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The Nation

Court Eases Asylum Rule for Genital Mutilation

Expanding an earlier decision, an appellate panel says the procedure constitutes persecution and makes a woman automatically eligible.

March 11, 2005|Henry Weinstein | Times Staff Writer

A woman who has been subjected to genital mutilation is automatically eligible for asylum in the United States, the federal appeals court in San Francisco ruled Thursday.

The decision is the second this week from the U.S. 9th Circuit Court of Appeals that has broadened asylum rights. Earlier, the court ruled in favor of asylum claims for men whose wives were subject to forced sterilizations.

The appeals court rejected the argument by government attorneys that female genital mutilation on its own cannot be a basis for a claim of past persecution because it is "widely accepted and widely practiced."

"The fact that persecution is widespread" does not make "a particular asylum claim less compelling," the court said in a 3-0 ruling, adding that a woman who has been forced to undergo the procedure has suffered a "continuing harm."

The 9th Circuit acted in a case filed by Khadija Mohamed, a young woman from Somalia. According to a State Department report, "virtually all" women in that country are subjected to one of several forms of genital mutilation. Court records indicated that Mohamed's clitoris had been surgically removed.

Forms of genital mutilation are common as coming-of-age rituals in more than two dozen nations in Africa and some in Asia, the Middle East and Latin America.

Since 1996, the U.S. government has recognized female genital mutilation as a form of "persecution" that could entitle a woman to political asylum in at least some cases. For example, women have been able to win asylum by proving that refusing to have the procedure would open them to retaliation.

The current ruling, however, breaks ground in saying genital mutilation is enough to allow an asylum claim to go forward because the procedure, itself, is a form of continuing persecution.

"Like forced sterilization, genital mutilation permanently disfigures a woman, causes long-term health problems and deprives her of a normal and fulfilling sexual life," Judge Stephen Reinhardt wrote for the court.

Reinhardt, who was appointed to the court by President Carter, was joined in the opinion by Judges David R. Thompson, a Reagan appointee, and Marsha S. Berzon, a Clinton appointee.

Stephen Knight, coordinating attorney at the Center for Gender and Refugee Studies at UC Hastings College of the Law in San Francisco, said the ruling broke new ground. "No circuit court has held until now that genital cutting represented 'continuing harm,' " he said.

The ruling could aid hundreds of women, but would not "open the floodgates," Knight said. Though genital mutilation is widespread, few of the women involved "have the wherewithal to get to the U.S.," he said.

His center has records of about 380 asylum cases involving female genital mutilation in the last six years, but no definitive figures exist, he said.

The court also said a woman would not need to prove that she was part of a particular ethnic or tribal group that was persecuted.

Because only women are subjected to genital mutilation, Mohamed could base her asylum claim on being part of a broader group of persecuted people -- the "social group comprised of Somalian females" -- the decision said. That ruling could apply to other situations, Knight noted. Mohamed's family fled Somalia after her father and brother disappeared during its continuing civil war. She lived in Ethiopia until four years ago when a woman there helped her get to the United States. At that point she was 17.

Mohamed previously was denied asylum by a federal immigration judge and the Board of Immigration Appeals.

In overturning that decision, the judges described female genital mutilation in detail, noting that it involved "the cutting and removal of all or some of a woman's external genitalia." The decision noted that the procedure is "extremely painful," and "often performed under unsanitary conditions with rudimentary instruments."

Under the court's decision, Mohamed will now be able to go back for a new asylum hearing, and the strength of the decision's language made it highly likely that she would win, said her attorney, Rochelle A. Fortier Nwadibia of San Francisco, who said she has represented dozens of women in such cases.

Mohamed, who lives in Oakland, said she was "really happy. It's been a long hard road for me."

Justice Department spokesman Charles Miller said the government was reviewing the ruling.

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