Unpub. BIA FGM Asylum Victory; Exception to One-Year Rule; Guinea

Prof. Jon Bauer writes: "I'm attaching here a BIA decision that may be of interest, issued October 10, 2012 in a case handled by the University of Connecticut Law School's Asylum and Human Rights Clinic.   Our client has consented to allow the decision to be distributed.  The decision overturns an immigration judge's decision denying asylum to a woman subjected to female genital cutting in Guinea because of her failure to file within a year after entering the U.S.  Our client arrived in 2000, but did not apply for asylum until 2005.  During that time, she experienced pain whenever she had sexual relations with her husband, which caused her great stress and anxiety.  The pain was attributable to the genital cutting, but she did not understand this, having been brought up to believe that it was a normal and harmless procedure.  Her first five years in the U.S. were hard for her in other ways as well: she went through three difficult pregnancies and was overwhelmed with childcare responsibilities and frequent household moves.  A psychological evaluation conducted after she applied for asylum concluded that she was suffering from post-traumatic stress disorder.  In addition, her husband had been telling her that she didn't need to worry about her immigration status, because he, as an asylee, could file an I-730 on her behalf.  However, due to errors made by the husband, the I-730 was never approved.  In 2005, our client met a woman visiting from Guinea who raised her consciousness about the harm caused by female genital cutting.  She then came to understand for the first time that the genital cutting performed on her as a child was the source of the pain she had been experiencing.  Once she came to this realization, she promptly applied for asylum.  The case was first heard in immigration court in 2006.  The judge denied asylum based on the one year deadline, concluding that there were no changed or extraordinary circumstances that justified an exception.  The IJ reasoned that our client's realization that FGM was harmful was merely a "change in thought" and not a genuine change in circumstances, and found that her psychological condition did not disable her to such a degree that she was incapable of applying for asylum.   He also denied withholding of removal on the theory that FGM, having already performed, could not be done to her again.  The BIA upheld the decision in 2008, but in 2009 the Second Circuit vacated and remanded in light of the decisions in Bah v. Mukasey and Matter of A-T-.  The BIA sent the case back for another hearing before the IJ, who this time granted withholding of removal, but stuck to his original decision about the one-year deadline.  In the attached decision, the BIA reverses the IJ and holds that our client is eligible for and should be granted asylum.  The BIA concludes that,  "under the totality of the circumstances," our client demonstrated extraordinary circumstances explaining and excusing the late filing.  A lot of law students (now practicing lawyers) did great work on this case during its seven year life-span, including Kirsten Rigney, Steven Brescia, Kennex Chan, and Geoffrey Ong, who handled the two hard-fought hearings in immigration court, as well as my former colleague Michelle Caldera (now teaching at Touro Law School), who was the supervising attorney for the initial hearing and first appeal.  The Center for Gender and Refugee Studies and Harvard Immigration and Refugee Clinic pitched in with very helpful amicus briefs."

- Jon Bauer