Monday, August 16, 2004
Ninth Circuit Rules:
Fear of Genital Mutilation Not Enough for Asylum Grant
By KENNETH OFGANG, Staff Writer/Appellate Courts
An Ethiopian couple who say they fear their young daughter will be subjected to female genital mutilation if they are forced to return to their homeland are not eligible for asylum, the Ninth U.S. Circuit Court of Appeals ruled Friday.
A divided panel held that Almaz Sayoum Abebe and Sisay Mengistu failed to prove that they were subjected to past persecution or that they have a reasonable fear of future persecution. Evidence shows that Ethiopian girls are not subjected to the genital mutilation unless their parents approve, Judge Johnnie B. Rawlinson wrote for the court.
Senior Judge Arthur L. Alarcon concurred, but Senior Judge Warren Ferguson dissented. Pressures from other family members and from the community could result in the petitioners’ daughter being subjected to genital mutilation, despite the parents’ expressed objections, the dissenting judge argued.
Opposition Party Member
Mengistu and Abebe were married in 1988. Mengistu, no relation to the former Marxist-Leninist dictator of his home country, Mengistu Haile Mariam, came to the United States in 1990 to study.
His wife came three years later.
Megistu told the immigration judge that he was a member of the Ethiopian Peoples Revolutionary Party, which was anti-communist, and that he was forced to undergo political indoctrination before coming to this country, but that he does not support the “transitional” government that replaced the Communist regime in 1991.
While in this country, he said, he joined Medhin, which is opposed to the transitional government and supportive of democracy. He acknowledged that some members of Medhin favor violent overthrow of the transitional regime, but insisted he is not among them.
If returned to Ethiopia, he testified, he fears imprisonment. That fear, he said, is based on articles in exile publications and stories he heard from other members.
Abebe testified that she would not allow the couple’s daughter, a U.S. citizen, to be mutilated, as she was as a child. She said that she expected ostracism from her family as a result of that stance.
The immigration judge, finding that the couple had not established asylum eligibility, said Mengistu was “bootstrapping”—that he had joined an anti-government organization while he was in the United States, and after he had applied for asylum, then made his membership in that group an issue in the asylum proceedings.
The IJ also cited a State Department report indicating that members of anti-government groups are generally not persecuted in Ethiopia unless they advocate violence, which Mengistu said he did not. He also noted that Mengistu was only minimally active in Medhin; he attended a conference but was not a leader.
The IJ also found that the fear of genital mutilation was not well-founded given the couple’s opposition to the practice.
Rawlinson said the IJ’s conclusion was reasonable and entitled to deference.
The appellate jurist questioned whether immigrant parents can claim asylum based on fear that their U.S. citizen child, as opposed to themselves, will be persecuted. But even if asylum can be granted on that basis generally, she concluded, in this case the claim fails because potential social ostracism is not enough for asylum under the Ninth Circuit’s precedents.
Ferguson, dissenting, said the IJ failed to consider the “pervasive” nature of female genital mutilation in Ethiopia. Neither parent testified that they could prevent their daughter from being subjected to the practice, the dissenting jurist argued, adding that there is no requirement that the applicants show that the child is likely to be forced into the practice, only that the fear of it happening is well-founded.
The case is Abebe v. Ashcroft, 02-72390.
Copyright 2004, Metropolitan News Company