Nineteen-year-old Fauziya Kasinga said she came to the United States in 1994 to seek asylum from a grisly and sometimes deadly practice in her West African homeland of Togo -- the ritual mutilation of female genitals.

The U.S. Board of Immigration Appeals held a hearing May 2, 1996 to consider whether Kasinga should be granted political asylum. The following is a transcript.

BOARD OF IMMIGRATION APPEALS 
FALLS CHURCH, VA 
 
In Re:  Fauziya KASINGA 
 
A 73 479 695 
 
 
A hearing on the above-entitled matter was held on Thursday, May 
2, 1996, commencing at approximately 2:00 p.m., at the Board of 
Immigration Appeals, Falls Church, before:  
 
PAUL W. SCHMIDT, Chairman 
 
 
PROCEEDINGS 
 
Mr. Schmidt: Good afternoon, Professor 
Musalo. Good afternoon Mr. Martin. 
 
Mr. Martin: Good afternoon. 
 
Mr. Schmidt: This is Oral Argument in the case of Fauziya 
Kasinga, Docket Number A 73 476 695. Board of Immigration 
Appeals is sitting en bane this afternoon. Paul W. Schmidt, 
Chairman, presiding.  
 
Joining me to my right, Vice Chairman Mary Maguire Dunne, and 
Board members Michael J. Heilman and Gerald S. Hurwitz. 
Joining me to my immediate left, Board members Fred W. Vacca, 
David B. Holmes, and Patricia A. Cole.  
 
Also joining me from right to left, Board members Lauren R. 
Mathon, Gustavo D. Villageliu, Lauri S. Filppu, Lory D. 
Rosenberg, and John W. Guendelsberger. On the far right, the 
Chief Clerk of the Board, April M. Verner and our court reporters 
this afternoon, Sue Gearheart, assisted by Fortune T. Krisak.  
 
Appearing for the applicant, Professor Karen Musalo of the 
International Human Rights Clinic. Professor Musalo, would you 
be kind enough to introduce your colleagues at Counsel table for 
the record?  
 
Ms. Musalo: Yes. Yes, I would. My co-counsel, Professor Richard 
Boswell, and my co-counsel Layli Miller Bashir.  
 
Mr. Schmidt: Welcome. And appearing for the Immigration and 
Naturalization Service, David A. Martin, the General Counsel. Mr. 
Martin, would you be kind enough to introduce your colleagues 
and counsel today for the record.  
 
Mr. Martin: Yes, Mr. Chairman, I'd be happy to introduce David 
Dixon who is Chief Appellate Counsel and Dorthea Lay, Assistant 
General Counsel, and Shilpa Khagram, who is Appellate Counsel 
for the Service.  
 
Mr. Schmidt: Welcome. Before we get started, I have several 
preliminary matters to go over. Professor Musalo, I understand that 
your client has consented to this being an open hearing.  
 
Ms. Musalo: Yes, that's correct, Your Honor.  
 
Mr. Schmidt: And I was hoping to get that answer. (Laughter.)  
 
Mr. Schmidt: And Professor Musalo, you've requested and you've 
been granted an extended argument time of 30 minutes. Mr. 
Martin, you've been granted an equal amount of time. Either of you 
may reserve a portion of your time for rebuttal. But 30 minutes is 
inclusive of Board Member questioning and I will notify you when 
five minutes remain. We have a large group in here this afternoon 
and it will be easier for everybody to concentrate if the audience 
could please remain seated for the entire Oral Argument. We really 
appreciate your cooperation. Professor Musalo, you have 30 
minutes. You may proceed.  
 
Ms. Musalo: I would like to thank the 
honorable members of the Board for allowing me to appear before 
you today to argue on behalf of our client Fauziya Kasinga. I 
would also like to thank the Board and its staff for the 
accommodation to the greatest degree possible of the public and 
media interest in this case.  
 
I will argue to you today that Ms. Kasinga clearly qualifies for the 
relief of political asylum and withholding of deportation. I will 
attempt to limit my argument to approximately 20 minutes and to 
reserve 10 minutes for rebuttal. There are three points that I will 
address in making my argument that Ms. Kasinga is eligible for 
relief; they are the following.  
 
Ms. Kasinga is clearly credible and the 
Immigration Judge's ruling to the contrary, was totally unsupported 
by the evidence. Two, this Board can and should exercise its power 
of de nova review and make a ruling in Ms. Kasinga's case rather 
than remanding to the Immigration Judge for a decision. And, 
three, Ms. Kasinga has established a threat to life or freedom and a 
well-founded fear of persecution on account of her membership in 
the particular social group comprised of young women of the 
Chamba Kunsuntu (phonetic sp.) tribe. Therefore she qualifies for 
political asylum and withholding of deportation.  
 
In addition, I will argue one other point and that point is that this 
Board should resist the invitation of the I.N.S. to decide 
hypothetical cases involving female genital mutilation which are 
not implicated in Ms. Kasinga's case. The I.N.S.'s invitation to the 
Board to engage in rule making is inappropriate and the Board 
should restrict itself to the narrow issue raised by this case whether 
a prospective fear of female genital mutilation constitutes a basis 
for asylum and withholding.  
 
Mr. Chairman, is there any need for me to go over the facts in this 
case, or members of the Board.  
 
Mr. Schmidt: I don't believe so. 
 
Ms. Musalo: Okay, thank you. Then I'd like to begin by addressing 
the issue of credibility. The Immigration Judge found Ms. Kasinga 
to be not credible. Although the credibility determination of an 
Immigration Judge is accorded deference, the Judge's 
determination must be supported by the record. The Judge must 
offer a specific cogent reason for his disbelief and there must be a 
rational and supportable connection between the reasons cited and 
the conclusion that the applicant is not credible.  
 
In Ms. Kasinga's case, there was no evidence; and I repeat, no 
evidence in the record to support an adverse credibility finding. 
Not only was Ms. Kasinga consistent, asserting in both her asylum 
application and at her hearing that she fled female genital 
mutilation and forced polygamy, but she provided more 
corroboration than most asylum applicants are able to. Ms. Kasinga 
introduced into evidence two letters from her mother referring to 
her flight from female circumcision and from marriage to an old 
man. The letter also refers to the fact that the police were searching 
for her.  
 
Ms. Kasinga introduced into evidence a marriage certificate 
documenting the marriage between herself and Ebrahim Isaka 
(phonetic sp.). The certificate shows Isaka to be 45 years old and it 
lists Ms. Kasinga's occupation as a student. Consistent with her 
story, the husband's signature appears on the certificate but Ms. 
Kasinga's does not.  
 
