Virginia Ponder, a student in Professor Birdsong’s spring Refugee Law seminar, has written an excellent paper that examines whether a parent who opposes female genital mutilation, and fears the mutilation of her child, raises a valid claim for protection under U.S. asylum law?  The circuit court responses thus far have been diverse.  Ms. Ponder has given permission to post her paper on the blog.  Read it and see what you think.



Virginia L. Ponder

 God has blessed me.  He made me suffer but He also blessed me. 

I am safe and free in America, surrounded by people who love me. 

Others are not so fortunate.  They are being held in prisons, being

denied asylum, and being sent back to terrible forms of suffering. 

My friends, all the friends I made in prison, cried for joy for me

the day I walked into freedom.  [1]                                                                                                                                                       I.            Introduction

Almost fourteen years ago in the landmark decision In re Kasinga[2], the Board of Immigration Appeals, the highest administrative authority interpreting asylum law, found Female Genital Mutilation[3] (FGM) to be a form of persecution warranting a finding of asylum.  Kasinga’s claim was based on the risk she would be subjected to FGM if returned to her home country and the decision established basic doctrine favorable to such a claim.[4]  It was a milestone in the consideration of gender related asylum cases and advanced protection for women who fear FGM.  Currently a new question regarding FGM is circulating in our immigration courts.  Does a parent who opposes FGM, and fears the mutilation of her child, raise a valid claim for protection under U.S. asylum law?  The circuit court responses thus far have been diverse. 

The “parent-child FGM issue” most commonly presents itself when a non-US citizen parent asserts asylum, withholding of removal, or protection under Convention Against Torture [5](CAT) because she fears her US citizen or resident daughter will be subjected to mutilation should the mother herself be removed to her home country.  Thus, the child has the right to stay in the United States, the parent does not and faces a Hobson’s choice, leaving the daughter behind or taking her to face certain mutilation in her home country.   

From 2002 to 2010 nine circuits have decided seventeen cases in which alien parents sought relief based on the fear that their daughters would face FGM if deported. [6]The decisions have resulted in a circuit split.  One avenue seemingly foreclosed in any circuit considering this question is a claim by the parent for “derivative asylum.”  “Derivative asylum” refers to the protected status statutorily afforded to an asylee’s spouse or dependent child, but significantly, the statute does not provide derivative asylum to parents of asylees.[7]   Thus, courts have interpreted this instance of statutory silence as a prohibition against granting parents derivative asylum status. 

Another theory is that the forcible FGM of the child against the parent’s will causes the parent such severe emotional harm it rises to the level of persecution.  The harm experienced by the parent, though indirect, is extremely grave.  It can include witnessing their child suffer from the cutting, both in the short term and in the long term, and the feeling of failing as a parent as the child’s protector.  For the mothers who have undergone the procedure themselves, these feelings will be even more amplified, a reliving of their own experience.  This theory has explicitly been given the green light in the Sixth Circuit with its decision in Abay v. Ashcroft. [8]  The court found Ms. Abay eligible for asylum based on her fear of FGM being inflicted on her daughter if returned to Ethiopia.[9] 

Following a class discussion of our assigned reading of Matter of Kasinga[10], I began to remember seeing her on television and the general publicity surrounding the decision.  Interest renewed, I read her stunning memoir titled Do They Hear You When You Cry, which she co-authored with her attorney Layli Miller Bashir.  Fauziya Kasinga belonged to the Tchamba-Kunsuntu tribe in Togo, which traditionally subjected its daughters to FGM at about age 15, as a regular ritual expected of all women.  Kasinga was protected from mutilation by her influential father who opposed the practice.  When Kasinga was sixteen years old, her father passed away and a paternal aunt took over authority in the family, arranging Kassinga to marry a much older man with three wives already and scheduled her FGM.  Her sister would help her flee Africa literally hours before being forced to undergo the ritual.  Kasinga after arriving in the United States spent a horrific sixteen months behind bars, before finally achieving political asylum on June 13, 1996. 

Her story, the injustices and her ultimate triumph of liberty, have an almost fairy tale quality.  Captivated by her story, I began researching the subject of FGM, and was struck by the current swell of litigation regarding parent-child FGM claims.  The decisions regarding this question trouble me in that they seem to disrupt and undermine the protection afforded by Kasinga, as well as violate the humanitarian aims of refugee law. 

This paper examines a range of relevant decisions in the parent-child FGM context and advocates for the wide adoption of the Abay decision.  The parents seeking refuge in the United States can have independent asylum claims focusing on the parent’s own harm, the psychological trauma of being unable to prevent their daughter’s mutilation in violation of the their deeply held beliefs. 

                                                         II.            The granting of Asylum in the United States: A Brief Overview

The law of asylum in the United States derives from international law, and was developed to provide a safe haven for individuals fleeing persecution.  The fundamental right to seek asylum is guaranteed by the 1951 United Nations Convention relating to the Status of Refugees. [11] The United Nations later strengthened the Convention by eliminating its geographical and temporal limitations in the Protocol relating to the Status of Refugees.[12]  The United States codified refugee production and the procedures for asylum in the Refugee Act of 1980, made part of the Immigration and Nationality Act (INA).[13]   

As an initial requirement to gain asylum in the United States, the applicant must establish that she qualifies as a “refugee” under the appropriate statutory definition.[14]  Congress defined a “refugee” as a person who, because of past “persecution or a well-founded fear of [future] persecution,” is unwilling or unable to return to his home country.[15]   Eligibility for asylum can be achieved if the asylum applicant demonstrates she has been subjected to past persecution based on “race, religion, nationality, membership in a particular social group, or political opinion….” [16]  Proving past persecution creates a rebuttable presumption that the applicant possesses a well-founded fear of future persecution if he returns to their native country.[17]  The presumption can be rebutted if the Government shows country conditions have changed, or that the persecution is not country-wide and the persecution can be avoided by resettlement in another part of the applicant’s native country.[18]  The Government must also demonstrate that the internal relocation would constitute a reasonable resolution.[19] 

An applicant may also establish asylum eligibility by demonstrating a well-founded fear of future persecution, which requires the alien present credible testimony she subjectively fears persecution and establish that her fear is objectively reasonable.[20]   Thus, the applicant must establish both a subjective and an objective element.[21]  In I.N.S v. Cardoza-Fonseca, the Court elaborated on this relationship between the subjective and objective elements:  “That the fear must be “well-founded” does not alter the obvious focus on the individual’s subjective beliefs, nor does it transform the standard into a “more likely than not” one. One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.”[22]   Thus, the two central questions for asylum relief are whether the conduct complained of rises to the level of “persecution, and if so, whether that persecution was “on account of one of the five enumerated grounds.

