## F I L E D United States Court of Appeals Tenth Circuit 

### September 8, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

AWA NIANG,

Petitioner,

v. No. 04-9547 ALBERTO R. GONZALES, United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

(B.I.A. NO. A78-897-221)

Michael A. Walker of Walker Associates, LLP, Denver , Colorado, for Petitioner. Luis E. Perez, Trial Attorney (Linda S. Wendland, A ssistant Director, with him on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respon dent.

Before TACHA, Chief Circuit Judge, McWILLIAMS , Senior Circuit Judge, and HARTZ , Circuit Judge.

HARTZ , Circuit Judge.

Petitioner Awa Niang is a victim of female genital mutilation (FGM). She faces removal from this country because she overstayed her nonimmigrant visa,1 On March 1, 2003 the INS ceased to exist, and its r esponsibilities were

divided among three distinct agencies formed within the new Department of Homeland Security. See Homeland Security Act of 20 02, Pub.L. No. 107-296, §§ 441, 451, 116 Stat. 2135 (November 25, 2002). B ut because the actions Ms. Niang challenges in this appeal were taken prior to this reorganization, we will refer to the relevant government agency as the INS.

2 The Convention Against Torture is formally referred to as The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T. S. 85. The United States implemented the Convention Against Torture through the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105- 277, § 2242, 112 Stat. 2681 (1998). See Elzour v. Ashcroft , 378 F.3d 1143, 1150 n.8 (10th Cir. 2004).

-2- was working in the United States without permissionof the Immigration and Naturalization Service (INS), 1 and had falsely represented herself as a citizen t o obtain employment. To avoid being returned to her native Senegal, she sought asylum and restriction on removal on the ground that she had suffered past persecution—FGM—in Senegal. She also sought relief under the Convention Against Torture (CAT), 2 on the ground that she was likely to be tortured if returned to Senegal. The immigration judge (IJ) who conducted her hearin g found that she had not been subjected to past persecution because he d isbelieved her account of how the FGM occurred. The Board of Immigration Appeals (BIA) affirmed on the same ground. Ms. Niang’s claims for asylum and res triction on removal, however, do not rest solely on her narrative of the specific circumstances of the mutilation. She has consistently, although with le ss-than-optimal clarity,-3-

contended that she suffered FGM on account of her b eing a female member of the Tukulor Fulani tribe. Neither the IJ nor the BIA a ddressed this contention, much less explained why it was rejected. We therefore r everse the denial of asylum and restriction on removal, and we remand for further p roceedings. We affirm the denial of relief under the CAT.
I. BACKGROUND A. Ms. Niang’s Account The following summarizes the documents and testimony supporting Ms. Niang’s claims for relief. She was born into the T ukulor Fulani tribe in Senegal in 1970. Her family is Muslim and believes in rigid a dherence to certain gender roles and expectations. There was a strict separation be tween the men and women in her household, which included her parents, eight si blings, some cousins, and their spouses. Her family believed that women should notlook at men, that family members should not display affection toward one ano ther, and that women should obey their husbands. According to tribal custom, when Ms. Niang was bornshe was promised in marriage to her cousin Daud, a man her father’s age who had three other wives. Because she was considered married to Daud, she was not allowed to date other men. Although most Tukulor Fulani girls were subje cted to FGM and consummated their marriages when they were 10 to 12 years old, Ms. Niang-4-

refused to do so and her family acquiesced in her w ishes, believing she would eventually change her mind. Unlike most Tukulor Fu lani women, Ms. Niang was permitted to attend school at age 12. When Ms. Niang was nearly 25, her family had a meet ing in which they decided that she must consummate her marriage with Daud that evening. She again refused, and her family threw themselves on h er, stripping her of her clothes, beating her, and burning her with a hot iron. Some then performed FGM on her “[s]o that [she] wouldn’t be able to commit adultery and so that no one would want to have anything to do with [her]. And then she wo uld be ashamed to show [her] body in front of another man.” Testimony of Ms. Ni ang, R. at 188. She left her house the next morning. For the next four years sh e stayed at her friend Maria’s house in another town while attending the university to obtain her Senegalese law license. She had no contact with her family during this time. Ms. Niang came to the United States in 1999 and stayed with friends in Denver. Although she “wanted to live in a country where [she] could feel free,” and she still feared her family, id . at 194, she did not immediately seek asylum but entered as a nonimmigrant visitor, authorized to st ay only until June 24, 2000. She met Elhadji Fall and married him on April 17, 2000. Because of her FGM, however, they could not have normal sexual relation s and they separated. During her marriage Ms. Niang’s Senegalese friend Maria wr ote her a letter informing her-5-

