Invisible and Involuntary: Female Genital Mutilation As A Basis For Asylum

Zsaleh E. Harivandi

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Female genital mutilation (FGM), the practice of cutting or otherwise damaging the genitalia of women and girls, is a cultural tradition in some third-world countries.  Although the practice is widespread in parts of the world, many women and girls participate unwillingly.  After all, FGM has severe short- and long-term health consequences, both for the women who undergo it and for their future children.  Despite the severity of the harm caused by FGM, however, many women who arrive in the United States seeking asylum on the basis of FGM have difficulty establishing that they are, in fact, refugees. The claims of applicants seeking asylum for FGM usually founder on the propriety of including the applicants within the “particular social group” category of section 101(a)(42) of the Immigration and Nationality Act (INA).1  That section of the Act defines the term “refugee” and requires that a refugee have a well-founded fear of persecution based on one of five enumerated grounds.2  Asylum claims based on FGM fit most appropriately into the fourth category, “membership in a particular social group.”3 Yet the Board of Immigration Appeals (BIA) and some courts have wavered in allowing FGM asylum claims pursuant to this category.  To be sure, female genital mutilation does not fit into the category perfectly, especially with the recent addition of a “social visibility” requirement to the definition of a “particular social group.”4  But FGM is precisely the type of persecution against which the “particular social group” category ought to protect.  Indeed, the INA explicitly provides asylum to anyone who has been forced to “abort a pregnancy or to undergo involuntary sterilization,”5 two procedures with obvious similarities to FGM.  Female genital mutilation should be a basis for asylum under the particular-social-group category of section 101(a)(42) of the INA, despite that category’s visibility requirement; indeed, courts and the BIA should abolish the social-visibility requirement for all asylum cases.  Moreover, as with forced sterilization, Congress should amend the statute to explicitly mention FGM as a basis for asylum.

According to the INA, to qualify for asylum in the United States, a noncitizen must demonstrate persecution (or a well-founded fear of future persecution) on the basis of at least one of five enumerated grounds: race, religion, nationality, membership in a particular social group, or political opinion.  For persecution to be “on account of” one of the enumerated grounds, the ground must be “at least one central reason for persecuting the applicant.”6  The persecutor need not have acted with malice, however.  As in many FGM cases, the persecutor may have acted in conformity with social tradition or in the belief that the persecutor was helping the asylum applicant.  On the other hand, the asylum applicant must show that “the persecutor is aware or could easily become aware of the [applicant’s] protected status or beliefs.”7

Membership in a particular social group is the most appropriate and most common category for applicants seeking asylum based on FGM.  Essentially, a particular social group is “a group of persons all of whom share a common, immutable characteristic.”8  A characteristic is immutable if “members of the group either cannot change [the characteristic], or should not be required to change [it] because it is fundamental to their individual identities or consciences.”9  An immutable characteristic can be “innate or experiential.”10  Notably, some courts have balked at defining any “particular social group” too broadly.

In addition, the BIA and most circuit courts recognize a “social visibility” requirement as part of the meaning of “particular social group.”  As the courts apply the term, “social visibility” measures the “extent to which members of the purported group would be recognizable to others” in the community.11

The BIA first confronted the issue of FGM as a basis for asylum in 1996 in In re Kasinga.12  The BIA held that the applicant had a “well-founded fear of persecution in the form of FGM if returned” to her home country and thus granted her asylum.13  The BIA defined the applicant’s social group as a group “consisting of young women of [her tribe] who have not had FGM, as practiced by that tribe, and who oppose the practice.”14  The BIA concluded that both being a young woman and being a member of the applicant’s tribe were immutable characteristics.  Further, “[t]he characteristic of having intact genitalia is one that is so fundamental to the individual identity of a young woman that she should not be required to change it.”15 Although the BIA came down squarely in favor of granting asylum on the basis of FGM, the BIA took pains to note that it would not “speculate on, or establish rules for, [FGM] cases that [were] not before [it].”16

Since Kasinga, courts analyzing asylum claims under the social-group category have looked favorably upon claims for asylum based on FGM.  In Niang v. Gonzales, for example, the Tenth Circuit reasoned that “female members of a tribe would be a social group” because “[b]oth gender and tribal membership are immutable characteristics.”17  In contrast to Kasinga, however, the Tenth Circuit reasoned that there was no need for a social-group definition to include more than gender and tribal membership (that is, there was no need to include opposition to FGM).

The Ninth Circuit further paved the way for future asylum claims based on FGM in Mohammed v. Gonzales.18  In that case, the court held that women who have undergone FGM in the past are eligible for asylum even without a further showing of a well-founded fear of future persecution.  The Ninth Circuit reasoned that FGM, “like forced sterilization, is a ‘permanent and continuing’ act of persecution, which cannot constitute a change in circumstances sufficient to rebut the presumption of a well-founded fear” of persecution.19 Other circuits, however, still allow the government to rebut the presumption of a well-founded fear of persecution.

