Order Code RL34587
Female Genital Mutilation as Persecution:
When Can It Constitute a Basis for Asylum
and Withholding of Removal?
July 22, 2008
Yule Kim
Legislative Attorney
American Law Division
Female Genital Mutilation as Persecution:
When Can It Constitute a Basis for Asylum
and Withholding of Removal?
Summary
Female genital mutilation (FGM) encompasses a wide range of procedures
which involve the removal or alteration of a woman’s genitalia. The federal courts
and the Board of Immigration Appeals (BIA) have classified FGM as a form of
persecution, a showing of which can act as a basis for a successful asylum or
withholding of removal claim. However, recent developments in this area of law
have created a split between the federal courts and the BIA over the treatment of
applicants who have already been subjected to FGM. The federal courts that have
addressed this issue have held that a past infliction of FGM creates a presumption of
a well-founded fear of future persecution, which is a prerequisite for refugee status,
and also a clear probability of future harm, a requirement for obtaining withholding
of removal. The BIA, on the other hand, has rejected this position, arguing that FGM
can be inflicted only once, which means that an applicant cannot have a well-founded
fear or present a clear probability of FGM happening again in the future. Thus, under
the BIA interpretation, the past infliction of FGM, a form of past persecution, not
only creates a presumption of a well-founded fear of future persecution, but also
rebuts the presumption. The BIA has stated, however, that while a past infliction of
FGM cannot act as a basis for a well-founded fear of future persecution, a past
infliction of FGM, if sufficiently severe, can act as a basis for an asylum claim on
humanitarian grounds.
Although the BIA has ruled that a past infliction of FGM cannot act as the basis
for a well-founded fear of persecution, a federal court of appeals has recently rejected
this holding. The Federal Court of Appeals for the Second Circuit has ruled that the
BIA misapplied the regulatory framework governing past persecution, holding that
the BIA was in error when it determined that a past infliction of FGM rebutted the
presumption of a well-founded fear of future persecution. The Second Circuit’s
holding, while it does not grant per se refugee status to women who have suffered a
past infliction of FGM, does allow that past infliction to act as a basis for an asylum
or withholding of removal claim.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
General Background on Asylum and Withholding of Removal . . . . . . . . . . . . . . 2
Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Withholding of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Statutory Requirements For Asylum or Withholding
of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Definition of Refugee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
First Element: Well Founded Fear of Persecution . . . . . . . . . . . . . . . . . . . . . 5
Persecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Well-Founded Fear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Clear Probability of Persecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Past Persecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Second Element: “On Account Of” a Protected Ground . . . . . . . . . . . . . . . . 9
Third Element: Belonging to a Protected Ground . . . . . . . . . . . . . . . . . . . . 10
Membership in a Particular Social Group . . . . . . . . . . . . . . . . . . . . . . 10
Gender as a Particular Social Group . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Withholding of Removal Under the Convention Against Torture . . . . . . . . 12
Female Genital Mutilation as a Basis for an Asylum or Withholding
of Removal Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Gender and Tribal Affiliation as a Particular Social Group . . . . . . . . . . . . . 14
Female Genital Mutilation as Future Persecution . . . . . . . . . . . . . . . . . . . . 15
Daughters Threatened With FGM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Female Genital Mutilation as Past Persecution . . . . . . . . . . . . . . . . . . . . . . 16
Continuing Harm Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Rebuttable Presumption Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
The BIA Argument Against Continuing Harm . . . . . . . . . . . . . . . . . . 18
The BIA Argument Against the Rebuttable Presumption . . . . . . . . . . 19
Second Circuit Response to In re A-T- . . . . . . . . . . . . . . . . . . . . . . . . 19
The BIA’s Humanitarian Ground Theory . . . . . . . . . . . . . . . . . . . . . . 21
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Female Genital Mutilation as Persecution:
When Can It Constitute a Basis for Asylum
and Withholding of Removal?
Introduction
Female genital mutilation (FGM) encompasses a wide range of procedures
which involve the removal or alteration of a woman’s external genitalia.1 Although
it is a cultural practice prevalent among some African, Asian and Middle-Eastern
ethnic groups,2 it is widely considered a human rights violation by most international
organizations and Western nations.3 This viewpoint is reflected in American law,
which prohibits a female child from receiving FGM when under 18 years of age4 and
classifies FGM as a form of persecution which can act as a basis for refugee status.5
This report first explores the basic statutory and regulatory framework that
governs refugee law. This entails an outline of the requirements an applicant must
meet in order to qualify as a refugee, a discussion about the differences between the
two main forms of relief for aliens facing removal from the United States, asylum
and withholding of removal, and an examination of several important issues and
controversies concerning this particular area of refugee law.
1 The World Health Organization defines FGM as “all procedures which involve partial or
total removal of the external female genitalia or other injury to the female genital organs for
non-medical reasons.” See World Health Organization Factsheet on Female Genital
Mutilation, [http://www.who.int/mediacentre/factsheets/fs241/en/index.html] (last visited
June 12, 2008).
For additional information on FGM, see CRS Report RS21923, Female Genital
Mutilation (FGM): Background Information and Issues for Congress, by Tiaji Salaam-
Blyther, Erin D. Williams, and Ruth Ellen Wasem.
2 Id. See also Female Genital Mutilation (FGM) or Female Genital Cutting (FGC):
Individual Country Reports, [http://www.state.gov/documents/organization/10222.pdf] (last
visited June 12, 2008).
3 World Health Organization Factsheet on Female Genital Mutilation, [http://www.who.int/
mediacentre/factsheets/fs241/en/index.html] (last visited June 12, 2008). FGM has been
formally condemned by several international organizations, such as the World Health
Organization, the United Nations Children’s Fund, and the United Nations Population Fund.
4 18 U.S.C. §116.
5 In re Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996).
CRS-2
General Background on Asylum and
Withholding of Removal
Aliens6 often come to the United States in order to escape persecution and
political turmoil in their native lands. Some aliens arrive at a U.S. port of entry
seeking admission into the country while others manage to effect entry, either legally
or illegally. Both groups are subject to removal back to their countries of origin.7
Immigration law, however, provides these aliens recourse to two ways in which to
stay removal: asylum and withholding of removal.8 These mechanisms are
substantively similar in many ways, but they do differ in some important respects.
Asylum
Asylum is a means for aliens who have suffered persecution in their countries
of origin to enter or remain within the United States. Potential “asylees” apply for
asylum either upon arrival at a U.S. port of entry or as a defense during a removal
proceeding. In order to obtain asylum, the burden of proof is on the applicant to
demonstrate that she meets the eligibility requirements for asylum.9 The applicant
must also show, by clear and convincing evidence, that she filed her application
within one year of arriving in the United States.10 Even if an applicant satisfies the
necessary eligibility requirements, asylum is discretionary and may still be denied
(usually because of the alien’s criminal background). Individuals who obtain asylum
are allowed to remain within the United States and may adjust their status to
permanent residence at a later date.11 Through derivative asylum, an asylee may have
6 The term “alien” is defined by the Immigration and Nationality Act (INA) as “any person
not a citizen or national of the United States.” INA § 101(a)(3), 8 U.S.C. § 1101(a)(3). Some
view this term to be pejorative and use either “immigrant” or “migrant” in its stead. This
report views “alien” as a legal term and uses it in the sense as defined in the INA.
7 This report will use the term “country of origin” to mean either an applicant’s country of
nationality, or, if stateless, the applicant’s last country of habitual residence.
