In re Fauziya Kasinga, Applicant
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
File A73 476 695 - Elizabeth
INTERIM DECISION: 3278
DEPARTMENT OF JUSTICE,
BOARD OF IMMIGRATION APPEALS
1996 BIA LEXIS 15
June 13, 1996, Decided
HEADNOTES:
[*1]
- The practice of female genital mutilation, which results in permanent disfiguration and poses a risk of
serious, potentially life-threatening complications, can be the basis for a claim of persecution.
- Young women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been
subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice, are
recognized as members of a "particular social group" within the definition of the term "refugee" under section
101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1994).
- The applicant has met her burden of proving through credible testimony and supporting documentary
evidence (1) that a reasonable person in her circumstances would fear country-wide persecution in Togo on
account of her membership in a recognized social group and (2) that a favorable exercise of discretion required
for a grant of asylum is warranted.
COUNSEL:
Karen Musalo, Esquire, Washington, D.C., for applicant
David A. Martin, General Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: Schmidt, Chairman; Dunne, Vice Chairman; Holmes, Hurwitz, Villageliu, [*2] Cole,
Mathon, and Guendelsberger, Board Members.
Concurring Opinions: Filppu, Board Member, joined by Heilman, Board Member; Rosenberb, Board Member.
Dissenting Opinion: Vacca, Board Member.
OPINION:
SCHMIDT, Chairman:
This is a timely appeal by the applicant from a decision of an Immigration Judge dated August 25, 1995. The
Immigration Judge found the applicant excludable as an intending immigrant, denied her applications for asylum
and withholding of deportation, and ordered her excluded and deported from the United States. Upon reviewing
the appellate record anew ("de novo review"), we will sustain the applicant's appeal, grant asylum, and order
her admitted to the United States as an asylee.
A fundamental issue before us is whether the practice of female genital mutilation ("FGM") can be the basis
for a grant of asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1994). On
appeal, the parties agree that FGM can be the basis for a grant of asylum. We find that FGM can be a basis
for asylum.
Nevertheless, the parties disagree about 1) the parameters of FGM as a ground for asylum in future cases,
and 2) whether the applicant is entitled to asylum on the basis [*3] of the record before us. In deciding this
case, we decline to speculate on, or establish rules for, cases that are not before us.
We make seven major findings in the applicant's case. Those findings are summarized below.
First, the record before us reflects that the applicant is a credible witness. Second, FGM, as practiced by the
Tchamba-Kunsuntu Tribe of Togo and documented in the record, constitutes persecution. Third, the applicant
is a member of a social group consisting of young women of the Tchamba-Kunsuntu Tribe who have not had
FGM, as practiced by that tribe, and who oppose the practice. Fourth, the applicant has a well-founded fear
of persecution. Fifth, the persecution the applicant fears is "on account of" her social group. Sixth, the
applicant's fear of persecution is country-wide. Seventh, and finally, the applicant is eligible for and should be
granted asylum in the exercise of discretion. Each finding is explained below.
I. CREDIBILITY
A. The Applicant's Testimony
The applicant is a 19-year-old native and citizen of Togo. She attended 2 years of high school. She is a
member of the Tchamba-Kunsuntu Tribe of northern Togo. She testified that young women of her [*4] tribe
normally undergo FGM at age 15. However, she did not because she initially was protected from FGM by her
influential, but now deceased, father.
The applicant stated that upon her father's death in 1993, under tribal custom her aunt, her father's sister,
became the primary authority figure in the family. The applicant's mother was driven from the family home, left
Togo, and went to live with her family in Benin. The applicant testified that she does not currently know her
mother's exact whereabouts.
The applicant further testified that her aunt forced her into a polygamous marriage in October 1994, when she
was 17. The husband selected by her aunt was 45 years old and had three other wives at the time of
marriage. The applicant testified that, under tribal custom, her aunt and her husband planned to force her to
submit to FGM before the marriage was consummated.
The applicant testified that she feared imminent mutilation. With the help of her older sister, she fled Togo for
Ghana. However, she was afraid that her aunt and her husband would locate her there. Consequently, using
money from her mother, the applicant embarked for Germany by airplane.
Upon arrival in Germany, the [*5] applicant testified that she was somewhat disoriented and spent several
hours wandering around the airport looking for fellow Africans who might help her. Finally, she struck up a
conversation, in English, with a German woman.
After hearing the applicant's story, the woman offered to give the applicant temporary shelter in her home
until the applicant decided what to do next. For the next 2 months, the applicant slept in the woman's living
room, while performing cooking and cleaning duties.
The applicant further stated that in December 1994, while on her way to a shopping center, she met a young
Nigerian man. He was the first person from Africa she had spoken to since arriving in Germany. They struck up
a conversation, during which the applicant told the man about her situation. He offered to sell the applicant
his sister's British passport so that she could seek asylum in the United States, where she has an aunt, an
uncle, and a cousin. The applicant followed the man's suggestion, purchasing the passport and the ticket with
money given to her by her sister.
The applicant did not attempt a fraudulent entry into the United States. Rather, upon arrival at Newark
International Airport [*6] on December 17, 1994, she immediately requested asylum. She remained in
detention by the Immigration and Naturalization Service ("INS") until April 1996.
The applicant testified that the Togolese police and the Government of Togo were aware of FGM and would
take no steps to protect her from the practice. She further testified that her aunt had reported her to the
Togolese police. Upon return, she would be taken back to her husband by the police and forced to undergo
FGM. She testified at several points that there would be nobody to protect her from FGM in Togo.
In her testimony, the applicant referred to letters in the record from her mother (Exh. 3). Those letters
confirmed that the Togolese police were looking for the applicant and that the applicant's father's family
wanted her to undergo FGM.
The applicant testified that she could not find protection anywhere in Togo. She stated that Togo is a very
small country and her husband and aunt, with the help of the police, could locate her anywhere she went. She
also stated that her husband is well known in Togo and is a friend of the police. On cross-examination she
stated that it would not be possible for her to live with another [*7] tribe in Togo.
The applicant also testified that the Togolese police could locate her in Ghana. She indicated that she did
not seek asylum in Germany because she could not speak German and therefore could not continue her education
there. She stated that she did not have relatives in Germany as she does in the United States.
