Bah v. Mukasey

In 2008, the U.S. Court of Appeals for the Second Circuit rejected the reasoning of the Board of Immigration Appeals in the highly publicized Matter of A-T- case and granted asylum to three Guinean women who had suffered past female genital cutting, holding that past female genital cutting does not preclude future attempts to subject a woman to additional cutting or other types of gender harms.

CGRS Involvement

In an unusual move and in recognition of our expertise, the Second Circuit requested that CGRS file an amicus brief. Attorneys Ana Reyes and Robin Jacobsohn of Williams & Connolly wrote the brief and argued on behalf of CGRS. The brief addresses past female genital cutting as a basis for protection.

Basic Facts and Procedural History

Three women from Guinea belonging to the Fulani ethnic group sought asylum, withholding of removal, and relief from removal under the Convention Against Torture (CAT) in the United States on the basis of ongoing harms caused by female genital cutting they were subjected to as children. The Immigration Judge denied their applications for relief, reasoning that because the cutting had already occurred, there was no future risk of harm. The BIA affirmed this decision. The Second Circuit reversed in Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008), rejecting the Board’s reasoning in both this case and Matter of A-T-. The Court held that the fact that an applicant had undergone genital cutting in the past “cannot, in and of itself, be used to rebut the presumption that her life or freedom will be threatened in future.” The Court concluded that the Board erred (1) in determining that female genital cutting is a “one-time” act rather than a harm capable of repetition, and (2) in failing to consider that survivors of female genital cutting may be subject to other forms of persecution such as rape and sex trafficking because of their gender. The BIA remanded the cases to the immigration court, where all three women were granted withholding of removal.

Documents

News Coverage

Larry Neumister, "NY Judges Challenge Government On Appeal in Asylum Case", Associated Press, April 29. 2008

Alan Feuer, "Court Rejects Decisions of Immigration Board," New York Times, June 12, 2008

Mark Hamblett, “Circuit Rebukes Immigration Board on Mutilation Ruling,” New York Law Journal, June 12, 2008

“A Victory for Women,” New York Times, June 22, 2008

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