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Why Female Genital Mutilation Won't Get You Asylum

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from: Bonnie Goldstein

Posted Friday, Nov. 9, 2007, at 5:11 PM ET

A recent decision by the Justice Department's Board of Immigration Appeals to deport a 28-year-old Maryland woman, originally from Mali, seems a bit cold. (Excerpts are below and on the following five pages.) As a child in Mali, Alima Traore (referred to in the documents as "A.T.") was subjected to female genital mutilation. Ordinarily, U.S. immigration law recognizes similarly awful experiences as evidence that an immigrant will face further persecution if returned to his or her country of origin (Page 3). The panel further recognized that female genital mutilation remains a widespread practice in Mali. Nonetheless, the board noted, "FGM is generally performed only once, thereby eliminating risk of identical future persecution" (Page 4). Consequently, "despite the severity of harm she endured as a victim of FGM," the board dismissed Ms. Traore's appeal.

This decision would appear to go against legal precedent. Two years ago, the same board dismissed the case of a 17-year-old Somalian woman with a similar mutilation history. In that case, a U.S. appeals court in San Francisco overturned the board by comparing the young woman to immigrants from China who have been punished by sterilization for exceeding limits on family size. (The United States allows refugee status in these cases.) Like female genital mutilation, sterilization is not a punishment likely to be imposed more than once on the same person.

In this latest case, however, the board stubbornly reasserted its earlier interpretation and rejected the higher court's reasoning. It also took a hard line against Ms. Traore's secondary plea that if returned to her village, she will be forced into marriage with her first cousin. "It is understandable that … an educated young woman would prefer to choose her own spouse rather than acquiesce to pressure from her family to marry someone she does not love and with whom she expects to be unhappy" (Page 5), the board concluded. But "we do not see how the reluctant acceptance of family tradition over personal preference can form the basis for a witholding of removal claim" (Pages 5 and 6). Nor could Ms. Traore prove, the board said, that her father, who stated in a letter that she must enter the arranged marriage "to uphold the reputation of our family" (Page 6), would take severe action if the wedding failed to occur. The board's basis for believing this was that Ms. Traore's father did not spell out what the anticipated punishment would be. Score another victory for traditional family values.

Thanks to Adam Liptak at the New York Times for posting the document.

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hot document
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from: Bonnie Goldstein

Posted Friday, Nov. 9, 2007, at 5:11 PM ET
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Bonnie Goldstein is a former special investigator to the U.S. Senate and investigative producer for ABC News.
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Remarks from the Fray:

The only thing really amazing about this case is that others are amazed this is still happening...as in there seems to still be a double standard between men and women...which of course is alive and well.

It wasn't very long ago [60's?] that a womans' uterus belonged to her husband. Before she could have her tubes tied all the criteria had to be met. She had to have 3 children, be of a certain age and permission given from her husband. The really astounding thing about this is it didn't even matter if the woman's life was in danger due to having life threatening pregnancies...it only mattered what was best for the male spouse [penis].

Now let us fast forward 45 years and we see not too much has changed. Most insurance companies do not cover birth control pills for women but it certainly covers male impotence enhancing drugs. I'm sure if I think hard enough I could think of many other examples.

Sadly, it doesn't matter that this young woman's sexual organ [the one that gives her pleasure] has been mutilated due no doubt to some custom perpetrated by men or that she will be forced to marry a close relative of her father's choosing. What makes us think that the men in this country would refrain from sending her back to the male relatives who think her only redeeming quality is being a brood mare for the incubating of the male sperm. I say, absolutely nothing!

We must not do harm to the male sex organ, after all in our society that's the only thing that counts.

--SouthernGal

(To reply, click here.)

(11/12)

Thank you for your recent Hot Document on the female genital mutilation case decided by the Board of Immigration Appeals. I really enjoyed reading Bonnie Goldstein's piece, especially as this is such an important area of law that deserves to be given more attention by the press. Immigration law is also a notoriously complex field, and Ms. Goldstein's presentation of this case makes it easily accessible to general readers. I would like, however, to draw your attention to two misleading areas of Ms. Goldstein's piece:

1) The title is "Why Female Genital Mutilation Won't Get You Asylum." This is misleading because FGM has gotten hundreds of women asylum in the U.S. It is established U.S. law that any woman who has a credible fear of undergoing FGM if she is returned to her country will be eligible for asylum. The recent case discussed by Ms. Goldstein applies only to individuals who have already undergone FGM and are basing their asylum claim on past persecution. Readers of Slate not informed about this topic, however, will assume based on the title that U.S. law fails to provide for FGM at all.

2) Ms. Goldstein also writes that "[t]his decision would appear to go against legal precedent" because "a U.S. appeals court in San Francisco" had ruled the opposite way previously. Later, she writes that "the board stubbornly reasserted its earlier interpretation and rejected the higher court's reasoning." While technically correct, this is a misleading presentation of the facts because it implies that the board rejected the binding legal precedent of a higher court. This is not true since the Ninth Circuit's decisions (appeals court in San Francisco) are not binding on the Board for cases coming out of other circuits, such as the Fourth Circuit (this case).

So while Ms. Goldstein's piece is technically correct, it is highly misleading for readers without legal training. Perhaps a quick revision/correction would help clarify the case for readers? But, all in all, thanks again for a great piece on the status of female genital mutilation in U.S. asylum law!

--Anony

(To reply, click here.)

(11/17)

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