that her family considered her an adulteress becaus e of her marriage to Fall and would kill her if she returned. According to Ms. N iang, if she was returned to Senegal, her family was “ready” and “waiting for [h er],” and it would be “the end of [her] days.” R. At 204-05. B. Removal Proceedings The INS apprehended Ms. Niang while she was working as a security screener at the Denver International Airport. It initiated removal proceedings against her for (1) staying in the country longer t han permitted, Immigration and Nationality Act (INA) § 237(a)(1)(B), 8 U.S.C. § 12 27(a)(1)(B); (2) failing to comply with the conditions of her nonimmigrant stat us by working, INA § 237(a)(1)(C), 8 U.S.C. § 1227(a)(1)(C); and (3) f alsely representing herself as a citizen of the United States to gain employment, IN A § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D). She contested the factual basis o f the removal charges, but the IJ found her removable on all three grounds. She then requested either (1) asylum under INA § 208, 8 U.S.C. § 1158; (2) restriction o n removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); (3) relief fromremoval under the CAT, or (4) voluntary departure under INA § 240B, 8 U.S.C. § 2 29c. At the asylum hearing Dr. Judith Wilson testified t hat Ms. Niang had been a victim of FGM, that her “normal anatomy . . . had b een obliterated essentially to the extent that her ability to engage in normal sex ual intercourse was virtually-6-

impossible,” that she would probably not be able to conceive children naturally, and that she would not be able to deliver children vaginally. R. at 239-240. Judging from the scar tissue, Dr. Wilson estimated that the mutilation must have occurred at least three or four years before Ms. Ni ang’s 1999 examination, and it could have been performed as early as her late teen s. In a letter from Dr. Wilson to Ms. Niang’s attorney that was admitted into the record, Dr. Wilson wrote that Ms. Niang told her that the beating and genital mut ilation occurred in her late

teens.Ms. Niang also showed several burn scars to the IJ, and Dr. Wilson testified that the scars were consistent with her proffered a ccount of her beating by her family. Finally, Dr. Wilson testified that the FGM did not look like a “medical[ly] oriented procedure” and agreed with the description that “the lady was butchered.” Id . at 247. The IJ found that “[t]he evidence considered as a w hole clearly shows that the respondent has suffered FGM in the past,” id. at 60, that according to the background material the FGM was most likely “excisi on,” id. at 59; and that “in Senegal 80 percent of the women will undergo that f orm of FGM,” id . (The IJ apparently confused the statistics for FGM victims in Senegal and Sierre Leone. According to the 1997 United States Department of S tate Report entitled “Female Genital Mutilation” (which appears in the record), Sierre Leone had an 80-90%-7-

victimization rate at that time, while Senegal’s wa s only 20%.) Ms. Niang’s membership in the Tukulor Fulani tribe is not dispu ted. But the IJ did not find Ms. Niang credible for several reasons: (1) she li ed to gain employment; (2) on her asylum application she listed her parents’ addr ess as her address from 1978 to 1999, but she testified that she had fled her pare nts’ home in 1995 after the alleged attack occurred; (3) she could name only tw o of the five pillars of Islam, despite her characterization of her family as Islam ic extremists; (4) he did not understand why she did not undergo the mutilation b efore age 13, as her sisters had; and (5) Dr. Wilson’s letter was inconsistent w ith Ms. Niang’s testimony that the attack occurred when she was 25. Because the I J found Ms. Niang’s account of how the genital mutilation occurred not credible , he denied her petitions for asylum, restriction on removal, and relief under th e CAT. Ms. Niang appealed to the BIA. The BIA affirmed th e IJ’s decision and dismissed the appeal through an order written by a single board member. See 8 C.F.R. § 1003.1(e)(5)(2003) (under new streamlining procedures one member of board can address decision on the merits unless cri teria require review by threemember panel). The BIA summarized the IJ’s reasons for finding Ms. Niang’s testimony not credible, and concluded that she had not demonstrated that the adverse credibility ruling was clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i)-8-

