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WCL Clinic Files Landmark Asylum Case

by Sidney Lebowitz

The International Human Rights Clinic at the Washington College of Law (WCL) recently filed an appeal before the United States Board of Immigration Appeals (BIA) on behalf of a young Togolese woman fleeing forced polygamous marriage and imminent infliction of female genital mutilation (FGM). The case may establish a precedent in U.S. asylum law, which heretofore has not recognized fear of infliction of FGM as grounds for a grant of asylum.

Fauziya Kasinga fled Togo at the age of 17 to escape certain infliction of FGM as the result of her forced polygamous marriage to a man nearly 20 years her senior. She came to the U.S. to seek protection and, upon entering this country, immediately applied for asylum. Since her arrival in the U.S., however, Fauziya has been held in various detention centers in New Jersey and Pennsylvania, often enduring horrible and humiliating conditions. Her case will be heard by the BIA on May 2, 1996.

Togo

Fauziya enjoyed a privileged childhood. Her father was educated and wealthy. Due to his wealth, he was able to defy tribal norms. Fauziya was sent to boarding school to be educated, which was very unusual for women in her tribe. Mr. Kasinga opposed the tribal customs of polygamous marriage and FGM. He looked outside of his tribe in order to marry a woman who had not been mutilated. Because of Mr. Kasinga's beliefs and standing in his community, Fauziya's four older sisters were enter into marry into monogamous marriages and avoid mutilation.

Fauziya's life changed when her father suddenly died of an asthma attack when Fauziya was only 16. As is common within the Tchamba-Kunsuntu tribe, Mr. Kasinga's sister, Haja-Mammud, took over the family finances and moved into the family home. She banished Fauziya's mother from the home and pulled Fauziya out of boarding school.

The next year, Fauziya's aunt explained that she had arranged for Fauziya to marry a 45-year- old man who already had three wives. Fauziya was horrified. On October 17, 1994, Fauziya's aunt called her into a room. Lying on the bed were the customary marriage clothes. Fauziya's aunt explained to her that this would be Fauziya's wedding day. Fauziya was married that day, even though she refused to sign the marriage certificate. Under Togolese law, her marriage is legal even without this signature.

A few days after the marriage, a tribal elder was to come to the home to perform the mutilation. Fauziya would be held down by four men while the elder woman would remove her clitoris and labia minora with a knife that is normally used to cut hair. No anesthesia would be used. After the mutilation, Fauziya would be bound for 40 days to ensure that the wound would heal. After the 40 day respite, the marriage would be consummated. Luckily, Fauziya was able to escape and did not have to endure this painful and sometimes deadly practice.

One day after the marriage, Fauziya's oldest sister, Ayisha, helped Fauziya escape from the house and drove her to the airport in neighboring Ghana. Ayisha gave Fauziya $3,000 and put Fauziya on the first plane out of the country, which happened to go to Germany.

Upon arrival in Germany, Fauziya wandered around the airport trying to figure out what to do. She struck up a conversation with a woman at the airport named Rudina Gergs. After hearing Fauziya's story, Rudina suggested that Fauziya stay with her until she decided what to do. In exchange for accommodations, Fauziya cooked and cleaned for Ms. Gergs.

Fauziya was very uncomfortable in Germany. She had no family there and did not know anyone. She did not speak any German. Fortunately, Fauziya met a man on a bus who, after hearing Fauziya's story, gave her his sister's passport so that she could come to the United States where she had family and where she believed she could gain protection by applying for asylum.

Incarceration

Upon arrival in Newark, New Jersey, Fauziya turned over her false passport and explained that she wanted to apply for asylum. To Fauziya's surprise, she was sent to the Esmor Immigration Detention Center in Elizabeth, New Jersey. At Esmor, Fauziya was put in a cold dark cell where she was told to strip naked. She was menstruating and asked if she could keep her underwear. The guard refused and Fauziya sat over the toilet, waiting for whatever was to happen next. Later that evening, a guard gave Fauziya some clothes, including two sandals to wear, both of which were for the right foot, and underwear which were stained and so big for her that she had to tuck them into her belt to keep them from falling down. Once while at Esmor, Fauziya was kept in isolation for five days because she washed her hands and face before sunrise in a ritual before her morning prayers. She was told she was breaking a rule prohibiting detainees from using the showers before 6 am. Fauziya was still incarcerated at Esmor in June 1995, when prisoners rioted due to the intolerable living conditions at the prison. The Immigration and Naturalization Service (INS) admitted abuses of the immigrants, and Fauziya has stated that she was beaten by guards during the riots.

Since the riots, Fauziya has been shifted to various prisons. At each prison, she has endured horrible conditions. At Lehigh County Prison in Pennsylvania, Fauziya was kept in isolation for almost three weeks without ever being told why. While in isolation, she was not permitted to shower, and guards slid her food under the door to her cell.

Fauziya has never committed any crime. She came to the U.S. to seek protection, but instead, has passed her 17th and 18th birthdays in jail.

Fauziya's Asulum Case

On August 25, Fauziya's case was heard by Donald V. Ferlise, an immigration judge in Philadelphia. Judge Ferlise denied Fauziya's asylum claim based on his assumptions about the cultural norms and practices in Togo. The judge found it beyond belief and incredible that Fauziya had met both Rudina Gergs and the man who gave Fauziya the passport by chance. In addition, Judge Ferlise found it "inconsistent" that FGM is the norm in her tribe, yet she and her sisters had managed to escape it. The judge's finding came in spite of testimony by Professor Posnansky, an expert on Togo who testified for Ms. Kasinga, which verified the pervasiveness of the practice. Professor Posnansky stated under oath that it was very probable... that [Fauziya] was able to avoid FGM while her father was still alive.

On May 2, the BIA, the highest administrative court in the U.S. immigration system, will hear Fauziya's asylum claim. The BIA's decision will likely set important precedent that would be binding on the nation's 179 immigration judges.

Professor Karen Musalo, Supervising Attorney at WCL's International Human Rights Clinic, which is currently representing Ms. Kasinga, believes that Fauziya qualifies for asylum because she has a well-founded fear of persecution on account of her membership in the social group of young women of her tribe who are opposed to the tribal practices of FGM and forced polygamous marriages and have no protection against it. Professor Musalo also points out that there are no adverse discretionary factors which would justify a denial of relief. The INS has stated in its brief to the BIA that FGM can be a basis for asylum and it is not directly contesting Fauziya's credibility.

While her asylum case is pending, Fauziya remains in detention. A request for Fauziya's release on humanitarian grounds was denied in November. The International Human Rights Clinic currently is challenging detention and prison conditions through a petition for writ of habeas corpus in U.S. District Court. Twenty-five members of Congress have written a letter to the Attorney General requesting Fauziya's release and expressing their belief that FGM should be a basis for asylum. A press conference is scheduled for April 26 in support of Fauziya's release from detention.


© Copyright 1996 The Human Rights Brief


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