RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0138p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

B IJOU S ENE , Petitioner ,

v

.

J EFFERSON B. S ESSIONS , III, Attorney General, Respondent

. ┐ │ │ │ │ │ │ │ ┘ No. 15-4007

On Petition for Review from an Order of the Board of Immigration Appeals. No. A 095 569 029. Decided and Filed: February 8, 2017 *
Before: BATCHELDER, STRANCH, and DONALD, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Bryan Scott Hicks, Lebanon, Ohio, for Petitioner. Alexander J. Lutz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. The court delivered a PER CURIAM opinion. STRANCH, J. (pp. 7–8), delivered a separate concurring opinion. DONALD, J. (pp. 9–10), delivered a separa te dissenting opinion.

* This decision was originally filed as an unpublished opinion on February 8, 2017. The court has now designated the opinion for full-text publication. 

### >No. 15-4007 Sene v. Sessions Page 2

_________________ OPINION

_________________ PER CURIAM. Bijou Sene petitions this cour t for review of an order of the Board of Immigration Appeals (BIA) dism issing her appeal from the de nial of her application for withholding of removal.

Sene is a native of Mauritania and a citizen of both Mauritania and Senegal. On April 25, 2002, Sene filed an application for asylum, wi thholding of removal, and protection under the Convention Against Torture (CAT), asserting that her family was mistreat ed and tortured by the
authorities in Mauritania because of their race and membership in a particular social group. In 2005, the Department of Homeland Security (DHS ) served Sene with a notice to appear in removal proceedings, alleging that she was adm itted to the United States on December 20, 2000, without a valid entry or travel document and chargi ng that she was subject to removal as an alien who was not in possession of a valid entry or travel docum ent at the time of entry. See 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), 1227(a)(1)(A) . Appearing before an immigration judge (IJ), Sene admitted the factual allegations set forth in the notice to appear and conceded removability as charged.
At the merits hearing, Sene testified that her parents were born in Senegal but were living
in Mauritania when she was born in 1980. When she was five or six y ears old, Sene’s father took her to a village in Mauritania, where she wa s subjected to female genital mutilation (FGM). Sene further testified that, when she was ten years old, Mauritanian military personnel came to her house, loaded her family onto military trucks , and took them to military barracks. Sene was detained for twenty-five days, during which time sh e was questioned, beaten, and forced to work. One night, three soldiers undresse d her, tied her legs and hands, and raped her. The next morning, Sene was forced to cross the river in to Senegal, where she told Red Cross personnel about what happened to her. After staying in a hospital for four days, Sene and her mother went to a refugee camp. They eventua lly moved to Dakar, where Sene found a job as a babysitter and maid. Sene testified that she lived in Senegal fo r eleven years with no pr oblems and that she leftNo. 15-4007 Sene v. Sessions Page 3

for the United States in 2001 for a job opportunity. Sene married her husband in 2004, and they had a daughter in 2005. Sene testified that she did not have any fear of returning to Senegal until
she received a letter from her husband’s father or grandfather, stating that he hoped that when Sene’s daughter turned two, “you will be sending her to us, so we can have her circumcised, as required by the African tradition.” (AR 526-27). Sene testified th at she wanted to protect her daughter and did not want her da ughter to experience what she had experienced, asserting her fear that her husband’s family might take her daughter and subject her to FGM.
At the conclusion of the hearing, the IJ deni ed Sene’s applications for relief and ordered her removal to Senegal or, in the alternative, Mauritania. The IJ denied Sene’s asylum application as untimely to the extent that it was based on her own alleged persecution. The IJ found that Sene’s asylum application was timely f iled with respect to her fear that her daughter might be subject to FGM. The IJ determined that, while Sene’s experiences in Mauritania constituted serious persecution, evidence submitt ed by the DHS showed changed conditions in Mauritania, rebutting the presumption that she w ould face future persecution there on account of her race. Because FGM is a one-time harm, the IJ stated, Sene no longer had a well-founded fear of persecution on that ground. Th e IJ found that Sene had not suffered past persecution in Senegal and that her fear that her daughter might be subject to FGM in Senegal was not objectively reasonable. The IJ further determined th at the record did not show a risk of torture to Sene in either Senegal or Mauritania.
On appeal, the BIA agreed that Sene’s asylum application as it related to her own alleged persecution was untimely and, on that basis, denied her motion to remand to pursue a claim for humanitarian asylum. The BIA affirmed the IJ’s denial of Sene’s applications for asylum and withholding of removal based on her claimed fear that her daughter would be subject to FGM in Senegal. The BIA went on to not e that, in denying Sene’s claims based on her own FGM, the IJ
relied on a decision that had since been vacated in relevant part by the Attorney General. See In
re A-T- , 24 I. & N. Dec. 296 (BIA 2007), vacated , 24 I. & N. Dec. 617 (Att’y Gen. 2008). The
BIA also took administrative notice of a recent Department of State Country Report on Human Rights Practices indicating that “a military coup occurred in Mauritania on August 6, 2008, followed by a deterioration in the human rights situation.” (AR 256). Accordingly, the BIANo. 15-4007 Sene v. Sessions Page 4

