Noah Al-Malt is one of Professor Birdsong’s ablest students and a wonderful writer. He has written a seminar paper which he has given permission for me to post on the blog. In his paper he examines two women’s health issues addressed by U.S. asylum law and examines why these two health issues are treated differently.
Read and learn.
CONTINUING FORMS OF PERSECUTION:AN EXAMINATION OF UNITED STATES POLICY CONCERNING FEMALE GENITAL MUTILATION AND THE CHINESE “ONE CHILD” POLICY
Noah Al-Malt
I. INTRODUCTION
This paper seeks to examine the policy underlying the United States Immigration Code concerning the definition of refugee in regards to two women’s health issues. Both Female Genital Mutilation (hereinafter “FGM”) and the Chinese “One Couple One Child” policy (hereinafter “Chinese One Child Policy”) have been grounds for asylum or refugee status in the United States. However, the United States Immigration Code and Immigration Courts treat these two grounds differently. The policy underlying these grounds leads to desperate outcomes for what could be considered similarly irreparable harm to a woman’s health. This article will give background information on these two women’s health issues, recount the legal history and current United States Immigration policy concerning these issues, and seek to examine and account for why the United States Immigration Code treats these two human rights violations differently.
A. Female Genital Mutilation
1. Background
Female Genital Mutilation is a traditional practice with many health consequences for women. FGM is defined by the World Health Organization (hereinafter “WHO”) as “the partial or total removal of the female external genitalia or other injury to the female genital organs for cultural or other non-therapeutic reasons.”[1] The WHO classifies female genital mutilation into four major types:
1. Clitoridectomy: partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals) and, in very rare cases, only the prepuce (the fold of skin surrounding the clitoris).
2. Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (the labia are “the lips” that surround the vagina).
3. Infibulation: narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the inner, or outer, labia, with or without removal of the clitoris.
4. Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.[2]
The practice is most common in parts of West Africa, North East Africa, the Middle East, and parts of South Asia.[3] The practice is most prevalent in Africa, primarily in rural areas.[4] It is estimated that over 140 million women and girls have been subjected to the practice worldwide.[5] FGM is primarily performed on girls and young women, between the ages of four and fourteen.[6] However, it is sometimes even performed on infants.[7] The WHO reports that in Africa alone, over 92 million girls age ten and over have been subjected to the practice.[8]
As with many traditional practices, FGM is associated with a woman’s right of passage and cultural identity.[9] The primary purpose of FGM is to control a woman’s sexuality.[10] FGM is seen to ensure virginity until marriage and fidelity thereafter.[11] It makes a girl or young woman more acceptable in the community, and is associated with cultural notions of femininity, modesty, cleanliness, and beauty.[12] Some cultures have various myths surrounding FGM such that the clitoris will grow into a penis if not cut, or a baby will die during birth if it touches the clitoris.[13] Many women in these areas will not even question this cultural practice, and most often support it.[14]
2. Human Rights Violation
FGM is a violation of human rights because it subjects women to severe health risks and is seen as intentional infliction of physical and emotional harm.[15] FGM is viewed to have no health benefits and can subject women to both immediate and lifelong health consequences.[16] The procedure is generally performed without anesthetic and immediate complications include severe pain, shock, hemorrhage (bleeding), tetanus or sepsis (bacterial infection), urine retention, open sores in the genital region and injury to nearby genital tissue.[17] Lifelong health consequences include chronic infection, hemorrhaging, severe pain during urination, menstruation, and problems with sexual intercourse.[18] Additionally, FGM can lead to complications during childbirth, increases in newborn death, and psychological trauma.[19] Anti-FGM advocates have reported cases of death as a result of the procedure; however, there is no statistical data on how many girls die as a result of FGM.[20]
Anti-FGM advocates see FGM as a violation of international human rights treaties.[21] Specifically these activists view FGM as violations of prohibitions against torture, gender equality, prohibitions against mental and physical maltreatment, and the right to the highest standard of health.[22] Arguably, it can also be said that young girls cannot be said to give informed consent to such procedure, as most females who undergo FGM are under the age of eighteen.
