Undue influence by UCLA Luskin School of Public Affairs

UCLA Department of Public Policy

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

LaMonica Andreoff Elisabeth Furbush Brian Hackney

FINAL REPORT

APP

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

TABLE OF CONTENTS ACKNOWLEDGEMENTS.......................................................................................................... 3 EXECUTIVE SUMMARY ........................................................................................................... 4 I. INTRODUCTION: THE SCOPE OF THIS STUDY................................................................. 6 POLICY PROBLEM ................................................................................................................................... 6 OUR CLIENT: THE TAHIRIH JUSTICE CENTER ......................................................................................... 6 II. BACKGROUND INFORMATION........................................................................................ 8 FEMALE GENITAL CUTTING: PRACTICE, PREVALENCE, AND IMPACT ...................................................... 8 The Practice...................................................................................................................................... 8 Its Impact ......................................................................................................................................... 9 Its Prevalence ..................................................................................................................................10 THE ASYLUM APPLICATION PROCESS .................................................................................................... 12 Asylum Offices ................................................................................................................................ 13 Immigration Hearings ....................................................................................................................14 Board of Immigration Appeals .......................................................................................................14 THE SEPTEMBER 2007 RULINGS ............................................................................................................ 15 In Re A‐K.......................................................................................................................................... 15 In Re A‐T.......................................................................................................................................... 15 SCOPE OF THE ANALYSIS .......................................................................................................................16 CURRENT ASYLUM LAW ........................................................................................................................ 17 The Immigration and Nationality Act............................................................................................ 17 III. METHODOLOGY ............................................................................................................. 19 ANALYSIS ...............................................................................................................................................19 DATA COLLECTION ...............................................................................................................................19 RESPONDENT CHARACTERISTICS ........................................................................................................... 21 INTERVIEWEES...................................................................................................................................... 23 LIMITATIONS ........................................................................................................................................ 25 IV. RESULTS ...........................................................................................................................28 RESULTS FROM QUANTITATIVE DATA .................................................................................................. 28 RESULTS FROM QUALITATIVE DATA..................................................................................................... 29

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases Misinterpretation ........................................................................................................................... 30 General Confusion on Meaning/Holdings of Decisions ................................................................ 31 The Decisions’ Negative Impact on all FGC Cases ....................................................................... 33 V. POLICY RECOMMENDATIONS ........................................................................................36 AMICUS CURIAE BRIEF .......................................................................................................................... 36 FREEDOM OF INFORMATION ACT REQUEST ......................................................................................... 38 LOBBY FOR INCLUSION OF FGC IN IMMIGRATION AND NATIONALITY ACT...........................................41 CREATE CENTRAL MECHANISM FOR DATA COLLECTION AND INFORMATION DISSEMINATION ........... 44 VI. CONCLUSIONS ................................................................................................................ 48 BIBLIOGRAPHY..................................................................................................................... 50 APPENDICES ..........................................................................................................................54 APPENDIX A: REFERENCE CASES ......................................................................................................... 54 The Matter of Kassindja................................................................................................................. 54 Mohammed v. Gonzales................................................................................................................. 55 Brand X ........................................................................................................................................... 55 Matter of C‐A ................................................................................................................................. 56 APPENDIX B: FGC INTERVIEW PROTOCOL........................................................................................... 57 APPENDIX C: CASE DATABASE TEMPLATE ............................................................................................ 59 APPENDIX D: FREEDOM OF INFORMATION ACT REQUESTS..................................................................60 FOIA Request to the DHS Citizenship and Immigration Services ............................................... 62 FOIA Request to the DOJ Executive Office of Immigration Review ............................................ 63 APPENDIX E: DATA COLLECTION COLLATERAL....................................................................................64 APPENDIX F: CONGRESSIONAL LOBBY TARGETS................................................................................... 65 APPENDIX G: LIST OF ASYLUM OFFICE REGIONS IN THE UNITED STATES ............................................66 APPENDIX H: INS GUIDELINES FOR ADJUDICATING ASYLUM CLAIMS FROM WOMEN ......................... 67

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

ACKNOWLEDGEMENTS This research was possible due to a grant from the Ralph and Goldy Lewis Center for Regional Policy Studies at UCLA. In particular, we thank J.R. DeShazo and Margaret Johnson at the Lewis Center for their support. We would like to thank Jeanne Smoot at the Tahirih Justice Center for giving us the opportunity to support her organization’s work on gender-based asylum. We could not have completed this study without the voluntary participation of our respondents in the asylum community. Annie Heirendt transcribed our interviews so we could continue contacting possible respondents. Kei Kawahara and Sherol Manavi reviewed our work and provided thoughtful insights into our research throughout the process.

Guidance from Amy Zegart and Mark

Kleiman was instrumental in shaping our policy recommendations. Kris Kasianovitz helped us navigate the world of legal research. Lastly, we would like to thank our advisor Meredith Phillips, for forcing us to use active voice, among other things.

This report was prepared in partial fulfillment for the Masters of Public Policy degree in the Department of Public Policy at the University of California, Los Angeles. It was prepared at the direction of the Department and the Tahirih Justice Center as a policy client. The views expressed herein are those of the authors and not necessarily those of the Department, the UCLA School of Public Affairs, UCLA as a whole, or the Tahirih Justice Center.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

EXECUTIVE SUMMARY Every year, thousands of individuals seek asylum in the United States. They come to America for protection from persecution, torture, and abuse. More asylum seekers apply for resettlement in the United States than any other country, with approximately 51,500 applications in 2006.1 The UN High Commissioner for Refugees estimates that approximately three-quarters of all refugees worldwide are women or children.2 Some of them are seeking refuge from the practice of female genital cutting (FGC), which is documented in twenty-eight countries in Africa and the Middle East.3 The purpose of this project is to determine whether two recent decisions by the Board of Immigration Appeals (BIA) have influenced the viability of asylum applications based on a claim of fear of female genital cutting. The two cases (In re A-K and In re A-T) denied asylum to two people who claimed FGC-related fears, but they did not invalidate FGC as a viable claim for asylum in the United States.4 Some asylum-rights organizations are concerned, however, that government attorneys, Asylum Officers, and Immigration Judges are misinterpreting these rulings or are unsure how to proceed with FGC-related cases after the BIA’s rulings. Our client, the Tahirih Justice Center, is one such organization. Tahirih plans to send an amicus curiae brief to the BIA and asked us to research the following question: Have the cases

United Nations High Commissioner for Refugees, Asylum Levels and Trends in Industrialized Countries, 2006, Division of Operational Services, (Geneva, March 23, 2007), 5. 2 United Nations High Commissioner for Refugees, "Women – Seeking A Better Deal," Refugees Magazine 1, no. 126: (April 2002): 4-13. 3 The World Health Organization, Progress: In Sexual Reproductive Health Research, Annual Update, Department of Reproductive Health and Research, (Geneva: UN Special Programme of Research, Development, and Research Training In Human Reproduction, 2006). 4 In re A-K. I&N Dec. 275 (Board of Immigration Appeals, September 5, 2007); In re A-T. 24 I&N Dec. 296 (Board of Immigration Appeals, September 27, 2007).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases In re A-T and In re A-K negatively impacted the viability of asylum based on FGC, more than the BIA’s findings justify? To address this question, we collected case data and interviews from members of the asylum community across the country. Although we were unable to gather enough FGC cases to analyze major trends in the field, our interviews revealed some interesting findings.

discovered that some government attorneys and Immigration Judges are misinterpreting In re AT and In re A-K, and that the asylum community is generally confused about the meaning of the two cases. We also found that because asylum attorneys are concerned that FGC cases cannot be successful under the current rulings, they are declining to litigate FGC cases or are citing additional justifications for asylum to improve the likelihood of receiving a favorable ruling. Based on these findings, we recommend that the Tahirih Justice Center:  Proffer an amicus brief to encourage clarification of the BIA’s September rulings;  Submit Freedom of Information Act requests to improve data collection on FGC cases;  Lobby Congress to include “female genital cutting” as a viable reason for asylum in the Immigration and Nationality Act;  Establish a central mechanism for data collection and networking in the FGC community.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

I. INTRODUCTION: THE SCOPE OF THIS STUDY Policy Problem This project seeks to understand how two recent rulings by the Board of Immigration Appeals (BIA) have affected asylum applications for women and families seeking refuge from the practice of female genital cutting (FGC). Advocates in the asylum-rights community are concerned that the narrow scope of these two cases may be misinterpreted as an erosion of FGCrelated asylum claims in general. From the outset, it is important to clearly define the scope of the research question. These two BIA cases (explained in further detail below) will no doubt prevent some applicants from receiving asylum.

Because the Board of Immigration Appeals has precedent-setting

authority in immigration-related adjudications, applicants with circumstances very closely resembling the facts in the two September BIA rulings will understandably be denied. For this reason, the asylum-rights community maligns these two cases. This study, however, does not attempt to pass judgment on the substance of the rulings. We seek only to determine the nature of any unintended consequences that may have resulted from the two BIA decisions.

Our Client: The Tahirih Justice Center Our client for this project is the Tahirih Justice Center in Falls Church, Virginia. Tahirih is a non-profit asylum aid organization that provides services for women and children through litigation support and public advocacy. It was founded in 1997, following the landmark female genital cutting case of Fouziya Kassindja and the subsequent success of her autobiography, Do They Hear You When You Cry. The profits of this book went toward establishing the Tahirih

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases Justice Center.

The center is named after Tahirih, a nineteenth century female poet and

theologian from Persia who was martyred for her belief in gender equality.5 Because Tahirih’s attorneys represent women seeking asylum due to human rights abuses and gender-based persecution, the organization is troubled by the possible consequences of the Board of Immigration Appeals’ recent FGC decisions for asylum seekers. Tahirih hopes to use its resources to clarify the current judicial ambiguities. Tahirih’s dual purpose as policy advocate and pro bono litigation provider serves to fulfill its mission as a protector of human rights for women immigrants and asylum seekers. We hope that the Tahirih Justice Center can use the analysis and recommendations in this study to strengthen its ability to provide equitable protection to deserving asylum applicants.

Faouziya Kassindja and Layli Miller-Bashir, Do They Hear You When You Cry (New York, NY: Delta Publishing, 1997).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

II. BACKGROUND INFORMATION Female Genital Cutting: Practice, Prevalence, and Impact The Practice Female genital cutting refers to “traditional practices that involve cutting of female genitals.”6 Many people in the asylum-rights community refer to the practice as “female genital mutilation” (FGM), but many who have undergone the procedure find this alternate term offensive.7 FGC is a cultural tradition and is not linked to any major religion. The practice is, however, “strongly identified with Islam in several African nations.”8 Proponents argue that the procedure advances a girl’s maturity, prevents infant defects, and keeps women pure.

communities where the practice is common, society pressures young girls and their families to continue the tradition.9 Some groups believe that female “genitalia are ugly and dirty,” and that genital removal ensures a woman’s beauty.10

The procedure also intends to keep female

sexuality under control and reduce marital infidelity.11 No one single method typifies female genital cutting. It covers a range of procedures from female circumcision to infibulation.12

Female circumcision is “equivalent to male

Anita Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (London: Zed Books Ltd., 2000), 3. 7 Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural, and Medical Issues (Jefferson, North Carolina: McFarland & Company, Inc., Publishers, 2005), 2. 8 Anita Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (London: Zed Books Ltd., 2000), 6. 9 Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural, and Medical Issues (Jefferson, North Carolina: McFarland & Company, Inc., Publishers, 2005). 10 Ibid., 17. 11 Anita Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (London: Zed Books Ltd., 2000); Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural, and Medical Issues (Jefferson, North Carolina: McFarland & Company, Inc., Publishers, 2005). 12 Eufa Dorkenoo, Cutting the Rose: Female Genital Mutilation: The Practice and Its Prevention (London: Minority Rights Publications, 1994).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases circumcision” and “affects only a small proportion of the millions of women concerned.”13 A second form of FGC, excision, involves a “partial or total cutting of the clitoris” and is the most common type of the procedure.14 The most extreme form is infibulation, which requires the cutting of most of the external genitalia. Following removal, the genital area is sewn shut except for a small hole “for the passage of urine or menstrual blood.”15 An infibulated woman must undergo further cutting for sexual intercourse and childbirth. Women will often undergo reinfibulation following the birth of each child.16 Traditionally, FGC is performed by a female elder, not the girl’s mother. In the vast majority of cases, it is done with a knife, stone, glass, razor, fingernails, or some burning materials.17 Its Impact FGC increases a woman’s risk for short- and long-term health problems. The procedure is associated with “scarring, infertility, painful sexual intercourse, rupture of the vaginal walls, long and obstructed labor, chronic uterine and vaginal infections, bladder incontinence, dysmenorrheal, and the obstruction of the flow of menstrual blood.”18 Women are also at increased risk for HIV transmission, because cutting devices are sometimes reused or unsanitary, and some women die from FGC-related infections and complications.19 While few studies exist on the psychological impact of female genital cutting, some women report “fear, submission or

Ibid., 5. Ibid., 5. 15 Ibid., 5. 16 Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural, and Medical Issues (Jefferson, North Carolina: McFarland & Company, Inc., Publishers, 2005). 17 Ibid.; Eufa Dorkenoo, Cutting the Rose: Female Genital Mutilation: The Practice and Its Prevention (London: Minority Rights Publications, 1994). 18 Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural, and Medical Issues (Jefferson, North Carolina: McFarland & Company, Inc., Publishers, 2005), 23. 19 Ibid. 14

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases inhibition and suppressed feelings of anger, bitterness or betrayal…[and] negative effects on self-esteem and self-identity.”20 Its Prevalence Traditionally, girls experience FGC “between the ages of four and twelve.”21 Recently, however, the procedure seems to be happening at a younger age as women become more educated about female genital cutting.22 Recent estimates from the World Health Organization indicate that “between 100 and 140 million” women have undergone FGC, and approximately “two million more girls will have the procedure” annually.23 Although determining the prevalence of FGC in communities presents many methodological challenges, the World Health Organization estimates that a vast majority of women subjected to FGC live in one of 28 countries in Africa (see Figure 1).

