Finally, Some Clarity for Gender-Based Asylum Claims
Advocates cheered in 1996 when a landmark case, In re Kasinga, recognized that female genital mutilation (FGM) could be a basis for asylum. Ms. Kasinga was granted protection based on her membership in the social group of young women in her tribe who oppose FGM and have not yet been subjected to it. Although the Kasinga decision declined to discuss whether FGM would always be considered persecution, and whether or not women who have undergone FGM would still qualify for asylum, it set an important precedent that resulted in the availability of asylum in the US for thousands of women and girls who are faced with the prospect of FGM every year.
Fast forward to 2005-2007 when Ms. A-T- (her identity remains confidential) was denied asylum because she had already been forced to undergo FGM and could not prove to the court's satisfaction that she would face future persecution if forced to return to Mali. The judge reasoned that FGM was a one-time occurrence that cannot be repeated and refused to acknowledge that the circumstances described by Ms. A-T- (forced FGM as a child, growing up with a violent and controlling father, and impending forced marriage to a first cousin) constituted persecution, a requirement for asylum.
Thanks to a strong, dedicated, and heavy-hitting legal team, former Attorney General Michael Mukasey intervened in 2008 and vacated the decision. Mukasey reasoned that because forms of gender-based violence are often interconnected, evidence of past FGM may indeed indicate that a woman will be subjected to other forms of gender-based persecution in the future. The case was sent back to the original immigration court for a new hearing. This time around, the judge found that Ms. A-T- had suffered past persecution (FGM) as a member of the particular social group "Bambaran women in families that practice the Wahabi religion," and that the threat of forced marriage to her cousin in Mali rose to the level of persecution.
While we celebrate this important victory for Ms. A-T- and the important precedent it sets for future cases, we note that clear and comprehensive guidelines for gender-based asylum claims are still desperately needed to protect women and girls who face torture in their home countries simply because they are female.