However, it is also seen as a cultural issue, invoking a conflict between international rights and cultural sovereignty.[23] Supporters of FGM argue that these treaties concerning human rights are based on western values and ignore the societal and cultural norms based in history and tradition.[24] United States Immigration Law takes the view that FGM is a violation of human rights, and therefore, is a legitimate ground for asylum or refugee status.[25]
B. Chinese One Child Policy
1. Policy Overview
The Chinese government, in an effort to keep China’s booming population in check, enforces a coercive population control policy prohibiting couples from having more than one child.[26] This policy places makes the birth of children conditional on conformity with the stringent policy.[27] The policy creates strict parameters under which Chinese couples may conceive a child.[28] Couples must first be married and apply for a birth permit.[29] After birth, women also must submit to heavy and intrusive governmental regulation to prevent any further pregnancies:
After giving birth to one child, women must use intrauterine devices (IUDs) to prevent further pregnancies. Women must submit to routine pregnancy tests to ensure that the IUD functions properly. If a woman becomes pregnant with an unauthorized child, her pregnancy must be terminated. Furthermore, one or both parents of multiple children may undergo forced sterilization to prevent the birth of future children.[30]
This population control policy primarily relies on propaganda, economic incentives and coercive governmental pressure for implementation and enforcement.[31] Chinese law prohibits physical coercion to compel persons to submit to the policy.[32] However, intense pressure to meet limitations set by the government has resulted in local officials using physical coercion to meet national goals.[33] These physical measures include forced abortions, forced sterilizations, and use of infanticide.[34]
Many economic incentives are conditioned on conformity with China’s One Child Policy.[35] Couples who conform to the policy receive a certificate that entitles them to many economic benefits such as subsidized healthcare, government education, housing, farmland, and cash rewards.[36] Chinese government officials and even some of the population see the restrictive measures as efforts to maintain social stability.[37]
Preferential treatment is given to couples who abide by the birth limits, and violations include massive consequences as consequences of breaking the policy subject citizens to many disciplinary measures.[38] The policy requires that couples who have an unapproved child to pay a “social compensation fee.”[39] This fee can reach up to ten times a person’s annual disposable income.[40] These violations include job loss, loss of promotion opportunities, exclusion from the Chinese Communist Party—of which membership is an official requirement for government employment—other administrative punishments, and in some cases destruction of private property.[41] These economic incentives and disincentives are highly persuasive measures to ensure Chinese citizens conform to family planning directives.[42]
2. Human Rights Violation
China’s One Child Policy is a human rights violation because it violates women’s right to choice, and reproductive rights.[43] Reproductive rights and the right to self determination are protected under international law and have been codified in several international treaties.[44] The Chinese One Child Policy subjects women to enormous government pressure, and forced abortions and sterilizations can be seen as violence against women.[45] The policy can also arguably be seen as an act of gender discrimination, and has resulted in “gendercide” in that—as an unintended consequence of the policy—Chinese citizens have resorted to sex-selective abortions in order to conceive male children.[46]
Congressman Christopher H. Smith, in comments made at a hearing before the House of Representatives Committee on International Relations, compared China’s One Child Policy as a crime against humanity tantamount to the forced abortions administered by the Nazi Party of Germany.[47] Scholars and activists worldwide have argued that the policy violates international law.[48]
II. UNITED STATES IMMIGRATION POLICY
Under United States Immigration Law, a refugee or asylee is:
any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[49]
The burden of proof is on the applicant and persuasion is on the applicant.[50] A refugee can satisfy this burden by showing persecution in two ways.[51] First, the applicant may demonstrate that she has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[52] Second, the applicant may also demonstrate a well-founded fear of future persecution on account of a protected ground through credible testimony that she subjectively fears persecution and that this fear is objectively reasonable.[53]
This burden can be proved through testimony.[54] Testimony can sustain the burden of proof without corroboration if three conditions are met.[55] The testimony must be credible, persuasive, and refer to “specific facts sufficient to demonstrate that the applicant is a refugee.”[56] Background facts and country conditions are taken into consideration as credibility is determined “in light of general conditions in the applicant’s country.”[57] This burden of proof is less than that for a withhold status.[58]
Notice that gender is not included in the definition for asylum.[59] However, case law has held certain contexts of women’s health issues to be grounds for asylum by falling into the “persecution on account of membership in a particular social group” category. The Board of Immigration Appeals in Matter of Acosta, held that in order to qualify under this category, there must be some sort of “social visibility” or “shared characteristic.”[60] This characteristic must be immutable, something that members of the group either cannot change, or should not be required to change “because it is fundamental to their individual identities or consciences.”[61] The court reasoned that the concept of a refugee should be restricted to individuals who are unable to change, or should not be required, to avoid persecution.[62] Under this reasoning both Female Genital mutilation and the Chinese “One Child” policy have been held as valid grounds for asylum.[63]
A. Female Genital Mutilation—Kasinga
The Board of Immigration Appeals case, In re Kasinga, decided the fundamental question of whether or not female genital mutilation (FGM) can be a basis for grant of asylum under Section 208 of the Immigration and Nationality Act.[64] In Kasinga, the applicant, a nineteen year old girl from Togo, and member of the Tchamaba-Kunsutu tribe requested asylum in the United States.[65] Her application for asylum was based on the fear that if returned to Togo, she would be subjected to FGM.[66]
