Friday, March 4, 2005
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Couple Claiming Fear of Daughter’s Mutilation Gain En Banc Review of Ruling Denying Asylum Claim
By DAVID WATSON, Staff Writer
The Ninth U.S. Circuit Court of Appeals agreed yesterday to review en banc a decision rejecting an asylum claim by parents who claimed they feared their daughter would be subjected to genital mutilation if they were forced to return to Ethiopia.
In a brief order, Chief Judge Mary M. Schroeder said a majority of the court’s active judges had voted to reconsider the case of Sisay Mengistu and his wife, Almaz Sayoum Abebe. A three-judge panel ruled in August that the couple failed to show an immigration judge acted unreasonably in finding they did not have a well-founded fear of persecution.
Writing for herself and Senior Judge Arthur L. Alarcon, Judge Johnnie B. Rawlinson distinguished cases from the Second and Sixth Circuits dealing with the practice of female genital mutilation.
In Abankwah v. INS, 185 F.3d 18 (2nd Cir. 1999), she pointed out, the asylum applicant herself faced mutilation in Ghana at the hands of tribal authorities as punishment for violating a taboo against premarital sex and presented evidence that she would be unable to prevent its infliction.
In Abay v. Ashcroft, 368 F.3d 634 (2004), the Sixth Circuit remanded a case involving a mother and daughter from Ethiopia for further development of the record, but that decision, Rawlinson noted, was based in part on a determination that the social ostracism which could result from resistance to the custom of mutilation was enough to support a claim of persecution. In contrast, she said, the Ninth Circuit in Kazlauskas v. INS, 46 F.3d 902 (1995), held that ostracism cannot amount to persecution.
A U.S. State Department report on Ethiopia, while conceding that the practice of female genital mutilation was widespread, concluded that it could be prevented by parents who objected, Rawlinson explained, adding that Abebe and Mengistu “testified that they would not allow their daughter to undergo”the procedure.
Senior Judge Warren J. Ferguson dissented, saying the transcript of the hearing before an immigration judge did not support the majority’s conclusion that the parents asserted they would be able to prevent their 8-year-old daughter from being forced to undergo mutilation, which he called “pervasive”in Ethiopia despite official government opposition.
“The IJ transformed the couple’s expressions of disapproval of FGM, and their desire to protect their daughter from it, into affirmations of their ability to prevent it,”Ferguson declared.
He explained:
“When the IJ suggested that the parents controlled the FGM decision, Mengistu responded, ëIt’s not as easy as that. I mean there will be pressure from the society, from the grandparents.’’
As for Abebe, she “said nothing about her ability to prevent FGM from being performed, only that she did not want it to be done to her daughter and that she feared rejection if she resisted,”Ferguson argued.
The dissenting jurist pointed out that in Olowo v. Ashcroft, 368 F.3d 692, the Seventh Circuit last year rejected the asylum claim of a Nigerian woman who argued she would be unable to prevent the mutilation of her two daughters if forced to return to that country, but at the same time criticized the applicant for her stated intention of taking the children with her despite the risk if she were not granted asylum. The Olowo court, Ferguson noted, ordered that state agencies charged with protecting minors from torture and abuse be notified that the children might be in danger if taken to Nigeria.
“The majority seems to require parents seeking asylum to testify that they would be absolutely powerless to prevent FGM from being performed on their daughters,”Feguson wrote. “But such a requirement would put parents of U.S. citizen girls, like Mengistu and Abebe, in the frightening position of risking court-ordered removal of their children in the event that their asylum claims are rejected.”
He continued:
“In light of this dilemma, and, more importantly, on the strength of the record before us, I would find the concerns expressed by Abebe and Mengistu on the threat of FGM sufficient to establish a well-founded fear of persecution.”
Feguson noted that the government argued derivative asylum claims based on fear of mutilation of U.S. citizen daughters are not legally cognizable, since nothing prevents the daughters from remaining in the United States. He described that contention as “a misreading of the law and an affront to basic human values.”
That issue was not confronted by the majority, which instead agreed with the immigration judge that the parents failed to establish that their fear of such mutilation was well founded, Ferguson said, adding that it would be one of first impression in the Ninth Circuit.
Abay and Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003), demonstrate the divergent conclusions of other circuits on the question, he said.
The dissenting judge declared:
“If Congress failed to clarify, in so many words, that a parent may claim asylum on the basis of a threat to her child, that omission is attributable only to a failure to imagine that so many young children would be independently targeted for persecution. Our consciousness of FGM has now grown, as has our knowledge that hundreds of thousands of children are compelled to serve as child soldiers in deadly conflicts around the worldÖ.Surely, Congress did not intend parents to choose between exposing their children to such threats and abandoning them halfway around the world.’
The case is Abebe v. Gonzales, 02-72390.
Copyright 2005, Metropolitan News Company