                                                                                                                          III.            Female Genital Mutilation

FGM is defined by the World Health Organization (WHO) as involving the “partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” [23] The WHO estimates between 100 million and 140 million girls & women have been subjected to mutilation worldwide. [24] Communities continuing the practice of FGM do so for a variety of social and religious reasons.  For example, some communities advocate the procedure imparts on a girl a sense of pride, a coming of age and admission to the community.[25]  Other communities perceive the female genitalia as unclean, and the procedure as a way to confer bodily cleanliness and beauty on a girl.[26] 

Regardless of the type[27] of FGM, it is recognized internationally as a form of violence against women and girls in violation of human rights due to the life-long physical and psychological trauma.[28]  The WHO has declared FGM as “discrimination based on sex because it is rooted in gender inequalities and power imbalances between men and women and inhibits women’s full and equal enjoyment of their human rights.”[29]  Girls and women subjected to FGM lack any independent decision regarding the submission of their body to this excruciating procedure which imposes immediate and long lasting health issues.     

A.   FGM’s impact on a woman’s health

FGM is an invasive procedure that has serious and lasting effects on women, both physically and mentally.  The most common, indeed obvious, short-term consequences from any form of FGM are severe pain and bleeding.[30]   The majority of the procedures are conducted without anesthesia and thus the resulting pain can produce a state of shock.[31]  Urinary retention is common and infections frequently occur due to the often unhygienic conditions or instruments, and can include “potentially fatal septicemia and tetanus.”[32]    

Long after the “healing” process is complete many women remain at risk of further physical health complications such as painful periods, chronic bladder infections, urinary incontinence, keloids[33], vulvar abscesses, and infertility. [34]   A vast range of psychological harms are caused by this agonizing procedure, including post-traumatic stress disorder, anxiety, depression, and suicidal thoughts and actions.[35]   Many women are unable to enjoy sexual intercourse because they cannot mentally dissociate their genitals from the excruciating pain and suffering they experienced due to the lack of anesthesia.[36]

B.   The FGM experience of Three Guinean women

Salimatou Bah, Mariama Diallo, and Haby Diallo, women of the Fulani ethnic group, applied for asylum in the United States claiming their victimization of FGM as children resulted in various long-term effects.[37]  Salimatou was eleven when taken by her mother and aunt to “small area fenced with wood and stuffed with coconut leaves.” [38]  Five elderly women restrained her, preventing her efforts at escape, and performed FGM on her.[39]  During the mutilation, Salimatou screamed and was in pain throughout her body.[40]  Salimatou later experienced menstrual problems, had difficulties during childbirth, and lacks any feelings of sexual pleasure during intercourse.[41]

Mariama’s aunt and grandmother arranged her mutilation when she was eight years old, despite her parents’ opposition to the practice.[42]  Mariama remembers being in continuous pain and bleeding excessively for a month following the mutilation.[43]  Like Salimatou, she experienced complications during childbirth and has limited sexual satisfaction.[44]

Haby was also eight years old when three elderly women took her into “the bush” to be mutilated.  One held her “while another spread her legs apart and the third performed the mutilation with a knife.” [45]  Haby recalls that despite the subsequent heavy bleeding she was not taken for medical treatment but instead received “traditional medicine.”[46]  Haby has experienced the familiar consequences of problematic and painful menstrual cycles and a sex life devoid of pleasure.[47]

                                                                                                                                   IV.            FGM JURISPRUDENCE

A.   Matter of A-T – Mukasey to the Rescue

While the Matter of A-T did not involve a parent-child claim it is illustrative of the unpredictability of BIA decisions regarding FGM.[48]   The Traore Board held Alima Traore, a 28-year-old woman from Mali, was ineligible for asylum in the United States because she had already suffered female genital mutilation (FGM), and therefore could not fear it happening again, thereby distinguishing Traore’s case from Kasinga’s who had not yet undergone FGM.[49]

This disturbing ruling drew widespread public criticism.[50]  The decision ran counter to the decisions of four circuit courts of appeals, but served as binding precedent for all U.S. immigration courts.[51]  Therefore, even if victims of FGM could eventually make it to a court of appeals that favored their cause, they would have to go through a costly and litigious process to do so.  In an action that seemed to all but confirm the fears of those at arms over the decision, Immigration and Customs Enforcement asked an immigration judge in at least one instance to reopen a past asylum case for a FGM victim for rehearing in accordance with Matter of A-T-.[52]

U.S. Representative Zoe Lofgren (D-CA) joined with Chairman John Conyers (D-MI) in co-signing a letter to the Attorney General Michael Mukasey, calling attention to the defective BIA ruling and requesting the Attorney General to certify the case for further review.[53]  On September 22, 2008 in a rare move Attorney General Mukasey concluded the BIA’s decision of the Matter of A-T was flawed and vacated the decision.[54]  Mukasey made clear the BIA was wrong in its assertion FGM is “a ‘one-time’ act that cannot be repeated on the same woman.”[55]  Mukasey pointed to numerous cases contradicting this premise, including a case decided after Traore’s where a petitioner’s vaginal opening was sewn shut five separate times ‘after being opened to allow for sexual intercourse and child birth.’[56] 

Mukasey remanded with instructions to define Traore’s social group, inasmuch as the Board never clearly defined her social group for withholding of removal and re-determine the case in accordance with his decision.[57]   Mukasey did not define this social group for the BIA, but he did offer up some guidance in that area suggesting the BIA look at Traore as a Mulim woman from her named tribe.[58] 

B.   Parent-child FGM claims and the Current Circuit Split

1.  The Second Circuit

In February of this year the Second Circuit in Kone v. Holder [59] granted a petition for review in favor of a woman from the Cote d’Ivoire (Ivory Coast) whose claims for asylum, withholding of removal and CAT relief, were based on her past subjection to FGM and her fear her two U.S. citizen daughters would also suffer the similar fate if deported to the Ivory Coast.  While in the context of parent-FGM claims, this case will be an exciting chance for progress in the case law, it also illustrates the difficulties in our immigration courts of perfunctory legal analysis and lack of attention to the facts by the court as well as inadequate advocacy.