She testified that, as a member of the Tchmaba-Kunsutu tribe, girls her age normally undergo FGM.[67] In her testimony she also stated that her aunt had forced her into a polygamous marriage, and that her husband had planned to have FGM performed prior to the marriage.[68] According to her testimony, the fear of going FGM was imminent and the Togolese government would offer her no protection.[69] Additionally, she claimed that if returned to Togo, the procedure would be imminent as Togo is a very small country and the police could easily locate her.[70]
The Board of Immigration Appeals (hereinafter “BIA”) reviewed Kasinga’s testimony in light of background country information. The BIA found that FGM is practiced in Togo, and that it can cause irreparable harm to a woman’s health. The BIA also recognized that FGM can cause many adverse health consequences and can result in the permanent loss of genital sensation and sexual function.[71] The Board, reasoning with the Applicant’s credible testimony, held that FGM constitutes “persecution” within the meaning of Section 101(a)(42) of the Immigration and Nationality Act.[72] The court also reasoned that, although FGM is not intended for “punitive” or “malignant” purposes, this subjective intent to punish is not required to constitute persecution.[73]
The BIA also reasoned that the characteristics of being a “young woman and a member of the Tchamba-Kunsutu Tribe” are immutable, and that having the “characteristic of having intact genitalia is one that is so fundamental to the identity of a young woman that she should not be required to change it.”[74] Thus, these characteristics satisfy the defined social group test set out in Matter of Acosta.[75]
Since Kasinga, many applicants have used FGM as a ground for asylum application.[76] These cases hold that if past persecution is established, a presumption arises that the applicant has a well-founded fear of future persecution on the basis of her original claim.[77] This presumption can however, be rebutted if the asylum officer or immigration judge finds by a preponderance of the evidence that there has been a fundamental change in circumstances, or that the applicant can avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal.[78]
The United States Second Circuit Court of Appeals in Bah v. Mukasey, granted further protections for FGM-based asylum applicants by holding that that the fact that an applicant has already undergone FGM in the past, cannot be used in itself to rebut a presumption of a well founded fear of future persecution.[79]The Second Circuit disagreed with the Board of Immigration Appeals’ reasoning that since Female Genital Mutilation can only be performed once, the government could rebut a presumption of a well founded fear of persecution by showing that the applicant has already had FGM.[80] Thus, the Second Circuit afforded greater protection to applicants fearing FGM. However, this presumption of harm could still be rebutted by showing a fundamental change in country conditions, or that the applicant could reasonably move to another part of the country to escape persecution.[81]
B. Chinese One Child Policy— Chang, Y-T-L, and Congressional Intent
Initially, Chinese applicants were routinely denied asylum status based on the “One Couple, One Child Policy.”[82] The Board of Immigration Appeals in Matter of Chang, proclaimed that it could not find that the implementation of the policy, in and of itself, “even to the extent that involuntary sterilizations may occur,” amounts to persecution.[83] The Board held that this policy does not create a well founded fear of persecution.[84] The Board found that in order to qualify for protection of a refugee, an applicant, subjected to the provisions of the policy, would also have to show that the policy was applied selectively against her for a reason, on account of one of the enumerated grounds—a reason other than that of general population control.[85]
However, Congress, for the express purpose of overturning this decision, enacted Section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter “IIRIRA”).[86] Under this framework, an applicant who proves that they were subject to the One Child Policy or any other coercive population control shall be deemed to be persecuted on the grounds of political opinion.[87] Those persons who fear that they will be subject to the policy or persecution for failure to comply with the policy shall be deemed to have a “well founded fear.”[88]
In 2003, the Board of Immigration Appeals took an additional and fundamental step in this analysis—providing even more protections to applicants under this section—by holding that forced sterilization constitutes a “permanent and continuing act of persecution.”[89] In Matter of Y-T-L-, The Board recognized that it was clear that congress intended to make those eligible for asylum, victims who were subjected to China’s one child—family planning policy, and “not simply those who could be victims if returned to China.”[90] Y-T-L- stands for the proposition that Congress enacted IIRIRA Section 601 for the purpose of avoiding asylum denials for persons who had already undergone forced sterilization—that denying an applicant for this reason would “lead to the anomalous result that the act of persecution itself would also constitute the change in circumstances that would result in the denial of asylum to persons such as the respondent.”[91]
Thus, based on Congressional intent, the Board found that upon a showing of forced sterilization, or subjection to the One Child Policy, asylum could be granted to the applicant under a theory of “continuing persecution” such that the presumption of a well founded fear of persecution that arises from such a showing of past persecution cannot be rebutted.[92] Therefore, under the current legal framework, applicants claiming forced abortion, involuntary sterilization, or resistance to a coercive population control program are recognized de jure as establishing political opinion.[93] Case law has dictated that these applicants are deemed refugees suffering a “per se form of persecution.”[94]
III. DISCUSSION—DISTINCTION WITHOUT A DIFFERENCE
This distinction poses a fundamental question—why does the United States treat these two forms of persecution, both based on irreparable harm to women’s health differently? Why would Congress and the Board of Immigration Appeals consider the Chinese One Child Policy “profound and permanent,” but decline to extend this reasoning to protect victims of Female Genital Mutilation?
