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Immigration Judge Grants Withholding to Adult Woman Who Had Suffered FGM As An Infant and Who Feared Forced Marriage

by David L. Cleveland

Immigration Judge John F. Gossart, Jr. granted withholding of removal to a 32-year-old woman from Mali, who had suffered FGM as an infant, in a 22-page Decision dated April 18, 2011. [Baltimore MD Immigration Court; a redacted Decision is available at bibdaily.com].

Judge Gossart also found that being subject to repeated spousal rape in the future would rise to the level of persecution.

Respondent had been denied all relief by the same IJ in 2005, whose decision was affirmed in Matter of A-T-, 24 I&N Dec. 296 (BIA 2007). The Attorney General then vacated that decision: Matter of A-T-, 24 I&N Dec. 617 (AG 2008). The BIA then remanded the case: Matter of A-T-, 25 I&N Dec. 4 (BIA 2009). Additional testimony was provided before the IJ in December 2010.

Facts

Ms. A-T- was born in Mali. She is a member of the Bambara tribe; her family adheres to the Wahabi faith. The Wahabi are conservative Muslims: they believe that women should cover their entire bodies, including their faces. As an infant, Ms. A-T- was subjected to female genital mutilation ("FGM"). She does not remember the event.

In October 2000, Ms. A-T- arrived in the United States as a visitor. Three years later, her father decreed that she must marry her first cousin. Her mother came to the United States in 2007 and told her to return to marry the cousin, but Ms. A-T- refused.

Ms. A-T- testified that she "is opposed to FGM because of the continuing pain and suffering FGM has caused her. She experiences severe pain when she has her period or when she has intercourse, and she had difficulty giving birth to her children." [Decision at page 4].

She also testified that she "is opposed to marrying her cousin because she believes that a woman should be able to choose her own husband." [Decision at 5]. If she married him, she could not use birth control without his permission, choose the names of her children, choose her religion, refuse to have sex, work without his permission, or continue her studies. Furthermore, she would have no right to divorce, whereas the husband would be free to take other wives.

Mali has no law prohibiting spousal rape and the police very rarely intervene in "domestic disputes."

If she did not marry the cousin, she would be beaten and ostracized.

A large number of exhibits were admitted into evidence, including: two reports from the Immigration and Refugee Board of Canada; three reports from UN Media IRIN; as well as reports from the World Health Organization and the Department of State.

Credibility

The testimony of Ms. A-T- on remand was consistent with the testimony she provided in 2005 and with her written statements. Her account was consistent with country conditions. She was "responsive and candid, even when acknowledging facts detrimental to her claims." [Decision at 13]. The court found her to be credible.

"Bambaran women in families that subscribe to restrictive practices" is NOT a cognizable "particular social group."

Ms.A-T- argued that she is a member of a particular social group of "Bambaran women in families that subscribe to restrictive practices." [Decision at 13]. Such a group, however, is too amorphous. The phrase "restrictive practices" is vague. Even if, say, five such "practices" were identified, would a family that engaged in only one of them qualify?

"Bambaran women in families that practice the Wahabi religion" IS a cognizable "particular social group."

"Bambaran women in families that practice the Wahabi religion" is a particular, and visible group in Mali. Ethnicity, gender, and religion are not subjective or amorphous. Such women are "perceived as a group by society." Furthermore, Ms. A-T- cannot change "her gender, her ethnicity, or her family's religion." [Decision at 15].

Her father inflicted FGM on her because he believed that would control her sexuality and "render her more submissive." [Decision at 15]. Her father believes that men should have complete control over their women, including their sexuality. Therefore, her father inflicted FGM on her "because of her membership in the particular social group of 'Bambaran women in families that practice the Wahabi religion.'" [Decision at 16].

Ms. A-T- suffered past persecution, and therefore is entitled to a presumption of future persecution. [Decision at 16]. The IJ did not elucidate as to what future persecution might occur as a result of the FGM done 30 years ago.

This forced marriage is persecution. A woman who alleges she is merely reluctant to marry a man, and faced only mild familial pressure to do so, does not have a well-founded fear of future persecution. But, Ms. A-T- testified she vigorously opposed her marriage, because she would suffer a great loss of freedom. The "prospect of being subject to repeated spousal rape would, standing alone, rise to the level of persecution." [Decision at 18].

Her father wants her to marry her cousin so he can continue to control her life. Thus, the father "is motivated to force the Respondent to marry her cousin at least in part because she is a Bambaran woman in a Wahabi family." [Decision at 18].

Internal relocation is not reasonable.

The DHS argued that Ms. A-T- could avoid forced marriage by relocation within Mali. However, Ms. A-T- would be unable to find work to support herself. She might be forced into prostitution. She would not be able to hide, "since Mali is small and almost everyone knows each other." [Decision at 5].

Comments of the author

  1. What if there were no forced marriage in this case; would Ms. A-T- have prevailed relying solely upon her FGM claim?

    Ms. A-T- suffered FGM as an infant, which was perhaps 30 years ago. She testified that she "is opposed to FGM because of the continuing pain and suffering FGM has caused her. She experiences severe pain when she has her period or when she has intercourse, and she had difficulty giving birth to her children." [Decision at page 4].

    These comments by the IJ suggest that Ms. A-T- might have prevailed, even in the absence of her forced marriage claim.

    Ms. A-T- did not argue that she would be subject to "recircumcision" upon return to Mali. [note 4, at page 13 of Decision]. Neither she nor the IJ elucidated what kind of future "FGM' harm she would suffer. She said she experiences "continuing pain" even in the year 2010, arising from the event in her infancy. Presumably, she would suffer that harm in Mali if she were to return there next year.