(IJ’s credibility findings reviewed under clearly-e rroneous standard). In reference to the undisputed genital mutilation, the BIA state d: We also acknowledge that the respondent has undergo ne FGM, has other scarring, and that the practice of FGM can pr ovide the basis for an asylum claim. Yet, we have not held that all in stances of FGM will constitute past persecution and we decline to find that this respondent’s FGM constituted persecution due to herincredible testimony regarding the circumstances surrounding the FGM. R. at 2 (internal citations omitted). Ms. Niang ap peals this decision, contending that (1) the BIA erred in affirming the IJ’s advers e credibility finding and (2) her undisputed genital mutilation constitutes past pers ecution on account of membership in a social group regardless of how it o ccurred. We exercise jurisdiction under 8 U.S.C. § 1252(a), see Tsevegmid v. Ashcroft , 336 F.3d 1231, 1234 (10th Cir. 2003). We affirm under the CAT butreverse and remand for further proceedings with respect to the denials of asylum and restriction on removal.
II. DISCUSSION A. Overview of Applicable Law There are three avenues of relief for an alien who fears persecution if returned to a particular country. Under the INA a grant of asylum permits the alien to remain in this country and a restriction o n removal forbids removal to the country where persecution may occur. Wiransane v. Ashcroft , 366 F.3d 889, 892- 93 (10th Cir. 2004). Although a grant of asylum is in the discretion of the3 The Refugee Protocol defines refugee as one who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular s ocial group or political opinion, is outside the country of his nationality and is (continued...) -9- Attorney General, a restriction on removal is grant ed to qualified aliens as a matter of right. Id. at 893. The third avenue is the CAT, which prohibi ts removal to a country where the alien would face torture. Elzour v. Ashcroft , 378 F.3d 1143, 1150 (10th Cir. 2004). Relief under the CAT is man datory if the convention’s criteria are satisfied. See 8 C.F.R. § 1208.16(c)(4) (an alien meeting CAT’s criteria “shall be granted” withholding of removal or, at a minimum, deferral of removal).

1. Asylum To be eligible for a discretionary grant of asylum, an alien must be a refugee. 8 U.S.C. § 1158(b)(1); see Elzour v. Ashcroft , 378 F.3d at 1148. The INA defines refugee as any person who is outside any country of such perso n’s nationality . .

. who is unable or unwilling to return to, and is una ble or unwilling to avail himself or herself of the protection of, thatcountry because of persecution or a well-founded fear of persecution o n account of race, religion, nationality, membership in a particular s ocial group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). This definition is take n from the 1967 United Nations Protocol Relating to the Status of Refugees (the Re fugee Protocol), ratified by the United States in 1968. 3 A primary purpose for which Congress adopted this3 (...continued)

unable or, owing to such fear, is unwilling to avai l himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residenc e as a result of such events, is unable or, owing to such fear, is u nwilling to return to it. The Refugee Protocol, Jan. 31, 1967, 19 U.S.T. 6223 (Nov. 1, 1968, date in force). -10- definition in 1980 was “ to bring United States refugee law into conformance with the [Refugee Protocol].” INS v. Cardoza-Fonseca , 480 U.S. 421, 436 (1987). The governing regulation provides two ways of achie ving refugee status: one based on past persecution and the other based o n a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(2001). Our focus in this cas e is on past persecution. The regulation states: An applicant shallbe found to be a refugee on the basis of past persecution if the applicant can establish that he or she has suffered persecution in the past in the applicant's country of nationality [on one of the forbidden grounds]. . . , and is unable or unwilling to return to, or avail himself or herself of the prote ction of, that country owing to such persecution. Id. § 1208.13(b)(1) (emphasis added). See 63 Fed. Reg. 31,945; 31,946 (June 11, 1998) (explaining that amended regulation effective January 5, 2001, “leaves intact the important principle that an applicant wh o has established past persecution on account of one of the five grounds i s a refugee”). The persecution must have been “imposed by the government or by gro ups which the government is-11-