These

countries span the continent from Tanzania to Egypt to Senegal.

The practice is also

widespread in several Red Sea communities in Yemen.24 Even though FGC is widespread in

Figure 1: Prevalence of FGC by Nation. Source: World Health Organization, Progress: In Sexual Reproductive Health Research, Annual Update, Department of Reproductive Health and Research(Geneva: UN Special Programme of Research, Development, and Research Training In Human Reproduction, 2006), Figure 1, 2. 20 Anita Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (London: Zed Books Ltd., 2000), 9. 21 Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural, and Medical Issues (Jefferson, North Carolina: McFarland & Company, Inc., Publishers, 2005), 14. 22 Ibid. 23 Ibid., 35. 24 The World Health Organization, Progress: In Sexual Reproductive Health Research, Annual Update, Department of Reproductive Health and Research, (Geneva: UN Special Programme of Research, Development, and Research Training In Human Reproduction, 2006).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases many of these countries, it may not be practiced throughout the entire nation; persecuted peoples can sometimes find a safe haven in their own country to avoid FGC. Attorneys for the Department of Homeland Security (DHS) often use this as a key argument to return an asylum applicant back to his or her native country.25 Some immigrant communities around the world practice FGC as a part of their cultural and traditional heritage.26 The African diaspora in the United States grapples with female genital cutting, and its impact can be seen in many large

American

cities.

New

York,

Washington, Atlanta, Minneapolis, and Los Angeles hold over half of the estimated one million African immigrants in the United States.27 The practice of FGC in immigrant communities in the United States was banned in 1996.28 The Center for Disease Control and Prevention estimates that - despite the ban - roughly 150,000 girls have undergone or are fearful of FGC in this country, with Los Angeles home to the largest threatened community (see Figure 2).29

Figure 2: Women at Risk for FGC by State. Source: Brigham and Women’s Hospital, Table 4 – Women Living in the US Estimated to be at Risk of FGC, by State. 2000, http://www.brighamandwomens.org/africanwomenscenter/FGCby state.aspx (accessed January 30, 2008). (Authors’ graphical representation of data from states with the most women at risk).

Phyllis Coven, Consideration for Asylum Officers Adjudicating on Asylum Claims from Women, Memo, Office of International Affairs, Immigration and Naturalization Services (Washington: Department of Justice, 1995), 18. 26 Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural, and Medical Issues (Jefferson, North Carolina: McFarland & Company, Inc., Publishers, 2005). 27 Voice of America, "African Immigrants Make US Presence Known In Some American Communities," The Hamza Report, May 2, 2005. 28 Celia Dugger, "Congress Bans Genital Rite," The New York Times, October 12, 1996, A1. 29 Ibid.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

The Asylum Application Process The United States receives more applications for asylum annually than any other country in the world.30 Despite the high numbers of applications, the asylum process is often long, complicated, and daunting. It requires time, resources, and hard work. People apply for asylum in the United States under two main categories: affirmative applications and defensive applications. Affirmative applicants voluntarily apply for asylum within one year of arriving in the United States. These applicants usually enter the country legally on a non-immigrant student or tourist visa.31 Defensive applications are lodged when an immigrant has either illegally entered the country or has overstayed his or her non-immigrant visa. Upon apprehension by DHS, a person can apply for asylum, but he or she has forfeited the right to an Asylum Officer hearing and proceeds directly to an Immigration Judge (see Figure 3).

United Nations High Commissioner on Refugees, Asylum Levels and Trends in Industrialized Countries, 2006, Division of Operational Services, (Geneva, March 23, 2007). 31 Jaya Ramji-Nogales, Andrew Schoenholtz and Phillip Schrag, “Refugee Roulette: Disparities in Asylum Adjudications,” Stanford Law Review 60, no. 2 (2007), 305.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Asylum Adjudication Hierarchy

Figure 3: Asylum Adjudication Hierarchy. Note that some decisions of the Board of Immigration Appeals can be appealed to the U.S. Circuit Court of Appeals and then to the U.S. Supreme Court. Source: Jaya Ramji-Nogales, Andrew Schoenholtz and Phillip Schrag, “Refugee Roulette: Disparities in Asylum Adjudications,” Stanford Law Review 60, no. 2 (2007), 299-305. (Authors’ graphical representation).

Asylum Offices The first stop in the process for affirmative asylum seekers is “in one of the eight regional CIS Asylum Offices,” which are under the jurisdiction of the Department of Homeland Security (DHS).32 An Asylum Officer interviews the applicants and grants asylum to roughly 35% of them. The Asylum Officers are non-adversarial, and the meetings are more like interviews. Applicants are rarely represented by attorneys, and officers simply attempt to determine the facts

Ibid., 306. Note: CIS stands for the Citizenship and Immigration Services.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases of each person’s situation. The 35% of applicants who receive asylum at this point generally have a well-founded fear of persecution in their home country.33 Immigration Hearings For the other 65% of affirmative applications, the next step is a hearing with an Immigration Judge (IJ). At this point, the jurisdiction of the application transitions to the Department of Justice (DOJ) and the defensive applicants enter the process. During the hearings, the applicants and the defense attorneys argue the merits of the application.

Government

attorneys from the DHS Bureau of Immigration and Customs Enforcement (ICE) argue on behalf of the government and seek removal of the applicants. The Immigration Judge then rules and issues a decision.34 Board of Immigration Appeals If either side appeals, the application can then be sent to the Board of Immigration Appeals (BIA) for its consent to hear the case. As the U.S. Supreme Court does not generally issue rulings on immigration law, the BIA is responsible for determining immigration-related policy in the United States.35 The Board of Immigration Appeals “consists of 11 to 15 members appointed by the Attorney General.”36 Depending on the case, an applicant’s hearing will usually take place before a single judge or a panel of three judges.37 The facts of the case are

Ibid. Ibid. 35 Ibid., 351. 36 Ibid., 309. 37 In 1999, Attorney General Janet Reno authorized the streamlining of the BIA. The streamlining aimed at reducing the backlog of cases handled by the judges of the BIA. A majority of cases are now handled by only one of the members of the Board. An application must fit into one of six categories in order to qualify for a hearing with more than one judge present. Those “categories are where there is a need to: (1) settle inconsistencies between the rulings of different immigration judges; (2) establish precedent construing the meaning of ambiguous laws, regulations, and procedures; (3) review a decision by an immigration judge or DHS that is not in conformity with the law or applicable precedents; (4) resolve a case or controversy of major national import; (5) review a clearly erroneous factual determination by an immigration judge; or (6) reverse the decision of an immigration judge or DHS, other than reversal under 8 C.F.R. Sec. 3.1(e)(5). 8 C.F.R. Sec. 1003.1(e)(6) 34

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases taken from the previous hearing’s record, so the judge or panel usually only entertains arguments about the relevant legal questions at hand. A few cases can be appealed to the U.S. Circuit Court of Appeals in the normal federal court system. From there, cases have the potential to reach the United States Supreme Court.38

The September 2007 Rulings In Re A‐K On September 5th, 2007 the Board of Immigration Appeals denied the application of a Senegalese father of two U.S.-citizen girls. The father was worried that if he and his family were ordered to return to Senegal, his daughters would experience female genital cutting. In its ruling, the BIA decided that “[a]n alien may not establish eligibility for asylum or withholding of removal based solely on fear that his or her daughter will be harmed by being forced to undergo female genital mutilation upon returning home to the alien’s home country.”39 The Board ruled that because the father is not under threat from FGC, he does not provide a compelling case for asylum. Because his daughters are U.S. citizens, they are not required to return to Senegal. The father did not want to separate his family, but he also did not want his daughters to return to Senegal and possibly undergo the cutting.40 In Re A‐T On September 27th, 2007, the BIA rejected the asylum application of Alima Traore and ordered her to return to Mali. Ms. Traore underwent FGC as a child in her native country and

(2007).” It is our opinion that the clarifications the Tahirih Justice Center is seeking will fall into categories (1), (2), (3), and (5). Source: Jaya Ramji-Nogales, Andrew Schoenholtz and Phillip Schrag, “Refugee Roulette: Disparities in Asylum Adjudications,” Stanford Law Review 60, no. 2 (2007): 352. 38 Ibid. 39 In re A-K. I&N Dec. 275 (Board of Immigration Appeals, September 5, 2007), 275. 40 In re A-K. I&N Dec. 275 (Board of Immigration Appeals, September 5, 2007).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases sought asylum in the United States because of her fears of the practice. In its ruling, the BIA decided that “[b]ecause female genital mutilation (‘FGM’) is a type of harm that generally is inflicted only once, the procedure itself will normally constitute a ‘fundamental change in circumstances’ such that an asylum applicant no longer has a well-founded fear of persecution based on the fear that she will again be subjected to FGM.”41 In an asylum hearing, the applicant must prove that there is a credible fear of persecution if that applicant is returned to his or her home country. If the asylum seeker establishes this fear, then the government attorney must prove that there has been a “fundamental change in circumstance” that negates the applicant’s argument.42 In this case, the BIA reasoned that because Ms. Traore had already undergone FGC, she would not be subjected to the procedure upon returning to Mali – representing a fundamental change in circumstance.43

Scope of the Analysis The goal of our project was to assess how the above rulings have affected potential asylum applicants and the legal community. Specifically, we wanted to investigate whether the rulings resulted in a larger reduction in FGC-related asylum claims or approvals than would have been expected from rulings with such narrow scopes. First, in response to these rulings, our client worried that fewer people with female genital cutting claims would seek asylum because they would assume that an FGC-related claim would be less well received than in the past.

In re A-T. 24 I&N Dec. 296 (Board of Immigration Appeals, September 27, 2007), 296. Ibid., 297. 43 It is important to note that re-infibulation is a common occurrence. Women who have undergone infibulations often undergo further procedures after sexual intercourse and childbirth. In re A-T does not discuss the type of FGC the asylum applicant experienced. Sources: Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural, and Medical Issues (Jefferson, North Carolina: McFarland & Company, Inc., Publishers, 2005); In re A-T. 24 I&N Dec. 296 (Board of Immigration Appeals, September 27, 2007). 42

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases Because the BIA is the precedent-setting authority for all immigration-related cases, an applicant who is denied asylum because of one of its rulings must hope to appeal up to the Board.44 Second, our client was concerned that judges may be misunderstanding or misinterpreting the In re A-K and In re A-T rulings and thus erroneously denying claims that are indeed meritorious. Such misinterpretations would be worrisome, because judges might deny meritorious asylum applications and prevent asylum seekers from receiving protection.

