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Female Genital Mutilation Constitutes Persecution in Asylum Law

Posted by Gutierrez Law Firm on April 24, 2013

Contributed by Lauren Williams, staff writer for the Law Office of Randolph Wolf

Disclaimer: This article is not intended as legal advice and does not reflect the opinions of the Gutierrez Law Firm.

In Asylum cases, ‘persecution’ means a serious threat to the life or freedom of the asylum applicant.  To be eligible for asylum, the applicant must prove that he/she is the victim of past persecution or fears future persecution in his/her home country or the county of the last residence.  The basis of persecution can be on at least one of the five grounds:

  • Race,
  • Religion
  • Nationality
  • Political Opinion or
  • Membership in a particular social group

If the applicant did not experience persecution in the past, he/she can still qualify for the asylum, if he/she fears persecution in future.

It is well settled in the United States that the female genital mutilation on account of membership in a particular social group can constitute persecution under Asylum law. In a 2009 case, the Ninth Circuit Court found that the genital mutilation of the petitioner’s daughter constituted persecution and remanded the case to the lower court to determine whether the petitioner is qualified for asylum.  The petitioner was a Muslim and his wife was a Catholic.  The petitioner alleged in his application that he and his family suffered persecution while they were in Indonesia, his home country.  His wife was ill-treated by his family-members, friends and the society in Indonesia on the basis of the religion supported by the Indonesian Government.  His elder daughter suffered forced genital mutilation at the directions of his step-mother and he was under fear that his younger daughter may become a victim of female genital mutilation if he and his family return to Indonesia.  (see Benyamin v. Holder, 579 F.3d 970 (2009)

In the United States, the practice of genital mutilation of female minors has been prohibited by the federal law since 1996. (see 18 U.S.C.S. § 116)  The possible immediate complications of all types of female circumcision or female genital mutilation include severe pain and bleeding.  If the bleeding is not stopped, it can lead to anemia.  The anemia can severely affect the growth of the girl and may result in life-long weakness.  Shock can also result from the bleeding.  If the cutting instruments are not sterile, it can cause infection.  The genital mutilation can also cause psychological impacts in the victim.

In Benyamin, the Ninth Court held that the genital mutilation suffered by the petitioner’s daughter is a past persecution which is a sufficient ground for asylum.

In Abay v. Ashcroft, 368 F.3d 634 (2004), the Sixth Circuit Court held that the petitioner mother could seek asylum in her own right based on her fear that her daughter would be subjected to the female genital mutilation.

If an asylum applicant establishes a well-founded fear based on the past persecution by genital mutilation, she normally creates a rebuttable presumption.  This presumption may be rebutted by proper evidence showing that there is fundamental change in circumstances in the country and the applicant has no longer fear of persecution.  In Mohammed v. Gonzales, 400 F.3d 785, the Ninth Circuit Court dismissed this theory of rebuttable presumption comparing  female genital mutilation to forced sterilization which has been classified as a continuing harm that makes the applicant eligible for asylum.

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