unwilling or unable to control”. Vatulev v. Ashcroft , 354 F.3d 1207, 1209 (10th Cir. 2003) (internal quotation marks omitted). Thu s, “to establish eligibility for asylum on the basis of past persecution, an applica nt must show: (1) an incident, or incidents, that rise to the level of persecution ; (2) that is on account of one of the statutorily-protected grounds; and (3) is commi tted by the government or forces the government is either unable or unwilling to control.” Berishaj v. Ashcroft , 378 F.3d 314, 323 (3rd Cir. 2004) (internal quotation marks omitted). Accord Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000). Refugee status does not, however, entitle the appli cant to a grant of asylum; that decision continues to remain within the Attorn ey General’s discretion. See Cardoza-Fonseca , 480 U.S. at 428 n.5; 63 Fed. Reg. at 31,946. The regulation describes how the IJ should exercise discretion with respect to an applicant who is asylum eligible on the basis of past persecution. First, the past persecution establishes a presumption of a well-founded fear of future persecution on the same basis as established for the original persecution. 8 C.F.R. § 1208.13(b)(1). The INS may rebut this presumption, however, by proving that “there has been a fundamental change in circumstances such that the applicant no longer has a wellfounded fear of persecution in the applicant's coun try of nationality. . . on account of race, religion, nationality, membership in a particular social group, or political opinion,” 8 C.F.R § 1208.13(b)(1)(i)(A), or proving that “[t]he applicant could-12-

avoid future persecution by relocating to another p art of the applicant's country of nationality . . . and under all the circumstances, it would be reasonable to expect the applicant to do so, ” id. § 1208.13(b)(1)(i)(B). If the INS successfully reb uts the presumption, the IJ “in the exercise of his or her discretion, . . . shall deny the asylum application,” id. § 1208.13(b)(1)(i), unless “[t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past per secution,” or “[t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” id . at § 1208.13(b)(1)(iii). See 63 Fed. Reg. at 31,946. This avenue of obtaining a favorable discretionary grant of asylum in the absence of a well-founded fear of fut ure persecution is known as humanitarian asylum. See Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004).

2. Restriction on Removal To obtain a restriction on removal, an applicant mu st show that his “life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The Attorney General may n ot remove an alien who establishes “a clear probability of persecution in the country to which he would be returned.” Wiransane , 366 F.3d at 894 (internal quotation marks omitted ). Just as an applicant can be granted refugee status on the b asis of past persecution, an-13-

applicant can establish a presumptive entitlement t o restriction on removal on the same basis. And just as a refugee can be denied as ylum because of a change in circumstances or the opportunity to relocate, an ap plicant for restriction on removal can lose the presumption of entitlement forthat reason. The regulation

states: (1) Past threat to life or freedom. (i) If the applicant is determined to have suffered past persecution in the proposed coun try of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be pre sumed that the applicant's life or freedom would be threatened in the future in the country of removal on the basis of the original cla im. This presumption may be rebutted if an asylum officer orimmigration judge finds by a preponderance of the evidence: (A) There has been a fundamental change in circumst ances such that the applicant's life or freedom would not be threat ened on account of any of the five grounds mentioned in this paragraph upon the applicant's removal to that country; or (B) The applicant could avoid a future threat to hi s or her life or freedom by relocating to another part of the propos ed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so.
8 C.F.R. § 1208.16 (b)(1).

3. Convention Against Torture The CAT prohibits the return of an alien to a count ry where “it is more likely than not that he or she would be tortured.” 8 C.F.R. § 1208.16(c)(2). “A claim under the CAT differs from a claim for asylum or withholding of removal under the INA because there is no requirement that the petitioner[] show that-14-

torture will occur on account of a statutorily prot ected ground.” Cruz-Funez v. Gonzales , 406 F.3d 1187, 1192 (10th Cir. 2005) (internal qu otation marks omitted). The alien must show, however, that the p ersecution would be so severe that it would rise to the level of torture. Elzour , 378 F.3d at 1150. Torture is defined as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a thir d person has committed or is suspected of having committed, or i ntimidating or coercing him or her or a third person, or for any r eason based on discrimination of any kind, when such pain or suffe ring is inflicted by or at the instigation of or with the consent or acq uiescence of a public official or other person acting in an official capa city. 8 C.F.R. § 1208.18(a)(1) (1999). Under the CAT fut ure torture is not presumed on the basis of a showing of past torture. But “[i]n assessing whether it is more likely than not that an applicant would be tortured . . . , all evidence relevant to the possibility of future torture shall be considered, including . . . [e]vidence of past torture inflicted upon the applicant.” 8 C.F.R. § 1208.16(c)(3).
B. Standard of Review We review the BIA’s legal determinations de novo, a nd its findings of fact under a substantial-evidence standard. Elzour v. Ashcroft , 378 F.3d at 1150. Under the substantial-evidence standard “our duty i s to guarantee that factual determinations are supported by reasonable, substantial and probative evidence-15-

