Tuesday, October 18, 2011

MATTER OF N-T- AS PROGENY OF MATTER OF A-T-: A TEACHING TOOL FOR FGM CASES by Geoffrey A. Hoffman (University of Houston Immigration Clinic)

This case will make an interesting teaching example for immigration professors discussing the ramifications of the Attorney General’s precedential decision on female genital mutilation (FGM), Matter of A-T- I&N Dec. 617 (A.G. 2008). In the decision rendered by the BIA on October 14, 2011 case –Matter of N-T- (unpublished decision, see Download NT) – the Board reversed the IJ’s decision prohibiting respondent’s and her husband’s applications for asylum due to the one-year bar. Although not apparent from the text of the Board’s decision, the IJ had failed to consider the fact that there were exceptional circumstances which warranted a waiver of the one-year bar. There were complications with the applicant’s pregnancy due to the very trauma she suffered as a woman who had been subjected to FGM in the past. The fact that the very past persecution she suffered played a role in creating the circumstances which warranted the exception to the strict time period should have been considered by the immigration judge. The Board upheld the IJ’s findings that the mother had suffered previous FGM and was a member of a particular social group. However, the IJ found that there had been a fundamental change in circumstances in Mali, the country of origin sufficient to rebut the presumption of past persecution.

It should be noted that the IJ’s reasoning was flawed on several levels. The IJ erroneously held that the wife and mother could avail herself of the “laws” in Mali protecting against FGM, although no specific laws prohibiting FGM existed. A 2008 country report actually stated: “There are no laws specifically prohibiting FGM.” See Dept. of State (DOS) Report (2008) (emphasis added). The previous DOS report from 2001, upon which the IJ tacitly relied, stated that there was a government “plan” (in 2001) to create such laws, but to date the laws do not exist. In the IJ's own written decision, the court paradoxically also proceeded to recognize that the respondents “cannot count on the Government [in Mali] to provide any significant additional assistance,” also acknowledging that the "Government is unlikely to prosecute those who perform FGM on unwilling victims.” In addition, the IJ seemed to credit DHS’s argument that because the respondents were “educated” they were somehow less likely to suffer FGM. Although not mentioned in the unpublished decision, the reasoning of the IJ was flawed. The mere fact that Respondents are “educated” Malians, does not mean ipso facto that they are less likely to face FGM. As argued in the respondents’ brief on appeal, they would be more likely to suffer FGM because they may be seen as targets and outspoken opponents of the widespread cultural practice. Finally, the IJ engaged in speculation and conjecture when he found that "ostracism" was the only harm to be faced by vocal opponents of FGM in Mali, ignoring the harsh reality of FGM and the forced nature of the brutal procedure.

In addition to the above points, the decision highlights crucial differences between asylum and withholding under INA § 241(b)(3). Because asylum allows for derivatives and withholding does not, the husband was found to be foreclosed from any relief because the IJ did not consider that he had suffered or would suffer on his own any harm due to FGM and therefore denied his withholding claim on that basis. The Board, by reversing the denial of asylum, thereby allowed the possibility of the husband’s claim to be derivative under his wife’s claim due to her very strong past persecution and well-founded fear of persecution claim. Additionally, the IJ did not fully consider that the couple has two small children, who are both female, and thus they also would be subjected to FGM if they accompanied their parents to Mali.

Finally, the Board noted that the precedential decision of Matter of A-T- was not followed, which concerned the proper analysis of a case where prior FGM exists. As the AG noted inMatter of A-T-, “past persecution may be a proxy for the future,” and that the presumption under 8 C.F.R. § 1208.(b)(1)(i) is “mandatory.” Id. at 618. Moreover, as the AG recognized FGM is not necessarily a "one-time event," but is capable of repetition on the same woman. Id. at 621; see also Mater of S-A-H- and H-A-H-, 24 I&N Dec. 464, 465 (BIA 2008). The AG further concluded that it was error to conclude that the past infliction of FGM, by itself, rebutted future harm. Id. at 622. Matter of A-T- was directly relevant to this case.

Credit goes to the excellent Charlotte Simon, now graduated, as she was in the UH immigration clinic, in fall 2009. She conducted long hours of considerable research regarding the brief in this case.

Geoffrey A. Hoffman Clinical Associate Professor Director, University of Houston Immigration Clinic

http://lawprofessors.typepad.com/immigration/2011/10/matter-of-n-t-as-progeny-of-matter-of-a-t-a-teaching-tool-for-fgm-cases-by-geoffrey-a-hoffman-univer.html

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