[Editor's Note: Nineteen-year-old Fauziya Kasinga said she came to the United States in 1994 to seek asylum from a grisly and sometimes deadly practice in her West African homeland of Togo -- the ritual mutilation of female genitals.
The U.S. Board of Immigration Appeals held a hearing May 2, 1996 to consider whether Kasinga should be granted political asylum. The following is a transcript.]
BOARD OF IMMIGRATION APPEALS
FALLS CHURCH, VA
In Re: Fauziya KASINGA
A 73 479 695
A hearing on the above-entitled matter was held on Thursday, May 2, 1996, commencing at approximately 2:00 p.m., at the Board of Immigration Appeals, Falls Church, before:
PAUL W. SCHMIDT, Chairman
PROCEEDINGS
Mr. Schmidt: Good afternoon, Professor
Musalo. Good afternoon Mr. Martin.
Mr. Martin: Good afternoon.
Mr. Schmidt: This is Oral Argument in the case of Fauziya Kasinga, Docket Number A 73 476 695. Board of Immigration Appeals is sitting en bane this afternoon. Paul W. Schmidt, Chairman, presiding.
Joining me to my right, Vice Chairman Mary Maguire Dunne, and Board members Michael J. Heilman and Gerald S. Hurwitz. Joining me to my immediate left, Board members Fred W. Vacca, David B. Holmes, and Patricia A. Cole.
Also joining me from right to left, Board members Lauren R. Mathon, Gustavo D. Villageliu, Lauri S. Filppu, Lory D. Rosenberg, and John W. Guendelsberger. On the far right, the Chief Clerk of the Board, April M. Verner and our court reporters this afternoon, Sue Gearheart, assisted by Fortune T. Krisak.
Appearing for the applicant, Professor Karen Musalo of the International Human Rights Clinic. Professor Musalo, would you be kind enough to introduce your colleagues at Counsel table for the record?
Ms. Musalo: Yes. Yes, I would. My co-counsel, Professor Richard Boswell, and my co-counsel Layli Miller Bashir.
Mr. Schmidt: Welcome. And appearing for the Immigration and Naturalization Service, David A. Martin, the General Counsel. Mr. Martin, would you be kind enough to introduce your colleagues and counsel today for the record.
Mr. Martin: Yes, Mr. Chairman, I'd be happy to introduce David Dixon who is Chief Appellate Counsel and Dorthea Lay, Assistant General Counsel, and Shilpa Khagram, who is Appellate Counsel for the Service.
Mr. Schmidt: Welcome. Before we get started, I have several preliminary matters to go over. Professor Musalo, I understand that your client has consented to this being an open hearing.
Ms. Musalo: Yes, that's correct, Your Honor.
Mr. Schmidt: And I was hoping to get that answer. (Laughter.)
Mr. Schmidt: And Professor Musalo, you've requested and you've been granted an extended argument time of 30 minutes. Mr. Martin, you've been granted an equal amount of time. Either of you may reserve a portion of your time for rebuttal. But 30 minutes is inclusive of Board Member questioning and I will notify you when five minutes remain. We have a large group in here this afternoon and it will be easier for everybody to concentrate if the audience could please remain seated for the entire Oral Argument. We really appreciate your cooperation. Professor Musalo, you have 30 minutes. You may proceed.
Ms. Musalo: I would like to thank the
honorable members of the Board for allowing me to appear before you today to argue on behalf of our client Fauziya Kasinga. I would also like to thank the Board and its staff for the accommodation to the greatest degree possible of the public and media interest in this case.
I will argue to you today that Ms. Kasinga clearly qualifies for the relief of political asylum and withholding of deportation. I will attempt to limit my argument to approximately 20 minutes and to reserve 10 minutes for rebuttal. There are three points that I will address in making my argument that Ms. Kasinga is eligible for relief; they are the following.
Ms. Kasinga is clearly credible and the
Immigration Judge's ruling to the contrary, was totally unsupported by the evidence. Two, this Board can and should exercise its power of de nova review and make a ruling in Ms. Kasinga's case rather than remanding to the Immigration Judge for a decision. And, three, Ms. Kasinga has established a threat to life or freedom and a well-founded fear of persecution on account of her membership in the particular social group comprised of young women of the Chamba Kunsuntu (phonetic sp.) tribe. Therefore she qualifies for political asylum and withholding of deportation.
In addition, I will argue one other point and that point is that this Board should resist the invitation of the I.N.S. to decide hypothetical cases involving female genital mutilation which are not implicated in Ms. Kasinga's case. The I.N.S.'s invitation to the Board to engage in rule making is inappropriate and the Board should restrict itself to the narrow issue raised by this case whether a prospective fear of female genital mutilation constitutes a basis for asylum and withholding.
Mr. Chairman, is there any need for me to go over the facts in this case, or members of the Board.
Mr. Schmidt: I don't believe so.
Ms. Musalo: Okay, thank you. Then I'd like to begin by addressing the issue of credibility. The Immigration Judge found Ms. Kasinga to be not credible. Although the credibility determination of an Immigration Judge is accorded deference, the Judge's determination must be supported by the record. The Judge must offer a specific cogent reason for his disbelief and there must be a rational and supportable connection between the reasons cited and the conclusion that the applicant is not credible.
In Ms. Kasinga's case, there was no evidence; and I repeat, no evidence in the record to support an adverse credibility finding. Not only was Ms. Kasinga consistent, asserting in both her asylum application and at her hearing that she fled female genital mutilation and forced polygamy, but she provided more corroboration than most asylum applicants are able to. Ms. Kasinga introduced into evidence two letters from her mother referring to her flight from female circumcision and from marriage to an old man. The letter also refers to the fact that the police were searching for her.
Ms. Kasinga introduced into evidence a marriage certificate documenting the marriage between herself and Ebrahim Isaka (phonetic sp.). The certificate shows Isaka to be 45 years old and it lists Ms. Kasinga's occupation as a student. Consistent with her story, the husband's signature appears on the certificate but Ms. Kasinga's does not.
In further support of her credibility, Ms. Kasinga introduced photographs showing her and Ebrahim Isaka's wife in ceremonial dress on the wedding day. She also submitted into evidence two extensive reports on female genital mutilation which confirm that it is practiced in Togo and that there are no laws in Togo which protect women against the deadly practice. Nonetheless, the Immigration Judge found Ms. Kasinga to be not credible. A review of the Judge's credibility determination will show that he substituted his own personal opinion and erroneous assumptions for a careful evaluation of the record.
First of all, the Immigration Judge found Ms. Kasinga not credible because she testified that F.G.M. was pervasive in Togo but she herself had not yet been mutilated. The Immigration Judge thought it was not credible that she could have avoided F.G.M. if it was so widespread. Yet, Ms. Kasinga had clearly explained the reason to him. In her testimony, if you look at the transcript, you will see repeated references in which she explains that she had been able to avoid F.G.M. because of the protection of her father, a man who was able to ignore the cultural norms, because he was a wealthy and successful businessman. There was no legitimate reason for the Judge to disbelieve the very logical explanation that in a patriarchal society, a man, in this case, her father, could protect her from a pervasive cultural practice.
