Academic journal article Houston Journal of International Law

In Re Kasinga: An Expansion of the Grounds for Asylum for Women

Academic journal article Houston Journal of International Law

In Re Kasinga: An Expansion of the Grounds for Asylum for Women

Article excerpt

I. INTRODUCTION

In granting asylum to Fauziya Kasinga under Section 208 of the Immigration and Nationality Act, the Board of Immigration Appeals (BIA) recognized a segment of the Tchamba-Kunsuntu Tribe of northern Togo as a "particular social group"(1) within the definition of the term "refugee."(2) The social group is comprised of young women of the tribe that oppose the practice of female genital mutilation (FGM) and that have not been subjected to the practice.(3) The BIA held that FGM, resulting in permanent disfiguration and posing a risk of serious, potentially life threatening complications, could be the basis for a claim of persecution.(4) The decision did not determine the status of women already subjected to FGM or establish guidelines for analysis of those cases,(5) and it did not address the issue of forced polygamous marriage as persecution.(6) However, it may provide a broader basis for findings of persecution in other gender related asylum claims than has been available in the past. The decision, in particular, distinguished claims of persecution based on FGM from claims based on coercive birth control policies the BIA previously rejected.(7) Although both practices may be physically invasive and can be characterized as generally applicable policies, either governmental or cultural in the countries or regions from which the asylum applicants fled, the BIA distinguished FGM because it did not have a recognizable, legitimate underlying purpose.(8)

This Note reviews the BIA decision, discussing its place in changing asylum law. Section II outlines the background of the case. Section III analyzes the BIA decision in the context of existing asylum decisions. Section IV reviews recent legislation on the issue of FGM and asylum law, and concludes that, in many cases, the newly enacted provisions may prevent the kind of judicial review necessary to address an emerging asylum issue like that decided in Kasinga.

II. BACKGROUND OF IN RE KASINGA

To qualify for asylum under section 208 of the Immigration and Nationality Act, an applicant must meet the definition of refugee. The Act defines refugee as

any person who is outside any country of such person's

nationality or, in the case of a person having no

nationality, is outside any country in which such person

last habitually resided, and who is unable or unwilling

to return to, and is unable or unwilling to avail himself

or herself of the protection of, that country because of

persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a

particular social group, or political opinion .... The

term "refugee" does not include any person who ordered,

incited, assisted, or otherwise participated in the

persecution of any person on account of race, religion,

nationality, membership in a particular social group, or

political opinion.(9)

Kasinga's application asserted that she had a well-founded fear of persecution because of her membership in a particular social group.(10) The case arose as an appeal from an August 25, 1995 decision by Immigration Judge Donald Ferlise denying Kasinga's application for asylum and holding her for deportation under section 243(h) of the Act.(11) On appeal, both the Immigration and Naturalization Service (INS) and Kasinga agreed that FGM could be the basis for a grant of asylum;(12) however, the parties did not agree on how to determine when FGM constituted persecution or the breadth of the holding in the appeal.(13)

Kasinga was a nineteen-year old woman from Togo who had attended two years of high school.(14) According to Kasinga's testimony, the men of the Tchamba-Kunsuntu Tribe of northern Togo generally require young women to undergo FGM prior to marriage,(15) but Kasinga had been protected from FGM by her father, who died in 1993. …

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