Mukasey to BIA: Conditions Have Not Changed in this Woman's Vagina

It is a good day for ladies in America.

Attorney General Mukasey has vacated the decision of the Board of Immigration Appeals (BIA) in In Re A-T-. In that case, the Board held that Alima Traore, a 28-year-old woman from Mali, was ineligible for asylum in the United States because she had already suffered female genital mutilation (FGM), and therefore could not fear it happening again in the future.

In order to obtain asylum in the United States, Ms. Traore had to prove that she has a well-founded fear that she will be persecuted in Mali on account of her race, religion, political opinion, national origin, or membership in a particular social group; and that her government would be unable or unwilling to protect her. (Contrary to popular belief, there is no requirement that the persecution be at the hands of the government itself.) If she could show past persecution, then she would be entitled to a presumption that she had a well-founded fear of future persecution. To rebut that presumption, the government had to prove that conditions had changed so significantly in Mali so that she no longer needed to fear persecution. (That seemed unlikely: not only is FGM still common in Mali, it is even legal.)

At the outset, Ms. Traore's case would have looked quite strong. In past decisions, most notably Matter of Kasinga, the BIA has held that women who oppose FGM and are from tribes or societies that practice it are a "particular social group." Likewise, FGM inflicts such severe harm that it easily meets the standard for "persecution." She therefore was entitled to the presumption of a well-founded fear of future persecution, and by extension probably asylum.

However, the BIA decided that there were changed conditions -not in Mali generally, but in Ms. Traore's vagina. It held that FGM could only be inflicted once, and so the very act of persecution was also a fundamental change in circumstances that rendered her ineligible for asylum.

Neat, huh? Because following that rule, no woman could ever get asylum based on FGM. After all, the ladies only get one vagina apiece! So if it gets hurt badly enough the first time around, it's just a goner! Nothing else bad could ever happen to it! And, obviously, that's awesome. Because the last thing we want is a bunch of women with scarred-up vajayjays cluttering up our country.

Like all the most awesome bad decisions, this one had the distinction of being ridiculous as a matter of law and as a matter of fact. Law-wise, the BIA was in a bit of a pickle due to In Re Y-T-L-, a previous decision in which it held exactly the opposite, finding that forced sterilization -also a one-time event- was not a changed condition that prevented a grant of asylum. To distinguish between the two situations, the BIA cited a section of the asylum law, INA 101(a)(42), which specifically references sterilization. However, all that 101(a)(42) does is state that resistance to "coercive population control" (read: China's one-child policy), including forced abortion and sterilization, is to be considered "persecution on account of political opinion." It has nothing to do with changed circumstances.

And fact-wise, where on earth did the Board get the idea that FGM is a one-time thing? I hate to be graphic, but with the most severe forms of FGM, there will almost certainly be future mutilations. Infibulation (where the external genitalia are removed, and what is left is sewn shut except for a small hole to permit urination), requires that the victim then be cut open again in order to have intercourse or or give birth. While there are certainly less severe forms of FGM, such as clitoral cutting, the very fact that they are less complete undermines the BIA's argument that FGM cannot be repeated.

Luckily for Ms. Traore and other women who seeking asylum on the basis of FGM, the BIA's decision sparked a nationwide advocacy campaign to have the it reversed. Articles were published in Slate and the New York Times. People all over the country wrote letters urging that Ms. Traore be granted asylum. Legislators like Patrick Leahy, Zoe Lofgren, John Conyers, and Olympia Snowe expressed their outrage.

And it totally worked! Today, Attorney General Mukasey vacated the BIA's decision. Citing no less than four previous asylum decisions for the rule that "female genital mutilation is indeed capable of repetition," he sent the case back to the Board for a do-over. This is great news, and hopefully Ms. Traore will get better results the next time around. Hooray for justice!

Maybe next time we could also get some justice for people whose lawyers don't have the clout and wherewithal to orchestrate a national advocacy campaign on their behalf? Perhaps in the form of a decision that is decided correctly the first time around? Maybe? Please?