B. Background Information
1. The Asylum Application
The applicant's written asylum application was filed on April 18, 1995, while she was in INS detention
(Exh. 3). That application is consistent with the above testimony in all material respects.
A number of documents are attached to the applicant's asylum application. First, there are copies of two
letters, dated December 27, 1994 and December 30, 1994, respectively, signed by the applicant's mother. The
letters are in English. One letter confirms that the applicant's father's family wishes to have the applicant
marry an older man and be subjected to FGM. That letter further confirms that the applicant's mother gave
the applicant money to assist her escape. The other letter confirms that the Togolese police were looking for
the applicant following her escape in October 1994.
The applicant testified that [*8] 1) her mother cannot write English; 2) the letters were prepared by the
applicant's sister, at her mother's request; and 3) the letters are signed by the applicant's mother (Tr. at
62-63).
A translated copy of the applicant's marriage certificate also is appended to the asylum application. That
document, dated October 7, 1994, is signed by the applicant's husband, but not by the applicant.
Finally, an untranslated document in French, perhaps from the police in Togo, is attached to the asylum
application. The applicant did not rely on the untranslated document at the hearing. The INS trial attorney
neither objected to the admission of the untranslated document nor cross-examined the applicant with respect
to it. The Immigration Judge did not mention the untranslated document.
2. Applicant's Other Exhibits
The applicant's prior counsel also offered a letter dated August 24, 1995, from Charles
Piot, Assistant Professor of Cultural Anthropology at Duke University (Exh. 6). That letter 1) states that it was written at
counsel's request, on the basis of information furnished by counsel; 2) briefly describes Professor Piot's
qualifications as a cultural anthropologist who spent 3 years [*9] doing research in Northern Togo in the
1980s; and 3) offers the opinion that a woman of the Tchamba people probably would be expected by
her husband to have undergone a clitoridectomy (a type of FGM) prior to marriage.
The Immigration Judge admitted the Piot letter into evidence (Tr. at 89). The Immigration Judge noted that
the weight given the letter would be affected by the inability of the INS to cross-examine Professor
Piot. However, the Immigration Judge also stated that he "would accept the applicant on her word, that the tribe
requires the circumcision [FGM] prior to marriage." (Tr. at 89).
The applicant also submitted pictures of herself in tribal ceremonial dress at the time of her marriage. Those
pictures were admitted into evidence (Exh. 5), and the applicant testified to their authenticity (Tr. at 70-71).
3. Group Exhibit 4
The applicant's prior counsel also filed a lengthy pre-hearing brief accompanied by extensive documentation.
That documentation included information on the practice of FGM, its harmful effects on women, its lack of
legitimate justification, and its condemnation by the international community. The documentation also
confirmed the generally poor human [*10] rights situation in Togo, particularly for women. These background
materials are designated "Group Exhibit" 4 in the record.
4. Description of FGM
According to the applicant's testimony, the FGM practiced by her tribe, the Tchamba-Kunsuntu, is of an
extreme type involving cutting the genitalia with knives, extensive bleeding, and a 40-day recovery period (Tr.
30-31, 41). The background materials confirm that the FGM practiced in some African countries, such as
Togo, is of an extreme nature causing permanent damage, and not just a minor form of genital ritual. See,
e.g., Nahid Toubia, Female Genital Mutilation: A Call for Global Action 9, 24-25 (Gloria Jacobs ed., Women Ink.
1993).
The record material establishes that FGM in its extreme forms is a practice in which portions of the female
genitalia are cut away. In some cases, the vagina is sutured partially closed. This practice clearly inflicts harm
or suffering upon the girl or woman who undergoes it.
FGM is extremely painful and at least temporarily incapacitating. It permanently disfigures the female genitalia.
FGM exposes the girl or woman to the risk of serious, potentially life-threatening complications. These include,
[*11] among others, bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to
the urethra and anus. It can result in permanent loss of genital sensation and can adversely affect sexual and
erotic functions. See generally Toubia, supra; INS Resource Information Center, "Alert Series - Women -
Female Genital Mutilation," Ref. No. AL/NGA/94.001 (July 1994) [hereinafter FGM Alert].
The FGM Alert, compiled and distributed by the INS Resource Information Center, notes that "few African
countries have officially condemned female genital mutilation and still fewer have enacted legislation against
the practice." FGM Alert, supra, at 6. Further, according to the FGM Alert, even in those few African
countries where legislative efforts have been made, they are usually ineffective to protect women against
FGM. The FGM Alert notes that "it remains practically true that [African] women have little legal recourse and
may face threats to their freedom, threats or acts of physical violence, or social ostracization for refusing to
undergo this harmful traditional practice for attempting to protect their female children." Id. at 6-7. Togo
[*12] is not listed in the FGM Alert as among the African countries that have made even minimal efforts to
protect women from FGM.
The record also contains a May 26, 1995, memorandum from Phyllis Coven, Office of International Affairs, INS,
which is addressed to all INS Asylum Officers and sets forth guidelines for adjudicating women's asylum claims.
Coven, U.S. Dep't of Justice, Considerations For Asylum Officers Adjudicating Claims From Women (1995).
Those guidelines state that "rape . . ., sexual abuse and domestic violence, infanticide and genital mutilation
are forms of mistreatment primarily directed at girls and women and they may serve as evidence of past
persecution on account of one or more of the five grounds." Coven, supra, at 4.
5. State Department Reports on Conditions in Togo
The record also contains two reports compiled by the United States Department of State. The first of these,
dated January 31, 1994, 1) confirms that FGM is practiced by some ethnic groups in Togo; 2) notes that while
some reports indicate that the practice may be diminishing, an expert indicates that as many as 50% of
Togolese females may have been mutilated; and 3) notes that various acts [*13] of violence against women
occur in Togo with little police intervention. Committees on Foreign Affairs and Foreign Relations, 103d Cong.,
2d Sess., Country Report on Human Rights Practices for 1993 (Joint Comm. Print 1994) [hereinafter 1993
Country Reports].
The second Department of State Report on Togo, prepared by the Bureau of Democracy, Human Rights and
Labor, is dated April 1995. Bureau of Democracy, Human Rights and Labor, U.S. Dep't of State, Togo - Profile
of Asylum Claims & Country Conditions (April 1995) [hereinafter Profile]. While not specifically addressing
FGM, that report states that the President of Togo has a poor human rights record and confirms that the
government's military and security forces have been involved in serious human rights abuses.
