dissenting:

Female genital mutilation (“FGM”) imperils the health and human rights of more than one million women and girls each year. As recognized by the Board of Immigration Appeals (“BIA”) decision establishing FGM as a basis for asylum, the effects of the procedure can be severe:

In re Fauziya Kasinga, 21 I. & N. Dec. 357 at *10-11 (B.I.A.1996) (en banc) (internal citation omitted).

In addition to the physical effects of the procedure, FGM “may leave a lasting mark on the life and mind of the woman who has undergone it,” causing her to experience” feelings of incompleteness, anxiety and depression.” World Health Organization, Fact Sheet: Female Genital Mutilation (2000), http://www.who.int/me-diacentre/factsheets/fs241. FGM has been recognized as a violation of international human rights and, in response to reports of its practice among immigrants to this country, criminalized under U.S. law. See Abankwah v. INS, 185 F.3d 18, 23 (2d Cir.1999).

The practice is pervasive in Ethiopia, the country of origin of petitioners Mengis-tu and Abebe. The U.S. State Department Ethiopia Country Report on Human Rights Practices for 1996, included in the record, stated that almost all girls in Ethiopia undergo some form of FGM, and noted that the practice was discouraged by the government but not prohibited. FGM in Ethiopia usually involves either the removal of the clitoral hood (“clitoridecto-my”) or excision of the clitoris with part or all of the labia minora (“excision”). See, e.g., U.S. Department of State, Ethiopia: Report on Female Genital Mutilation (FGM) or Female Genital Cutting (FGC) (2001), http://www.state.gOv/g/wi/rls/rep/ crfgm.l0098pf.htm.

I.

In my view, the record compels the conclusion that the petitioners have a well-founded fear that their daughter Amen, now eight years old, will be subjected to FGM. The majority accepts the Immigration Judge (IJ)’s conclusion that Mengistu and Abebe would be able to prevent their daughter from being subjected to the procedure. The transcript of the hearing before the IJ, however, shows that neither Mengistu nor Abebe stated that they could prevent FGM from being performed. The IJ transformed the couple’s expressions of disapproval of FGM, and their desire to protect their daughter from it, into affirmations of their ability to prevent it.

*761 Mengistu stated, “[I]n Ethiopia like the female circumcision is like a very serious issue and almost practically all females have to undergo through that and I will try to do whatever I can to stop that but if I ... get imprisoned or I am unable to protect her she would have to go through that.” When the IJ suggested that the parents controlled the FGM decision, Men-gistu responded, “It’s not as easy as that. I mean there will be pressure from the society, from the grandparents.”

He added, “[I]f I’m for some reason incarcerated and I’m not there to — my wife will not be able to — I mean from the society and I would not alone be able to stop like family members who support that kind of tradition. She wouldn’t be able to stop them, I’m afraid.”

Abebe, who was herself circumcised as a baby, said nothing about her ability to prevent FGM from being performed, only that she did not want it to be done to her daughter and that she feared rejection if she resisted. The following dialogue transpired on direct examination:

The questioning on the topic ended there. Thus, contrary to the IJ’s finding, Abebe never stated that she would actually be able to protect Amen from FGM.

A well-founded fear of persecution does not require that it is “more likely than not” that persecution will occur. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987). As the Supreme Court noted, “One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.” Id. at 431 , 107 S.Ct. 1207 . In fact, a “well-founded fear may be based on no more than a ten percent chance of actual persecution.” Cord on-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000) (citing Velarde v. INS, 140 F.3d 1305, 1310 (9th Cir.1998)). Thus, even if it is likely that Mengistu and Abebe will be able to protect Amen from FGM, they may still have a well-founded fear of not being able to do so.

