Thursday, September 25, 2008


By William Fisher

A woman who was denied asylum in the U.S. despite her fears that she would suffer additional female genital mutilation if she was deported to her native Mali has been given a second chance.

Attorney General Michael B. Mukasey -- whose intervention was sought in a national campaign by women’s and human rights groups -- has reversed a ruling by a federal immigration board that acknowledged that the woman’s genitals had been cut as a child but said that while “reprehensible,” the mutilation could not be repeated.

The Attorney General concluded this month that the ruling was flawed and sent the case back to the Board of Immigration Appeals (BIA) for reconsideration, along with guidance regarding legal errors the BIA had committed.

He said, “As several courts have recognized, female genital mutilation is indeed capable of repetition.”

The woman, Alima Traore, 28, was not identified in the Attorney General’s decision but had earlier been identified in an article in The New York Times. The immigration board had ordered her to be sent back to Mali. In addition to the threat of additional mutilation, the woman’s father said he would force her to marry a first cousin. Ms. Traore also said she feared that if she gave birth to a female child, the child would face similar genital cutting. Some 95 percent of women in Mali have undergone genital cutting, according to reports from the U.S. State Department.

Karen Musalo, director of the Center for Gender Refugee Studies at the Hastings law school at the University of California, was among those who spearheaded national efforts to persuade the Attorney General to reverse the decision. She told us, “The BIA's decision exemplified an appalling lack of sensitivity or knowledge on the issue of women's rights. Board members wrongly assumed that (female genital mutilation) could only be performed once, and failed to recognize that women who live in societies where (such cutting) is inflicted are subject to a constellation of other forms of gender-based violence.”

She added that the BIA’s “treatment of the issue of forced marriage was just as off-base -- characterizing it as an unfortunate inconvenience -- rather than as the denial of women's fundamental human rights. Under well-accepted international human rights norms, forced marriage is seen as a form of servitude, involving ongoing non-consensual sexual relations -- in other words -- rape.”

Ms. Traore has lived in the United States since 2000. She arrived on a tourist
visa and remained on a student visa, attending college and studying nursing. Her student visa expired in 2003.

The nation’s immigration judges, who are appointed by the Attorney General, have drawn sharp criticism for lack of experience in immigration law, and the Justice Department has been accused of appointing political cronies to these posts as part of the politicization of the Department.

This has resulted in what some critics have called “cowboy justice.” For example, studies have shown wide disparities in outcomes of similar immigration appeals between judges in different immigration courts and even among judges sitting on the same court.

One study found that a judge was 1820% more likely to grant an asylum than another judge in the same courthouse. It also found that one U.S. Court of Appeals was 1148% more likely to rule in favor of an asylum-seeker than another U.S. Court of Appeals, and that the fate of asylum-seekers was often decided not by the facts of the case but rather by a clerk’s random assignment of an applicant to one asylum officer rather than another, or one immigration judge rather than another.

Collectively, asylum officers, immigration judges, members of the Board of Immigration Appeals, and judges of U.S. Courts of Appeals render about 77,000 asylum decisions annually. Almost all of them involve claims that an applicant for asylum reasonably fears imprisonment, torture, or death if forced to return to his or her home country.

The nation’s 215 Immigration Judges handle over 300,000 cases a year. With only 215 Judges, a single judge has to dispose of 1,400 cases a year or nearly 27 cases a week, or more than five each business day, simply to stay abreast of his or her docket.

A study published in the Stanford University Law Review concluded that “in the world of asylum adjudication, there is remarkable variation in decision-making from one official to the next, from one office to the next, from one region to the next, from one judicial circuit to the next, and from one year to the next, even during periods when there has been no intervening change in the law.”

The study confirmed many of the findings of an analysis carried out by The Washington Post, which found that politicization of the asylum-seeking process was as rampant among DOJ-appointed immigration officials as it had been shown to be among U.S. Attorneys.

The Post found that “At least one-third of the immigration judges appointed by the Justice Department since 2004 have had Republican connections or have been administration insiders, and half lacked experience in immigration law….”

The newspaper added, “These appointments, all made by the attorney general, have begun to reshape a system of courts in which judges, ruling alone, exercise broad powers -- deporting each year nearly a quarter-million immigrants, who have limited rights to appeal and no right to an attorney.”

When Michael Mukasey took over from disgraced former Attorney General Alberto Gonzales in late 2007, he cited improvement of the asylum-seeking process among his priorities. Since then, some retiring immigration judges have reportedly been replaced by more experience people, and immigration judges have received specialized training.

Gonzales’ 18-month tenure at the Justice Department was beset with controversy. A longtime Bush confidante and former White House Counsel, he announced his resignation after months of Congressional grilling over the firings of federal prosecutors and allegations that he had misled Congress about the Bush Administration’s “warrantless wiretapping” program.