In September 2007, the BIA decided another FGM asylum case, In re A-T-,20 which conflicts with the Ninth Circuit’s decision in Mohammed v. Gonzales.  In In re A-T-, the respondent, a twenty-eight-year-old woman from Mali, had undergone FGM as a child but had no memory of the experience.  The BIA distinguished the respondent from the applicant in Kasinga because the applicant in Kasinga had not yet undergone FGM.  Therefore, the BIA held that because “FGM is generally performed only once,” the respondent could not have a well-founded fear of future persecution.21

In June 2008, the Second Circuit reached a very different conclusion in an FGM case.  In Bah v. Mukasey, the Second Circuit held that the BIA had erred in In re A-T- by assuming “categorically” that a woman could undergo FGM only once.22  Rather, the court said that the government has the burden of proving, in each case, that the specific applicant is not in danger of suffering FGM again.  Further, the court stated that the BIA erred by requiring that the applicant fear repetition of the identical harm (FGM) that the applicant originally experienced.  Indeed, the court found that members of the applicant’s particular social group commonly suffered many types of harm.

Several months after the Second Circuit decided Bah, the Attorney General vacated the BIA’s decision in In re A-T-.  The Attorney General agreed with the Second Circuit that the BIA had erred in deciding that a woman could suffer FGM only once and by ignoring the possibility that a woman who suffered FGM in the past could suffer a different form of persecution in the future.  The Attorney General remanded the case to the BIA to determine whether the regulations entitle the applicant to a presumption of a well-founded fear of persecution; “if so, whether the Government has satisfied or can satisfy its burden . . . of establishing one of the factors that would rebut the presumption”; and whether the applicant’s past experience of FGM is related to fears of other types of harm, such as her fear of a forced marriage.23

The current trend toward allowing women to obtain asylum in the United States on the basis of FGM is a positive change in the law.  Indeed, the INA’s definition of the term “refugee” should include both women who face FGM and those who have already suffered it.  Unwanted FGM is clearly persecution, and a showing of FGM in the past should create a rebuttable presumption of a well-founded fear of future persecution.

First, unwanted FGM constitutes persecution.  Both the short- and long-term physical and psychological effects of FGM are severe enough to rise to the level of persecution.  In addition, both the Second Circuit’s decision in Bah v. Mukasey and the Attorney General’s decision in In re A-T- were correct in asserting that a showing of past FGM creates a rebuttable presumption of a well-founded fear of future persecution.  In fact, some women undergo FGM multiple times.  Furthermore, many communities justify FGM as a means of controlling women’s sexuality, either to insure that women remain virgins until marriage or to reduce women’s sexual desires.  These justifications are a violation of women’s human rights.  Although not every human rights violation constitutes persecution for asylum purposes, the severe physical and psychological harm that FGM causes makes it persecution.  Indeed, courts have recognized the existence of persecution in cases involving much less severe physical harm or even in the absence of physical harm.

Because FGM is plainly persecution, women who have a well-founded fear of FGM should be eligible for asylum in the United States under the INA on the basis of membership in a “particular social group.”  Women who fear female genital mutilation generally meet the criteria for membership in a particular social group.  In communities where FGM is prevalent, persecutors target women who have not undergone FGM.  In addition, the characteristic of fearing FGM (or, analogously, desiring not to undergo FGM) is likely to be immutable among most women.  Even if changing a woman’s attitude toward FGM is possible, no woman should be forced to change this characteristic or belief—that is, women “should not be required to change [this characteristic] because it is fundamental to their individual identities or consciences.”24

Moreover, women who have already suffered FGM will also satisfy most of the criteria for membership in a particular social group.  In some cultures, persecutors target these women for repeated FGM.  Even if a particular community did not subject women to multiple experiences of FGM, a showing of past persecution and enduring physical and emotional harm should be sufficient for such women to obtain asylum.  For women who have already suffered FGM, the immutable characteristic is experiential, rooted in their having undergone FGM.

In the cases of both women who have already undergone FGM and those who have not, the visibility requirement of the social-group category presents a problem.  Another person will not immediately know whether a woman has undergone FGM or whether she fears FGM.