8 A third mechanism from refugee law exists for aliens seeking to stop removal: the United
Nations Convention Against Torture (CAT). CAT relief is usually implemented by granting
withholding of removal to a person who satisfies certain regulatory requirements — namely
by showing she would suffer “torture” if returned to her home country rather than showing
“persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion,” which is what is required for asylum. See 8 C.F.R. § 208.16(c).
American courts have generally refrained from using the CAT framework in adjudicating
FGM-based refugee claims, but one court has endorsed the view, if not outrightly held, that
FGM rises to the level of “torture” as defined by the treaty. See Nwaokolo v. INS, 314 F.3d
303 (7th Cir. 2002).
9 8 C.F.R. § 208.13(a), 8 C.F.R. § 1208.13(a) (“The burden of proof is on the applicant for
asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the Act.”).
10 INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B).
11 8 C.F.R. § 209.2, 8 C.F.R. § 1209.2.
CRS-3
her spouse and minor children accompany her into the country or follow and join her
after she has effected entry.12
Withholding of Removal
Withholding of removal13 allows an applicant to stay deportation if the applicant
demonstrates that her “life or freedom would be threatened” if returned to her country
of origin.14 Although asylum requires the applicant to be threatened by “persecution,”
while withholding of removal requires a threat to her life or freedom, the federal
courts appear to view these two concepts interchangeably, at least with regards to the
type of harm the two concepts signify.15 On the other hand, withholding of removal
does differ from asylum in several important respects. For example, unlike asylum,
withholding of removal can only be used as a defense during a removal proceeding.
It is also a mandatory form of relief: if the alien qualifies for withholding of removal,
it must be granted.16 However, withholding of removal merely grants the applicant
the right not to be removed to her country of origin rather than an affirmative right
to stay within the United States.17 Thus, someone who remains within the United
States because of withholding of removal cannot adjust their status to permanent
residence.18 Furthermore, obtaining withholding of removal instead of asylum would
preclude the applicant’s spouse or minor children from entering the country through
derivative asylum.19 Although asylum is the preferable vehicle for obtaining relief
from removal, an applicant can be barred from obtaining asylum on procedural or
discretionary grounds, and would therefore have to pursue withholding of removal
in order to stay removal.20
12 INA § 208(b)(3)(A); 8 C.F.R. § 208.21, 8 C.F.R. § 1208.21.
13 Although the statute refers to this mechanism as “restriction on removal,” it is more
commonly called “withholding of removal” in case law, regulations and legal scholarship.
In international law and treaties, withholding of removal is often referred to as
“nonrefoulement.”
14 INA § 241(b)(3), 8 U.S.C. §1231(b)(3).
15 Although there appears to be no difference between the types of harm that “persecution”
and “a threat to life or freedom” signify, there is a difference between the two standards with
regard to the likelihood of future harm an applicant must demonstrate in order to obtain the
sought after relief. More on the difference between “a well-founded fear of persecution” and
“a threat to life or freedom” with regards to the evidentiary burden will be discussed below.
16 INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A)) (“the Attorney General may not remove
an alien to a country if the Attorney General decides that the alien’s life or freedom would
be threatened in that country...”) (emphasis added).
17 Id. The statute states that “the Attorney General may not remove,” not that the alien has
a right to stay within the country.
18 INS v. Cardoza-Fonseca, 480 U.S. 421, 429 n. 6 (1987).
19 But see 8 C.F.R. § 208.16(e), 8 C.F.R. § 1208.16(e) (authorizing a reopening of an asylum
claim denied on discretionary grounds if the applicant obtains withholding of removal and
seeks to keep her spouse or minor children in the country with her).
20 For cases in which an asylum claim was barred on procedural or discretionary grounds,
(continued...)
CRS-4
Before delving into greater detail in the differences between asylum and
withholding of removal, it is important to note that the term “refugee” has two
distinct senses. Refugees usually refer to a large number of displaced individuals
located outside the United States who receive leave from the President to enter into
the country as a group.21 Although asylum refers to the statutory definition of
“refugee” in order to determine who will obtain relief, asylum, in contrast to the
refugee admission process, is geared towards individuals already in or at the border
of the United States and is typically adjudicated before Immigration Judges on a case-
by-case basis.22 Thus, the way in which a group of refugees obtains admission into
the United States from overseas and the process in which an individual refugee is
permitted to stay within the United States once reaching its shores are distinct. This
report will focus on the latter sense of “refugee;” namely refugees who undergo the
asylum process.
The Statutory Requirements For Asylum
or Withholding of Removal
In order for an individual alien to claim either asylum or withholding of
removal, the alien must satisfy certain statutory requirements. While the statutory
requirements for asylum and withholding of removal are similar in many ways, they
do differ with regards to the burden of proof that an applicant must bear when trying
to establish the likelihood of being subjected to future persecution. An applicant
petitioning for asylum need establish that she is a refugee, which only requires a well-
founded fear of persecution.23 Someone seeking withholding of removal, on the other
hand, must show a “clear probability” of future persecution.24 When applying for
asylum, an applicant is also automatically deemed by regulations to be seeking
withholding of removal.25 Because the statutory requirements for refugee status and
withholding of removal are substantively similar, this report will proceed by first
outlining the statutory and regulatory framework of refugee status and will then
discuss the ways in which it differs from withholding of removal.
20 (...continued)
but where the applicant was nevertheless able to obtain withholding of removal, see
Ivanshivili v. U.S. Dep’t of Justice, 433 F.3d 332 (2d Cir. 2006); Zheng v. Gonzales, 409
F.3d 804 (7th Cir. 2005).
21 See INA § 207, 8 U.S.C. § 1157 (authorizing the President to allow refugees into the
United States for a period not exceeding 12 months when the admission of the refugees is
justified by grave humanitarian concerns or is otherwise in the national interest).
22 INA § 208, 8 U.S.C. §1158 (authorizing the grant of asylum to those who qualify under
the statutory definition of refugee).
23 INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A).
24 INS v. Stevic, 467 U.S. 407, 429-30 (1984). See also INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3)) (mandating that the Attorney General not remove aliens whose life or freedom
is threatened in their native country because of the aliens’ race, religion, nationality,
membership in a particular social group, or political opinion). Although the statute refers
to a threat to an alien’s life or freedom, case law still usually refers to the evidentiary
standard for a withholding of removal claim as a “clear probability of persecution.”
25 8 C.F.R. § 208(b)(3).
CRS-5
The Definition of Refugee. “Refugee” is statutorily defined in INA
§ 101(a)(42), which states that:
The term “refugee” means (A) any person who is outside any country of such
person’s nationality, or, in the case of a person having no nationality, is outside
any country in which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or herself of the
protection of that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group or political opinion, or (B) in such special circumstances as the
President after appropriate consultation (as defined in section 207(e) of this Act)
may specify, any person who is within the country of such persons’ nationality,
or, in the case of a person having no nationality, within the country in which such
person is habitually residing, and who is persecuted or who has a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.26
For purposes of most asylum claims, in order to establish “refugee” status, an
applicant must show three things: (1) she has a “well-founded fear of persecution,”
(2) the persecution was “on account of” a protected ground, and (3) she belongs to
the protected ground, namely a race, religion, nationality, membership in a particular
social group, or political opinion. The particulars of each element will be examined
in turn.
