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2008 Immigration Project Amicus Brief Successful

(Boston, Revised 11/13/09) New England Law | Boston: In a rare move, Attorney General Michael Mukasey overturned a lower court decision in the Matter of A-T-, a case in which a 28-year-old Malian woman was denied asylum in the U.S. The asylum petition was made on the basis of past female genital mutilation (FGM).

Professor Dina Francesca Haynes and several New England Law students were part of the legal effort contesting the lower court decision and helping to bring about its eventual reversal. Haynes and the students were working as part of the Immigration Project in the school's Center for Law and Social Responsibility.

The Attorney General’s decision is novel, creating new law which, Haynes contends, may effectively permit all women, both those who fear undergoing FGM and those who have already suffered it, to seek asylum in the United States.

Female genital mutilation is common in parts of Africa, Asia, and in some Arab countries. The operation is viewed by some ethnic groups as a means to control a woman's sexuality and is sometimes a prerequisite for marriage or the right to inherit. In its denial of asylum, the Immigration Judge and the Board of Immigration Appeals maintained that since A-T had already been subjected to FGM, she could not be subjected to it again, analogizing the persecution to "the severing of a limb," which could not again be severed.   

Prof. Haynes and six student volunteers from the law school’s Immigration Project, Erin Brown, Laura Nazzaro, Rochelle Meddoff, Frances Katz, and Ellen Houseal, contested the decision from a medical perspective, claiming that the above analogy was flawed. They met with prominent area medical professionals, including doctors and psychologists from the Boston Medical Center and the Boston University Refugee Project, to research the arguments and write an amicus brief.

Professor Haynes argues that considerable ongoing and future harm does continue after FGM, including physical, sexual and psychological trauma, as well as harm to any future children. The procedure can cause tissue injury, severe infection and fever, among other complications. The U.N. has recorded cases in which hemorrhaging and infection lead to death.

More than 125 prominent medical professionals and medical organizations, including the American College of Obstetrics and Gynecology, Boston Medical Center, and Physicians for Human Rights, signed on to the brief, which was filed with the Fourth Circuit Court of Appeals in April 2008. Shortly thereafter, 26 members of Congress, including Senators Kennedy, Kerry and Clinton, filed a similar amicus brief. Another FGM-related legal case was won in the Second Circuit, using arguments taken from the Immigration Project's brief.

With momentum building, Attorney General Mukasey vacated the original decision, and sent the case back to the immigration court, stating that its decision was “flawed.” According to the Justice Department, immigration courts decide about 40,000 cases a year, and an attorney general has issued an opinion on a case only three times in the past three years.

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