The majority seems to require parents seeking asylum to testify that they would be absolutely powerless to prevent FGM from being performed on their daughters. But such a requirement would put parents of U.S. citizen girls, like Mengistu and Abebe, in the frightening position of risking court-ordered removal of their children in the event that their asylum claims are rejected. In Olowo v. Ashcroft, 368 F.3d 692 (7th Cir.2004), the Seventh Circuit denied asylum to Esther Olowo, the mother of two minor girls who would likely face FGM if returned to Nigeria. The mother testified that in Nigeria, her husband’s family would force her daughters to undergo FGM, and that she would have no choice in the matter. Id. at 698 . The Court refused to grant asylum to the mother because it held that she herself did not face persecution, id. at 701 , and noted that the girls need not return to Nigeria because they had legal permanent resident *762 status in the United States. Olowo testified that she could not leave her daughters in the United States outside her care, and thus had no choice but to risk their exposure to FGM in Nigeria. Id. at 698, 702 . The Seventh Circuit, blind to the Hobson’s choice its own decision imposed, lambasted Olowo for seeking to take her daughters with her and ordered the notification of state agencies charged with protecting “minors from parents who allow acts of torture to be committed on minors.” Id. at 703-04 .

Given that a federal court might instigate the forcible separation of a mother from children she attempted to protect, asylum applicants in the position of Men-gistu and Abebe face an anguishing dilemma. On the one hand, if they suggest that there is some chance they could prevent FGM, their asylum claims may be denied for absence of a well-founded fear (as in this case). They accordingly expose their daughters to some risk of FGM. On the other hand, if parents insist that the FGM decision is beyond their control, but their asylum claim is nevertheless denied (as in Olowo), they risk being stripped of custody of their daughters.

In light of this dilemma, and, more importantly, on the strength of the record before us, I would find the concerns expressed by Abebe and Mengistu on the threat of FGM sufficient to establish a well-founded fear of persecution.

II.

The majority denies asylum based on its conclusion that the petitioners could protect their daughter from FGM. Because I disagree with this conclusion, I would reach the government’s additional argument that, as a matter of law, parents may not derivatively claim asylum based on a fear that their U.S. citizen daughter would be forced to undergo FGM. The government contends that because Mengistu and Abebe are not personally at risk of persecution, and because their daughter has a legal right to remain in the United States, there is no basis for relief. I would reject this argument as a misreading of the law and an affront to basic human values.

This Circuit has not addressed whether the parents of a daughter at risk of FGM may qualify for asylum. In Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir.2004), a Nigerian woman petitioned to reopen deportation proceedings under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), contending that her U.S. citizen daughter would face FGM in Nigeria. We remanded to the BIA to consider whether an individual could assert a derivative torture claim on behalf of U.S. citizen children, which we noted presented an issue of first impression in the Ninth Circuit. Id. at 1021 .

In Abay v. Ashcroft, 368 F.3d 634 (6th Cir.2004), the Sixth Circuit found that a mother who feared that her daughter would be forcibly subjected to FGM in Ethiopia qualified as a refugee. The Court noted that the Board of Immigration Appeals has on several occasions granted relief to the parents of girls who would face the threat of FGM in their home countries. Id. at 641-42 (citing several recent, non-precedential BIA decisions). In addition, Abay noted that in a case designated as having precedential value, the BIA found that a man seeking asylum based on the forced sterilization of his wife by the Chinese government qualified as a refugee. Id. at 641 . (citing In re C-Y-Z-, 211. & N. Dec. 915 (BIA 1997)).

These decisions, the Court stated, “suggest a governing principle in favor of refugee status in cases where a parent and *763 protector is faced with exposing her child to the clear risk of being subjected against her will to a practice that is a form of physical torture causing grave and permanent harm.” Id. at 642 .