First Element: Well Founded Fear of Persecution
Persecution. Persecution is not defined by statute and is determined on a
case-by-case basis by the courts. The Seventh Circuit, for example, defined
persecution as “punishment or the infliction of harm for political, religious, or other
reasons that this country does not recognize as legitimate.”27 However, not all bad
acts necessarily rise to the level of persecution. As the Seventh Circuit later stated,
“the conduct in question need not necessarily threaten the petitioner’s life or
freedom; however, it must rise above the level of mere harassment to constitute
persecution.”28 Persecution is rather “an extreme concept that does not include every
sort of treatment our society regards as offensive.”29 It is therefore difficult to
establish a bright line between conduct that clearly rises to the level of persecution
and conduct that falls short. A single incident of imprisonment or violence coupled
with a death threat may constitute persecution;30 multiple beatings that require the
victim to receive hospitalization may not.31
26 INA § 101(a)(42), 8 U.S.C. § 1101(a)(42).
27 Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995).
28 Sofinet v. INS, 196 F.3d 742, 746 (7th Cir. 1999).
29 Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995).
30 See Corado v. Ashcroft, 384, F.3d 945 (8th Cir. 2004); Ndom v. Ashcroft, 384 F.3d 743
(9th Cir. 2004).
31 See Bocova v. Gonzales, 2005 U.S. App. LEXIS 12421, at *9-*11 (1st Cir. June 24,
(continued...)
CRS-6
Well-Founded Fear. Well-founded fear is another concept left undefined by
statute. “Well-founded fear” appears to originate from Article 1 of the United Nations
Convention Relating to the Status of Refugees, which characterized the basis of a
refugee claim as “persecution or a well-founded fear of persecution,” but that
document does not address the parameters of a well-founded fear.32 Because of the
term’s ambiguous nature, the Supreme Court has observed that “‘well-founded
fear’...can only be given concrete meaning through a process of case-by-case
adjudication.”33 However, it does appear clear that a well-founded fear does not
require more than 50% certainty.34
Regulations promulgated by the Department of Homeland Security and the
Department of Justice find a well-founded fear to be established if:
! The applicant has a fear of persecution in his or her country of
nationality, or, if stateless, in his or her country of last habitual
residence, on account of race, religion, nationality, membership in
a particular social group, or political belief (i.e., the subjective
component);35
! There is a reasonable possibility of suffering such persecution if he
or she were to return to that country (i.e., the objective
component);36 and
! He or she is unable or unwilling to return to, or avail himself or
herself of the protection of, that country because of such fear.37
Case law and the current regulations have established that well-founded fear
contains both a subjective and objective component.38 First, the applicant must have
31 (...continued)
2005).
32 July 28, 1951, 19 U.S.T. 6223, 6259, T.I.A.S. No . 6577, 189 U.N.T.S. 150. See also H.R.
Conf. Rep. No 96-781, at 19 (1980).
33 Cardoza-Fonseca, 480 U.S. at 448 (1987).
34 Id. at 431 (“That the fear must be ‘well-founded’ does not alter the obvious focus on the
individual’s subjective beliefs, nor does it transform the standard into a ‘more likely than
not’ one. One can certainly have a well-founded fear of an event happening when there is
less than a 50% chance of the occurrence taking place.”)
35 8 C.F.R. § 208.13(2)(A), 8 C.F.R. § 1208.13(2)(A).
36 8 C.F.R. § 208.13(2)(B), 8 C.F.R. § 1208.13(2)(B).
37 8 C.F.R. § 208.13(2)(C), 8 C.F.R. § 1208.13(2)(C).
38 Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir. 2004) (“The asylum applicant must
show (1) that she has a genuine, subjective fear of persecution and (2) that her fear is
objectively reasonable.”); Sofinet, 196 F.3d at 746 (7th Cir. 1999); Diaz-Escobar v. INS, 782
F.2d 1488, 1492 (9th Cir. 1986) (“The objective component ensures that the alien’s
subjective fear is well-founded in fact and not in fantasy.... What is critical is that the alien
prove that his fear is subjectively genuine and objectively reasonable.”).
CRS-7
a state of mind that genuinely fears persecution.39 Second, the fear must be
objectively “well-founded,” or in other words, a reasonable person in the applicant’s
position would fear persecution.40 A showing of only one component is insufficient
to establish well-founded fear.41
In order to establish the objective component of a well-founded fear, the
applicant must establish four things:42
! the applicant possesses a characteristic or belief which motivates the
persecutor to inflict harm on the applicant (though the persecutor
need not be motivated by a “punitive” or “malignant” intent);43
! the persecutor is aware, or could become aware, that the applicant
possesses this belief or characteristic;44
! the persecutor has the capability to inflict harm on the applicant; and
! the persecutor has the inclination to harm the applicant.45
Although an applicant may establish the objective component of a well-founded
fear by demonstrating that she has been specifically targeted for persecution or has
already suffered harm, such an individualized showing is unnecessary. A showing of
persecution inflicted on individuals similarly situated to the applicant is sufficient to
establish the objective component.46 Regulations have adopted this approach by
allowing the objective component of a well-founded fear to be met if the applicant
establishes that (1) there is a pattern or practice in the applicant’s country of origin
to persecute groups of persons similarly situated to the applicant on account of race,
religion, nationality, membership in a particular social group, or political opinion;
and (2) the applicant is included in and identifies with such groups so that his or her
fear is reasonable.47
Clear Probability of Persecution. If asylum is not available to an applicant,
she may alternatively pursue withholding of removal. Although the statutory and
regulatory requirements for establishing persecution is similar to that underlying
39 Bolanos-Hernandez v. INS, 909 F.2d 1277 (9th Cir. 1985).
40 See Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (BIA 1987).
41 See Blanco-Comarribas v. INS, 830 F.2d 1039, 1041 (9th Cir. 1987) (holding that
evidence of oppressive conditions in applicant’s country of origin is relevant, but not
sufficient to establish a well-founded fear of persecution); Balazoski v. INS, 932 F.2d 648
(7th Cir. 1991) (finding that the applicant only had a subjective fear and lacked the objective
fear of political persecution required for refugee status).
42 Charles Gordon, et. al. Immigration Law and Procedure § 33.04[1][b], p. 33-21 (rev. ed.
2007).
43 Kasinga, 21 I. & N. Dec. 357.
44 Mogharrabi, 19 I. & N. Dec. at 446 (BIA 1987).
45 See, e.g., Hartooni v. INS, 21 F.3d 336, 341 (9th Cir. 1994).
46 Ndom v. Ashcroft, 384 F.3d 743, 754 (9th Cir. 2004).
47 8 C.F.R. § 208.13(b)(2)(iii), 8 C.F.R. § 1208.13(b)(2)(iii).
CRS-8
asylum, an applicant who chooses this course must shoulder a heavier evidentiary
burden. Instead of showing a well-founded fear of persecution, an applicant must
demonstrate a “clear probability” of persecution.48 The Supreme Court has held that
“clear probability” means “more likely than not,” or in other words, it is the
equivalent to the preponderance of the evidence standard.49 Although “well-founded”
fear is left largely undefined, the federal courts treat it as a less demanding
evidentiary standard than “more likely than not.”50
Past Persecution. “Persecution,” a “well-founded fear of persecution,” and
a “clear probability of persecution,” are prospective standards. In other words, asylum
and withholding of removal are primarily forward looking measures that are better
understood as mechanisms to protect individuals from future harm rather than as
remedies to cure past harm. However, despite the prospective nature of asylum and
withholding of removal, past persecution still serves a role in this framework. First,
past persecution plays a regulatory rather than statutory role in the asylum and
withholding of removal framework, which means its role in the federal scheme was
prescribed by agencies rather than Congress. Second, and more importantly, past
persecution, in most instances, though not necessarily all, is meant to serve as
evidence that the applicant may suffer future persecution and does not, in itself,
warrant asylum or withholding of removal.51
The Department of Homeland Security and the Department of Justice have
promulgated regulations in which a showing of past persecution can act as a
substitute for a showing of a well-founded fear or clear probability of persecution so
long as the persecution was committed on account of a protected ground and the
applicant is unable or unwilling to avail herself of the protection of her country of
origin owing to the persecution.52 These regulations do so by allowing an applicant
to demonstrate that she has already suffered past persecution, which creates a
presumption that the well-founded fear element of an asylum claim53 and the clear
probability requirement of a withholding of removal claim are satisfied.54 At this
point, the burden shifts to the government to prove by a preponderance of the
48 Id. See also Cardoza-Fonseca, 480 U.S. 421.
49 Stevic, 467 U.S. at 429. “Preponderance of the evidence” means that the factfinder in a
judicial proceeding must find for the party that, on the whole, has the stronger evidence,
however slight the edge may be. Black’s Law Dictionary 1201 (7th ed. 1999). In other
words, the assertion is more than 50% likely to be true.