At the hearing, the Immigration Judge decided not to include in the record a third State Department Report,
the February 1995 Country Reports on Human Rights Practices for 1994, because the information basically
duplicated the two reports already submitted. See Committees on Foreign Relations and International
Relations, 104th Cong., 1st Sess., Country Reports on Human Rights Practices for 1994 [*14] 268 (Joint
Comm. Print 1995). Neither counsel objected to the Immigration Judge's decision to exclude the February 1995
report.
INS Cross-Examination and Request for Remand
During the hearing before the Immigration Judge, the INS had an opportunity to cross-examine the applicant
and to offer documentary evidence of its own having a bearing on the case. The INS submitted nodocumentary evidence.
As discussed below, the INS general attorney's cross-examination of the applicant revealed no meaningful
inconsistencies in her testimony. The INS does not claim that the applicant is incredible, nor does the INS
argue that the Immigration Judge's adverse credibility determination was correct. Rather, the INS requests
that the record be remanded for further examination of the applicant's credibility. The INS cites four specific
matters in support of its request.
First, the INS asserts that the applicant testified in an inconsistent manner because she gave several different
answers regarding who performs FGM in her tribe. At one point, the applicant stated that an older man of the
tribe performed the procedure (Tr. at 24). At another point, she indicated that an old lady or an official [*15]
circumcisor performed the operation (Tr. at 31-32).
These are not inconsistencies that undermine credibility. It is understandable that a teenage girl, who has
been protected from FGM by her father, and who has never been subjected to the process, might have an
imperfect understanding of who actually performs the procedure in her tribe. We also note that the applicant
had been attending high school outside Togo, in Ghana, during the time immediately preceding her father's
death. The INS does not challenge the applicant's membership in the Tchamba-Kunsuntu Tribe, nor does it
contend that the tribe does not practice FGM. When viewed in the context of the entire record, the
ambiguous answers as to who performs FGM in the tribe do not undermine the applicant's credibility. See
Matter of B---, Interim Decision 3251 (BIA 1995).
We reject the INS's second suggestion that there is a material discrepancy in the applicant's testimony
regarding her marital status. The record establishes that the applicant was married against her will to an older
man of her tribe, and the marriage was never consummated. The marriage certificate was not signed by the
applicant. She fled the country shortly [*16] after the marriage, before she had been delivered to her
husband's house. Understandably, in the particular circumstances of this case, the teenage applicant may, in
her own mind, be uncertain as to whether she is actually "married" to her husband in Togo. The statement in
her asylum application that she "would be forced to marry an old man, and be [circumcised]" is basically
consistent with her testimony and the corroborating evidence she presented.
We also reject the INS's third challenge to the applicant's credibility. During oral argument, the General Counsel
referred to the need to explore the matter of the "untranslated document" attached to the asylum application
(O.A. at 33). However, he acknowledged that the INS had an opportunity to explore this matter below and did
not do so (O.A. at 34). The INS is not entitled to another opportunity to try this issue. See Matter of Guevara,
20 I&N Dec. 238, 249 (BIA 1991).
We acknowledge the INS's fourth point -- that a number of the applicant's answers on both direct and
cross-examination were "inaudible" in the transcript. Nevertheless, there is ample audible testimony from the
applicant that supports her asylum application. It [*17] is very unlikely that any of the "inaudible" portions of
the transcript contained highly relevant material impeaching the applicant's credibility. If that were the case,
we certainly would expect the INS to have brought it to our attention through an affidavit or declaration from
its general attorney who was present at the hearing below.
Finally, the INS has not suggested that it has any newly discovered, previously unavailable documentary
evidence relating to conditions in Togo or the likelihood of country-wide persecution.
For the foregoing reasons, a remand is not necessary. This is particularly true in light of the length of time the
applicant's asylum application has been pending.
The Applicant's Credibility
We have conducted an independent review of the applicant's credibility. We note that the Immigration Judge's
adverse credibility determination was based on a perceived lack of "rationality," "persuasiveness," and
"consistency." The Immigration Judge did not rely on the applicant's demeanor. We, like the Immigration Judge,
can determine from the record whether the applicant's testimony is "rational, plausible, and consistent."
We find that the applicant's testimony [*18] in support of her asylum application is plausible, detailed, and
internally consistent. See Matter of B---, supra. It is consistent with her asylum application and with the
substantial background information in the record. The latter includes information from the Department of State
and the INS Resource Information Center.
The applicant is a 19-year-old woman, who was a 17-year-old high school student at the time the events in
question occurred. The applicant's father had died, she was separated from her mother, and she was under
the control of an unsympathetic aunt. Her arrival in the United States followed flight from her homeland and a
lonely journey of thousands of miles that took her through a strange country. Her testimony followed more
than 8 months of continuous INS detention, in several facilities, one of which was closed by a riot.
We specifically reject the Immigration Judge's findings that the applicant's failure to know the present
whereabouts of her mother; her claim to have avoided FGM through her father's efforts; the incident involving
the German woman; or the incident with the Nigerian man were irrational, unpersuasive, or inconsistent. Each
of those matters [*19] was adequately and reasonably explained by the applicant during her testimony and
each of them reasonably could have happened to a teenage girl in the applicant's situation. Her testimony on
these points was not impeached by the INS through cross-examination.
For the foregoing reasons, on the basis of the record before us, we find the applicant to be a credible witness.
II. FGM AS PERSECUTION
For the purposes of this case, we adopt the description of FGM drawn from the record and summarized in Part
I.B.4. of this opinion. We agree with the parties that this level of harm can constitute "persecution" within the
meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1994).
While a number of descriptions of persecution have been formulated in our past decisions, we have recognized
that persecution can consist of the infliction of harm or suffering by a government, or persons a government is
unwilling or unable to control, to overcome a characteristic of the victim. See Matter of Acosta, 19 I&N Dec.
211, 222-23 (BIA 1985), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). The
"seeking to overcome" formulation has its antecedents [*20] in concepts of persecution that predate the
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. See, e.g., Matter of Diaz, 10 I&N Dec. 199, 204
(BIA 1963).
