QUICK ESCAPE FROM SITE

Immigration and asylum

Legislation and guiding policies on immigration and asylum on the basis of FGM should be developed within the framework of international human rights law. The United Nations High Commissioner for Refugees (UNHCR), recognizes “that a girl or woman seeking asylum because she has been compelled to undergo, or is likely to be subjected to FGM, can qualify for refugee status under the 1951 Convention relating to the Status of Refugees.” Furthermore, given “certain circumstances, a parent could also establish a well-founded fear of persecution, within the scope of the 1951 refugee definition, in connection with the exposure of his or her child to the risk of FGM.” (See:  UNHCR, Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009)

The UNHCR officially considers “FGM to be a form of gender-based violence that inflicts severe harm, both mental and physical, and amounts to persecution.” It also recognizes fear of undergoing FGM is a well-founded fear of persecution that can be related to membership of a particular social group, as well as political opinion or religion. “FGM is inflicted on girls and women because they are female, to assert power over them and to control their sexuality. The practice often forms part of a wider pattern of discrimination against girls and women in a given society.” In addition, the UNHCR recommends that FGM be recognized as a “continuing form of harm” such that a woman or girl who has already been subjected to FGM may still have a well-founded fear of further persecution.” (See: UNHCR, Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009)

The Council of Europe Parliamentary Assembly Report Doc. 12350, 26 July 2010, Gender-related claims for asylum calls upon member states to ensure that “gender-based violence and gender-related persecution is appropriately taken into account in any asylum determination process.” The Report specifically identifies FGM and “Honour Crimes” as legitimate bases for granting asylum.

Important elements of legislation and policies on asylum relating to FGM should include the following: 

  • Legislation should provide that the threat of FGM shall constitute persecution for the purposes of asylum law. Drafters should provide that those who may be subject to FGM should constitute a “particular social group” for the purposes of asylum law.  (See:  UN Handbook, 3.14) 

Illustrative Examples:

  •  United States: “In the Matter of Fauziya Kassinja, 21 I. & N. Dec. 357, Interim Decision 3278, 1996 WL 379826 (Board of Immigration Appeals 1996), the United States of America Department of Justice Board of Immigration Appeals granted asylum to a woman who had fled from Togo to avoid being subjected to female genital mutilation. However, this reasoning has not been consistently applied by the courts in the United States of America to all cases of gender-based violence.”  (UN Handbook, 3.14)
  • GermanyA woman from Cote d’Ivoire petitioned the administrative court in Maagdenburg for asylum on the basis that she was at risk of being subjected to FGM if she returned. The court determined that the government of Cote d’Ivoire would not likely protect the woman upon her return and that it was highly probable that she would be subject to FGM. The court held that performing FGM on a person against her will is a violation of her physical and mental integrity and recognized her right to asylum. (See: Female Genital Mutilation: A Guide to Laws and Policies Worldwide, p. 161) 
  • Legislation should provide that risk of undergoing FGM is a basis for asylum not only for the individual at risk but also for her predominant caretakers or family.  Legislation should provide that if a resident is at risk of FGM, she and her family may apply for residence status, even if the individual at risk is already a resident or citizen but her caretakers or family are not.  

Illustrative Examples:

  • United States: In Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004) the Sixth Circuit found that an Ethiopian girl and her mother both had a well-founded fear of persecution. The court held that since FGM is ubiquitous in Ethiopia, the daughter had a well-founded fear of being subject to FGM, and the mother’s fear of “being forced to witness the pain and suffering of her daughter” was well-founded.
  • Legislation should recognize FGM as a continuing harm and grant asylum based on past subjection to FGM. 

