“ ‘Where, as here, the BIA issues an independent decision without adopting [USCIS's] conclusions, we review only the BIA decision.’ ” Popescu–Mateffy v. Holder, 678 F.3d 612, 615 (8th Cir.2012) (quoting Constanza v. Holder, 647 F.3d 749, 753 (8th Cir.2011)). A BIA petition denial will be affirmed if it is “supported by substantial evidence in the record.” Gumaneh v. Mukasey, 535 F.3d 785, 787–88 (8th Cir.2008) (citation omitted). A district court reviews questions of law de novo and reverses “findings of fact only if the evidence is ‘so compelling that no reasonable fact finder could fail to find in favor of the petitioner.’ ”
Upon careful review, we conclude substantial evidence supports the agency's determination that Katung was not entitled to withholding of removal. See Garcia-Milian v. Lynch, 825 F.3d 943, 945 (8th Cir. 2016) (standard of review); Mouawad v. Gonzales, 485 F.3d 405, 411-12 (8th Cir. 2007) (withholding-of-removal requirements); see also Gumaneh v. Mukasey, 535 F.3d 785, 789-90 & n.2 (8th Cir. 2008) (recognizing limited derivative claims provided for in asylum statute are not available to withholding-of-removal applicants). We find no abuse of discretion in the BIA's denial of the Tans's motion to reopen.
In 2005, an immigration judge agreed that he was removable but decided that he could not be removed to Laos because he would likely be persecuted there. See id. § 1231(b)(3); see also Gumaneh v. Mukasey , 535 F.3d 785, 788 (8th Cir. 2008) (discussing the remedy of "withholding of removal"). He remains in the United States today.
To the extent Lesum asks us to second-guess the IJ's determination of a reasonable period, we cannot do so. Cf. Gumaneh v. Mukasey, 535 F.3d 785, 788 (8th Cir. 2008) (noting that the preclusion of § 1158(a)(3)"extends to the IJ's determination that an applicant has not filed within a reasonable period"). Accordingly, we find no legal error in the IJ's determination that Lesum's application for asylum was untimely.
This court has rejected that theory, holding that “an applicant may not establish a derivative claim for withholding of removal based upon the applicant's child's fear of persecution.” Gumaneh v. Mukasey, 535 F.3d 785, 789 (8th Cir.2008). The second theory is that risk that a child would be subjected to female genital mutilation against the alien parent's wishes amounts to “direct” persecution of the alien parent.
This court has rejected that theory, holding that "an applicant may not establish a derivative claim for withholding of removal based upon the applicant's child's fear of persecution." Gumaneh v. Mukasey, 535 F.3d 785, 789 (8th Cir. 2008). The second theory is that risk that a child would be subjected to female genital mutilation against the alien parent's wishes amounts to "direct" persecution of the alien parent.
Other circuits agree that, in situations parallel to this, fear that a petitioner's children will be subjected, if they accompany the parent, to FGM is not in itself a basis for immigration relief to the petitioner. See, e.g., Kane v. Holder, 581 F.3d 231, 241–43 (5th Cir.2009) (denial of WOR); Gumaneh v. Mukasey, 535 F.3d 785, 788–90 (8th Cir.2008) (denial of WOR); Oforji v. Ashcroft, 354 F.3d 609, 614–18 (7th Cir.2003) (denial of CAT relief). Camara invokes Abay v. Ashcroft, 368 F.3d 634 (6th Cir.2004), as contrary precedent.
Hassan v. Gonzales, 484 F.3d 513, 517 (8th Cir.2007) (citation and quotation marks omitted). However, we have also held that “an applicant may not establish a derivative claim for withholding of removal based upon the applicant's child's fear of persecution” in the form of FGM. Gumaneh v. Mukasey, 535 F.3d 785, 789 (8th Cir.2008). Generally, “[w]e review the BIA's denial of an application for asylum, withholding of removal, and relief under the CAT using the deferential substantial evidence standard.”
Many of our sister circuits have adopted this rule. See, e.g., Mariko v. Holder, 632 F.3d 1, 8 (1st Cir.2011); Kane v. Holder, 581 F.3d 231, 240–42 (5th Cir.2009); Gumaneh v. Mukasey, 535 F.3d 785, 789–90 (8th Cir.2008); Niang v. Gonzales, 492 F.3d 505, 513 (4th Cir.2007); Oforji v. Ashcroft, 354 F.3d 609, 618 (7th Cir.2003); cf. Kone v. Holder, 596 F.3d 141, 153 (2d Cir.2010) (observing that such derivative claims appear to be foreclosed in the Second Circuit by Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d Cir.2007) (en banc)). But see Abebe v. Gonzales, 432 F.3d 1037, 1043 (9th Cir.2005) (remanding to BIA to address this question in the first instance).
And a year later in Olowo, we again concluded that both the asylum and with-holding of removal standards "require an applicant to demonstrate that she herself will be subject to persecution if removed, and do not encompass any consideration of persecution that may be suffered by others — even family members — who may be obliged to return with her. . . ." Olowo, 368 F.3d at 701; see also Gumaneh v. Mukasey, 535 F.3d 785, 789 (8th Cir. 2008) ("an applicant may not establish a derivative claim for withholding of removal based upon the applicant's child's fear of persecution"); Niang v. Gonzales, 492 F.3d 505, 513 (4th Cir. 2007) (same). Kone also argues that she and her daughter are entitled to withholding of removal and protection under the CAT based on their own past persecution.