Second, the Immigration Judge found Ms. Kasinga not credible because she testified that after June of 1993 she did not know where her mother was. Ms. Kasinga explained that when she returned home from school six months-after her father died, her mother was gone and her aunt had taken over the family home. Ms. Kasinga heard that her aunt and one of her sisters had been in contact with her mother; but Ms. Kasinga herself did not know where to find her mother after her mother was banished from the family home.
The Immigration Judge found it incredible that Ms. Kasinga would not know where her mother was. Yet the Judge| never proffers a legally sufficient reason for finding this fact incredible. One can only assume that the Immigration Judge did not believe Ms. Kasinga on this point because that's not how family life usually works in the United States. In the U.S., after a father's death, a paternal aunt generally cannot send away a child's mother and prevent the child from having contact with the mother. But Togo is not the United States and the Judge's reliance upon U.S. cultural norms to judge Ms. Kasinga's credibility regarding the whereabouts of her mother was totally improper. There is nothing anywhere in the record to support a finding that Ms Kasinga's testimony regarding her mother was anything but truthful. In addition to the Judge's erroneous assumptions about Togo, he seized upon tangential issues regarding Ms. Kasinga's stay in Germany, to find her not credible. His disbelief regarding events in Germany were as equally unfounded as his disbelief regarding events in Togo. He found it beyond belief that Ms. Guergs (phonetic sp.), the German woman whom Ms. Kasinga met at the airport, would let her stay with her for two months. He found it incredible that Ms. Kasinga had a chance encounter with Charlie, the Nigerian, who sold her the passport. But the Judge gives no legally permissible explanation of why these events were incredible or unbelievable.
What is beyond belief about a German woman in an airport helping Ms. Kasinga upon learning of her plight? As a matter of fact, the recent outpouring of support for Ms. Kasinga in the U.S. -- much of it from women who were especially touched by her story of flight from F.G.M. and forced polygamy, and none of whom have even met Ms. Kasinga, only reinforces the credibility of her story that this kind German woman befriended her.
What is so unbelievable about her chance meeting with a Nigerian man who sold her a British passport? Ms. Kasinga testified that she was riding on public transportation in Germany when Charlie struck up a conversation with her. Many of us who travel abroad have had the experience of running into someone who is from the same part of the world as we are and striking up a conversation. The fact that Charlie subsequently sold her a passport so that she could travel to the United States does not make her story any less credible.
Not one of the Judge's reasons for disbelieving Ms Kasinga were legally permissible. Nonetheless, Counsel for Ms. Kasinga submitted to this Board the affidavit of an expert on Togo Professor Merit Paznanski (phonetic sp.) for the limited purpose of establishing that the unfounded assumptions made by the Judge about Togo are simply false. Professor Paznanski's affidavit confirmed that while her father was alive he would have been able to protect her from the pervasive practice of F.G.M. but that after his death he aunt would have been able to dictate both the F.G.M. and the marriage. Professor Paznanski also affirmed that it was likely that once her mother was banished, Ms. Kasinga would respect her aunt's authority and not try to establish contact with her.
Because the Immigration Judge's adverse
credibility finding is not supported by the record, this Board should reverse it and find Ms. Kasinga to be credible. The I.N.S. argues that the case should be remanded to the Immigration Judge for him to make a credibility determination based on the new evidence submitted.
However, there is no reason to remand this case to a Judge who ignored the evidence in the record and relied upon impermissible and irrelevant factors in denying credibility. It is more appropriate for this Board to decide the issue de novo taking into consideration the affidavits which were submitted.
Mr. Schmidt: Professor Musalo, if I may?
Ms. Musalo: Yes.
Mr. Schmidt: If you're right as you argue and the credibility findings were totally unsupported, then is there any reason why the Board should look at any of the new evidence or the additional evidence submitted on appeal?
Would we have to do that at all in your view?
Ms. Musalo: My -- yes, Your Honor, my position is that the credibility of the applicant is established on the record as it existed before we supplemented it with Ms. Kasinga's affidavit and with Professor Paznanski's affidavit. But that for the limited purpose of responding to what we, feel was an illegitimate ruling by the Judge, we submitted additional information.
Mr. Schmidt: So are you saying that your additional information is merely cumulative in nature? Is there anything new --
Ms. Musalo: I think I
Mr. Schmidt: -- in there that wasn't already approved in your view before the Judge?
Ms. Musalo: Your Honor, the way that I would state it would be that credibility has been established through the consistency of Ms. Kasinga in telling her story and the corroboration of the two letters from her mother, the marriage certificate, the wedding photographs and-the documentation confirming the practice of F.G.M. in Togo.
Of course, the additional information is useful but really the point is that this Board could and should find Ms. Kasinga credible on the record that was before the Immigration Judge without considering the additional evidence.
Mr. Schmidt: I'm asking the questions because both parties devoted a significant amount of briefing time to the question of whether we can consider the evidence and as I hear your argument, you're arguing that the answer's clear even without that evidence.
Ms. Musalo: Yes. Yes. Yes.
Mr. Schmidt: Okay. Thank you.
Ms. Musalo: One other point that I'd like to make about the remand is that the remand of this case for the Immigration Judge to consider the new evidence is simply that the I.N.S. has taken the position -- a blanket position -- that the Board cannot accept and consider new evidence but must remand to the Immigration Judge. But the I.N.S. really cites no cases which support this assertion; and to the contrary, there are a number of cases both at the Board and Federal Court level as well as in a well respected treatise Gordon and Mailman, (phonetic sp.) that say to the contrary.
Now, clearly, the preferred practice at the Board is for the party wishing to submit additional evidence to make a motion to remand or a motion to reopen, but this Board certainly has accepted and considered new evidence and I just wanted to highlight that particular point.
Now, I would like to turn to the question of Ms. Kasinga's eligibility for a requested relief.
Although the I.N.S. appears to agree that if Ms. Kasinga is credible, she qualifies for relief, it's analysis is not consistent with developing asylum jurisprudence. In other words, I agree with the end destination but not with the route taken to get there. Permit me to share my analysis with you. vail in a claim for asylum or
In order to prevail in a claim for asylum or withholding of deportation, the applicant must meet three requirements. She must establish a type of harm. For asylum, the harm is persecution. For withholding, the harm is a threat to life or freedom. She must show the requisite likelihood of harm. For asylum, past or a well-founded fear of future; for withholding, a more likely than not or a clear probability; and she must show that the persecution or the threat to her life or freedom is inflicted because of one of the five enumerated grounds. The race, religion, nationality, political opinion, or membership in a particular social group.
As to the first element that the harm must constitute a threat to life or freedom or rise to: the level of persecution, there is no doubt that female genital mutilation as practiced among the members of Ms. Kasinga's tribe, clearly constitutes a threat to life or freedom and a fortiori constitutes persecution. The U.N. Handbook also affirms the concept that a threat to life or freedom always constitutes persecution.
