Friday, June 24, 2011

FEMALE GENITAL MUTILATION: UNITED STATES ASYLUM LAWS: BY HUMA KAMGAR, ATTORNEY AT LAW.

What is Female Genital Mutilation?(Female circumcision)

Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.
Female Genital Mutilation is the term used for removal of all or just part of the external parts of the female genitalia. There are three varieties to this procedure.

1. Sunna Circumcision - consists of the removal of the prepuce(retractable fold of skin, or hood) and /or the tip of the clitoris. Sunna in Arabic means "tradition".
2. Clitoridectomy - consists of the removal of the entire clitoris (prepuce and glands) and the removal of the adjacent labia.
3. Infibulation(pharonic circumcision)-- consists of performing a clitoridectomy (removal of all or part of the labia minora, the labia majora). This is then stitched up allowing a small hole to remain open to allow for urine and menstrual blood to flow through.
There is an estimated 135 million girls and women that have gone through this procedure with an additional 2 million a year at risk. This procedure is practiced in Africa (28 countries), Middle East, parts of Asia as well as in North America, Latin America, and as well as in Europe. It is now believed that the practice originated in Africa and is a cultural practice
The practice is mostly carried out by traditional circumcisers, who often play other central roles in communities, such as attending childbirths. Increasingly, however, FGM is being performed by health care providers.

FGM is recognized internationally as a violation of the human rights of girls and women. It reflects deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women. It is nearly always carried out on minors and is a violation of the rights of children. The practice also violates a person's rights to health, security and physical integrity, the right to be free from torture and cruel, inhuman or degrading treatment, and the right to life when the procedure results in death.

YOU MUST KNOW THAT:
Amnesty International now has taken up the fight to do away with this practice that mutilates millions of girls each year. Today FGM is seen as a human rights issue and is recognized at an international level. FGM was in the universal framework for protection of human rights that was tabled in the 1958 united Nation agenda. It was during the UN Decade for Women (1975-1985) that a UN Working Group on Traditional Practices Affecting the Health of Women and Children was created. This group helped to develop and aided to the development of the 1994 Plan of Action for the Elimination of Harmful Traditional Practices Affecting the Health of women and Children. the World Health Organization, the United Nations Children's' Fund and the Untied Nations Population Fund, unveiled a plan in April 1997 that would bring about a major decline in FGM within 10 years and the complete eradication of the practice within three generations.
* Female genital mutilation (FGM) includes procedures that intentionally alter or injure female genital organs for non-medical reasons.
* The procedure has no health benefits for girls and women.
* Procedures can cause severe bleeding and problems urinating, and later, potential childbirth complications and newborn deaths.
* An estimated 100 to 140 million girls and women worldwide are currently living with the consequences of FGM.
* It is mostly carried out on young girls sometime between infancy and age 15 years.
* In Africa an estimated 92 million girls from 10 years of age and above have undergone FGM.
* FGM is internationally recognized as a violation of the human rights of girls and women.

Countries where this practice is widespread and common:
Female Genital Mutilation (FGM) is a cultural practice that started in Africa approximately 2000 years ago. It is primarily a cultural practice, not a religious practice. But some religions do include FGM as part of their practices.

In Africa 85% of FGM cases consist of Clitoridectomy and 15% of cases consist of Infibulation. In some cases only the hood is removed.

Gender-based asylum claims are becoming more prevalent in the
United States. Specifically, female genital mutilation
("FGM") is an issue that is currently receiving widespread attention.

The legal element "persecution," a component
of the current US asylum test, now protects females
who flee their native countries after having undergone FGM may be
granted asylum so long as they fear contributing to the preservation
of patriarchal structures if forced to return to their homelands.It also protects women from african and certain muslim countries who fear that upon their return to their homeland they will be subjected to genital mutilation as part of their culture.
A law or mandatory societal custom that targets only women and
severely punishes them for violation may be classified as a form of
gender-based persecution.
In re Kasinga, in which a young woman was granted asylum based on her fear of potentially being forced to undergo FGM if she was sent back to her country.
Female genital mutilation has been practiced for over 2000 years
throughout the world." It occurs in Asia, Europe and Latin America,
although it is currently most prevalent in Africa,56 where approximately
100 million females have undergone FGM" This is a major
portion of the approximately 110 million females who have suffered
FGM worldwide.
Female genital mutilation affects girls from the
city and the countryside alike, and makes no note of social status.
Every year, approximately 2 million girls undergo FGM. °
There is no single age at which FGM occurs. The practice has been
reportedly performed on newborns and young women immediately
before marriage, as well as women pregnant with their first child.