Current Asylum Law

The two September 2007 BIA rulings and their possible misinterpretation present a shift in immigration policy that many advocates find troubling.

Before proceeding to our

methodology, results, and recommendations, we first discuss previous asylum legislation as it directly relates to cases involving female genital cutting.45 In so doing, we hope to provide insight on what constitutes a meritorious claim for asylum and highlight specific challenges facing asylum applicants in the United States. The Immigration and Nationality Act The Immigration and Nationality Act (INA) was created in 1952 to unify and clarify U.S. immigration law.46

Congress has revised the act many times since its inception, and the

Department of Homeland Security Citizenship and Immigration Services currently oversees the implementation of the INA. The INA codifies all immigration law and includes a section that defines the qualities of a meritorious asylum application.47 For example, the law states that an

See Figure 3 for the Board of Immigration Appeals’ jurisdictional hierarchy. To learn more about other relevant cases, please see Appendix A. 46 Citizenship and Immigration Services, The Immigration and Nationality Act. November 2007. http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f3829c7755cb9010Vg nVCM10000045f3d6a1RCRD&vgnextchannel=f3829c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed March 8, 2008). 47 Immigration and Nationality Act, U.S. Code 8 (2008) § 1158. 45

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases applicant must suffer persecution or have a fear of persecution due to their “race, religion, nationality, membership in a particular social group, or political opinion.”48 Because these categories are so broad, the International Affairs Office of the U.S. Department of Justice Immigration and Naturalization Service (INS) provides guidelines to aid Asylum Officers in their adjudication of certain types of asylum cases.49 The law also stipulates that applicants petition for asylum within one year of arrival in the United States.50 The INA prohibits granting asylum to an applicant who may no longer fear persecution due to “the existence of changed circumstances,” as evidenced by the BIA’s ruling in A-T.51 Lastly, an asylum applicant must have arrived directly from his or her native country. If the applicant has not arrived directly from the native country, DHS lawyers can argue that the petitioner be sent back to the “[s]afe third country” they used in transit to the United States.52

Immigration and Nationality Act, U.S.Code 8 (2008) § 1158(a)(2)(A). Please see Appendix H for more information on these guidelines. Source: Phyllis Coven, Consideration for Asylum Officers Adjudicating on Asylum Claims from Women, Memo, Office of International Affairs, Immigration and Naturalization Services, (Washington: Department of Justice, 1995). 50 Immigration and Nationality Act, U.S. Code 8 (2008) § 1158. 51 Immigration and Nationality Act, U.S.Code 8 (2008) § 1158(a)(2)(D).; In re A-T. 24 I&N Dec. 296 (Board of Immigration Appeals, September 27, 2007). 52 Immigration and Nationality Act, U.S.Code 8 (2008) § 1158(a)(2)(A). 49

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

III. METHODOLOGY Analysis To investigate whether In re A-T and In re A-K have caused a larger than expected decrease in FGC case applications or grant rates or a misinterpretation of the cases, we tried to collect both quantitative case information and qualitative interview data. We wanted to gather detailed information on all female genital cutting asylum cases in the United States from July 2007 until December 2007. We selected this six-month timeframe because we believed it would allow us to identify immediate changes in FGC asylum grant rates and application numbers before and after the In re A-T and In re A-K decisions, and would allow us to detect whether the number of asylum applications citing FGC had changed significantly since the Board of Immigration Appeals decisions. While it would be impossible to say definitively that the BIA decisions had caused lower grant rates or a smaller number of cases, we hoped to be able to show a correlation between the rulings and the changes in FGC-related applications. To supplement our quantitative findings, we planned to conduct several interviews with a variety of parties impacted by A-T and A-K, such as Asylum Officers, Immigration Judges, attorneys, and immigration support service providers.53 In these interviews we hoped to learn whether attorneys or immigration judges seemed to be misinterpreting the cases.

Data Collection Our client provided us with several lists containing the contact information of 345 legal, governmental, and nonprofit organizations that work in the immigration community, and we

We hoped to interview supporters and detractors of the FGC court decisions, Department of Homeland Security representatives, Department of Justice representatives, and representatives from non-profits that advocate for refugee and asylee rights. While it would have also been interesting to include the perspectives of asylum seekers concerning these cases, we chose not to pursue this option to protect asylum seekers’ privacy.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases called each source to determine whether they had experience working with FGC asylum cases. Although many of these individuals had never dealt with a female genital cutting case, they often referred us to colleagues who worked on gender-based asylum cases or had more knowledge about FGC asylum claims.

This “snowball sampling” helped us locate attorneys and

immigration support agencies experienced in female genital cutting cases.

As our calling

progressed, we were repeatedly referred to the same individuals and agencies, which convinced us that our sample was relatively comprehensive and complete. Many of the organizations we contacted (47%, 161) were ineligible to participate in the study, because they focused primarily on domestic issues and did not work with asylum cases. We were unable to speak to representatives of 35% of the organizations (122) to determine whether the organization was eligible to participate in our research or had experience working with FGC cases.54 Of the 62 organizations remaining in our sample (18% of the total), 14 were eligible to participate in the study but declined to share either case details or qualitative information.55 Forty-eight organizations (14% of the total sample) provided case information and/or interviews for this study. On these calls, we asked whether an individual worked on asylum cases, and if he or she had experience with FGC cases between July 2007 and December 2007.56 If the respondent worked on asylum cases during our timeframe, the data collection process involved two stages. First, an organization would supply us with general information on their female genital cutting

To ensure the highest response rate possible, we called each organization at least three times. We called the high priority contacts, organizations that we were referred to multiple times or had a reputation for working with asylum cases, at least five times. 55 Organizations typically declined to participate because they did not have enough time for an interview or to provide case information. 56 See Appendix B for FGC interview protocol and qualifying questions

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases cases during the last six months of 2007.57 In particular, we collected data on the applicant’s region of origin, date the claim was decided, the case’s status, the top three reasons the individual was filing for asylum, and if the applicant had previously experienced FGC or was fearful of either herself or her daughter undergoing the procedure. We also collected case data from organizations that provided asylum support but had not worked on female genital cutting cases during our timeframe.58 If an organization had worked with FGC cases during our sixmonth window, we conducted an interview.59 The qualitative questions targeted changes in adjudication from before and after the A-T and A-K decisions in September and inquired whether attorneys, Asylum Officers, or Immigration Judges mentioned the cases in court.

Respondent Characteristics We collected case information and/or interviews from 29 legal organizations (60% of respondents), 13 service providers (27% of respondents), and 6 advocacy organizations (13%, see Figure 4 below).60 The “Respondent” category below reflects all of these organizations.

See Appendix C for a case database template. We classified these organizations as respondents, because the scope of their work did not preclude them from providing support to FGC asylum seekers. They simply had no cases involving FGC from July 2007-December 2007. 59 See Appendix B for FGC interview protocol and qualitative data collection. 60 Of the legal service providers we contacted, 41% were unavailable (68), 34% were ineligible (56), and 17% participated in the research (29). General service providers were more likely to be ineligible than legal organizations (49%, 42), but they were also more available than legal organizations, with only 36% unavailable (31). Service providers were less likely to be respondents than the legal organizations, with 15% of our sample participating (13). The advocacy groups comprised the largest percentage of ineligible organizations, with 68% of our contacted sample (63) ineligible. At the same time, advocacy organizations were the most responsive to our inquiries, with a 75% response rate (23). 58

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Figure 4: Response Type by Organization Type (by Percentage). The data table indicates the number of organizations used in calculating the percentage. Source: Authors’ tabulations of all contact organizations.

Our 48 respondents also represented all eight regional asylum offices in the United States (see Figure 5 below).61 Region 2 had the highest percentage of respondents with 21% of the contacted organizations participating, while Region 5 had the lowest percentage of respondents at 9%.62

Unfortunately, we cannot disclose the actual Asylum Office regions for privacy reasons. We have renumbered the regions randomly for our data collection purposes. For a list of Asylum Offices, see Appendix G. 62 In Region 1, contacted organizations refused to participate the most, with 7% declining, as compared to the 100% participation rates in Regions 2, 5, and 8. The highest percentage of ineligible participants resided in Region 5, with 54% of contacts ineligible, but organizations in Region 1 had the lowest ineligibility rate of 40%. It was hardest to reach participants in Region 8, where we were unable to contact 50% of our listed organizations, but easiest to reach organizations in Region 7, where only 30% of participants were unavailable.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Figure 5: Response Type by Region (by Percentage). The data table indicates the number of organizations used in calculating the percentages. Source: Authors’ tabulation of all contact organizations.

Interviewees Out of 48 respondents, only 16 were eligible for interviews. The other 32 respondents provided only quantitative information. To determine whether a respondent was eligible for the interview process, we asked qualifying questions. If a respondent did not have experience working on a female genital cutting case within our six-month timeframe, we did not conduct an interview. Although all of our 48 respondents worked on asylum cases, a much smaller number dealt with FGC cases. Legal organizations comprised the majority of our interviews, representing 88% of our interviewees. One advocacy organization (6%) and one service provider (6%) also participated

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases in the interview process. Because our research primarily centered around the impact of A-T and A-K on court cases, it is unsurprising that the majority of interviewees hail from legal organizations. These organizations typically provided legal representation at low or no cost to asylum seekers, and we usually spoke with attorneys who were recommended by other contacts. The interviewees represented five of the eight asylum office regions (see Figure 6 below). Region 2 provided the most interviewees (31%, 5), while Regions 1, 4, 6, and 7 provided 2 or 3 interviewees each (12% or 19%). None of the respondents hailed from Regions 3, 5, or 8.

Figure 6: Our Interviewees: By Region. Source: Authors’ tabulation of interview data.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Limitations There are several limitations to our data collection process. The data are likely biased, because government agencies declined to participate in the study, and nonprofit advocacy organizations were much more responsive. In addition, certain regions of the country are much more seasoned in FGC asylum claims than others, and many responses came from the same few areas. While this is not necessarily a bias of the study, our results may not reflect the entire nation’s experience regarding the impact of A-T and A-K on asylum claims. Although asylum seekers, attorneys, Asylum Officers and Immigration Judges directly impacted by the A-T and A-K decisions are concentrated in certain areas, the group remains relatively disconnected from other members of the asylum community in different regions. This disconnect made it challenging to contact individuals who worked on FGC asylum cases and likely led to a smaller number of cases and interviews than if the community had a strong network. We accessed data from a nonprofit organization that collects female genital cutting case data from across the country, but their information is not necessarily comprehensive, because participation in the list is voluntary.63 Because no congressional committee covers FGC, we could not collect the information through political channels. In retrospect, we discovered that fewer FGC asylum cases undergo litigation than we first anticipated. Because the number of female genital cutting asylum cases appears small, it may not be possible to find statistically significant results on the case information to discern the impact of A-T and A-K on asylum claims, even with access to the universe of FGC asylum claims from July to December 2007. After reevaluating our data, we also realized that our six-

Unfortunately, we cannot disclose this organization’s name due to confidentiality concerns.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases month collection of FGC cases does not control for possible seasonal trends in asylum applications. Because we did not run statistical tests on the cases, cyclical trends did not skew our results, but future FGC studies should collect additional data to control for seasonal changes. We might have collected more information about cases if we read the actual cases and judgments during our designated timeframe, rather than relying on secondhand reporting of case details. Unfortunately, judges typically do not issue written opinions on asylum cases, so this was not a viable option for our research.64 Despite these drawbacks, this data collection process was the only feasible option to gather information on FGC cases within the project’s timeframe. Given that Tahirih intends to submit an amicus curiae brief to the court in the next few months, and that they intend to include information on the current and anticipated impact of In re A-K and In re A-T, this research method was the only plausible option. Given these challenges, in retrospect we would have performed our research differently. Because only a few months have passed since the BIA’s decisions, A-T and A-K’s impact on FGC asylum cases has probably not been fully realized. Our research would be stronger if the data collection timeframe extended to include cases several years before and after the BIA’s decisions.

