An impossible choice: denial of parents' derivative asylum claims based on their citizen daughter's risk of female genital mutilation.

• Author: Cahan, Miriam R.

1. INTRODUCTION

   Imagine leaving your home to pursue a life free from political and social persecution. You and your spouse risk everything to improve your lives by coming to the United States illegally. You live here for many years without a problem. You have two daughters who are American citizens by virtue of their birth in this country. At some point your illegal status catches up to you and the U.S. government institutes deportation proceedings against you and your spouse. You argue to the immigration judge that if removed to your country of origin, your daughters will be constructively deported and subjected to female genital mutilation ("FGM"). You tell the judge that upon your return, there is nothing you or your spouse can do to oppose the practice. FGM is ingrained in the culture and viewed as a rite of passage for all young girls. The judge deports you and your spouse, believing that there is no real risk of FGM because your daughters are legally allowed to stay in the United States. As a parent you have a choice: leave your daughters in America (to be cared for perhaps by distant relatives or the state), or bring them with you to face certain persecution.

   The United States was established in the hope of attaining freedom from an oppressive government and creating a society based on the ideals of freedom and liberty. (1) As a result, United States immigration laws allow people refuge in this country upon a showing of past persecution or fear of persecution. (2)

   Recently, many illegal alien parents have brought asylum claims because they fear that if they (and their children) are deported, their daughters will undergo FGM. A more serious issue arises when the daughter is a citizen of the United States and thus able to remain in the country independently of her parents. In many cases, courts have been reluctant to allow derivative asylum claims absent a showing that the parent personally fears persecution or that the child will be constructively deported. (3) As a result, refugees' parental rights are altered without regard to the principles and procedures of family law and the substantive due process right to raise one's family.

   This Note argues that the manner in which courts make asylum determinations impermissibly conflicts with family law principles and the constitutional interest in raising one's family.

   Part II of this Note will give an overview of refugee laws and the types of claims applicants make. Part III then summarizes FGM practices and trends, including descriptions of the types of procedures and possible complications. Part IV offers a history of judicial treatment, followed in Part V by a discussion of the importance of the family in immigration law. The process through which family issues are typically resolved in the family law and constitutional contexts is discussed in Part VI. Finally, Part VII discusses the many problems that arise when immigration law ignores the principles of family and constitutional law.

2. ASYLUM CLAIMS

   Three basic claims exist for refugees who wish to gain entry to the United States: asylum, withholding of removal, and claims under the Convention Against Torture ("CAT"). (4) Asylum-seekers request the ability to remain in the United States. (5) The Immigration and Nationality Act ("INA") dictates that asylum is available to a refugee if he or she can "establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." (6) Withholding of removal (7) is "a narrower remedy that prohibits forcible return to the country of persecution but not to third countries." (8) The standard for withholding of removal is similar to that for asylum, and an application under one provision is treated automatically as an application under both. (9) Finally, a refugee may bring a claim under the CAT. (10) To succeed with this claim, an applicant must "establish that it is more likely than not that he or she would be tortured." (11) Applicants can apply for all three options at the same time. (12)

3. FEMALE GENITAL MUTILATION

   Many cultures around the world perform FGM; however, it is most common in Africa, Asia, and the Middle East. (13) It is typically practiced on girls under the age of fifteen, and between 100 and 140 million women alive today have endured the procedure. (14)

   There are four types of FGM. The first involves "excision of the prepuce, with or without excision of part or the entire clitoris." (15) Type two is the "excision of the clitoris with partial or total excision of the labia minora." (16) Type three is called infibulation and involves the "excision of part or all of the external genitalia and stitching/narrowing of the vaginal opening." (17) The final type involves:

   pricking, piercing or incising of the clitoris and/or labia; stretching of the clitoris and/or labia; cauterization by burning of the clitoris and surrounding tissue; scraping of tissue surrounding the vaginal orifice (angurya cuts) or cutting of the vagina (gishiri cuts); introduction of corrosive substances or herbs into the vagina to cause bleeding or for the purpose of tightening or narrowing it.... (18) Often, FGM is conducted with rudimentary tools or in unsanitary conditions. (19) The process can lead to infection, urinary complications, severe pain, and long term consequences such as abscesses and problems with childbirth. (20) A few countries have criminalized FGM; however, enforcement of these laws is rare. (21) The procedure is often viewed as an essential part of a young woman's growth and sometimes a prerequisite for marriage. (22)

