United States: Female Genital Mutilation and Political Asylum—The Case of Fauziya Kasinga

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1 Apr 1996

Fauziya Kasinga has been in detention since 17 December 1994, the day she arrived in the United States seeking political asylum. She was seventeen years old, and had fled her home country of Togo immediately following a forced marriage to a 45-year-old man with three other wives. Although Fauziya refused to sign the marriage certificate, she was declared wed and confined to a storage room to await the arrival of a circumciser who would subject her to female genital mutilation (FGM). 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 Tchamba-Kunsuntu tribe, and control over Fauziya passed to her father's 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. When she arrived at Newark International Airport, Fauziya Kasinga requested political asylum and was immediately detained by the Immigration and Naturalization Service (INS).

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, which he did not, the record "does not reveal any past or future or present persecution" because she could not be characterized as being persecuted for membership in a particular social group. He found that as all women from the tribe she belonged to are pressured into circumcision, she was "not being singled out for circumcision." The case of Fauziya Kasinga is currently pending before the Board of Immigration Appeals. Meanwhile, Fauziya remains in detention at York County Prison in Pennsylvania, where she is suffering from severe depression. Following Judge Ferlise's decision, a request for parole pending appeal was denied by the INS on 15 November 1995. On 13 March 1996, a writ of habeas corpus was filed on behalf of Fauziya Kasinga, detailing the harsh conditions of her detention and petitioning for her release.

There have been several recent decisions by immigration judges relating to FGM. On 28 April 1995 in Baltimore, Maryland, Judge John F. Gossart, Jr. denied an application for political asylum in the case of a woman from Sierra Leone, identified as DJ. In his decision, Judge Gossart described circumcision as "an important ritual" which "binds the tribe." He noted that the applicant "cannot change the fact that she is a female, but she can change her mind with regards to her position towards the FGM practices. It is not beyond [her] control to acquiesce to the tribal position on FGM." The immigration judge ruled that fear of FGM was not persecution under the Refugee Act. He observed that "while some cultures view FGM as abhorrent and/or even barbaric, others do not." However, on 23 March 1994 in Portland, Oregon, Judge Kendall Warren ordered the suspension of a pending deportation order against a Nigerian woman, Lydia Oluloro, on the ground that her two daughters would be at risk of FGM, which he described as "cruel, painful and dangerous." In another case, decided in August 1995 in Arlington, Virginia, Judge Nejelski granted political asylum to a woman from Sierra Leone, identified as MK. In his decision, Judge Nejelski held that "forced female genital mutilation clearly merits being recognized as a form of persecution."

Fauziya Kasinga's appeal represents the first case in which the Board of Immigration Appeals will consider whether FGM constitutes persecution for the purposes of refugee status as defined by Section 101(a)(42) of the Refugee Act. This definition, drawn from the United Nations Convention relating to the Status of Refugees, requires that the asylum applicant must demonstrate an unwillingness or inability to return to his or her 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." On 26 May 1995, the INS introduced guidelines for asylum officers in adjudicating gender-based asylum claims. The guidelines include a reference to genital mutilation as a form of mistreatment directed against girls and women which can serve as evidence of past persecution. These guidelines are not binding, however, on immigration judges.

Representative Patricia Schroeder, together with twenty-five other Members of Congress, has appealed to the Attorney General for the release of Fauziya Kasinga and expressed concern that in her case the immigration judge did not accept the principle that FGM constitutes a form of persecution that qualifies someone for political asylum. The Members of Congress have stated that "FGM is a human rights violation, and it would be a grave injustice for our political asylum process to indicate otherwise and knowingly send women back to their countries of origin and face this cruel and degrading practice."

An estimated 100 million girls and women around the world have undergone female genital mutilation - 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.

What You Can Do: 

Write to Attorney General Janet Reno and to INS Commissioner Doris Meissner, calling for the release of Fauziya Kasinga and for reissuance of the May 1995 guidelines by the INS as regulations that would be binding both on asylum officers and immigration judges. Recall that at the United Nations Fourth World Conference on Women, held in Beijing, China, in September 1995, First Lady Hillary Rodham Clinton, on behalf of the United States, affirmed that "it is a violation of human rights when young girls are brutalized by the painful and degrading practice of genital mutilation."

The Honorable Janet Reno
Attorney General
Department of Justice
Room 4400
Tenth and Constitution Ave. NW
Washington, DC 20530
Fax: 202-514-4371

The Honorable Doris Meissner
Immigration and Naturalization Service
Room 7100
425 I Street NW
Washington, DC 20536
Fax: 202-514-3296