KASINGA
21 I & N Dec. 357 (1996)
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Rule of Law:
The practice of female genital mutilation (FGM), which causes severe harm and permanent disfigurement, constitutes "persecution" under the Immigration and Nationality Act. Young women from a specific tribe who have not undergone FGM and oppose it can be considered a "particular social group" for asylum claims.
Facts:
- Fauziya Kasinga is a 19-year-old native and citizen of Togo and a member of the Tchamba-Kunsuntu Tribe of northern Togo.
- Young women of her tribe typically undergo FGM at age 15, but Kasinga was protected from this practice by her influential father.
- Upon her father's death in 1993, Kasinga's aunt became the primary family authority, and her mother was driven from the family home to Benin.
- In October 1994, when Kasinga was 17, her aunt forced her into a polygamous marriage with a 45-year-old man who already had three wives.
- Under tribal custom, Kasinga's aunt and husband planned to force her to submit to FGM before the marriage was consummated.
- Fearing imminent mutilation, Kasinga fled Togo for Ghana with help from her older sister, and then used money from her mother and sister to travel to Germany and ultimately to the United States.
- Kasinga testified that the Togolese police and government were aware of FGM, would not protect her, and that her aunt had reported her to the police, who would return her to her husband for FGM.
Procedural Posture:
- Fauziya Kasinga arrived at Newark International Airport on December 17, 1994, and immediately requested asylum.
- Kasinga remained in detention by the Immigration and Naturalization Service (INS) until April 1996.
- Kasinga filed a written asylum application on April 18, 1995.
- An Immigration Judge (trial court/court of first instance) issued a decision on August 25, 1995, finding Kasinga excludable as an intending immigrant, denying her applications for asylum and withholding of deportation, and ordering her excluded and deported from the United States.
- Kasinga (applicant/appellant) filed a timely appeal from the Immigration Judge's decision to the Board of Immigration Appeals (highest administrative appellate body for immigration cases).
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Issue:
Does the practice of female genital mutilation, when feared by an individual who is part of a particular social group and whose government is unwilling or unable to provide protection, constitute "persecution" entitling an applicant to asylum under the Immigration and Nationality Act?
Opinions:
Majority - Schmidt, Chairman
Yes, the practice of female genital mutilation (FGM) can be the basis for a grant of asylum. The Board found Fauziya Kasinga to be a credible witness whose detailed and consistent testimony aligned with substantial background information. FGM, as practiced by the Tchamba-Kunsuntu Tribe, involves severe physical harm and permanent disfigurement, which constitutes "persecution" under the Act, even without subjective punitive intent, aligning with Matter of Acosta. The particular social group consists of "young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice." This group meets the Acosta test as members share unchangeable characteristics (young woman, tribe member) and a characteristic fundamental to identity (intact genitalia). The feared persecution is "on account of" this social group membership because FGM is practiced to control women's sexuality and overcome their sexual characteristics. Kasinga established a country-wide fear of persecution due to widespread FGM, police tolerance of violence against women, and Togo's small size. Finally, a favorable exercise of discretion was warranted given the severe persecution and Kasinga's truthful disclosure upon arrival, outweighing her use of a false passport.
Concurring - Filppu, Board Member, joined by Heilman, Board Member
Yes, FGM can amount to persecution, and the applicant qualifies for asylum. Filppu concurred, agreeing that FGM, given its level of suffering, constitutes persecution, and that the applicant's social group membership and the "on account of" element were satisfied. He emphasized the Board's narrow role in adjudicating the specific case facts and rejected the INS's request for a broad "framework of analysis" or a "shocks the conscience" test, arguing that comprehensive rules should come through legislative or regulatory processes, not single case adjudications. He found the unresolved credibility questions from Kasinga's Germany stay insufficient for an adverse finding and a remand unwarranted.
Concurring - Rosenberg, Board Member
Yes, a young woman facing female genital mutilation for tribal custom reasons is a member of a particular social group and can reasonably fear persecution. Rosenberg joined the majority, highlighting three essential elements of persecution: a genuine subjective fear with objective evidence, harm rising to persecution (considering the applicant's attitude), and a nexus to one of the five protected grounds ("on account of" factor). She argued that FGM claims fall squarely within traditional asylum jurisprudence, consistent with international law and prior Board decisions. Rosenberg asserted that while the applicant's opposition to FGM was present, it was "surplusage" to include it in the social group definition, as social group membership is status-based (like race or religion) and doesn't require individual opinion to spur persecution. She affirmed the Board's role in interpreting statute and establishing consistent policy through case adjudication, noting gender-based claims are appropriate within the "particular social group" construct and align with international and US guidelines.
Dissenting - Vacca, Board Member
No. Vacca dissented without opinion.
Analysis:
This case is a landmark decision, being the first time the Board of Immigration Appeals recognized female genital mutilation as a basis for asylum in the United States. It significantly broadened the interpretation of "persecution" to include severe harm inflicted by non-governmental actors (family, tribe) that a government is unwilling or unable to control, and expanded the concept of a "particular social group" to encompass women facing gender-specific harm. This ruling paved the way for subsequent gender-based asylum claims, affirming that practices deeply rooted in culture can be recognized as persecution if they violate fundamental human rights and are directed at a protected group.