In further support of her credibility, Ms. Kasinga introduced 
photographs showing her and Ebrahim Isaka's wife in ceremonial 
dress on the wedding day. She also submitted into evidence two 
extensive reports on female genital mutilation which confirm that it 
is practiced in Togo and that there are no laws in Togo which 
protect women against the deadly practice. Nonetheless, the 
Immigration Judge found Ms. Kasinga to be not credible. A review 
of the Judge's credibility determination will show that he 
substituted his own personal opinion and erroneous assumptions 
for a careful evaluation of the record.  
 
First of all, the Immigration Judge found Ms. Kasinga not credible 
because she testified that F.G.M. was pervasive in Togo but she 
herself had not yet been mutilated. The Immigration Judge thought 
it was not credible that she could have avoided F.G.M. if it was so 
widespread. Yet, Ms. Kasinga had clearly explained the reason to 
him. In her testimony, if you look at the transcript, you will see 
repeated references in which she explains that she had been able to 
avoid F.G.M. because of the protection of her father, a man who 
was able to ignore the cultural norms, because he was a wealthy 
and successful businessman. There was no legitimate reason for the 
Judge to disbelieve the very logical explanation that in a 
patriarchal society, a man, in this case, her father, could protect her 
from a pervasive cultural practice.  
 
Second, the Immigration Judge found Ms. Kasinga not credible 
because she testified that after June of 1993 she did not know 
where her mother was. Ms. Kasinga explained that when she 
returned home from school six months-after her father died, her 
mother was gone and her aunt had taken over the family home. Ms. 
Kasinga heard that her aunt and one of her sisters had been in 
contact with her mother; but Ms. Kasinga herself did not know 
where to find her mother after her mother was banished from the 
family home.  
 
The Immigration Judge found it incredible that Ms. Kasinga would 
not know where her mother was. Yet the Judge| never proffers a 
legally sufficient reason for finding this fact incredible. One can 
only assume that the Immigration Judge did not believe Ms. 
Kasinga on this point because that's not how family life usually 
works in the United States. In the U.S., after a father's death, a 
paternal aunt generally cannot send away a child's mother and 
prevent the child from having contact with the mother. But Togo is 
not the United States and the Judge's reliance upon U.S. cultural 
norms to judge Ms. Kasinga's credibility regarding the 
whereabouts of her mother was totally improper. There is nothing 
anywhere in the record to support a finding that Ms Kasinga's 
testimony regarding her mother was anything but truthful. In 
addition to the Judge's erroneous assumptions about Togo, he 
seized upon tangential issues regarding Ms. Kasinga's stay in 
Germany, to find her not credible. His disbelief regarding events in 
Germany were as equally unfounded as his disbelief regarding 
events in Togo. He found it beyond belief that Ms. Guergs 
(phonetic sp.), the German woman whom Ms. Kasinga met at the 
airport, would let her stay with her for two months. He found it 
incredible that Ms. Kasinga had a chance encounter with Charlie, 
the Nigerian, who sold her the passport. But the Judge gives no 
legally permissible explanation of why these events were 
incredible or unbelievable.  
 
What is beyond belief about a German woman in an airport helping 
Ms. Kasinga upon learning of her plight? As a matter of fact, the 
recent outpouring of support for Ms. Kasinga in the U.S. -- much 
of it from women who were especially touched by her story of 
flight from F.G.M. and forced polygamy, and none of whom have 
even met Ms. Kasinga, only reinforces the credibility of her story 
that this kind German woman befriended her.  
 
What is so unbelievable about her chance meeting with a Nigerian 
man who sold her a British passport? Ms. Kasinga testified that she 
was riding on public transportation in Germany when Charlie 
struck up a conversation with her. Many of us who travel abroad 
have had the experience of running into someone who is from the 
same part of the world as we are and striking up a conversation. 
The fact that Charlie subsequently sold her a passport so that she 
could travel to the United States does not make her story any less 
credible.  
 
Not one of the Judge's reasons for disbelieving Ms Kasinga were 
legally permissible. Nonetheless, Counsel for Ms. Kasinga 
submitted to this Board the affidavit of an expert on Togo 
Professor Merit Paznanski (phonetic sp.) for the limited purpose of 
establishing that the unfounded assumptions made by the Judge 
about Togo are simply false. Professor Paznanski's affidavit 
confirmed that while her father was alive he would have been able 
to protect her from the pervasive practice of F.G.M. but that after 
his death he aunt would have been able to dictate both the F.G.M. 
and the marriage. Professor Paznanski also affirmed that it was 
likely that once her mother was banished, Ms. Kasinga would 
respect her aunt's authority and not try to establish contact with 
her.  
 
Because the Immigration Judge's adverse 
credibility finding is not supported by the record, this Board should 
reverse it and find Ms. Kasinga to be credible. The I.N.S. argues 
that the case should be remanded to the Immigration Judge for him 
to make a credibility determination based on the new evidence 
submitted.  
 
However, there is no reason to remand this case to a Judge who 
ignored the evidence in the record and relied upon impermissible 
and irrelevant factors in denying credibility. It is more appropriate 
for this Board to decide the issue de novo taking into consideration 
the affidavits which were submitted.  
 
Mr. Schmidt: Professor Musalo, if I may?  
 
Ms. Musalo: Yes. 
 
Mr. Schmidt: If you're right as you argue and the credibility 
findings were totally unsupported, then is there any reason why the 
Board should look at any of the new evidence or the additional 
evidence submitted on appeal?  
 
Would we have to do that at all in your view?  
 
Ms. Musalo: My -- yes, Your Honor, my position is that the 
credibility of the applicant is established on the record as it existed 
before we supplemented it with Ms. Kasinga's affidavit and with 
Professor Paznanski's affidavit. But that for the limited purpose of 
responding to what we, feel was an illegitimate ruling by the 
Judge, we submitted additional information.  
 
Mr. Schmidt: So are you saying that your additional information is 
merely cumulative in nature? Is there anything new --  
 
Ms. Musalo: I think I 
 
Mr. Schmidt: -- in there that wasn't already approved in your view 
before the Judge?  
 
Ms. Musalo: Your Honor, the way that I would state it would be 
that credibility has been established through the consistency of Ms. 
Kasinga in telling her story and the corroboration of the two letters 
from her mother, the marriage certificate, the wedding photographs 
and-the documentation confirming the practice of F.G.M. in Togo.  
 
Of course, the additional information is useful but really the point 
is that this Board could and should find Ms. Kasinga credible on 
the record that was before the Immigration Judge without 
considering the additional evidence.  
 
Mr. Schmidt: I'm asking the questions because both parties devoted 
a significant amount of briefing time to the question of whether we 
can consider the evidence and as I hear your argument, you're 
arguing that the answer's clear even without that evidence.  
 
Ms. Musalo: Yes. Yes. Yes. 
 
Mr. Schmidt: Okay. Thank you. 
 