The FGM ground of asylum stems from case law—primarily Kasinga and its progeny.[95] The policy concerning asylum based on the Chinese One Child Policy is based on an act of Congress.[96] As the BIA held in Y-T-L-, Congress specifically enacted IIRIRA Section 601 to overrule Matter of Chang.[97] Thus, those who demonstrate that they will be subjected to China’s coercive One Child Policy are deemed to have a well founded fear of persecution to qualify for asylum—a presumption that cannot be rebutted.[98]
This issue was addressed in Matter of A-T-.[99] In Matter of A-T-, the Board of Immigration Appeals declined to extend the “continuing persecution” theory to applicants seeking asylum based on Female Genital Mutilation. The Board in explained that:
Y-T-L- represented a unique departure from the ordinarily applicable principles regarding asylum and withholding of removal. This departure was based on Congress’s decision to specifically identify sterilization as a basis for refugee status and the fact that to preclude sterilization victims from asylum would have contradicted congressional intent. To the contrary, there was no amendment to the refugee definition addressing victims of FGM or any other specific kind of persecution.[100]
Because it was Congress’s express intent to identify involuntary sterilization or population control as a basis for refugee status—and no similar amendment addressing victims of FGM, or other kinds of persecution exists—the “continuing persecution” theory should not be extended to Female Genital Mutilation.[101] This however, proposes a fundamental policy question: just because Congress enacted a statute specifically dealing with the Chinese One Child Policy—and failed to do so to address FGM applicants—should this be a primary reason to treat these two very similar asylum bases differently?
It is quite unfortunate that the BIA declined to extend this policy to applicants fearing Female Genital Mutilation. Despite the fact that section 601 was enacted specifically to address the affects of coercive family planning practices, it seems rather clear that FGM should be seen as a “profound and permanent” form of persecution as well as a “continuing act”—such that there should be no rebuttable presumption.
FGM has also been proven to cause permanent and continuing harm women forced to undergo the procedure. It causes severe—immediate and chronological, physical and psychological—pain for the woman.[102] Although breakthrough medical advances have produced procedure to reverse FGM, it takes intrusive corrective surgery—of which many applicants would not have the resources or access to. However, this surgery still does not redress the cultural issues surrounding the procedure of FGM, and its widespread nature.
Female Genital Mutilation, is arguably is even more intrusive and destructive than the Chinese One Child Policy. It is often done in sub-par, unclean conditions—outside of a hospital—by mainly traditional practitioners using knives, scissors, razor blades, and other sharp objects without the use of anesthetic or sterilizing substances.[103] Women are subjected to the procedure without any health benefits.[104] By contrast, sterilizations and abortions performed in China are primarily performed by the government in clinics or hospitals.[105] Chinese citizens also receive social and economic benefits as a result of complying with the government’s family planning directives.[106] However, both of these policies cause irreparable harm to a woman’s health. Therefore, it seems rather clear that the progeny of Kasinga, evolving in the line of Bah v. Mukasey, should have logically extended to protections equal to that of cases dealing with the One Child Policy.
