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

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 clitoris 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.

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