remanded Sene’s case for reconsideration of he r applications for with holding of removal and CAT protection.

On remand, Sene submitted additional doc uments and provided further testimony regarding the ongoing effects of her FGM. In a written decision, the IJ denied Sene’s applications for withholding of removal and CAT pr otection and ordered her removal to Senegal. The IJ found that Sene’s experien ces in Mauritania rose to the level of serious persecution but that the DHS met its burden to rebut the pres umption that she would be persecuted if she returned to Mauritania. As for Senegal, the IJ found that Sene failed to demonstrate past persecution in light of her testim ony that she lived there without harm for approximately eleven years and that she failed to meet her burden of de monstrating that her life or freedom would be
threatened in the future there. The IJ further de termined that Sene failed to demonstrate that she would be subject to torture if she were removed to Mauritania or Senegal.
Sene appealed the IJ’s decision. Given that the IJ ordered Sene’s removal to Senegal only, the BIA declined to address Sene’s claims with respect to Mauritania. With respect to Senegal, the BIA affirmed the IJ’s findings that Sene failed to establish eligibility for withholding of removal or CAT protection. This timely petition for review followed.
Where, as here, “the BIA reviews the immigr ation judge’s decision and issues a separate opinion, rather than summarily a ffirming the immigration judge’s decision, we review the BIA’s decision as the final ag ency determination.” Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). We review the agency’s factual findings for substantial evidence, reversing only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Khalili , 557 F.3d at 435.

Sene contends that her FGM constitutes a permanent and continuing act of persecution, entitling her to withholding of removal. By fail ing to address her other grounds for relief, Sene
has waived those issues. See Cruz-Samayoa v. Holder , 607 F.3d 1145, 1155 (6th Cir. 2010). Withholding of removal is mandatory if the alien establishes that her “lif e or freedom would be threatened in [the proposed country of removal] because of the alien’s ra ce, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); seeNo. 15-4007 Sene v. Sessions Page 5

Khalili , 557 F.3d at 435. If an app licant for withholding of removal “is determined to have suffered past persecution in the proposed count ry of removal on account of” a protected ground, “it shall be presumed that the applicant’s life or freedom would be threatened in the future in the country of removal on the basis of the original claim.” 8 C.F.R. § 1208.16(b)(1)(i). In the absence of such a presumption, the alien “must establish a ‘clear prob ability of persecution,’ meaning that ‘it is more likel y than not that the alien would be subject to persecution.’” AlGhorbani v. Holder , 585 F.3d 980, 993-94 (6th Cir. 2009) (quoting INS v. Stevic , 467 U.S. 407, 413, 424 (1984)).

