Asylum Law and Female Genital Mutilation: Recent Developments

Order Code RS22810

February 15, 2008

Asylum Law and Female Genital Mutilation:

Recent Developments

Yule Kim

Legislative Attorney

American Law Division

Summary

Female genital mutilation (FGM) is a term encompassing a wide range of

procedures that involve the removal or alteration of a woman’s genitalia. The federal

courts and the Board of Immigration Appeals (BIA) have classified FGM as a form of

persecution, a showing of which can act as a basis for a successful asylum claim.

However, recent developments in this area of law have created a split between the

federal courts and the BIA over the treatment of applicants who have already been

inflicted with FGM. The federal courts that have addressed this issue currently treat a

past infliction of FGM as a basis for a well-founded fear of persecution. The BIA, on the

other hand, has rejected this position, arguing that FGM is a one-time procedure, and

that once inflicted, an applicant will not be persecuted with FGM again, and thus cannot

act as a basis for an asylum application.

Introduction

Female genital mutilation (FGM) is a term encompassing a wide range of surgical

procedures that involve the removal or alteration of a woman’s genitalia.1 Currently, a

well-founded fear of FGM can act as a basis for a successful asylum claim. Recent

developments in asylum law, however, have resulted in a split between the Board of

Immigration Appeals (BIA) and several federal circuits over whether a prior infliction of

FGM may qualify a woman for asylum.

Prior Case Law

The Prima Facie Case For Asylum. Asylum is a form of relief that the

Secretary of Homeland Security or the Attorney General may grant in his or her discretion

1

See CRS Report RS21923, Female Genital Mutilation (FGM): Background Information and

Issues for Congress, by Tiaji Salaam-Blyther, Erin D. Williams, and Ruth Ellen Wasem.

CRS-2

if the applicant qualifies to be a refugee, as defined by Section 101(a)(42)2 of the

Immigration and Nationality Act (INA).3 In order to qualify as a refugee, the applicant

must show4 that she has a well-founded fear5 of persecution in her home country on

account of race, religion, nationality, membership in a social group, or political opinion.6

The analysis in an asylum claim is usually broken into three elements: (1) proof of

persecution or a well-founded fear of persecution, (2) proof of membership in a race,

religion, nationality, or social group or belief in a political opinion, and (3) proof that the

well-founded fear of persecution is “on account of” the applicant’s membership in the

protected class of individuals.

Woman As A Social Group. In order for there to be a successful asylum claim,

the applicant must not only show she has suffered persecution or has a well-founded fear

of persecution, but she must also demonstrate that the well-founded fear of persecution

is on account of belonging to a race, religion, nationality, social group, or holding a

political opinion.7 Gender alone does not constitute a social group and is not sufficient to

establish asylum status.8 On the other hand, one formulation of a social group which has

been successfully used in an FGM asylum claim is “women opposed to FGM who belong

to an ethnic group that practices FGM.”9 Thus, in order to successfully claim asylum

based on FGM, the applicant must show, at a minimum, that she is (1) a female, (2) that

belongs to an particular ethnic group, and (3) that ethnic group widely practices FGM.10

FGM As Future Persecution. An asylum applicant must demonstrate that he is

unable to avail himself of the protection of his country because of “persecution or a wellfounded fear of persecution.”11 FGM is recognized by most federal circuits and the BIA

2

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).

3

INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A).

4

8 C.F.R. § 1208.13(a) (“The burden of proof is on the applicant for asylum to establish that he

or she is a refugee as defined in section 101(a)(42) of the Act.”). See also 8 C.F.R. § 208.13(a).

5

See INS v. Cardozo-Fonseca, 480 U.S. 421, 431 (1987) (“That the fear must be ‘well-founded’

does not alter the obvious focus on the individual’s subjective beliefs, nor does it transform the

standard into a ‘more likely than not’ one. One can certainly have a well-founded fear of an event

happening when there is less than a 50% chance of the occurrence taking place.”); Balogun v.

Ashcroft, 374 F.3d 492, 499 (7th Cir. 2004) (“The asylum applicant must show (1) that she has

a genuine, subjective fear of persecution and (2) that her fear is objectively reasonable.”).

6

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). See also Cardozo-Fonseca, 480 U.S. at 428.

7

INA § 101(a)(42)(A0, 8 U.S.C. § 1101(a)(42)(A).