Illustrative Example: 

  • United States: In Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005), the Ninth Circuit granted asylum to a Somalian woman based on FGM.  The court held that FGM is a continuing harm analogous to forced sterilization.
  • United States: In Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), the Eighth Circuit held that a showing of past persecution by FGM was sufficient to establish a presumption of a well-founded fear of persecution because the applicant could suffer forms of persecution other than FGM in the future.
  • United States: In Matter of A-T-, an immigration judge reversed himself as well as a decision by the Board of Immigration Appeals (BIA) and granted asylum to a young woman who had suffered FGM and feared further persecution if she were returned to Mali. The judge had previously denied the woman’s petition in 2005 and that decision was upheld in 2007 by the BIA. The BIA’s decision resulted in a stricter legal standard for women seeking asylum based on past FGM than for other previously-persecuted applicants. In 2008, Attorney General Michael Mukasey set aside the BIA’s decision citing the interconnectedness of gender-based violence stating that past FGM may be indicative of future persecution. The BIA then remanded the case to the original immigration court for a re-hearing. See:  Breaking News: Tahirih Wins Key Immigration Case, WURN, 27 April 2011.
  • Legislation should provide for a woman whose status is dependant on her husband’s to receive independent status based on FGM for herself or her daughters. 
  • Drafters should be sensitive to the effect a criminal conviction may have upon the immigration status of a person who performs or procures FGM. In consideration to the best interests of a child, legislation should be carefully constructed to avoid subjecting to deportation those convicted of performing or procuring FGM who are also parents or otherwise caretakers to minors, where such deportation would leave children without parents or caretakers. Such awareness in drafting legislation would prevent criminal legislation from being used as a pretext for harassing members of a minority or refugee group that has traditionally practiced FGM but has immigrated to a country where it is illegal.
  • Drafters should ensure that health services and education on FGM are provided to all immigration and asylum seekers. Such services should include information on the risks of FGM, information for those who have already undergone FGM relating to complications especially during pregnancy, as well as the legal consequences of practicing FGM.

Tools:

Platform for International Cooperation on Undocumented Migrants, Strategies to End Double Violence Against Undocumented Women: Protecting Rights and Ensuring Justice (2012). This report offers a practical overview of methods that address discrimination and violence against undocumented survivors. It informs advocates about support services and methods to empower their clients by offering legislative, financial, and practical measures which have been used successfully in Europe. Available in English, French, and Spanish.

 Leslye Orloff and Rachel Little, “Improving Accessibility of Your Program’s Services to Immigrant Women,” Revolution Volume 4, 2011, p. 5. Available in English.

 

Promising Practice: United States – Mandatory information to immigrant and non-immigrant entrants regarding FGM

United States: The United States Citizenship and Immigration (formerly  Immigration and Naturalization) Services is required by law to provide information about FGM and the legal consequences of practicing FGM in the United States to immigrants and non-immigrants entering the United States from countries where FGM is widely practiced. The statute states: 

8 USC §1374 (2005) Information regarding female genital mutilation

(a) Provision of information regarding female genital mutilation

The Immigration and Naturalization Service (in cooperation with the Department of State) shall make available for all aliens who are issued immigrant or nonimmigrant visas, prior to or at the time of entry into the United States, the following information:

(1) Information on the severe harm to physical and psychological health caused by female genital mutilation which is compiled and presented in a manner which is limited to the  practice itself and respectful to the cultural values of the societies in which such practice takes place.

 (2) Information concerning potential legal consequences in the United States for

(A) Performing female genital mutilation, or

(B) Allowing a child under his or her care to be subjected to female genital mutilation, under criminal or child protection statutes or as a form of child abuse.

(b) Limitation

In consultation with the Secretary of State, the Commissioner of Immigration and Naturalization shall identify those countries in which female genital mutilation is commonly practiced and, to the extent practicable, limit the provision of information under subsection (a) of this section to aliens from such countries.

 (c) "Female genital mutilation" defined

For purposes of this section, the term "female genital mutilation" means the removal or infibulation (or both) of the whole or part of the clitoris, the labia minora, or labia majora. 

 For more information on FGM and asylum claims in the United States see:  Asylum Law and Female Genital Mutilation: Recent Developments, Yule Kim, CRS Report for Congress, 15 February 2008;  CGRS Advice- Female Genital Cutting Asylum Cases, Center for Gender and Refugee Studies (October 2007).

For reference to additional cases see Ageng’o, Expert paper p.5-9.

 Previous Topic Civil lawsuits