considering the record as a whole.” Id. “The BIA's findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004) (internal quotation marks omitted). Moreover, the BIA’s interpretations of ambiguous pr ovisions in the INA are entitled to particular respect under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837 (1984). The Supreme Court has instr ucted that “the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication.” INS v. Aguirre-Aguirre , 526 U.S. 415, 425 (1999) (internal quotation mark s omitted). See Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir. 2001). Indeed, “j udicial deference to the Executive Branch is especially app ropriate in the immigration context where officials exercise especially sensiti ve political functions that implicate questions of foreign relations.” Aguirre-Aguirre , 526 U.S. at 425 (internal quotation marks omitted). Thus, if the I NA “is silent or ambiguous with respect to the specific issue before it, . . . the question for the court [is] whether the [BIA’s] answer is based on a permissible construction of the statute.” Id. at 424 (internal quotation marks omitted). Finally, we must be cautious not to assume the role of the BIA. Decisions should be made in the first instance by the BIA. A nd when it has failed to address-16-

a ground raised by an applicant in support of her c laim, we should ordinarily not reverse on that ground but should instead remand if the ground appears to have any substance. See INS v. Orlando Ventura, 53 U.S. 12 (2002). C. Application to FGM As acknowledged by the BIA in its decision in this case, FGM can be the basis of a claim of past persecution. An alien mak ing such a claim must establish that (1) the FGM constituted persecution; (2) the a lien belonged to a particular social group; and (3) there was a nexus between the FGM and membership in the group—that is, the FGM was performed on account of her membership in that group. We proceed to examine each of the component s of such a claim.

1. Persecution The INA does not define persecution. We have held that persecution “requires the infliction of suffering or harm . . . in a way regarded as offensive,” Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001) (internal qu otation marks omitted), and “encompasses more than just res trictions or threats to life and liberty,” Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992) (internal qu otation marks and brackets omitted). The BIA has explicitl y recognized that FGM constituted persecution. In re Fauziya Kasinga , 21 I. & N. Dec. 357, 358 (1996). That opinion provides the following description of such mutilation:-17-

[T]he FGM practiced by her tribe . . . is an extrem e type involving cutting the genitalia with knives, extensive bleedi ng, and a 40-day recovery period.

. . . FGM is extremely painful and at least temporarily i ncapacitating. It permanently disfigures the female genitalia. FGM e xposes the girl or woman to the risk of serious, potentially life-thre atening complications. These include, among others, bleedi ng, infection, urine retention, stress, shock, psychological traum a, and damage to the urethra and anus. It can result in permanent l oss of genital sensation and can adversely affect sexual and eroti c functions. Id. at 361. Although many cases construing persecution involve persecutors who had the subjective intent to punish their victims, “thi s subjective punitive or malignant intent is not required for harm to constitute perse cution.” Id. at 365 (internal quotation marks omitted). Thus, whether Ms. Niang suffered the mutilation when she was 25 in an attack by her family, or at about the age of 10 as is customary for other members of her tribe, appears to be irrelevan t in deciding whether her mutilation constituted persecution. Other circuits agree that FGM constitutes persecuti on, whether for the purpose of determining past persecution or the purp ose of determining wellfounded fear of persecution. See Mohammed v. Gonzales , 400 F.3d 785, 795 (9th Cir. 2005) (past persecution) (“[W]e have no doubt that the range of procedures collectively known as female genital mutilation ris es to the level of persecution within the meaning of our asylum law.”); Abay v. Ashcroft , 368 F.3d 634, 638 (6th-18-

Cir. 2004) (future persecution) (“Forced female gen ital mutilation involves the infliction of grave harm constituting persecution . . . that can form the basis of a successful claim for asylum.”); Nwaokolo v. INS, 314 F.3d 303, 308 (7th Cir. 2002) (per curiam) (future persecution) (“FGM is a horrifically brutal procedure”).

