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tortappealhearingtestimonywillasylumcitizenship
tortappealwillasylumcitizenship

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Kane v. Holder

Facts

Kane first entered the United States in 1989, staying for approximately 10 months before leaving for Gabon, where he operated a clothing business. In 1996, Kane illegally re-entered the United States, followed shortly thereafter by his wife, whom he had married two years earlier. They now have five children, including two daughters who are under ten years old and hold birthright citizenship of the United States. In 2006, the Department of Homeland Security (DHS) commenced proceedings against Kane by issuing a Notice to Appear, charging him with removability. Following a hearing, the IJ found that Kane's removability had been established by clear and convincing evidence and designated Senegal as the removal country. Kane filed an application for withholding of removal, claiming that his minor daughters would be subjected to FGM if he were removed to Senegal.

Kane first entered the United States in 1989, staying for approximately 10 months before leaving for Gabon, where he operated a clothing business. In 1996, Kane illegally re-entered the United States, followed shortly thereafter by his wife, whom he had married two years earlier. They now have five children, including two daughters who are under ten years old and hold birthright citizenship of the United States.

Issue

Whether an alien father may succeed on a derivative withholding claim based on a fear that his minor daughters — both U.S. citizens — would be subjected to FGM if the father were removed to his native country.

Whether an alien father may succeed on a derivative withholding claim based on a fear that his minor daughters — both U.S. citizens — would be subjected to FGM if the father were removed to his native country.

Rule

To be eligible for withholding of removal, an applicant must demonstrate a 'clear probability' that he will be subject to persecution on his return to the country of removal. The applicant may demonstrate such a probability by showing that it is more likely than not that his life or freedom would be threatened by persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

To be eligible for withholding of removal, an applicant must demonstrate a "clear probability" that he will be subject to persecution on his return to the country of removal.

Analysis

The court applied the rule by examining Kane's claims and the evidence presented. It found that Kane had not established that he himself would be persecuted or tortured as a result of his opposition to FGM. The BIA concluded that Kane's daughters, as U.S. citizens, could remain safely in the United States and that if they accompanied him to Senegal, they could likely avoid FGM by relocating to a safer area. The court noted that the INA does not recognize derivative claims for withholding of removal and that Kane's assertion of not making a derivative claim was inconsistent with his testimony.

The court applied the rule by examining Kane's claims and the evidence presented. It found that Kane had not established that he himself would be persecuted or tortured as a result of his opposition to FGM.

Conclusion

The court denied Kane's petition for review, agreeing with the BIA's determination that he was not entitled to derivative withholding of removal and that his asylum claim was waived.

The court denied Kane's petition for review, agreeing with the BIA's determination that he was not entitled to derivative withholding of removal and that his asylum claim was waived.

Who won?

The Board of Immigration Appeals (BIA) prevailed in the case, as the court upheld its decision to deny Kane's application for withholding of removal and to reject his asylum claim.

The Board of Immigration Appeals (BIA) prevailed in the case, as the court upheld its decision to deny Kane's application for withholding of removal and to reject his asylum claim.

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