim." (internal citation omitted)). Gomis has put forth a substantial amount of evidence

that the Senegalese police will not help protect her from FGM

despite the illegality of the practice in Senegal. Therefore, the

record before this Court indicates not only that Gomis will

more likely than not be forcibly circumcised, but also that she

will have little recourse or hope of bringing her assailants to

justice.

Next, although the majority notes that Gomis offered a letter from her father, the majority appears to miss the grave circumstances she will face should she return to Senegal. The

certainty of her persecution is made clear in her father’s letter

dated September 20, 2006, where he wrote:

Francoise, I will advise you [in] this last letter very

seriously. . . . I am ashamed and humiliated because

of what you did to me an [sic] the entire Gomis famGOMIS v. HOLDER 19
ily. You know the gravity on [sic] what you’ve

caused. I guarantee you that you’ll not get from this

situation. I think all means will be necessary to bring

you back in Senegal, and I mean it. You’ll be circumcised and sent into marriage before my death. I

will never forgive you, if you don’t return to Dakar

for the circumcision.

(J.A. 98.) It is difficult to understand how the majority can

essentially nullify the unequivocal language in her father’s

letter. This is a rare case where we need not speculate on percentages. Her father clearly states, "I guarantee you that you’ll

not get from this situation. . . . You’ll be circumcised and sent

into marriage before my death." Therefore, if this Court found

that the likelihood of Haoua suffering FGM if returned to her

home country "would approach 100%," Haoua, 472 F.3d at

232 (emphasis added), then the likelihood that Gomis will be

circumcised if returned to Senegal is 100%.

The IJ found Gomis credible, which means that her testimony regarding the practices of her specific ethnic group

should have been properly considered, along with the abundance of evidence from her family that she will be circumcised upon her return. Only by reading the State Department’s

report generally, and isolating Gomis’s age and urban

upbringing in order to apply them blindly to the statistics

presented, can one possibly conclude that Gomis is unlikely

to undergo FGM. To deny her withholding of removal and

send her back to Senegal, to virtually certain circumcision,

would be a great miscarriage of justice. If we choose to ignore

the blatant evidence before us of her specific situation by

shielding our eyes with general statistics, then we will be

sending her to a torturous future of which I shudder to imagine. Thus, I dissent.

20 GOMIS v. HOLDER