Abebe v. Gonzales

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A 2005 Ninth Circuit en banc decision ruled that an Ethiopian couple who had been denied asylum should have their case reconsidered based on their fear of female genital cutting for their daughter. The case was remanded to the Immigration Judge, who granted the couple asylum.

CGRS Involvement

CGRS was co-counsel in the Ninth Circuit en banc case and subsequent proceedings, working with the applicants’ Portland, Oregon attorney, Philip Hornik.

Basic Facts

Mr. Mengistu and Ms. Abebe are from Ethiopia, which has been referred to as the “lion’s den” of female genital cutting because the practice is so universal there. They first sought asylum based on Mr. Mengistu’s long-standing political opposition to the repressive regime in Ethiopia. After the couple gave birth to a daughter, they raised the additional fear before the Immigration Judge that their daughter would be subjected to female genital cutting if they returned to Ethiopia. According to Ms. Abebe – who endured genital cutting as a child and suffered throughout her life as a result – and Mr. Mengistu, cutting of their daughter “would be like torture” to them. They feared that even if they were able to protect their daughter from female genital cutting for their daughter, the whole family would be ostracized and shunned for rejecting societal norms.

Procedural History

The Immigration Judge denied both Ms. Abebe’s and Mr. Mengistu’s genital cutting and political opinion claims, and the Board of Immigration Appeals rejected their appeal. In 2004, a three-member panel of the U.S. Court of Appeals for the Ninth Circuit upheld the denial of asylum. Following the Ninth Circuit denial, CGRS joined Portland based attorney Philip Hornik in representing the parents. CGRS and Mr. Hornik filed a petition for rehearing en banc, arguing - among other things - that the panel applied the wrong legal standard to the Abebe’s claim of well-founded fear of persecution. CGRS director Karen Musalo convincingly argued the claim before the en banc panel. In an incredible victory, the Court granted an en banc rehearing in March 2005 when it found that the BIA’s well-founded fear decision was not based on substantial evidence. The Ninth Circuit remanded the case to the BIA for further consideration. The Court did not rule on whether the petitioners, as parents of a U.S. citizen child likely to undergo female genital cutting in her parents’ native country, may qualify for asylum themselves on the basis of their fear for their daughter, but remanded the case to the BIA to address this issue using the correct legal standard.  The BIA then granted the applicants’ unopposed motion to remand to the Immigration Judge, who granted asylum to Mr. Mengistu and Ms. Abebe without testimony, based solely on the mountain of evidence CGRS and Mr. Hornik filed.

Documents

Applicants' brief to the immigration court on remand (October 19, 2007)

Applicants' opening brief for en banc rehearing before the Ninth Circuit (May 26, 2005)

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