The IJ found Ms. Kone’s account of her own FGM experience credible and that this constituted persecution.[60]  However, the IJ found her voluntary return trips to the Ivory Coast rebutted the presumption of future persecution.  The IJ rejected Kone’s other claims of persecution on adverse credibility findings primarily in light of Kone’s voluntary returns to the Ivory Coast and his belief she was employed by the government.[61]  Regarding Kone’s daughters, the IJ held Kone did not have standing to assert a claim for asylum or withholding of removal based on a fear that her daughters would be mutilated if Kone were deported to the Ivory Coast.[62]  Lastly, the IJ denied CAT relief, finding in a “cursory manner” that Kone failed to demonstrate it was more likely than not that she would be tortured if she returned to the Ivory Coast or that she could not receive protection from the government there.[63]   The BIA simply adopted and affirmed the IJ’s decision in a brief opinion.[64]

The Court in discussing the issue of Petitioner’s return trips concluded the IJ and the BIA improperly placed the burden on Ms. Kone to demonstrate likelihood of future persecution.[65]  The Court faulted the IJ’s cursory analysis of the issue, and stated the mere fact of such trips, standing alone, does not suggest either a fundamental change in circumstances or the possibility of internal relocation such as to rebut the presumption in the petitioner’s favor.[66]  The court further commented on this area of the law declaring:

The government cannot satisfy its burden to demonstrate that Kone will

not be threatened simply by showing that she enjoyed periods with no

no new persecution or that she will not perpetually be persecuted in her

 native country.[67] 

The court made the common sense observation that there are various circumstances in which a person may well risk persecution to return to her home country despite previous persecution or a well-founded fear of persecution.  Thus, it declared a more nuanced consideration of the circumstances of such returns is required.  It likewise stated there was absolutely no evidence in the record that Ms. Kone ever worked for her government in any capacity, debunking the other basis for the adverse credibility finding.  The court evidently resorted to conjecture  based on the name of Kone’s employer, “National Agency for Rural Development,” despite evidence to the contrary in the record.[68]  The court accordingly remanded the case.

In addition to remanding, the court indicated the parties and the agency may wish to consider the issue of “humanitarian asylum” in as much as they “appeared to have over looked this option.”[69]  The court cited to a case in which the Board recognized that humanitarian asylum may be appropriate in certain FGM cases.[70]  The court in dicta directly addressed the current circuit split on parent-FGM claims of asylum or withholding of removal, concluding that the “viability of Abay’s non-derivative theory of asylum grounded in a parent’s psychological harm” in having to observe their child’s pain and suffering, has yet to be tested in their circuit and thus no examination of it is given.[71] 

The court provided a very well laid out analysis that inviting on remand well crafted arguments regarding not only humanitarian asylum but also asylum and withholding of removal.  This circuit seems ready to address the Abay non-derivative theory, and the facts of this case provide the vigilant advocate with an opportunity to progress the case law in this area. 

2.  The Fourth Circuit

The June 2007 decision of Niang v. Gonzales[72]dealt advocates for parent-child FGM claims a hard blow in upholding the BIA’s denial of withholding of removal to Ms. Niang, a Senegalese mother who suffered FGM as a child, and feared if deported to Senegal her young U.S. citizen daughter would be forced to undergo FGM.   The Niang court announced a per se rule that psychological harm without “accompanying physical harm” cannot establish persecution.[73]  In reaching this holding the court ignores precedent in many circuit courts as well as the BIA, which found persecution determinations must be made on a case-by-case basis[74] and that persecution need not be physical in nature.[75]  Upon making the determination that non-physical harm could not establish persecution, Ms. Niang’s claim of suffering upon her daughter’s mutilation necessarily failed.

Parent-FGM claims thus face steep hurdles in the Fourth Circuit due to its rejection of physiological harm as a sole basis for persecution.  A parent could still base a claim for protection on the harm she would face for opposing FGM, as long as she evidenced the harm included a physical component and not purely a psychological one. 

3.  The Fifth Circuit

In 2003, in an unpublished opinion, Osigwe v. Ashcroft, [76] the court held parents are “not eligible for asylum under the general asylum provisions based solely on their daughter’s risk of being subjected to FGM.”[77]  Providing very little analysis the court remanded for consideration on a humanitarian grant based on Ms. Osigwe’s past persecution, and made no comment on its rejection of the parent-child FGM claim. 

Between 2004 and 2007, two other parent-child claims were presented to the Fifth circuit but were rejected on procedural grounds.[78]  The more recent decision of Kane v. Holder[79] on the issue does not make the Circuit’s position of these claims any more clear.  The Court following other circuits made clear its rejection of a parent’s derivative asylum or withholding of removal in the context of genital mutilation.[80]  The court also ruled that it could not address the petitioner’s efforts to pursue an asylum claim as he had failed to file a separate petition for review to challenge the BIA’s denial of a reconsideration motion in that regard.[81]  Thus, an argument available to the alert advocate in the Fifth Circuit is whether harm to a child imparted with the intent of emotionally harming the parent might provide a basis for a parent’s individual claim. 