The I.N.S. argues that in order for a harm such as F.G.M. to constitute persecution, the harm must be inflicted with a punitive or malignant intent. In its brief, the I.N.S. contends that those who inflict F.G.M. generally have benign motives, which according to the I.N.S. complicates the characterization of F.G.M. as persecution. This argument is simply wrong. In stating that in order for harm to be persecution, it must be inflicted with a punitive or malignant intent, the I.N.S. confuses and conflates the concept of persecution with the on account of nexus requirement of the statute. The severity of a harm goes towards a harm's characterization of persecution or not while the intent or motivation of the persecutor goes toward the on account of issue.
The cases which the I.N.S. itself cites
demonstrates that this is clearly the case. For instance, the I.N.S. cites Shalong v. INS and Osaghae v. INS, both of which discuss persecution as the infliction of harm for racial, religious, or political reasons. Though the intent is the intent that goes to on account of. Thus, whether or not -- the question of intent goes not to the issue whether a harm is persecution or a threat to life or freedom within the meaning of the statute, but to the question whether the fear of harm in on account of one of the enumerated grounds.
The Supreme Court held in INS v. Zacarias that in order to establish that the harm is on account of one of the enumerated grounds, the applicant must show that the persecutor intended to inflict the harm because of the applicant's race, religion, nationality, political opinion, or membership in a particular social group.
It is clear from Zacarias that it is not necessary that the persecutor act with a-malignant or punitive intent. It is only necessary that the persecutor targets his victims because of one of the five enumerated grounds.
If a punitive or malignant intent were required to prove persecution on account of the subjective beliefs of a persecutor, no matter how misguided, could deprive the victim of refugee protection. The results would be cruel and absurd and I would like to give you an example of what I mean by that.
For example, imagine a society where the majority race believed that the minority race were inferior; and that they could only be purified by physical deprivation and punishment. Imagine further that the minority race were brainwashed into believing that the deprivation and punishment was for their own good. Imagine a particular victim from the minority race who did not believe she needed such punishment and purification. Would her claim of persecution on account of race be defeated by the persecutor's assertion that his intentions were benign rather than punitive or malignant?
Now, let us bring the example closer to home. Imagine a society where the men believe that the women are inferior and tend towards promiscuity; and that they can only be controlled and purified by cutting out their genitals. Imagine further that the women are brainwashed into believing that this mutilation is for their own good. Imagine a particular female victim who did not believe she should be subjected to such mutilation. Should her claim be defeated by the assertion that the mutilators only wish her well? I think not.
Whether or not the mutilators in Togo act with a benign intent, which I would question because there is much in the record which shows the societal context in which F.G.M. takes place, but I don't want to use up my time discussing those at this point; but whether or not the mutilators in Togo act with a benign intent, the harm which they inflict is persecution and in Ms. Kasinga's case it is inflicted on account of social group membership as defined by gender and tribal affiliation.
Mr. Schmidt: Ms. Musalo, Professor -- hasn't the Government agreed with you that in this particular case that even if the intent were benign, it would be persecution? That's how I read their brief.
Ms. Musalo: Chairman Schmidt, I agree with you but in this case, the I.N.S. has made a lot of fanfare around the issue of creating a framework and I disagree with them in that they want the framework to extend to cases and facts that are not implicated in this case. But I do believe --
Mr. Schmidt: But didn't you argue that we didn't have to decide the whole framework to answer this case?
Ms, Musalo:; That's correct but what -- the reason that I feel it's important to address the analysis that is appropriate in this case is because of my interest in developing a framework that's appropriate and consistent wit asylum jurisprudence. And I believe
Mr. Schmidt: So -- so we should accept -- we should go beyond what we need to do for your framework but not for the Government's framework?
Ms. Musalo: No, Chairman Schmidt, what I'm saying is that in analyzing Ms. Kasinga's case, we can draw on traditional principles of asylum jurisprudence and I would like to articulate those so that we don't end up with simply a result in her case; but it's very clear what the-analysis is, and I really think this conflation or making the issue of persecution require a malignant or punitive intent is a very wrong direction to go and that I feel it's important to clarify it in the context of this case.
So I do not invite you to go beyond what you need -- where you need to go. But I simply encourage you to look at the definition -- it's the Refugee Act definition and look at it in the context of developing asylum jurisprudence.
Ms. Rosenberg: Well, can't -- Mr. Chairman, if I may -- Counsel, -- are you suggesting that it doesn't matter what the motive is that is triggering the infliction of harm on your client?
Ms. Musalo: I'm not suggesting -- what I'm suggesting is twofold: that in order to determine whether or not a harm is persecution within the meaning of the statute, we don't look to motive; we look to the severity of the harm and the question of motive or intent goes to the on account of analysis of which there's a clearly developing line of cases which I think the Supreme Court made a large contribution to in the Zacarias case, and that Zacarias does not require a punitive or malignant intent.
It simply requires that the persecutor be motivate or chooses or targets the victim because of their identification or their belief or their -- put it this way targets them because of their beliefs or status as defined by the five enumerated grounds.
Ms. Rosenberg: But you would have no objection in this case if we were to find that the imposition of F.G.M. was a form of subjugation of women, would you not?
Ms. Musalo: I would have no problem with that and the only point that I'm making is that the way in which the definition of persecution has developed in asylum jurisprudence, it does not -- that part of the -- that there are three prongs and that part of the prong does not require a finding of malignant or punitive intent. That's the only point that I am very -- very -- trying to be very clear about.
Mr. Filppu: Counsel; does your argument depend on the way in which this is performed? There is some indication in the record that in a very small percentage of cases, there may be a surgical procedure performed in what we might consider a hospital or some kind of clinic under anesthesia. Would that matter to your argument about whether it amounts to persecution -- whether the harm is severe enough?
Ms. Musalo: If we look at the facts of what female genital mutilation is generally understood to be, that one of its mildest forms is the removal of the entire clitoris of the woman, which the analog in a male would be the amputation of most of the penis, and clearly whether you do that under anesthesia or not, it is persecution of the individual.
Mr. Filppu: So the way in which it -- the brutality of the act in its most common form doesn't really matter to your case?
Ms. Musalo: The -- well, it -- the brutality matters. It adds to the fact that this is such an egregious practice but I don't think you need to have the extreme ends of it to say that it's persecution. That would really be my response.
I know I'm running out of my time and so I want to make one or two more points so that I can save at least five minutes for rebuttal.
Mr. Schmidt: You have about 10 minutes left.
Ms. Musalo: I have about 10 minutes? Well, thank you. You're keeping better track that I am. I appreciate that.
Now, I wanted to get into the on account of issue and to say that in Ms. Kasinga's case, the harm is inflicted on account of social group membership as defined by gender and tribal affiliation. As this Board held as early as 1985, in Acosta, a social group may be defined by characteristics which are either immutable or so fundamental that the individual ought not be required to change them.
The Board in Acosta specifically mentioned gender as a paradigm of the type of immutable characteristic which could define a social group. Both the Third and the Eighth Circuit Courts of Appeal have affirmed that persecution inflicted because of gender can constitute social group persecution. The Third Circuit affirmed this principle in Fatin (phonetic sp.) and the Eight Circuit in Safai (phonetic sp.).
