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Matthew Kolken on Deportation And Removal


  1. The Fourth Circuit refuses to rehear an asylum case of a woman who fears that her genitals will be mutilated.

    by , 09-24-2009 at 07:00 AM (Matthew Kolken on Deportation And Removal)
    The Fourth Circuit Court of Appeals has declined to rehear a case involving the denial of an asylum application of a woman from Senegal.  The woman's asylum application was predicated on her parent's intention to forcibly inflict a tribal customary practice commonly referred to as Female Genital Mutilation.  
    This procedure involves anything from cutting off the ******** with scissors to the shearing off of the entirety of the visible parts of the female sex organs with a knife and sewing them together using twine. See World Health Organization, Female Genital Mutilation: A Handbook for Frontline Workers 13 (2000).   
    The young woman's parents required her to be mutilated in order to marry a man in his sixties.  She fled the country for the obvious reasons, and her father vowed to use all necessary means to have her returned to Senegal to be mutilated and forced to marry against her will.
    It is well settled that 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. See Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996).
    Initially, the Immigration Court ruled that the woman was unable to establish that it was more likely than not that as an educated adult she would be subjected to female genital mutilation upon return to Senegal because in Dakar where she lived the United States Department of State indicated that the barbaric practice was not prevalent.  The Board of Immigration Appeals affirmed the Immigration Court's decision, and the woman appealed to the 4th Circuit, who affirmed the Board's ruling. 

    In an unusual twist after the Fourth's ruling, Circuit Judge Gregory sought an en banc poll for a rehearing of the case on the forty-sixth day after the decision, but the 4th ultimately declined to rehear the case and again deferred to the Immigration Court's fact finding because they concluded that no reasonable adjudicator would be compelled to conclude to the contrary.  8 U.S.C. 1252(b)(4)(B).  
    In the dissenting opinion from the order denying sua sponte rehearing en banc, Judge Gregory stated that "[W]hile I hope that the Supreme Court will grant certiorari to consider Ms. Gomis's case, it cannot remedy the departure from settled precedent in our Circuit which this case represents. With all due respect to the majority, the reasoning contained therein is unsupported by precedent and makes no meaningful effort to distinguish the case from this Circuit's controlling decision in Haoua v. Gonzalez. It is my opinion that the paucity of distinguishing logic is because the facts in Gomis cannot be squared with that decision."  
    The woman has filed a petition for writ of certiorari with the United States Supreme Court.  See Gomis v. Holder, 571 F.3d 353 (4th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3091 (U.S. Aug. 11, 2009) (No. 09-194).
    It will be interesting to see how this one plays out.
  2. Inaugural Post: Welcome to my new Blog!

    by , 09-23-2009 at 10:14 AM (Matthew Kolken on Deportation And Removal)
    Welcome to my new blog at  I just wanted to introduce myself and give you an idea of what you can expect to see here.
    First off, my name is Matthew Kolken, and I am an Immigration Lawyer.  I am admitted to practice in the courts of the State of New York, the United States District Court for the Western District of New York, and the United States Court of Appeals for the Second Circuit. I have been a member of the American Immigration Lawyers Association (AILA) since October 1, 1997. 
    My firm, Kolken & Kolken, is principally located in Buffalo, New York but I travel all across the United States to represent individuals in Immigration Court proceedings.  Unlike many immigration lawyers the focus of my practice is deportation defense, and waivers, although I do handle cases in all areas of the immigration law.
    The main subject matter of this blog is going to be issues relating to Immigration Court proceedings, deportation defense, and issues of inadmissibility and deportability (known under the generic term "removability" ).
    I will attempt to speak in plain language and will avoid legalese whenever possible.  That being said, things will at times get technical, and when appropriate I will be utilizing the correct terms of art for any immigration practitioners who may be reading the blog. 
    Feel free to ask me non-case specific question right on the blog, but understand that there is no actual or implied attorney/client relationship formed by reading this blog, and past successes do not guarantee future results. 
    If you would like to speak to me about a case specific question, you are going to have to call my office to schedule an appointment to speak to me.
    I'm excited to be here, and will do my best to put new content up on the blog as often as possible, so be sure to check back often.  Also, you may follow me on Twitter at, and my firm website is
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