Sene relies on Mohammed v. Gonzales , 400 F.3d 785 (9th Cir. 2005), in which the Ninth Circuit held that FGM is “a ‘permanent and c ontinuing’ act of persecution” and that “the presumption of well-founded fear in such cases cannot be rebutted.” Id . at 801. The Ninth Circuit stated that “persecution in the form of female genital mutilation is similar to forced sterilization, and like that othe r persecutory technique, must be considered a continuing harm that renders a petiti oner eligible for asylum, without more.” Id . at 799. The Mohammed case is inapposite. Here, while Sene was subjected to FGM and ot her forms of persecution in Mauritania, she suffered no harm in Senegal, th e proposed country of removal. Because Sene did not suffer past persecution in Senegal, no presumption arose in her favor for the DHS to rebut. Furthermore, this court has questioned the soundness of the Mohammed decision’s analogy to forced sterilization, pointing out that “Congress specifical ly defined the term ‘refugee’ to include vic tims of forced sterilization” and th at “[n]o equivalent ‘shortcut’ to refugee status applies to those subjected to FGM.” Diallo v. Mukasey , 268 F. App’x 373, 380 (6th Cir. 2008).
Substantial evidence supports the BIA’s determin ation that Sene failed to show that it is more likely than not that she w ould be subject to persecution in Senegal, “where the country reports indicate that FGM is a criminal offense that is not commonly committed against adult
women and the record likewise does not support her fear of any othe r form of harm.” (AR 5). See Dieng v. Holder , 698 F.3d 866, 873-74 (6th Ci r. 2012) (holding that a fear of FGM of an adult woman who “has effectively ‘aged out’ of the threat of FG M in Senegal” did not support aNo. 15-4007 Sene v. Sessions Page 6

claim for asylum, let alone withholdi ng of removal). Accordingly, we DENY Sene’s petition for
review.No. 15-4007 Sene v. Sessions Page 7

_________________

CONCURRENCE

_________________ STRANCH, Circuit Judge, concurring. The dissent raises thoughtful and persuasive points as to the lasting harm caused by female genital mutilation. I can agree with the Ninth Circuit’s analysis in Mohammed v. Gonzales , 400 F.3d 785, 795 (9th Cir. 2005), that female genital mutilation is a permanent and continuing act of persecution, which would make the presumption of well-founded fear in Sene’s case unr ebuttable. But even if we chose to use the reasoning in Mohammed , the unrebuttable presumption would not apply in Sene ’s case because the harm against her occurred in Mauritania but she is being removed to Senegal. Though the record shows, as the dissent aptly points out, that female genital mutilation also occurs in Senegal, it appears that the well-founded fear analysis is country-specific. See, e.g. , Berri v. Gonzales , 468 F.3d 390, 396 (6th Cir. 2006) (“As an initial matter, anything that happened in Kuwait is irrelevant to this proceeding because th e [petitioners] are to be sent back to Lebanon, not Kuwait.”); 8 C.F.R. § 1208.16(b)(1)(i) (regulation stating that the presum ption arises if “the applicant is determined to have suffered past pe rsecution in the proposed country of removal”). Moreover, the Immigration Judge and Board of Immigration Appeals each analyzed the presumption of well-founded fear for Mauritania and Senegal separately . Sene has not shown that she suffered past persecution in Senegal and so has failed to raise the pres umption of wellfounded fear.
I note that Sene has waived her appeal on a number of issues by fa iling to address these arguments on appeal. See Cruz-Samayoa v. Holder , 607 F.3d 1145, 1155 (6th Cir. 2010) (stating that “[i]n failing to assert an y argument challenging” an agency ’s determination, the petitioners had waived the argument); Bi Feng Liu v. Holder , 560 F.3d 485, 489 n.4 (6th Cir. 2009) (“[A]n issue that is not raised in a party’s briefs may generally be deemed waived.”). Importantly, Sene
did not raise the denial of her claim for relief from removal based on her fear that her daughter would be subjected to female genital mutilation. I think Sene’s fear that her daughter could be subject to female genital mutilation in Senegal could very well be a viable claim: it is decidedly a claim that generates realistic fear as well as genuine concern that the terrible legacy of femaleNo. 15-4007 Sene v. Sessions Page 8

genital mutilation not be borne by another generati on of women. Had that issue been before us, we would have examined whether Sene’s pe tition could be granted based on her fear. See Abay v. Ashcroft , 368 F.3d 634, 642 (6th Cir. 2004) (reversing the BIA’s denial of an asylum petition for a mother who feared her child would be subj ect to female genital mutilation if removed to Ethiopia, because an “alien need not prove that she would take the child with her as part of her burden to demonstrate eligibility for relief , if she has custody of the child.”) (citing Matter of
Dibba , No. A73 541 857 (BIA Nov. 23, 2001)). But becau se that issue is not before us, I concur with the lead opinion.No. 15-4007 Sene v. Sessions Page 9