In 1991, the Second Circuit created the visibility requirement of the “particular social group” category in Gomez v. INS.25  The court held that the applicant’s asserted social group, “women who have been previously battered and raped by Salvadoran guerillas,” did not constitute a particular social group under the INA because “would-be persecutors could [not] identify [the women] as members of the purported group”—that is, it was not possible for the persecutors to target members of the alleged group for persecution.26  The Second Circuit later required that members of a particular social group “share[] a . . . characteristic that is identifiable to would-be persecutors and is immutable or fundamental.”27

The BIA approved the Second Circuit’s new “social visibility” requirement in In re C-A-.28  In that case, the BIA explained that the “recognizability” of a social group depended on its visibility to others in a society.29  As long as society perceives individuals as part of the social group, however, group members need not physically differ from others in society.  Nonetheless, the social visibility requirement is difficult to meet and many asylum applications based on the social-group category fail, both before the BIA and courts, because their alleged social groups lack social visibility.

The visibility requirement for a particular social group is not appropriate in FGM cases for several reasons.  First, in the cases that apply the visibility element to the asylum claim, the opinion usually justifies the visibility requirement because of the need for persecutors to perceive, and thus target, members of the alleged group.  Yet, in cases in which applicants fear FGM, persecutors have no difficulty perceiving the applicants.  In these cases, the applicants are usually young or about to marry, and they are always female.  Moreover, in most FGM cases, the applicant is part of a tribe or other small community, and potential persecutors are neighbors and relatives.  Thus, many potential applicants are known to their persecutors, which makes identifying characteristics unnecessary.

In cases in which the BIA or courts have applied the visibility requirement of the social-group category and denied applicants asylum, the persecution the applicants allege often differs substantively from FGM.  Indeed, in most social-group-category cases in which the court holds that the alleged group lacks the visibility element, the court’s unspoken rationale seems to be that another element besides the visibility requirement is missing from the applicant’s claim.  Most often, the missing element actually seems to be that the characteristic or belief that forms the social group is not immutable or fundamental enough.  It may seem odd to discuss a characteristic or belief as not being immutable or fundamental “enough”—indeed, by definition, the two words are take-it-or-leave-it qualities.  For this reason, however, courts seem to shy away from discussing such applicants’ characteristics as not being immutable or fundamental and, instead, rely on the visibility requirement to deny claims.  Moreover, it would be unreasonable for the court to suggest that individuals in such a group should change such a characteristic or belief, even if that characteristic or belief is not fundamental to the individuals’ identities.  That it would be unreasonable for an adjudicator to ask an asylum applicant to change a characteristic or belief, however, does not make that characteristic or belief fundamental to the applicant’s identity.

Courts and the BIA should abolish the social-visibility requirement.  In asylum cases in which adjudicators rely on the visibility requirement as the key issue, courts and the BIA could instead simply weigh the strength of the applicant’s characteristic or belief that is the basis for the social-group-category claim.  Such balancing would be at least as clear as the current social-visibility requirement, and the change would allow courts and the BIA to judge asylum cases with an eye to fundamental fairness.  In prioritizing different applicants’ characteristics or beliefs, adjudicators might use as a guideline whether the characteristic or belief is innate or immutable, or merely learned or adopted.  The experience and symptoms of having been genitally mutilated are, of course, immutable.

Even if courts and the BIA do not abolish the social-visibility requirement of the social-group category of the INA entirely or just for FGM, asylum applicants may still be able to reliably establish asylum on the basis of FGM.  The INA explicitly includes forced sterilization as a basis for asylum and categorizes forced sterilization as persecution on account of political opinion, not membership in a particular social group.  Therefore, asylum applicants who hope to gain admission to the United States on the basis of a fear of FGM may be able to analogize FGM to involuntary sterilization and thereby avoid the social-visibility-requirement problem.

Female genital mutilation, like forced sterilization, has ongoing physical and psychological effects on the individuals who are involuntarily subjected to it.  Indeed, one potential effect of FGM is infertility.  Considering this potential health consequence, FGM is arguably even more physically and emotionally scarring than involuntary sterilization.  Moreover, women who are genitally mutilated against their will and individuals who are forcibly sterilized both suffer a grievous breach of bodily autonomy.

In fact, the best solution to the difference in statutory treatment between involuntary sterilization and FGM is to also explicitly mention FGM as a basis for asylum in the INA.  Such an addition could be accomplished easily.  The current language of section 101(a)(42) of the INA could remain, but an additional sentence, analogous to the current sentence about forced sterilization, should be added at the end of the section.  That sentence might read:

For purposes of determination under this chapter, a person who has been forced to undergo involuntary genital mutilation, or who has been persecuted for failure or refusal to undergo such a procedure, shall be deemed to have been persecuted on account of membership in a particular social group, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of membership in a particular social group.

With the inclusion of such a sentence, an adjudicator would have to make only a factual determination as to an asylum applicant’s claim—whether or not the applicant had a well-founded fear of FGM.  Such a statutory change would thus have the added benefit of alleviating currently overloaded court dockets.