The Immigration Judge appeared to be oblivious to Acosta and the line of cases accepting gender persecution as social group persecution. Instead, he compared Ms. Kasinga' case to Matter of Chang, which is not a gender case. Matter of Chang involved the claim of a male applicant who did not want to submit to coercive family planning practices in the People's Republic of China, which were imposed on men and women alike. In Chang, the Board ruled that the men and women who disagreed with coercive family planning did not constitute a particular social group.
Because Matter of Chang involved a practice which was inflicted on men and women alike, it is inapplicable to a claim involving persecution which is inflicted solely on the basis of gender. F.G.M. is inflicted only on women. There is no analogous procedure inflicted upon men.
Existing case law clearly supports the granting of relief to Ms. Kasinga. The harm of F.G.M. which she fled is a threat to her life or freedom and, undoubtedly, constitutes persecution. It is inflicted because of her social group membership as defined by the immutable characteristics of gender and tribe.
Furthermore, the evidence demonstrates that this harm is more likely than not should she be returned to Togo. Ms. Kasinga is a young woman in a patriarchal society with no one to protect her. The powerful man who is legally her husband demands that she be mutilated. There is little doubt about the fate that awaits her in her home country. The Board should reverse the Immigration Judge and grant her the requested relief.
Finally, I have one last point which I feel is critical to make. The case before you involves a narrow legal issue whether a woman who will be subjected to F.G.M. and forced polygamy qualifies for relief under the Refugee Act. The I.N.S. is not content to have the Board decide this narrow issue. In his brief and in public statements, the General Counsel has proposed that the Board address not only Ms. Kasinga's eligibility but that it develop a framework to determine the eligibility of potential claimants whose cases pose distinctly different facts.
Mr. Martin invites the Board to rule that women who have already suffered mutilation are not eligible for relief. He also asks the Board to rule that women who are subjected to ostracism or economic pressures for refusing F.G.M. are not eligible. The General Counsel's request is inappropriate. A judicial body such as the Board has the role of deciding a case on the record before it.
Ms. Kasinga had not already been mutilated. Nowhere in the record is there the least evidence that she could resist and simply be subjected to ostracism or economic pressure. Therefore, these issues are not before the Board. It would constitute an injustice to women asylum seekers who have been mutilated or to women who face ostracism or economic pressure if the Board were to foreclose their claims without these women having the opportunity to develop their records and make the cases before this Board.
The Board should resist Mr. Martin's invitation to decide all the F.G.M. cases which are not before it. The Board is not a legislative body; it is a judicial body and it performs its functions best when it remains true to its adjudicatory role.
Thank you very much.
Mr. Schmidt: Thank you, Professor Musalo. You have five minutes left for rebuttal.
Mr. Martin, you have 30 minutes, you may proceed.
Mr. Martin: Thank you, Mr. Chairman. I would like to reserve three minutes of my time for possible --
Mr. Schmidt: All right
Mr. Martin: -- response.
Mr. Schmidt: I'll make sure and notify you.
Mr. Martin: Thank you. Mr. Chairman and members of the Board of Immigration Appeals, I do appreciate the opportunity to appear before the newly expanded Board on what I understand is the first time that you have met en bane. It is an appropriate occasion to do that. This case does present novel and difficult legal issues. It asks the Board to apply the law of asylum and of withholding of deportation to cultural practices of wide application in the home country. This is not a case involving the classic situations of persecution that are much more familiar in the Board's docket and the kinds of cases that the Service confronts.
Classic persecution cases involving actions by dictators, for example, against political opponents, or particular actions that are directed against minority groups because of a campaign of ethnic hatred. This, instead, asks you to consider a practice of wide application within the culture of certain parts of the world.
It is our submission as we've laid it out in the brief and as I will develop more fully in my remarks here, it is our submission that female genital mutilation is the kind of practice that can provide the basis for asylum in carefully identified circumstances. We submit that it should be judged persecution even if the intention of the actor who was subjecting the individual to -- or who might subject the individual to female genital mutilation or F.G.M. -- even if those motivations are subjectively benign.
Now, ordinarily, the case law establishes quite clearly that persecution requires an intent to inflict harm or punishment. Ms. Musalo suggests that this is some sort of doctrine that we have somehow cooked up in this case in order to establish an exception in these circumstances. But our brief makes very clear that there is abundant case law that describes the concept of persecution as including a notion of malignant or punitive intent.
The Board itself in the Acosta case which Ms. Musalo has relied on very significantly in her own presentation, describes the idea of persecution and it says, two significant aspects of this accepted construction of the term persecution were as follows; and I'll only read the first one. Harm or suffering had to be inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor sought to overcome. That's consistent with the kinds of statements that we find in other decisions as well that suggest that ordinarily there is a requirement that the persecutor intend to inflict harm or punishment.
Now, we suggest in this particular case -- we do suggest that that doctrine should apply in most circumstances. That is a hallmark for persecution; that is part of what must be looked to, to decide whether severe practices have the special qualitative characteristic that marks them as persecution. Ordinarily, that should happen. But we do suggest in our brief that there are certain kinds of practices that are so extreme that they should be regarded as persecution whatever may be the frame of mind of the individual who is engaging in the practice or subjecting the individual to that practice.
We go further in our brief and suggest, just to outline our argument here, we do suggest that if the facts as developed upon remand suggest that Ms. Kasinga would be subjected to this practice that it could be held to be persecution on account of membership in a particular social group. We think the appropriate way to understand the social group in this particular case is not as broad as what Ms. Musalo has suggested; but, instead, should be considered young women of the Chamba Kunsuntu tribe who have not been circumcised in accordance with tribal custom. If the facts establish on remand that she would be subjected to this practice, we believe it would be performed on account of her membership in that particular social group.
Now, we also believe there are important limits on this doctrine. As we have suggested that the Board should understand the application of asylum law to these kind of cases, it would not mean that all women who come from countries where female genital mutilation is practiced would be entitled to persecution. I believe that the way Ms. Musalo has set forth the doctrine that essentially that would be the case; that any woman who had been subjected to this in the past would be -- would qualify as a refugee in this country. I'll develop some of those limitations further later on.
We believe it's very important to make sure that the doctrine is established to shelter here in.this country those people who risk forcible subjection to the practice upon return. The protection should focus in that fashion.
Mr. Schmidt: Excuse me, Mr. Martin --
Mr. Martin: Yes.
Mr. Schmidt: -- if I may -- does this case involve any claim of past persecution at all in any way?
Mr. Martin: This case does not, to my knowledge but we believe it's important here to establish -- to deal with the full range of issues here and it's important to understand the implications of a particular interpretation.
Mr. Schmidt: But I mean this issue isn't in the case, right?
Mr. Martin: That issue is not in the case. That's correct.
Mr. Schmidt: But you think we need to think about that issue in order to understand what we're doing in this case?
Mr. Martin: Obviously, the Board -- we-would expect that the Board has in mind the possibility of issuing a precedent decision -- that's why the Board is gathered en bane.
Mr. Schmidt: That's what both of you are asking us to do, I take that
Mr. Martin: And in that case, obviously, the precedent decisions of the Board have wide application and are very important for providing guidance for Immigration Judges and for Asylum Officers in deciding these cases in the future. It would help to consider, at least here in this particular setting, whatever the Board may do in its opinion, to consider its application in other sorts of circumstances.