Ms. Musalo: One other point that I'd like to make about the remand 
is that the remand of this case for the Immigration Judge to 
consider the new evidence is simply that the I.N.S. has taken the 
position -- a blanket position -- that the Board cannot accept and 
consider new evidence but must remand to the Immigration Judge. 
But the I.N.S. really cites no cases which support this assertion; 
and to the contrary, there are a number of cases both at the Board 
and Federal Court level as well as in a well respected treatise 
Gordon and Mailman, (phonetic sp.) that say to the contrary.  
 
Now, clearly, the preferred practice at the Board is for the party 
wishing to submit additional evidence to make a motion to remand 
or a motion to reopen, but this Board certainly has accepted and 
considered new evidence and I just wanted to highlight that 
particular point.  
 
Now, I would like to turn to the question of Ms. Kasinga's 
eligibility for a requested relief.  
 
Although the I.N.S. appears to agree that if Ms. Kasinga is 
credible, she qualifies for relief, it's analysis is not consistent with 
developing asylum jurisprudence. In other words, I agree with the 
end destination but not with the route taken to get there. Permit me 
to share my analysis with you. vail in a claim for asylum or  
 
In order to prevail in a claim for asylum or withholding of 
deportation, the applicant must meet three requirements. She must 
establish a type of harm. For asylum, the harm is persecution. For 
withholding, the harm is a threat to life or freedom. She must show 
the requisite likelihood of harm. For asylum, past or a well-
founded fear of future; for withholding, a more likely than not or a 
clear probability; and she must show that the persecution or the 
threat to her life or freedom is inflicted because of one of the five 
enumerated grounds. The race, religion, nationality, political 
opinion, or membership in a particular social group.  
 
As to the first element that the harm must constitute a threat to life 
or freedom or rise to: the level of persecution, there is no doubt 
that female genital mutilation as practiced among the members of 
Ms. Kasinga's tribe, clearly constitutes a threat to life or freedom 
and a fortiori constitutes persecution. The U.N. Handbook also 
affirms the concept that a threat to life or freedom always 
constitutes persecution.  
 
The I.N.S. argues that in order for a harm such as F.G.M. to 
constitute persecution, the harm must be inflicted with a punitive 
or malignant intent. In its brief, the I.N.S. contends that those who 
inflict F.G.M. generally have benign motives, which according to 
the I.N.S. complicates the characterization of F.G.M. as 
persecution. This argument is simply wrong. In stating that in order 
for harm to be persecution, it must be inflicted with a punitive or 
malignant intent, the I.N.S. confuses and conflates the concept of 
persecution with the on account of nexus requirement of the 
statute. The severity of a harm goes towards a harm's 
characterization of persecution or not while the intent or 
motivation of the persecutor goes toward the on account of issue.  
 
The cases which the I.N.S. itself cites 
demonstrates that this is clearly the case. For instance, the I.N.S. 
cites Shalong v. INS and Osaghae v. INS, both of which discuss 
persecution as the infliction of harm for racial, religious, or 
political reasons. Though the intent is the intent that goes to on 
account of. Thus, whether or not -- the question of intent goes not 
to the issue whether a harm is persecution or a threat to life or 
freedom within the meaning of the statute, but to the question 
whether the fear of harm in on account of one of the enumerated 
grounds.  
 
The Supreme Court held in INS v. Zacarias that in order to 
establish that the harm is on account of one of the enumerated 
grounds, the applicant must show that the persecutor intended to 
inflict the harm because of the applicant's race, religion, 
nationality, political opinion, or membership in a particular social 
group.  
 
It is clear from Zacarias that it is not necessary that the persecutor 
act with a-malignant or punitive intent. It is only necessary that the 
persecutor targets his victims because of one of the five 
enumerated grounds.  
 
If a punitive or malignant intent were required to prove persecution 
on account of the subjective beliefs of a persecutor, no matter how 
misguided, could deprive the victim of refugee protection. The 
results would be cruel and absurd and I would like to give you an 
example of what I mean by that.  
 
For example, imagine a society where the majority race believed 
that the minority race were inferior; and that they could only be 
purified by physical deprivation and punishment. Imagine further 
that the minority race were brainwashed into believing that the 
deprivation and punishment was for their own good. Imagine a 
particular victim from the minority race who did not believe she 
needed such punishment and purification. Would her claim of 
persecution on account of race be defeated by the persecutor's 
assertion that his intentions were benign rather than punitive or 
malignant?  
 
Now, let us bring the example closer to home. Imagine a society 
where the men believe that the women are inferior and tend 
towards promiscuity; and that they can only be controlled and 
purified by cutting out their genitals. Imagine further that the 
women are brainwashed into believing that this mutilation is for 
their own good. Imagine a particular female victim who did not 
believe she should be subjected to such mutilation. Should her 
claim be defeated by the assertion that the mutilators only wish her 
well? I think not.  
 
Whether or not the mutilators in Togo act with a benign intent, 
which I would question because there is much in the record which 
shows the societal context in which F.G.M. takes place, but I don't 
want to use up my time discussing those at this point; but whether 
or not the mutilators in Togo act with a benign intent, the harm 
which they inflict is persecution and in Ms. Kasinga's case it is 
inflicted on account of social group membership as defined by 
gender and tribal affiliation.  
 
Mr. Schmidt: Ms. Musalo, Professor -- hasn't the Government 
agreed with you that in this particular case that even if the intent 
were benign, it would be persecution? That's how I read their brief.  
 
Ms. Musalo: Chairman Schmidt, I agree with you but in this case, 
the I.N.S. has made a lot of fanfare around the issue of creating a 
framework and I disagree with them in that they want the 
framework to extend to cases and facts that are not implicated in 
this case. But I do believe --  
 
Mr. Schmidt: But didn't you argue that we didn't have to decide the 
whole framework to answer this case?  
 
Ms, Musalo:; That's correct but what -- the reason that I feel it's 
important to address the analysis that is appropriate in this case is 
because of my interest in developing a framework that's 
appropriate and consistent wit asylum jurisprudence. And I believe  
 
Mr. Schmidt: So -- so we should accept -- we should go beyond 
what we need to do for your framework but not for the 
Government's framework?  
 
Ms. Musalo: No, Chairman Schmidt, what I'm saying is that in 
analyzing Ms. Kasinga's case, we can draw on traditional 
principles of asylum jurisprudence and I would like to articulate 
those so that we don't end up with simply a result in her case; but 
it's very clear what the-analysis is, and I really think this conflation 
or making the issue of persecution require a malignant or punitive 
intent is a very wrong direction to go and that I feel it's important 
to clarify it in the context of this case.  
 
So I do not invite you to go beyond what you need -- where you 
need to go. But I simply encourage you to look at the definition -- 
it's the Refugee Act definition and look at it in the context of 
developing asylum jurisprudence.  
 
Ms. Rosenberg: Well, can't -- Mr. Chairman, if I may -- Counsel, -- 
are you suggesting that it doesn't matter what the motive is that is 
triggering the infliction of harm on your client?  
 