In addition to domestic asylum law, applicants seeking asylum on the basis of FGM may have recourse to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).30  The Convention Against Torture defines torture as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.31

The most difficult element of the CAT definition of torture for a woman who has suffered or fears suffering FGM would most likely be the fourth element, which requires that a public official or someone acting in an official capacity inflict, or at least acquiesce to, the harm.  In most FGM cases, the requirement that an “official” acquiesce is not at issue; in the communities that practice FGM, no one attempts to stop the practice, nor even to condemn it.  Rather, the difficulty for a woman who has suffered FGM would be showing the “officialness” of the actor or actors.  Because the usual practitioners of FGM are members of the female’s community or tribe, they are not always formal public officials.  Nevertheless, an applicant seeking protection under CAT could plausibly argue that respected tribal leaders function as officials of the tribe.  Additionally, given that most females who undergo FGM are children and young women, such women could argue that the practitioners of FGM often have an age-related authority over their victims.

Asylum law based on the particular-social-group category of section 101(a)(42) of the INA is murky, and the category is difficult to apply in practice.  For this reason, the BIA and the courts should make clear that an applicant who has suffered or who fears suffering FGM has a well-founded fear of persecution.  Further, the applicant’s asylum claim should not falter with application of the particular-social-group category.  Despite the unwise recent addition of the visibility requirement to the definition of a social group, women who have undergone or who fear undergoing FGM are a clear example of a social group that deserves protection under U.S. asylum law.  Additionally, the rationales for the visibility requirement are still fulfilled in cases of FGM.  Further, although courts should recognize that women in FGM cases have the requisite social visibility, the requirement should be abolished for all asylum cases.  As long as communities around the world continue to practice FGM, women who fear or unwillingly undergo the practice should qualify for asylum in the United States.

The difficulty of applying the social-group category may be eclipsed altogether by simply adding FGM to the INA as an explicit ground for relief.  Such an addition would properly mirror the inclusion of involuntary sterilization as a ground for asylum.  And, until U.S. immigration law properly allows victims of FGM to obtain asylum, FGM victims may also consider an asylum claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Hopefully, one day the path to asylum for victims of female genital mutilation will not require resort to international law at all.  As long as communities around the world continue to practice FGM, women who unwillingly undergo the practice should be able to take refuge in the United States.

Acknowledgements

Zsaleh Harivandi is a 2010 J.D. candidate at Cornell Law School.

I am grateful to Stephen Yale-Loehr and the members of the Cornell Law Review, particularly Colleen Holland, Julie Rubenstein, and Naushin Shibli, for their help with this piece and to Joel Atlas for his general academic guidance and friendship. Finally, a special thanks to Sue, Ali, and Mithra Harivandi and Jason Yamada-Hanff for their love and support.

  1. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42) (2006).
  2. Id.
  3. Id.
  4. Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005) (citations omitted).
  5. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42).
  6. REAL ID Act of 2005, Pub. L. No. 109-13, § 101(a)(3)(B)(i), 119 Stat. 302, 302–03.
  7. Charles Gordon et al., Immigration Law and Procedure § 33.04{3} (2008) (citing Eduard v. Ashcroft, 379 F.3d 182, 192–93 (5th Cir. 2004)).
  8. Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985).
  9. Id.
  10. Gordon et al., supra note 7, § 33.04{4}{c}{i}.
  11. Matter of C-A-, 23 I. & N. Dec. 951, 959 (B.I.A. 2006).
  12. 21 I. & N. Dec. 357 (B.I.A. 1996).
  13. Id. at 368.
  14. Id.
  15. Id. at 366.
  16. Id. at 358.
  17. Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005).
  18. 400 F.3d 785 (9th Cir. 2005).
  19. Id. at 800.
  20. 24 I. & N. Dec. 296 (B.I.A. 2007).
  21. Id. at 299.
  22. Bah v. Mukasey, 529 F.3d 99, 114 (2d Cir. 2008).
  23. See Matter of A-T-, 24 I. & N. Dec. 617, 624 (Att’y Gen. 2008); see also 8 C.F.R. §§ 1208.16(b)(1) (2009).
  24. See Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985).
  25. 947 F.2d 660 (2d Cir. 1991).
  26. Id. at 663–64.
  27. See Gao v. Gonzales, 440 F.3d 62, 64 (2d Cir. 2006).
  28. 23 I. & N. Dec. 951 (B.I.A. 2006).
  29. Id. at 959–60.
  30. G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (Dec. 10, 1984).
  31. Id. art. 1; see also 8 C.F.R. §§ 208.18(a)(1), 1208.18(a)(1) (2009) (incorporating CAT’s definition of torture).

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