2. Social Group Although Ms. Niang has added various factual embell ishments, her central claim has been that she was subjected to FGM becaus e she was a female within a tribe practicing this ritual. Even if her embellis hments are disbelieved, she may be entitled to relief if females in the Tukulor Fulani tribe constitute a social group within the meaning of the INA and she suffered FGM because she is a female in that group. This circuit has not yet addressed the meaning of “ membership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A ). But the BIA did so in In re Acosta, 19 I. & N. Dec. 211, 233-234 (1985), overruled on other grounds by In re Mogharrabi , 19 I. & N. Dec. 439 (1987). Acosta began its analysis by noting the ambiguity of the statutory term: Congress did not indicate what it understood [membe rship in a particular social group] to mean, nor is its meanin g clear in the [Refugee] Protocol. This ground was not included i n the definition of a refugee proposed by the committee that drafted th e U.N. Convention; rather it was added as an afterthought . International jurisprudence interpreting this ground of persecuti on is sparse. It has been suggested that the notion of a 'social group' was considered to be of broader application than the combined notions of racial, ethnic, and-19-

religious groups and that in order to stop a possib le gap in the coverage of the U.N. Convention, this ground was ad ded to the definition of a refugee. A purely linguistic analy sis of this ground of persecution suggests that it may encompass persecut ion seeking to punish either people in a certain relation, or havi ng a certain degree of similarity, to one another or people of like cla ss or kindred interests, such as shared ethnic, cultural, or ling uistic origins, education, family background, or perhaps economic a ctivity. The [United Nations High Commissioner for Refugees] has suggested that a 'particular social group' connotes persons of sim ilar background, habits, or social status and that a claim to fear p ersecution on this ground may frequently overlap with persecution on o ther grounds such as race, religion, or nationality. Id. at 232-33 (internal citations omitted). Applying the canon of construction ejusdem generis , see Black’s Law Dictionary535 (7th ed. 1999) (defining ejusdem generis as “[a] canon of construction that when a general word or phrase fol lows a list of specific . . . things, the general word or phrase will be interpre ted to include only . . . things of the same type as those listed.”), the BIA construed membership in a particular social group in a manner consistent with the more specific grou nds listed.
Because race , religion , nationality , and political opinion “describe[] persecution aimed at an immutable characteristic: a characteris tic that either is beyond the power of an individual to change or is so fundament al to individual identity or conscience that it ought not be required to be chan ged,” the BIA reasoned that the characteristics defining a particular social group must also be so limited.
19 I. & N. Dec. at 233. It concluded:-20-

[W]e interpret the phrase ‘persecution on account o f membership in a particular social group’ to mean persecution that i s directed toward an individual who is a member of a group of persons al l of whom share a common, immutable characteristic. The shared chara cteristic might be an innate one such as sex, color, or kinship tie s, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. . . . [W]hat ever the common characteristic that defines the group, it must be o ne that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual ident ities or consciences. Id. at 233. As we have previously stated, we must defer to the BIA’s permissible interpretation of ambiguous language in the INA. See INS v. Aguirre-Aguirre , 526 U.S. at 424-25. We agree that the term social group is ambiguous and find the BIA’s above analysis to be reasonable. The BIA’s c onstruction of “membership in a particular social group” is therefore a permissib le construction of the statute to which we must defer. See id. Five other circuits have done the same. See Alvarez-Flores v. INS, 909 F.2d 1, 7 (1st. Cir 1990) ; Elien v. Ashcroft , 364 F.3d 392, 396-97 (1st Cir. 2004) ; Fatin v. INS, 12 F.3d 1233, 1240 (3rd. Cir. 1993) ; Castellano-Chacon v. INS, 341 F.3d 533, 546-48 (6th Cir. 2003); Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998); Thomas v. Gonzales , 409 F.3d 1177, 1184-87 (9th Cir. 2005) (en banc). We recognize that two circuits may take a differentview. But the leading case in one does not even cite Acosta , much less explain why the court should not defer to the BIA’s definition of social group

