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Summary

Female genital mutilation (FGM) encompasses a wide range of procedures which involve the removal or alteration of a woman's genitalia. The federal courts and the Board of Immigration Appeals (BIA) have classified FGM as a form of persecution, a showing of which can act as a basis for a successful asylum or withholding of removal claim. However, recent developments in this area of law have created a split between the federal courts and the BIA over the treatment of applicants who have already been subjected to FGM. The federal courts that have addressed this issue have held that a past infliction of FGM creates a presumption of a well-founded fear of future persecution, which is a prerequisite for refugee status, and also a clear probability of future harm, a requirement for obtaining withholding of removal. The BIA, on the other hand, has rejected this position, arguing that FGM can be inflicted only once, which means that an applicant cannot have a well-founded fear or present a clear probability of FGM happening again in the future. Thus, under the BIA interpretation, the past infliction of FGM, a form of past persecution, not only creates a presumption of a well-founded fear of future persecution, but also rebuts the presumption. The BIA has stated, however, that while a past infliction of FGM cannot act as a basis for a well-founded fear of future persecution, a past infliction of FGM, if sufficiently severe, can act as a basis for an asylum claim on humanitarian grounds. Although the BIA has ruled that a past infliction of FGM cannot act as the basis for a well-founded fear of persecution, a federal court of appeals has recently rejected this holding. The Federal Court of Appeals for the Second Circuit has ruled that the BIA misapplied the regulatory framework governing past persecution, holding that the BIA was in error when it determined that a past infliction of FGM rebutted the presumption of a well-founded fear of future persecution. The Second Circuit's holding, while it does not grant per se refugee status to women who have suffered a past infliction of FGM, does allow that past infliction to act as a basis for an asylum or withholding of removal claim.

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