APP Highest Honors: Asylum

by LaMonica Andreoff, Liz Furbush, and Brian Hackney

For full report click here. [1]

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 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. We 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.

¹United Nations High Commissioner for Refugees, Asylum Levels and Trends in Industrialized Countries, 2006, Division of Operational Services, (Geneva, March 23, 2007), 5.
²United Nations High Commissioner for Refugees, "Women - Seeking A Better Deal," Refugees Magazine 1, no. 126: (April 2002): 4-13.
³The 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).
⁴In 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).