4The Sixth Circuit

The decision of Abay v. Ashcroft[82]  is the most positive decision to date on parent-child FGM claims.  Ms. Abay and her then nine year old daughter, Burhan Amare, traveled from Ethiopia, where they were of Amhara ethnicity, to the U.S. as visitors in 1993 and later submitted asylum and withholding of removal applications.[83]  Ms. Abay acknowledged to the court the lack of statutory authority for a parent to claim “derivative asylum” based on her child’s asylee status.[84] Instead she argued she was eligible for asylum in her own right based on her fear of being unable to prevent her daughter, Amare’s subjection to FGM.[85] 

The court in considering her claim for asylum first found protection in a decision where a family member can claim asylum based on the physical harm of another family member. [86]  The court quoted the BIA’s decision in Matter of C-Y-Z,[87] commenting it “not only constitutes persecution for the asylum applicant to witness or experience the persecution of family members, but it serves to corroborate his or her own fear of persecution.”[88]   Additionally, the court pointed to authority of IJ and BIA grants in parent-child FGM cases.[89]  The Sixth Circuit determined in light of the decisions cited, there is a “governing principle in favor of refugee status in cases where a parent and protector is faced with exposing her child to the clear risk of being subjected against her will to a practice that is a form of physical torture causing grave and permanent harm.”[90]

The court acknowledged the factual significance of the “near universal” practice of FGM in Ethiopia and that Ms. Abay underwent the procedure herself making her more intimately aware of the consequences.[91]  The court concluded Ms. Abay met the refugee definition because of her “fear of taking her daughter into the lion’s den of female genital mutilation in Ethiopia and being forced to witness the pain and suffering of her daughter . . .”[92]

5.   The Seventh Circuit –Fraught with Inconsistency

The Seventh Circuit has taken a powerful, though questionable, position against the theory that the child’s FGM constitutes persecution to the parent.  In Nwaokolo v. Ashcroft,[93]the first Seventh Circuit decision on parent-child FGM claims, the court’s decision showed openness to the theory.  Ms. Nwaokolo, a Nigerian woman whose applications from relief and whose three Motions to Reopen had been denied previously, reapplied a fourth time for protection under the CAT based on her fear that she and her then four year old U.S. citizen daughter would be subjected to FGM if forced to return to Nigeria. 

The court took judicial notice of the rate of FGM in Nigeria, and found the BIA had not properly considered the threat of FGC to Ms. Nwaokolo’s youngest daughter, Victoria.[94]  The court noted the older daughter, Rachel, then thirteen, might be capable both physically and mentally to resist FGM more than her younger sister Victoria at age four.  Importantly, in its discussion of the BIA’s errors the court stated the BIA abused its discretion when it concluded without explanation, and in the face of its own recognition of Kasinga of the serious threat FGM poses to its victims, That Rachel’s and Victoria’s interests are one in the same.” [95]  The court further acknowledged Victoria would “have no choice” but to return to Nigeria with her mother even though she was a U.S. citizen and legally entitled to remain in the U.S.[96] 

However, just a short year later the Seventh Circuit took a very different approach, holding “an alien parent who has no legal standing to remain in the U.S. may not establish a derivative claim for asylum by pointing to potential hardship to the alien’s U.S. citizen child in the event of the alien’s deportation.” [97]  Ms. Oforji, already subjected to FGM in her home country of Nigeria, feared for her two U.S. citizen daughters if forced to return home and testified that in her tribe the punishment for refusing to mutilate one’s daughter was death. [98] The court characterized the parent-child claim as “derivative” and found no basis in law for a derivative CAT claim.[99] 

The court acknowledged the “choice” being decided here, calling it “distasteful” and “Solomonic,” but that declared the solution was legislative not judicial. [100]  The court concluded the hardship to a child resulting from her parent’s deportation could only be considered when the child faces “constructive deportation.”[101]   In distinguishing Salameda, [102] a suspension of deportation case, where the court held a non-citizen child would have been deported with his parents and therefore hardship to the child should have been considered by the agency, the court limited claims of “constructive deportation” to the suspension of deportation and cancellation of removal contexts.[103] 

Judge Posner in his concurrence specifically stated that the only condition the girls This is incomprehensible in light of the fact that the record indicated there were no relatives living in the United States, capable of caring for the two girls, that the older child’s father was thought dead or in Nigeria, and the record was void concerning the father of the younger child.  Judge Posner, in his concurrence called attention to the inequitable decision commenting the only circumstance in which the girls could remain in the U.S. while their mother returned to Nigeria would be that as foster children.   

In Olowo v. Ashcroft, [104]Ms. Olowo applied for asylum and withholding of removal based on her fear that her two young daughters, lawful permanent residents, would be subjected to FGM in Nigeria.  Again the court reiterated its reasoning in Oforji, characterizing the claim as derivative and stating that derivative asylum only applies where the child faces constructive deportation along with the applicant.  Thus since here, Ms. Olowo’s daughters were legal permanent residents, as was their father, they are under no compulsion to leave.[105] 

The court went beyond merely denying Ms. Olowo’s claim.  The court directed the Government’s attorney to alert the state authorities “that despite the children’s right to remain in the United States, Ms. Olowo plans to take her daughters with her to Nigeria” where they face risk of having to undergo of FGM.[106]   It further ordered the clerk to inform the Illinois Department of Children and Family Services of the opinion. [107]   Olowo extinguishes any claim in the Seventh Circuit based on the theory the child’s FGM constitutes persecution to the parent. 

6.  The Eighth

The 2007 decision in Hassan v. Gonzales[108] indicates support for parent-child FGM claims.  Ms. Hassan, a native and citizen of Somalia, entered the United States in 1997 and applied for asylum in Atlanta, Georgia that same year. [109]  Most interestingly, the IJ in Atlanta on its own accord granted asylum concluding if Ms. Hassan were deported to Somalia, her U.S. citizen daughters would be subjected to FGM.[110]  The Government appealed on the basis of the lack of testimony on the FGM issue, the BIA agreed and remanded to the immigration court.[111]  The Venue was changed to Minnesota, where Ms. Hassan was denied asylum.[112]  

The IJ concluded and the BIA agreed that FGM did not qualify Ms. Hassan as an asylee and if she was deported to Somalia, her daughters could remain in the U.S. with the father, an asylee.[113]  Ms. Hassan argued she qualified for asylum both because her own FGM experience qualified her and because her daughters would be subjected to FGM if they accompanied her to Somalia. [114]  The court found Ms. Hassan’s past FGM should entitle her to a grant of asylum.  In remanding to the BIA to consider the merits of Ms. Hassan’s fear of her daughters’ FGM, the court noted the erroneous assumption of the IJ that the children could remain in the U.S. with the father despite evidence in the record he had been removed to Somalia.[115]

The remand is a noteworthy statement of the state of parent-child FGM claims in this circuit.  Both the ripeness and the Court’s framing of the issue make this an exciting case to watch on remand.  Unfortunately, we will likely have to wait for another case and another set of prepared advocates for more development on the issue in this circuit.  Ms. Hassan fled to Canada in order to protect her two daughters and reportedly obtained status in that country.[116]  However, Ms. Hassan has not provided her council here in the states with the type of protection she received or confirmation of that protection.