8

See Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993).

9

See In re Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996) (holding that persecution was on

account of applicant’s membership of a social group comprising of the young women of the

Tchamba-Kunsuntu Tribe); Niang v. Gonzales, 422 F.3d 1187, 1200 (10th Cir. 2005) (holding that

for purposes of FGM, a social group can be defined by both gender and tribal membership). See

also In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985).

10

See Niang, 422 F.3d at 1199. But see Kasinga, 21 I. & N. Dec. at 365 (appearing to indicate

that an FGM asylum applicant must also show a personal opposition to FGM).

11

INA § 101(a)(42). When the statute speaks of “persecution” and a “well-founded fear of

(continued...)

CRS-3

as a form of persecution.12 The BIA, for example, has characterized FGM as a form of

“sexual oppression ... to ensure male dominance and exploitation,” practiced in order to

“overcome sexual characteristics of young women ... who have not been, and do not wish

to be, subjected to FGM.”13 Therefore, if an asylum applicant successfully shows a wellfounded fear of FGM if she returns to her home country, that alone would satisfy the wellfounded fear element of an asylum claim.

Some asylum applicants have also made the argument that they have a well-founded

fear of persecution based on the fear that a daughter will suffer FGM upon arrival at the

applicant’s home country.14 Several federal circuits seem to at least implicitly accept this

proposition.15 The BIA has, however, rejected an argument proposed by a childless

applicant who based her asylum claim on the fear that her future, unborn daughters may

suffer FGM, classifying this fear as too speculative to be well-founded.16

FGM As Past Persecution. Even though a showing of a well-founded fear of

FGM will qualify an applicant for asylum status, the BIA will not regard a past infliction

of FGM as sufficient to establish a well-founded fear of persecution.17 This approach,

however, is a marked departure from the approach taken by the federal circuits that have

addressed this issue.

When an applicant petitions for asylum status, she must show that she has a “wellfounded fear” of persecution. An asylum applicant can create a rebuttable presumption

of a “well-founded fear” of persecution if she can show (1) a past incident that rises to the

level of persecution (2) that is on account of race, religion, nationality, membership in a

social group, or political opinion, and (3) is committed by the government or by forces the

government is either unable or unwilling to control.18 This presumption may be rebutted

if it can be shown that “there has been a fundamental change in circumstances such that

the applicant no longer has a well-founded fear of persecution in the applicant’s

country.”19

11

(...continued)

persecution,” it is referring to prospective persecution if the applicant is sent back to her home

country. A showing of past persecution is meant to serve as evidence of prospective persecution.

12

Kasinga, 21 I. & N. Dec. at 365 (BIA 1996); Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.

2004).

13

Kasinga, 21 I. & N. Dec. at 366-367.

14

See Abay, 368 F.3d at 641.

15

Id. See also Nwaokolo v. INS, 314 F.3d 303, 308 (7th Cir. 2002); Barry v. Gonzales, 445 F.3d

741, 745 (4th Cir. 2006).

16

In re A-T-, 24 I. & N. Dec. 296, 302 (BIA 2007).

17

When an asylum applicant makes a showing of past persecution, it serves as evidence of

prospective persecution in the future if she is sent back to her home country.

18

Navas v. INS, 217 F.3d 646, 655-656 (9th Cir. 2000). See also 8 C.F.R. § 1208.13(b)(1).

19

8 C.F.R. § 1208.13(b)(1)(i)(A).

CRS-4

The leading federal appellate case on the treatment of FGM as past persecution is

Mohammed v. Gonzales.20 In this case, the asylum applicant was a woman from Somalia

who had already been inflicted with FGM.21 The applicant claimed that the FGM

constituted past persecution which warranted the presumption that she had a well-founded

fear of future persecution.22 The government contended that the past infliction of FGM

should have rebutted the presumption because, having already suffered FGM, it was

unlikely that the applicant would be inflicted with the procedure in the future.23 The Ninth

Circuit rejected this argument, analogizing FGM to forced sterilization, which had been

classified as a “continuing harm that renders a petitioner eligible for asylum, without

more.”24 This holding effectively made a showing of FGM sufficient to create an

irrebuttable presumption of a well-founded fear of persecution.25

Alternatively, the Ninth Circuit stated that even if FGM created a mere rebuttable

presumption of a well-founded fear, the presumption would still be difficult to rebut

because of the risk of violence and gender persecution, as evidenced by the applicant’s

