FGM Victims Deserve Better U.S. Asylum Protections

By: Bianca Gutierrez

 

From stifled whispers to impassioned shouts, our country is renewing focus on the conversation relating to the scale and scope of violence against women. The media covers headlining stories of sexual assault, domestic violence, and the strength in healing found in survivors of these events. One issue remains eerily ignored and yet horrifically prevalent: female genital mutilation (“FGM”). Because FGM is both invisible to the public eye and sometimes insufficient for asylum protections, victims of FGM face a unique barrier to asylum grants. Due to lack of binding uniform legal authority, FGM victims should be afforded protections spelled out in the Immigration and Nationality Act, instead of facing contradictory protections afforded by caselaw, USCIS guidelines, and IIRIRA.

Also known as female genital cutting (“FGC”), female genital mutilation is a tradition practiced worldwide that involves the “intentional injury or removal of the external female genital organs for non-medical purposes.”[1] FGM procedures vary, but most include the painful process of partial or total removal of the clitoris and labia minora and sealing the vaginal opening. This is meant to reflect the cultural importance of purity and chastity in young women. FGM procedures can also include “pricking, piercing, incising, scraping, and cauterizing the genital area.”[2]

Publicly occurring today in over twenty-nine countries, this practice is embedded in cultural and religious traditions that emphasize “traditional notions of femininity, control of female sexuality, preservation of family honor and preparation of marriage” and seek to remove parts of the female body that are considered “impure” or “unclean.”[3] Regardless of these antiquated motivations, the process of FGM cruelly strips women and girls of their autonomy and sexual agency. This extremely painful procedure can lead to a myriad of life-long health complications including severe bleeding, problems during urination, infertility, ovarian cysts, open sores in the genital region, hemorrhages, bacterial infections (tetanus or sepsis) during and after pregnancy, and increased risk of newborn deaths.[4]

Adding to the horrifying nature of FGM, victims are often subjected to the procedure without anesthesia, and the tools used are unsanitary and rudimentary, such as knives; these tools can worsen the possible health complications.[5] Victims are often forced to undergo pre-marital FGM and are physically restrained during the procedure by other women that have themselves suffered FGM.[6] Following most FGM procedures, victims are immediately bandaged from their knees to their waist and abandoned; it takes weeks to recover even while lying down.[7]

According to FGM victims, the consequences of undergoing FGM are often worse than the procedure itself and include ongoing physical, sexual, and psychological complications.[8] Specifically, the sexual and psychological effects of FGM leave victims facing irreversible consequences.[9] Unfortunately, the FGM procedure is widespread, even today. In 2013, the World Health Organization estimated that 30 million girls under the age of 15 are at risk of being cut.[10] With over 140 million victims throughout the world, female genital mutilation is internationally recognized as a violation of women’s fundamental and human rights.[11]

Due to the prevalent and dangerous nature of FGM, women and girls at risk of being cut have been fleeing violence in search of asylum across the globe. Beginning in the 1990s, courts around the world started recognizing FGM as a form of persecution for asylum claims.[12] In Aminata Diop (1991), the French Commission for Appeals of Refugees officially recognized female genital mutilation as a basis for persecution to woman “exposed to FGM against [their] will, where FGM was prescribed, encouraged or tolerated.”[13] The Immigration and Refugee Board of Canada followed suit in Farah v. Canada (1994), describing it as a “torturous custom” and extending asylum protection FGM victims.[14] The trend continued among international courts when the Australian Refugee Review Tribunal recognized the applicant’s well-founded fear of female genital mutilation in RRT N97/19046 (1997).[15] Additionally, the United Kingdom acknowledged in Yake (2000) that persecution through FGM constitutes a well-founded fear and described the violence as a serious “human rights issue” because “the procedure. . . amount[s] to torture or other cruel, inhuman or degrading treatment” in Fornah (FC) (Appellant) v. SSHD (Respondent) (2006).[16]

United States jurisprudence has evolved alongside that of the international community in recognizing FGM as a well-founded fear for asylum. In a 1996 landmark case, In re Fauziya Kasinga, the United States Board of Immigration Appeals (“BIA”) found that female genital mutilation constituted well-founded fear in, and the applicant was granted asylum because she was a member of a social group comprised of women in Togo who had not been cut and who refused to submit to FGM.[17] The court adopted FGM into the established definition of persecution because the level of harm inflicted met the standard set forth in in 8 U.S.C. § 1101(a)(42)(A) and was consistent with previous categorizations of persecution.[18] Importantly, this was the first time the court recognized FGM as persecution, relying heavily on “Considerations for Asylum Officers Adjudicating Claims from Women,” an Immigration and National Services memorandum.[19]

