One immigration court says no.
When Alima Traore was a young girl in Mali, parts of her genitalia were cut off, which is the custom there.
“In my country, usually there is an old lady who does circumcision,” said Ms. Traore, who is 28, lives in Maryland and works as a cashier. “They have a small knife that they cut the intimate parts with. It is very atrocious.”
In September, the Board of Immigration Appeals rejected Ms. Traore’s plea for asylum and ordered her sent back to Mali. It ruled that she did not face persecution there, because the cutting, while “reprehensible,” could not be repeated. “The loss of a limb also gives rise to enduring harm,” the board said, but it would not be a good enough reason to grant asylum.
The board also said that Ms. Traore’s fear that any daughters she might have would be subjected to similar barbarity was of no moment. Nor did it matter that Ms. Traore’s father has said he will force her to marry a first cousin — his sister’s son.
The woman had parts of her genitals cut off, is being forced into marriage, fears her daughter will also be forced to undergo genital cutting, and will face serious consequences if she refuses forced marriage — but that isn’t enough to justify an asylum claim, because there isn’t a “risk of identical future persecution” (the full decision can be found here). I’m with Bonnie Goldstein:
In this latest case, however, the board stubbornly reasserted its earlier interpretation and rejected the higher court’s reasoning. It also took a hard line against Ms. Traore’s secondary plea that if returned to her village, she will be forced into marriage with her first cousin. “It is understandable that … an educated young woman would prefer to choose her own spouse rather than acquiesce to pressure from her family to marry someone she does not love and with whom she expects to be unhappy” (Page 5), the board concluded. But “we do not see how the reluctant acceptance of family tradition over personal preference can form the basis for a witholding of removal claim” (Pages 5 and 6). Nor could Ms. Traore prove, the board said, that her father, who stated in a letter that she must enter the arranged marriage “to uphold the reputation of our family” (Page 6), would take severe action if the wedding failed to occur. The board’s basis for believing this was that Ms. Traore’s father did not spell out what the anticipated punishment would be. Score another victory for traditional family values.
Anyone who’s familiar with these kinds of asylum cases has a pretty good idea of what the punishment for fleeing a forced marriage can be. And anyone who so much as reads the opinion can get an idea of how difficult it would be for this woman to avoid such a marriage (the court suggests that she re-locate within Mali, which is not exactly an easy task as a young single woman). This isn’t about “accepting family tradition” over her own “personal preference.” Jesus. It’s about her basic right to self-determination, and her right to refuse to hand over her rights and autonomy to another person against her will. Marital law in Mali does little for women. Marital rape is legal; polygamy is legal and widely practiced; and the law demands “wife obedience.” According to the U.S. State Department:
Family law favored men, and women were particularly vulnerable in cases of divorce, child custody, and inheritance rights, as well as in the general protection of civil rights. Women had very limited access to legal services due to their lack of education and information, as well as the prohibitive cost. For example, if a woman wanted a divorce, she had to pay approximately $60 (30,000 CFA francs) to start the process, a prohibitive amount for most women.
While the law gives women equal property rights, traditional practice and ignorance of the law prevented women, even educated women, from taking full advantage of their rights. A community property marriage had to be specified in the marriage contract. In addition if the type of marriage was not specified on the marriage certificate, judges presumed the marriage was polygynous. Traditional practice discriminated against women in inheritance matters, and men inherited most of the family wealth.
Women’s access to employment and to economic and educational opportunities was limited. Women constituted approximately 15 percent of the labor force, and the government, the country’s major employer, paid women the same as men for similar work. Women often lived under harsh conditions, particularly in rural areas, where they performed difficult farm work and did most of the childrearing.
Now why in the world would a woman be hesitant to marry someone against her will? Back to the Times article:
Last week, Ms. Traore’s lawyers filed a motion for reconsideration. They noted that the logic of the board’s decision was not always easy to follow.
The board acknowledged, for instance, that women who have been subjected to forced sterilization are routinely granted asylum even though that procedure, like genital cutting, cannot be repeated. The board, which is part of the Justice Department, rejected the reasoning of a 2005 decision by the federal appeals court in California, which refused to deport a woman who had been subjected to genital cutting in Somalia.
“Like forced sterilization,” Judge Stephen Reinhardt wrote for a unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, “genital mutilation permanently disfigures a woman, causes long-term health problems, and deprives her of a normal and fulfilling sexual life.”
That is an understatement, Professor Musalo said.
“The kind of physical and psychological devastation that goes along with female genital cutting is profound,” Professor Musalo said. “It results in sex that is absolutely torturous, that not only has no pleasure but is a locus point of pain and agony.”
Ms. Traore used simpler language.
“I don’t feel great in my body,” she said. “A woman needs to be complete.”
Professor Musalo had a theory about why the board treated forced sterilization differently from genital cutting. Sterilization affects procreation and motherhood, which are valued by men. Genital cutting, by contrast, affects only women’s sexual pleasure and autonomy.
I think that’s right on the money. The inability to produce babies for men is clearly an ongoing abuse; the inability to experience sexual pleasure — and, indeed, a risk of ongoing pain and infection from sex and childbirth — don’t count.
Here’s what the court deemed not serious enough to legitimize asylum:
Some 95 percent of women in Mali have undergone genital cutting, according to State Department reports. The procedure takes various forms, ranging from the removal of the clitoral hood to the excision of all of the external genitalia. Ms. Traore’s clitoris and vulva were removed.
The cutting is performed, a 2001 State Department report said, with “a special saw-toothed knife,” usually unsterilized and almost always without anesthesia.
I’ve written about asylum law before, and suffice it to say, it’s a mess. Gender-based asylum claims are difficult to argue, and a male-dominated judiciary means that claims like genital cutting and forced marriage may not resonate. The “War on Terror” has made the courts even more hostile to asylum-seekers whose actions can be branded as “aiding terrorism” or violating the persecutor bar (which says that if a person ever persecuted others based on race, nationality, religion etc, they’re barred from asylum), even if the person in question was acting under duress (i.e., they were literally forced to do whatever they did). Child soldiers, who are generally barred from asylum claims for their persecutor status, are a good example. And the structure of immigration courts makes it difficult to find good binding case law.
Overall, women have an incredibly difficult time proving that they’ve been persecuted and need asylum — and this case is just one example of a woman who our court system has totally and utterly failed.
Good on Adam Liptak for writing such a thorough and fair article. Hopefully it will help draw some more attention to this issue.