Ms. Musalo: I'm not suggesting -- what I'm suggesting is twofold: 
that in order to determine whether or not a harm is persecution 
within the meaning of the statute, we don't look to motive; we look 
to the severity of the harm and the question of motive or intent 
goes to the on account of analysis of which there's a clearly 
developing line of cases which I think the Supreme Court made a 
large contribution to in the Zacarias case, and that Zacarias does 
not require a punitive or malignant intent.  
 
It simply requires that the persecutor be motivate or chooses or 
targets the victim because of their identification or their belief or 
their -- put it this way targets them because of their beliefs or status 
as defined by the five enumerated grounds.  
 
Ms. Rosenberg: But you would have no objection in this case if we 
were to find that the imposition of F.G.M. was a form of 
subjugation of women, would you not?  
 
Ms. Musalo: I would have no problem with that and the only point 
that I'm making is that the way in which the definition of 
persecution has developed in asylum jurisprudence, it does not -- 
that part of the -- that there are three prongs and that part of the 
prong does not require a finding of malignant or punitive intent. 
That's the only point that I am very -- very -- trying to be very clear 
about.  
 
Mr. Filppu: Counsel; does your argument depend on the way in 
which this is performed? There is some indication in the record 
that in a very small percentage of cases, there may be a surgical 
procedure performed in what we might consider a hospital or some 
kind of clinic under anesthesia. Would that matter to your 
argument about whether it amounts to persecution -- whether the 
harm is severe enough?  
 
Ms. Musalo: If we look at the facts of what female genital 
mutilation is generally understood to be, that one of its mildest 
forms is the removal of the entire clitoris of the woman, which the 
analog in a male would be the amputation of most of the penis, and 
clearly whether you do that under anesthesia or not, it is 
persecution of the individual.  
 
Mr. Filppu: So the way in which it -- the brutality of the act in its 
most common form doesn't really matter to your case?  
 
Ms. Musalo: The -- well, it -- the brutality matters. It adds to the 
fact that this is such an egregious practice but I don't think you 
need to have the extreme ends of it to say that it's persecution.  
That would really be my response.  
 
I know I'm running out of my time and so I want to make one or 
two more points so that I can save at least five minutes for rebuttal.  
 
Mr. Schmidt: You have about 10 minutes left.  
 
Ms. Musalo: I have about 10 minutes? Well, thank you. You're 
keeping better track that I am. I appreciate that.  
 
Now, I wanted to get into the on account of issue and to say that in 
Ms. Kasinga's case, the harm is inflicted on account of social group 
membership as defined by gender and tribal affiliation. As this 
Board held as early as 1985, in Acosta, a social group may be 
defined by characteristics which are either immutable or so 
fundamental that the individual ought not be required to change 
them.  
 
The Board in Acosta specifically mentioned gender as a paradigm 
of the type of immutable characteristic which could define a social 
group. Both the Third and the Eighth Circuit Courts of Appeal 
have affirmed that persecution inflicted because of gender can 
constitute social group persecution. The Third Circuit affirmed this 
principle in Fatin (phonetic sp.) and the Eight Circuit in Safai 
(phonetic sp.).  
 
The Immigration Judge appeared to be oblivious to Acosta and the 
line of cases accepting gender persecution as social group 
persecution. Instead, he compared Ms. Kasinga' case to Matter of 
Chang, which is not a gender case. Matter of Chang involved the 
claim of a male applicant who did not want to submit to coercive 
family planning practices in the People's Republic of China, which 
were imposed on men and women alike. In Chang, the Board ruled 
that the men and women who disagreed with coercive family 
planning did not constitute a particular social group.  
 
Because Matter of Chang involved a practice which was inflicted 
on men and women alike, it is inapplicable to a claim involving 
persecution which is inflicted solely on the basis of gender. F.G.M. 
is inflicted only on women. There is no analogous procedure 
inflicted upon men.  
 
Existing case law clearly supports the granting of relief to Ms. 
Kasinga. The harm of F.G.M. which she fled is a threat to her life 
or freedom and, undoubtedly, constitutes persecution. It is inflicted 
because of her social group membership as defined by the 
immutable characteristics of gender and tribe.  
 
Furthermore, the evidence demonstrates that this harm is more 
likely than not should she be returned to Togo. Ms. Kasinga is a 
young woman in a patriarchal society with no one to protect her. 
The powerful man who is legally her husband demands that she be 
mutilated. There is little doubt about the fate that awaits her in her 
home country. The Board should reverse the Immigration Judge 
and grant her the requested relief.  
 
Finally, I have one last point which I feel is critical to make. The 
case before you involves a narrow legal issue whether a woman 
who will be subjected to F.G.M. and forced polygamy qualifies for 
relief under the Refugee Act. The I.N.S. is not content to have the 
Board decide this narrow issue. In his brief and in public 
statements, the General Counsel has proposed that the Board 
address not only Ms. Kasinga's eligibility but that it develop a 
framework to determine the eligibility of potential claimants whose 
cases pose distinctly different facts.  
 
Mr. Martin invites the Board to rule that women who have already 
suffered mutilation are not eligible for relief. He also asks the 
Board to rule that women who are subjected to ostracism or 
economic pressures for refusing F.G.M. are not eligible. The 
General Counsel's request is inappropriate. A judicial body such as 
the Board has the role of deciding a case on the record before it.  
 
Ms. Kasinga had not already been mutilated. Nowhere in the 
record is there the least evidence that she could resist and simply 
be subjected to ostracism or economic pressure. Therefore, these 
issues are not before the Board. It would constitute an injustice to 
women asylum seekers who have been mutilated or to women who 
face ostracism or economic pressure if the Board were to foreclose 
their claims without these women having the opportunity to 
develop their records and make the cases before this Board.  
 
The Board should resist Mr. Martin's invitation to decide all the 
F.G.M. cases which are not before it. The Board is not a legislative 
body; it is a judicial body and it performs its functions best when it 
remains true to its adjudicatory role.  
 
Thank you very much. 
 
Mr. Schmidt: Thank you, Professor Musalo. You have five minutes 
left for rebuttal.  
 
Mr. Martin, you have 30 minutes, you may proceed.  
 
Mr. Martin: Thank you, Mr. Chairman. I would like to reserve 
three minutes of my time for possible --  
 
Mr. Schmidt: All right 
 
Mr. Martin: -- response. 
 
Mr. Schmidt: I'll make sure and notify you.  
 
Mr. Martin: Thank you. Mr. Chairman and members of the Board 
of Immigration Appeals, I do appreciate the opportunity to appear 
before the newly expanded Board on what I understand is the first 
time that you have met en bane. It is an appropriate occasion to do 
that. This case does present novel and difficult legal issues. It asks 
the Board to apply the law of asylum and of withholding of 
deportation to cultural practices of wide application in the home 
country. This is not a case involving the classic situations of 
persecution that are much more familiar in the Board's docket and 
the kinds of cases that the Service confronts.  
 
