## Facts

- Yayeshwork Abay and her minor daughter, Burhan Amare, were natives and citizens of Ethiopia who entered the United States as nonimmigrant visitors in 1993.
- After an unsuccessful affirmative asylum application, they were placed in deportation proceedings; they sought asylum and withholding of deportation (and alternatively voluntary departure).
- Abay had undergone female genital mutilation (FGM) in Ethiopia as a child.
- Abay testified she brought Amare to the United States to protect her from being forced to undergo FGM if returned to Ethiopia; Abay’s mother insisted the girls must be circumcised before marriage.
- Amare testified (through an interpreter) that she understood what FGM is, did not want it, and feared relatives or future in-laws in Ethiopia would force it on her.
- Country-conditions evidence (including State Department reports) indicated FGM was nearly universal in Ethiopia and that an estimated 90% of women had been subjected to it.
- The Immigration Judge denied asylum and withholding, concluding neither Abay nor Amare established eligibility as a “refugee”; the BIA affirmed without opinion.

## Issues

1. Whether substantial evidence supported the agency’s denial of asylum to Amare, given her claimed well-founded fear of being subjected to FGM in Ethiopia.
2. Whether Abay could qualify as a “refugee” based on a well-founded fear that her daughter would be forced to undergo FGM upon return to Ethiopia.

## Decision

- The Sixth Circuit granted the petition for review and remanded.
- The court held the record compelled the conclusion that Amare had a well-founded fear she would be subjected to FGM if returned to Ethiopia.
- The court further held the record compelled the conclusion that Abay also had a well-founded fear of persecution based on the threatened FGM of her child.
- Judge Sutton concurred in the judgment, expressing concern about the breadth of the majority’s reasoning on parent-based claims.

## Legal Principles

- An applicant qualifies as a “refugee” under the INA if unable or unwilling to return to the home country because of persecution or a well-founded fear of persecution on account of a protected ground.
- FGM constitutes persecution for asylum purposes due to its severe and lasting bodily harm.
- Under the substantial-evidence standard, a reviewing court must reverse where the record evidence compels a conclusion contrary to the agency’s.
- A parent may qualify for asylum where the threatened persecution of a child (here, forced FGM) creates a well-founded fear of persecution for the parent, including where the parent’s opposition and protective actions place the parent in conflict with family or social pressures tied to the threatened harm.

## Conclusion

The Sixth Circuit concluded that overwhelming country-conditions evidence and the petitioners’ family circumstances compelled a finding that the daughter faced a realistic probability of forced FGM in Ethiopia and that the mother’s fear arising from that threat could also satisfy the refugee definition, requiring reversal of the agency’s denial and a remand for further proceedings.


Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004)