¹ This practice has also been termed “female circumcision,” “traditional female genital surgery” (FGS), and “Irua.” The nomenclature alone is a controversial subject. See Hope Lewis, Between Irua and Female Genital Mutilation: Feminist Human Rights Discourse and the Cultural Divide, 8 Harv. Hum. Rts. J. 1, 2–3 (1995). In In re Kasinga, the court uses the term “FGM.” For purposes of consistency, this note will use the same terminology.

² 1996 WL 379826, L. Rosenberg, Concurring, at 1.

³ 1996 WL 379826, L. Filppu & M. Heilman, Concurring, at 1.

⁴ Id. at 5.

⁵ Id. at 2–3.

⁶ 1996 WL 379826, Board at 8. Kasinga’s story was subsequendy corroborated by her family in Togo. See Cindy Shiner, Persecution by Circumcision: Woman Who Fled Togo Convinced U.S. Court but Not Town Elders, Wash. Post, July 3, 1996, at A1. Her mother, who had given her almost all of her own $3,500 inheritance, eventually had to ask the family patriarch to forgive her and allow her to live in his home. Celia W. Dugger, A Refugee’s Body is Intact but her Family is Tom, N.Y. Times, Sept. 11, 1996, at A1.

The INS sought a remand in part based on credibility determinations. The majority had little difficulty dispensing with these issues because they were based on purported inconsistencies in the applicant’s statements that did not affect the issues to be resolved. The opinion also emphasized that a remand was not necessary given the length of time her application had been pending. 1996 WL 379826, Board at 7–8. The applicant spent eight months in INS detention in several facilities, including one closed by a riot. Questioning this long-term detention in light of the applicant’s age, the novel issue presented by her case, and the lack of any known criminal record, the majority members suggested that “[t]he Commissioner and the General Counsel might well wish to review the policy should future cases of diis type arise.” Id. at 9.

⁷ In addition to condemnation by international governmental organizations, the International Federation of Gyneco.ogy and Obstetrics, the Council on Scientific Affairs, the International Medical Association, and the American Medical Association have also condemned FGM. 1996 WL 379826, Board at 11.

⁸ Id. at 6.

⁹ Id.

¹⁰ Id. at 5, 11.

¹¹ Id. at 10 (citing In re Acosta, 19 I & N Dec. 211 (B.I.A. 1985), modified on other grounds, In re Moghrabi, 19 I & N Dec. 439 (B.I.A. 1987)).

¹² Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150; Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267.

¹³ These categories are race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §1101 (a)(42)(A) (1994).

¹⁴ Feminist critics of current asylum law note that while “political opinion” protects male-dominated activities (such as guerrilla activity, political agitation and union activity) and thus persecution of men, no comparable category exists to protect against the kinds of oppression women generally experience. For example, in a 1987 case, the applicant had been raped by a military officer who threatened to expose her as a “subversive” if she resisted. To grant her asylum, the U.S. Court of Appeals for the Ninth Circuit characterized the Salvadoran woman as a person persecuted on the basis of “political opinion” by imputing to her a “political opinion” against the Salvadoran Government in power at the time. Lazo Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987).

¹⁵ In re Acosta, 19 I & N Dec. 211, 233 (B.I.A. 1985), modified on other grounds, In re Moghrabi, 19 I & N Dec. 439 (B.I.A. 1987).

¹⁶ For example, an immigration judge in Baltimore considering the asylum claim of a woman from Sierra Leone found, as did the court in Kasinga, that the applicant could not change her gender. The court concluded, however, that the applicant could change her mind with regard to her opposition to the FGM practices. The judge made no effort to determine if her attitudes about FGM (and, thus, her attitudes about the physical integrity of her genitalia) were “so fundamental to the individual’s identity or conscience that she ought not to be required to change.” Memorandum of Decision and Order [name and case number redacted] (U.S. Immigration Ct, Baltimore, Apr. 28, 1995).

¹⁷ United Nations High Commissioner for Refugees, Memorandum: Female Genital Mutilation (Geneva, UNHCR, Division of International Protection, May 1994).

¹⁸ 8 C.F.R. pts. 103, 204, 205, & 216 (1996); see also Lena H. Sun, INS Expands Asylum Protection for Women, Wash. Post, June 3, 1995, at A4: Judith Gaines, INS Eases Asylum Guidelines for Women, Boston Globe, May 27, 1995, at 13; and Michael J. Sniffen, Immigration Rules Focus on Sexual Violence, Portland Oregonian, May 27, 1995, at A12; Canadian 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).

¹⁹ 1996 WL 379826, L. Filppu & M. Heilman, Concurring, at 1. These Board members suggest that the comprehensive framework offered by the Service would be more appropriately proposed through the legislative or regulatory process.

²⁰ Lewis, supra note 1. Canada was the first country to formulate gender guidelines for asylum; the United States was the second to do so. See Kristin E. Kandt, United States Asylum Law: Recognizing Persecution Based on Gender Using Canada as a Comparison, 9 Geo. Immigr. L.J. 137 (1995). The gender guidelines are not technically binding on the BIA and, therefore, their use in the majority opinion is itself significant. Moreover, concurring Judge Rosenberg questions the failure of the Service to refer to the gender guidelines in the case. 1996 WL 379826, L. Rosenberg, Concurring, at 5.

²¹ 1996 WL 379826, L. Filppu & M. Heilman, Concurring, at 1.

²² Convention on the Rights of the Child, Art. 12, GA Res. 44/25, Annex, UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A/44/49 (1989), revised by UN Doc. A/RES/44/25/Corr.1 (1990), reprinted in 28 ILM 1457 (1989); see also id., Arts. 19, 24(3), 37.

²³ UN High Commissioner for Refugees, supra note 17.

²⁴ See, e.g., Oral decision of the immigration judge [name and case number redacted] (Office of the Immigration Judge, Oklahoma City, Aug. 30, 1995); Memorandum of Decision and Order [name and case number redacted] (U.S. Immigration Ct., Baltimore, Apr. 28, 1995); In re U.K., No. A-72-374-558 (Office of the Immigration Judge, Arlington, Va., Apr. 20, 1995).

²⁵ See, e.g., Oral opinion of the Immigration Judge, In re Oluloro, No. 172-147-491 (Office of the Immigration Judge, Seattle, Wash., Mar. 23, 1994).

²⁶ Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).

²⁷ In re Pierre, 15 I & N Dec. 461 (B.I.A. 1975).

²⁸ Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993); but see Fisher v. INS, 79 F.3d 955 (9fh Cir. 1996).

²⁹ In re M.K., Deportation Proceedings, A-72-374-558 (U.S. Immigration Ct, Arlington, Va., Aug. 9,1995).

³⁰ Brief of the INS at 20.

³¹ 1996 WL 379826, L. Rosenberg, Concurring, at 5.

³² The importance of BIA decisions should not be underestimated. Federal district and circuit courts of appeals have been very deferential to BIA decisions as an administrative law matter. See generally Krishna R. Patel, Recognizing the Rape of Bosnian Women as Gender-Based Persecution, 60 Brooklyn L. Rev. 929, 946 (1994).