Classic persecution cases involving actions by dictators, for 
example, against political opponents, or particular actions that are 
directed against minority groups because of a campaign of ethnic 
hatred. This, instead, asks you to consider a practice of wide 
application within the culture of certain parts of the world.  
 
It is our submission as we've laid it out in the brief and as I will 
develop more fully in my remarks here, it is our submission that 
female genital mutilation is the kind of practice that can provide 
the basis for asylum in carefully identified circumstances. We 
submit that it should be judged persecution even if the intention of 
the actor who was subjecting the individual to -- or who might 
subject the individual to female genital mutilation or F.G.M. -- 
even if those motivations are subjectively benign.  
 
Now, ordinarily, the case law establishes quite clearly that 
persecution requires an intent to inflict harm or punishment. Ms. 
Musalo suggests that this is some sort of doctrine that we have 
somehow cooked up in this case in order to establish an exception 
in these circumstances. But our brief makes very clear that there is 
abundant case law that describes the concept of persecution as 
including a notion of malignant or punitive intent.  
 
The Board itself in the Acosta case which Ms. Musalo has relied 
on very significantly in her own presentation, describes the idea of 
persecution and it says, two significant aspects of this accepted 
construction of the term persecution were as follows; and I'll only 
read the first one. Harm or suffering had to be inflicted upon an 
individual in order to punish him for possessing a belief or 
characteristic a persecutor sought to overcome. That's consistent 
with the kinds of statements that we find in other decisions as well 
that suggest that ordinarily there is a requirement that the 
persecutor intend to inflict harm or punishment.  
 
Now, we suggest in this particular case -- we do suggest that that 
doctrine should apply in most circumstances. That is a hallmark for 
persecution; that is part of what must be looked to, to decide 
whether severe practices have the special qualitative characteristic 
that marks them as persecution. Ordinarily, that should happen. 
But we do suggest in our brief that there are certain kinds of 
practices that are so extreme that they should be regarded as 
persecution whatever may be the frame of mind of the individual 
who is engaging in the practice or subjecting the individual to that 
practice.  
 
We go further in our brief and suggest, just to outline our argument 
here, we do suggest that if the facts as developed upon remand 
suggest that Ms. Kasinga would be subjected to this practice that it 
could be held to be persecution on account of membership in a 
particular social group. We think the appropriate way to understand 
the social group in this particular case is not as broad as what Ms. 
Musalo has suggested; but, instead, should be considered young 
women of the Chamba Kunsuntu tribe who have not been 
circumcised in accordance with tribal custom. If the facts establish 
on remand that she would be subjected to this practice, we believe 
it would be performed on account of her membership in that 
particular social group.  
 
Now, we also believe there are important limits on this doctrine. 
As we have suggested that the Board should understand the 
application of asylum law to these kind of cases, it would not mean 
that all women who come from countries where female genital 
mutilation is practiced would be entitled to persecution. I believe 
that the way Ms. Musalo has set forth the doctrine that essentially 
that would be the case; that any woman who had been subjected to 
this in the past would be -- would qualify as a refugee in this 
country. I'll develop some of those limitations further later on.  
 
We believe it's very important to make sure that the doctrine is 
established to shelter here in.this country those people who risk 
forcible subjection to the practice upon return. The protection 
should focus in that fashion.  
 
Mr. Schmidt: Excuse me, Mr. Martin -- 
 
Mr. Martin: Yes. 
 
Mr. Schmidt: -- if I may -- does this case involve any claim of past 
persecution at all in any way?  
 
Mr. Martin: This case does not, to my knowledge but we believe 
it's important here to establish -- to deal with the full range of 
issues here and it's important to understand the implications of a 
particular interpretation.  
 
Mr. Schmidt: But I mean this issue isn't in the case, right?  
 
Mr. Martin: That issue is not in the case. That's correct.  
 
Mr. Schmidt: But you think we need to think about that issue in 
order to understand what we're doing in this case?  
 
Mr. Martin: Obviously, the Board -- we-would expect that the 
Board has in mind the possibility of issuing a precedent decision -- 
that's why the Board is gathered en bane.  
 
Mr. Schmidt: That's what both of you are asking us to do, I take 
that  
 
Mr. Martin: And in that case, obviously, the precedent decisions of 
the Board have wide application and are very important for 
providing guidance for Immigration Judges and for Asylum 
Officers in deciding these cases in the future. It would help to 
consider, at least here in this particular setting, whatever the Board 
may do in its opinion, to consider its application in other sorts of 
circumstances.  
 
And I really want to emphasize, we're not talking here necessarily 
about hypotheticals, as Ms. Musalo has suggested. It's very 
important in this case to recognize that the Immigration Judge 
found Ms. Kasinga not credible. We believe that that particular 
ruling should receive another look once the Board has provided 
greater elaboration with the --  
 
Mr. Schmidt: Do you agree that she was -- is she credible or not 
credible in your view?  
 
Mr. Martin: Well, we believe that that particular issue should be 
given another look once -- because it may have been influenced by 
an incomplete understanding of the doctrine as it should apply in 
these circumstances.  
 
Mr. Schmidt: But presumably when we're done with all this, the 
Board will understand the doctrine -- don't we have de novo review 
power and couldn't we just look at the record and complete this 
case? Why would we need to return that to a Judge?  
 
Mr. Martin: But you do have that power -- yes -- to make a de 
novo determination based on what was before the Immigration 
Judge. We believe that even with elaborated doctrine here that the 
matter should receive another factual look before the Immigration 
Judge. There are inconsistencies in the story. The initial asylum 
application, for example, stated that she would risk being married 
when she returned. In fact, her submission now is that she has 
already been married to the individual involved.  
 
Ms. Rosenberg: Mr. Martin, before you proceed into those alleged 
inconsistencies that may or may not be in the record, let me just 
ask you this question. I understood the statements you made a 
moment ago to suggest that this Board should consider whether or 
not the impact of our ruling in this individual case would impact 
other cases to follow and how it would impact other cases to 
follow; and I want to ask you with regard to -- at least what I 
understood to be your suggestion -- that would it make a difference 
to the Service -- are you arguing that we should reach a different 
result if, for example, we would find that this practice-was 
persecution and that it would have been persecution on anyone 
who was subjected to it? And in light of that, I'd like you to 
address whether or not you are asking us to take a position directly 
at odds with Bolanos-Hernandez and other Circuit Court cases 
which have found that the fact that a broad group of people may be 
able to benefit from our protection minimizes in any extent the 
degree of their persecution or whether that persecution is 
protected?  
 
