Tuesday, August 25, 2009
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Court Revives Asylum Claim Based on Genital Mutilation
By STEVEN M. ELLIS, Staff Writer
The Board of Immigration Appeals erred when it determined that an Indonesian native failed to show past persecution because the circumcision his daughter endured was “less extreme” than other types of female genital mutilation, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Labeling the board’s determination “fundamentally flawed,” the court directed it to consider whether the man and his family could qualify for asylum based on the girl’s past experience or the threat that her sister might face a similar experience face if returned to Indonesia.
Bob Benito Benyamin applied for asylum and withholding of removal in 2002, listing as derivative beneficiaries his wife—a native of Venezuela—along with his son and his two daughters.
Benyamin and his wife asserted that their older daughter, Annisa, suffered persecution in Indonesia while still an infant when Benyamin’s stepmother ordered Annisa’s circumcision without the couple’s consent.
Benyamin also contended that he feared his other daughter, Anakarina, might face similar mutilation if the family was forced to return, and argued that he faced past persecution and the threat of future persecution in Indonesia as a Muslim man married to a Roman Catholic woman.
An immigration judge concluded that she could only consider whether Benyamin himself had suffered past persecution or had a well-founded fear of future persecution because none of his other family members had submitted their own application, and determined that Benyamin suffered no specific harm in Indonesia as a result of his marriage to a Catholic woman.
The judge found that the procedure performed on Annisa was a “harm,” but nevertheless determined that neither Benyamin nor his wife alleged that any particular harm came to them for opposing the circumcision. She also noted that a State Department report indicated that “the physical harm” of female genital mutilation as practiced in Indonesia appeared to be “minimal.”
Despite making no adverse credibility determination, the judge further found no evidence to support the couple’s fear that Anakarina would be forced to undergo the procedure if the family were returned to Indonesia, and denied Benyamin’s application.
The Board of Immigration Appeals agreed with the judge’s finding that Benyamin did not suffer past persecution and that the discrimination and ill treatment Benyamin’s wife suffered in Indonesia did not rise to the level of persecution.
The board then compared the procedure Annisa underwent to female genital mutilation described in a case involving Ethiopia and determined that Annisa’s experience did not rise to the level of persecution in that the Indonesian form was less severe than the Ethiopian procedure and “involves minimal short-term pain, suffering, and complications.”
Concluding that Benyamin failed to establish a risk of future persecution because the record did not indicate that individuals in mixed-religion marriages were persecuted in Indonesia or that parents who oppose female genital mutilation were persecuted, the board affirmed the immigration judge’s denial of relief.
On appeal, Judge M. Margaret McKeown wrote that the board correctly concluded that Benyamin failed to show that he faced past persecution or the threat of future persecution in Indonesia on account of his social group membership.
But McKeown said that the board’s dismissal of the procedure Annisa underwent as a lesser form of circumcision—and the board’s failure to consider whether the threat that Anakarina would be forced to undergo the same procedure could be a ground for relief—were error because the procedure “undoubtedly constitutes past persecution.”
She explained:
“[T]he BIA’s attempt to parse the distinction between differing forms of female genital mutilation is not only a threat to the rights of women in a civilized society, but also runs counter to our circuit precedent….
“In [Mohammed v. Gonzales (2005) 400 F.3d 785] we referenced the World Health Organization’s report that ‘even the least drastic form of female genital mutilation can cause a wide range of complications such as infection, hemorrhaging from the clitoral artery during childbirth, formation of abscesses, development of cysts and tumors, repeated urinary tract infections, and [pseudo] infibulation.’…
“To suggest, as did the IJ, that there is no persecution because of minimal physical harm ignores both the involuntary nature of the procedure and the very real follow-on consequences.”
Joined by Judges Betty B. Fletcher and N. Randy Smith, McKeown remanded for the Board of Immigration Appeals to consider whether Benyamin might derivatively qualify for asylum based on the persecution already suffered by Annisa or the threat of future persecution facing Anakarina.
The court also directed the board to consider the family’s eligibility for asylum on humanitarian grounds given the severity of Annisa’s past persecution.
The case is Benyamin v. Holder, No. 05-71488.
Copyright 2009, Metropolitan News Company