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This article was originally published on April 29, 2008.

In September 2007, the nation’s highest immigration court, the Board of Immigration Appeals (BIA), issued a disturbing decision.

Matter of A-T- denied the request for asylum of a young woman who was subjected to female genital mutilation (FGM) as a child and who fears a forced marriage if she is returned to Mali.

The BIA’s decision discounted the terrible consequences of FGM, including severe, lifelong physical and psychological harms, by comparing the suffering to the “loss of a limb.” The court argued that because FGM happens to a woman only once, it is generally not a basis for asylum. The BIA likewise discounted the young woman’s forced marriage claim, characterizing her circumstances as reflecting “family tradition” rather than persecution.

This decision reveals a poor understanding of FGM and its consequences, and it is a flawed interpretation of refugee law. It furthermore poses a direct threat to the ability of Tahirih’s clients and others who have suffered FGM to receive protection in the United States.

Matter of A-T- is one of many alarming judicial decisions in recent years that have threatened to deny protection to asylum seekers fleeing forced marriage, brutal domestic violence, and the fear of female genital mutilation for their daughters. Behind each of these legal twists and turns, the lives of real women and girls hang in the balance.

Advances in gender-based asylum protection must be defended

Tahirih is advocating in partnership with other organizations and a broad spectrum of political allies to reverse decisions hostile to gender-related asylum applications and restore the availability of protection in the United States to women and girls fleeing violent human rights abuses.

One valuable opportunity to call the attention of policymakers and the public to these trends of concern was a congressional briefing that Tahirih held on March 11, 2008, in partnership with Honorary Co-Hosts Congressman Jim Moran, D-Va., and Congressman Frank Wolf, R-Va. The event marked Tahirih’s 10 year anniversary and offered an especially timely moment for a critical retrospective on the development of U.S. gender-based asylum law.

Both Congressmen offered inspiring opening remarks, followed by a welcome address that sounded a call to action by Her Royal Highness Princess Dana Firas of Jordan, who serves on Tahirih’s Board of Directors. Her remarks conveyed the urgency of the plight of women and girls fleeing violence around the world, noting how many are subjected every minute, hour, day, and year to domestic violence, forced marriage, FGM, rape, honor killings, human trafficking, and other horrific human rights abuses. Bo Cooper, former General Counsel to the Immigration and Naturalization Service from 1999-2003 and an instrumental contributor to gender-based asylum law in the United States, reflected on the early development of the field. Tahirih’s Executive Director, Layli Miller-Muro, addressed recent legal setbacks. Miller-Muro helped litigate Matter of Kasinga (sic) as a student attorney, the landmark case decided in 1996 that established FGM as a valid ground for asylum.

Tahirih clients made particularly moving contributions to the briefing. They made the lifesaving hope that the United States can offer to women and girls fleeing violence real and immediate for the audience. An anniversary video, Voices of Courage, Stories of Justice, was shown at the briefing that featured several clients’ struggles to find safety and build new lives in the United States.

In addition, two former Tahirih clients participated as briefing panelists. Ruth, a current Tahirih Board member, recounted how she had to flee her country after her husband died to save her daughter from female genital mutilation, and herself from being forced to marry her late husband’s brother, as tribal custom would have demanded. Her escape involved a terrifying year of living in hiding with her children before finally managing to flee to the United States and find legal protection with Tahirih’s help. Farida, an Afghani women’s human rights activist and former Tahirih Board member, kindly acted as a stand-in to recount the difficult story of a mother and daughter who were subjected to FGM as young girls. Both women were actually in the audience at the briefing but unable to bring themselves to speak publicly. They powerfully described their suffering in the statement that Farida read aloud as “wounds,” rather than “scars,” to acknowledge the very present pain they feel because of their past experiences.

Although Tahirih has made great progress in gender-based asylum law in the last decade, judicial decisions like Matter of A-T- signal a dangerous departure by the United States from its commitment to protect those few brave women—like the mother and daughter above—who are able to escape horrific human rights abuses and seek protection in the United States.

Tahirih is committed to advocating for a change in this trend and ensuring better protections for women and girls fleeing violence. In addition to important awareness-raising activities like the congressional briefing, Tahirih has endorsed or authored amicus briefs on critical appeals cases; joined in efforts to urge grassroots and Congressional appeals to the Attorney General to step in and reverse particularly flawed BIA decisions; and helped develop proposals for legislative and administrative reforms to provide much-needed clarity and coherence to this field of law.

Regulations needed to guide court decisions

The good news: There is progress. In September 2008, one year after Matter of A-T- was decided, Attorney General Mukasey remanded the case to the BIA for reconsideration, rightly noting that FGM is capable of repetition in certain circumstances, and that it can also represent only one way in which a woman may be subjected to persecution in some societies.

But more progress is needed. While encouraging, the Attorney General’s decision in Matter of A-T- did not take issue with other deep flaws in the BIA’s decision. In addition, this step forward for gender-based asylum was offset by a major step backward when, just a few days later, the Attorney General also remanded to the BIA Matter of R-A-, the landmark case of a Guatemalan asylum-seeker fleeing brutal domestic violence. To do so, Attorney General Mukasey overruled two previous Attorneys General (Ashcroft and Reno) who had imposed a stay on the BIA pending the issuance of final regulations governing gender-based asylum.

Without regulations to guide them, particularly on how to properly analyze claims based on domestic violence, there is a real risk that the BIA will decide R-A-‘s case based on a line of judicial decisions that is not favorable to such claims. Responding to this risk, Tahirih and other advocates are renewing efforts to press the Administration for the release of carefully and clearly elaborated gender-based asylum regulations.

For their financial support of the congressional briefing, Tahirih is grateful to Akin Gump Strauss Hauer & Feld LLP; Arnold & Porter LLP; DLA Piper; The Estee Lauder Companies Inc.; Goldman, Sachs & Co.; Lifetime Television; Paul, Hastings, Janofsky & Walker LLP; and the Washington College of Law at American University.

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