Female mutilation case tests US courts

Asylum bid: Togo woman's appeal for sanctuary from painful tribal custom divides judiciary

Fauziya Kasinga found the prospect of genital mutilation understandably appalling. But when she fled her native Togo for America, in the hope of obtaining asylum, she had not reckoned on the less than tender mercies of the United States immigration service.

Ms Kasinga, a well-educated young woman from a well-off Togolese family, was sold by her aunt in matrimony in August 1994 to a thrice-married man three times her age. She was 17.

The marriage took place but, according to local Muslim custom, consummation would wait 40 days, the period deemed necessary for her genital scars to heal.

The surgery, usually carried out without anaesthesia by a tribal elder, was due to take place two days after the marriage ceremony. But just in time Ms Kasinga's eldest sister spirited her out of Togo to Ghana. She flew to Dusseldorf, where she says she found employment for two months at the home of a woman she met at the airport. On 17 December 1994 she arrived at New York's Newark airport, having been informed by a Nigerian friend in Germany that although she lacked the necessary papers, the authorities would look kindly on her plight.

She had been led to believe the Immigration and Naturalization Service (INS) would be prepared, under the circumstances, to stretch the conventional definition of persecution to grant political asylum.

Instead she was whisked off to a detention centre in New Jersey and promptly strip-searched, the first of many occasions when she was obliged to submit to this indignity during her first year in the US.

She also says she was periodically held in chains, denied sanitary napkins and locked up in an isolation cell. Her claims appeared to be confirmed when an official investigation last summer found guards at the detention centre had been guilty of abusing prisoners.

From New Jersey she was transferred to a prison in York, Pennsylvania, before she appeared before an immigration judge in Philadelphia on 25 August last year. The judge, who was rude to the point of being abusive, according to lawyers present, said he found her story "not credible", declared female genital mutilation did not come under the definition of persecution and denied her asylum request.

"I feel empty, mute," she said in an interview with the New York Times last month. "I keep asking myself, 'What did I do to deserve such punishment? what did I do?'"

Last week she made her final bid to avoid the fate she believes awaits her back home when she appeared before the Board of Immigration Appeals, the highest immigration tribunal in the US. Her lawyer, Karen Musalo, said the Philadelphia judge's lack of familiarity with tribal customs in Togo had rendered him unfit to rule on the credibility of Ms Kasinga's story. According to Ms Musalo, a professor of law at George Washington University, her client was seeking to escape from the tyranny of a patriarchal society where she had no one to protect her.

INS lawyers said they wanted to send Ms Kasinga's case back to a lower court and, in general, wished the board to establish new guidelines whereby in certain narrow circumstances, when it could be clearly determined that a woman would be subjected to the knife if forced to return home, female genital mutilation might warrant granting asylum.

Ms Musalo, on the other hand, heads a team of human rights lawyers seeking to make it legal for all women who fear mutilation, or have already been mutilated, to obtain asylum in the US. Two dozen African countries employ the custom, which involves the removal of the clitoris to minimise sexual sensation. About 100 million women have been its victims, according to the World Health Organisation.

The 12 members of the immigration appeal board are expected to submit a written ruling during the summer.

Should Ms Kasinga's appeal fail, all may not be lost. She could try crossing the border to Canada, the only country where the prospect of female genital mutilation is considered legitimate grounds for asylum.