Some scholars argue that the BIA erred in its decision in Matter of A-T-.[107] These scholars argue that the reasoning in A-T-,—that Y-T-L- rested on the fact that Congress intended to give “per se” relief of victims of the One Child Policy—is a false premise. The reasoning behind this proposition is that the BIA in Y-T-L- rested on the conclusion that forced abortion and sterilization are so destructive and permanent that it is an ongoing or “continuing” act of persecution—not that congress intended to give “per se” relief to Chinese applicants.[108] The language in the amendment does not appear to give per se relief, and neither does the legislative history.[109] The section was intended specifically to overrule Matter of Chang, and simply allow asylum based on a well-founded fear of a coercive population control program—not to lower the evidentiary burden of proof for applicants, or to allow a form of per se relief.[110] In fact, Congress specifically explained that “[n]othing in [the amendment] is intended to lower the evidentiary burden of proof for any alien, no matter how serious the nature of the claim.”[111] Therefore, if the reasoning in Y-T-L- was not based solely on Congressional intent, but rather a theory of “continuing persecution” it should be a logical extension to apply this reasoning to victims of Female Genital Mutilation.[112]
Some Appellate Courts have held along this reasoning, and have extended the “continuing form of persecution” premise to applicants claiming Female Genital Mutilation.[113] In Mohammed v. Gonzales, the Ninth Circuit Court of Appeals found that FGM is a form of past persecution that is so permanent and profound that it ought to be considered a continuing form of persecution.[114] The Court reasoned that like forced sterilization, FGM must be considered a continuing form of harm “that renders a petitioner eligible for asylum, without more.”[115] The Court interpreted Y-T-L-, to hold sterilization is not a discrete act, but is rather a permanent and continuing form of persecution.[116] The Court in Mohammed viewed Y-T-L- to stand for the proposition that forced sterilization and abortion is such a permanent and continuing form of persecution that should require a special result under the asylum framework, “namely that applicants who have suffered forced or involuntary sterilization necessarily have an inherent well-founded fear of future persecution because such persons will be persecuted for the remainder of their lives.”[117] The Ninth Circuit did not follow the Board of Immigration Appeals’ line of reasoning in Matter of A-T-, primarily looking at the “intent of Congress.”[118]
By applying this reasoning to victims of Female Genital Mutilation, the Court logically concluded that FGM, like forced sterilization, is a “permanent and continuing” form of persecution, and that “precedent dictates the conclusion that the presumption of a well-founded fear ins such cases cannot be rebutted.”[119] Therefore a victim of FGM should benefit from the same presumption that a victim of forced sterilization receives.
However, other Circuit Courts have disagreed.[120] In line with the reasoning in Matter of A-T-, the Sixth Circuit, in Diallo v. Mukasey, reasoned that Congress specifically defined the term refugee in Section 601 of IIRIRA intending to give victims of forced sterilization a “shortcut” under the asylum framework.[121] Diallo stands for the proposition that no current “shortcut” exists for victims of Female Genital Mutilation, and therefore these two categories of applicants should not enjoy the same legal protections.[122] The Court however, did not address the issue of whether or not Female Genital Mutilation could constitute a “continuing form of persecution,” as the applicant did not raise that argument.[123]
Section 601 of IIRIRA, may also be based on the United States Government’s distaste for Communist China.[124] This section may well have been intended to give special relief to Chinese applicants fearing the family planning policies of the Communist Chinese Government. However, Congressional intent should not be the sole reasoning behind denying victims of Female Genital Mutilation of the same relief. Despite the Board’s reasoning in A-T-, and the Sixth Circuit’s reasoning in Diallo, it seems much more logical to apply the same legal framework to both victims of female genital mutilation and victims of China’s One Child Policy.
Victims of both these grounds for asylum endure lifelong consequences. Both of these “continuing” forms of harm are distinguishable from other types of persecution. As law professor and scholar, Anjum Gupta, describes in her article:
A political dissident, for example, may be punished with the loss of a limb for speaking out against the government, but the “characteristic [the] persecutor seeks to overcome,” namely, the ability or desire to speak out against the government, will not have been overcome for life based on the initial act of persecution. He or she may, despite the loss of a limb, choose to speak out against the government in the future. Thus, while such an applicant will indeed be subject to enduring harm, he or she will not necessarily be subject to continuing persecution. In contrast, in the female genital mutilation context—as in the forced sterilization context—the “characteristics [the] persecutor seeks to overcome,” will have been overcome for life as a result of the initial act of persecution alone.[125]
This illustration offers a useful distinction to demonstrate why victims of FGM and the Chinese One Child Policy should enjoy the same protections under the asylum framework. Most forms of persecution—especially those entailing beatings or bodily injury—will have lifelong consequences. But, it is specifically the “characteristic the persecutor seeks to overcome” that is specifically damaged in both of these cases.[126] The characteristic of being a young female with intact genitalia in the case of FGM, and being a woman of child rearing ability in the case of the One Child Policy, are both characteristics that are forever lost after enduring the persecution.
Both of these forms of persecution are “continuing.” They are ongoing, and completely change immutable characteristics of the applicant—characteristics the applicant should not be forced to change.[127] Both of these forms of persecution involve similar health consequences, are of similar severity, and affect the applicant long after she suffers the harm. Accordingly, both of these forms of persecutions should be deemed “continuing” and should be treated with the same protections under the United States Immigration Code.
IV. CONCLUSION
The United States has an obligation under International Law to not expel or return “refouler” refugees where his life would be life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.”[128] This principle of non-refoulement is a “cornerstone of international refugee protection.”[129] This principle is engrained in the U.S. Immigration Code in the legal framework concerning asylum and refugee status.[130] The United States offers its protection to those who have a well-founded fear of persecution. However, as discussed supra, these protections are not always applied equally.