7.  Ninth Circuit

The Ninth Circuit, yet to rule on the merits of an asylum or CAT claim based on the parent-child theory but has recognized its validity in both Azanor v. Ashcroft[117] and Abebe v. Gonzales.[118]

In Azanor after being denied asylum on other grounds in her first case, Ms. Azanor filed a Motion to Reopen based on her fear her U.S. Citizen daughter would be subjected to FGM in Nigeria if they were deported. [119]  The Board denied the motion finding it untimely regarding the asylum and withholding claims.[120]   The Board denied the CAT claim based on Ms. Azanor’s failure to show she would be tortured while in the custody of a government official. [121]

            On appeal the Ninth Circuit addressed the denial of the motion to reopen the CAT claim first, determining the Board abused its discretion to the extent it required that the torture be conducted while in the custody of a government official. [122]  The court made clear that the statute was clear on its face regarding the correct legal standard as well as case law, which demonstrate a public official need only be aware of, and fail to intervene in, torture by a private actor.[123]  The Government argued BIA’s misrepresentation of section 208.18 was not material because Ms. Azanor did not have a valid legal claim in light of the Seventh Circuit’s decision of Oforji and by the fact that the petitioner’s daughters could remain in the U.S.[124]  The court refused to even consider the Government’s contentions because their review was solely for an abuse of discretion, and thus could not use their own independent analysis of the record.[125]    Unfortunately, due to the Board’s “terse” conclusion, it was necessary to remand for additional explanation.[126]   The court explicitly, and properly, avoided analyzing the question of whether or not a parent could assert a torture claim based on harm to her U.S. citizen child, commenting as a matter of first impression agency expertise necessitated a remand.[127]

            In 2004 the Ninth Circuit appeared to join worrisome reasoning of the Seventh Circuit, as did the Fifth in Osigwe,[128] with its decision in Abebe v. Gonzales.[129] However, interestingly a majority of the Circuit, voted to rehear the case en banc.[130]  Upon rehearing,[131] the Court ruled the couple had a well-founded fear that their daughter would be subjected to FGM in Ethiopia, vacated the portion of the IJ’s decision to the contrary, and remanded the case to the BIA to consider the parents’ eligibility for asylum on this basis, on which neither the IJ nor the BIA had ruled.[132]

In a recent case, Benyamin v. Holder[133] the court displayed further openness to the parent-child FGM claim.  The court held both the IJ and BIA erred in concluding Mr. Benyamin failed to establish his daughter Annisa had endured past persecution by FGM, and the Board also erred in neglecting to consider whether Mr. Benyamin established a well-founded fear of future persecution based on the possibility his daughter Anakarina would be required to endure FGM if deported to Indonesia.[134]  The court ordered the BIA to consider “in the first instance whether Benyamin may derivatively qualify for asylum.”[135]   

The court expressly acknowledged the severity of FGM, commenting the “medical and psychological consequences of FGM linger for a lifetime.”[136]  The court made clear the BIA’s dismissal of FGM as a “lesser form of circumcision” was flawed, and FGM ‘constitutes persecution sufficient to support an asylum claim.’[137]  In addressing the “parent-child conundrum,” the Benyamincourt noted the petitioner may qualify for asylum either based on the persecution already endured by his alien child, Annisa, or based on the threat of future persecution faced by his alien child, Anakarina.[138]

                                        V.            RECONCILING THE CIRCUIT SPLIT WITH THE ACCEPTANCE OF ABAY

As the case law reveals the obstacle for a mother or father’s path to asylum based on a daughter’s risk of FGM is the showing of “persecution,” as the parent is not the one subjected to the persecution of FGM.  Neither the Refugee Convention and Protocol nor the INA defines persecution, and it has no generally accepted definition.   The harm to parents includes the psychological trauma of having one’s child mutilated or in being compelled to abandon their child.

Article 33 of the 1951 Convention states no contracting member will return someone to his home country where “his life or freedom would be threatened.” [139] This threat does not have to be physical in nature.[140]   “Tyranny over the mind and spirit of a person has been demonstrated as more fearsome than the ancient methods of torture.”[141]   Persecution is also defined as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.”[142]  It refers only to “severe” conduct and “does not encompass all treatment our society regards as unfair, unjust or even unlawful or unconstitutional.”[143]   The United Nations High Commissioner for Refugees (“UNHCR”) 1979 Handbook on Determining Refugee Status (“Handbook”)[144] corroborates the policy that “[o]ther serious violations of human rights,” beyond threats to life and freedom, “also constitute persecution.”[145]  Certainly the psychological harm endured by a parent forced to stand by as their child is subjected to FGM surely can be regarded as “severe” and oppression of the person sufficient to be recognized as persecution.

Interestingly over ten years ago, the United Nations High Commissioner for Refugees (“UNHCR”), the international authority on matters of refugee law, expressed its position on the FGM parent-child issue in a letter to the British Refugee Legal Center stating:

a woman can be considered a refugee if she or her daughter/daughters

fear being compelled to undergo FGM against their will; or, she fears

persecution for refusing to undergo or allow her daughters to undergo

the practice.[146]


The Abay court resounded this guiding principle and a few noteworthy foreign decisions support the decision of Abay.   Abayechoed the protection Canada recognized in 1993 when it granted refugee status to a Somali woman, Khadra Hassan Farah, who had fled her country with her 10-year-old daughter, Hodan, because she feared Hodan would be forced to undergo genital mutilation.[147]  In making the ruling, immigration officials said that Hodan’s “right to personal security would be grossly infringed” if she was returned to Somalia.[148]    The Canadian Board correctly and quickly dispelled the argument that the parent’s harm was indirect.   

