Another Case of “Don’t Piss Off the Judge”

If they think you’re being evasive, they’ll send you on a wild goose chase.

Federal judges grew increasingly impatient and sometimes angry Tuesday as they questioned government lawyers on why the United States denied asylum to three women who suffered genital mutilation in Guinea.The three judge panel of the 2nd U.S. Circuit Court of Appeals must decide whether the Board of Immigration Appeals was right to deny asylum to the women and permit them to be returned to Guinea.


At the hearing, the judges seemed particularly upset at a conclusion by the government that it was fair to return the women to Guinea because they could not suffer further persecution since mutilation had already occurred. At times, all three judges raised their voices or cut off lawyers to make a point.

After lengthy arguments, the judges ordered lawyers to submit written records to show if the government had ever encountered an asylum case that was denied on the grounds that the same leg could not be amputated twice or the same organ removed again.

I doubt they’ll find any, and it’s going to be embarrassing to have to tell the panel that. But the DoJ lawyers here can be forgiven for having some trouble answering the judges; they’ve got a very tough case, one that’s already been lost in the Fourth, Eighth, Ninth, and Tenth Circuits.

The problem is that sometimes lawyers are asked to defend arguments that are, well, indefensible and to do it without irritating the court can be difficult. The ruling in this case was a foregone conclusion from Day 1, but the lawyers still have to make the best case they can make.

A brief discussion of the legal mumbo-jumbo:

There’s actually two things going on here. First is the issue of what the law actually says. The second, more interesting point, is how things are set up so that the DoJ may have to fight this battle in every circuit.

(BTW, this can be a bit gruesome to discuss or contemplate. Please don’t think I’m cold-hearted or cavalier about it, but I think it’s better to talk about it without a lot of dancing around than to obscure the issue behind euphemisms or delicate language.)

Female genital mutilation (FGM) as a foundation for asylum claims has been gaining steam for the past ten years and more. That FGM is a form of persecution is not controversial. The sticking point is whether it can indicate a well-founded fear of future persecution since it is a one-time event.

When a person applies for asylum, one of the things that he or she has to prove is that they have a well-founded fear of persecution if they were to be returned to their country. One way to do that is to prove that persecution had occurred in the past. Then the government has the opportunity to rebut that by showing that the circumstances have changed so that they could not have a well-founded fear of persecution in the future.

In FGM cases, the women are cut as girls and eventually find their way to the U.S. Whether they’re here because of the abuse or for other reasons is immaterial to their asylum claim. They don’t want to be removed and so cite the FGM. DHS attorneys then point out that the circumstances have changed: the women no longer have anything to mutilate and so cannot fear future persecution of that type.

The argument on the other side is that FGM is a “continuing harm” and part of an on-going practice of subjugating women. That argument has been winning in the circuit courts, but it’s usually based on federal caselaw that doesn’t bind the BIA. And that brings us to the second point:

The Board of Immigration Appeals (BIA)–that’s the appellate court for the Immigration Courts–has so far agreed with DHS that the past persecution makes an identical form of persecution in the future impossible and so cannot be the basis for a fear of future persecution. But starting in 2005, the federal courts of appeals began rejecting that argument. And it led to a peculiar situation. The immigration courts are bound to follow the precedent set by the BIA. But they are also subject to review and bound by the decisions of the federal courts of appeals in which they are located.

So when the Ninth Circuit rejected the BIA’s rule that FGM could not be the foundation for a claim of future persecution, immigration courts within the Ninth Circuit had to follow suit and the BIA had to affirm those decisions if they were appealed. But anyone who brought an FGM asylum case outside of the Ninth Circuit was still bound by the BIA’s old rule. Later the same year, the Eighth Circuit rejected the BIA’s rule (based on a different theory than the Ninth!–as if it couldn’t get more confusing) and so FGM asylum cases brought in the Eighth Circuit will be granted, too. Then the Tenth (also 2005) and then the Fourth (2006) followed. The case that led to this post is in the Second Circuit, where I have no doubt the BIA will be overruled again.

Unfortunately for DoJ lawyers, as long as DHS digs in its heals and insists that it’s interpretation is correct (and as long as the BIA agrees), they will have to fight this case–and likely lose–in every other federal circuit. Which puts the particular lawyers involved in a difficult position.

~ by Gabriel Malor on May 5, 2008.

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