It is most unfortunate that the Board of Immigration Appeals and certain Circuit Courts fail to see why protections granted to asylum applicants claiming forced sterilization or forced abortion should be extended to those suffering from fear of Female Genital Mutilation. Both of these forms of persecution have lifelong physical and mental consequences. They are both “continuing” forms of persecution. Although the BIA has relied on Congressional intent for denying victims of FGM the same protections granted to victims of the One Child Policy, it should see that both of these human rights violations are “profound and permanent,” “continuing and ongoing,” and thus should extend the legal framework governing the One Child Policy to cover applicants filing asylum for based on fear of FGM.
[1] WHO, UNICEF and UNFPA, Female Genital Mutilation: A joint WHO/UNICEF/UNFPA statement, World Health Organization, Geneva (1997), 1–2.
[2] World Health Organization, Media Centre Female Genital Mutilation Fact Sheet, (Feb. 2012) https://www.who.int/mediacentre/factsheets/fs241/en/.
[3] Id.
[4] UNICEF, Female Genital Mutilation/Cutting (FGM/C) a Statistical Exploration, (Nov. 2005), available at https://www.unicef.org/publications/files/FGM-C_final_10_October.pdf.
[5] Id.
[6] Id.
[7] Id.
[8] World Health Organization, supra note 2.
[9] Id.
[10] Equality Now, Female Genital Mutilation U.S. Fact Sheet, available at https://www.equalitynow.org/node/866.
[11] Id.
[12] Id.
[13] Id.
[14] UNICEF, supra note 4 at 22, figure 23. In a statistical survey of twelve African countries, Muslim women aged 14–49 support the practice in numbers ranging from a low of 7% in Nigeria, to a high of 81% in Mali with an average support rate of 43.4%. Christian women supported the practice from a low of 3% in Benin, to a high of 61% in Guinea with an average support rate of 27.9%. See also Id. at figure 22, Percentage of women who support FGM by place of residence (Urban vs. Rural support).
[15] Hope Lewis, Between Irua and “Female Genital Mutilation”: Feminist Human Rights Discourse and the Cultural Divide, 8 Harv. Hum. Rts. J. 1, 7 (1995).
[16] World Health Organization, supra note 2.
[17] Id.
[18] Id.
[19] Id.; see also Lewis, supra note 15. The shock of the initial surgery and subsequent complications can increase the risk of psychological disorders among women subjected to the procedure. In her article Lewis gives a graphic depiction of a young girl immobilized to undergo the procedure—eliciting highly emotional responses to the girl’s both physical and psychological pain.
[20] Equality Now, supra note 10.
[21] Forwarduk.org, Female Genital Mutilation: Human Rights and Cultural Relativity, (last visited Dec. 6, 2012), https://www.forwarduk.org.uk/key-issues/fgm/human-rights.
[22] Id. citing Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3, Arts. 5, 2, 19(1), 24(1), and 37(1); see also Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, (June 26, 1987), 23 I.L.M. 1027 [hereinafter Convention Against Torture]. Ratified by the United States in 1994.
[23] Leigh A. Trueblood, Female Genital Mutilation: A Discussion of International Human Rights Instruments, Cultural Sovereignty and Dominance Theory, 28 Denv. J. Int’l L. & Pol’y 437, 439 (2000). In her article, Trueblood describes the conflict between international treaties concerning human rights and notions of cultural sovereignty. She argues that FGM cannot be eradicated without changing societies—and under international law, states have the right to do so and enforce universal standards of human rights.
[24] Id.
[25] See In Re Kasinga, 21 I. & N. Dec. 357 (BIA 1996).
[26] Steven W. Mosher, A Mother’s Ordeal: One Woman’s Fight Against China’s One-Child Policy (Harcourt Brace Jovanovich, 1993).
[27] Raina Nortick, Singled Out: A Proposal to Extend Asylum to the Unmarried Partners of Chinese Nationals Fleeing the One-Child Policy, 75 Fordham L. Rev. 2153, 2157 (2007).
[28] Id.
[29] Id.
[30] Id.
[31] Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, China Country Reports on Human Rights Practices (2011), available at https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper. (Go to Country Regions and select China from the drop down menu.)
[32] Id.
[33] Id.
[34] Id. Chinese Law on the Protection of Juveniles forbids infanticide; however, there was evidence that the practice continued. According to the National Population and Family-planning Commission, a handful of doctors have been charged with infanticide under this law.
[35] Nortick, supra note 27.
[36] Id.