50 See Montecino v. INS, 915 F.2d 518, 520 (9th Cir. 1990) (suggesting that a well-founded
fear can be established if there is a one in ten chance of being persecuted).
51 But see 8 C.F.R. § 1208.13(b)(1)(iii)(A) (permitting asylum for those individuals who
cannot demonstrate a well-founded fear of persecution but nonetheless have a compelling
reason not to return to their countries of origin due to the severity of their past persecution).
52 8 C.F.R. § 208.13(b)(1), 8 C.F.R. § 1208.13(b)(1); 8 C.F.R. § 208.16(b)(1), 8 C.F.R.
§ 1208.16(b)(1).
53 INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b)(1), 8 C.F.R.
§ 1208(13)(b)(1).
54 8 C.F.R. § 208.16(b)(1), 8 C.F.R. § 1208.16(b)(1).
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evidence55 either that the applicant can avoid the persecution (1) by relocating within
her home country and it would be reasonable to expect her to do so56 or (2) because
circumstances have changed that negate either the well-founded fear of the
applicant57 or a clear probability of persecution.58
In most cases, changed circumstances involve the changed circumstances of the
applicant’s country of origin.59 Furthermore, even if the government establishes
changed circumstances, asylum may still be granted through the exercise of the
adjudicator’s discretion if the applicant demonstrates compelling reasons for being
unwilling or unable to return to her country of origin due to the severity of her past
persecution60 or the applicant has established that there is a reasonable possibility that
she may suffer other serious harm upon removal to that country.61 On the other hand,
in a withholding of removal claim, if the applicant’s future fear of persecution is
unrelated to her past experience of persecution, the applicant retains the burden to
show that it is more likely than not that she will suffer future persecution.62
Second Element: “On Account Of” a Protected Ground
Persecution is only the first element an applicant must establish in order to
obtain asylum or withholding of removal. The applicant must next establish that the
persecution was conducted “on account of” a ground protected under the refugee
statute.63 Before going into detail on the five enumerated protected grounds, it is
important to discuss the nature of the nexus between the persecution and the
protected ground that the applicant must establish.
The primary difficulty with the term “on account of” is its vagueness. As
mentioned earlier, the refugee definition was largely taken from the United Nations
Convention Relating to the Status of Refugees, where instead of using the term “on
account of,” the treaty uses “for reasons of.”64 The term also appears largely
undefined in the case law. The only Supreme Court case to address its meaning did
55 8 C.F.R. § 208.13(b)(1)(ii), 8 C.F.R. § 1208.13(b)(1)(ii); 8 C.F.R. § 208.16(b)(1)(ii), 8
C.F.R. § 1208.16(b)(1)(ii).
56 8 C.F.R. § 208.13(b)(1)(i)(B), 8 C.F.R. § 1208.13(b)(1)(i)(B).
57 8 C.F.R. § 208.13(b)(1)(i)(A), 8 C.F.R. § 1208.13(b)(1)(i)(A).
58 8 C.F.R. § 208.16(b)(1)(i)(A), 8 C.F.R. § 1208.16(b)(1)(i)(A).
59 See Fergiste v. INS, 138 F.3d 14, 19 (1st Cir. 1998) (general evidence of changed country
conditions was insufficient to rebut well-founded fear presumption when applicant had
evidence about his specific circumstances); Vallecillo-Castillo v. INS, 121 F.3d 1237, 1240
(9th Cir. 1996) (administrative notice of changed country condition was insufficient to rebut
the presumption of well-founded fear).
60 8 C.F.R. § 208.13(b)(1)(iii)(A), 8 C.F.R. § 1208.13(b)(1)(iii)(A).
61 8 C.F.R. § 208.13(b)(1)(iii)(B), 8 C.F.R. § 1208.13(b)(1)(iii)(B).
62 8 C.F.R. § 208.16(b)(1)(iii), 8 C.F.R. § 1208.16(b)(1)(iii).
63 INA § 101(a)(43), 8 U.S.C. § 1101(a)(42).
64 July 28, 1951, 19 U.S.T. 6223, 6259, T.I.A.S. No . 6577, 189 U.N.T.S. 150.
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so only in passing, where it assumed it meant “because of.”65 However, the precise
standard of causality to be used is disputed.66
Although the precise nature of “on account of” is disputed, what is clear is that
there must be some type of relationship between the persecution and the protected
ground, or in other words, a “nexus.” The federal courts have also agreed that the
protected ground need not be the sole reason for the persecution, but rather, under the
“mixed motive” doctrine, it only has to be part of the motive for the persecution.67
Third Element: Belonging to a Protected Ground
In order to obtain either asylum or withholding of removal, an applicant must
not only show that she has suffered persecution, but that it was inflicted “on account
of” race, religion, nationality, membership in a particular social group, or political
opinion.68 Thus, in order to obtain either asylum or withholding of removal, an
applicant must show that she belongs to one of the protected grounds.69 Applicants
who seek to obtain asylum or withholding of removal through an FGM claim
generally must show they belong to a particular social group. Thus, this report will
forgo discussing the law involving the race, religion, nationality, and political
opinion grounds, and focus on the law governing the particular social group ground.
Membership in a Particular Social Group. Congress inserted the term
“membership in a particular social group” into the refugee statute in order to have it
conform with the United Nations Convention and Protocol Relating to the Status of
Refugees.70 The term is otherwise left undefined in the relevant statutes, legislative
history, treaties, and negotiating history.71 Because of this, case law has been the
primary means by which “membership in a particular social group” has been
construed.
65 INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (“Elias-Zacarias still has to establish
that...the guerrillas will persecute him because of that political opinion[...]”) (emphasis in
original). It is important to stress that the Supreme Court did not render a holding on the
definition of “on account of.”
66 See James C. Hathaway, The Causal Nexus in International Refugee Law, 23 Michigan
J. Internat’l L. 207 (2002).
67 See, e.g., Mohideen v. Gonzales, 416 F.3d 567 (7th Cir. 2005).
68 INA § 101(a)(42), 8 U.S.C. § 1101(a)(42); INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)).
69 Political opinion differs from the other protected grounds in some respects because an
applicant may still obtain asylum or withholding of removal because of an “imputed
political opinion,” i.e., a political opinion a persecutor erroneously believes the applicant
holds. See Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992).
70 Charles Gordon, et. al. Immigration Law and Procedure § 33.04[2][d], p. 33-40.1 (rev.
ed. 2007).