And I really want to emphasize, we're not talking here necessarily about hypotheticals, as Ms. Musalo has suggested. It's very important in this case to recognize that the Immigration Judge found Ms. Kasinga not credible. We believe that that particular ruling should receive another look once the Board has provided greater elaboration with the --
Mr. Schmidt: Do you agree that she was -- is she credible or not credible in your view?
Mr. Martin: Well, we believe that that particular issue should be given another look once -- because it may have been influenced by an incomplete understanding of the doctrine as it should apply in these circumstances.
Mr. Schmidt: But presumably when we're done with all this, the Board will understand the doctrine -- don't we have de novo review power and couldn't we just look at the record and complete this case? Why would we need to return that to a Judge?
Mr. Martin: But you do have that power -- yes -- to make a de novo determination based on what was before the Immigration Judge. We believe that even with elaborated doctrine here that the matter should receive another factual look before the Immigration Judge. There are inconsistencies in the story. The initial asylum application, for example, stated that she would risk being married when she returned. In fact, her submission now is that she has already been married to the individual involved.
Ms. Rosenberg: Mr. Martin, before you proceed into those alleged inconsistencies that may or may not be in the record, let me just ask you this question. I understood the statements you made a moment ago to suggest that this Board should consider whether or not the impact of our ruling in this individual case would impact other cases to follow and how it would impact other cases to follow; and I want to ask you with regard to -- at least what I understood to be your suggestion -- that would it make a difference to the Service -- are you arguing that we should reach a different result if, for example, we would find that this practice-was persecution and that it would have been persecution on anyone who was subjected to it? And in light of that, I'd like you to address whether or not you are asking us to take a position directly at odds with Bolanos-Hernandez and other Circuit Court cases which have found that the fact that a broad group of people may be able to benefit from our protection minimizes in any extent the degree of their persecution or whether that persecution is protected?
Mr. Martin: Yes, we're not asking you to reject that particular position. It's a matter of defining the particular -- the doctrine as it applies in this particular case and part of that is a matter of understanding how it might apply in different factual situations as they might be developed in this particular case if the matter is remanded as we are suggesting that it should be. It's not entirely clear -- it was not a very ample record that was developed. Therefore, Ms. Musalo and her brief has made a great deal out of the many places in the transcript where it is recorded as inaudible, -- we think there are a variety of reasons -- the inconsistencies in the record, in addition to the insufficiency of the transcript that we have, that would justify a remand.
Now, she has also suggested -- she submitted
Ms. Rosenberg: Aren't you really asking, Mr. Martin, this Board to give the Immigration Service another chance to defeat a case that's being presented below?
Mr. Martin: Well, we're not asking necessarily for that. I believe that it is Ms. Musalo's suggestion primarily that there are grave deficiencies in the record. Her initia suggestion in the Board was that it could -- in the brief was that it could be -- those gaps could be filled by looking at the extensive affidavits that she has submitted with her brief here. It is our submission that -- first of all, and primarily, we hope that the Board will provide guidance on considering these difficult and challenging legal issues, and that we believe that the entire record of the case, because of various deficiencies in the record itself in these circumstances should ^- it should go back to the Immigration Judge and there should be another look there.
Now, there may be many different things that develop upon remand there.
Mr. Schmidt: So I assume if we -- and the case has been pending for quite a while -- so I assume if we sent that back then the Government has a specific position that she's not credible that you present and document at that hearing as something that we couldn't do here?
Mr. Martin: Well, I mean there are some other -some other items that we believe should be looked at and that would benefit from additional development; such as the inconsistency between the asylum application and the statements on the record such as some further questions about
Mr. Schmidt: Do you think those would
be sufficient to deny a claim -- that
Mr. Martin: Well, if -- only
Mr. Schmidt: -- those are such a magnitude that those would be a ground to deny the claim -- assuming there is an inconsistency is it really material to what we're talking about here?
Mr. Martin: Well, there could potentially be some that -- that are of that character -- I mean it clearly -- we are not suggesting that any inconsistency about any part of the story would be a reason to reject her claim. Obviously, the focus should be on what's likely to happen to her; what is the relationship within her family; whether there are other possible circumstances under which she could find protection in the home country.
But there are matters of record here now that do raise genuine credibility issues. We are not saying that we are committed to an ultimate ruling that she is incredible. But we do think they merit further inquiry. Let me provide --
Ms. Rosenberg: Mr. Martin, weren't you -- wasn't the Service given an opportunity to raise all the matters that you just suggested as to whether this really-would happen to her? What her relationship was with her family? And so on? In the first instance?
Mr. Martin: Those matters were raised and the Immigration Judge ruled that she was not credible. That's exactly what we're arguing for.
Ms. Rosenberg: And then isn't it for us to make the determination of whether or not we want to,,uphold that credibility finding?
Mr. Martin: It is for you to do that but ordinarily in most circumstances when additional evidence is suggested like this or when there is doubt cast upon the credibility finding if the Board were to find that -- on the credibility finding of the Immigration Judge -- the ordinary course would be for it to be remanded. Particularly in a case with this thin a record as Ms. Musalo herself has suggested. She has suggested a number of additional avenues of inquiry; and I would point out to the Court, there are some additional matters in the record itself that were not explored before. We didn't have to raise those in great detail; the Judge was already -- the Judge did rule on the credibility in that fashion.
Mr. Schmidt: --
Mr. Martin: But there is an additional matter that's attached to the asylum application itself, for example. It's in French. It was not translated-before. But it seems to even suggest on a basic element of her case, and this deserves some further examination, that's essentially a missing person notice and it is -- it says, Mr. Kasinga is looking for his daughter who left Togo in December of 1994.
Now, there may be many explanations for that but that's a part of the record that Ms. Kasinga herself had added into the record. That at least requires some further inquiry as to the situation of her father.
Mr. Schmidt: Well, two questions, Mr. Martin. First, my reading of the record is that document was there when your Trial Attorney tried the case so that that could have been a subject far cross-examination. I don't remember in reading the record that there was any mention of that. Is that correct?
Mr. Martin: That is correct. But we don't have to call attention to it for the Judge to take it into account. The Judge did say there was lack of consistency and -
Mr. Schmidt: But then I also read your brief as -maybe I'm misreading it but I read your brief as disassociating yourself to a large degree from the Judge's not only legal rulings but also credibility rulings.
Mr. Martin: Here's out -- here was our central
Mr. Schmidt: If I misread that part of your brief?
Mr. Martin: Yes. Our central position-is -- to deal with the legal questions which we believe are essential for the Board's consideration here en bane in these circumstances. That is our central submission. We believe in light of that it is appropriate to remand and to consider it. We would be happy to have the Judge take another look at the credibility issue, and, as I say, we are not asserting all out that under any circumstances she should be found incredible.
On the other hand, it's not a nullity. The Immigration Judge who heard the case for several hours, who had her on the witness stand, found questions about the credibility. Now, maybe on further examination those could be -- could be dealt with.