As observed by the INS, many of our past cases involved actors who had a subjective intent to punish their
victims. However, this subjective "punitive" or "malignant" intent is not required for harm to constitute
persecution. See Matter of Kulle, 19 I&N Dec. 318 (BIA 1985); Matter of Acosta, supra.
Our characterization of FGM as persecution is consistent with our past definitions of that term. We therefore
reach the conclusion that FGM can be persecution without passing on the INS's proposed "shocks the
conscience" test. We also agree with the parties that this case is not controlled by Matter of Chang, 20 I&N
Dec. 38 (BIA 1989) (holding that China's population control policy is not persecution).
III. SOCIAL GROUP
To be a basis for a grant of asylum, persecution must relate to one of five categories described in section
101(a)(42)(A) of the Act. The parties agree that the relevant category in this case is "particular social group."
Each party has advanced several formulations of the "particular social group" [*21] at issue in this case.
However, each party urges the Board to adopt only that definition of social group necessary to decide this
individual case.
In the context of this case, we find the particular social group to be the following: young women of the
Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.
This is very similar to the formulations suggested by the parties.
The defined social group meets the test we set forth in Matter of Acosta, supra, at 233. See also Matter of
H---, Interim Decision 3276 (BIA 1996) (finding that identifiable shared ties of kinship warrant characterization
as a social group). It also is consistent with the law of the United States Court of Appeals for the Third
Circuit, where this case arose. Fatin v. INS, 12 F.3d 1233, 1241 (3d Cir. 1993) (stating that Iranian women
who refuse to conform to the Iranian Government's gender-specific laws and social norms may well satisfy the
Acosta definition).
In accordance with Acosta, the particular social group is defined by common characteristics that members of
the group either cannot change, or should not be required to change because such [*22] characteristics are
fundamental to their individual identities. The characteristics of being a "young woman" and a "member of the
Tchamba-Kunsuntu Tribe" cannot be changed. The characteristic of having intact genitalia is one that is so
fundamental to the individual identity of a young woman that she should not be required to change it.
IV. WELL-FOUNDED FEAR
The burden of proof is upon an applicant for asylum to establish that a "reasonable person" in her
circumstances would fear persecution upon return to Togo. Matter of Mogharrabi, 19 I&N Dec. 439, 445
(BIA 1987). The applicant has met this burden through a combination of her credible testimony and the introduction
of documentary evidence and background information that supports her claim. See Matter of B---, supra;
Matter of Dass, 20 I&N Dec. 120 (BIA 1989).
V. "ON ACCOUNT OF"
To be eligible for asylum, the applicant must establish that her well-founded fear of persecution is "on
account of" one of the five grounds specified in the Act, here, her membership in a "particular social group." See, e.g.,
Matter of H---, supra (holding that harm or abuse because of clan membership constitutes persecution on
account of [*23] social group).
Both parties have advanced, and the background materials support, the proposition that there is no legitimate
reason for FGM. Group Exhibit 4 contains materials showing that the practice has been condemned by such
groups as the United Nations, the International Federation of Gynecology and Obstetrics, the Council on
Scientific Affairs, the World Health Organization, the International Medical Association, and the American
Medical Association.
Record materials state that FGM "has been used to control woman's sexuality," FGM Alert, supra, at 4. It also
is characterized as a form of "sexual oppression" that is "based on the manipulation of women's sexuality in
order to assure male dominance and exploitation." Toubia, supra, at 42 (quoting Raqiya Haji Dualeh
Abdalla, Somali Women's Democratic Organization). During oral argument before us, the INS General Counsel agreed
with the latter characterization. (O.A. at 41). He also stated that the practice is a "severe bodily invasion"
that should be regarded as meeting the asylum standard even if done with "subjectively benign intent"
(O.A. at 42).
We agree with the parties that, as described and documented in this record, [*24] FGM is practiced, at
least in some significant part, to overcome sexual characteristics of young women of the tribe who have not
been, and do not wish to be, subjected to FGM. We therefore find that the persecution the applicant fears in
Togo is "on account of" her status as a member of the defined social group.
VI. COUNTRY-WIDE PERSECUTION
The INS suggests, in its brief and at oral argument, that a remand is necessary because the applicant has not
established that she would be unable to avoid FGM by moving to some other part of Togo. As we found in Part
I of our opinion, the applicant presented credible testimony that her husband is a well-known individual who is
a friend of the police in Togo. She testified that her aunt and her husband were looking for her and that there
could be no refuge for her because Togo is a small country and the police would not protect her (Tr. at 59,
61, 65, 73, 74, 78, 86, 87).
The applicant's testimony is consistent with the background information in the record. That information
confirms that 1) FGM is widely practiced in Togo; 2) acts of violence and abuse against women in Togo are
tolerated by the police; 3) the Government of Togo has a poor human [*25] rights record; and 4) most
African women can expect little governmental protection from FGM. See 1993 Country Reports, supra; Profile,
supra; FGM Alert, supra, at 6-7. We also take notice that Togo is a small country of approximately 22,000
square miles, slightly smaller than West Virginia.
Neither in its briefs nor at oral argument did the INS raise any claim of "new evidence" that might show
changed country conditions. We assume that if the INS had any new documentation showing that the
applicant could find safety from FGM elsewhere in Togo, it would have offered that evidence in support of its
motion to remand.
For the foregoing reasons, we find that this record adequately supports the applicant's claim that she has a
country-wide fear of persecution in Togo.
VII. DISCRETION
persecution on account of her membership in a particular social group in Togo. A grant of asylum to an eligible
applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The
danger of persecution will outweigh all but the most egregious adverse [*26] factors. Matter of Pula, 19 I&N
Dec. 467, 474 (BIA 1987). The type of persecution feared by the applicant is very severe.
To the extent that the Immigration Judge suggested that the applicant had a legal obligation to seek refuge in
Ghana or Germany, the record does not support such a conclusion. The applicant offered credible reasons for
not seeking refuge in either of those countries in her particular circumstances.
The applicant purchased someone else's passport and used it to come to the United States. However, upon
arrival, she did not attempt to use the false passport to enter. She told the immigration inspector the truth.
See Matter of Y---G---, 20 I&N Dec. 794 (BIA 1994).
We have weighed the favorable and adverse factors and are satisfied that discretion should be exercised in
favor of the applicant. Therefore, we will grant asylum to the applicant.
