In a refreshing decision, on September 22, 2008, the U.S. Attorney General vacated the Board of Immigration Appeals’ (“BIA”) decision in Matter of A-T- , 24 I&N Dec. 296 (BIA 2007). The Board held in Matter of A-T- that a woman from Mali who had been subjected to female genital mutilation in the past no longer had a well-founded fear of future persecution because she would not be subjected to the procedure again. This decision was rightfully subjected to much critisim. It also conflicted with circuit court decisions such as Mohammed v. Gonzales, 400 F.3d 785, 795-796 (9th Cir. 2005) which found that female genital mutilation is persecution and a continuing form of harm that allows for a finding of a well-founded fear.
Fortunately the Attorney General has taken a step in the right direction by vacating the BIA’s decision in Matter of A-T-. In his decision, the Attorney General notes that the BIA was incorrect in holding that female genital mutilation could occur only once. He cites to other cases which explain that a woman may be subjected to it on more than one occasion. (24 I&N Dec., 617, 622 (A.G. 2008)) Noting that the respondent in this case has already been subjected to past persecution, the Attorney General asks the BIA to consider whether the respondent would be entitled to the presumption that exists in the law that her life or freedom would be threatened in the future on the basis of the original claim. (Id. at 623.)
Assuming the respondent has established the presumption, the Attorney General also asks the BIA to consider whether the Government has met its burden in rebutting the presumption by showing that she could relocate somewhere in Mali and be safe or whether there has been a fundamental change of circumstances such that she would not be harmed on one of the five grounds that form a basis for asylum/withholding of removal. Id. at 624.
Finally, the Attorney General questioned the BIA’s holding that the future harm the respondent feared had to be identical to the harm she experienced in the past and asked that this holding be reconsidered. Id.
Whatever the outcome will be in the Board’s decision, it is likely to be a better-reasoned case than the previous decision.