In re Kasinga
| Decision Date | 13 June 1996 |
| Docket Number | File A73 476 695.,Interim Decision No. 3278. |
| Citation | 21 I&N Dec. 357 |
| Parties | In re Fauziya KASINGA, Applicant. |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HOLMES, HURWITZ, VILLAGELIU, COLE, MATHON, and GUENDELSBERGER, Board Members. Concurring Opinions: FILPPU, Board Member, joined by HEILMAN, Board Member; ROSENBERG, Board Member. Dissenting Opinion: VACCA, Board Member.
SCHMIDT, Chairman.
This is a timely appeal by the applicant from a decision of an Immigration Judge dated August 25, 1995. The Immigration Judge found the applicant excludable as an intending immigrant, denied her applications for asylum and withholding of deportation, and ordered her excluded and deported from the United States. Upon reviewing the appellate record anew ("de novo review"), we will sustain the applicant's appeal, grant asylum, and order her admitted to the United States as an asylee.
A fundamental issue before us is whether the practice of female genital mutilation ("FGM") can be the basis for a grant of asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1994). On appeal, the parties agree that FGM can be the basis for a grant of asylum. We find that FGM can be a basis for asylum.
Nevertheless, the parties disagree about 1) the parameters of FGM as a ground for asylum in future cases, and 2) whether the applicant is entitled to asylum on the basis of the record before us. In deciding this case, we decline to speculate on, or establish rules for, cases that are not before us.
We make seven major findings in the applicant's case. Those findings are summarized below.
First, the record before us reflects that the applicant is a credible witness. Second, FGM, as practiced by the Tchamba-Kunsuntu Tribe of Togo and documented in the record, constitutes persecution. Third, the applicant is a member of a social group consisting of young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice. Fourth, the applicant has a well-founded fear of persecution. Fifth, the persecution the applicant fears is "on account of" her social group. Sixth, the applicant's fear of persecution is country-wide. Seventh, and finally, the applicant is eligible for and should be granted asylum in the exercise of discretion. Each finding is explained below.
The applicant is a 19-year-old native and citizen of Togo. She attended 2 years of high school. She is a member of the Tchamba-Kunsuntu Tribe of northern Togo. She testified that young women of her tribe normally undergo FGM at age 15. However, she did not because she initially was protected from FGM by her influential, but now deceased, father.
The applicant stated that upon her father's death in 1993, under tribal custom her aunt, her father's sister, became the primary authority figure in the family. The applicant's mother was driven from the family home, left Togo, and went to live with her family in Benin. The applicant testified that she does not currently know her mother's exact whereabouts.
The applicant further testified that her aunt forced her into a polygamous marriage in October 1994, when she was 17. The husband selected by her aunt was 45 years old and had three other wives at the time of marriage. The applicant testified that, under tribal custom, her aunt and her husband planned to force her to submit to FGM before the marriage was consummated.
The applicant testified that she feared imminent mutilation. With the help of her older sister, she fled Togo for Ghana. However, she was afraid that her aunt and her husband would locate her there. Consequently, using money from her mother, the applicant embarked for Germany by airplane.
Upon arrival in Germany, the applicant testified that she was somewhat disoriented and spent several hours wandering around the airport looking for fellow Africans who might help her. Finally, she struck up a conversation, in English, with a German woman.
After hearing the applicant's story, the woman offered to give the applicant temporary shelter in her home until the applicant decided what to do next. For the next 2 months, the applicant slept in the woman's living room, while performing cooking and cleaning duties.
The applicant further stated that in December 1994, while on her way to a shopping center, she met a young Nigerian man. He was the first person from Africa she had spoken to since arriving in Germany. They struck up a conversation, during which the applicant told the man about her situation. He offered to sell the applicant his sister's British passport so that she could seek asylum in the United States, where she has an aunt, an uncle, and a cousin. The applicant followed the man's suggestion, purchasing the passport and the ticket with money given to her by her sister.
The applicant did not attempt a fraudulent entry into the United States. Rather, upon arrival at Newark International Airport on December 17, 1994, she immediately requested asylum. She remained in detention by the Immigration and Naturalization Service ("INS") until April 1996.
The applicant testified that the Togolese police and the Government of Togo were aware of FGM and would take no steps to protect her from the practice. She further testified that her aunt had reported her to the Togolese police. Upon return, she would be taken back to her husband by the police and forced to undergo FGM. She testified at several points that there would be nobody to protect her from FGM in Togo.
In her testimony, the applicant referred to letters in the record from her mother (Exh. 3). Those letters confirmed that the Togolese police were looking for the applicant and that the applicant's father's family wanted her to undergo FGM.
The applicant testified that she could not find protection anywhere in Togo. She stated that Togo is a very small country and her husband and aunt, with the help of the police, could locate her anywhere she went. She also stated that her husband is well known in Togo and is a friend of the police. On cross-examination she stated that it would not be possible for her to live with another tribe in Togo.
The applicant also testified that the Togolese police could locate her in Ghana. She indicated that she did not seek asylum in Germany because she could not speak German and therefore could not continue her education there. She stated that she did not have relatives in Germany as she does in the United States.
The applicant's written asylum application was filed on April 18, 1995, while she was in INS detention (Exh. 3). That application is consistent with the above testimony in all material respects.
A number of documents are attached to the applicant's asylum application. First, there are copies of two letters, dated December 27, 1994, and December 30, 1994, respectively, signed by the applicant's mother. The letters are in English. One letter confirms that the applicant's father's family wishes to have the applicant marry an older man and be subjected to FGM. That letter further confirms that the applicant's mother gave the applicant money to assist her escape. The other letter confirms that the Togolese police were looking for the applicant following her escape in October 1994.
The applicant testified that 1) her mother cannot write English; 2) the letters were prepared by the applicant's sister, at her mother's request; and 3) the letters are signed by the applicant's mother (Tr. at 62-63).
A translated copy of the applicant's marriage certificate also is appended to the asylum application. That document, dated October 7, 1994, is signed by the applicant's husband, but not by the applicant.
Finally, an untranslated document in French, perhaps from the police in Togo, is attached to the asylum application. The applicant did not rely on the untranslated document at the hearing. The INS trial attorney neither objected to the admission of the untranslated document nor cross-examined the applicant with respect to it. The Immigration Judge did not mention the untranslated document.
The applicant's prior counsel also offered a letter dated August 24, 1995, from Charles Piot, Assistant Professor of Cultural Anthropology at Duke University (Exh. 6). That letter 1) states that it was written at counsel's request, on the basis of information furnished by counsel; 2) briefly describes Professor Piot's qualifications as a cultural anthropologist who spent 3 years doing research in Northern Togo in the 1980s; and 3) offers the opinion that a woman of the Tchamba people probably would be expected by her husband to have undergone a clitoridectomy (a type of FGM) prior to marriage.
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