VIII. ANCILLARY MATTERS
In view of our disposition of the applicant's case, we will deny the INS's request to remand. We find it
unnecessary to consider the new evidentiary materials submitted by the applicant on appeal. We also do not
reach the applicant's alternate claim that she has a well-founded fear of persecution [*27] on the basis of a
forced polygamous marriage. Moreover, it is unnecessary for us to adjudicate the applicant's application for
withholding of deportation.
IX. SUMMARY AND CONCLUSION
The applicant has a well-founded fear of persecution in the form of FGM if returned to Togo. The persecution
she fears is on account of her membership in a particular social group consisting of young women of the
Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.
Her fear of persecution is country-wide. We exercise our discretion in her favor, and we grant her asylum.
Therefore, we sustain the applicant's appeal, grant her asylum, and order her admitted to the United States.
The following orders are entered.
ORDER: The applicant's appeal is sustained. The applicant is granted asylum and admitted to the United States
as an asylee.
FURTHER ORDER: The INS's motion to remand is denied.
CONCURBY: FILPPU; HEILMAN; ROSENBERG
CONCUR:
CONCURRING OPINION: Lauri Steven Filppu, Board Member, joined by Michael J. Heilman, Board Member,
joined.
I respectfully concur. I write separately in part to respond more completely to several arguments advanced by
the Immigration and Naturalization [*28] Service.
I. INTRODUCTION
The questions necessarily presented to the Board by virtue of the positions advanced by the parties in this
case are narrow. The majority resolves the case on those grounds, and properly declines to address issues
raised by the Service that go well beyond those essential to the disposition of this appeal.
While they offer slightly different theories, the parties agree that female genital mutilation
("FGM") can amount to persecution, that there is a "particular social group" of which the applicant may be a member, and
that the serious harm the applicant fears from FGM would be inflicted "on account of" her membership in that
social group. The case-specific issues presented by the parties for our resolution concern the need for a
remand respecting the credibility of the applicant and the precise arguments for finding FGM to constitute a
basis for asylum on this record.
The parties naturally understand that this case may well have implications beyond its facts. But only the
Service asks that we adopt a framework of analysis which is specifically intended to address issues, such as
past persecution questions, that are not presented by the facts of this [*29] case. It is unclear whether
there is an immediate need for a more comprehensive analytical framework in which to assess FGM claims. To
the extent it is needed to address the concerns raised by the Service, that comprehensive guidance could
more appropriately be issued through the legislative or regulatory process, not the Board's case adjudication
process.
II. THE QUESTIONS IN THIS CASE
A. Credibility and Remand
The Immigration Judge determined the applicant to lack credibility, primarily because he found aspects of her
story implausible. Although it is not determinative, the Immigration Judge's assessment is not without some
force. Indeed, the Service relies on some of the same aspects of the applicant's claim in requesting a remand.
But the Service also seeks a remand to explore aspects of the record that could have been explored when the
case was before the Immigration Judge. And, as the Immigration Judge's finding was not based on demeanor,
the majority appropriately makes an independent assessment of credibility.
It would have been preferable for the applicant to have offered corroboration of some aspects of her story,
particularly in relation to her arrival and stay [*30] in Germany, which bear on her overall veracity. But the
unresolved questions raised by that portion of her account are not sufficient for an adverse credibility finding
on this record. Nor is a remand warranted when the Service's other concerns pertain mainly to suspicions that
are raised for the first time on appeal.
B. The Persecution Issues
The parties offer different theories for why FGM can amount to persecution, with the Service offering a novel
"shocks the conscience" theory as part of its analysis. For purposes of this case, it is sufficient to observe
that the level of suffering associated with FGM, as practiced by the applicant's tribe, would be more than
enough to constitute persecution if inflicted exclusively on a religious or political minority.
The "on account of" and "particular social group" requirements of the statute are not in dispute here, except
to the extent that the applicant's proposed "social group" definition includes an element of personal opposition
by the victim which is not included in the Service's proposal. It is not essential to choose between these
offerings. In view of the positions taken by the parties, the applicant would qualify for relief [*31] under
either proffered social group. n1
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n1 This is not to say we are bound absolutely by the parties' arguments. But we face here an issue of first
impression, in relation to FGM claims, and we lack the benefit of either amicus briefing or supplemental briefing
on questions we might pose. In the absence of any dispute of consequence between the parties, there is no
need to resolve this particular question in order to decide the case.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I agree with a favorable exercise of discretion on this record. Given the severity of FGM as practiced by the
applicant's tribe, the near certainty of its application to her if she were to return to Togo, and the positions
taken by the parties on the legal issues, a grant of asylum is in order. See Matter of Pula, 19 I&N Dec. 467
(BIA 1987).
III. THE SERVICE'S FRAMEWORK
Despite the absence of any major dispute between the parties in this case, the Service requests that we
adopt its broad "framework of analysis" for claims of this type. Its suggestion candidly is aimed at addressing
[*32] issues it sees arising in relation to claims that may be made by women from other "parts of the world
where FGM is practiced" and by those "who have been subjected to it in the past." (Brief at 15).
The Board engages in case adjudication. It decides those issues that lead to the resolution of the cases
before it. Our published rulings act as precedent under the regulations, 8 C.F.R. § 3.1(g) (1995), and can
affect many related cases. But the Board is not well positioned, in the context of a single disposition of a novel
issue, to establish comprehensive rules or guidelines for the adjudication of all cases presenting variations on
the case at hand. Yet, it is the cases that are not before us that seem to draw much of the Service's
attention in its brief.
The Service points out that it is "estimated that over eighty million females have been subjected to
FGM." (Brief at 13). It further notes that there is "no indication" that "Congress considered application of [the asylum
laws] to broad cultural practices of the type involved here." (Brief at 14). The Service proceeds to argue that
"the underlying purposes of the asylum system . . . are unavoidably in tension" in both providing [*33]
protection for those seriously in jeopardy and in maintaining broad overall governmental control over
immigration (Brief at 14-15). The Service further argues that "the Board's interpretation in this case must
assure protection for those most at risk of the harms covered by the statute, but it cannot simply grant
asylum to all who might be subjected to a practice deemed objectionable or a violation of a person's human
rights." (Brief at 15). It is from these underpinnings that the Service argues that the class of FGM victims who
may be eligible for asylum "does not consist of all women who come from the parts of the world where FGM is
practiced, nor of all who have been subjected to it in the past." (Brief at 15).