FGM, if the applicant was removed to her home country.26 This alternative theory has

been endorsed by the Eighth Circuit in Hassan v. Gonzales, which held that a showing of

past FGM would create a presumption of a well-founded fear since the applicant could

still suffer from forms of future persecution other than FGM.27

On the other hand, the BIA has expressly rejected both of these theories. The BIA

has instead ruled that if the government shows that the asylum applicant has already

suffered FGM, the presumption of a well-founded fear of persecution is rebutted.28 The

BIA argues that FGM is a one-time procedure, and once it has been undergone, the

applicant will never be persecuted by FGM again.29 Furthermore, the BIA rejected the

theory that FGM constitutes a “continuing harm” which creates an irrebuttable

presumption of future persecution.30 The BIA claimed that the only reason forced

sterilization is given “continuing harm” status is because of a statutory provision that

20

400 F.3d 785 (9th Cir. 2005).

21

Id. at 789-790.

22

Id. at 791.

23

Id. at 799.

24

Id. See also Qu v. Gonzales, 399 F.3d 1195, 1203 (9th Cir. 2005) (characterizing forced

sterilization as a form of permanent and continuous persecution which creates an irrebuttable

presumption of a well-founded fear of persecution).

25

But see Hassan v. Gonzales,484 F.3d 513, 518 (8th Cir. 2007) (holding that while a showing of

FGM will be sufficient to create a presumption of a well-founded fear of persecution, the

presumption is still rebuttable).

26

Mohammed, 400 F.3d at 800.

27

484 F.3d at 518.

28

In re A-T-, 24 I. & N. Dec. at 299.

29

Id.

30

Id.

CRS-5

expressly states that forced sterilization provides a basis for asylum.31 Absent such a

statutory endorsement from Congress, the BIA concluded that FGM should not be treated

the same as forced sterilization.32 It should be noted that the Ninth Circuit has argued that

the “continuing harm” concept arose out of case law and not from the statute; the statutory

provision regarding forced sterilization instead creates a nexus between a showing of past

forced sterilization and political opinion, thereby automatically satisfying the “on account

of” element in an asylum claim and has nothing to do with the “well-founded fear of

persecution” element.33

On the alternative theory, the BIA rejected the notion that a showing of FGM can

create a rebuttable presumption of a well-founded fear of future persecution.34 This

approach, suggested by the Ninth Circuit in Mohammed and adopted by the Eighth Circuit

in Hassan, was dismissed by the BIA as a deviation from regulatory procedures.35

Specifically, the BIA cited a regulation which states that “If the applicant’s fear of future

persecution is unrelated to past persecution, the applicant bears the burden of establishing

that the fear is well-founded.”36 The BIA, in essence, appears to require that a showing

of past persecution must create a well-founded fear of identical future persecution.37 If the

past persecution renders an identical form of persecution in the future impossible, then

the past persecution will not create a rebuttable presumption of a well-founded fear.38

As it currently stands, the majority of federal circuits that have addressed this issue

appear to view a past infliction of FGM as constituting past persecution which can create

a rebuttable presumption of a well-founded fear of future persecution.39 However,

considering the important gate-keeping function the BIA serves for asylum applications,

the majority of applicants who have already suffered FGM will likely have their asylum

claims rejected.

31

Id. at 300. See also INA § 101(a)(42), 8 U.S.C. § 1101(a)(42).

32

In re A-T-, 24 I. & N. Dec. at 300.

33

See Mohammed, 400 F.3d at 800, fn. 22.

34

In re A-T-, 24 I. & N. Dec. at 304.

35

Id.

36

Id. See also 8 C.F.R. § 1208.13(b)(1); 8 C.F.R. § 208.13(b)(1).

37

In re A-T-, 24 I. & N. Dec. at 304.

38

Id.

39

See Mohammed, 400 F.3d at 800-801; Hassan, 484 F.3d at 518; Barry, 445 F.3d at 745 (stating

in dictum that a showing of a prior infliction of FGM constitutes a prima facie case of

persecution for an asylum claim); Niang, 422 F.3d at 1197-1198 (agreeing that a prior infliction

of FGM is a viable basis for an asylum claim).