71 See Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993).
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The most frequently cited construction of “membership in a particular social
group” is found in Matter of Acosta.72 In that case, the Board of Immigration Appeals
(BIA), after noting the dearth of legislative history and statutory guidance, used the
doctrine of ejusdem generis in construing “membership in a particular social group”
by comparing it with the other enumerated grounds in the statute.73 The common trait
the BIA elucidated among the enumerated protected grounds was immutability; in
other words, all persons who belonged to a protected ground shared a “common,
immutable characteristic.”74 The BIA elaborated on this notion by stating that, in
order to obtain asylum under the particular social group ground, the persecution must
be aimed at a common, immutable characteristic that is shared by all members of the
particular social group.75 The immutable characteristic “may be an innate one such
as sex, color, or kinship ties, or in some circumstances it might be a shared past
experience such as former military leadership or land ownership,” but “whatever the
common characteristic that defines the group, it must be one that the members of the
group either cannot charge, or should not be required to change because it is
fundamental to their individual identities or consciences.”76 Most of the federal
appellate courts have adopted this construction.77
Gender as a Particular Social Group. While Acosta contained language
that appeared to view gender as a characteristic which could satisfy the immutability
criterion, courts have been disinclined in practice to recognize attempts to use gender
as the sole characteristic in defining a social group.78 The closest a court has come
to acknowledging gender as a immutable characteristic sufficient in itself to
constitute a social group was when the Third Circuit in Fatin v. INS stated in dicta
that while gender could be used as the sole characteristic to link the members of a
particular social group, to do so would require the applicant to also show that sex was
the sole reason for the persecution.79 Although using gender as the sole characteristic
of a social group has proved unsuccessful, courts have been far more sympathetic to
social groups defined only in part by gender.80 In FGM cases, for example, courts
72 19 I. & N. Dec. 211 (1985).
73 Id. at 233.
74 Id.
75 Id.
76 Id.
77 See, e.g., Alvarez-Flores v. INS, 909 F.2d 1, 7 (1st Cir 1990); Fatin, 12 F.3d at 1240;
Castellano-Chacon v. INS, 341 F.3d 533, 546-48 (6th Cir. 2003); Lwin v. INS, 144 F.3d
505, 512 (7th Cir. 1998); Thomas v. Gonzales, 409 F.3d 1177, 1184-87 (9th Cir. 2005) (en
banc). But see Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (providing
an alternative definition to “particular social group” by defining it as a “voluntary
associational relationship”).
78 See, e.g., Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991).
79 12 F.3d at 1240.
80 See, e.g., In re A-N-, File No. A73 603 840 (IJ December 22, 2000) (Philadelphia, Pa.)
(Grussendorf, IJ) (finding that the applicant belonged to a particular social group of
“married, educated career-oriented” Jordanian women and that she had been persecuted and
(continued...)
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have appeared to treat the “particular social group” requirement as satisfied when it
is defined by a combination of the applicant’s gender and the applicant’s tribal
membership.81
Withholding of Removal Under the Convention
Against Torture
The United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (CAT) is an international treaty that specifically
targets torture.82 Although the Senate ratified CAT in 1990, it was not until 1998 that
Congress passed the necessary implementing legislation.83 The treaty is relevant for
most asylum applicants because the Department of Homeland Security promulgated
regulations which allow applicants to obtain withholding of removal under the
auspices of CAT.84 A claim under CAT differs from traditional withholding of
removal in that it only requires a “more likely than not” probability (i.e., clear
probability) that the applicant would be tortured if returned to her country of origin.85
Thus, while CAT arguably covers a narrower category of conduct than traditional
withholding of removal, the applicant need not show that the torture was conducted
“on account of” a protected ground. In the context of FGM, CAT has limited salience
because most applicants have little trouble establishing “a particular social group”
if they are truly at risk of suffering from FGM if sent back to their countries of origin.
However, it is important to mention that at least one circuit has indicated that FGM
could constitute torture and could provide a colorable basis for relief under CAT.86
80 (...continued)
feared future persecution on account of her membership in that group), reported at 78
Interpreter, Releases 409 (February 26, 2001).
81 See, e.g., Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2007).
82 U.N.G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984).
83 Foreign Affairs, Reform and Restructuring Act of 1998, P.L. 105-277, 112 Stat. 2681,
Div. G, § 2242 (October 21, 1998).
84 8 C.F.R. § 208.16(c), 8 C.F.R. § 1208.16(c).
85 8 C.F.R. § 208.16(c)(2), 8 C.F.R. § 1208.16(c)(2).
86 Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002).
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Female Genital Mutilation as a Basis
for an Asylum or Withholding of Removal Claim
Female genital mutilation (FGM), also called female genital cutting (FGC),
female genital alteration, or female circumcision, encompasses a wide range of
surgical procedures which involve the removal or alteration of a woman’s external
genitalia.87 The World Health Organization (WHO) estimates that currently 100 to
140 million women in the world have undergone FGM with approximately 3 million
girls in Africa at risk annually.88 Although it is a cultural practice prevalent in
western, eastern, and northwestern Africa, and in some Asian and Middle-Eastern
nations,89 it is widely considered a human rights violation by most international
organizations and Western countries.90 This viewpoint is reflected in American law:
a federal criminal statute states that any individual who “knowingly circumcises,
excises, or infibulates” the genitalia of a woman under 18 years of age is subject to
87 The World Health Organization (WHO) defines FGM as “all procedures which involve
partial or total removal of the external female genitalia or other injury to the female genital
organs for non-medical reasons.” See World Health Organization Factsheet on Female
Genital Mutilation, [http://www.who.int/mediacentre/factsheets/fs241/en/index.html] (last
visited June 12, 2008). The WHO classifies the various surgical procedures into four
categories:
Type I: Partial or total removal of the clitoris and/or the prepuce
(clitoridectomy).
Type II: Partial or total removal of the clitoris and the labia minora, with or
without excision of the labia majora (excision).
Type III: Narrowing of the vaginal orifice with the creation of a covering seal
by cutting and appositioning the labia minora and/or the labia majora, with
or without excision of the clitoris (infibulation).
Type IV: All other harmful procedures to the female genitalia for non-medical
purposes: pricking, piercing, incising, scraping, and cauterization.
See Eliminating Female Genital Mutilation: An Interagency Statement, [http://www.who.int/
reproductive-health/publications/fgm/fgm_statement_2008.pdf] (last visited June 12, 2008).
88 World Health Organization Factsheet on Female Genital Mutilation, [http://www.who.int/
mediacentre/factsheets/fs241/en/index.html] (last visited June 12, 2008).
89 Id. See also Female Genital Mutilation (FGM) or Female Genital Cutting (FGC):
Individual Country Reports, [http://www.state.gov/documents/organization/10222.pdf] (last
visited June 12, 2008).
90 World Health Organization Factsheet on Female Genital Mutilation, [http://www.who.int/
mediacentre/factsheets/fs241/en/index.html] (last visited June 12, 2008). FGM has been
formally condemned by several international organizations, such as the World Health
Organization, the United Nations Children’s Fund, and the United Nations Population Fund.
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both fine and imprisonment.91 Federal refugee law has also classified FGM as a form
of persecution which can act as a basis for refugee status.92
Ever since the BIA declared FGM to be a form of persecution in In re Kasinga,93
there has been a growing corpus of case law published by both the BIA and the
federal circuits governing FGM-based asylum and withholding of removal claims.