The Service then offers its "framework of analysis." That framework includes a new "shocks the conscience"
test for persecution. The advantages seen by the Service of this test evidently include: 1) the ability to
define FGM as "persecution" notwithstanding any lack of intent to "punish" FGM victims on the part of the
victims' parents or tribe members who may well "believe that they are simply performing an important cultural
rite that bonds the individual to the society"; [*34] 2) the ability to exclude other cultural practices, such as
"body scarring," from the definition of persecution as these do not shock the conscience; and 3) the ability to
exclude past victims of FGM from asylum eligibility if "they consented" to it or "at least acquiesced," as in the
case of a woman who experienced FGM as "a small child," since FGM would not shock the conscience unless
inflicted on "an unconsenting or resisting individual." (Brief at 16-18).
With respect to the past persecution question, the Service references 8 C.F.R. § 208.13(b)(1) (1995), and
notes "that a woman once circumcised cannot ordinarily be subjected to FGM a second time." (Brief at 18
n.3). The regulation cited by the Service provides in part for a presumption of future persecution that arises
from past persecution, and allows only one way of overcoming the presumption, namely, a change in country
conditions. As conditions in countries where FGM is practiced may not have changed, it may be anomalous to
have a binding presumption of future persecution where the act of persecution will never again take place for
the individual past victim. n2
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n2 It might also be anomalous if persons facing death in their homelands because of religious or political
persecution were denied protection for having "assisted, or otherwise participated in the persecution" of their
children simply by virtue of being parents of FGM victims and having followed tribal custom. See section
243(h)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h) (2)(A) (1994); 8 C.F.R. § 208.13(c).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*35]
The Service's broad framework of analysis also seems to have led it to offer a social group definition that in
one respect fits the test set forth in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other
grounds, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), yet is also defined largely by the harm sought to
be included in the concept of persecution (Brief at 19-21). For example, we simply do not know from this
record whether the similar social groups proposed by the parties are recognized as groupings for any other
purposes within Togolese society aside from the serious personal harm at issue here. The record does not
disclose whether this group is seen as a distinct body within Togo or within the tribe both before and after the
infliction of FGM on its members, or whether it is a group that exists exclusively in relation to the particular
offensive practice at issue here. Because the social group definition has not been a real source of dispute
between the parties, we are also not well informed as to the degree of affiliation between or the homogeneity
among its members. See Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986). n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 But for the concession of the Service on this point, I would be inclined to remand this case for further
development on the "social group" question. The meaning of the phrase "membership in a particular social
group" has not been completely explained by our case law. Nevertheless, it is questionable whether the
statute was meant to encompass groups that are defined principally in relation to the harm feared by the
asylum applicant. See Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir. 1992); Gomez v. INS, 947 F.2d 660,
663-64 (2d Cir. 1991). The record here sheds little light on this question.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*36]
The Service does not offer its new framework of analysis for our consideration as part of an effort to
harmonize a line of past rulings, or otherwise to put some order into a series of decisions that have addressed
FGM questions in a variety of contexts. Instead, the Service offers its new analysis in the context of a case
of first impression for the Board. It sets out what appear to be a variety of policy considerations and potential
areas of concern that might arise in related but nevertheless different cases. It then tries to develop a
unifying theory or approach that would support grants of asylum to persons who may prospectively face
FGM, but would not routinely make asylum available to persons who have simply previously suffered FGM.
It may be that the Board will end up with an analysis along the lines proposed by the Service as it confronts
various issues involving asylum and FGM in the future. Then again the Board may settle upon a different view,
which may be better or worse from the perspective of particular parties. But I am fully in agreement with the
majority's decision not to attempt to set forth a comprehensive analytical framework in the context of this one
case. [*37]
The Board certainly is not oblivious to immigration policy considerations in the disposition of cases falling within
our jurisdiction. But we are not fundamentally a policy-making body. There may be some unsettling or
unsatisfying aspects to the slower and less predictable development of legal guidelines that inures in the
Board's case adjudication system. But there are alternatives if resort to the Board's issuance of precedent is
not satisfactory in a particular context. The Service can seek to have the Attorney General issue regulations
that comprehensively address competing concerns, or it can work within the Administration for appropriate
legislative action by Congress. n4 The Service should not, however, expect the Board to endorse a significant
new framework for assessing asylum claims in the context of a single novel case, especially when that
framework seems intended primarily to address cases that are not in fact before the Board yet.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Indeed, appropriate new legislation might prove to be the better answer if principles of asylum law in fact
end up creating the types of anomalies identified by the Service.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*38]
CONCURRING OPINION: Lory D. Rosenberg, Board Member
Today, in the specific case before us, this Board decides that a young woman of a particular tribe in Togo,
who opposes being subjected to female genital mutilation as practiced by that tribe, is a member of a
particular social group, and that on account of that membership, a reasonable person could fear persecution
as defined in the Immigration and Nationality Act. I join the majority decision in its entirety.
This is, in some respects, a case of first impression. Given our purpose to interpret the statute and
regulations, to provide guidance to a field of some 200 Immigration Judges, countless Immigration and
Naturalization Service officers, and the public, and to achieve consistency and uniformity in both the
procedure and substance of adjudications, there are three important points with regard to our decision today
that I believe require further elaboration.
First, this case involves the respondent's reasonable fear that she faces the possibility of harm or abuse, rising
to the level of persecution, inflicted on account of her membership in a particular social group.
This case falls squarely within the formulation [*39] adopted by Congress in the Refugee Act of 1980, Pub. L.
No. 96-212, 94 Stat. 102, which was enacted in large part to establish compliance with this country's
domestic and international humanitarian obligations under the 1967 United Nations Protocol Relating to the
Status of Refugees, Jan. 31, 1967 [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268, to which the
United States is a signatory country, and which incorporates by reference the 1951 United Nations Convention
Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 ("Convention"). See sections 208, 243(h)
of the Act, 8 U.S.C. §§ 1158, 1243(h) (1994). As I read the record, both the Service and the." applicant call
upon us, in their briefs and at oral argument, to recognize and articulate a framework to provide a context for
our decision in this case. However, unlike the Service, which urges us to consider a new standard and a new
framework which exceeds the bounds of this case (Service Brief at 12-15; O.A. at 26), the applicant contends
that we should draw on traditional principles of asylum jurisprudence to adopt a framework that is consistent
and appropriate with the Refugee Act and international law. [*40] (Applicant's Brief at 27-36, Applicant's
Reply Brief at 13-15, O.A. at 4). I agree.
