## Facts

- Three women from Guinea were subjected to female genital mutilation (FGM) as children.
- They sought withholding of removal and protection under the Convention Against Torture (CAT), relying in part on past FGM as past persecution on a protected ground.
- They alleged risk of future harm if returned to Guinea, including additional or related non-consensual procedures, medical and sexual consequences linked to the original FGM, forced marriage or other gender-based abuse, and lack of effective state protection.
- Immigration Judges found or assumed past persecution via FGM but denied withholding and CAT relief on the theory that, because FGM had already been inflicted, future persecution or torture on that basis was not likely.
- The Board of Immigration Appeals affirmed, treating the completed act of FGM as rebutting the regulatory presumption of future threat.

## Issues

1. Whether past FGM, once establishing past persecution for withholding of removal, creates a presumption of future persecution that can be automatically rebutted solely because FGM has already occurred.
2. Whether the government satisfied the “fundamental change in circumstances” rebuttal standard under 8 C.F.R. § 1208.16(b)(1)(i)(A) by pointing only to the fact that the applicant was previously subjected to FGM.
3. Whether CAT claims premised on future FGM-related harms were properly evaluated where the agency treated completed FGM as negating future torture risk.

## Decision

- The Second Circuit granted the petitions in part and dismissed them in part.
- The court held the agency committed legal error by applying a categorical rule that completed FGM automatically rebuts the presumption of future persecution triggered by past persecution.
- The court ruled that the withholding regulation requires an individualized, evidence-based analysis of whether there has been a “fundamental change in circumstances,” not a per se conclusion drawn from the completed nature of the past harm.
- The court concluded the agency’s CAT analysis was flawed to the extent it repeated the same assumption and failed to assess future FGM-related harms and the role or acquiescence of public officials.
- The court remanded for proper application of the regulatory framework to the FGM-based withholding and CAT claims; non-FGM issues were resolved separately.

## Legal Principles

- Under 8 C.F.R. § 1208.16(b)(1), proof of past persecution on a protected ground creates a rebuttable presumption that the applicant’s life or freedom would be threatened if returned.
- The government may rebut that presumption only by showing, by a preponderance of the evidence, a “fundamental change in circumstances” such that the applicant’s life or freedom would not be threatened on account of the past persecution.
- The fact that FGM has already been inflicted does not, by itself, constitute a “fundamental change in circumstances” and cannot automatically rebut the presumption of future persecution.
- FGM may entail continuing or future harms (including related procedures and long-term consequences) that must be considered in the forward-looking risk inquiry.
- For CAT protection, adjudicators must assess whether it is more likely than not the applicant will face torture with official involvement or acquiescence, and may not reject risk solely because the initial FGM has already occurred.

## Conclusion

The Second Circuit required individualized application of the withholding and CAT regulatory standards in FGM-based claims, holding that past FGM triggers a presumption of future persecution that cannot be categorically rebutted merely because the past cutting cannot be repeated in the same form, and remanded for proper risk and rebuttal analysis.


Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008)