[37] Ed Flanigan, Chinese Say One Child is Enough as Beijing Weighs end of Policy, Behind the Wall—NBC News, (Nov. 2012) available at https://behindthewall.nbcnews.com/_news/2012/11/01/14856974-chinese-say-one-child-is-enough-as-beijing-weighs-end-of-policy?lite.
[38] U.S. China reports, supra note 31.
[39] Id.
[40] Id.
[41] Id.
[42] Nortick, supra note 27.
[43] Amnesty International, Women’s Health, Sexual and Reproductive Rights, (last visited Dec. 6, 2012), https://www.amnestyusa.org/our-work/issues/women-s-rights/women-s-health-sexual-and-reproductive-rights
[44] See Paula Abrams, Population Politics: Reproductive Rights and U.S. Asylum Policy, 14 Geo. Immigr. L.J. 881 (2000).
[45] Id.
[46] See Asia News, Males only and ageing: problems of the one-child policy, https://www.asianews.it/news-en/Males-only-and-ageing:-problems-of-the-one-child-policy-6983.html
[47] Coercive Population Control in China: New Evidence of Forced Abortion and Forced Sterilization, Hearings Before the House of Representatives Committee on International Relations, 107 Cong. (2001).
[48] April Adell, Fear of Persecution for Opposition to Violations of the International Human Right to Found A Family As A Legal Entitlement to Asylum for Chinese Refugees, 24 Hofstra L. Rev. 789 (1996). Adell submits that it is a bedrock human right to be able to rear children, and determine the size of a family. She argues that although the Universal Declaration of Human Rights—codifying this right to family—is nonbinding, it is generally recognized in several binding human rights treaties. See also The Universal Declaration of Human Rights G.A. Res. 217(A), U.N. GAOR, 3d Sess., 183d plen. mtg., U.N. Doc. A/810 art. 16 (1948), which states that “[m]en and women of full age . . . have the right to . . . found a family” and that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 23, 999 U.N.T.S. 171, 179, 6 I.L.M. 368 (1967); International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, art. 10, G.A. Res. 2200, U.N. GAOR 21st Sess., 1496th plen. mtg., U.N. Doc. A/6316 (1966).
[49] 8 U.S.C. § 1101(a)(42)(A). This legal framework is directly derived from international law. See also UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at https://www.unhcr.org/refworld/docid/3be01b964.html [accessed 16 November 2012].
[50] 8 U.S.C.A. § 1158(b)(1)(B)(i); INS v. Cardoza-Fonseca, 480 U.S. 421, 456 (1987).
[51] Id. at 423. “Since 1980, the Immigration and Nationality Act has provided two methods through which an otherwise deportable alien who claims that he will be persecuted if deported can seek relief.”
[52] Id.;8 U.S.C. § 101(a)(42)(A).
[53] INS v. Cardoza-Fonseca, 480 U.S. at. 430–31 (1987).
[54] 8 U.S.C.A. § 1158(b)(1)(B)(ii).
[55] Id.
[56] Id.
[57] Id.; In Re S-M-J-, 21 I. & N. Dec. 722 (BIA 1997).
[58] In Re S-M-J-, 21 I. & N. Dec. 722 (BIA 1997): “Going beyond the nonrefoulement provision, Congress also established asylum as a discretionary form of relief for those who could meet a lesser standard of proof.”
[59] See 8 U.S.C. § 1101(a)(42)(A).
[60] Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
[61] Id.
[62] Id.
[63] In Re Kasinga, 21 I. & N. Dec. 357 (BIA 1996).
[64] In Re Kasinga, 21 I. & N. Dec. at 358.
[65] Id. at 358–59.
[66] Id.
[67] Id.at 359.
[68] Id.
[69] Kasinga, 21 I. & N. Dec. at 359.
[70] Id.
[71] Id.
[72] Id.; 8 U.S.C. § 1101(a)(42)(A)(1994).
[73] Kasinga, 21 I. & N. Dec. at 366.
[74] Id. at 365.
[75] Id.
[76] See e.g., Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008)(holding that “the fact that applicant for withholding of removal has undergone FGM in past cannot, in and of itself, be used to rebut presumption that her life or freedom will be threatened in future.”); Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005)(holding that female genital mutilation performed on a Somali national qualified as “persecution,” such as might support her asylum claim.); and Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004)(holding that an Ethiopian mother and daughter were entitled to protection for establishing a well-founded fear of persecution based on FGM).
[77] See Bah v. Mukasey, 529 F.3d at 114; 8 C.F.R. § 1208.16(b)(1):
This presumption may be rebutted if an asylum officer or immigration judge finds by a preponderance of the evidence:
(A) There has been a fundamental change in circumstances such that the applicant’s life or freedom would not be threatened on account of any of the five grounds mentioned in this paragraph upon the applicant’s removal to that country; or
(B) The applicant could avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so.