. See Gomez v. INS, 947 F.2d 660,-21-

664 (2d Cir. 1991) (“A particular social group is c omprised of individuals who possess some fundamental characteristic in common w hich serves to distinguish them in the eyes of a persecutor—or in the eyes of the outside world in general.”). And the Eighth Circuit, although quoting with appar ent approval a formulation not found in Acosta , proceeds to apply the reasoning of the Third Circ uit’s opinion in Fatin, 12 F.3d at 1240 , which follows Acosta, to deny relief. See Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994). Neither of these op inions persuades us to reject or modify the Acosta definition. Applying the Acosta definition of social group , the female members of a tribe would be a social group. Both gender and tri bal membership are immutable characteristics. Indeed, Acosta itself identified sex and kinship ties as characteristics that can define a social group. See Acosta , 19 I. & N. Dec. at 233. There may be understandable concern in using genderas a group-defining characteristic. One may be reluctant to permit, fo r example, half a nation’s residents to obtain asylum on the ground that women are persecuted there. See Safaie , 25 F.3d at 640 (rejecting claim that “Iranian wom en, by virtue of their innate characteristic (their sex) and the harsh res trictions placed upon them, are a particular social group”). Cf. Gomez v. INS, 947 F.2d 660, 663-64 (2d Cir. 1991) (rejecting claim that “women who have been previous ly battered and raped by Salvadoran guerillas” are a particular social group ). But the focus with respect to-22-

such claims should be not on whether either gender constitutes a social group (which both certainly do) but on whether the member s of that group are sufficiently likely to be persecuted that one could say that they are persecuted “on account of” their membership. 8 U.S.C. § 1101(a)42 (A). It may well be that only certain women—say, those who protest inequities—suf fer harm severe enough to be considered persecution. The issue then becomes whether the protesting women constitute a social group. We are not persuaded that the BIA, contrary to the language of Acosta , requires more than gender plus tribal membership to identify a social group. The one decision that may suggest this requirement is Kasinga, in which the BIA granted asylum to a woman who feared being subjecte d to FGM if returned to her native land. The BIA described her social group as “young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as pra cticed by that tribe, and who oppose the practice.” 21 I. & N. Dec. at 365. The Board noted that its description was “very similar to the formulations s uggested by the parties.” Id. See id. at 372 (Filppu, Bd. Mem., concurring) (“the social group definition has not been a real source of dispute between the parties”) . It explained its ruling as follows: The defined social group meets the test we set fort h in Matter of Acosta [, 21 I. & N. Dec.] at 233. See also Matter of H- , Interim Decision 3276 (BIA 1996) (finding that identifiable shared ties of kinship warrant characterization as a social group) . It also is-23-

consistent with the law of the United States Court of Appeals for the Third Circuit, where this case arose. Fatin v. INS, 12 F.3d 1233, 1241 (3d Cir.1993) (stating that Iranian women who refus e to conform to the Iranian Government's gender-specific laws and s ocial norms may well satisfy the Acosta definition). In accordance with Acosta , the particular social group is defined by common characteristics that members of t he group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities. The characteristics of being a "young woman" and a "mem ber of the Tchamba-Kunsuntu Tribe" cannot be changed. The cha racteristic of having intact genitalia is one that is so fundament al to the individual identity of a young woman that she should not be re quired to change it. Id. at 365-66. We find it noteworthy that Kasinga ’s explanation provides no reason why more than gender or tribal membership wo uld be required to identify a social group. Indeed, the opinion states that it i s “[i]n accordance with Acosta ,” id. at 366, and Acosta specifically identifies “sex [and] kinship ties” a s shared characteristics that can define a social group. Acosta , 19 I. & N. Dec. at 233. This is not to say that an asylum applicant cannot include opposition to FGM as an identifying characteristic of the social group to w hich she belongs. She may choose to do so to assist in establishing the nexus component of her claim to refugee status. See Fatin v. INS, 12 F.3d 1233, 1240-41 (3d Cir. 1993) (Iranian woman could not establish a well-founded fear of pe rsecution based solely on her gender, but she might be able to show fear based on gender plus opposition to Iranian gender-specific laws). The point is only t hat opposition is not a necessary-24-

component of a social group otherwise defined by ge nder and tribal membership. We now turn to the nexus requirement.