Generally, in order to obtain FGM-based asylum, an applicant must demonstrate that
she has a well-founded fear of FGM or, in the case of withholding of removal, a clear
probability of FGM, and is unable to avail herself of the protection of her country of
origin. The applicant must also establish that the FGM was committed “on account
of” the applicant’s membership in a particular social group, usually defined by a
combination of the applicant’s gender and ethnic or tribal affiliation. This section of
the report will explore the many issues affecting an FGM-based claim by first
discussing which characteristics typically comprise the “particular social group” an
applicant must establish in order to obtain either FGM-based asylum or withholding
of removal. It will then proceed to focus on the role FGM plays in establishing either
future or past persecution. One particular development in this area has resulted in a
split between the Board of Immigration Appeals (BIA) and several federal circuits
over whether a past infliction of FGM may qualify a woman for asylum.
Gender and Tribal Affiliation as a Particular Social Group
As mentioned above, gender alone, as a practical matter, is almost never
sufficient to act as a protected ground for an asylum claim.94 The reason is that,
although gender satisfies the immutability criterion of Acosta, using gender as the
sole characteristic for a particular social group demands that the applicant also show
that persecution was inflicted solely for being female.95 On the other hand, when
gender is used in conjunction with other characteristics, it is far more likely that it
will be recognized as a particular social group. One such formulation is found in In
re Kasinga. In that case, the court upheld the applicant’s FGM-based asylum claim
by defining her particular social group as one constituting “young women of the
Tchamba-Kunsuntu tribe who have not had [FGM], as practiced by that tribe, and
who opposed the practice.”96 Thus, at the time of this case, it appeared that the BIA
required a particular social group that consisted of (1) women (2) who personally
opposed FGM, (3) did not undergo FGM, and (4) who belonged to a particular tribe
that (5) practiced FGM. However, most federal appellate courts do not appear to
91 18 U.S.C. § 116 (“whoever knowingly circumcises, excises, or infibulates the whole or
any part of the labia majora or labia minor or clitoris of another person who has not attained
the age of 18 years shall be fined or imprisoned for not more than 5 years, or both.”).
92 Kasinga, 21 I. & N. Dec. at 365.
93 Id.
94 See Gomez, 947 F.2d at 664; Fatin, 12 F.3d 1233.
95 See Fatin, 12 F.3d at 1240 (requiring that an asylum applicant defining a particular social
group based solely on gender must also show that “she would suffer or that she has a well-
founded fear of suffering ‘persecution’ based solely on her gender.”).
96 Kasinga, 21 I. & N. Dec. at 365.
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require a showing that the social group include personal opposition to FGM or that
group consist of women who had not undergone FGM. They instead define the social
group solely through the applicant’s (1) gender combined with her (2) ethnicity,
nationality, or tribal affiliation.97
Female Genital Mutilation as Future Persecution
As discussed earlier, the types of harm which rise to the level of persecution are
not defined by statute and are usually determined on a case-by-case basis. In In re
Kasinga, however, the BIA held that FGM as practiced by the applicant’s tribe was
a form of persecution.98 The type of FGM at issue in Kasinga was described as “an
extreme type involving cutting the genitalia with knives, extensive bleeding, and a
40-day recovery period.”99 Other forms of FMG, which involve the cutting away of
portions of the female genitalia and the practice of suturing the vagina partially
closed, were also discussed.100 After illustrating the particulars of these procedures,
the BIA then held that the level of harm these forms of FGM inflict on women “can
constitute ‘persecution’ within the meaning of [INA §101(a)(42)(A)].”101 It then
characterized FGM as a form of “sexual oppression...to ensure male dominance and
exploitation,” practiced in order to “overcome sexual characteristics of young
women...who have not been, and do not wish to be, subjected to FGM.”102 As a
consequence of Kasinga, most federal circuits have followed suit and have held that
FGM is a form of persecution.103
The significance of this holding is that most federal courts, while adjudicating
FGM claims, appear to assume FGM is persecution. Thus, as a practical matter, in
order to raise a successful claim, an applicant only has to establish the likelihood of
the harm (e.g., whether there is a well-founded fear or a clear probability the FGM
will occur) without having to argue that the gravity of harm that the FGM poses is
severe enough to merit either asylum or withholding of removal relief. In other
97 See Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996) (holding that persecution was on
account of applicant’s membership in a social group comprising of the young women of the
Tchamba-Kunsuntu Tribe); Niang, 422 F.3d at 1200 (holding that for purposes of FGM, a
particular social group can be defined by both gender and tribal membership). See also
Acosta, 19 I. & N. Dec. at 233.
98 Kasinga, 21 I. & N. Dec. at 365.
99 Id. at 361.
100 Id.
101 Id. at 365.
102 Kasinga, 21 I. & N. Dec. at 366-367.
103 See, e.g., Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir. 2004) (“Forced female genital
mutilation involves the infliction of grave harm constituting persecution...”); Barry v.
Gonzales, 445 F.3d 741, 745 (4th Cir. 2006) (“We recognize as an initial matter that FGM
constitutes persecution...”); Abankwah v. INS, 185 F.3d 18, 23 (2d Cir. 1999) (“That FGM
involves the infliction of grave harm constituting persecution under [INA § 101(a)(42)(A)]
is not disputed here.”); Balogun, 374 F.3d at 499 (“the Agency does not dispute, at least
with any force, that the type of FGM which Ms. Balogun has alleged is ‘persecution.’”);
Niang, 422 F.3d at 1197.
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words, to suffer FGM is to suffer persecution. Another important consequence of this
case is that its holding appears to extend over practically every manifestation of FGM
currently practiced.104
Daughters Threatened With FGM. Some asylum applicants have
successfully argued that they can claim asylum in their own right because they have
a well-founded fear of persecution based on the fear that a minor daughter, currently
within the United States with the applicant, will suffer FGM upon arrival at the
applicant’s country of origin.105 Several federal circuits seem to at least implicitly
accept this proposition.106 However, the Sixth Circuit has asserted that asylum will
not be granted to an applicant whose daughter is already located inside the
applicant’s country of origin and threatened with FGM at the time the asylum claim
was filed.107 Furthermore, the Seventh Circuit has held that if an applicant’s daughter
can avoid constructive deportation by remaining in the United States with her other
parent, the applicant cannot use the threat of FGM against her daughter as a basis for
her asylum claim.108 The BIA has also rejected an argument proposed by a childless
applicant who based her asylum claim on the fear that her future, unborn daughters
may suffer FGM, classifying this fear as too speculative to be well-founded.109
Female Genital Mutilation as Past Persecution
Although a showing of a well-founded fear of FGM will qualify an applicant for
asylum status, the BIA will not regard a past infliction of FGM as sufficient to
establish a well-founded fear of persecution.110 This approach is a marked departure
104 See Charles Gordon, et. al. Immigration Law and Procedure § 33.04[2][d], p. 33-48 (rev.
ed. 2007) (“While the [BIA] failed to make a blanket statement concerning female genital
persecution in general, we believe that the [BIA] would be hard-pressed to find a case of
female genital mutilation that would not constitute persecution.”).
105 See Abay, 368 F.3d at 641. The reason derivative asylum was not pursued was because
the regulations governing derivative asylum limit its availability to spouses and minor
children. See 8 C.F.R. § 208.21, 8 C.F.R. § 1208.21.
106 See Nwaokolo, 314 F.3d at 308 (stating that the BIA should have considered, when
denying asylum to an applicant, the risk of FGM the applicant’s children would be exposed
to if they were to be constructively deported with their mother back to her country of
origin); Barry, 445 F.3d at 745 (stating in dicta that “[t]o the extent that...the Attorney
General does not contest...the fact that Barry’s daughter will likely be subject to FGM if she
is removed to Guinea, Barry has made out a prima facie case of persecution that would have
entitled her to asylum ...”).