With more data, it would be easier to detect A-T and A-K’s impact on FGC

application numbers and grant rates, as well as misunderstandings of the cases. To ensure that we access as much case information as possible, we would file a Freedom of Information Act (FOIA) request for written transcripts and decisions from multiple years of

The Executive Office of Immigration Review issued a final rule on October 18, 1999 that established a streamlined procedure for decisions made by the BIA and Immigration Courts. Under this rule, decisions can be made without issuing a written opinion. This was corroborated by an interviewee, who said that Immigration Judges issue written opinions if requested by an attorney, but otherwise do not. Source: Department of Justice, “Executive Office for Immigration Review; Board of Immigration Appeals: Streamlining,” Federal Register 64, no. 200 (October 18, 1999), http://www.usdoj.gov/eoir/vll/fedreg/1998_1999/fr18oc99-3.pdf, 56135. (accessed on March 16, 2008).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases FGC cases. In the course of our data collection, we learned from respondents that attorneys and advocates do not keep case transcripts. These records would need to be obtained from the government agency directly.

This option was not available during our project, because

submitting and awaiting a FOIA request is a time-consuming process. According to the National Security Archive’s 2006 Freedom of Information Audit, the Department of Justice took between 68 and 171 business days to process sensitive classified requests.65 The Citizen and Immigration Service left FOIA requests pending for more than 260 business days and had not responded affirmatively or negatively by the time the report was published in March 2006.66 The Applied Policy Project’s length is ten weeks, so utilizing FGC data from a Freedom of Information Act request was not an appropriate solution for compiling the necessary data. Having all of these data would allow us to control for cyclical trends in female genital cutting asylum cases and more thoroughly analyze changes in grant rates and detect case misinterpretations. Given a larger time window, this analysis might be possible. Our research could also benefit from a comprehensive list of all organizations involved in FGC asylum cases in the United States. We would stratify this list to ensure we randomly sampled multiple types of organizations and incorporated the government perspective into our research.

With a longer timeframe, we would have had the opportunity to contact more

organizations and interview eligible parties. This effort would yield a more diverse set of interviewees, a higher response rate, and a better glimpse of the trends impacting FGC asylum cases.

National Security Archive, “Pseudo-Secrets: A Freedom of Information Audit of the U.S. Government's Policies on Sensitive Unclassified Information,” Annual Audit, George Washington University (Washington: George Washington University Press, 2006), 41. 66 Ibid.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

IV. RESULTS In discussing the results, it is important to keep in mind that the short period of time that has elapsed since the BIA decisions were announced makes it difficult to detect important trends. More than half of our interviewees agreed with the legitimacy of this suspicion and were hesitant to make any pronouncements about the impact of A-T and A-K on female genital cutting cases as a whole. Nine of the 16 interviewees (56%) believed that not enough time had elapsed since the BIA’s decisions to detect major changes or trends in the court’s decision-making or in asylum grant rates. One respondent commented that the few months after the decisions were released was, “just too short of a time frame,” because “the immigration courts move slowly.”67

Results from Quantitative Data We could not draw definitive conclusions about trends before and after A-T and A-K because we were unable to gather sufficient case data. Nonetheless, our quantitative data generated a few findings. First, the BIA’s decisions in In re A-T and In re A-K have not completely eliminated the viability of FGC cases. Asylum cases involving FGC were granted in all three jurisdictions, including Asylum Offices, Immigration Courts, and the Board of Immigration Appeals, following the BIA’s September rulings. Second, the holdings of In re A-T and In re A-K have been inconsistently applied. For example, some asylum claims involving applicants who already experienced FGC were granted, while some of the claims were denied. Third, we uncovered instances of the government applying the holdings of In re A-T and In re A-K retroactively. In two of the twenty-one cases gathered, the government filed to reopen and terminate asylum cases

Interviewee 5, FGC Qualitative Research, Elisabeth Furbush, 17.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases that were approved prior to the BIA’s September rulings.

Our qualitative data expand on and

extend these findings.

Results from Qualitative Data Before we asked our interviewees about the impact of A-K and A-T as it pertains to our research question, we first wanted to determine if our interviewees were aware of In re A-K and In re A-T. We also wanted to know if the interviewees thought lawyers, Immigration Judges, and Asylum Officers were aware of the decisions and/or were referring to them in current FGC cases.68

Prior to beginning each interview, we explained the context of our study in our

recruitment script. At that time, most of our interviewees said they already knew about the In re A-T and In re A-K. Fifteen of our 16 interviewees (94%) were aware of the In re A-T case, and 14 of our 16 interviewees (88%) knew about the In re A-K case. Most people referred to email list-serves as their primary method of gathering this information, but they subscribed to several different groups. The groups mentioned include the Human Rights Watch, UC Hastings, ACLU, and Asylumlaw.org list-serves.

The interviewees also mentioned an informal network of

asylum-related professionals as an information source about major cases and trends in the field. The respondents had mixed reactions when asked one of our initial questions, “Have government attorneys and Immigration Judges cited A-T and A-K in asylum proceedings?” While 6 of 16 interviewees (38%) claimed that their local attorneys and judges were referring to the cases, 4 of 16 (25%) had not witnessed any citation of A-T or A-K thus far.69 A respondent

It is important to note that the interviewees with whom we spoke represent organizations that provide legal support for asylum seekers fleeing from the practice of FGC. Many are defense lawyers and advocates. We cannot say that their responses are unbiased. We sought interviews with government attorneys and other interested parties, but were unsuccessful in obtaining on-the-record information from them. See footnote 53 for more information. 69 The other six interviewees were either unsure, could not remember, or did not directly answer the question.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases who heard government attorneys refer to the cases said, “after the decisions came out, immediately there were situations where DAs and judges were mentioning the decisions.”70 As expected, many of our interviewees confirmed that the BIA decisions were common knowledge and were being used to limit the viability of FGC asylum claims as laid out in In re A-T and In re A-K. For example, when asked directly about whether they thought it is harder to receive asylum for female genital cutting claims now that the Board of Immigration Appeals had decided A-T and A-K, 7 of the 16 respondents (44%) said yes. One interviewee stated, “prior to the September decision at the BIA, there was no question a person would be granted just based on the female circumcision.”71 Others claimed that FGC cases were “pretty clear-cut” in the past.72 Because A-T and A-K limit the range of female genital cutting claims applicable for asylum, it is unsurprising that receiving asylum for FGC is more challenging now than before the BIA’s decisions were released. But our main research question is whether or not the BIA decisions negatively impacted the viability of asylum based on FGC beyond what the holdings of the cases justify. We found some evidence that attorneys, at least in some instances, have based their arguments on misinterpretations of the rulings. We also found evidence of general confusion on the holdings of the decisions as well as evidence that these decisions have exerted unfair influence on FGC cases. Misinterpretation Some interviewees observed confusion on the part of government attorneys regarding either A-T or A-K’s meaning.

Four of the respondents (25%) commented that attorneys

incorrectly cited one or both of the cases during litigation. In a recent female genital cutting

Interviewee 5, FGC Qualitative Research, Elisabeth Furbush, 17. Interviewee 5, FGC Qualitative Research, LaMonica Andreoff, 9. 72 Interviewee 4, FGC Qualitative Research, Elisabeth Furbush, 15. 71

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases case, one legal advocate explained, “That’s all [the government attorney] said and it was such a cheap argument and he just wouldn’t be quiet about it, he just kept repeating A-T, A-T, A-T over and over and over again. The judge just said, ‘Listen, I know what A-T says, that’s not what we have here.’”73 Another interviewee believed that a government attorney was not well-versed in A-T or A-K, because: …He literally sort of just brought it up and said, ‘Oh and according to A-K, A-T,’ in that this applicant doesn’t have a basis for asylum because FGC is not persecution. So, he had a very kind of broad reading of it. He didn’t seem to have read it carefully.74 In these instances, the BIA decisions have become a tool for prosecutors to use against legitimate asylum cases. In such cases, responsibility to refute these claims lies on the asylum attorney or the Immigration Judge. This underscores the importance of attorneys and judges being sufficiently informed on BIA rulings to know when to disregard or refute arguments. General Confusion on Meaning/Holdings of Decisions Results of our interviews also suggested general confusion over the BIA’s decisions. For example, in response to a question in our interview about how attorneys cite A-T and A-K, some interviewees (13%) suggested that the holdings of In re A-T and In re A-K are unclear, and that confusion among attorneys, Asylum Officers, and Immigration Judges is understandable. They sympathized with the government attorneys and Immigration Judges regarding possible confusion. One interviewee claimed that, “the Immigration Judges really do make an effort to

73 74

Interviewee 1, FGC Qualitative Research, Elisabeth Furbush, 7. Interviewee 9, FGC Qualitative Research, Elisabeth Furbush, 29.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases follow precedent that comes out of the BIA,”75 and another stated that the cases “are also really unclear in terms of what it actually means, what it actually adds or takes away from in terms of bases for asylum.”76 In addition to thinking that the BIA decisions themselves are unclear, 5 of the interviewees (31%) mentioned a general uncertainty about whether immigration courts should follow their circuit law or the Board of Immigration Appeals’ rulings. This statement reflected the concern of several respondents: There’s a central problem of real inconsistencies, that is the local judges and the asylum officers might not know what to do with the fact that the ______ circuit has one order on it now to address these cases and the BIA has another one. Which should prevail? Which trumps the other?77 The tension between circuit court precedent and Board of Immigration Appeals decisions is impacting current FGC cases. In one circuit, a respondent noticed that, “one Immigration Judge is following ___ circuit case law and one Immigration Judge may not quite get that certain case law trumps the BIA decision.”78

Three interviewees (19%) mentioned that they were not

particularly concerned about the impact of A-T and A-K on their cases, because they believe that “judges will continue to follow ___ circuit law and will understand that ___ circuit law controls over a contrary BIA case.”79

Interviewee 4, FGC Qualitative Research, Elisabeth Furbush, 14. Interviewee 9, FGC Qualitative Research, Elisabeth Furbush, 31. 77 Interviewee 6, FGC Qualitative Research, Elisabeth Furbush, 19-20. Many interviewees chose to discuss the nature of specific circuit courts. We have removed this information from the transcripts to ensure confidentiality. 78 Interviewee 5, FGQ Qualitative Research, Elisabeth Furbush, 17. 79 Interviewee 6, FGC Qualitative Research, Elisabeth Furbush, 19. 76

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases Results also suggest that the asylum community may be waiting for clarification regarding the A-T and A-K decisions. Four of 16 respondents (25%) claimed that they were hoping the decisions would be clarified to reduce the confusion concerning the cases’ rulings and which court’s cases had precedent in female genital cutting asylum applications. An attorney summed up her concerns as follows: We’re still uncertain about what this [A-K] really means in terms of the viability of FGC and persecution, whether it’s now created a spectrum where you have to prove that it’s like really awful intense FGC and then, and only then can it be considered continuing persecution or whether it just throws it out the door.80 While some members of the asylum community want clarification on the A-T and A-K decisions, 5 of our interviewees (31%) believe that the cases will eventually be overturned or appealed. “I think what you’re going to start hearing is a lot of people taking their cases up to the courts of appeal in the next year to try and get the BIA overturned,” speculated one respondent.81 Uncertainty seems to underscore all of these concerns, and one respondent summed up these worries, wondering, “The question is, what happens now? There’s a change of law. Do you – does the government – go back to try and reopen all they asylum cases and rescind the asylum status based on the change in law?”82 The Decisions’ Negative Impact on all FGC Cases Finally, our results suggest that the holdings of In re A-K and In re A-T have negatively affected FGC cases that do not fall under the jurisdiction of either BIA decision. For example, three respondents (19%) observed that attorneys are more hesitant to accept any type of female

Interviewee 9, FGC Qualitative Research, Elisabeth Furbush, 29. Interviewee 4, FGC Qualitative Research, LaMonica Andreoff, 7-8. 82 Interviewee 5, FGC Qualitative Research, Elisabeth Furbush, 20. 81

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases genital cutting asylum cases than before the BIA released its decisions, regardless of the type of FGC claim being used. An asylum advocate reiterated her experience, claiming, “[P]ro-bono lawyer organizations will say, ‘Well, because of matter of A-K and A-T, at this time we’re not going to interview your client that you’re trying to refer.’”83 Overall, some respondents believe “pro-bono attorneys are really concerned about these cases” and their ability to successfully litigate female genital cutting claims while the cases’ ramifications remain uncertain.84 While attorneys are hesitant to take on any FGC claims, Immigration Judges, too, may be hesitant to decide these cases. Three of the respondents (19%) noticed that female genital cutting “cases are sort of on hold” as the asylum community waits for clarification of A-T and A-K.85 At least one Immigration Judge declined to rule on a recent FGC case and told the government attorney and legal advocate to come to an agreement outside the court. The asylum applicant’s attorney believed that the judge simply did not want to issue an opinion on a case that cited A-T, but the attorney intends to “force the judge to make a decision.”86 Four interviewees (25%) specifically mentioned that they seek alternative reasons for claiming asylum to supplement any female genital cutting claim. In the past, one respondent “felt like FGM was a slam-dunk,” but now she tries to “find some other kinds of persecution as well, just to bolster it.”87 Another interviewee advised that defense attorneys “look for as many bases as possible, as many other forms of persecution as possible” to improve the odds that a female genital cutting asylum claim is granted.88

