To receive withholding of removal, a respondent basing her case on fear of future persecution must prove that her life or freedom would be in danger if she were to return to her home country. 8 C.F.R. § 1208.16(b)(1)(i) (2008). A fear of returning home based on past persecution, on the other hand, is assumed, and the government must show the judge either that circumstances have changed in the country, or that the respondent could live in a different area of the country thereby avoiding persecution. 8 C.F.R. §§ 1208.16(b)(1)(i)(A)-(B), (ii).

The Attorney General found that the BIA committed error in finding that past persecution must occur again in exactly the same way to constitute a legitimate fear of future persecution. First, FGM can be performed more than once on an individual. Secondly, the Attorney General found that the future harm to life or freedom does not need to be identical to the past harm, but must be of the same statutory category. In this case, the respondent’s fear was based on her social group. Therefore, the BIA was required to prove “that changed conditions obviated the risk to life or freedom related to the original claim.” (citing Bah v. Mukasey, 529 F.3d 99, 103 (2d Cir. 2008)).

For these reasons, the Attorney General vacated the lower court’s decision and remanded the case for reconsideration in light of the opinion.

Compiled from: Matter of A-T-, Respondent, Decided by Attorney General September 22, 2008, U.S. Department of Justice, Office of the Attorney General, 24 I. & N. Dec. 617 (A.G. 2008) Interim Decision #3622.