Female Genital Mutilation in US Immigration Law
What the Law Says About FGM in Asylum Claims
Female Genital Mutilation is a practice common among African tribes and often supported by families in which young women undergo a procedure to partially or totally remove external genitalia. There is often immense cultural pressure to undergo the practice, and the World Health Organization estimates that 100 to 140 million girls and women worldwide have undergone FGM, while about three million girls in Africa are at risk each year.
In the 1990s, FGM became a hot topic in the field of international human rights law and activism, with many NGOs and watchdog organizations calling attention to the issue. At the same time, women who were able to leave their countries attempted to use the risk of FGM as a basis for an asylum claim in immigrant-receiving nations.
The Basis for An Asylum Claim Under US Law
In the United States, an individual seeking asylum must first prove refugee status as defined by US law. According to the INA § 101(a)(42), a refugee has to be unable or unwilling to return to her country of nationality “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.”
The second part of the definition is known as the “nexus” requirement. Not only do young women have to prove a well-founded fear of FGM, and that FGM constitutes persecution, but they must show that persecution would be on account of one of the five grounds – that there is a sufficient nexus between persecution and the ground.
For FGM, the only available ground is “particular social group.” Before 1996, there was a question of what that term meant with regards to FGM – would the social group be all women? Only a certain group of women? In Matter of Kasinga, the US Board of Immigration Appeals answered that question.
FGM Is Persecution, but Court Offers Limited Guidance
In Matter of Kasinga (21 I. & N. Dec. 357), the Board said that FGM “can be a basis for asylum,” but offered a very limited holding, refusing to define “social group” broadly enough to provide predictability for future cases.
The Board held that the woman in question, a 19-year-old citizen of a tribe in Togo that normally performs FGM on women of the tribe at the age of 15, was eligible for asylum. The reasoning included a statement that FGM as practiced by the particular tribe constituted persecution and that the woman was a member of a social group “consisting of young women of the Tchamba-Kunsuntu tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.”
Though this was a victory for the woman in question, it provided little guidance for the future by defining the social group so narrowly. Subsequent decisions have consistently recognized FGM as persecution, but given the Board’s explanation that “The 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,” many legal scholars find it odd that the Board did not define the social group as all women. A woman would, of course, still have to prove a well-founded fear of FGM.
The complexity of this issue is reflected in the multiple concurring opinions in Kasinga. However, in the twelve years since the case was decided, courts have tended to allow claims as long as the facts are sufficiently proven, and US policy is clearly opposed to the practice on its own soil.