A few other respondents (13%) are so

concerned about the current environment for FGC cases that they believe mentioning the

Interviewee 8, FGC Qualitative Research, Elisabeth Furbush, 27. Interviewee 9, FGC Qualitative Research, Elisabeth Furbush, 31. 85 Interviewee 4, FGC Qualitative Research, Elisabeth Furbush, 15. 86 Interviewee 1, FGC Qualitative Research, Elisabeth Furbush, 6-7. 87 Interviewee 1, FGC Qualitative Research, Elisabeth Furbush, 2. 88 Interviewee 9, FGC Qualitative Research, Elisabeth Furbush, 29. 84

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases procedure will harm an applicant’s chance to receive asylum. One interviewee said, “[W]e are not going to mention at all that she had undergone FGM because it’s not going to help her case at all,” in fact, mentioning the procedure “would just make her look bad.”89 Around half of the interviewees (7 out of 16; 44%) believe that In re A-T and In re A-K will have an increasingly negative impact on all FGC asylum cases in the future. Several respondents commented that they are preparing for the impact of the BIA’s decisions. Even though she had not seen an impact of A-T and A-K thus far, one interviewee explained that she “can’t recall anyone in our program being denied because of [A-T or A-K] but I expect it to be happening, unfortunately.”90

89 90

Interviewee 6, FGC Qualitative Research, Elisabeth Furbush, 21. Interviewee 8, FGC Qualitative Research, Elisabeth Furbush, 26.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

V. POLICY RECOMMENDATIONS Based on these findings discussed above, we make several policy recommendations. These include both immediate and long-term actions Tahirih should take to eventually resolve the current situation. Specifically, we recommend that Tahirih do the following:  Proffer an amicus brief to encourage clarification of the BIA’s September rulings;  Submit Freedom of Information Act requests to improve data collection on FGC cases;  Lobby Congress to include “female genital cutting” as a viable reason for asylum in the Immigration and Nationality Act;  Establish a central mechanism for data collection and networking in the FGC community.

Amicus Curiae Brief A short-term recommendation is for Tahirih to author an amicus curiae brief. Originally, Tahirih asked us to provide information that could be used in an amicus curiae brief that addresses the current confusion facing defense attorneys, government attorneys, Asylum Officers, and Immigration Judges. We support Tahirih’s decision to submit such a brief and recommend that our client include several points discussed previously in our “Results” section. Writing a brief is not outside the scope of ordinary behavior for either Tahirih or the BIA. Tahirih has both signed and authored amici curiae briefs in response to BIA decisions in the past.91

In 2004, Tahirih signed on to a brief authored by the Harvard Immigration and Refugee Project. It was in support of In re RA-A73-753-922. Source: Nancy Kelly, et al., “Brief of Amici Curiae in Support of Affirmance of Decision of the Immigration Judge In re R-A-A73-753-922,” Women Refugees Project, Harvard Immigration and Refugee Clinic. (February 13, 2004), 75.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases To ensure that Tahirih’s brief is as persuasive as possible, we suggest that it include the following findings. The brief should include evidence of misrepresentation of the BIA’s rulings in A-T and A-K and cite specific instances of Immigration Judges’ and government attorneys’ confused exchanges in FGC hearings.92 Some of our interviewees claimed that judges and lawyers were having difficulty interpreting the two cases. We also found some concern that judges were refusing to rule on FGC-related cases because the rulings seemed ambiguous. This evidence should be helpful in demonstrating a need for clarification of A-T and A-K. The brief should also include information on the unintended consequences of A-T and AK on female genital cutting cases. We found an increasingly stagnating caseload in the lower courts and a hesitancy for attorneys to accept FGC petitions for asylum.

If attorneys are less

willing to work pro bono on these cases, it is likely that fewer female genital cutting asylum applicants will have legal representation while seeking permanent refuge in the United States. This self-representation may prevent meritorious FGC applicants from receiving asylum. These concerns could motivate judges and the BIA to clarify A-T and A-K and, thereby, reduce the impact of these unintended consequences on asylum applicants. If the court does not issue a clarification of the cases, Tahirih should conduct an education campaign with the amicus curiae brief. Tahirih can mail copies of the brief to Immigration Offices and government attorneys to further these officials’ understanding of A-T and A-K.93 These mailings will be a relatively low-cost method of increasing government employees’ knowledge about the impact of these cases on FGC asylum applications. This

One particularly relevant instance is discussed on page 31, when a BIA judge corrected a government attorney for incorrectly citing In re A-T. Source: Interviewee 1, FGC Qualitative Research, Elisabeth Furbush, 7. 93 For a list of Immigration Judges and their mailing addresses, see http://www.usdoj.gov/eoir/sibpages/ICadr.htm. For a list of Immigration and Customs Enforcement (ICE) Chief Counsels and their mailing addresses, see http://www.ice.gov/about/district_offices.htm.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases method has some drawbacks, however. Because a comprehensive list of Immigration Judges is posted online, it will be easier to provide these individuals with a copy of the brief. Tahirih can mail briefs to the Chief Counsels of each Immigration and Customs Enforcement (ICE) Office, but the information will not reach the general government attorney population as efficiently as the Immigration Judges. The Chief Counsels may choose not to circulate the brief in ICE offices, thereby limiting the impact of an education campaign on government attorneys. There is a higher probability that Immigration Judges will read the brief, because it will be mailed to them directly. Because government attorneys will interact with Immigration Judges during female genital cutting asylum cases, the brief’s contents may still reach government attorneys, despite information dissemination hurdles in ICE offices. An amicus curiae brief could yield a significant payoff in a relatively short amount of time. It is important to note, however, that the data in this study could be strengthened by the implementation of a long-term and focused policy agenda.

This agenda would focus on

acquiring more data, increasing the cohesion of a community of asylum-rights organizations concerned with FGC, and a savvy lobbying effort that utilizes the strength of further research and asylum stories from around the country. We now turn to recommendations aimed at long-term solutions for the asylum community.

Freedom of Information Act Request Tahirih’s ability to argue strongly for clarification of these two BIA decisions relies on a complete set of case data from before and after the rulings. In order to collect such data, we recommend that Tahirih strategically file a series of Freedom of Information Act (FOIA)

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases requests. A FOIA request is a very specific letter that is sent to a government agency requesting information that is within the public’s right to know.94 The turnaround time for these FOIA requests will likely be unpredictable and very long, and this presents unique challenges. For this reason, we recommend a two-step strategy for filing the FOIA requests. Through these requests, Tahirih should aim for a set of FGC case information that is both timely and comprehensive. To the first end, we recommend filing FOIA requests at the beginning of 2009 to obtain case information from January 1, 2006 to December 31, 2008. These three years of data will allow Tahirih to compare three different seasonal cycles of female genital cutting cases. Comparing data year to year (ie. comparing August 2006, August 2007, and August 2008) will help control for seasonal variation in FGC-related asylum cases. It will also provide roughly a year and a half of data on either side of the BIA’s September 2007 rulings. With these data, it may be possible to see the beginnings of an exaggerated trend in denials of FGC-related asylum cases. It would be more desireable, however, to secure a more comprehensive data set that includes years past 2008. We also recommend that Tahirh submit a second round of FOIA requests at the beginning of 2011. These requests would be made for all FGC-related asylum case information from January 1, 2009 to December 31, 2010. Because we do not forsee the establishment of a collaborative data-collecting mechanism among Tahirih and its colleague organizations until 2009 or 2010 (explained in further detail below), these data will help provide an exhaustive list of cases for analysis in the meantime.95

See Appendix D for more detailed instructions on sending an FOIA request and the text of letters that can be sent to the Department of Homeland Security and the Department of Justice. Source: Executive Office of Immigration Review, How to Submit an FOIA/PA Request, http://www.usdoj.gov/eoir/efoia/foiafact.htm (accessed February 17, 2008). The success of the data collection process described below is critical in determining the end of the FOIA request process. If the entire FGC community can organically develop and maintain a comprehensive database by the end of 2008, then the

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases We recommend that Tahririh makes these requests to two different government agencies.96 The first is the Department of Homeland Security Citizenship and Immigration Services (DHS/CIS), which has jurisdiction over asylum offices and can provide case information regarding decisions made at that level. The second request should be sent to the Department of Justice Executive Office of Immigration Review (DOJ/EOIR), the overseer of Immigration Judges and the Board of Immigration Appeals. Specifically, these requests would obtain case information relevant to tracking FGCrelated asylum trends, yet not invade the privacy of the asylum seekers. The requests should include the applicant’s region of origin, the asylum office region in which the claim was filed, the date the application was decided, the result of the ruling, what court made the decision, whether the applicant underwent female genital cutting, whether the applicant fears female genital cutting if deported back to her native country, whether the application was made based on the fear that a family member would undergo female genital cutting if the family would be deported, the top three claims in the application, and the most significant reason for the application. These are the same questions asked in the quantitative portion of our interviews.97 We also suggest that Tahirih file these requests in collaboration with a journalist. An FOIA request from a trusted and reputable member of the news media often motivates government agencies to respond more rapidly.98 This journalist should send the FOIA request letter on his or her own behalf and also forward the agencies’ responses when they become available.

second round of FOIA requests will not be necessary. We believe this is unlikely, however. Indeed, it may take much longer to be confident of a comprehensive database, and further FOIA requests may be necessary past 2011. 96 Amy Zegart, interview by LaMonica Andreoff and Brian Hackney, Interview: FOIA Request Information, (February 19, 2008). 97 For more information on these questions and examples of the various categories, see Appendix C. We suggest that this blank database table be sent along with the FOIA request letter so that the DHS/CIS and DOJ/EOIR have a better understanding of the specific information Tahirih will be requesting. 98 Amy Zegart, interview by LaMonica Andreoff and Brian Hackney, Interview: FOIA Request Information, (February 19, 2008).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Lobby for Inclusion of FGC in Immigration and Nationality Act We recommend that the Tahirih Justice Center and its colleague organizations lobby Congress to amend the Immigration and Nationality Act (INA) to include FGC as a basis for asylum. In its decision, the BIA specifically ruled on A-T using the following justification: FGM has not been specifically identified as a basis for asylum within the definition of a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), so FGM does not qualify as “continuing persecution.”99 We therefore propose a Congressional lobby to amend the language of the INA and specifically include fear of FGC under the definition of “refugee.” As our qualitative results show, attorneys and advocates anticipate an even greater decline in the number of FGC cases filed and granted than the holdings of In re A-K and In re A-T justify. This speculated decline stems from misinterpretation, general confusion over agency policy, and unfair application of the cases.

Expanding the current legislation to include FGC as a basis for asylum under the

definition of “refugee” in the Immigration and Nationality Act would help eliminate such a problem. A comprehensive lobby effort should include several parts. First, we recommend that Tahirih send a signed letter to all members of the Senate and House of Representatives to express concern over the BIA’s rulings in A-T and A-K. The letter should be signed by several wellknown organizations working on gender-based asylum issues in addition to Tahirih, such as the American Civil Liberties Union, Human Rights Watch, Human Rights First, the UC Hastings Center for Gender and Refugee Studies, and the Center for Victims of Torture in Minnesota.

In re A-T, 24 I&N Dec. 296 (Board of Immigration Appeals, September 27, 2007), 296.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases Second, we recommend Tahirih sponsor a Capitol Hill briefing to highlight FGC and its prevalence both around the world and in the United States. This session should help Congress and staffers understand the magnitude of the FGC problem. Third, we recommend that Tahirih follow up the letter and briefing by arranging individual meetings with all members of the Senate Committee on Judiciary, Human Rights and the Law Subcommittee, and all members of the House Committee on Foreign Affairs, Subcommittee on Africa and Global Health.100 Finally, Tahirih and its colleague organizations should lobby for Congressional hearings on FGC-related asylum.