107 Bah v. Gonzales, 462 F.3d 637, 642-43 (6th Cir. 2006).
108 Olowo v. Ashcroft, 368 F.3d 692, 701 (7th Cir. 2004). Indeed, the applicant is under the
obligation to leave her child with the other parent even if the applicant is removed to her
country of origin. See id. at 703-04 (directing the Clerk of the Court to notify certain state
authorities that the applicant was endangering her daughter by asserting that she would bring
her daughter with her if removed to her country of origin).
109 In re A-T-, 24 I. & N. Dec. 296, 302 (BIA 2007).
110 When an asylum applicant makes a showing of past persecution, it serves as evidence of
(continued...)
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from the one taken by the federal circuits that have addressed this issue. On the other
hand, the BIA has ruled that even though a past infliction of FGM cannot establish
a well-founded fear of persecution, it can still act as the basis for a successful asylum
claim based on separate humanitarian grounds.
When an applicant petitions for asylum status, she usually must show that she
has a “well-founded fear” of persecution. An asylum applicant can create a rebuttable
presumption of a “well-founded fear” of persecution if she can show (1) a past
incident that rises to the level of persecution (2) that is on account of race, religion,
nationality, membership in a social group, or political opinion, and (3) is committed
by the government or by forces the government is either unable or unwilling to
control.111 A similar test exists for those seeking to establish a clear probability of
persecution when applying for withholding of removal.112 This presumption may be
rebutted if it can be shown that “there has been a fundamental change in
circumstances” such that the applicant no longer has either a well-founded fear
(asylum context) or clear probability of persecution (withholding of removal context)
in her country of origin.113
Continuing Harm Theory. The leading federal appellate case on the
treatment of FGM as past persecution is Mohammed v. Gonzales.114 In this case, the
asylum applicant was a woman from Somalia who had already been inflicted with
FGM.115 The applicant claimed that the FGM constituted past persecution which
warranted the presumption that she had a well-founded fear of future persecution.116
The government contended that the past infliction of FGM was a fundamental change
in circumstances which should have rebutted the presumption because, having
already suffered FGM, the applicant would not be inflicted with the procedure in the
future.117 The Ninth Circuit rejected this argument. The court instead analogized
FGM to forced sterilization, which had been classified in a previous case as a
“continuing harm that renders a petitioner eligible for asylum, without more.”118 This
holding by the Ninth Circuit effectively made a showing of FGM sufficient to create
an irrebuttable presumption of a well-founded fear of persecution. The Eighth
110 (...continued)
prospective persecution in the future if she is sent back to her country of origin. See supra
CRS-8.
111 Navas v. INS, 217 F.3d 646, 655-656 (9th Cir. 2000). See also 8 C.F.R. § 208.13(b)(1),
8 C.F.R. § 1208.13(b)(1); 8 C.F.R. § 208.16(b)(1), 8 C.F.R. § 1208.16(b)(1).
112 8 C.F.R. § 208.16(b)(1), 8 C.F.R. § 1208.16(b)(1).
113 8 C.F.R. § 208.13(b)(1)(i)(A), 8 C.F.R. § 1208.13(b)(1)(i)(A).
114 400 F.3d 785 (9th Cir. 2005).
115 Id. at 789-790.
116 Id. at 791.
117 Id. at 799.
118 Id. See also Qu v. Gonzales, 399 F.3d 1195, 1203 (9th Cir. 2005) (characterizing forced
sterilization as a form of permanent and continuous persecution which creates an
irrebuttable presumption of a well-founded fear of persecution).
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Circuit, while agreeing that a showing of FGM is sufficient to create a presumption
of a well-founded fear or persecution, otherwise differs from the Ninth Circuit by
leaving the presumption rebuttable .119
Rebuttable Presumption Theory. Alternatively, the Ninth Circuit stated
that even if FGM created a mere rebuttable presumption of a well-founded fear, the
presumption would still be difficult to rebut because of the risk of violence and
gender persecution, as evidenced by the applicant’s FGM, if the applicant was
removed to her home country.120 This alternative theory has been endorsed by the
Eighth Circuit in Hassan v. Gonzales, which held that a showing of past FGM would
be sufficient to create a presumption of a well-founded fear of future persecution
because, even though the risk of future FGM would be negligible, the applicant could
still suffer from forms of future persecution other than FGM.121 Thus, this theory
maintains that the past infliction of FGM does not constitute a fundamental change
in circumstances and the presumption of a well-founded fear of future persecution
is left preserved.
The BIA Argument Against Continuing Harm. The BIA has rejected both
the continuing harm theory and the rebuttable presumption theory. In In re A-T-, the
BIA has ruled that if the government shows that the asylum applicant has already
suffered FGM, the presumption of a well-founded fear of persecution is rebutted.122
The BIA argues that FGM is a one-time procedure limited to permanently removing
parts of the female genitalia. Therefore, once completed, the procedure cannot be
inflicted upon the applicant in the future because the relevant parts of the female
genitalia the FGM aims to remove have already been excised.123 Furthermore, the
BIA rejected the theory that FGM constitutes a “continuing harm” which creates an
irrebuttable presumption of future persecution.124 The BIA claimed that the only
reason forced sterilization is given “continuing harm” status is because of a statutory
provision that expressly states that forced sterilization provides a basis for asylum.125
Absent such a statutory endorsement from Congress, the BIA concluded that FGM
should not be treated the same as forced sterilization.126
It should be noted that the Ninth Circuit has argued that the “continuing harm”
concept arose out of case law and not from the statute. According to that court, the
statutory provision regarding forced sterilization is unrelated to the “persecution”
element of an asylum claim. Rather, the statute only created a per se nexus between
a past forced sterilization and the political opinion ground, thereby automatically
119 Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir. 2007).
120 Mohammed, 400 F.3d at 800.
121 484 F.3d at 518.
122 24 I. & N. Dec. at 299.
123 Id.
124 Id.
125 Id. at 300. See also INA § 101(a)(42), 8 U.S.C. § 1101(a)(42).
126 A-T-, 24 I. & N. Dec. at 300.
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satisfying the “on account of” element in an asylum claim once a showing of past
forced sterilization is made.127
The BIA Argument Against the Rebuttable Presumption. On the
alternative theory, the BIA also rejected the notion that a showing of FGM can create
a rebuttable presumption of a well-founded fear of future persecution.128 This
approach, suggested by the Ninth Circuit in Mohammed and adopted by the Eighth
Circuit in Hassan, was dismissed by the BIA as a deviation from regulatory
procedures.129 Specifically, the BIA held that although FGM is persecution,
regulations mandate that a past infliction of FGM be deemed a fundamental change
in circumstances, which would negate the presumption of a well-founded fear of
persecution that an act of persecution normally creates.130 Furthermore, the BIA cited
a regulation which states that “If the applicant’s fear of future persecution is
unrelated to past persecution, the applicant bears the burden of establishing that the
fear is well-founded.”131 The BIA, in essence, appears to require that a showing of
past persecution must create a well-founded fear of identical future persecution.132 If
the past persecution renders an identical form of persecution in the future impossible,
then the past persecution will not create a rebuttable presumption of a well-founded
fear.133 Therefore, because FGM involves the permanent alteration or removal of
female genitalia, it can only be performed once, and thus the very act of persecution
itself effects a fundamental change in circumstances that negates the possibility of
future persecution.
Second Circuit Response to In re A-T-. The Second Circuit has been the
only appellate court to date that has responded to the holding of A-T-. In Bah v.
