FGM Comes to America

In a landmark case decided on June 13, 1996, the Board of Immigration Appeals, the appellate tribunal which issues precedential opinions in immigration law, held that the practice of female genital mutilation (FGM) could be the basis for an asylum claim by women who seek refuge in the United States. FGM is a extremely painful and incapacitating procedure, usually crudely administered, in which portions of the female genitalia are cut away as a rite of passage to marriage. As such, the case was enthusiastically heralded by immigration advocates who had been attempting for years, with much resistance, to establish the legal merit of persecution claims which were unique to women. Consequently, I am horrified to know that today in the United States, American women willingly choose to mutilate their own genitalia for mere fashion, and cosmetic surgeons greedily embrace the practice without fully knowing its implications. See, http://womensmediacenter.com/blog/2010/02/cosmetic-vaginal-surgeons-clueless/ ("Cosmetic Vaginal Surgeons Clueless" by Angela Bonavoglia at a "first-ever" conference on what they hope is a growing field, surgeons showed an appalling indifference to how women experience sexual pleasure.)

In the case entitled Matter of Kasinga, Fauziya Kasinga, a Togolese woman whose tribe practiced female genital mutilation, fled her native country before she was subjected to the brutal procedure, which was usually imposed when a girl turned fifteen years of age. Kasinga had initially been fortunate since her father was opposed to the practice and had protected his daughter from circumcision. Unfortunately, when he passed away, her paternal aunt, who became her primary caretaker, planned to force Kasinga, by then seventeen years old, to undergo FGM before the consummation of her marriage to a 45 year old man with three wives. Instead, Kasinga fled Togo and sought protection in the U.S. She claimed asylum as soon as she landed at Newark International Airport in December of 1994.

When Kasinga arrived in the United States, there were no precedent cases involving FGM or other barbarities suffered by women worldwide. While asylum law recognizes that one may be protected if she has a well-founded fear of persecution on account of her social group, women had never been deemed a social group. The concern was that women constituted much too broad a group. A social group, as defined in U.S. asylum law, has common characteristics that members of the group either cannot change, or should not be required to change, because such characteristics are fundamental to their individual identities. Therefore, Kasinga’s attorney had to very carefully craft a social group that was narrow enough to convince an immigration court that her client should be protected from deportation to Togo on account of the suffering that would be inflicted upon her as a result of tribal custom. She did so. The lawyer argued that Kasinga feared persecution because she was a young woman of a certain tribe who had not yet been subjected to the FGM practiced by her tribe, and who opposed the practice. Since then, many more women fleeing FGM have gained protection in the U.S. from this torturous procedure.

Among the evidence presented by Kasinga in her asylum claim was a letter from a cultural anthropologist who was familiar with Togo and Kasinga’s tribe. He opined that her new husband would have expected the young woman to have a clitoridectomy-- requiring complete removal of the clitoris-- prior to marriage. Kasinga testified that the type of FGM practiced by her people involved cutting the genitalia with knives, which caused excessive bleeding and permanent damage. Background material submitted in the case indicated that the FGM procedure causes life-threatening bleeding, infection, urine retention, shock and damage to the urethra and anus. Indeed, I recall once representing a man from Guinea whose daughter, at the age of ten, had died after undergoing this barbaric procedure. He had been opposed to it, but the child’s mother had believed it was an obligatory custom and had stolen her away one day, taking the girl to her native village to be circumcised. The man broke down and cried telling me about his little girl’s tragic death.

FGM may also cause permanent loss of genitalia sensation. In the article cited above, describing the new American trend, the author points out that cosmetic surgeons who are engaged in the practice claim that by carving, burning, cauterizing, and stitching the female labia, clitoris, vaginal canal, and other related areas they create " longed for 'designer' vaginas" which enhance sexual gratification. This notion is contradicted by experts in female sexuality. In addition, the surgeons "insisted that for a labiaplasty to provide 'a complete aesthetic look,' some of the skin around the clitoris has to be excised. Yet, this can be the cruelest cut, leaving the woman to experience pain, not pleasure, when the clitoris swells and she is sexually aroused."

In the Kasinga case, the Board of Immigration Appeals acknowledged that FGM lacks legitimate justification and is condemned by the international community. It could now be argued that the United States, along with several African nations, stands out as an exception to such worlwide condemnation. The astonishing difference between African countries and the U.S., of course, is that while some American women appear to embrace the practice of mutilating their genitalia for a superficial benefit, and surgeons shamefully profit from it, African women have no choice. According to the Board's reasoning in the Kasinga case, human rights organization recognize that women in Africa have little legal recourse and may face threats to their freedom, threats or acts of violence, or ostracism if they refuse to submit to the violent traditional practice of female circumcision, or attempt to protect their daughters from the procedure. The absurd vanity of U.S. women who choose have a labiaplasty or vaginoplasty, as the surgeries are called here, and the greed of doctors who perform them, clearly trivializes this critical issue. The American quest for youthful beauty undermines the severe threat that women abroad face, as well as the concerted effort by human right advocates to outlaw this practice across the globe. In fact, the pathetic comments of the cosmetic surgeons quoted in the article (For example, one says, "that surgery for a vagina that is 'all stretched out…helps and saves relationships.'") remind me of what a colleague once told me about an FGM case she once handled. When the immigration judge denied asylum to her client, who had suffered genital mutilation in her native country, he absurdly reasoned that the procedure was no more serious than when an American girl gets her ears pierced at the mall.