3. Nexus For persecution to be “on account of” membership in a social group, the victim’s protected characteristic must be central t o the persecutor’s decision to act against the victim. See Gebremichael v. INS, 10 F.3d 28, 35 (1st Cir. 1994) (“An applicant qualifies as a ‘refugee’ under the INA if membership in a social group is ‘at the root of persecution,’ such that membership itself generates a ‘specific threat to the applicant’.”). This requirement is relative ly straightforward. It is important to note, however, that opposition to FGM need not b e proved to establish nexus. We agree with the Ninth Circuit’s discussion of thi s point inMohammed v. Gonzales , 400 F.3d 785, 797 (9th Cir. 2005). The court hel d that the petitioner, a female member of a tribe that subjected its females to FGM, had established past persecution on account of being a member of a socia l group defined by her gender and tribal membership. It explained: We believe that opposition is not required in orderto meet the “on account of” prong in female genital mutilation case s. The persecution at issue in these cases—the forcible, painful cutti ng of a female's body parts—is not a result of a woman's opposition to the practice but rather a result of her sex and her clan membership and/or nationality. That is, the shared characteristic that motivates t he persecution is not opposition, but the fact that the victims are femal e in a culture that mutilates the genitalia of its females.-25-

Mohammed v. Gonzales , 400 F.3d at 797 n.16. This is not to say that an adult’s voluntary submission to FGM necessarily constitutes persecution. D. Ms. Niang’s Claims 1. Asylum and Restriction on Removal As previously explained, if Ms. Niang can establish that she has suffered persecution on account of her membership in a socia l group, she may be a refugee eligible for asylum and she may be presumptively en titled to a restriction on removal. The IJ, affirmed by the BIA, rejected herclaim of past persecution, however, because he found incredible her account of how she suffered FGM. We will not set aside such a credibility determination if the “IJ . . . give[s] specific, cogent reasons for an adverse credibility finding” that are not “based on speculation or conjecture.” Wiransane , 366 F.3d 889, 897-898 (10th Cir. 2004). The IJ and BIA sufficiently supported the credibili ty determination here. But Ms. Niang’s claim of past persecution does not depend entirely on her account of the attack by her family. She has made the broader claim that she suffered FGM on account of her being a female membe r of the Tukulor Fulani tribe. It is undisputed that she suffered FGM, and the injuries described by Dr. Wilson—her scarring, inability to engage in nor mal sexual relations, and inability to bear children naturally—would certainl y be sufficiently serious to qualify her FGM as persecution. It is also undispu ted that she is a female Tukulor-26-

Fulani, and the IJ did not appear to question that the custom of the tribe is to perform FGM on its female members. The State Department Report on Female Genital Mutilation reports that about 20% of Senega lese women have undergone the mutilation and lists the “Toucouleur” tribe as one of the specific ethnic groups that practice the ritual. R. at 326. The IJ appar ently believed Ms. Niang’s statements that all her sisters had undergone the g enital mutilation at a younger age, because he used that information to discredit her testimony that her family performed the FGM when she was 25. Yet neither the IJ nor the BIA addressed this broad er claim. We therefore must remand for further proceedings to resolve it. If the BIA determines that she did suffer persecution in the form of FGM as the re sult of her tribal membership, it would next need to address whether the persecution was “committed by the government or forces the government is either unabl e or unwilling to control.” Berishaj , 378 F.3d at 323. If the BIA finds this third ele ment of refugee status, Ms. Niang is a refugee, and she is also entitled to a presumption for asylum purposes that she has a well-founded fear of future harm on account of her social group and a presumption for restriction-on-removal purposes that she will be persecuted in her home country on account of her so cial group. The BIA would therefore need to determine on remand whether the p resumptions have been

overcome.-27- 2. Convention Against Torture In contrast to the presumptions applicable in asylu m and restriction-onremoval proceedings, under the CAT a petitioner is not entitled to a presumption of future torture based on evidence of past torture ; nor does a showing of past torture automatically render her CAT eligible. Alt hough past torture is a relevant consideration for the IJ in assessing the likelihoo d of future torture, 8 C.F.R. §1208.16(c)(3)(i), it is only one factor in the ass essment. Here, our review of Ms. Niang’s CAT claim is controlled by the permissible finding that she is untruthful.
See Wiransane , 366 F.3d 897-98. Once one discredits Ms. Niang’ s description of her family’s attack on her and the threats of futur e harm from her family, one could rationally decide that she had failed to show that if she returned to Senegal she would be killed or otherwise subjected to tortu re. We therefore affirm the BIA’s rejection of this claim.
III. CONCLUSION We AFFIRM the denial of relief under the CAT, REVER SE the decision of the BIA with respect to asylum and restriction on r emoval, and REMAND this case for further proceedings consistent with this opinio n.