Because Kasinga set the precedent for past persecution asylum claims, the BIA drew a sharp contrast in Matter of A-T when an FGM victim filed for asylum asserting a well-founded fear of future persecution. The BIA reasoned that because FGM is a one-time procedure, victims of FGM lack basis to assert a well-founded fear of persecution in the future for the same type of harm inflicted. Using this rationale, BIA attempted to categorize FGM as an “isolated incident” of persecution, instead of what was observed in Kasinga that FGM is “continuing and permanent” type of persecution. However, this case was vacated and remanded by the Attorney General, and the federal courts generally agree that FGM is a permanent and continuing circumstance.[20]

The inconsistency of U.S. case law regarding protections for FGM victims reveals the need for binding legislation. The reduction of FGM to only past persecution reflects the deep misunderstanding of other cultures and dangers victims face around the world. The notion that BIA minimized the horrific, disfiguring procedure as nonpermanent, isolated incidents highlights the need for stronger protections for FGM victims in U.S. asylum laws.

To be clear, there are other legal protections that are afforded to FGM victims in the United States. These include the Gender Persecution Guidelines published by the Immigration National Services and the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”).[21] The Gender Persecution Guidelines officially recognized gender-based persecution as a potential ground for asylum and outlined important points for reference and clarification.[22] When the IIRIRA was published in 1996, Congress criminalized the practice of FGM to anyone that “knowingly circumcises, excises or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person under the age of 18 years old.”[23] These legal protections are important for FGM victims and women and girls who are at risk of being cut; however, there still exists a gap of protections that contradict U.S. criminal law when these protections are not binding to FGM asylum seekers.

In order to strengthen existing asylum protections, victims of FGM and women and girls at risk of being cut should be afforded protections spelled out in the Immigration and Nationality Act and not subjected to the unpredictability of a guideline.[24] Because guidelines do not bind immigration officials, FGM-based asylum claims are left to the discretion of immigration judges.[25] Leaving the approval of FGM-based claims to immigration judges directly contradicts the domestic policy that clearly denounces FGM by criminalizing the practice in all its forms. No longer invisible and unheard, FGM asylum applicants should be afforded legislative protections when they seek asylum in the United States of America. These protections will minimize the possibility that crucial case law is overturned and that the standard set by other countries that afford protections for FGM victims with similar asylum claims is met.

 

 

 

[1] Pooja Shah, Note, Cutting Female Genital Mutilation from the United States: A European-Influenced Proposal to Alter State and Federal Legal Responses when Affording Relief to Somali Victims in Minnesota, 22 Cardozo J.L. & Gender 583, 584-85 (2016).Top of FormBottom of Form

[2] Id. at 585.

[3] Id. at 586-87.

[4] Id. at 586.

[5] United Nations High Commissioner for Refugees, UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation at 4 (May 2009), https://www.refworld.org/pdfid/4a0c28492.pdf.

[6] Shah, supra note 1, at 585.

[7] Vanessa Ortiz, Comment, Culture Shock: Expanding the Current Federal Law Against Female Genital Mutilation, 3 FIU L. Rev. 423, 424 (2008).

[8] UNHCR Guidance Note, supra note 5, at 3.

[9] Sanctuary for Families, Report, Female Genital Mutilation in the United States: Protecting Girls and Women in the U.S. from FGM and Vacation Cutting (2013), http://www.sanctuaryforfamilies.org/wp-content/uploads/sites/18/2015/07/FGM-Report-March-2013.pdf.

[10] Sanctuary for Families Report, supra note 9, at ii.

[11] Id.

[12] United Nations High Commissioner for Refugees, UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation at 6 (May 2009), https://www.refworld.org/pdfid/4a0c28492.pdf.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] In re Kasinga, 21 I. & N. Dec. 357, 366 (B.I.A. June 13, 1996); see also 19 I. & N. Dec. 211 (B.I.A. March 1, 1985).

[19] American Immigration Lawyers Association, INS Issues Guidelines from Womens Asylum Claims, AILA Doc. No. 95053180 (May 26, 1995), https://www.aila.org/infonet/ins-guidelines-from-womens-asylum-claims.

[20] Top of Form

Matter of A— T—, 24 I. & N. Dec. 617 (B.I.A. September 22, 2008)Bottom of Form

[21] American Immigration Lawyers Association, INS Asylum Gender Guidelines, AILA Doc. No. 95053159 (May 31, 1995), https://www.aila.org/infonet/ins-asylum-gender-guidelines; see also H.R. Rep. No. 104-828 (1996) (Conf. Rep.).

[22] American Immigration Lawyers Association Gender Guidelines, supra note 21.

[23] H.R. Rep., supra note 21.

[24] Eva N. Juncker, A Juxtaposition of U.S. Asylum Grants to Women Fleeing Female Genital Mutilation and to Gays and Lesbians Fleeing Physical Harm: The Need to Promulgate an INS Regulation for Women Fleeing Female Genital Mutilation, 4 J. Int’l Legal Stud. 253 (1998).

[25] Juncker, supra note 24.