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The U.S.
Court of Appeals for the Ninth Circuit has ordered the reopening of removal
proceedings in the case of a Somali woman based on her claim that her attorney’s
failure, when she was applying for asylum, to raise the issue of her genital
mutilation as a child constituted ineffective assistance of counsel.
The ruling reverses the Board of Immigration Appeals’
denial of a motion to reopen, which was based on the BIA’s conclusion that the
attorney’s failure to raise the issue was not prejudicial. The BIA reasoned
that because the respondent had already suffered genital mutilation, she could
no longer have a well-founded fear of the practice. The Ninth Circuit strongly
disagreed with this conclusion, noting both the continuing physical and
psychological effects of genital mutilation and the possibility that the
respondent could be subjected to further genital mutilation were she to be
returned to Somalia. A further reason that the decision is an important
precedent is because, in finding that the respondent could have raised a
plausible claim for asylum but for her attorney’s ineffective assistance, the
court found that the respondent could seek to establish that she was persecuted
on account of her membership in the social group of all Somali women, or, in the
alternative, women of the Benadiri clan.
The respondent in this case, Khadija Mohamed (the
court noted that her name was spelled inconsistently in the briefs, but that she
used a single “m” in the documents she signed), fled Somalia with her family
when she was a young child. According to her testimony, her family fled the
country after her father and brother had disappeared, her sister had been raped,
and the militia of a majority clan had attempted to imprison the family and
other members of the Benadiri clan. After leaving Somali, she lived in Ethiopia
for a number of years, then came to the United States, where she applied for
asylum, claiming a fear of persecution based on her membership in the social
group of the Benadiri clan.
An immigration judge denied Mohamed’s asylum
application after a hearing, finding both that she was not credible and that, in
any event, she had not established that she was eligible for asylum, withholding
of removal, or protection under the Convention Against Torture (CAT). On
appeal, the BIA affirmed the denial based on the finding that Mohamed lacked
credibility, and it did not address whether she would have established
eligibility for relief had her testimony been credible.
Mohamed then hired a new attorney, who filed a motion
to reconsider and remand the decision, raising the issue of female genital
mutilation, which had not been raised by Mohamed’s first attorney. The motion
filed by the new attorney erroneously asserted that Mohamed had not yet been
genitally mutilated, an error that was made clear by a physician’s report that
was included with the motion. The motion also cited a report of the World
Health Organization finding that over 98 percent of women in Somalia are
subjected to female genital mutilation, although the report apparently was not
included with the motion. The government opposed the motion, arguing that to
the extent the motion sought reopening on the basis of ineffective assistance of
counsel, it failed to meet the requirements of Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988). In response, Mohamed submitted a declaration explaining
that only in speaking with her new attorney did she learn that the fact that she
had been subjected to genital mutilation constituted past persecution. She also
submitted a complaint form against her former attorney that she had filed with
the State Bar of California prior to filing the motion. The BIA denied the
motion, concluding that Mohamed had failed to establish that she was likely to
be subjected to genital mutilation in the future.
Mohamed filed a petition for review of this decision
and also filed a second motion, this time properly styled as a motion to
reopen. The motion sought reopening based on ineffective assistance of counsel
and included the evidence that was left out of the first motion. The BIA denied
this motion on the ground that it was numerically barred. The BIA also denied
the motion on the ground that Mohamed had failed to demonstrate that ineffective
assistance of counsel caused her any prejudice. Mohamed filed a petition for
review of the denial of the second motion, and subsequently the Ninth Circuit
consolidated both petitions for review.
On appeal, the court noted that both Mohamed’s prior
counsel and her current counsel made numerous mistakes in the course of the
proceedings, but that none of the errors appear to be Mohamed’s fault. The
court also noted that the BIA made a series of errors in the case that make
review more difficult. Indeed, prior to oral argument, government counsel moved
the court to remand the case to the BIA to allow clarification of its findings.
In its decision, the court stated that were only the “nonsensical” first
decision of the BIA before it, it would grant this motion. However, because the
second BIA decision did unmistakably set out the BIA’s position that
Mohamed had failed to establish that ineffective assistance of counsel caused
her prejudice, the court found that remand would be pointless, and it proceeded
to address the issue.
Regarding the ineffective assistance of counsel claim,
the court found that Mohamed had satisfied the Lozada standard and
established that she had suffered ineffective assistance of counsel. The court
then turned to the question of prejudice, noting that to meet this requirement
Mohamed must show only that her first counsel “failed to present plausible
claims for relief when she failed to introduce evidence of past female
genital mutilation in support of Mohamed’s asylum, withholding, and CAT
applications.”
Regarding Mohamed’s asylum claim, the court first
considered whether female genital mutilation constitutes “persecution.” The
court rejected the government’s contention that the practice cannot be a basis
for a claim of past persecution because it is “widely accepted and
widely-practiced.” Rather, the court concluded that “the extremely painful,
physically invasive, psychologically damaging and permanently disfiguring
process of genital mutilation undoubtedly rises to the level of persecution”
under U.S. asylum law. (In a footnote, the court noted the practice of many
courts and the BIA of referring to female genital mutilation by the initials
“FGM.” The court declined to adopt this practice and used the complete
expression throughout its opinion, noting that use of the initials “serves only
to dull the senses and minimize the barbaric nature of the practice.”)
The court found two bases on which Mohamed’s
subjection to mutilation could plausibly be found to be “on account of”
membership in a “social group” under the asylum statute. The social group could
be defined narrowly as “young girls in the Benadiri clan,” but it also could be
defined broadly as the social group of Somalian females, given the evidence that
the practice is performed on 98 percent of this group. The court concluded that
since Mohamed could demonstrate past persecution, there is a presumption that
she would be persecuted in the future, and the burden shifts to the government
to show that circumstances have changed in order to rebut the presumption.
The government contended that the fact that Mohamed
had already suffered genital mutilation precludes her from being subjected to
the practice in the future. The court rejected this argument for two reasons.
First, the court found that the practice of female genital mutilation “must be
considered a continuing harm that renders a petitioner eligible for asylum,
without more.” In this respect the court likened the practice to forced
sterilization, which both the BIA and the Ninth Circuit have characterized in
this way. In re Y-T-L, 23 I. & N. Dec. 601 (BIA 2003); Qu v. Gonzalez,
slip op. at 2933 (9th Cir. Mar. 8, 2005). Second, the court noted evidence that
“female genital mutilation is not simply an isolated act of violence but rather
a form of gender persecution, practiced to overcome sexual characteristics of
young women.” In this regard, Somali women who have been genitally mutilated
can be subjected to further abuse, including rape and further genital
mutilation.
For similar reasons, the court concluded that Mohamed
had established a plausible claim for withholding of removal. The court also
found that she had made a plausible claim for protection under the CAT, though
the court noted that this claim is less clear because there is no presumption of
fear of future torture similar to the presumption that applies to past
persecution.
Concluding that Mohamed demonstrated that she was
prejudiced by her former attorney’s ineffective assistance of counsel, the court
granted the petition for review and remanded the case to the BIA with
instructions to grant the motion to reopen.
Mohammed v.
Gonzalez, No. 03-70803 (9th Cir., Mar. 10, 2005).
By Linton Joaquin, NILC executive
director
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