    "Infibulation," the re-sewing of the vaginal walls, is practiced in some countries. Ask your client if she fears that in her country. Ask your medical doctor to opine as the length of time of future suffering: would this woman experience great pain until she stops her period and stops having children?

  2. What was the exact kind of FGM suffered by your client?

    There are many kinds of FGM. FGM is often performed by an illiterate grandmother, who did not go to medical school, and who does not have a written protocol to follow. Different implements are used, such as razors, scissors, or pieces of glass. The victim is usually conscious, meaning that she will jerk, convulse, writhe, and scream. This adds a difficulty to the procedure. It could be done outdoors at dusk or inside a darkened hut. Thus, FGM will vary not only from village to village, from grandmother to grandmother, but probably would vary even as to the same grandmother.

    Different parts of the genitals may be removed: the prepuce, clitoris, outer labia, and inner labia. After the removal, the vagina could be sewn up, leaving only a small opening for urine or menstruation. Other types of damage could be done, such as pricking, piercing, rubbing, stretching, and cauterization by burning.

    Ask your client to describe as much as she can about her FGM, and ask her to learn the parts of her anatomy. Ask your OB-GYN doctor to examine your client closely and try to identify which parts were removed or damaged.

  3. What kinds of problems did your client suffer?

    The World Health Organization publishes Fact Sheets about FGM. Common problems that arise and continue years later include:

    -painful and slow urination, spraying of urine
    -urine retention
    -if woman has been sewn up, urine goes from the urethra into the vagina before leaving the body, which can take up to 30 minutes, which leads to more urinary infections
    -pain upon washing
    -dysparenuia [painful sex]
    -not able to engage in normal sex; prolapse of labia during sex
    -greatly weakened orgasms
    -painful friction against undergarments during exercise
    -severe bleeding
    -open sores
    -sepsis [bacterial infection]
    -urinary tract infections
    -bladder infections
    -HIV infections
    -incontinence of urine or feces
    -infertility
    -spasm of vagina
    -painful pelvic exams; doctor may not detect cervical cancer at its early stages
    -numbness
    -cysts [an abnormal structure that often contains liquid or semisolid substance]
    -an ovarian dermoid cyst is one that contains multiple cystic spaces; can lead to cancer
    -unable to deliver vaginally
    -newborn complications and deaths
    -increased risk of death for mother
    -increased fistulas of the bladder and rectum [A fistula is an abnormal connection between two parts of the body. When feces from the rectum go into the bladder, or when urine from the bladder goes into the rectum, infections result.]
    -feelings of incompleteness
    -fear
    -inferiority
    -suppression
    -irritability
    -nightmares
    -profound depression
    -higher risk for psychiatric and psychosomatic diseases

    One of the applicants in Matter of S-A-K- and H-A-H, 24 I&N Dec. 464 (BIA 2008) was sewn shut with a thorn. Her husband tried to rape her, but could not penetrate her. He was only able to rape her by cutting her open, causing her to bleed for many days. The other applicant in that case was sewn shut five times.

    The IJ did not cite Fesehaye v. Holder, 607 F.3d 523, 528 (8th Cir. 2010) where relief was denied to a woman who had suffered FGM at the age of five, and who remembered the event. She testified the procedure was very painful and that she continues to suffer physically and emotionally. That court denied relief, on the ground that she had not established that one of the five grounds for asylum was the basis for the FGM. [!]

    The IJ did not cite Matter of S-A-K- and H-A-H, 24 I&N Dec. 464 (BIA 2008) (FGM can be so atrocious that applicant deserves asylum on humanitarian grounds, as per 8 C.F.R. 1208.13(b) (1) (iii), regardless of whether there is a well-founded fear of future persecution.

  4. Perhaps Ms. A-T- is a member of another particular social group: "Bambaran women in domestic relationships who are unable to leave."

    Ms. A-T- was a member of a certain ethnic group and religion. Your client may not be. In that event, follow the suggestion of the DHS in a different case: Matter of L-R-. The DHS is on record as supporting asylum for this group: "Mexican women in domestic relationships who are unable to leave." See the 31-page brief filed by DHS on April 13, 2009 in Matter of L-R-, published on AILA InfoNet at Doc. 09071664 (posted July 16, 2009).

  5. She is also a member of yet another particular social group: "Malian women who fled from a domestic relationship."

    For a time, she was in a relationship she was "unable to leave." That is particular social group #1. Then, she did leave; she fled. So, now she is in particular social group #2: "women who have fled from a domestic relationship." She may fail in her claim that she deserves asylum as a result of her membership in group #1; regardless, she may assert an additional claim: "she has a well-founded fear of future persecution as a result of being a member of group #2."

    The Third Circuit has recognized that a woman was a member of three different particular social groups: 1] women who dated police officers; 2] dental hygiene students; and 3] "women who escaped involuntary servitude after being abducted and confined." Gomez-Zuluaga v. Mukasey, 527 F.3d 330, 348 (3rd Cir. 2008).

    Ask your client if she is a member of more than one particular social group.

  6. Mali is a small country?

    The IJ found that respondent he would not be able to hide, "since Mali is small and almost everyone knows each other." [Decision at 5]. Mali is about 1.2 million square kilometers, making close in size to South Africa and twice the State of Texas. It is bigger than Egypt, Ethiopia, and Kenya.


About The Author

David L. Cleveland is a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 35 countries.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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