The forced abandonment is another form of persecution that a parent can face.  This “choice” violates a parents’ right to raise their children as they see fit and to be a part of their children’s lives as they grow up.[149]  A parent’s right to raise their children without governmental interference has been long recognized by the Supreme Court.[150]   Additionally, the Universal Declaration of Human Rights (“UDHR”) instructs, “The family is the natural and fundamental group unit of society and is entitled to protection by society and State.”[151]


The Abay court has started our path out of this tragic conundrum by correctly recognizing a parent who opposes FGM is personally persecuted when their minor daughter is forced to undergo the practice.  The Abay court correctly reflected the humanitarian aims of asylum law in determining either genital cutting or the ostracism suffered for not undergoing it rises to the level of persecution.[152]  While Abay seemingly stands alone in its legal and humanitarian wisdom, it is only the Fourth Circuit who definitively closed the door on these parents independent asylum claim based on psychological harm. 

Allowing the contours of the definition of persecution to accommodate this severe psychological trauma we will not be opening the door too widely as there remains the rigorous safeguards of the long established refugee definition.  The legal grounds are present for the definitive recognition of the asylum eligibility of these parents and with vigilant advocacy and judicial accountability we will see their day of liberty. 












[1]Auziya Kassindja & Layli Miller Bashir, Do They Hear You When You Cry 514 (Dell Publishing 1998).

[2] 21 I. & N. Dec. 275 (BIA 2007)

[3] Female genital mutilation is also known as female genital surgery(“FGS”), and female genital cutting (“FGC”)

[4]Her name is properly spelled Fauziya Kassindja. One of the first U.S. inspectors she

encountered at JFK airport misspelled the family name on an interview form, and the misspelling

persisted throughout the immigration proceedings. SeeKassindja & Bashir, supra note 1, at 165. 

[5] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 108  Stat. 382, 1465 U.N.T.S. 85 [hereinafter CAT]; This paper examines only the eligibility of parents for asylum.

[6] See Kone v. Holder, 2010 WL 653258 (2nd Cir. 2010); Kane v. Holder, 581 F.3d 231 (5th Cir. 2009)Misoka v. U.S. Atty’s Gen.283 Fed.Appx 927 (3rd Cir. 2008) (unpublished opinion); Abebe v. Gonzales, 432 F.3d 1037 (9th Cir. 2005)(en banc); Axmed v. U.S. Att’y Gen., 145 F. App’x 669 (11th Cir. 2005) (unpublished opinion); Jalloh v. Gonzales, 423 F.3d 894 (8th Cir. 2005); Kawu v. Ashcroft, 113 F. App’x 732 (8th Cir. 2004) (per curiam) (unpublished opinion); Olowo v. Ashcroft, 368 F.3d 692 (7th Cir. 2004); Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004); Swiri v. Ashcroft, 95 F. App’x 708 (5th Cir. 2004) (per curiam) (unpublished decision); Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004); Oforji, 354 F.3d 609; Obazee v. Ashcroft, 79 F. App’x 914 (7th Cir. 2003) (unpublished order); Osigwe v. Ashcroft, 77 F. App’x 235 (5th Cir. 2003) (per curiam) (unpublished decision); Alade v. Ashcroft, 69 F. App’x 771 (7th Cir. 2003) (unpublished order); Key v. INS, 64 F. App’x 891 (4th Cir. 2003) (per curiam) (unpublished decision); Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002)(per curiam). Ayinde v. Ashcroft, No. 03 Civ. 358(GWG), 2003 WL 22087473 (S.D.N.Y. Sept. 10, 2003) and

[7] “In general, a spouse or child . . . of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.” 8 U.S.C. § 1158(b)(3)(A)(2004)

[8] Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004)

[9] Id. at 640

[10] 21 I. & N. Dec. 357 at 365.

[11] United Nations Convention relating to the Status of Refugees, opened for signature July 28, 1951, 19 U.S.T. 6577, 189 U.N.T.S. 150. [hereinafter Refugee Convention]

[12]See Protocol Relating to the Status of Refugees, Jan. 31, 1967, art. I, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter Refugee Protocol]; see also Marissa Farrone, Comment, Opening the Doors to Women? An Examination of Recent Developments in Asylum and Refugee Law, 50 St. Louis U.L.J. 661, 668(2006)

[13] 8 U.S.C. § 1158(b)(3)(A)

[14] 8 U.S.C. § 1158(b)(1) (“The Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Attorney General under this section if the Attorney General determines that such alien is a refugee….”); see also Liao v. United States Dept. of Justice, 293 F.3d 61, 66 (2d Cir. 2002).

[15] INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2000).

[16] 8 U.S.C. § 1101(a)(42)(A); see also Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003).

[17] Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004)

[18] See 8 C.F.R. § 1208.13(b)(1)(i)(B); Singh v. BIA, 435 F.3d 216, 219 (2d Cir. 2006).

[19] Id.

[20] Abankwah v. INS, 185 F.3d 18, 22 (2d Cir. 1999)

[21] Id. at 22.

[22] I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213 (U.S.,1987)

[23] World Health Organization, Eliminating Female Genital Mutilation: An Interagency Statement – -OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, WHO 4 (2008), available at pdf [last accssed 04/15/2010][hereinafter WHO, Eliminating].

[24] Id.

[25] Id. 

[26] Id. at 13.

[27]There are different types of FGM known to be practiced today. They include: Type I (FGM 1) – excision of the prepuce, with or without excision of part or all of the clitoris; Type II (FGM II) – excision of the clitoris with partial or total excision of the labia minora; Type III (FGM III) – excision of part or all of the external genitalia and stitching/narrowing of the vaginal opening (infibulation).  WHO: New Study Shows Female Genital Mutilation exposes women and babies to significant risk at childbirth;

[28]U.S. domestic law also prohibits the practice of FGM on minors and mandates that whoever “knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained 18 years” is subject to a fine or imprisonment of up to five years. 18 U.S.C. § 116(a)(2006). Section 579 of the Foreign Operations, Export Financing and Related Appropriations Act also requires that U.S. financial representatives oppose loans to governments that support FGM; Harvetta Asamoah et al., International Human Rights, 32 Int’l Law. 559, 571 (1998).