These hearings should be held by both of the above-mentioned

committees. These hearings should highlight the prevalence of FGC and the findings of this study, and include testimony from survivors of FGC. Tahirih should also ensure that these hearings publicize female genital cutting issues to journalists and general media. We also recommend inviting board members of the BIA to attend the hearings. This may help focus the board’s attention on the impact of A-T and A-K on the asylum community. A similar lobby campaign occurred between 1994 and 1996 in an effort to expand conditions for asylum to include fear of coercive population control (CPC). In 1996, Congress expanded asylum legislation to include a special case for individuals who experienced coercive population control methods such as forced abortion or involuntary sterilization, or had a wellfounded fear of experiencing CPC.101 The events leading to the coercive population control lobby effort were similar to those leading up to the current FGC situation. Prior to Congress’ legislative action, the BIA denied two applicants asylum based on fear of persecution involving

100 101

See Appendix F for a list of relevant Members of Congress. Executive Office of Immigration Review, "Coercive Population Control Cap Is Lifted –– Full Asylum Granted After Security Clearance," News Release, Department of Justice (Washington, 2006).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases coercive population control in China.102 Then in 1994, a Federal District Court judge in Virginia ruled that fear of persecution under China’s program did qualify applicants for asylum, in direct contradiction to the BIA’s previous holdings. Though the district court judge’s ruling did not invalidate the BIA’s holdings, it created a precedent for judges to make their own decisions, regardless of the BIA’s rulings. It also created confusion in the asylum community and set off an internal policy debate in the Justice Department and former Immigration and Naturalization Service.103 In response to the lobbying, Congress amended the asylum legislation and passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.104 A lobby campaign for expansion of the Immigration and Nationality Act to include FGC would strengthen and solidify the motley assortment of lawyers, social workers, and advocates into a more cohesive FGC community. Similar results were seen when asylum specialists and activists within the Chinese-American community came together to lobby Congress to explicitly include coercive population control in asylum law. If expanding legislation proves successful, a formal government committee in Congress would be responsible for monitoring FGC cases and updating case law. Improving legislation is the most effective long-term step to circumvent future misinterpretation of these and any future FGC decisions.

102

103 104

The cases held that “enforcement of China’s family planning policy does not, in itself, create a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.” Source: Robert Pear, “Victims of China’s Birth Control Policy Are Entitled to Asylum, a U.S. Judge Says,” The New York Times, January 21, 1994, 1. Robert Pear, “Victims of China’s Birth Control Policy Are Entitled to Asylum, a U.S. Judge Says,” The New York Times, January 21, 1994, 1. “Section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 expanded the definition of ‘refugee’ to include… a person who has been: forced to abort a pregnancy, undergo involuntary sterilization, persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, or has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have been persecuted or have a well-founded fear of persecution on account of political opinion.” Source: Citizenship and Immigrations Services, “Resistance to Coercive Population Control (CPC) Programs,” Department of Homeland Security, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/ ?vgnextoid=e0926138f898d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=3a82ef4c766fd010VgnVCM1000000ec d190aRCRD (accessed on March 18, 2008).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Create Central Mechanism for Data Collection and Information Dissemination Our final suggestion is that Tahirih create and oversee a centralized mechanism for collecting and disseminating data on FGC-related cases and decisions. This data collection and information-sharing tool would facilitate communication and help correct asymmetric information and collective action problems within the FGC community. During the data collection process, we encountered significant barriers to information sharing among individual organizations. Although we collected case information and/or interviews from 29 legal organizations (60% of respondents), 13 service providers (27% of respondents), and 6 advocacy organizations (13%), only two of these organizations collected aggregate data from other organizations.105 A central data-clearinghouse would allow individual attorneys, firms, and advocacy organizations to funnel information to a main data collection center that could share the information nationwide. In the future, this will allow policy makers and researchers to monitor the impact of cases such as In re A-T and In re A-K on the FGC asylum community. Some organizations monitor asylum events, but we have found no formal cooperation or linkage between these centers.

Asylumlaw.org, Inc. is one such organization, providing

information and support for asylum seekers and attorneys across the nation. Approximately 5,000 attorneys currently use Asylumlaw.org’s links, discussion boards, and legal tools for the asylum community.106 The website is divided into information for asylum seekers, including helpful links and discussion boards. It includes legal support for attorneys, sorted by topic and country. Asylumlaw.org also posts precedent-setting cases and decisions that impact asylum trends around the world. 105 106

Refer back to the “Respondent Characteristics” section for more information on our respondents. Asylumlaw.org, About Us, http://www.asylumlaw.org/about_us/ (accessed March 8, 2008).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases We recommend that Tahirih establish an online FGC networking and data collection center on Asylumlaw.org’s website.

While the website currently serves as an asylum

information hub, Tahirih could use its influence and reputation in the female genital cutting community to increase participation in Asylumlaw.org and ensure that gender asylum attorneys throughout the nation have a strong support network to address FGC cases and trends. To set up this site, Tahirih can reach out to Asylumlaw.org to discuss the idea and contents of an FGC-centered information center. Because Asylumlaw.org specifically mentions that volunteers moderate portions of the site, it seems feasible that it would be receptive to having Tahirih oversee a female genital cutting section of the site. The website also has a budget of less than $20,000 annually, so Tahirih might be able to make a small donation to support Asylumlaw.org and further ensure that they can run the information center.107 This data collection center should have many of the same features as other sections of the Asylumlaw.org website, including a discussion board for attorneys, postings of relevant asylum cases online, and a search tool to find FGC litigators across the country. This new FGC-centered information hub will be different from other topics on the website, however, because the site will focus exclusively on female genital cutting issues and cases. A key feature of the information center will be a database of all FGC cases collected by Tahirih from FOIA requests. This comprehensive case database will be available to the public for research purposes, and the center will ask attorneys to submit their recent FGC case information to prevent the need for further FOIA requests. Because the information will be publicly available, we recommend that the comprehensive FGC case database follow the format of our FGC case database.108

107 108

Asylumlaw.org, Donations, http://www.asylumlaw.org/donate/ (accessed March 8, 2008). Refer to Appendix C for the template of our Case Database.

Such

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases information meets an acceptable standard of privacy according to the Institutional Review Board at UCLA.

Attorneys also understand what case information is acceptable to share while

protecting clients’ privacy and should self-regulate to ensure that they do not violate attorneyclient privilege. The Center for Gender and Refugee Studies (CGRS) at the University of CaliforniaHastings currently hosts a searchable database of gender-related asylum cases online. Like our data collection mechanism on Asylumlaw.org, this database relies primarily on voluntary participation from attorneys in the asylum community to collect case information.

Our

recommendation differs from CGRS’s online case collection model in a few key aspects. The Center for Gender and Refugee Studies does not post all of its cases online, and a person must submit a request form to gather cases that are not on the website. Our recommended FGC case database on Asylumlaw.org should be entirely accessible to the public to reduce information asymmetry in the asylum community. Also, CGRS’s cases include all gender-related asylum cases, and the new Asylumlaw.org database should focus its efforts exclusively on female genital cutting cases.109 To ensure that our recommendation does not strain any relationships, Tahirih should contact CGRS to share its intention to establish a female genital cutting information center and ask for any advice to make the venture successful. Tahirih could also consider collaborating with CGRS staff to set up and monitor the new FGC online information center. Through Tahirih’s Congressional lobbying efforts, the organization should have the contact information of many organizations and attorneys interested in the impact of A-T and A-K on FGC asylum claims. Tahirih can notify all of its colleagues about the newly established

109

Center for Gender and Refugee Studies, Homepage, http://cgrs.uchastings.edu/ (accessed March 8, 2008).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases section of Asylumlaw.org that will focus specifically on female genital cutting information and cases to encourage their participation. In addition to soliciting involvement from its contacts, Tahirih can reach a larger segment of the asylum community by advertising the new data collection mechanism in a few select ways. First, Tahirih should post an advertisement on the Asylumlaw.org homepage to inform current members of the FGC information section. This advertisement should prompt relevant visitors to Asylumlaw.org to contribute their case information and support to the information center. Tahirih can also encourage participation by reaching out to subscribers of multiple human rights and asylum support list-serves, such as the UC Hastings and Human Rights Watch listserves, to continue spreading the word about the new FGC online database. Because our respondents mentioned list-serves as a primary method of gathering news on asylum trends, this email should reach a large number of potential information sources on female genital cutting.110 Tahirih should contact gender and asylum clinics at law schools throughout the country to share its plans for an FGC information center. This should encourage many attorneys and law students to utilize Asylumlaw.org and the new center as a resource for FGC case support. Overall, this new information collection tool should promote the establishment of a strong network of female genital cutting asylum attorneys and reduce the problem of information asymmetry across the eight USCIS regions.

110

An example of such an email is included in Appendix E.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

VI. CONCLUSIONS The purpose of this project was to determine whether In re A-T and In re A-K have influenced the viability of asylum applications based on female genital cutting.

Although the

two cases did not rule out FGC as a reasonable claim for asylum, our client, the Tahirih Justice Center, was concerned that government attorneys, Asylum Officers and Immigration Judges might be misinterpreting A-T and A-K and denying cases that would be otherwise meritorious. To investigate this issue, we gathered case information and interviews from impacted parties, including asylum advocates, support agencies, and attorneys. The quantitative data were largely inconclusive, but the interviews illuminated a few trends in the FGC asylum community. We found evidence that some government officials are misinterpreting and confusing the BIA’s rulings, as Tahirih suspected. A-T and A-K are also causing some attorneys to hesitate before accepting FGC cases, making it more challenging for asylum-seekers to secure legal representation.

When attorneys do accept FGC cases, they sometimes include additional

justifications for asylum to increase their probability of receiving a favorable ruling. Our recommendations focused on several key problems that hinder the FGC community’s ability to secure asylum for clients in the current legal climate: misinterpretations of A-T and A-K, a lack of information and cohesiveness in the female genital cutting community, and vague wording in the INA. Because some people are misinterpreting A-T and A-K, we support Tahirih’s decision to file an amicus curiae brief for clarification of the cases. During our research, we also discovered that the FGC community needs additional information about cases and its colleagues, so we recommend that Tahirih submit FOIA requests to gather data on the universe of FGC cases. We suggest that Tahirih collaborate with other organizations to lobby Congress to include female genital cutting as a clear justification for asylum in the

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases Immigration and Nationalization Act, thereby reducing future concerns that FGC may not be grounds for asylum. Lastly we recommend that Tahirih establish an online data collection center to promote networking and information sharing. While some of our recommendations, such as establishing an FGC information sharing hub, focus on long-term methods of improving collaboration within the community, the need for clarification of A-T and A-K is urgent. If some Asylum Officers and Immigration Judges are misinterpreting the cases, individuals with valid reasons for claiming asylum may be denied purely due to this confusion. To ensure that the United States continues to serve as a safe haven for persecuted peoples around the world, the Board of Immigration Appeals needs to clarify A-T and A-K.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

