Immigration judge reverses his decision in asylum case; acknowledges close connection between female genital mutilation/cutting and other threats to women’s life and freedom
In a significant decision issued last week, an immigration judge reversed himself in a high-profile asylum case (Matter of A-T-), finally granting protection to a young woman who had suffered female genital mutilation (FGM/C) and feared further persecution if she were returned to Mali.
The decision reflects a critical course-correction from earlier decisions by both the judge and the Board of Immigration Appeals (BIA), the nation’s highest immigration court, that held asylum claims by women who have suffered FGM/C to a higher legal standard than claims by other asylum applicants.
Ms. “A-T-” is still coping with the life-long painful effects of the FGM/C to which she was subjected as a child in Mali. Growing up under a violent and controlling father, Ms. A-T- was kept a virtual prisoner in her home, and only allowed outside to attend school. After traveling to the United States to further her studies, Ms. A-T- was ordered home by her father, who intended to force her into a marriage with her first cousin. Fearing forced marriage by her father, rape and beatings by her prospective husband, and violent repercussions from her father if she resisted, Ms. A-T- filed an asylum application requesting protection and permission to remain in the United States.
The immigration judge originally denied her protection in 2005, and in a 2007 opinion, the BIA had initially agreed with that decision, reasoning that Ms. A-T- was unable to prove that she would face future persecution upon return to Mali because FGM/C is a “one-time” occurrence that cannot be repeated. The BIA also rejected her fear of forced marriage, finding that it did not amount to persecution. In a particularly appalling comment, the BIA mused that because Ms. A-T- and her prospective husband “are of similar ages and backgrounds,” the forced marriage should not “disadvantage her.”
The BIA’s 2007 decision established a more difficult legal standard for women attempting to obtain protection based on past FGM/C than for other individuals seeking refuge in the United States based on past persecution, who were not similarly required to show that the exact same type of harm that they experienced in the past would befall them in the future. This higher standard is both unfair and nonsensical—just as it would be illogical “to find that a political dissident whose tongue was cut out could be found to have no fear of future harm on account of her political opinion, merely because she cannot again lose her tongue [o]r that a man whose house is burned down on account of his tribal identity fears no future danger since that house has already been destroyed.”
In 2008, Attorney General Michael Mukasey intervened, identified the flaws in the BIA’s legal analysis, and set aside the BIA’s decision in Matter of A-T-, instructing that because forms of gender-based violence are often interconnected, evidence of past FGM/C may well indicate that a woman will be subjected to other forms of gender-based persecution in the future. In 2009, following the Attorney General’s directive that the case be reconsidered, the BIA sent Matter of A-T- back to immigration court for a new hearing before the original judge in the case. Before the Attorney General stepped in to correct the legal standards to be applied, the BIA’s decision had already begun to have devastating effects around the country on women’s asylum claims based on past FGM/C, denying protection to some applicants and resulting in government attempts to rescind protection already granted to others.
Last week’s favorable decision in Matter of A-T-, which was pending for over six years before US immigration courts, signals the return of immigration courts from a disturbing departure they had begun to take in the handling of women’s asylum claims. The fact that the immigration judge not only reversed his earlier 2004 decision and evaluated the full extent of future harm that Ms. A-T- faced, but also, after reviewing the extensive evidence submitted by Ms. A-T-’s legal team, finally gave due weight and consideration to Ms. A-T-’s fear of a forced marriage (acknowledging that “the prospect of being subjected to repeated spousal rape would, standing alone, rise to the level of persecution”), marks a significant victory.
Ms. A-T-‘s legal team was led by Tahirih Justice Center Senior Immigration Staff Attorney Natalie Nanasi, Ronald D. Richey (Law Office of Ronald D. Richey), Jennifer B. Condon and Bryan Lonegan (Center for Social Justice, Seton Hall University School of Law), and Sarah L. Cave (Hughes, Hubbard, & Reed, LLP).
Because of continued ambiguity in the law around gender-based asylum claims, reaching the favorable outcome in Matter of A-T- required the extraordinary intervention of the Attorney General and the concerted efforts of an expert legal team. In order to ensure that all women and girls fleeing persecution are treated fairly under U.S. law, Tahirih continues to advocate for comprehensive, coherent, and binding guidance (in law or by regulations) to clarify the proper legal standards to apply to all gender-based asylum claims.
