Tuesday, January 3, 2006
Ninth Circuit Rules:
Fear of Genital Mutilation Enough to Support 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 is eligible for asylum, the Ninth U.S. Circuit Court of Appeals ruled Friday.
In a 6-5 decision on rehearing en banc, the court held that Almaz Sayoum Abebe and Sisay Mengistu established that despite their opposition to the practice, they might be powerless to stop it from being performed on their child—a U.S. citizen—and would suffer social condemnation even if they could.
A three-judge panel reached a contrary conclusion in August 2004, citing evidence that Ethiopian girls are not subjected to the genital mutilation unless their parents approve.
But Judge Richard Clifton, author of the en banc opinion, noted that the applicants were not required to prove that the child was likely to be mutilated, only that their fear was well-founded, and that the couple belongs to an ethnic group in which virtually all of the young girls are mutilated.
Clifton agreed that pressures from other family members and from the community could result in the petitioners’ daughter, Amen, being subjected to genital mutilation, despite the parents’ expressed objections.
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.
Clifton agreed with the IJ with respect to Mengistu’s political activities, but said the evidence did not support the IJ’s conclusion with respect to genital mutilation.
The judge cited a State Department report claiming that “[m]ost Ethiopian females have undergone some form of genital mutilation,” particularly in rural areas such as that where Mengistu and Abebe’s family members lived.
Clifton said “[t]he evidence indicated that the probability that Amen would have to undergo this ritual greatly exceeded the threshold required to establish eligibility for asylum.”
The court rejected the government’s argument that the couple failed to exhaust administrative remedies with respect to the mutilation claim, which was rejected by the IJ but not argued in their BIA brief. Because the BIA did not limit its affirmance to any specific issue or issues, Clifton explained, all issues ruled on by the IJ are considered exhausted.
The court declined to rule on another issue raised by the government, which questioned whether immigrant parents can claim asylum based on fear that their U.S. citizen child, as opposed to themselves, will be persecuted. That issue was not ruled on by the IJ or the BIA, Clifton explained, and may be considered on remand.
Clifton was joined by Chief Judge Mary M. Schroeder and Judges Sidney R. Thomas, William A. Fletcher, Richard A. Paez, and Marsha S. Berzon.
Judge Richard C. Tallman argued in dissent that the majority was wrong on the exhaustion issue and the mutilation claim was procedurally barred. An unqualified affirmance by the BIA satisfies the exhaustion requirement only as to “issues adequately raised on appeal,” he argued, and “does not equate to a blanket acceptance of the IJ’s entire decision when only parts of that decision are appealed.”
Even if the merits were properly before the court, Tallman went on to say, relief should be denied on the ground that the U.S. citizenship of the child necessarily precludes a grant of asylum to the parents.
The immigration laws definitively state when an asylum claim may be based on fear that another family member, rather than the applicant, will be persecuted, and no such claim is authorized when the person who might be persecuted is a citizen, Tallman reasoned. The Seventh Circuit, he noted, so ruled in a similar case two years ago.
The dissent was joined by Judges Alex Kozinski, Pamela Ann Rymer, Jay S. Bybee, and Consuelo M. Callahan.
The case is Abebe v. Gonzales, 02-72390.
Copyright 2006, Metropolitan News Company