Mr. Schmidt: Why couldn't we examine that? I have the transcript here.
Mr. Martin: Well, I mean, it is -- it is within your power to do that. We are submitting that it is the better course under these circumstances to establish a clear' framework of legal doctrine and because -- especially because of the novelty and complexity of these issues, to resubmit it to the
Mr. Holmes: Mr. Martin, there were three elements as I read them to the Immigration Judge's finding regarding a lack of credibility. One was internal inconsistencies which you've addressed. There were two other things you referenced. One was a lack of rationality of her story? And the other was the inherent lack of inherent persuasiveness of her story. What's the Government's position with regard to those other two elements of the Immigration Judge's adverse credibility finding? Do you find that there's something irrational about this story or something inherently unpersuasive about this story aside from the questions of what may have been some factual inconsistencies?
Mr. Martin: Well, I mean I think to some extent those may address the factual inconsistencies to the extent that they could be more fully informed by their more complete understanding of practices in that society and of differences of practices within that particular culture and that perhaps is another reason why those ought to be looked at.
Mr. Holmes: But there is a fair amount of background evidence submitted before the Immigration Judge regarding this practice and regarding this practice in Togo. I mean, when you look at that background evidence and this applicant's story, is there a lack of rationality or a lack of inherent persuasiveness to what she says?
Mr. Martin: Well, there are questions about the persuasiveness here which would derive from the inconsistencies including the document that they submitted that seems to suggest-that Mr. Kaninga is still -- is still alive.
Mr. Holmes: So your point though goes back to inconsistencies in her story.
Mr. Martin: That would be -- that would be the central element. And again, I suggest that the appropriate course is for this to be remanded for another close look in light of the greater amplification -- but we certainly do not believe that the Board should act here upon the basis, in any way whatsoever, of affidavits that have been submitted with the Board.
Ms. Musalo cites several cases where the Board has occasionally taken into account a document that was
(OFF THE RECORD)
(ON THE RECORD)
Mr. Martin: -- submitted only upon appeal. Those have been very limited circumstances. Because there have been circumstances, for example, where it was a Library of Congress document, where it was a document where the Board said there could be no question about the authenticity of it. It would extraordinary for the Board to rely upon affidavits filed by someone who's been found not to be credible by an Immigration Judge and to suggest that that in itself somehow cures the finding of credibility.
Ms. Rosenberg: I'm glad -
Mr. Martin: We believe there should be a remand for another look at thin.
Ms. Rosenberg: I'm glad you're raising that, Mr. Martin, because disregarding for a moment the affidavit of the applicant, what objections do you have -- is it the Service's position that Professor Paznanski's affidavit is not to be believed either on the grounds that he shouldn't have -- doesn't have the credentials that are valid to establish that he's an expert or -- I'd like to know exactly what it is that you object to that would make his affidavit less than competent evidence that we should review?
Mr. Martin: Well, this is clearly the kind of information that could have been presented before -- that should have been if they wanted to do it. They have in no way complied with the requirements of a Motion to Reopen, no shown why this was unavailable to begin with. Moreover, this is exactly the kind of situation where we would like an opportunity to test it through cross-examination. We think that we're entitled to that before the Board would rely on it. And he may very well be a fine expert on that. I am no trying to cast any doubt on him but I have not met him. All I know from him is what -- we have on the cold paper.
Now, I would like to return to the legal argument because that really, I believe is crucial here. We do submit that there are issues of credibility that should be addressed on remand. But on the legal doctrine, we -- it is our submission -- as I was indicating earlier -- that-persecution usually means deliberate infliction of suffering or harm. It's often equated with punishment and I have provided with you some -- provided you with some quotes from Circuit Court decisions and also from the Board's own decision such as in Acosta.
We believe, however, that with a -- we agree with that as the usual standard for judging whether or not a particular practice is persecution. But for a small category of cases, that particular factor should be overridden. When the practice is so extreme as to shock the conscience of a great part of the world community and of the people in the receiving society, then the victim's perspective must predominate and her perception of the practice as the infliction of suffering or harm or punishment should prevail.
Now, if the facts as established on remand suggest that she would be subjected to this, we believe that female genital mutilation is one of the most extreme forms of this practice certainly should be held to meet this test. We recognize that a shock the conscience test may be a difficult one. It is not -- it does not give precise guidelines. It is meant to set the bar high. It's not just any practice that arouses a certain amount of objection in the receiving society.
We believe there are also certain objective indicia that could be looked to and in this particular case, we've cited in our brief, and so has Ms. Musalo, a wide variety of international documents that have condemned the practice. This has been an objective of U.S. -- of human rights diplomacy for many years to help curtail the practice, to condemn it in international forums like the Beijing meeting last year.
And we think that although there may be some difficult cases to fit within that particular standard, there can be no doubt that this is an extreme practice and it has been judged as such by the world community.
Mr. Holmes: Mr. Martin.
Mr. Martin: Yes
Mr. Holmes: At that point in your brief, you also cite again to Osaghae and you note that it is imposed, "for reasons that our country does not recognize as legitimate." But I can't find in the Government's brief where you articulate what the Government's position is as to what the reasons are that F.G.M. is imposed. Does the Government have a view as to why F.G.M. is imposed?
Mr. Martin: Well, no. I mean, it is part of a cultural practice there. It's not necessarily for us to try to justify. We are trying to submit --
Mr. Holmes:- Well, I'm not asking you to justify it. I'm asking you, does the Government have a position as to why this cultural practice is imposed?
Mr. Martin: -- no, we -- we do not. But we -- we are at a loss to come up with a reason that would be regarded as legitimate and -- and that's another reason why this particular circumstance -- the practice should be regarded a meeting the threshold of -- of shocking the conscience.
Mr. Holmes: Well, some of the background evidence in front of the Immigration Judge, for example, characterize F.G.M. as a form of sexual oppression based on manipulation of women's sexuality in order to assure male dominance and exploitation. Does the Government disagree with that?
Mr. Martin: Well, we indicated in our brief that -- that there are important sociological insights and descriptions of that kind. We do not think that it's necessary for us to take a position on that one way or another. We suggest in particular that we are not -- that the Board is not required to analyze the practice in those particular terms. Certainly, there's an element of that -of exactly what that description is.
-- and again, it's our position that there is no particular reason that our society is prepared to regard as legitimate -- that's entails it even a practice.
Mr. Holmes: But if I understood what you just said at the end there, there is an element of sexual oppression to assure male dominance that the Government will agree with that?
Mr. Martin: Well, yes, sociologists have describe it in that way. That could be a particular element of it. We do not think though that -- as we indicated in our brief -- that the refugee definition or the asylum provisions that we're looking at here require analysis at that particular level. It's sufficient to find that the practice is a severe bodily invasion and that it rises to the level of meeting the threshold here so that even if it's done with subjectively benign intent, it should be regarded as persecution for purposes of the asylum standard.
Mr. Holmes: Well, I understood Professor Musalo to argue that her client's claim could be found to come within the refugee definition without the Board having to reexamine or overrule or modify Matter of Chang. Is that also the position of the Government?