[78] 8 C.F.R. § 1208.16(b)(2).
[79] Bah v. Mukasey, 529 F.3d at 114.
[80] Id.
[81] Id.
[82] See Matter of Chang, 20 I. &N. Dec. 38 (BIA 1989).
[83] Id. at 44.
[84] Id.
[85] Id.
[86] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 § 601(a), Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 [hereinafter “IIRIRA”], codified in 8 U.S.C. 1101(42)(B):
For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
[87] Id.
[88] Id.
[89] Matter of Y-T-L-, 23 I. & N. Dec. 601, 605 (BIA 2003).
[90] Id. at 606.
[91] Id. at 606.
[92] Id. at 605–07. The policy reasoning for this holding is that coerced sterilization is viewed as “permanent” and “continuing.” It deprives couples of “the natural fruits of conjugal love, and the society and comfort of the child or children that might eventually have been born to them.” In the Board’s view, because the act of forced sterilization is “profound and permanent” and continues to harm the applicant, the fact that an individual has already forced sterilization, or a forced abortion, should not be a “fundamental change” used to rebut evidence of persecution.
[93] Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook, (12th Ed. 2010-2011) at 644; citing Matter of M-F-W- and L-G-, 24 I. & N. Dec. 633, 635–36 (BIA 2008); IIRIRA § 601(a).
[94] Kurzban, supra note 93.
[95] In Re Kasinga, 21 I. & N. Dec. at 358.
[96] Y-T-L-, 23 I. & N. Dec. at 606–07.
[97] Matter of A-T-, 24 I. &N. Dec. 4 (A.G. 2008).
[98] Id. at 6.
[99] Id.
[100] Id.
[101] Y-T-L-, 23 I. & N. Dec. at 606.
[102] See Part I, supra.
[103] Female Genital Mutilation Fact Sheet, WomensHealth.gov, https://www.womenshealth.gov/publications/our-publications/fact-sheet/female-genital-cutting.cfm.
[104] Id.
[105] See BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR, U.S. DEP’T OF STATE, China Country Reports on Human Rights Practices, supra note 31.
[106] Id.
[107] Anjum Gupta, Doctrinal Mutilation: The Board of Immigration Appeals’ Flawed Analysis of the “Continuing Persecution” Doctrine in Claims Based on Past Female Genital Mutilation, 23 Geo. Immigr. L.J. 39 (2008).
[108] Id. at 5.
[109] Id. at 6. “The regulations provide simply that once a person has established past persecution, a presumption of future persecution arises, and that can be rebutted if the government is able to show that circumstances have changed such that the applicant no longer has a fear of future persecution.”
[110] H.R. REP. NO. 104–469(1) at 173.
[111] Id. at 174.
[112] Gupta, supra note 107. “Once it is clear that the only permissible basis for the holding in Matter of Y-T-L- is the continuing persecution reasoning, it becomes equally clear that such reasoning must be applied in the context of female genital mutilation as well.”
[113] Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005).
[114] Id. at 789.
[115] Id.
[116] Id. citing Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 2005); In re Y-T-L, 23 I. & N. Dec. 601 (BIA 2003).
[117] Mohammed, 400 F.3d at 789 citing Qu, 399 F.3d at 1202, and Ge v. Ashcroft, 367 F.3d 1121, 1127 (9th Cir. 2004).
[118] See Mohammed, 400 F.3d at 789–801.
[119] Id. at 800–01.
[120] See Diallo v. Mukasey, 268 F. App’x 373 (6th Cir. 2008).
[121] Id. at 380.
[122] Id. “The soundness of the decision in Mohammed, however, is debatable because Congress specifically defined the term “refugee” to include victims of forced sterilization. No equivalent “shortcut” to refugee status applies to those subjected to FGM.”
[123] Id. at 381.
[124] See Testimony before the U.S. House of Representatives, Coercive Population Control in China: New Evidence of Forced Abortion and Forced Sterilization, Hearings Before the House of Representatives Committee on International Relations, 107 Cong. (2001).“This population policy that began in the 1980’s is a policy under the absolute control of the Communist government, a policy that grossly violates human nature as well as human rights, and based exclusively on political considerations, it is a barbaric action.”
[125] Gupta, supra note 107.
[126] Acosta, 19 I. & N. Dec. at 223.
[127] See Id.
[128] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, Art 33(1). available at: https://www.unhcr.org/refworld/docid/3be01b964.html [accessed 17 November 2012].“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.”
[129] UN High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, available at: https://www.unhcr.org/refworld/docid/45f17a1a4.html [accessed 17 November 2012].
[130] 8 U.S.C. § 1101(A)(42)(a).