In my view, there are three essential elements inherent in our definition of persecution, which, if established,
constitute the basis for a discretionary grant of asylum, or a mandatory grant of withholding of deportation,
or both. One is the factor of the applicant's genuine, subjective fear of persecution, which must be
accompanied by objective evidence rendering the fear reasonable. The next is the factor of harm, abuse, or ill-treatment
which rises to the level of, or amounts to, persecution and includes consideration of the applicant's attitude
towards such treatment. The last is the reason for, or cause of, the infliction of persecution. This is known as
the "on account of" factor, which includes consideration of the motives of the agent of persecution and
requires a nexus between the infliction of harm which constitutes persecution and one of the five protected
grounds or statuses, such as social group membership, set forth by the Act. In Fatin v. INS, 12 F.3d 1233,
1240 (3d Cir. 1993), the United States Court of Appeals for the Third Circuit held that to prevail, an applicant
claiming [*41] social group persecution must identify a cognizable social group, establish her
membership in it, and show that persecution is based on that membership.
In this case, I conclude that the applicant's fear is of imminent female genital mutilation, related to being
forced to enter an arranged marriage, documented in the record as constituting a mandatory tribal custom.
The harm or abuse amounting to persecution is the genital mutilation opposed by the applicant. The reason
the persecution would be inflicted, the "on account of" element, is because of the persecutor's intent to
overcome her state of being non-mutilated and accordingly, free from male-dominated tribal control, including
an arranged marriage.
I see no reason to depart from our existing jurisprudence in order to determine the claim set forth here. In my
view, this issue is controlled by our precedent decisions, interpreting the statute and agency regulations, in
which, only recently, we have recognized that government-tortured Sri Lankans; imprisoned and beaten
Somalia tribesmen; persecuted Afghani Mujahedin fighters; and Haitian women, raped for political retribution,
can set forth claims which deserve and warrant protection [*42] within our laws. Matter of H---, Interim
Decision 3276 (BIA 1996); Matter of D---V---, Interim Decision 3252 (BIA 1993); Matter of B---, Interim
Decision 3251 (BIA 1995).
In adjudicating any asylum claim, we use a "reasonableness" standard to determine whether an asylum
applicant has established the presence of these essential elements. See INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987) (addressing the distinct burdens of proof for asylum, requiring that the applicant's fear be
reasonable, and for withholding of deportation, requiring that there be a likelihood or clear probability of
persecution). In my view, while Cardoza-Fonseca and its progeny, including our decision in Matter of
Mogharrabi, 19 I&N Dec. 439 (BIA 1987), invoked that standard principally to assess the fear of persecution
asserted by the applicant, it is equally appropriate to employ that standard in our determinations regarding the
"on account of" element.
In this case, the applicant has met her burden of establishing that her fear of female genital mutilation is not
only reasonable, but that its infliction on her is probable. In addition, she has shown this practice to be
persecution since [*43] she has met her burden of establishing that it is both reasonable to believe and
probable that the mutilation she faces is on account of her status as a young woman of the tribe, that she
opposes the practice of mutilation, and that it will be inflicted in satisfaction of tribal customs or norms
because of her status.
Second, a social group definition that takes into account and differentiates the other component elements of
the definition of persecution which warrant protection under United States law is critical.
There is nothing about a social group definition based upon gender that requires us to treat it as either an
aberration, or as an unanticipated development requiring a new standard. While this is the first time that this
Board has addressed the particular type of harm or abuse feared by the respondent -- female genital
mutilation -- it is not the first time that the Board has addressed the particular social group category," see,
e.g., Matter of Sanchez and Escobar, 19 I&N Dec. 276 (BIA 1985); Matter of Acosta, 19 I&N Dec. 211
(BIA 1985), modified on other grounds, Matter of Mogharrabi, supra. Indeed, this Board has specifically addressed
the category of [*44] particular social group persecution in a recent decision. Matter of H---, Interim
Decision 3276 (BIA 1996) (holding that membership in an identifiable subclan of a Somalian tribe constitutes
membership in a particular social group and that harm suffered on account of that membership constitutes
persecution).
The social group category within the refugee definition incorporated into the Act has been recognized as
having deliberately been included as a "catch-all" for individuals not falling into the first four specifically
enumerated categories of political opinion, race, religion, or ethnicity. See Kristin E. Kandt, United States
Asylum Law: Recognizing Persecution Based on Gender Using Canada as a Comparison, 9 Geo.
Immigr. L.J. 137, 145 (1995): (citing T. Alexander Aleinikoff, The Meaning of "Persecution" on United States Asylum Law, 3 Int'l
J. Refugee L. 5, 11 (1991); see also Nancy Kelly, Guidelines for Women's Asylum Claims, 26 Cornell Int'l
L.J. 625 (1993); Pamela Goldberg, Anyplace But Home: Asylum in the United States for Women Fleeing Intimate
Violence, 26 Cornell Int'l L.J. 565, 591-92 (1993). As Professor Goldberg discusses, the scope of the [*45]
social group category has been addressed by preeminent international law scholars. For example, Atle
Grahl-Madsen considers it to be broader than the other categories and to have been added to the Convention
precisely to protect against persecution that would arise from unforeseeable circumstances. In addition, Guy
Goodwin Gill asserts that the category allows states to expand it to various classes susceptible to persecution.
In her article, Professor Goldberg proposes one definition of a gender-identified social group which would
include a group of women characterized by circumstances or similar treatment, not unlike the definition we
propose here.
Unlike requests for asylum premised upon political opinion, social group claims, like those involving race,
ethnicity, or religion, are status based and do not necessarily require a showing of the presence of an
individual's opinions or activities which spurs the persecutor's wrath or otherwise motivates the harm or
persecution. Matter of H---, supra. Rather, such requests involve a determination of whether the shared
characteristics are those which motivate an agent of persecution to seek to overcome or otherwise harm the
individual. [*46] Matter of Acosta, supra. Consequently, while not inaccurate, it is surplusage to define the
social group in this case by including as an element the applicant's opposition to the practice of female genital
mutilation.
