On September 22, 2008, U.S. Attorney General Michael Mukasey issued an important order relating to victims of female genital mutilation (FGM). Mukasey instructed the Federal Board of Immigration Appeals (BIA) to reconsider a decision from a 2007 case in which the board denied protection from removal (deportation) to a 28-year-old woman who was a victim of FGM in her native Mali. BIA’s decision severely limited the ability of FGM victims to obtain asylum and similar forms of relief from removal in the United States.
Under U.S. immigration law, foreign nationals present in the United States may obtain asylum, withholding of removal and/or Torture Convention relief if they are able to show, among other things, that they are in danger of suffering harm such as persecution or torture if they return to their home countries. One way for an individual to demonstrate that such a danger exists is to prove that he or she suffered persecution in the past. In recent years, immigration courts have determined that FGM – which, according to the World Health Organization, involves the “partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons” – is a severe enough type of harm that it amounts to persecution, making the individual eligible for asylum or related relief if all the other legal requirements are met.
Early FGM cases involved women who had not yet been subjected to genital mutilation, but who feared victimization in the future. In the 2007 case, however, the woman from Mali had already been subjected to FGM as a young girl, and was basing her claim for protection in part on that past persecution she had suffered. BIA rejected her claim, explaining that although she may indeed have suffered past persecution in the form of FGM, in this instance the past persecution actually served as proof that she was not at risk of future harm. The board reasoned that FGM, while “reprehensible,” is a one-time event, and therefore there was no possibility the woman would be persecuted again by the procedure.
The Board’s decision drew outrage from several members of Congress. In January 2008, Representatives Zoe Lofgren, D-California, and John Conyers, D-Michigan, wrote a letter to Attorney General Mukasey, urging him to intervene.
Rep. Lofgren noted that FGM “is a gross violation of a woman’s human rights and has traditionally been grounds for the granting of an asylum claim.”
Rep. Conyers called the Board’s decision “a step backward for the rights of women worldwide,” and added, “America’s standing as a global leader for human rights and democratic principles is undermined by this decision.” The direct intervention by an Attorney General in individual immigration cases is quite rare. Nonetheless, Mukasey saw fit to exercise his legal authority over the Board in this instance.
Mukasey called the board’s decision “flawed” and directed the Board to reconsider its holding. Mukasey referenced two fundamental errors in the BIA’s decision. First, he stated that the Board was wrong to conclude that a past victim of genital mutilation is not at risk of suffering FGM again in the future. Mukasey explained that, contrary to the board’s analysis, female genital mutilation is in fact capable of repetition. There are several forms of FGM and so a past FGM victim may still be at risk of suffering a different form of the procedure. Moreover, some forms of FGM can be undone and then performed again multiple times. BIA’s second error, Mukasey noted, was its assumption that in order to qualify for asylum or related relief a woman must fear the exact same form of persecution she previously suffered. In other words, even if it appears that a victim of FGM is unlikely to suffer further genital mutilation, this does not end her case. Instead, the fact that a woman was subjected to FGM in the past is by itself a strong indicator that she will suffer additional persecution in the future, even if that persecution may not consist of repeat FGM.
The Attorney General sent the case back to the Board, ordering it to correct its flawed analysis of FGM cases and reconsider whether the woman from Mali is in fact entitled to relief from removal.
Representatives Lofgren and Conyers responded to the decision with praise for the Attorney General.
“Our immigration courts should be giving refuge to victims of human rights abuses, not deporting them back to the very place that mutilated them,” said Conyers. “Attorney General Mukasey did the right thing by vacating this ill-informed decision.”
“I am glad that the Attorney General heard the calls for reconsideration, and acted as he did,” said Lofgren. “Combating violence against women is an American priority, and our immigration law cannot be out of step.”
While in the short term the September 22nd order only applies to the individual case involving the woman from Mali, Attorney General Mukasey’s decision should open the door for many more victims of FGM to avoid removal and gain refuge in the United States.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.