Mr. Martin: Yes, we're not asking you to reject that particular 
position. It's a matter of defining the particular -- the doctrine as it 
applies in this particular case and part of that is a matter of 
understanding how it might apply in different factual situations as 
they might be developed in this particular case if the matter is 
remanded as we are suggesting that it should be. It's not entirely 
clear -- it was not a very ample record that was developed. 
Therefore, Ms. Musalo and her brief has made a great deal out of 
the many places in the transcript where it is recorded as inaudible, -
- we think there are a variety of reasons -- the inconsistencies in the 
record, in addition to the insufficiency of the transcript that we 
have, that would justify a remand.  
 
Now, she has also suggested -- she submitted  
 
Ms. Rosenberg: Aren't you really asking, Mr. Martin, this Board to 
give the Immigration Service another chance to defeat a case that's 
being presented below?  
 
Mr. Martin: Well, we're not asking necessarily for that. I believe 
that it is Ms. Musalo's suggestion primarily that there are grave 
deficiencies in the record. Her initia suggestion in the Board was 
that it could -- in the brief was that it could be -- those gaps could 
be filled by looking at the extensive affidavits that she has 
submitted with her brief here. It is our submission that -- first of 
all, and primarily, we hope that the Board will provide guidance on 
considering these difficult and challenging legal issues, and that we 
believe that the entire record of the case, because of various 
deficiencies in the record itself in these circumstances should ^- it 
should go back to the Immigration Judge and there should be 
another look there.  
 
Now, there may be many different things that develop upon 
remand there.  
 
Mr. Schmidt: So I assume if we -- and the case has been pending 
for quite a while -- so I assume if we sent that back then the 
Government has a specific position that she's not credible that you 
present and document at that hearing as something that we couldn't 
do here?  
 
Mr. Martin: Well, I mean there are some other -some other items 
that we believe should be looked at and that would benefit from 
additional development; such as the inconsistency between the 
asylum application and the statements on the record such as some 
further questions about  
 
Mr. Schmidt: Do you think those would 
be sufficient to deny a claim -- that 
 
Mr. Martin: Well, if -- only 
 
Mr. Schmidt: -- those are such a magnitude that those would be a 
ground to deny the claim -- assuming there is an inconsistency is it 
really material to what we're talking about here?  
 
Mr. Martin: Well, there could potentially be some that -- that are of 
that character -- I mean it clearly -- we are not suggesting that any 
inconsistency about any part of the story would be a reason to 
reject her claim. Obviously, the focus should be on what's likely to 
happen to her; what is the relationship within her family; whether 
there are other possible circumstances under which she could find 
protection in the home country.  
 
But there are matters of record here now that do raise genuine 
credibility issues. We are not saying that we are committed to an 
ultimate ruling that she is incredible. But we do think they merit 
further inquiry. Let me provide --  
 
Ms. Rosenberg: Mr. Martin, weren't you -- wasn't the Service 
given an opportunity to raise all the matters that you just suggested 
as to whether this really-would happen to her? What her 
relationship was with her family? And so on? In the first instance?  
 
Mr. Martin: Those matters were raised and the Immigration Judge 
ruled that she was not credible. That's exactly what we're arguing 
for.  
 
Ms. Rosenberg: And then isn't it for us to make the determination 
of whether or not we want to,,uphold that credibility finding?  
 
Mr. Martin: It is for you to do that but ordinarily in most 
circumstances when additional evidence is suggested like this or 
when there is doubt cast upon the credibility finding if the Board 
were to find that -- on the credibility finding of the Immigration 
Judge -- the ordinary course would be for it to be remanded. 
Particularly in a case with this thin a record as Ms. Musalo herself 
has suggested. She has suggested a number of additional avenues 
of inquiry; and I would point out to the Court, there are some 
additional matters in the record itself that were not explored before. 
We didn't have to raise those in great detail; the Judge was already 
-- the Judge did rule on the credibility in that fashion.  
 
Mr. Schmidt: -- 
 
Mr. Martin: But there is an additional matter that's attached to the 
asylum application itself, for example. It's in French. It was not 
translated-before. But it seems to even suggest on a basic element 
of her case, and this deserves some further examination, that's 
essentially a missing person notice and it is -- it says, Mr. Kasinga 
is looking for his daughter who left Togo in December of 1994.  
 
Now, there may be many explanations for that but that's a part of 
the record that Ms. Kasinga herself had added into the record. That 
at least requires some further inquiry as to the situation of her 
father.  
 
Mr. Schmidt: Well, two questions, Mr. Martin. First, my reading of 
the record is that document was there when your Trial Attorney 
tried the case so that that could have been a subject far cross-
examination. I don't remember in reading the record that there was 
any mention of that. Is that correct?  
 
Mr. Martin: That is correct. But we don't have to call attention to it 
for the Judge to take it into account. The Judge did say there was 
lack of consistency and -  
 
Mr. Schmidt: But then I also read your brief as -maybe I'm 
misreading it but I read your brief as disassociating yourself to a 
large degree from the Judge's not only legal rulings but also 
credibility rulings.  
 
Mr. Martin: Here's out -- here was our central  
 
Mr. Schmidt: If I misread that part of your brief?  
 
Mr. Martin:  Yes. Our central position-is -- to deal with the legal 
questions which we believe are essential for the Board's 
consideration here en bane in these circumstances. That is our 
central submission. We believe in light of that it is appropriate to 
remand and to consider it. We would be happy to have the Judge 
take another look at the credibility issue, and, as I say, we are not 
asserting all out that under any circumstances she should be found 
incredible.  
 
On the other hand, it's not a nullity. The Immigration Judge who 
heard the case for several hours, who had her on the witness stand, 
found questions about the credibility. Now, maybe on further 
examination those could be -- could be dealt with.  
 
Mr. Schmidt: Why couldn't we examine that? I have the transcript 
here.  
 
Mr. Martin: Well, I mean, it is -- it is within your power to do that. 
We are submitting that it is the better course under these 
circumstances to establish a clear' framework of legal doctrine and 
because -- especially because of the novelty and complexity of 
these issues, to resubmit it to the  
 
Mr. Holmes: Mr. Martin, there were three elements as I read them 
to the Immigration Judge's finding regarding a lack of credibility. 
One was internal inconsistencies which you've addressed. There 
were two other things you referenced. One was a lack of rationality 
of her story? And the other was the inherent lack of inherent 
persuasiveness of her story. What's the Government's position with 
regard to those other two elements of the Immigration Judge's 
adverse credibility finding? Do you find that there's something 
irrational about this story or something inherently unpersuasive 
about this story aside from the questions of what may have been 
some factual inconsistencies?  
 
Mr. Martin: Well, I mean I think to some extent those may address 
the factual inconsistencies to the extent that they could be more 
fully informed by their more complete understanding of practices 
in that society and of differences of practices within that particular 
culture and that perhaps is another reason why those ought to be 
looked at.  
 
