Mukasey actually got something right. And luckily, it’s a big, important thing.
The U.S. attorney general is trying to prevent immigration authorities from sending a Muslim woman to her home country, where she was a victim of female genital mutilation.
In a stinging order overriding federal immigration courts, Mukasey blasted a decision that said a 28-year-old citizen and native of Mali should be expelled “because her genitalia already had been mutilated [so] she had no basis to fear future persecution if returned to her home country.”
Calling the rationale “flawed,” Mukasey sent the case back to the Board of Immigration Appeals with orders to reconsider.
The woman, a native of Mali, begged the court not to send her back to her Bambara tribe.
The 28-year-old said if she returned and had a daughter, the child also would be subject to mutilation. The woman also said she faced forced marriage if she had to go home.
Mukasey cited what he concluded were two significant factual errors in the court’s rejection of her appeal.
“Female genital mutilation is not necessarily a one-time event,” Mukasey said. He noted that the board in a previous case had granted asylum in to one woman whose “vaginal opening was sewn shut approximately five times after being opened to allow for sexual intercourse and child birth.”
He also concluded that the Board of Immigration Appeals was wrong to assume that the woman “must fear persecution in exactly the same form [namely, repeat female genital mutilation] to qualify for relief.”
Mukasey had been urged to look into the matter by angered members of Congress in the wake of the January decision.
“This recent action taken by the Board of Immigration Appeals is a step backward for the rights of women worldwide,” declared Rep. John Conyers, D-Michigan, in a January letter.
“Female genital mutilation is a gross violation of a woman’s human rights and has traditionally been grounds for the granting of an asylum claim,” Rep. Zoe Lofgren, D-California, said in the letter.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, issued a statement applauding Mukasey’s action, and declaring female genital mutilation a “barbaric practice widely regarded as a human rights abuse.”
The Justice Department acknowledged it is extraordinarily rare for an attorney general to jump into a relatively low-level immigration case. The immigration courts decide about 40,000 cases a year, and an attorney general has issued an opinion on a case only three times in the past three years.
Female genital mutilation is common in parts of Africa, Asia and in some Arab countries, according to the United Nations. The operation is viewed by some ethnic groups as a means to control a woman’s sexuality and is sometimes a prerequisite for marriage or the right to inherit.
The procedure can cause tissue injury, severe infection and fever, among other complications. The U.N. has recorded cases in which hemorrhaging and infection lead to death.
This is an incredibly important step. Asylum law in the United States is tricky business, and asylum cases premised on gender-based violence are hard to win. Basically, in order to get asylum, you have to prove that you have a well-founded fear of being persecuted on account of one of five categories: race, religion, national origin, political opinion, or membership in a particular social group. Asylum is also discretionary in the United States; it’s not a right. Gender-based cases are some of the most difficult, because women all around the world face staggering levels of violence and persecution just because they’re women — but because women make up half the world’s population and there are simply too many persecuted women to ever reasonably accommodate through asylum proceedings, gender isn’t one of the recognized asylum categories. It’s circular reasoning, but it passes for reasonable law-making.
Further, asylum requires the threat of ongoing persecution — and as the FGM cases illustrate, certain acts of gender-based violence are seen as one-time, completed actions as opposed to one piece of an ongoing system of harm and persecution. So, the reasoning goes, since a woman’s genitals are already cut, there’s no fear of ongoing persecution.
No asylum case is easy, and the behind-the-scenes process often gets lost of the political dialog. Usually, the person applying for asylum is already in (or almost in) the country of desired residence. They have almost always gone to incredible lengths to escape their previous situation — spend a few minutes reading the backstories to asylum cases and your heart will break. Genuine asylum-seekers have lived through things that most of us could never imagine; they often have PTSD to match their physical scars. And, usually with no psychological help and no counseling and very limited legal assistance (if any), they get up in front of an asylum judge whose sole role is to try to come up with some reason to deny them residence, and they tell their stories. They tell those stories again and again, going over ever minute detail as the judge looks for any inconsistency, any reason to send them back where they came from. There is no entitlement to asylum, and asylum-seekers have voluntarily placed themselves in a system that could remove them with no cause and with extremely limited opportunities to appeal.
And that’s just the tip of the iceberg. “Persecutor bars” block any asylum-seeker who has ever been found to have persecuted someone else based on one of the five protected categories — which sounds well and good, except that there’s no exception for infancy or duress. So child soldiers, for example, who are manipulated, brainwashed, drugged, threatened and often forced to commit acts of atrocity are ineligible for asylum. “Terrorism bars” block any asylum-seeker who is tied in any way, shape or form to groups deemed “terrorist organizations” — so if a guy in Turkey donates some money to his mosque or to a local charity, and unbeknownst to him some of that money is given to Hamas, he doesn’t get asylum. Or, if a member of a terrorist organization extorts money from him — say, threatens to kill his family unless a payment is made — the asylum-seekers has aided and abetted a terrorist organization.
The reality is that a lot of these cases are decided on an individual basis and the decisions aren’t published, so some individuals who could be barred because of flaws in the system manage to get through. But far more often, people who have lived through horrific persecution and look forward to a life of continued violence if deported are turned away — if they even manage to get to our shores in the first place.
So (assuming that the BIA does take another look at the case), this is a major victory for human rights, for asylum advocacy, and for this woman. Mr. Mukasey deserves a lot of credit for taking a stand on this issue, and opening the door for other women to escape abuse and persecution. And of course, the immigrants’ rights and feminist groups that work on these issues day in and day out, and that do the heart-wrenching direct advocacy work for asylum-seekers, deserve a big round of applause for a success well-earned.
But mostly, the woman from Mali deserves our respect and our admiration. Finding the courage to speak about abuse again and again, in front of an unsympathetic and often cruel audience in a foreign country with an unfamiliar legal system, after escaping persecution and with little legal or social support, is no easy feat. But, like thousands of other women and men, she did it. And with any luck, because of her courage other women in similar circumstances — other women who against all odds also find the power to speak out — will be able to stay here, too.