On 13 June 1996, the Board of Immigration Appeals (BIA) ordered that Fauziya Kasinga be granted political asylum. The majority decision, written by Paul W. Schmidt, Chairman of the BIA, made the following seven major findings in the case:
First, the record before us reflects that the applicant is a credible witness. Second, FGM, as practiced by the Tchamba-Kunsuntu Tribe of Togo and documented in the record, constitutes persecution. Third, the applicant is a member of a social group consisting of young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice. Fourth, the applicant has a well-founded fear of persecution. Fifth, the persecution the applicant fears is "on account of" her social group. Sixth, the applicant's fear of persecution is country-wide. Seventh, and finally, the applicant is eligible for and should be granted asylum in the exercise of discretion.
The decision also noted that:
(1) FGM is widely practiced in Togo; (2) acts of violence and abuse against women in Togo are tolerated by the police; (3) the Government of Togo has a poor human rights record; and (4) most African women can expect little governmental protection from FGM.
Several members of the BIA filed concurring opinions. One of the twelve members of the BIA, Fred W. Vacca, dissented from the BIA decision, stating "I respectfully dissent without opinion."
Fauziya Kasinga was detained in the United States for almost sixteen months&emdash;from 17 December 1994, the day she arrived seeking political asylum, to 24 April 1996. She was seventeen years old when she fled her home country of Togo immediately following a forced marriage to a 45 year-old man who already had three other wives. Although Fauziya refused to sign the marriage certificate, she was declared wed and confined to a room to await the arrival of a circumciser who would subject her to female genital mutilation. Fauziya's father had protected her and her sisters from the practice, but upon his death, Fauziya's mother, originally from Benin, was effectively banished from the tribe, and control over Fauziya&emdash;the youngest and only unmarried daughter&emdash;passed to his family. Fauziya managed to escape before the circumciser arrived and made her way to the United States, where she has a cousin who lives in Washington, DC. On 25 August 1995 in Philadelphia, Pennsylvania, Judge Donald V. Ferlise denied Fauziya Kasinga's application for political asylum. In his decision, Judge Ferlise stated that even if he believed Fauziya Kasinga, which he did not, the record "does not reveal any past or future or present persecution." The BIA decision overturned this ruling and established a precedent, which is binding on all U.S. immigration judges, that FGM constitutes persecution.
The BIA decision did not address Fauziya Kasinga's claim that she had a well-founded fear of persecution on the basis of a forced polygamous marriage. With regard to the detention of Fauziya Kasinga by the Immigration and Naturalization Service (INS), pending the outcome of her appeal, the majority opinion of the BIA decision included the following footnote:
Although not before us, the applicant's detention obviously had an impact on the trial and presentation of this case. The INS General Counsel characterizes the applicant's case as a "venture into new and difficult territory" of great importance... In light of that characterization, the applicant's young age, and her lack of any known criminal record, it is not apparent how the resolution of such important issues was facilitated by the applicant's long-term detention. The Commissioner and the General Counsel might well wish to review this policy should future cases of this type arise. An estimated 100 million girls and women around the world have undergone female genital mutilation&emdash;the partial or total removal of the clitoris (clitoridectomy), the removal of the entire clitoris and the cutting of the labia minora (excision), or in its most extreme form the removal of all external genitalia and the stitching together of the two sides of the vulva (infibulation). For those who survive the cutting, which is generally done without anaesthetic, lifelong health consequences include chronic infection, severe pain during urination, menstruation, sexual intercourse, and childbirth, and psychological trauma. An extreme form of many traditional practices used around the world to deny women independence and equality, FGM is defended as a rite of passage and a social prerequisite of marriage. It is used to control women's sexuality by safeguarding virginity and suppressing sexual desire.
Write to Board of Immigration Appeals Chairman Paul W. Schmidt, thanking him for his decision, which finally brings justice to Fauziya Kasinga and which recognizes that FGM does constitute persecution.
Paul W. Schmidt, Chairman
U.S. Department of Justice
Board of Immigration Appeals
5107 Leesburg Pike
Falls Church, VA 22041