_________________ DISSENT

_________________ BERNICE B. DONALD, dissenting. I write sepa rately to express my disagreement with the outcome of this case. The harmful and everlasting effects of female genital mutilation have been universally recognized. Fema le genital mutilation “is ‘a horri fically brutal procedure, often performed without anesthesia[,]’ that cause s both short-term and long-term physical and psychological consequences.” Mohammed v. Gonzales , 400 F.3d 785, 795 (9th Cir. 2005) (quoting Nwaokolo v. INS , 314 F.3d 303, 308 (7th Cir. 2002)). “The practice has been internationally recognized as a violati on of the rights of women and girls.” Id . Because the
decision here trivializes the deva stating effects of this form of mutilation, I respectfully dissent.
Initially, I disagree with the rejection of Sene ’s argument that female genital mutilation is a permanent and continuing act of persecution. The reasoning of the Ninth Circuit is persuasive,
and should be instructive to our decision. In Mohammed , the Ninth Circuit found that “persecution in the form of fema le genital mutilation is similar to forced sterilization and, like that other persecutory technique, must be consid ered a continuing harm that renders a petitioner eligible for asylum, without more.” 400 F.3d at 799. The court went on to analogize female genital mutilation to st erilization saying: “[l]ike forced sterilization, genital mutilation permanently disfigures a woman, causes long term health problems, and deprives her of a normal and fulfilling sexual life.” Id . This continuing and permanent effect of female genital mutilation is clearly supported by the facts of this case, and many more lik e it, where the victim suffers from emotional and psychological trauma stemmi ng from the mutilation well into her adulthood. Despite this Court’s ini tial questioning of “[t]he soundness of the decision in Mohammed ,” Diallo v. Mukasey , 268 F. App’x 373, 380 (6th Cir. 2008), we nevertheless stated that we would not reach the issue in that case because the argument was not properly before the Court. Id

. That decision should not contro l the outcome in this case.

Furthermore, I believe that it is irreleva nt that Sene’s persecution did not occur in Senegal, but in Mauritania. Because the act of female genital mutilation, and more importantly,No. 15-4007 Sene v. Sessions Page 10

the resulting harm, is the same whether the mutilation was performed in Mauritania, Senegal, or any other practicing country, the presumption of a well-founded f ear should control where the fear is of being deported to a country that stil l practices female genital mutilation. It is even further irrelevant that female genital mutilation has been ruled unlawful in Senegal, in the face of evidence that the practice still o ccurs within the country. Accord ing to the evidence presented to the Immigration Judge, despite the fact that female genital mutila tion is a criminal offense in Senegal, it is still being practiced, and repor ts show that the procedure was imposed on approximately twenty-six pe rcent of young girls in 2011.
Finally, even in the absence of an unrebutted fear of future persecution, Sene may still be entitled to asylum under the humanitarian exception. See Mukasey , 268 F. App’x at 384 (Moore, J., dissenting). Under this exception, “[t]he decision-maker may grant asylum if: (1) the petitioner has shown ‘com pelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or’ (2) the petitioner ha s shown ‘that there is a reasonable possibility that he or she may su ffer other serious harm upon removal to that country.’” Id . (quoting 8 C.F.R. § 208.13(b )(1)(iii)(A)–(B). Th e record fully demonstrates that Sene’s persecution in the form of being forced to undergo female genital mutilation was severe; the record is equally clear that the effects of this pe rsecution have been severe and lasting. I would hold that this well-documented severity entitles Sene to consideration for asylum under the humanitarian exception.
I believe that female genital mutilation is a permanent and continuing act of persecution that entitles a petitioner to a re buttable presumption that there is an inherent well-founded fear of future prosecution, and that this presumption is not rebutted merely by the fact that the petitioner has essentially “aged out” of the harm. Because I think that the government in this case has not met its burden of rebutting this presumption, I would grant Sene’s petition for review.