The Ninth Circuit's Latest on FGM

Via ImmigrationProfBlog:

The Ninth Circuit, in an opinion by Judge McKeown (joined by Judges Fletcher and Smith), ruled today that "[t]he BIA’s(Board of Immigration Appeals) determination concerning the persecution Annisa suffered when she was forced to undergo female genital mutilation and the dismissal of that procedure as a lesser form of circumcision was erroneous. Female genital mutilation `constitutes persecution sufficient to support an asylum claim.' Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005) (en banc). The BIA’s conclusion to the contrary is at odds with Ninth Circuit law and represents a misunderstanding of the BIA’s own precedent. The BIA also erred in failing to consider whether the threat that Anakarina would be forced to undergo female genital mutilation in the future could be a ground for relief in this matter. Substantial evidence supports the rejection of Benyamin’s other proffered basis for relief. We grant the petition for review and remand for further proceedings consistent with this opinion."

Benyamin v. Holder, Aug. 24, 2009. Download 05-71488[1]

The San Francisco Chronicle reports:

The Ninth U.S. Circuit Court of Appeals in San Francisco criticized immigration officials who, in ordering the family deported, decided that the girl had suffered no serious harm when her genitals were mutilated as a newborn.

Any form of female genital mutilation is "horrifically brutal" and amounts to persecution under established precedents in federal courts and the Justice Department's immigration courts, the court said.

The 3-0 ruling gives Bob Benito Benyamin, his wife, Anabella Rodriguez, and their three daughters another chance to challenge deportation to Indonesia, where the oldest daughter underwent forced circumcision at 5 days old in 1992 at the orders of a grandmother. The family said she has felt pain from the procedure ever since.

Federal courts have granted asylum to women who fled their countries after being genitally mutilated or threatened with mutilation. In this case, the parents argued that one of their younger daughters would face ritual mutilation if deported to Indonesia, and that sparing her from deportation would be meaningless if the rest of her family was deported.

In denying asylum, immigration judges cited a State Department report that said female genital mutilation as practiced in Indonesia "involves minimal short-term pain, suffering and complications."

Contrasting the procedure to a court's description of mutilation in Ethiopia, where the genitals are cut with knives and recovery takes 40 days, immigration courts said the Indonesian girl had not been persecuted and that neither she nor her family was entitled to asylum.

But the appeals court said its rulings and a World Health Organization report have found that even in its least drastic form, the genital mutilation of women and girls causes physical and psychological harm and the risk of serious complications.

An immigration review board's "attempt to parse the distinction between differing forms of female genital mutilation is ... a threat to the rights of women in a civilized society," Judge Margaret McKeown said in the court ruling.

The court returned the case to the immigration board to decide whether the younger daughter faced a likelihood of genital mutilation in Indonesia. If so, the board must decide whether the entire family is eligible for asylum or whether the parents and their daughters might instead be sent to Venezuela, the mother's native country. The younger daughter was born there.