[29] WHO, Eliminating, supra note 23, at 12.

[30] WHO Report: Female Genital Mutilation – New Knowledge Spurs Optimism.  Progress, No. 72, 2006.[last accssed 04/15/2010] [hereinafter, WHO, Female Genital Mutilation].

[31] Id. at 3.

[32] Id. at 4.    

[33] Painful raised scars.

[34]Letter from Asylum Network to Attorney General Mukasey Regarding Female Genital Cutting; [last accessed 4/16/2010]

[35] Id. at 2.

[36] Id.

[37] Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008).

[38] Id. at 104.

[39] Id.

[40] Bah, 529 F.3d at 104-107

[41] Id. at 104.

[42] Id. at 106.

[43] Id.

[44] Id.

[45] Id at 107.

[46] Id.

[47] Id.

[48] Matter of A-T, 24 I. & N. Dec. 296, 301 (BIA 2007).

[49] Matter of A-T-, 24 I&N Dec. at 299

[50] Karen Musalo, the director of the University of California-Hastings College of Law Center for Gender and Refugee Studies called it a “u-turn” from previous case law.  Matthew Hay Brown, A Right To Asylum? Case Rejected, Genital Mutilation Victim Still Fighting To Stay in U.S., BALT. SUN., July 8, 2008, at 1A.

[51] Bah v. Mukasey, 529 F.3d 99, 103 (2d Cir. 2008); Bah v. Gonzales, 462 F.3d 637, 644 (6th Cir. 2006)(Gibbons, C.J., concurring); Tunis v. Gonzales, 447 F.3d 547, 550 (7th Cir. 2006); Mohammed v. Gonzales, 400 F.3d 785, 800-801 (9th Cir. 2005).

[52] Melanie A. Conroy, Refugees Themselves: The Asylum Case for Parents of Children at Risk of Female Genital Mutilation, 22  Harv.Hum. Rts. J.109 (2009).

[53]Letter From Reps. Zoe Lofgren, Chair of the House Judicary Subcommittee on Immigration, and John Conyers, Chair of the House Committee on the Judiciary, to Michael Mukasey, Attorney General (Jan. 8, 2008)

[54] 24 I. & N. Dec. 617, Interim Decision 3622, 2008 WL 4306933 (BIA)

[55] Id. at 621

[56] Matter of A-T-, 24 I&N Dec. at 621; Matter of S-A-K and H-A-H, 24 I&N Dec 464, 465 (BIA 2008).

[57] Id. at 623.

[58] Id. at 619 (noting Traore’s statement that she is “a Moslem and she is from the Banbara tribe”).

[59] Kone v. Holder, 596 F.3d 141 (2nd Cir. 2010).

[60] Kone, 596 F.3d 141 at 145.

[61] Id. at 145.

[62] Id.

[63] Id.

[64] Id.

[65] Id. at 147 (An alien who demonstrates past persecution benefits from the presumption that the applicant faces a threat of future persecutions for purposes of either asylum or withholding of removal.) See Also Babav. Holder, 569 F.3d 79, 86 (2d Cir. 2009) (“The law is clear that a showing of past persecution shifts the burden to the government on the question of the petitioner’s well-founded fear of future persecution.”)

[66] Id. at 148

[67] Kone,596 F.3d 141 at 150. (Moreover, Kone enjoys a regulatory presumption that “internal relocation would not be reasonable,” 8 C.F.R. §§ 1208.13(b)(3)(ii), 1208.16(b)(3)(ii), and nothing about her return trips to Abidjan, the site of the original persecution, suggests anything to the contrary.)

[68] Id. at 151.

[69] Id. at 152.

[70] Id.;(Matter of S-A-K and H-A-H-, 24 I. & N. Dec 464 (B.I.A. 2008)).

[71] Id. at 153.

[72] Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). 

[73] Id. at 512

[74] See Matulessy v. Holder, Slip Copy, 2010 WL 1252963, (Not Selected for publication in the Federal Reporter), C.A.6, March 31, 2010 (NO. 08-4466) (We do not quarrel with that summary of this circuit’s view that persecution is a fact-intensive inquiry  . . .); Diaz-Zanatta v. Holder, 558 F.3d 450, C.A.6, March 04, 2009 (NO. 08-3097)( …for determining whether an asylum applicant is ineligible for asylum and withholding of removal due to assistance or participation in persecution is a particularized, fact-specific inquiry  . . .) Menghesha v. Gonzales, 450 F.3d 142 (4th Cir. 2006)(using a fact specific inquiry to reverse the IJ’s finding of no persecution); Singh v. INS, 194 F.3d 1353, 1359 (9th Cir. 1996) (“[W]hether discrimination, harassment, or violence . . . is sufficiently offensive to constitute persecution . . . must be decided on a case-by-case bassis.”); See also Guy S. Goodwin-Gill, The Refugee in International Law 18-20 (2d ed. 1996) at 69 (explaining that due to the limitlessness of the possible known measures of persecution, assessments of what qualifies as persecution must be made on a case-by-case basis).

[75] See Chen v. INS, 195 F.3d 198 (4th Cir. 1999)(finding economic deprivation can constitue persecution under the Act if it rises to the level of ‘deliberative imposition of substantial economic disadvantage’ (citing Borca v. INS, 77 F.3d 210, 215-216 (7th Cir. 1996)); See also Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993) (noting that conduct that is “abhorrent to  . . .an individual’s deepest beliefs” can consititute persecution); Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004)(“[A] finding of past persecution might rest on a showing of psychological harm.”). 

[76] Osigwe v. Ashcroft, 77 Fed.Appx. 235, 235-236 (5th Cir. 2003)

[77] Id.  at 236

[78] Akpojiyovwi v. Gonzales, 224 F. App’x 361 (5th Cir. 2007)(one-year bar); Swiri v. Ashcroft, 95 F. App’x 708 (5th Cir. 2004)(denied motion to reopen). 

[79] Kane, 581 F.3d 231

[80] Id. at 240

[81] Id. at 237

[82] Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004).

[83] Id. at 635.