Mukasey, the Second Circuit held that the BIA committed “significant error in its
application of its own regulatory framework” when reviewing the FGM-based
withholding of removal claims of the petitioners.134 Principally, the Second Circuit
found the reasoning the BIA applied in A-T- with regard to the rebuttable
presumption theory was flawed.
First, the court held that the BIA mischaracterized FGM as a “one-time” act.135
It stated that there are many types of FGM which can be repeated: notably the sewing
shut of a woman’s vagina, which is only opened for purposes of sexual intercourse
127 See Mohammed, 400 F.3d at 800, fn. 22.
128 A-T-, 24 I. & N. Dec. at 304.
129 Id.
130 Id. at 299. See also 8 C.F.R. § 208.13(b)(1), 8 C.F.R. § 1208.13(b)(1); 8 C.F.R.
§ 208.16(b)(1), 8 C.F.R. § 1208.16(b)(1).
131 Id. See also 8 C.F.R. § 208.13(b)(1), 8 C.F.R. § 1208.13(b)(1).
132 A-T-, 24 I. & N. Dec. at 304.
133 Id.
134 Bah v. Mukasey, 2008 U.S. Ap.. LEXIS 12407, 3 (2d Cir. 2008).
135 Id. at 43.
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with her husband, and then subsequently re-sewn (i.e., infibulation).136 Furthermore,
the Second Circuit stated that the BIA erred when it assumed that FGM was the only
form of possible future harm relevant in the analysis.137 The court stated, “Nothing
in the regulation suggests that the future threats to life or freedom must come in the
same form or be the same act as the past persecution.”138 In order to demonstrate
changed circumstances, which would rebut the petitioners’ presumption of suffering
future harm, the government cannot rely solely on showing that “a particular act of
persecution suffered by the victim will not recur.”139 The court noted that other types
of harm could befall the petitioners once arriving at their countries of origin, notably
domestic abuse, rape, and sex trafficking.140
In a concurring opinion, Judge Straub wrote that he would also uphold the
petitioners’ continuing harm theory.141 Although the majority opinion declined to
address the continuing harm issue, the Straub concurrence concluded that the
similarities between FGM and forced sterilization were too similar to ignore; that is,
the reason why both forms of persecution were only inflicted once was because they
only need to be inflicted once in order to cause a lasting form of persecution. He
rejected the argument that forced sterilization was only given continuing harm status
because Congress statutorily defined it as a form of persecution. Rather, he concluded
that the only reason Congress enacted the statute was to reverse an earlier BIA
decision that had rejected forced sterilization as a form of persecution. In other
words, all Congress did was establish for forced sterilization what the BIA did for
FGM in Kasinga, which was to establish their basic qualifications for asylum and
withholding of removal claims without altering the larger regulatory framework
governing such claims.142 Therefore, since the continuing harm status of forced
sterilization was not a product of the statutory enactment, the similarities between the
types of harm that forced sterilization and FGM inflict on their victims should
militate a conclusion that both inflicted forms of continuing harm.143 However, it is
also important to stress that the majority opinion specifically declined to reach the
merits of this theory, and that Judge Sotomayor, in a separate concurrence,
emphasized that it would be imprudent for the court to address this issue when the
administrative agency had yet to determine whether there were other grounds, besides
the petitioners’ past infliction of FGM, which could rebut the presumption that the
petitioners were likely to suffer future harm in their countries of origin if removed
there.144
136 Id. at 44.
137 Id. at 46.
138 Id. (emphasis in original).
139 Id. at 46-47.
140 Id. at 50.
141 Id. at 53-54 (Straub, J., concurring).
142 Id. at 67.
143 Id.
144 Id. at 79 (Sotomayor, J., concurring).
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The BIA’s Humanitarian Ground Theory. Although the BIA has rejected
the theory that a prior infliction of FGM can establish a well-founded fear of
persecution, it has ruled in Matter of S-A-K- and H-A-H- that a prior infliction of
FGM can alternatively serve as a basis for an asylum claim on humanitarian
grounds.145 Regulations found under 8 C.F.R. §§ 208.13 and 1208.13 permit a grant
of asylum for those who have suffered past persecution but lack a well-founded fear
of future persecution if the applicant demonstrates “compelling reasons for being
unwilling or unable to return to the country arising out of the severity of the past
persecution...”146 The BIA specifically cites Matter of Chen as an example of past
persecution whose severity rises to the level required to qualify as a basis for asylum
without a well-founded fear of future persecution.147 In that case, the Chinese Red
Guard had subjected the applicant and his family to stoning, burning, and other forms
of persecution on account of their religious beliefs.148 Because of his persecution, the
applicant suffered loss of hearing and many psychological ailments.149 By the time
of the applicant’s deportation proceeding, however, China had liberalized many of
its policies, thus making it unlikely that the applicant would suffer the same level of
persecution if deported. Normally, such changes in circumstances would rebut the
presumption of a well-founded fear of persecution. But, regardless of this, the BIA
held that the past persecution was so severe that, standing alone, it was sufficient to
establish an asylum claim even without the well-founded fear.150 It appears that, by
citing Matter of Chen, the BIA now views FGM to be a similar situation: past
persecution, so severe that it results in continuing physical harm and discomfort,
which can act, standing alone, as a basis for asylum even without a well-founded fear
of future persecution.151
Conclusion
As it stands, the federal circuits that have addressed this issue appear, at the
least, to view a prior infliction of FGM as constituting past persecution which can
create a rebuttable presumption of a well-founded fear or clear probability of future
persecution.152 The BIA, however, serves an important gate-keeping function by first
reviewing asylum applications before it reaches the federal court of appeals, and thus
BIA’s approach will govern how the majority of FGM cases will be adjudicated.
145 Matter of S-A-K- and H-A-H-, 24 I. & N. Dec. 464, 465-466 (BIA 2008).
146 8 C.F.R. § 208.13(b)(1)(iii)(A), 8 C.F.R. § 1208.13(b)(1)(iii)(A).
147 20 I. & N. Dec. 16 (BIA 1989).
148 Id. at 19-20.
149 Id. at 20.
150 Id. at 21.
151 Matter of S-A-K- and H-A-H-, 24 I. & N. Dec. at 465.
152 See Mohammed, 400 F.3d at 800-801; Hassan, 484 F.3d at 518; Barry, 445 F.3d at 745
(stating in dictum that a showing of a prior infliction of FGM constitutes a prima facie case
of persecution for an asylum claim); Niang, 422 F.3d at 1197-1198 (agreeing that a prior
infliction of FGM is a viable basis for an asylum claim).
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Even the Ninth Circuit and Eighth Circuit, which have ruled on this issue, may re-
evaluate their approaches to FGM in light of the BIA’s conclusion in A-T- because
administrative interpretations of statutes are typically given deference by federal
appellate courts.153 The only exception to this is the Second Circuit, which has
rejected this approach in Bah because it found the BIA’s fact-finding and reasoning
to be flawed.154
Currently, it would seem that proof of having suffered FGM can act as a basis
for a successful asylum claim, notwithstanding the fact that the prior infliction of
FGM cannot act as a basis for a well-founded fear of persecution. However, it has yet
to be seen whether this approach taken in Matter of S-A-K- and H-A-H- will be the
one the BIA continues to use when handling cases of women who have suffered
FGM or whether the BIA will revert to the approach taken in Matter of A-T- and
refuse to treat prior inflictions of FGM as bases for asylum.
153 See Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).
154 Bah, 2008 U.S. App. LEXIS 12407 at 46, 51.