Mr. Martin: That is the position of the
Government. Yes, we believe this is distinguishable from Matter of Chang.
Ms. Dunne: Even though you're defining the social group by the act of persecution itself?
Mr. Martin: No, we're not defining the social group by the act of persecution itself. We're defining the social group by the objective characteristics of the young women who have been uncircumcised in the -- in the -- within that particular tribe.
We think that Matter of Chang can be distinguished really on three important grounds. First of all, the Board was prepared to accept in Matter of Chang that the basic underlying policy -- and we certainly do not challenge it -the basic underlying policy of controlling population in China, the most populous country of the world, was a legitimate purpose, an underlying legitimate purpose. As I've indicated, we see no purpose that our society is prepared to regard as legitimate in these particular circumstances.
Moreover, Matter of Chang -- the decision -- the practice was judged to be applied evenhandedly throughout the society. Here this is a practice that it seems to be applied only within certain ethnic groups; applied only in certain based on certain characteristics of both gender and tribe within Togo. And, thirdly, and importantly, -- in Matter of Chang, there were potentially other ways in which someone could comply with the law and have only one child in the family. We suggest here, -- and this is an important point that I have not really had a chance up till now to emphasize, -- we suggest here that this kind of protection should apply in these circumstances for people who don't have a choice, who can establish that the would be forcibly subjected to this upon return. There is no alternative.
Now, that's exactly why I think it is important to consider the kinds of matters that Ms. Musalo rejected as hypotheticals for as dictum in our submission. It is -- the asylum protection should be there for people who would be subjected to this practice against their consent. If there are other alternatives for protection within the country, then that's a matter that probably should be developed further on remand but the Judge made a specific finding on that and, in any case, -- then there are other forms of protection and it would not justify a finding that there is a well-founded fear of persecution -
Mr. Filppu: If I may follow up, Counsel, on a question that the Vice Chairman asked with regard to the social group definition that you have offered. It does seem that there is some element of defining the social group against the persecution, at least in terms of the way I read the briefs of both parties. And I asked in that regard for what other societal purpose does this particular social group that you've defined exist? You said it's not defined against the persecution. For what other purpose does the society recognize that group? The one you've defined.
Mr. Martin: Well, no, I -- I mean I -- perhaps I misunderstood the earlier question but it's not -- it's not defined simply in terms of the practice and those who oppose the particular practice. That was a matter that was -- an issue that was raised in Matter of Chang. In theme particular circumstances -- it is -- it is a group that has social and behavioral reality and it happens to be the important characteristic that is picked out -- in certain circumstances where this happens -- that it is picked out as the basis for visiting this particular practice on the individuals. It's -- it is under the submissions here and if they're found to be borne out on remand, it is visited upon young women of this particular ethnic group who have not been circumcised in accordance with tribal custom.
Ms. Dunne: But the circumcision is critical to definition of the group. I mean, you're not including in group women who have been circumcised. Just the uncircumcised.
Mr. Martin: Well, that's right. In these particular circumstances, yes. The practice -- the persecution would happen on account of their membership in that particular social group. Now, the practice that -- let me finish one earlier point and come also to -- to the issue about -- about past -- people who have been subjected to this in the past.
I mentioned that there may be other possibilities for protection elsewhere in the country. That's an issue that should be explored. We want to protect people who would be forcibly subjected to this practice if they will return to their home country; but if they have an alternative mode of protection within that country, then that's a relevant basis as cases like Matter of Fuentes establish for --
Ms. Rosenberg: What's your view of the standard of the -- what is your view of the standard or obligation that would be imposed upon an applicant to show that that individual would not be subject to this kind of harm or mutilation on a countrywide basis? What are you proposing that we adopt?
Mr. Martin: Well, I mean that's
Mr. Schmidt: Mr. Martin, before you answer, you're at the five minute mark now.
Mr. Martin: Okay. Fine.
That's a clear example of the kind of situation that should be answered by country conditions information; could be developed from human rights reports from the State Department Country Report and also whatever light can be she upon it by the testimony of the individual or anybody else -from that society. Perhaps an expert, Mr. Paznanski, might be able to testify to that sort of an issue.
We don't want to impose an impossible standard on that. You don't have to negate all possible possibilities but there should be a reasonable inquiry into that--
Ms. Rosenberg: But isn't it true that the U.N. Handbook states that the way to examine the possibility of avoiding the harm is whether it's reasonably appropriate to expect the individual to relocate within the country?
Mr. Martin: Well, yes, of course. I mean, it depends -- if the circumstances of relocation are only in some remote area where essentially the person has no prospect of anything but sickening and dying early, that's not a reasonable alternative within the country. But, we do think -- I mean it's important to understand here -- we are talking about protection in this country. We're not talking about broad issues of human rights concerns. That extends much more expansively than the particulars of asylum doctrine.
So it has to be applied with some notion of reasonableness there but there does need to be some inquiry into that particular issue.
Mr. Schmidt: Going into reasonableness, wasn't there testimony at this hearing below that she would be in danger anywhere in the country and wasn't there a Group Exhibit 4 which contained information both from your resource center and the State Department indicating that this practice is widespread in Togo and that the Government, while not particularly addressing female genital mutilation that the government of Togo generally hasn't demonstrated much interest in protecting women from any types of abuses and wouldn't that be sufficient for somebody to find that this is a countrywide threat?
Mr. Martin: Well, that's exactly the kind of information, yes.
Mr. Schmidt: But it's there. Yeah, I -
Mr. Martin: It should be looked to -
Mr. Schmidt: -- read it this morning. It's there.
Mr. Martin: -- in making a decision. Well, the Immigration Judge, however, based upon that -- presumably looking at that and also the specifics of the questioning of the individual found that there had not been adequate inquiry into the possibility of going elsewhere.
Mr. Schmidt: But I'm not bound -- but this Board isn't bound by the Immigration Judge's finding. We have de novo --
Mr. Martin: There is also evi- --
Mr. Schmidt: -- review authority.
Mr. Martin: There's also evidence in the record that it is approximately 50 percent of the women in Togo who have been circumcised. So I mean that -- that suggests some reason to look more closely at the particulars of this -- of this individual case.
Mr. Schmidt: Well, 50 percent is a pretty large number, isn't it?
Mr. Martin: It is a large number and we -- I mean, our submission is this -- this could very well be the basis for a valid claim of political asylum but there are unanswered factual issues that should be examined on remand after an elaboration of --
Mr. Schmidt: I mean, the standard for asylum is just what a reasonable likelihood -- what a reasonable person -- I would think 50 percent is well within that standard.
Mr. Martin: Well, I do not mean to suggest that that goes to the well-founded fear issue in that particular respect as it was developed, for example in Cardoza-Fonseca. But if there are internal flight alternatives, cases like Matter of Fuentes suggest that that should be examined.
Mr. Schmidt: You're at your three minute mark.
Mr. Martin: Okay, I will take one more minute to close out a couple of additional points. One of them we've been criticized for asking the Board to look at hypothetical cases involving ostracism or social pressure. We do not know -- but again because we submit that the case should be returned to the Immigration Judge for further fact finding. This may not be a hypothetical.
