9th Circuit finds that female genital mutilation constitutes ongoing persecution

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9th Circuit finds that female genital mutilation constitutes
ongoing persecution

Immigrants' Rights Update, Vol. 19, No. 2, March 31, 2005

The U.S. Court of Appeals for the Ninth Circuit has ordered the reopening of removal proceedings in the case of a Somali woman based on her claim that her attorney’s failure, when she was applying for asylum, to raise the issue of her genital mutilation as a child constituted ineffective assistance of counsel. 

The ruling reverses the Board of Immigration Appeals’ denial of a motion to reopen, which was based on the BIA’s conclusion that the attorney’s failure to raise the issue was not prejudicial.  The BIA reasoned that because the respondent had already suffered genital mutilation, she could no longer have a well-founded fear of the practice.  The Ninth Circuit strongly disagreed with this conclusion, noting both the continuing physical and psychological effects of genital mutilation and the possibility that the respondent could be subjected to further genital mutilation were she to be returned to Somalia.  A further reason that the decision is an important precedent is because, in finding that the respondent could have raised a plausible claim for asylum but for her attorney’s ineffective assistance, the court found that the respondent could seek to establish that she was persecuted on account of her membership in the social group of all Somali women, or, in the alternative, women of the Benadiri clan.

The respondent in this case, Khadija Mohamed (the court noted that her name was spelled inconsistently in the briefs, but that she used a single “m” in the documents she signed), fled Somalia with her family when she was a young child.  According to her testimony, her family fled the country after her father and brother had disappeared, her sister had been raped, and the militia of a majority clan had attempted to imprison the family and other members of the Benadiri clan.  After leaving Somali, she lived in Ethiopia for a number of years, then came to the United States, where she applied for asylum, claiming a fear of persecution based on her membership in the social group of the Benadiri clan. 

An immigration judge denied Mohamed’s asylum application after a hearing, finding both that she was not credible and that, in any event, she had not established that she was eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT).  On appeal, the BIA affirmed the denial based on the finding that Mohamed lacked credibility, and it did not address whether she would have established eligibility for relief had her testimony been credible.

Mohamed then hired a new attorney, who filed a motion to reconsider and remand the decision, raising the issue of female genital mutilation, which had not been raised by Mohamed’s first attorney.  The motion filed by the new attorney erroneously asserted that Mohamed had not yet been genitally mutilated, an error that was made clear by a physician’s report that was included with the motion.  The motion also cited a report of the World Health Organization finding that over 98 percent of women in Somalia are subjected to female genital mutilation, although the report apparently was not included with the motion.  The government opposed the motion, arguing that to the extent the motion sought reopening on the basis of ineffective assistance of counsel, it failed to meet the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).  In response, Mohamed submitted a declaration explaining that only in speaking with her new attorney did she learn that the fact that she had been subjected to genital mutilation constituted past persecution.  She also submitted a complaint form against her former attorney that she had filed with the State Bar of California prior to filing the motion.  The BIA denied the motion, concluding that Mohamed had failed to establish that she was likely to be subjected to genital mutilation in the future.

Mohamed filed a petition for review of this decision and also filed a second motion, this time properly styled as a motion to reopen.  The motion sought reopening based on ineffective assistance of counsel and included the evidence that was left out of the first motion.  The BIA denied this motion on the ground that it was numerically barred.  The BIA also denied the motion on the ground that Mohamed had failed to demonstrate that ineffective assistance of counsel caused her any prejudice.  Mohamed filed a petition for review of the denial of the second motion, and subsequently the Ninth Circuit consolidated both petitions for review.

On appeal, the court noted that both Mohamed’s prior counsel and her current counsel made numerous mistakes in the course of the proceedings, but that none of the errors appear to be Mohamed’s fault.  The court also noted that the BIA made a series of errors in the case that make review more difficult.  Indeed, prior to oral argument, government counsel moved the court to remand the case to the BIA to allow clarification of its findings.  In its decision, the court stated that were only the “nonsensical” first decision of the BIA before it, it would grant this motion. However, because the second BIA decision did unmistakably set out the BIA’s position that Mohamed had failed to establish that ineffective assistance of counsel caused her prejudice, the court found that remand would be pointless, and it proceeded to address the issue.

Regarding the ineffective assistance of counsel claim, the court found that Mohamed had satisfied the Lozada standard and established that she had suffered ineffective assistance of counsel.  The court then turned to the question of prejudice, noting that to meet this requirement Mohamed must show only that her first counsel “failed to present plausible claims for relief when she failed to introduce evidence of past female genital mutilation in support of Mohamed’s asylum, withholding, and CAT applications.”

Regarding Mohamed’s asylum claim, the court first considered whether female genital mutilation constitutes “persecution.”  The court rejected the government’s contention that the practice cannot be a basis for a claim of past persecution because it is “widely accepted and widely-practiced.”  Rather, the court concluded that “the extremely painful, physically invasive, psychologically damaging and permanently disfiguring process of genital mutilation undoubtedly rises to the level of persecution” under U.S. asylum law.  (In a footnote, the court noted the practice of many courts and the BIA of referring to female genital mutilation by the initials “FGM.”  The court declined to adopt this practice and used the complete expression throughout its opinion, noting that use of the initials “serves only to dull the senses and minimize the barbaric nature of the practice.”)

The court found two bases on which Mohamed’s subjection to mutilation could plausibly be found to be “on account of” membership in a “social group” under the asylum statute.  The social group could be defined narrowly as “young girls in the Benadiri clan,” but it also could be defined broadly as the social group of Somalian females, given the evidence that the practice is performed on 98 percent of this group.  The court concluded that since Mohamed could demonstrate past persecution, there is a presumption that she would be persecuted in the future, and the burden shifts to the government to show that circumstances have changed in order to rebut the presumption.

The government contended that the fact that Mohamed had already suffered genital mutilation precludes her from being subjected to the practice in the future.  The court rejected this argument for two reasons.  First, the court found that the practice of female genital mutilation “must be considered a continuing harm that renders a petitioner eligible for asylum, without more.”  In this respect the court likened the practice to forced sterilization, which both the BIA and the Ninth Circuit have characterized in this way. In re Y-T-L, 23 I. & N. Dec. 601 (BIA 2003); Qu v. Gonzalez, slip op. at 2933 (9th Cir. Mar. 8, 2005).  Second, the court noted evidence that “female genital mutilation is not simply an isolated act of violence but rather a form of gender persecution, practiced to overcome sexual characteristics of young women.”  In this regard, Somali women who have been genitally mutilated can be subjected to further abuse, including rape and further genital mutilation.

For similar reasons, the court concluded that Mohamed had established a plausible claim for withholding of removal.  The court also found that she had made a plausible claim for protection under the CAT, though the court noted that this claim is less clear because there is no presumption of fear of future torture similar to the presumption that applies to past persecution.

Concluding that Mohamed demonstrated that she was prejudiced by her former attorney’s ineffective assistance of counsel, the court granted the petition for review and remanded the case to the BIA with instructions to grant the motion to reopen.

Mohammed v. Gonzalez, No. 03-70803 (9th Cir., Mar. 10, 2005). 

By Linton Joaquin, NILC executive director

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