It may be true that sometimes an individual woman's political opinion may overlap or or coexist with her
membership in a group designated as a particular social group; however, that does not detract from the fact
that social group membership is a status-based ground protected under the Act, just as is religion or ethnicity.
While it is not impossible that a political or social opinion, either actual or imputed, may be shared by persons
whom, as a result, we would characterize as constituting a particular social group within the meaning of the
Act, that is not the case here. As I have stated, the applicant's political or social views -- her attitude or
intent -- is not relevant to our definition of the social group to which she belongs, but rather to whether the
harm or abuse she faces constitutes persecution.
In Matter of H---, supra, this Board found, without difficulty or the need to qualify, that a man who was a
member of a tribe in Somalia whose members [*47] were being systematically attacked by other tribes in
retribution for the corruption and brutality of former ruler and tribe member, Siad Barre, had established
persecution based on his clan membership alone. That his father and brother were killed and that he himself
was brutally treated during detention was found to be persecution on account of his membership in a subclan
in Somalia, a particular social group. His attitude towards that persecution was neither examined nor relevant.
The only distinguishing characteristic about this case that I can perceive to set it apart from others we
already have decided is that it involves a woman. Reliance upon such a distinction to support a separate
category for treatment of women's asylum claims, to my mind, would be impermissible. See, e.g.,
Kandt, supra, at 143-151. Here, the applicant is a member of a group: girls and women of a given tribe, some perhaps of
marriageable age, whose members are routinely subjected to the harm which the majority finds to constitute
persecution. The applicant's opposition (which happens to be present in this case) or the lack of it, is neither
determinative, nor necessary to define the social group [*48] in accordance with the statutory language.
Third, it is the role of this Board to interpret and apply the statute in individual cases coming before us for the
purpose of establishing a consistent framework for adjudication.
This Board has a significant history and an ongoing role in interpreting the statute and determining the law in
cases involving immigrants and refugees. Under 8 C.F.R. § 3.1(g) (1995), our precedent decisions are to be
binding on all subsequent adjudications involving the same issue or issues. As the designee of the Attorney
General, we serve not only to adjudicate individual, unrelated cases on their facts, but also to give life to the
provisions and terms of the law and establish agency policy through adjudication. See Rust v. Sullivan, 500
U.S. 173 (1991); NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (finding that administrative agencies
may engage in setting policy both by rulemaking and case adjudication).
Consideration of gender-based, or gender-related, asylum claims within the "membership in a particular social
group" construct that exists within the Act is entirely appropriate and consistent with the developing trend of
jurisprudence [*49] in the United States and Canada as well as with international norms. Fatin v. INS, supra;
Cheung v. Canada, 102 D.L.R. 4th 214 (1993); cf. Gomez v. INS, 947 F.2d 660 (2d Cir. 1991). Further, the
United Nations High Commissioner for Refugees explicitly encourages the use of "particular social group"
analysis to extend protection to women asylum seekers who otherwise satisfy the refugee definition. See
United Nations High Commissioner for Refugees, Memorandum: Female Genital Mutilation (Geneva,
UNHCR, Division of International Protection, May 1994). Our recognition of a particular social group based upon tribal
affiliation and gender is also in harmony with the guidelines for adjudicating women's asylum claims issued by
the Service, see Coven, U.S. Dep't of Justice, Considerations for Asylum Officers Adjudicating Asylum Claims
From Women (1995), and with the Canadian guidelines for women refugees facing gender-related persecution,
see Immigration and Refugee Board, Guidelines Issued by the Chairperson Pursuant to Section 65(B) of the
Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution (1993) ("Canadian gender
guidelines").
In [*50] an endorsement of the viability of the present statutory structure, the Service itself saw fit to
develop gender guidelines to assist in the adjudication of asylum claims brought by women. Coven, supra.
Curiously, the position of the Service in this case makes no reference to its published guidance in that regard.
However, it is notable that the guidelines recognize the importance of considering gender-based claims in light
of international human rights instruments and the framework they provide. Indeed, the Service itself
recognizes that gender-based asylum claims are "developments in refugee protection" and that its guidelines
are a natural and multifaceted outgrowth of a set of gender guidelines issued by the UNHCR in 1991, the 1993
Canadian gender guidelines and other sources of expertise including the Women's Refugee Project of theHarvard Immigration and Refugee Program.
What we have done here, while we do not explicitly say so, is to posit, by example, the proper framework in
which the individual facts of such claims made before the Service and before Immigration Judges should be
considered and judged. In sum, we have, in the majority opinion, set forth a road map for analysis [*51]
appropriate for this case, which may easily be extrapolated and applied in upcoming adjudications, not only of
gender-based asylum claims, but in many other asylum applications. Moving from the factual assertions in the
applicant's testimony concerning her fear, and the practice of female genital mutilation in her tribe, we have
considered the background information presented, including her application and documentation submitted as
other exhibits in support of it. Taking this evidence as a whole, we found the applicant to have testified
truthfully, and we rejected both the Immigration Judge's finding that the applicant's claim lacked "rationality"
and his reliance on minor inconsistencies pertaining to tangential matters which were reasonably explained and
did not, in any event, go to the essence of her claim.
As it was raised by the Service and addressed in our case law, Matter of R---, 20 I&N Dec. 621
(BIA 1992), we looked to whether or not the applicant could reasonably be expected to relocate within the country of
Togo, and we found her to have established a country-wide basis for her fear. Finally, in exercising our
discretion, we rejected the Immigration Judge's contention [*52] that the applicant had an obligation to seek
refuge in other countries she passed through while in transit to the United States. We reaffirmed that use of a
false passport to travel to this country is outweighed by the danger of persecution, Matter of Pula, 19 I&N
Dec. 467 (BIA 1987), and granted asylum. All of this was clearly, coherently, and properly done based on the
facts presented in this case and on the existing statute, related policy considerations, and developing legal
authorities consistent with the current law.
DISSENTING OPINION: Fred W. Vacca, Board Member
I respectfully dissent without-opinion.
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