Almaz Sayoum Abebe Sisay Mengistu v. Alberto R. Gonzales, Attorney General

Mr. Sisay Mengistu and his wife, Ms. Almaz Abebe (together Petitioners), are natives and citizens of Ethiopia who petition for review of a final order of the Board of Immigration Appeals (BIA) denying their application for asylum and withholding of removal. The BIA adopted the decision of the Immigration Judge (IJ), who concluded that Petitioners had not demonstrated a well-founded fear of persecution. Petitioners argued that if the family were returned to Ethiopia, their nine-year-old daughter would be subjected to *1039 female genital mutilation (FGM) and Mr. Mengistu would be persecuted because of his political activities. We conclude that the IJ’s determination concerning Petitioners’ FGM argument is not supported by substantial evidence. FGM constitutes persecution sufficient to support an asylum claim. The record does not support the conclusion reached by the IJ and adopted by the BIA that the risk that Petitioners’ daughter will be subjected to FGM is too small to establish a well-founded fear of persecution. Substantial evidence ■ does support the rejection of Petitioners’ political persecution argument, however. Based upon the FGM ground, we grant the petition for review…

dissenting in part and concurring in part:

I

I respectfully dissent. The Petitioners failed to adequately raise the Female Genital Mutilation (FGM) issue in their appeal to the Board of Immigration Appeals (BIA). It remains administratively unexhausted and I would dismiss the petition for lack of subject matter jurisdiction. See 8 U.S.C. § 1252 (d)(1); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004) (holding that the “[fjailure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter” (alteration in original) (quoting Vargas v. United States Dep’t of Imm. & Nat., 831 F.2d 906, 907-08 (9th Cir.1987))). By neglecting to raise the FGM issue in their counseled Notice of Appeal, or to challenge the decision of the Immigration Judge (IJ) within their counseled brief to the BIA, the Petitioners did not put the BIA on notice of their claim or give the agency “a full opportunity to resolve [the] controversy or correct its own errors before judicial intervention.” Ladha v. INS, 215 F.3d 889, 903 (9th Cir. 2000) (alteration in original) (quoting Sagennark v. INS, 767 F.2d…

432 F.3d 1037 Almaz Sayoum ABEBE; Sisay Mengistu, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent. No. 02-72390. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 21, 2005. Filed December 30, 2005. Philip Hornik (argued), Portland, Oregon; Karen Musalo (argued), Stephen Knight and Tala Hartsough, Center for Gender and Refugee Studies, University of California Hastings College of the Law, San Francisco, CA, for the petitioners. Peter D. Keisler, Assistant Attorney General, Donald E. Keener, Deputy Director and Alison R. Drucker, Senior Litigation Counsel (argued), United States Department of Justice, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. Adq-nac-wsl, Ayc-tog-dwd. Before: SCHROEDER, Chief Judge, KOZINSKI, RYMER, THOMAS, W. FLETCHER, PAEZ, BERZON, TALLMAN, CLIFTON, BYBEE, and CALLAHAN, Circuit Judges. CLIFTON, Circuit Judge. 1 Mr. Sisay Mengistu and his wife, Ms. Almaz Abebe (together Petitioners), are natives and citizens of Ethiopia who petition for review of a final order of the Board of Immigration Appeals (BIA) denying their application for asylum and…