6th Circuit Overturns Denial Of Female Genital Mutilation

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

6th Circuit overturns denial of female genital mutilation–based asylum claim
Immigrants' Rights Update, Vol. 18, No. 4, June 18, 2004

The U.S. Court of Appeals for the Sixth Circuit has overturned a decision of the Board of Immigration Appeals, which had upheld an immigration judge’s order denying the asylum and withholding claims of an Ethiopian mother and daughter based on their fear that the daughter would be subjected to female genital mutilation (FGM) were she returned to Ethiopia. The decision comes on petition for review of the BIA order, which affirmed the IJ decision using the “affirmance without opinion” procedure.

In this case, the mother respondent, Abay, and the daughter, Amare, both came to the United States in 1993 as visitors. They applied for asylum from the Immigration and Naturalization Service, were denied, and subsequently were placed in deportation proceedings, where they applied for asylum, withholding, and voluntary departure in the alternative.

At the merits hearing in 1997, Abay testified that she is married and has four daughters, of whom Amare is the youngest. Abay was subjected to FGM (referred to as “circumcision” by all parties at the hearing) by her mother when she was nine years old. Abay testified that she and her husband opposed the practice of FGM and refused to subject their daughters to it. Abay’s mother attempted to circumcise the three older daughters, but Abay intervened to stop her. After Abey left Ethiopia with her youngest daughter in 1993, her husband fled the country, leaving the three older daughters with Abay’s mother. Abay testified that her mother still wants all of the girls to be circumcised and that she would not be able to prevent the forced circumcision of any of her daughters by their future husbands or in-laws. Amare, who was nine years old at the time of the hearing, also testified, using a sign language interpreter due to her serious hearing impairment. She testified that she knows about the practice of female circumcision and does not want to be subjected to it.

The IJ concluded that Amare had no “imminent fear” of FGM, but only “rather a general ambiguous fear,” and he found it unlikely that she would be circumcised in Ethiopia since the older daughters had avoided being circumcised. He concluded that there was no basis for an asylum claim by either the daughter or the mother. The BIA affirmed the ruling without issuing an opinion, and the respondents sought review by the court of appeals.

On petition for review, the court found that the IJ, in concluding that Amare’s fear was only “general,” failed to properly assess her testimony under the INS’s Guidelines for Children’s Asylum Claims. Under these guidelines, “children under the age of 16 may lack the maturity to form a well-founded fear of persecution, thus requiring the adjudicator to give more weight to objective factors.” In this case the U.S. State Dept.’s country report for Ethiopia, which was part of the record, showed that FGM in Ethiopia was “nearly universal,” and that approximately 90 percent of all females were subjected to the practice. Assessing the child’s testimony in light of this objective evidence and giving her the “benefit of the doubt” as the guidelines direct, the court concluded that she expressed and established fear of persecution and is eligible for asylum.

The court also concluded that Abay established eligibility for asylum based on her fear that her daughter would be subjected to FGM were they deported to Ethiopia. “[W]e conclude that a rational factfinder would be compelled to find that Abay’s fear of taking her daughter into the lion’s den of female genital mutilation in Ethiopia and being forced to witness the pain and suffering of her daughter is well-founded.”

The court therefore remanded the case to the BIA to determine whether asylum should be granted in the exercise of discretion. The court also remanded the respondents’ request for withholding for further consideration, since the IJ had denied this relief based on his erroneous finding that the respondents had failed to establish eligibility for asylum.

Abay and Amare v. Ashcroft, 2004 U.S. App. LEXIS 9708, No. 02-3795 (6th Cir. May 19, 2004).