22 September 2008 – Attorney General Michael B. Mukasey vacated a decision by the Board of Immigration Appeals (BIA) that denied asylum to a Malian woman who was the victim of female genital mutilation (FGM). Late last year, the BIA determined that although asylum- seekers who have suffered past persecution are ordinarily entitled to a presumption that they fear future persecution, that presumption is automatically rebutted for victims of FGM, because once the procedure has been performed it cannot be performed again. In vacating the BIA’s ruling and remanding it for reconsideration, Mukasey called the decision “flawed.” He noted that FGM is capable of repetition and that, more broadly, asylum law does not require that an individual fear the exact same form of persecution that was suffered in the past.
Mayer Brown attorney Dan Himmelfarb filed an amicus brief in the case, Traore v. Mukasey, on behalf of 23 members of Congress. The brief, which asked the US Court of Appeals for the Fourth Circuit to set aside the ruling, faulted the BIA for its conclusion that Congress intended to accord less protection to victims of FGM than is provided for victims of once-only forms of persecution, such as forced sterilization.
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