BIBLIOGRAPHY Asylumlaw.org. About Us. http://www.asylumlaw.org/about_us/ (accessed March 8, 2008). —. Donations. http://www.asylumlaw.org/donate/ (accessed March 8, 2008). Brigham and Women's Hospital. Table 4 - Women living in the United States estimated to be at risk of FGC, by state, 2000. 2000. http://www.brighamandwomens.org/africanwomenscenter/FGCbystate.aspx (accessed January 30, 2008). Center for Gender and Refugee Studies. Fauziya Kassindja and the Struggle for Gender Asylum. http://cgrs.uchastings.edu/about/kasinga.php (accessed January 3, 2008). —. Homepage. http://cgrs.uchastings.edu/ (accessed March 8, 2008). Citizenship and Immigration Services. INA: ACT 208 - Asylum. November 2008. http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=cb90c19a50729fb47fb0686648558d be (accessed March 8, 2008). —. “Resistance to Coercive Population Control (CPC) Programs.” Department of Homeland Security, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgne xtoid=e0926138f898d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=3a82ef4c766fd 010VgnVCM1000000ecd190aRCRD (accessed on March 18, 2008). —. The Immigration and Nationality Act. November 2007. http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgn extoid=f3829c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=f3829c7755cb 9010VgnVCM10000045f3d6a1RCRD (accessed March 8, 2008). Coven, Phyllis. Consideration for Asylum Officers Adjudicating on Asylum Claims from Women. Memo, Office of International Affairs, Immigration and Naturalization Services, Washington: Department of Justice, 1995. Department of Justice. “Executive Office for Immigration Review; Board of Immigration Appeals: Streamlining.” Federal Register 64, no. 200 (October 18, 1999), http://www.usdoj.gov/eoir/vll/fedreg/1998_1999/fr18oc99-3.pdf. Department of State. Report on Female Genital Mutilation (FGM) or Female Genital Cutting (FGC). Country Report, Washington: Office of the Senior Coordinator for International Womens Issues, 2001. Dorkenoo, Eufa. Cutting the Rose: Female Genital Mutilation: The Practice and Its Prevention. London: Minority Rights Publications, 1994. Dugger, Celia. "Congress Bans Genital Rite." New York Times, October 12, 1996: A1.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases Ervin, Clark. Open Inspector General Recommendations Concerning the Former Immigration and Naturalization Service from Unaccompanied Juveniles in INS Custody. Office of Inspections, Evaulations, and Special Reviews, Department of Homeland Security, Washington: Office of the DHS Inspector General, 2004. Executive Office of Immigration Review. "Coercive Population Control Cap Is Lifted –– Full Asylum Granted After Security Clearance." News Release, Department of Justice, Washington, 2006. —. How to Submit an FOIA/PA Request. http://www.usdoj.gov/eoir/efoia/foiafact.htm (accessed February 17, 2008). Garcia, Michael. The UN Convention Against Torture: Overview of US Implementation Policy Concerning the Removal of Aliens. Congressional Research Services, Washington: The Library of Congress, 2006. Government Accountability Office. "Executive Office for Immigration Review: Caseload Performance Reporting Needs Improvement." Report to the Senate Finance Committee Chairman, Washington, 2006. —."Humanitarian Assistance: Protecting Refugee Women and Girls Remains a Significant Challenge." Report to the Chair of the House Committee on Foreign Relations, Washington, 2003. Haddal, Chad. Unaccompanied Minor Children: Policies and Issues. Report to Congress, Congressional Research Service, Washington: Library of Congress, 2007. House Committee on Foreign Affairs, Subcommittee on Africa and Global Health, United States House of Representatives, http://foreignaffairs.house.gov/members.asp?committee=africa (accessed March 7, 2008). Immigration Officer Academy. Female Asylum Applicants and Gender-Related Claims. Participant Workbook, Asylum Officer Basic Training Course, Washington: Department of Homeland Security, 2007. Immigration and Nationality Act, U.S. Code 8 (2008) § 1158. Immihelp.org. CIS Asylum Offices in the US. 2008. http://www.immihelp.com/directory/asylum-offices.html (accessed on January 10, 2008). In re A-K. 24 I&N Dec. 275. Board of Immigration Appeals, September 5, 2007. In re A-T. 24 I&N Dec. 296. Board of Immigration Appeals, September 27, 2007. Kassindja, Faouziya and Layli Miller-Bashir. Do They Hear You When You Cry. New York, NY: Delta Publishing, 1997. Kelly, Nancy et al. “Brief of Amici Curiae in Support of Affirmance of Decision of the Immigration Judge In re R-A-A73-753-922.” Women Refugees Project, Harvard Immigration and Refugee Clinic. (February 13, 2004).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases Mangan, LaVonne. Immigration Statistics on the Web. Report for Congress, Washington: Congressional Research Service, 2007. Musalo, Karen. "Brief for the Respondent." File A73 476 695. Washington, DC: Submitted to the Board of Immigration Appeals and Executive Office of Immigration Review, December 4, 1995. National Cable & Telecommunications Association et al. v. Brand X Internet Services. 04-277 United States Supreme Court, June 27, 2005. National Freedom of Information Coalition. Sample FOIA Request Letters. University of Missouri School of Journalism. http://www.nfoic.org/foi-center/sample-letters.html (accessed March 8, 2008). National Security Archive, “Pseudo-Secrets: A Freedom of Information Audit of the U.S. Government's Policies on Sensitive Unclassified Information,” Annual Audit, George Washington University (Washington: George Washington University Press, 2006), 41. Ombudsman, Citizenship and Immigration Services. Annual Report 2006. Annual Report, Citizenship and Immigration Services, Washington: Department of Homeland Security, 2006. Pear, Robert. “Victims of China’s Birth Control Policy Are Entitled to Asylum, a U.S. Judge Says,” The New York Times, January 21, 1994. Rahman, Anita and Nahid Toubia. Female Genital Mutilation: A Guide to Laws and Policies Worldwide. London: Zed Books Ltd., 2000. Ramji-Nogales, Jaya, Andrew Schoenholtz and Phillip Schrag. “Refugee Roulette: Disparities in Asylum Adjudications.” Stanford University Law Review, 60 no.2 2007: 295-412. Senate Committee on the Judiciary, Human Rights and the Law, United States Senate, http://judiciary.senate.gov/subcommittees/110/humanrights110.cfm (accessed March 7, 2008). Skaine, Rosemarie. Female Genital Mutilation: Legal, Cultural, and Medical Issues. Jefferson, North Carolina: McFarland & Company, Inc., Publishers, 2005. Texas Cooperative Extension. Map-maker Utility. Texas A&M University. http://monarch.tamu.edu/~maps2/us.htm (accessed on March 17, 2008). The Federal Communications Commission. "FCC Homeland Security Action Plan." Washington, 2003. Torreon, Barbara. Immigration: A Guide to Internet Sources. Report to Congress, Congressional Research Services, Washington: The Library of Congress, 2004. United Nations High Commissioner for Refugees, Asylum Levels and Trends in Industrialized Countries, 2006. Division of Operational Services, Geneva, 2007.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases —. “Women – Seeking A Better Deal,” Refugees Magazine 1, no. 126: (April 2002): 4-13. Voice of America. "African Immigrants Make US Presence Known In Some American Communities." The Hamza Report, May 02, 2005. World Health Organization. Progress: In Sexual Reproductive Health Research. Annual Update, Department of Reproductive Health and Research, Geneva: UN Special Programme of Research, Development, and Research Training In Human Reproduction, 2006. Zegart, Amy, interview by LaMonica Andreoff and Brian Hackney. Interview: FOIA Request Information (February 19, 2008).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

APPENDICES Appendix A: Reference Cases The Matter of Kassindja111 The story of Fauziya Kassindja is one of the best-known cases of FGC-related asylum.112 According to the affidavit provided by her lawyer to the Board of Immigration Appeals, Ms. Kassindja arrived in the United States via Germany from her native country of Togo.113 The night before she was to undergo FGC, her sister smuggled her across the border to Ghana where she boarded a plane and fled Africa. Ms. Kassindja was detained upon arrival in the United States and sent immediately to prison. After several months in prison, she had a hearing in front of an immigration judge. The judge ruled that she was not credible and ordered her to return to Togo.114 Upon appeal, the BIA heard her case in banc. In a special exemption, they allowed Ms. Kassindja’s legal team to clarify many of the facts of her case.115 After a deliberation of several more months, the Board overturned the immigration judge’s decision and granted asylum.116 The Matter of Kassindja, as the case is known, is considered a landmark FGC case that paved the way for women to seek asylum in the United States based on a well-founded fear of

111

Note that the case is typically spelled as the “Matter of Kasinga.” Center for Gender and Refugee Studies, Fauziya Kassindja and the Struggle for Gender Asylum, http://cgrs.uchastings.edu/about/kasinga.php (accessed January 3, 2008). 113 Karen Musalo, "Brief for the Respondent," File A73 476 695. (Washington, DC: Submitted to the Board of Immigration Appeals and Executive Office of Immigration Review, December 4, 1995), 7-8. 114 Ibid., 9. 115 Center for Gender and Refugee Studies, Fauziya Kassindja and the Struggle for Gender Asylum, http://cgrs.uchastings.edu/about/kasinga.php (accessed January 3, 2008). 116 Faouziya and Layli Miller-Bashir Kassindja, Do They Hear You When You Cry (New York, NY: Delta Publishing, 1997), 508. 112

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases female genital cutting.117 Because all twelve judges heard and ruled on the case, it is a key precedent-setting decision that was widely hailed in the media and asylum-rights community. Mohammed v. Gonzales Mohammed v. Gonzales is a U.S. Ninth Circuit Court of Appeals case that struck down a limitation on FGC-related asylum. Even though FGC is a widely accepted societal practice in Somalia, the Ninth Circuit ruled that this still does not mean that Somali women seeking asylum in the United States do not qualify.118 Although this ruling was not clarifying a particular ruling of the BIA, it is a relevant example of how cases can be used to clarify or expand the ability of a woman to seek asylum from the fear of FGC. Brand X On June 27th, 2005, the U.S. Supreme Court ruled in the case The National Cable & Telecommunications Association et al. v. Brand X Internet Services.119 In this case, the court overturned a lower court ruling that would have forced television cable companies to share their infrastructure with internet service providers. Although this ruling seems unrelated to asylum law, it has important implications on the role of agency courts in relation to the greater U.S. federal court system. The Supreme Court overturned the decision of the U.S. Ninth Circuit Court of Appeals and deferred to the Federal Communications Commission (FCC) regarding why internet service providers are not legally privvy to use of the cable industry’s infrastructure.120 This relates to asylum law, because it means that the BIA (which in this case is

117 118 119 120

Center for Gender and Refugee Studies, Fauziya Kassindja and the Struggle for Gender Asylum, http://cgrs.uchastings.edu/about/kasinga.php (accessed January 3, 2008). Immigration Officer Academy, Female Asylum Applicants and Gender-Related Claims, Participant Workbook, Asylum Officer Basic Training Course (Washington: Department of Homeland Security, 2007), 22-23. National Cable & Telecommunications Association et al. v. Brand X Internet Services, 04-277 (United States Supreme Court, June 27, 2005). Ibid.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases an analogue to the FCC) is superior to the U.S. Circuit Court of Appeals on matters relating to immigration. Matter of C‐A The Matter of C-A is a BIA ruling that required ‘visibility’ for a social group that seeks asylum. In order to prove that there is a well-founded fear that necessitates asylum in the United States, asylum seekers must prove that their fear of persecution is based on a personal characteristic that is fundamental to their identity.121 Most women fleeing FGC claim that they are defined by their inclusion in a ‘social group’ that includes women who are opposed to female genital cutting.122 This was one of the major arguments in the Matter of Kassindja and is a strong support for defense lawyers advocating for their client’s withholding of removal in the United States. Requiring these types of social groups to have visibility presents a significant hurdle for asylum seekers and their legal representatives. Visibility could potentially attract unwanted scrutiny from local leaders who are in favor of continuing the practice of FGC and put the women in undue danger. Clarification on this case must also be addressed so that American immigration policies do not put women in any greater danger than they already face.

121

The categories under which an applicant must fit to be eligible for asylum in the United States are, “race, religion, nationality, membership in a particular social group, or political opinion.” Source: Citizenship and Immigration Services, The Immigration and Nationality Act, November 2007, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f3829c7755cb9010Vg nVCM10000045f3d6a1RCRD&vgnextchannel=f3829c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed March 8, 2008). 122 Karen Musalo, "Brief for the Respondent," File A73 476 695 (Washington, DC: Submitted to the Board of Immigration Appeals and Executive Office of Immigration Review, December 4, 1995), 26.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Appendix B: FGC Interview Protocol Qualifying Questions 1. Does your organization have any female clients seeking asylum or withholding of removal? y/n 1.a. Does your organization have any male clients seeking asylum or withholding of removal whose claim has involved seeking protection for fear of female genital cutting to a close family member? 2. Does any part of the claim for asylum or withholding of removal of any of those female clients that your organization represents rest on female genital cutting (FGC) or on forced marriage? y/n 3. Have any of these FGC- or forced marriage-related asylum or withholding of removal claims been decided in the last year? y/n If organization answers “no” to any of these qualifying questions: Thank you for speaking with me today. We appreciate your time! If organization answers “yes” to these three qualifying questions: Continue with Data Collection. Quantitative Data Collection Collaborate with lawyer, paralegal, or BIA accredited representative, either over the phone or via mail, to complete Excel spreadsheet for July 2007-December 2007 or forced marriage cases (see attached spreadsheet). Qualitative Data Collection 1. Before September, how were FGC and forced marriage claims adjudicated? What was the general outcome of these cases?