   The direct risk of FGM on an asylum applicant can be the basis for a claim. (23) Such a claim fails under the INA requirements for membership within a particular social group. (24) Additionally, some circuits have held that a woman who has been a victim of FGM qualifies for the presumption of past persecution. (25) Once past persecution is shown, there is a presumption of a well-founded fear of future persecution that the government may rebut with evidence of changed circumstances. (26)

   Although the applicant may not be subjected to FGM again, courts have compared FGM to past persecution presumptions in the context of forced sterilization. (27) "Like forced sterilization, genital mutilation permanently disfigures a woman, causes long term health problems, and deprives her of a normal and fulfilling sexual life." (28) It is clear that courts take FGM claims seriously. Applicants who have had FGM or fear it in the future have a good chance of receiving some form of asylum. (29)

4. JUDICIAL TREATMENT OF DERIVATIVE ASYLUM CLAIMS BASED ON A DAUGHTER'S RISK OF FGM

   In the ease In re A-K-, (30) the Board of Immigration Appeals ("BIA") (31) held that a father from Senegal could not base his claim for asylum solely on his citizen daughters' fear of FGM. (32) The BIA focused on prior cases that distinguished between non-citizen and citizen children, (33) and determined that the girls "could avoid this risk altogether by remaining in the United States, which they are legally entitled to do." (34)

   The BIA suggested that the daughters could stay with a parent who is not subject to removal, or with a court-appointed guardian. (35) However, the BIA did not make a factual inquiry into whether the children would actually return to Senegal with their father, much less who would care for them if the court deported him. (36)

   Appellate courts have agreed with the BIA's decision in In re A-K-. For example, the Ninth Circuit, in Abebe v. Ashcroft, (37) rejected an Ethiopian couple's derivative asylum claim founded on their daughter's risk of FGM because the court felt the practice could be controlled by the parents. (38) In Oforji v. Ashcroft, (39) the Seventh Circuit also denied a mother's claim based on hardship to her citizen children. The court noted that "Oforji's two female children potentially subject to FGM are both United States citizens, and thus ... have the legal right to remain in the United States." (40) The Oforji court also recognized that "depending on the father's whereabouts, or the appointment of a guardian, they may have an opportunity to not follow their mother to Nigeria." (41) Again, the court made no factual determination regarding the children's actual placement options.

   In another case, Olowo v. Ashcroft, (42) the Seventh Circuit, after determining that a mother could not meet the standards for asylum based on her daughter's risk of FGM, (43) ordered an investigation with the Department of Children and Family Services. (44) The respondent in this case testified that she would be forced to bring her family to Nigeria if she were removed. (45) The court denied her petition, holding that the asylum standards do not allow for consideration of other family members. (46) The court noted that "allowing Ms. Olowo to make this decision unilaterally disregards the legal rights of the children." (47) The court recommended "proceedings under the Juvenile Court Act, [so that] Ms. Olowo's daughters will be afforded the opportunity that immigration proceedings do not provide--representation of their best interests." (48)

   When an applicant is attempting to base a claim on his or her child's fear of FGM, it is imperative for the applicant to inform the court of any intention to bring the child with him or her. The Olowo decision makes pursuing derivative claims virtually impossible if applicants would have to face custody proceedings. The Olowo case thus points out a major flaw in immigration proceedings generally: "[C]hildren of removable aliens do not have a right to representation in immigration proceedings unless they themselves are charged with removability." (49) The limited scope of asylum proceedings creates problems for families when not all family members are subject to deportation.

   Conversely, some courts have allowed parents'...