Often, mutilated females are threatened with
death by witchcraft if they reveal what has happened.


How AN ALIEN CURRENTLY MAY WIN ASYLUM IN THE UNITED
STATES


A. The Asylum Standard
According to the general provisions of the Immigration and Nationality
Act ("INA"), the definition of a refugee is:
[A] ny person who is outside any country of such person's nationality
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and who is
unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of that country because of persecution
or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion...
In more simplistic terms, there are three legal elements that an applicant
needs to prove in order to be granted asylum in the United
States. They are: (1) persecution, (2) a well-founded fear, and (3) a
claim that falls under one of the five enumerated grounds mentioned
above.
A reasonableness standard is always used to assess whether an
asylum applicant has established the various components. Generally
the alien should also present more than testimony to show that she or
he has been persecuted or fears persecution based upon one of the
five categories.
Although it is necessary for an applicant to satisfy these three
prongs to be granted asylum, it is in no way sufficient.Asylum is a
discretionary matter with a final determination made by an asylum
officer or Immigration Judge.
Immigration and Nationality Act § 101(a) (42) (A) (stating that although the burden falls upon the alien to prove that she or he is a refugee, an alien does not have to show that she or he is an individual target of persecution if she or he demonstrates that she or he is a part of a "'similarly situated' group(s) of persons against which there is a 'pattern or practice' of persecution in her
or his country on account of any of the five statutory grounds for asylum").
In reKasinga, A73 476 695, Int. Dec. 3278, at30.
Carvajal-Munoz v. INS, 748 F.2d 562, 574 (7th Cir. 1984). The exception to this rule is if the alien's testimony is believable, persuasive, and focuses on specific facts which imply that the alien is justified in fearing that she or he will be persecuted. See also, 8 C.F.R. § 208.13 (stating that if an asylum applicant's testimony is credible, it may be sufficient to sustain the burden
of proof without corroboration).

B. Withholding of Removal

Another way a fleeing alien may legally reside in the US is if the immigration Judge
grants what was referred to as "withholding of deportation or return",
and is currently referred to as "withholding of removal."69 To be
granted withholding of removal, an alien must satisfy a standard that
shows a clear probability of persecution. To pass this clear probability
of persecution standard, an alien must show that it is "'more likely
than not that the alien [will] be subject to persecution."This is a
higher standard than the well-founded fear test necessary to obtain
asylum. Although this standard is more difficult to meet, once it is
met, the immigration judge has no discretion to deny withholding.

ALL THIS BRINGS NEW HOPE TO THE MILLIONS OF WOMEN FLEEING PERSECUTION LIKE THIS FROM THEIR HOME COUNTRIES. THEY MAY BE ABLE TO LIVE A HAPPY AND FREE LIFE IN THE UNITED STATES. BUT THE PROCESS IS COMPLICATED AND DIFFICULT.
IF YOU OR ANY ONE YOU KNOW HAS THIS KIND OF FEAR OF GENITAL MUTILATION OR FEMALE CIRCUMCISION IN THE PAST OR FEAR IN THE FUTURE UPON RETURNING TO THEIR HOME COUNTRY YOU MAY BE QUALIFIED FOR A GREEN CARD BASED ON ASYLUM IN THE UNITED STATES.
PLEASE CONTACT AN IMMIGRATION ATTORNEY WHO HAS EXPERIENCE IN THESE KIND OF CASES OR CONTACT ME:
LAW OFFICES OF HUMA H. KAMGAR, ATTORNEY AT LAW, NEW YORK, USA
212-419-0456

No comments:

Post a Comment