By contrast, the Seventh Circuit in Oforji v. Ashcroft, 354 F.3d 609 (7th Cir.2003), held that a parent may not establish a claim for asylum by pointing to a threat that her U.S. citizen child would face FGM in the event the parent were deported. In that case, the mother of two U.S. citizen girls claimed that if she returned to Nigeria, her daughters would be subjected to FGM because her tribe made refusal of the procedure punishable by death. Id. at 612 . The Court held that U.S. regulations enforcing the U.N. Convention against Torture appear to foreclose a derivative claim, and found no legal basis for considering hardship to an asylum applicant’s child. Id. at 615, 617-18 . Recognizing that this position would require a deported mother to choose between leaving her children behind in the United States or exposing them to the threat of FGM, id. at 617-18 , the Court nevertheless concluded that Congress “has opted to leave the choice with the illegal immigrant, not the courts.” Id. at 618 .

I do not believe that Congress intended any parent to face that choice. If Congress failed to clarify, in so many words, that a parent may claim asylum on the basis of a threat to her child, that omission is attributable only to a failure to imagine that so many young children would be independently targeted for persecution. Our consciousness of FGM has now grown, as has our knowledge that hundreds of thousands of children are compelled to serve as child soldiers in deadly conflicts around the world. See, e.g., Human Rights Watch, Facts About Child Soldiers (2004), http://hrw.org/campaigns/crp/ facts.htm. Surely, Congress did not intend parents to choose between exposing their children to such threats and abandoning them halfway around the world.

Statements of the United Nations High Commissioner for Refugees (“UNHCR”), the U.N. agency charged with the international protection of refugees, support this view. In letters to the British Refugee Legal Centre, UNHCR opined that a woman could be considered a refugee if her daughters feared being compelled to undergo FGM. Heaven Crawley, Refugees and Gender: Law and Process 181 (2001). UNHCR’s suggestion is relevant to our own asylum decisions because the U.S. definition of a refugee, codified in 8 U.S.C. § 1101 (a)(42)(A), largely adopts the international definition interpreted by UNHCR: a refugee is one who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,” is unable or unwilling to return to his or her country of origin. Convention Relating to the Status of Refugees, July 28, 1951, art. 1(A)(2), 189 U.N.T.S. 137, 152.

My conviction that our law grants refugee status to the parent of a child at risk of persecution is further strengthened by the great weight we attach to family unity. The Supreme Court has long protected, under substantive due process principles, the integrity of the family unit and the right of parents to raise their children. “The rights to conceive and to raise one’s children have been deemed ‘essential, ‘basic civil rights of man,’ and ‘rights far more precious ... than property rights.’” Stanley v. Illinois, 405 U.S. 645, 651 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972) (finding an unmarried father constitutionally entitled to a parental fitness hearing before being deprived of custody of his children). “Our decisions establish that the Constitution protects the sanctity of the family precise *764 ly because the institution of the family is deeply rooted in this Nation’s history and tradition.” Moore v. City of East Cleveland, 431 U.S. 494, 503 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977) (plurality opinion) (invalidating city ordinance that prevented a grandmother from living with her grandson).

In addition, U.S. immigration law prioritizes the value of keeping families together. Family reunification is the “dominant feature of current arrangements for permanent immigration to the United States,” with special preferences for the immediate relatives of U.S. citizens. Thomas Alexander Aleinikoff et al., Immigration and Citizenship: Process and Policy 319 (4th ed.1998).

Furthermore, the Convention on the Rights of the Child, the most widely ratified human rights treaty in history, 1 requires states to “ensure that a child shall not be separated from his or her parents against their will, except when ... such separation is necessary for the best interests of the child.” Convention on the Rights of the Child, Nov. 20, 1989, art. 9, 28 I.L.M. 1448, 1460-61.

For all of these reasons, I would hold that Mengistu and Abebe qualify for asylum. Their daughter Amen is an eight-year-old American. I do not believe that Congress intended to jeopardize her welfare by forcing her parents to choose between risking her exposure to FGM and leaving her in the arms of strangers across many thousands of miles.

. Only the United States and Somalia have not ratified the treaty, Somalia because it does not have an internationally recognized government. The United States has signed the treaty, signaling its intention to ratify, but has not yet ratified the agreement, which would include obtaining the approval of the U.S. Senate.