Amidst the flurry of posts about the Boumediene decision, I wanted to be sure to note a major asylum decision that came down this week. As we've discussed here, last fall, the Board of Immigration Appeals issued the In re: A-T- decision, which found that a woman who had undergone female genital mutilation (FGM) did not have enough of a fear of future persecution to qualify for withholding of removal because the mutilation had already occurred. This week, a three-judge panel, including Rosemary Pooler (pictured at left) and Sonia Sotomayor (pictured at right), issue
d a decision overturning that rule, at least in the Second Circuit. (We discussed the oral argument in this case here.) Beginning with a lengthy and graphic discussion of FGM and the physical and psychological harm it inflicts on women, the court finds "fairly obvious errors in the agency's application of its own regulatory framework." In other words, the fact that the persecution has already occurred is not sufficient to dismiss a claim of future persecution -- both because FGM can be performed more than once and because these women could be subject to other forms of persecution, including domestic violence. The reasoning is a bit strained, largely because Pooler (who penned the majority opinion) and Sotomayor (explicitly in her concurrence) refuse to reach the question of whether FGM constitutes "continuing persecution." In contrast, Chester Straub's concurring opinion elegantly dismantles the government's claim that it does not. Turns out that sometimes the best Grrl for the job is a man . . .CORRECTION: The majority opinion was actually penned by Judge Straub, not Judge Pooler. The 2d Circuit opinion hyperlinked above contains this correction.
