The Second Circuit Court of Appeals recently decided Bah v. Mukasey, which helps clarify FGM as a grounds for asylum in the U.S. In three consolidated cases, the petition for review was granted in part and dismissed in part. Each of the cases involved the fact pattern of a woman in the U.S., who had been subject to FGM in her home country of Guinea, and was now seeking asylum on those grounds. In each of the three cases the IJ and the BIA had ruled that because the FGM had already occurred there was no possibility for future persecution, and so no grounds for asylum. The Second Circuit found several problems with the courts' reasoning, and remanded based on this issue. Further, the court stated that they were very concerned that the lower courts were not following their own regulatory framework, currently in place.
The Second Circuit held that the agency had not adequately rebutted the presumption of future persecution to the petititoners, and that their remarks were conclusory. Notably, there have been cases where FGM repeatedly occurs, such as after having given birth the genitals are resewn, so FGM may not be a one time incident. Further, the real question before the judge is whether the petititoners face a risk on account of membership in a particular social group. There is sufficient evidence that women in Guinea suffer various forms of persecution and FGM is just one example of the persecution they face as a member of a particular social group. Therefore, the court needs to further explore whether there is some other risk of persecution on this ground besides just FGM or if FGM may reoccur.
The Second Circuit held that the issue of FGM as continued persecution, comparable to forced sterilization, did not need to be addressed at this time.
Based on: Bah v. Mukasey, Second Circuit Court of Appeals, 11 June 2008.