Mr. Holmes: But there is a fair amount of background evidence 
submitted before the Immigration Judge regarding this practice and 
regarding this practice in Togo. I mean, when you look at that 
background evidence and this applicant's story, is there a lack of 
rationality or a lack of inherent persuasiveness to what she says?  
 
Mr. Martin: Well, there are questions about the persuasiveness here 
which would derive from the inconsistencies including the 
document that they submitted that seems to suggest-that Mr. 
Kaninga is still -- is still alive.  
 
Mr. Holmes: So your point though goes back to inconsistencies in 
her story.  
 
Mr. Martin: That would be -- that would be the central element. 
And again, I suggest that the appropriate course is for this to be 
remanded for another close look in light of the greater 
amplification -- but we certainly do not believe that the Board 
should act here upon the basis, in any way whatsoever, of 
affidavits that have been submitted with the Board.  
 
Ms. Musalo cites several cases where the Board has occasionally 
taken into account a document that was  
 
(OFF THE RECORD) 
 
(ON THE RECORD) 
 
Mr. Martin: -- submitted only upon appeal. Those have been very 
limited circumstances. Because there have been circumstances, for 
example, where it was a Library of Congress document, where it 
was a document where the Board said there could be no question 
about the authenticity of it. It would extraordinary for the Board to 
rely upon affidavits filed by someone who's been found not to be 
credible by an Immigration Judge and to suggest that that in itself 
somehow cures the finding of credibility.  
 
Ms. Rosenberg: I'm glad - 
 
Mr. Martin: We believe there should be a remand for another look 
at thin.  
 
Ms. Rosenberg: I'm glad you're raising that, Mr. Martin, because 
disregarding for a moment the affidavit of the applicant, what 
objections do you have -- is it the Service's position that Professor 
Paznanski's affidavit is not to be believed either on the grounds 
that he shouldn't have -- doesn't have the credentials that are valid 
to establish that he's an expert or -- I'd like to know exactly what it 
is that you object to that would make his affidavit less than 
competent evidence that we should review?  
 
Mr. Martin: Well, this is clearly the kind of information that could 
have been presented before -- that should have been if they wanted 
to do it. They have in no way complied with the requirements of a 
Motion to Reopen, no shown why this was unavailable to begin 
with. Moreover, this is exactly the kind of situation where we 
would like an opportunity to test it through cross-examination. We 
think that we're entitled to that before the Board would rely on it. 
And he may very well be a fine expert on that. I am no trying to 
cast any doubt on him but I have not met him. All I know from him 
is what -- we have on the cold paper.  
 
Now, I would like to return to the legal argument because that 
really, I believe is crucial here. We do submit that there are issues 
of credibility that should be addressed on remand. But on the legal 
doctrine, we -- it is our submission -- as I was indicating earlier -- 
that-persecution usually means deliberate infliction of suffering or 
harm. It's often equated with punishment and I have provided with 
you some -- provided you with some quotes from Circuit Court 
decisions and also from the Board's own decision such as in 
Acosta.  
 
We believe, however, that with a -- we agree with that as the usual 
standard for judging whether or not a particular practice is 
persecution. But for a small category of cases, that particular factor 
should be overridden. When the practice is so extreme as to shock 
the conscience of a great part of the world community and of the 
people in the receiving society, then the victim's perspective must 
predominate and her perception of the practice as the infliction of 
suffering or harm or punishment should prevail.  
 
Now, if the facts as established on remand suggest that she would 
be subjected to this, we believe that female genital mutilation is 
one of the most extreme forms of this practice certainly should be 
held to meet this test. We recognize that a shock the conscience 
test may be a difficult one. It is not -- it does not give precise 
guidelines. It is meant to set the bar high. It's not just any practice 
that arouses a certain amount of objection in the receiving society.  
 
We believe there are also certain objective indicia that could be 
looked to and in this particular case, we've cited in our brief, and so 
has Ms. Musalo, a wide variety of international documents that 
have condemned the practice. This has been an objective of U.S. -- 
of human rights diplomacy for many years to help curtail the 
practice, to condemn it in international forums like the Beijing 
meeting last year.  
 
And we think that although there may be some difficult cases to fit 
within that particular standard, there can be no doubt that this is an 
extreme practice and it has been judged as such by the world 
community.  
 
Mr. Holmes: Mr. Martin. 
 
Mr. Martin: Yes 
 
Mr. Holmes: At that point in your brief, you also cite again to 
Osaghae and you note that it is imposed, "for reasons that our 
country does not recognize as legitimate." But I can't find in the 
Government's brief where you articulate what the Government's 
position is as to what the reasons are that F.G.M. is imposed. Does 
the Government have a view as to why F.G.M. is imposed?  
 
Mr. Martin: Well, no. I mean, it is part of a cultural practice there. 
It's not necessarily for us to try to justify. We are trying to submit -
-  
 
Mr. Holmes:- Well, I'm not asking you to justify it. I'm asking you, 
does the Government have a position as to why this cultural 
practice is imposed?  
 
Mr. Martin: -- no, we -- we do not. But we -- we are at a loss to 
come up with a reason that would be regarded as legitimate and -- 
and that's another reason why this particular circumstance -- the 
practice should be regarded a meeting the threshold of -- of 
shocking the conscience.  
 
Mr. Holmes: Well, some of the background evidence in front of the 
Immigration Judge, for example, characterize F.G.M. as a form of 
sexual oppression based on manipulation of women's sexuality in 
order to assure male dominance and exploitation. Does the 
Government disagree with that?  
 
Mr. Martin: Well, we indicated in our brief that -- that there are 
important sociological insights and descriptions of that kind. We 
do not think that it's necessary for us to take a position on that one 
way or another. We suggest in particular that we are not -- that the 
Board is not required to analyze the practice in those particular 
terms. Certainly, there's an element of that -of exactly what that 
description is.  
 
-- and again, it's our position that there is no particular reason that 
our society is prepared to regard as legitimate -- that's entails it 
even a practice.  
 
Mr. Holmes: But if I understood what you just said at the end 
there, there is an element of sexual oppression to assure male 
dominance that the Government will agree with that?  
 
Mr. Martin: Well, yes, sociologists have describe it in that way. 
That could be a particular element of it. We do not think though 
that -- as we indicated in our brief -- that the refugee definition or 
the asylum provisions that we're looking at here require analysis at 
that particular level. It's sufficient to find that the practice is a 
severe bodily invasion and that it rises to the level of meeting the 
threshold here so that even if it's done with subjectively benign 
intent, it should be regarded as persecution for purposes of the 
asylum standard.  
 
Mr. Holmes: Well, I understood Professor Musalo to argue that her 
client's claim could be found to come within the refugee definition 
without the Board having to reexamine or overrule or modify 
Matter of Chang. Is that also the position of the Government?  
 
Mr. Martin: That is the position of the 
Government. Yes, we believe this is distinguishable from Matter of 
Chang.  
 
Ms. Dunne: Even though you're defining the social group by the 
act of persecution itself?  
 