The protection of asylum should be reserved for those who are severely at risk upon return. Now, I do not want to be understood on that. Anyone who is subjected to social pressure or ostracism that is intended to force them into undergoing this procedure, that is a matter of human rights concern. That is something to which the Federal Government has objected. It has been an important part of our human rights diplomacy everywhere.
But the Board is asked to apply the specifics of the asylum and withholding standards. That must be reserved for people who really need the protection and although we would object to ostracism or social pressure here, if that's all they're being sent back to, there is a choice. It would be like Matter of Chang. But if, on the other hand, would be forcibly subjected to it, there should be protection in these circumstances for people who would be potential victims of F.G.M.
Finally, I just want to mention that there are other important limits on this that we suggest in the brief and are more elaborated there in terms of understanding either the shock a conscience test or the application of this in the past.
The bodily invasions are likely to meet the shock a conscience test but when they are visited upon unconsenting individuals and, therefore, we think if -- for the practice -- if the practice were visited upon someone at a time when they consented to it, that would not have the special invidious quality that makes for persecution so the past persecution analysis would not apply.
The protection should be available for people who have a serious risk of being forcibly subjected to F.G.M. upon return. We ask you to elaborate the document as we have suggested here and remand the case to the Immigration Judge for further development in light of the Board's standards.
Thank you very much.
Mr. Schmidt: Thank you, Mr. Martin and you have about approximately two minutes left for rebuttal.
Mr. Martin: Thank you.
Mr. Schmidt: Professor Musalo, you have five minutes for rebuttal.
Ms. Musalo: Thank you. There is a record in this case and there is a clear legal standard for reviewing the credibility finding of the Judge. And there is -- it is very clear what the Judge's reasons were for finding Ms. Kasinga not credible and we can look at each of those reasons and see if there's evidence in the record which is what I addressed when I listed the different reasons that the Judge relied upon and how none of them were supported by the record.
What the I.N.S. has done is to try to raise some additional grounds of lack of credibility but these are also so tangential and so -- I think transparently -- almost absurd -- to say that an individual who is forced into marriage is being inconsistent when at sometime she says, if I go back, I'll be forced to marry; and at other times she says, I have been married. I mean, a person who is forced to do something isn't going to refer to their husband as their husband and isn't going to return to -- refer to a shotgun marriage as a marriage.
I think that is very explicable that at times she has said, I was forced to marry. And at other times she says, if I'm forced to go back, I'll have to marry. And this -- the other thing that's always been raised by the I.N.S. is this whole relationship with this German woman at the airport or the issue of Ms. Kasinga couldn't explain who performs F.G.M. These are things that don't go to credibility. They simply don't.
She has testified she was protected from the practice. The fact that she would be inconsistent in describing how F.G.M. was performed simply doesn't go to credibility. So again I just would like to -- to, you know, emphasize the point that we do have a record. We do have a legal standard for evaluating the credibility determination of a Judge and clearly there is no substantial evidence to support the Judge's adverse credibility finding, period.
Then the I.N.S. seizes upon the issue of this possibility of internal flight alternative and I think as Board Member Holmes, or Your Honor, mentioned that there was a record that addressed that very issue. If we look at Group Exhibit 4, there's quite a bit on the inability to relocate.
The Judge simply did not read the record. It is patently apparent that this Judge did not look at the record and he just simply should not be given another ---another bite at the apple at my client's expense. He refers to sterilization at the beginning of the hearing when he refers to the documentation that was submitted.
He asked the Counsel representing Ms. Kasinga, what is F.G.M.? It is inconceivable that any Judge that could have read this record could ask, what is F.G.M.? F.G.M. is all over this record in terms of Group Exhibit 4 and its discussion and simply is no reason to send it back to him to look at what he did -- since he abdicated his responsibility in the first place to carefully and conscientiously evaluate the evidence and make a determination.
The Judge also failed to be aware of cases that are directly on point, such as the Fatin (phonetic sp.) case in the Third Circuit which directly addresses the issue of practices which were imposed on individuals because of their gender and lays out a test for the application -- or for the evaluation of a claim which raises gender as a social group characteristic. The Judge didn't mention Fatin.
I think that there are so many things that the Judge didn't do that he should have done then that there's really no reason to send it back to him.
Finally, I wanted to make one other point and it really -- this follows up on a point raised by one of the Honorable Board Members and I don't remember which one of you raised this but the record is very -- there is much evidence in the record to explain the reason why F.G.M. is inflicted and I just want to remind a few of you of what I know you've already reviewed. The report by Nehid Tobia (phonetic sp.) talks about the fact that the practice of F.G.M. is purely for the purpose of gender subjugation and the perpetuation of social injustice at Page 16.
At Page 18, her report says, although nearly all society subjugate women in some way, F.G.M. is the most drastic measure taken by any society to control women's sexuality and reproduction.
And on Page 35 of that same report, it says, in the few studies on the subject when researchers asked men and women why they performed genital mutilation, the answers were surprising clear about the patriarchal underpinnings of the practice and the ways in which women came to accept their secondary status. A constant reiterated theme was inferiority of women. A fact both men and women seem to accept.
And there -- I think looking at this, it's very clear the societal context in which this practice takes place and I would beg to disagree with the General Counsel when he says that the societal context is irrelevant.
I think in political asylum claims, the
societal and political context-is the very texture in which the claims must be evaluated. If we evaluate a claim of race discrimination or persecution on account of race, we need to know the societal attitudes towards that race. And if we're talking about persecution on account of gender, we must know the societal attitudes towards gender. So I think it's simply is to me incomprehensible to argue that the societal reasons underlying a practice are irrelevant in a claim of this nature.
Mr. Schmidt: Thank you, Professor Musalo.
Ms. Musalo: Thank you.
Mr. Schmidt: Mr. Martin, you have two minutes.
Mr. Martin: Thank you. Perhaps I've been misunderstood, the social context -- the societal context -is certainly relevant. It needs to be looked at here. That's exactly part of what we're suggesting here. We urge the Board to establish doctrine that points the Fact-finders in exactly that direction and to examine it closely in the context of the society in which it arises.
Most of what Ms. Musalo had spoken to on rebuttal went to credibility. We believe that particularly with a record that has the gaps and the inaudibles that are presented here, that it is not appropriate and it is not wise -- although we do not doubt the Board's power -- it is not appropriate in this kind of a case to make the factual determinations here.
This is a situation that calls out for further inquiry and we do believe that the Board can establish doctrine that will help very importantly to guide that kind of inquiry and to help to sensitize those who are the Decision-makers in these cases to the kinds of cross-cultural determinations that have to be taken into account here.
We believe that's important in these circumstances. We do urge you to adopt doctrine as we have suggested -- that F.G.M. could be the basis for a political asylum claim but within certain narrow and carefully defined limits. And then we urge you to remand it for further inquiry into credibility and other -- potential other factual matters upon remand to an Immigration Judge.
Thank you very much.
Mr. Schmidt: Thank you, Mr. Martin. And thank you, Professor Musalo. I thank both of you for your enlightening and outstanding arguments. The Board will take this matter under consideration. We will advise you of our Decision in writing.