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases 2. After September, how have FGC and forced marriage claims been adjudicated? What has been the general outcome of these cases? (Possible examples of adjudication for the two questions above include granted; denied; referred to Asylum HQ; administratively closed pending further HQ guidance on gender-based asylum claims; withholding of removal rather than asylum granted, etc ) 3. Have you noticed a change in the outcome or treatment of FGC and forced marriage claims from before September to after September? 4. If yes: What is the nature of these changes? 5. Have any asylum officers, DHS attorneys, or immigration judges cited the In re A-K or A-T cases from September during an asylum applicant’s petitioning process? 6. How did asylum officers, DHS attorneys, and immigration judges cite these cases? That is, what arguments did they make for/against granting asylum or withholding of removal to your client(s), citing to these cases for legal authority? 7.

Have you noticed any differences in behavior by asylum officers, DHS attorneys, or

immigration judges towards gender-based asylum claims, particularly FGC and forced marriage claims, since September? 8.

Were these changes uniform for both cases when a woman was seeking asylum for

withholding of removal and when a man was seeking asylum or withholding of removal for a close family member? 9. Even if you have not seen a change in FGC or forced marriage cases yet, what impact do you anticipate as a result of this decision, both in the short and long term? 10. Even if not related to any particular case, have you noticed any general trends or shifts in the treatment of gender-based claims for asylum and withholding of removal?

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Appendix C: Case Database Template This is the database we used to collect quantitative data on specific cases. It is filled in with an example case to illuminate how to complete each category.

Case Number

Example Case #1

Application Status (Approved/Denied/ Remanded)

Approved

Was this petition based on fear of FGC for a family member? (Yes/No)

123 124 125

Applicant's Region 123 of Origin

Asylum Office Region in which the Claim was 124 Filed

Northern Africa

Date Petition Decided (mm/dd/yyyy)

8/12/2007

Where was application 125 decided?

Did applicant experience FGC? (Yes/No)

Did applicant have fear of FGC? (Yes/No)

Immigration Judge

Yes

Top 3 Reasons for Filing a Claim 1. Fear of Forced Marriage; 2. War; 3. Fear of FGC

What was most significant reason for claiming asylum? Fear of Forced Marriage

Possible categories include: Northern Africa, West Africa, Central Africa, the Horn of Africa, East Africa, Southern Africa, and the Arabian Peninsula. We used a random-number generator to come up with a coding system for the eight Asylum Office Regions. We did this because of confidentiality concerns. Tahirih can use its discretion on revealing the region of a particular case. Possible categories include: Asylum Officer, Immigration Judge, Board of Immigration Appeals, U.S. Circuit Court of Appeals, U.S. Supreme Court, and settled out of court.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Appendix D: Freedom of Information Act Requests The following two letters are Freedom of Information Act (FOIA) requests for the Department of Homeland Security Citizenship and Immigration Services (DHS/CIS) and the Department of Justice Executive Office of Immigration Review (DOJ/EOIR). We suggest filing these requests with both agencies for two reasons. First, the DHS/CIS has jurisdiction over the Asylum Offices and covers the first step of the affirmative application process.126

The

DOJ/EOIR has responsibility over the immigration courts and the Board of Immigration Appeals.127

Tahirih will need data from both of these sources to create a comprehensive

database of FGC cases.

Requesting information from both agencies may also increase the

likelihood of receiving at least some female genital cutting case data. We advise that a member of the news media should send these requests because it often encourages the responding agencies to answer faster.128 The agencies may feel a greater sense of scrutiny from the public if a journalist attempts to hold them accountable for the request. The reporter should be trustworthy and dependable to ensure that he or she forwards the results. Usually, non-commercial organizations do not incur a cost for FOIA requests.129 The DOJ/EOIR and DHS/CIS advise that it is likely, however, that collecting data on FGC cases may be subject to routine publishing and managerial charges due to the difficulty of information collection.130 These charges are standard across all respondent agencies and include a 10¢ charge for every page past the first 100 pages of the response. Additionally, these charges may

126

Jaya Ramji-Nogales, Andrew Schoenholtz and Phillip Schrag, “Refugee Roulette: Disparities in Asylum Adjudications,” Stanford University Law Review, 60, no. 2 (2007): 305-308. 127 Ibid. 309. 128 Zegart Interview Amy Zegart, interview by LaMonica Andreoff and Brian Hackney, Interview: FOIA Request Information, (February 19, 2008). 129 Executive Office of Immigration Review, How to Submit an FOIA/PA Request, http://www.usdoj.gov/eoir/efoia/foiafact.htm (accessed February 17, 2008). 130 Ibid.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases also include search fees for every quarter of an hour spent on a request. The possible costs include a $4.00 clerical fee, $7.00 professional fee, and $10.25 managerial fee.131 A fee must total more than $14.00 in order to be charged to the requester. If the fee exceeds $25.00, the responding agency is responsible for notifying the requester and seeking permission before proceeding.132 The agencies will not release the requested information until receiving payment for these charges. If the journalist will also be using this information, we suggest that Tahirih and its colleague organizations share any applicable charges with the journalist’s organization. The letters below are specifically for the first round of FOIA requests. As discussed in the Policy Recommendations section of the report, the requests should be submitted at the beginning of 2009. A recent audit of the FOIA process found that it took between 68 and 171 business days to process and respond to requests similar to the case information that you seek.133 This means that Tahirih will not likely receive a response until August or September of 2009. Although the agencies are required to at least acknowledge a request within 20 business days, they rarely adhere to that schedule.134 Please note that before you send the following letters to the DOJ/EOIR and DHS/CIS, you must have the journalist put the text onto the letterhead of their news media agency. They must also sign the letter at the bottom. The letters mention that the Case Database template and example are attached to provide reference for the exact type of data needed.

For more information, please visit http://www.usdoj.gov/eoir/foiafact.htm and http://www.dhs.gov/xfoia/editorial_0316.shtm

131

Ibid. Ibid. 133 National Security Archive, “Pseudo-Secrets: A Freedom of Information Audit of the US Government's Policies on Sensitive Unclassified Information,” Annual Audit (Washington: The George Washington University Press, 2006), 41. 134 Amy Zegart, interview by LaMonica Andreoff and Brian Hackney, Interview: FOIA Request Information, (February 19, 2008). 132

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases FOIA Request to the DHS Citizenship and Immigration Services135

135

National Freedom of Information Coalition, Sample FOIA Request Letters, University of Missouri School of Journalism, http://www.nfoic.org/foi-center/sample-letters.html (accessed March 8, 2008).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases FOIA Request to the DOJ Executive Office of Immigration Review136

136

Ibid.

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Appendix E: Data Collection Collateral

The Tahirih Justice Center and Asylumlaw.org present

The Female Genital Cutting Information Center on Asylumlaw.org

The Female Genital Cutting Information Center provides a forum to support attorneys litigating FGC cases. The site features discussion boards and a comprehensive database of FGC cases from 2006 to present. Participation is FREE!

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Appendix F: Congressional Lobby Targets Senate Committee on the Judiciary, Subcommittee on Human Rights and the Law137 Richard J. Durbin, IL (D-IL) Chair Edward M. Kennedy, (D-MA) Joseph R. Biden, Jr., (D-DE) Russell D. Feingold, (D-WI) Benjamin L. Cardin, (D-MD) Sheldon Whitehouse, (D-RI) Tom Coburn, (R-OK) Ranking Member Jon Kyl, (R-AZ) Lindsey Graham, (R-SC) John Cornyn, (R-TX) Sam Brownback, (R-KS) House Committee on Foreign Affairs, Subcommittee on Africa and Global Health138 Donald M. Payne (Chair), D-New Jersey, 10th District Diane E. Watson, D-California, 33rd District Lynn C. Woolsey (Vice Chair), D-California, 6th District Sheila Jackson Lee, D-Texas, 18th District Adam Smith, D-Washington, 9th District Brad Miller, D-North Carolina, 13th District Christopher H. Smith (Ranking Member), R-New Jersey, 4th District Thomas G. Tancredo, R-Colorado, 6th District John Boozman, R-Arkansas, 3rd District Jeff Fortenberry, R-Nebraska, 1st District Robert J. Wittman, R-Virginia, 1st District

137 138

Senate Committee on the Judiciary, Human Rights and the Law, United States Senate, http://judiciary.senate.gov/subcommittees/110/humanrights110.cfm (accessed March 7, 2008). House Committee on Foreign Affairs, Subcommittee on Africa and Global Health, United States House of Representatives, http://foreignaffairs.house.gov/members.asp?committee=africa (accessed March 7, 2008).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Appendix G: Asylum Office Regions in the United States “Arlington Jursidiction: Alabama, District of Columbia, Georgia, Maryland, North Carolina, Pennsylvania (Pittsburgh), South Carolina, Virginia, West Virginia Chicago Jurisdiction: Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, South Dakota, Wisconsin Houston Jurisdiction: Arkansas, Colorado, Louisiana, Mississippi, New Mexico, Oklahoma, Tennessee, Texas, Utah, Wyoming Miami Jurisdiction: Florida, Puerto Rico, Virgin Islands Newark Jurisdiction: Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, New York (Albany, Buffalo, Manhattan, Bronx), Pennsylvania (excluding Pittsburgh), Rhode Island, Vermont New York City Jurisdiction: State of New York excluding the jurisdiction of the Albany sub office, the Buffalo district office, and the boroughs of Manhattan and the Bronx Los Angeles Jurisdiction: Arizona, Southern California, Guam, Hawaii, Nevada (Las Vegas) San Francisco Jurisdiction: Alaska, Northern California, Nevada (Reno), Oregon, Washington”139

139

Immihelp.org. CIS Asylum Offices in the US. 2008. http://www.immihelp.com/directory/asylum-offices.html (accessed on January 10, 2008).

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases

Appendix H: INS Guidelines for Asylum Officers Adjudicating Asylum Claims from Women On May 26, 1995, the International Affairs Office of the U.S. Department of Justice Immigration and Naturalization Service (INS) distributed a memo outlining guidelines for the adjudication of asylum claims from women.140 The memo was sent to the Asylum Officer Corps (AOC), which includes all Asylum Officers in the United States, and is required reading for all Asylum Officers within INS jurisdiction. Although the memo does not carry the weight of legal precedent, it serves as a guideline for Asylum Officers when evaluating the particular needs of women seeking asylum due to gender-based abuse. The memo is a direct result of the UN High Commissioner for Refugees gender guidelines, recommendations from the Harvard Immigration and Refugee Program, and Canadian gender guidelines. Citing pressure from international advocacy campaigns, the memo seeks to “enhance understanding and sensitivity to gender-related issues.”141 Previously, there had been some sense that widely-held traditional practices do not constitute a well-founded fear of abuse if they are widely accepted in the social fabric of a country. The memo shifts asylum policy away from what is acceptable in the applicant’s home country to what is acceptable according to international norms of gender-based abuse. It also discusses the unique challenges that arise when addressing subjects that many women are uncomfortable discussing with a stranger. The memo specifically mentions problems with the perception that a “questionable demeanor” among some woman may simply signal their discomfort rather than their lack of credibility.142

140

Phyllis Coven, Consideration for Asylum Officers Adjudicating on Asylum Claims from Women, Memo, Office of International Affairs, Immigration and Naturalization Services (Washington: Department of Justice, 1995), 1. 141 Ibid., 1. 142 One of the major concerns for advocates of victims of gender-based abuse is that Asylum Officers and Immigration Judges will interpret the secretive and demure nature of the applicants as an indication that they are fabricating the nature of the abuse to be granted asylum. This often leads to a decision that the applicant is not credible. A decision that declares the applicant not credible is a serious blow to the application, because that decision stands through the entire appeal process

Undue Influence? The Impact of In re A‐K and In re A‐T on Female Genital Cutting Asylum Cases As a whole, the memo educates Asylum Officers on the special needs of women claiming asylum and clarifies many common misperceptions in gender-based abuse.143

143

and invalidates much of the testimony that is given by the applicant. Source: Faouziya Kassindja and Layli Miller-Bashir, Do They Hear You When You Cry (New York, NY: Delta Publishing, 1997), 374. Phyllis Coven, Consideration for Asylum Officers Adjudicating on Asylum Claims from Women, Memo, Office of International Affairs, Immigration and Naturalization Services (Washington: Department of Justice, 1995).