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Mame F. Sow v. Atty Gen USA, 3rd Cir. (2011)
Mame F. Sow v. Atty Gen USA, 3rd Cir. (2011)
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-4530
___________
MAME F. SOW,
a/k/a Mame Faba Sow Ep Ndiaye;
CHEIKH MOHAMED FADEL NDIAYE,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A93-432-510 & A89-204-145)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 6, 2011
Before: SCIRICA, FISHER and ALDISERT, Circuit Judges.
(Filed: July 11, 2011)
___________
OPINION
___________
PER CURIAM
Mame F. Sow and her husband, Cheikh Mohamed Fadel Ndiaye, petition for
review of an order of the Board of Immigration Appeals (BIA) which dismissed their
meager, noting that there is nothing . . . to establish that the children have any type of
severe, life threatening condition. The IJ also found no significant likelihood that the
petitioners daughters would be subjected to FGM in Senegal. In support of this
conclusion, the IJ noted that petitioners were opposed to FGM and that Sows relatives
had been unable to perform the practice on her. The IJ also relied on a 2001 State
Department report, which cited a study indicating that approximately 20 percent of the
female population in Senegal had undergone some type of FGM. The IJ further noted
that while the 2007 State Department Report on Human Rights Practices stated that FGM
is still practiced in certain parts of Senegal, the Report also indicated that the government
prosecuted those engaging in the practice and collaborated with various groups to educate
people about its dangers. Overall, according to the IJ, it appeared that the cultural
acceptance in Senegal of female genital mutilation is decreasing and the practice is being
prosecuted and outlawed by the government.
The petitioners appealed to the BIA, asserting only that the IJ failed to take into
account certain evidence concerning the possibility that their daughters would be subject
to FGM. For instance, the petitioners pointed to material allegedly indicating that the
percentage of females in Senegal forced to undergo FGM is much higher than 20
percent, that FGM is still widely practiced with impunity, and that there had been no
convictions under the law prohibiting FGM. The BIA dismissed the appeal, concluding
that the IJ properly considered and weighed the record evidence. The Board held that it
was unable to conclude, even considering all of the factors presented cumulatively in the
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record and in the [petitioners] appellate brief, that removal would result in exceptional
and extremely unusual hardship as interpreted by precedential BIA decisions. The
petitioners filed a timely petition for review.
Although we have authority to review final orders of removal under INA
242(a)(1) [8 U.S.C. 1252(a)(1)], we lack jurisdiction under INA 242(a)(2)(B)(i) [8
U.S.C. 1252(a)(2)(B)(i)] to review factual or discretionary determinations such as
whether a petitioner has satisfied the hardship requirement for cancellation of removal.
Patel v. Atty Gen., 619 F.3d 230, 232 (3d Cir. 2010). In addition, our jurisdiction is
limited under 242(d)(1) of the INA to cases where the petitioner has exhausted all
administrative remedies available to the alien as of right . . . . INA 242(d)(1) [8
U.S.C. 1252(d)(1)]; Abdulrahman v. Ashcroft, 330 F.3d 587, 59495 (3d Cir. 2003).
Although the exhaustion principle is not applied in a draconian fashion, [o]ut of
respect for the administrative process, we will not require the BIA to guess which issues
have been presented and which have not. Lin v. Atty Gen., 543 F.3d 114, 121-22 (3d
Cir. 2008). But, so long as an immigration petitioner makes some effort, however
insufficient, to place the Board on notice of a straightforward issue being raised on
appeal, a petitioner is deemed to have exhausted her administrative remedies. Joseph v.
Atty Gen., 465 F. 3d 123, 126 (3d Cir. 2006) (quotation marks and citations omitted).
Exhaustion may occur where the BIA sua sponte considers an issue, see Lin, 543 F.3d at
122-23, or where it is put on notice that there was a claim of error hovering around the
[IJs] findings . . . . Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005).
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