[84] Id. at 641.

[85] Id at 641.

[86] Id. at 642 (citing In re C-Y-Z-, 21 I.& N. Dec 915 (B.I.A. 1997))

[87] C-Y-Z, 21 I.&N. at 915

[88] Abay, 368 F.3d at 642 (citing C-Y-Z, 21 I.&N. Dec. at 926-27)

[89] Id. at 641-42 (citing Matter of Adeniji, No. A41 542 131 (oral decision) (U.S. Dept. of Justice, Immigration Ct., York, Penn., Mar. 10, 1998)) (granting withholding of removal under Refugee Convention to father because his U.S. citizen daughters would be subject to female genital cutting against his wishes if returned to Nigeria); see also Matter of Dibba, No. A73 541 857 (B.I.A. Nov. 23, 2001) (stating that “normally a mother would not be expected to leave her child in the United States in order to avoid persecution”); Matter of Oluloro, No. A72 147 491 (oral decision) (U.S. Dept. of Justice, Immigration Ct., Seattle, Wash., Mar. 23, 1994) (granting suspension of deportation and permanent resident status to mother finding that risk that her U.S. citizen daughters would be subjected to female genital cutting in Nigeria posed an extreme hardship to the mother warranting discretionary relief).

[90]  Abay 368 F.3d 634 at 642.

[91] Id.

[92] Id. 

[93] Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002).

[94] Id. at 307-310

[95] Nwaokolo v. INS, 314 F.3d 303, 309

[96] Id.

[97] Ofori v. Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003)

[98] Id. at 612

[99] Id at 613-615

[100] Id. at 615; See Marcelle Rice, Protecting Parents: Why Mothers and Fathers who oppose Female Genital Cutting qualify for asylum, 04-11 Immigr. Briefings 1.

[101] Id.

[102] “Constructive Deportation” refers to the defector removal of a citizen or resident child that typically occurs when the minor’s care-taking parent is removed from the country. 

[103] Salameda v. INS, 70F3d 447 (7th Cir. 1995).

[104] Olowo v. Ashcroft, 368 F.3d 692 (7th Cir. 2004)

[105] Id. at 701.

[106] Olowo v. Ashcroft, 368 F.3d 692 at 702.

[107] Olowo, 368 F.3d 692 at 702.

[108] Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007).

[109] Id. at 515

[110] Id.

[111] Id. at 515.

[112] Id. at 515.

[113] Id. at 516.

[114] Id. at 517.

[115] Id. at 519.

[116]Telephone Interview with Matt Ralph, Dorsey & Whitney, attorney for Ms. Hassan (April 8, 2010).

[117] Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004).

[118] Abebe v. Gonzales, 432 F.3d 1037 (9thCir. 2005) (en banc).

[119] Azanor, 364 F.3d 1013 at 1017.

[120] Id. at 1018.

[121] Id. at 1018.

[122] Id. at 1019

[123] Azanor, 364 F.3d 1013 at 1017; See 8 C.F. R. S 208.18(a)(6); See also Marcelle Rice, Protecting Parents: Why Mothers and Fathers Who Oppose Female Genital Cutting Qualify for Asylum, Immigr. Briefings, Nov. 2004, at 1, 2.

[124] Id. at 1020.

[125] Id. at 1021.

[126] Id. at 1021.

[127] Id. at 1021.

[128] Osigwe v. Ashcroft, 77 F. App’x 235 (5th Cir. 2003)(remanding to the Board for consideration of a humanitarian grant of asylum, but neglecting to recognize the possibility that parents fearing the genital mutilation of their citizen child upon removal to Nigeria could have an independent basis for asylum).

[129] Abebe v. Gonzales, 379 F.3d 755, 758-60 (9th Cir. 2004) (risk that asylum seeker’s daughter would be subjected to FGM does not establish a well-founded fear of future persecution where both parents wished to prevent the procedure, and Ethiopian women were typically capable of protecting their daughters from FGM yet risked social ostracism).

[130] Abebe v. Gonzales, 400 F.3d 690 (9th Cir. 2005).

[131] Abebe v. Gonzales, 432 F.3d 1037 (9thCir. 2005)(en banc).

[132] Abebe v. Gonzales, 432 F.3d 1037 at 1043.

[133] Benyamin v. Holder, 579 F.3d 970 (9th Cir. 2009).

[134] Id. at 978.

[135] Id.

[136] Id. at 972.

[137] Id. at 972. (quoting  Abebe v. Gonzales, 432 F.3d 1037, 1039 (9thCir. 2005) (en banc)).

[138] Id. at 974.

[139] Convention relating to the Status of Refugees, art. 33, July 28, 1951, 189 U.N.T.S. 150 

[140] See Kovac v. I.N.S., 407 F.2d 102, 105-07(9th Cir. 1969) (noting § 243(h) of the Immigration and National Act was amended, deleting the adjective “physical” from the original. Court held that under the amended statute, a “probability of deliberate imposition of substantial economic disadvantage upon an alien for reasons of race, religion, or political opinion is sufficient … to withhold deportation”).

[141] Id at 107.

[142] Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119 (3d Cir.2007) (quoting Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1240 (3d Cir.1993)).

[143] Id

[144] U.N. High Commissioner on Refugees [UNHCR], Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, U.N. Doc. HCR/IP/4/Eng/REV.1 (Jan. 1992), available at

[145] Id. at P51

[146] Heaven Crawley, Women as Asylum Seekers – A legal Handbook, 71, (Immigration Law Practitioners’ Association and Refugee Action 1997).

[147] Gregory Kelson, Granting Political Asylum to Potential Victims of Female Circumcision, 3 MICH. J. GENDER & L. 257, 270 (1995).

[148] Id at 270.

[149] See Moore v. City of East Cleaveland, 431 U.S. 494, 503 (1977).

[150] See Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (“[Liberty] denotes not merely freedom from bodily restraint but also the right … [to] establish a home and bring up children … and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (“The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (describing the “fundamental liberty interest of natural parents in the care, custody, and management of their child”); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ( “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”).

[151] Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. Mtg., U.N. Doc. A/16(3) (Dec. 12, 1948), available at

[152] Abay, 368 F.3d at 640.

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