Mr. Martin: No, we're not defining the social group by the act of 
persecution itself. We're defining the social group by the objective 
characteristics of the young women who have been uncircumcised 
in the -- in the -- within that particular tribe.  
 
We think that Matter of Chang can be distinguished really on three 
important grounds. First of all, the Board was prepared to accept in 
Matter of Chang that the basic underlying policy -- and we 
certainly do not challenge it -the basic underlying policy of 
controlling population in China, the most populous country of the 
world, was a legitimate purpose, an underlying legitimate purpose. 
As I've indicated, we see no purpose that our society is prepared to 
regard as legitimate in these particular circumstances.  
 
Moreover, Matter of Chang -- the decision -- the practice was 
judged to be applied evenhandedly throughout the society. Here 
this is a practice that it seems to be applied only within certain 
ethnic groups; applied only in certain based on certain 
characteristics of both gender and tribe within Togo. And, thirdly, 
and importantly, -- in Matter of Chang, there were potentially other 
ways in which someone could comply with the law and have only 
one child in the family. We suggest here, -- and this is an important 
point that I have not really had a chance up till now to emphasize, -
- we suggest here that this kind of protection should apply in these 
circumstances for people who don't have a choice, who can 
establish that the would be forcibly subjected to this upon return. 
There is no alternative.  
 
Now, that's exactly why I think it is important to consider the kinds 
of matters that Ms. Musalo rejected as hypotheticals for as dictum 
in our submission. It is -- the asylum protection should be there for 
people who would be subjected to this practice against their 
consent. If there are other alternatives for protection within the 
country, then that's a matter that probably should be developed 
further on remand but the Judge made a specific finding on that 
and, in any case, -- then there are other forms of protection and it 
would not justify a finding that there is a well-founded fear of 
persecution -  
 
Mr. Filppu: If I may follow up, Counsel, on a question that the 
Vice Chairman asked with regard to the social group definition that 
you have offered. It does seem that there is some element of 
defining the social group against the persecution, at least in terms 
of the way I read the briefs of both parties. And I asked in that 
regard for what other societal purpose does this particular social 
group that you've defined exist? You said it's not defined against 
the persecution. For what other purpose does the society recognize 
that group? The one you've defined.  
 
Mr. Martin: Well, no, I -- I mean I -- perhaps I misunderstood the 
earlier question but it's not -- it's not defined simply in terms of the 
practice and those who oppose the particular practice. That was a 
matter that was -- an issue that was raised in Matter of Chang. In 
theme particular circumstances -- it is -- it is a group that has social 
and behavioral reality and it happens to be the important 
characteristic that is picked out -- in certain circumstances where 
this happens -- that it is picked out as the basis for visiting this 
particular practice on the individuals. It's -- it is under the 
submissions here and if they're found to be borne out on remand, it 
is visited upon young women of this particular ethnic group who 
have not been circumcised in accordance with tribal custom.  
 
Ms. Dunne: But the circumcision is critical to definition of the 
group. I mean, you're not including in group women who have 
been circumcised. Just the uncircumcised.  
 
Mr. Martin: Well, that's right. In these particular circumstances, 
yes. The practice -- the persecution would happen on account of 
their membership in that particular social group. Now, the practice 
that -- let me finish one earlier point and come also to -- to the 
issue about -- about past -- people who have been subjected to this 
in the past.  
 
I mentioned that there may be other possibilities for protection 
elsewhere in the country. That's an issue that should be explored. 
We want to protect people who would be forcibly subjected to this 
practice if they will return to their home country; but if they have 
an alternative mode of protection within that country, then that's a 
relevant basis as cases like Matter of Fuentes establish for --  
 
Ms. Rosenberg: What's your view of the standard of the -- what is 
your view of the standard or obligation that would be imposed 
upon an applicant to show that that individual would not be subject 
to this kind of harm or mutilation on a countrywide basis? What 
are you proposing that we adopt?  
 
Mr. Martin: Well, I mean that's 
 
Mr. Schmidt: Mr. Martin, before you answer, you're at the five 
minute mark now.  
 
Mr. Martin: Okay. Fine. 
 
That's a clear example of the kind of situation that should be 
answered by country conditions information; could be developed 
from human rights reports from the State Department Country 
Report and also whatever light can be she upon it by the testimony 
of the individual or anybody else -from that society. Perhaps an 
expert, Mr. Paznanski, might be able to testify to that sort of an 
issue.  
 
We don't want to impose an impossible standard on that. You don't 
have to negate all possible possibilities but there should be a 
reasonable inquiry into that--  
 
Ms. Rosenberg: But isn't it true that the U.N. Handbook states that 
the way to examine the possibility of avoiding the harm is whether 
it's reasonably appropriate to expect the individual to relocate 
within the country?  
 
Mr. Martin: Well, yes, of course. I mean, it depends -- if the 
circumstances of relocation are only in some remote area where 
essentially the person has no prospect of anything but sickening 
and dying early, that's not a reasonable alternative within the 
country. But, we do think -- I mean it's important to understand 
here -- we are talking about protection in this country. We're not 
talking about broad issues of human rights concerns. That extends 
much more expansively than the particulars of asylum doctrine.  
 
So it has to be applied with some notion of reasonableness there 
but there does need to be some inquiry into that particular issue.  
 
Mr. Schmidt: Going into reasonableness, wasn't there testimony at 
this hearing below that she would be in danger anywhere in the 
country and wasn't there a Group Exhibit 4 which contained 
information both from your resource center and the State 
Department indicating that this practice is widespread in Togo and 
that the Government, while not particularly addressing female 
genital mutilation that the government of Togo generally hasn't 
demonstrated much interest in protecting women from any types of 
abuses and wouldn't that be sufficient for somebody to find that 
this is a countrywide threat?  
 
Mr. Martin: Well, that's exactly the kind of information, yes.  
 
Mr. Schmidt: But it's there. Yeah, I - 
 
Mr. Martin: It should be looked to - 
 
Mr. Schmidt: -- read it this morning. It's there.  
 
Mr. Martin: -- in making a decision. Well, the Immigration Judge, 
however, based upon that -- presumably looking at that and also 
the specifics of the questioning of the individual found that there 
had not been adequate inquiry into the possibility of going 
elsewhere.  
 
Mr. Schmidt: But I'm not bound -- but this Board isn't bound by 
the Immigration Judge's finding. We have de novo --  
 
Mr. Martin: There is also evi- -- 
 
Mr. Schmidt: -- review authority. 
 
Mr. Martin: There's also evidence in the record that it is 
approximately 50 percent of the women in Togo who have been 
circumcised. So I mean that -- that suggests some reason to look 
more closely at the particulars of this -- of this individual case.  
 
Mr. Schmidt: Well, 50 percent is a pretty large number, isn't it?  
 
Mr. Martin: It is a large number and we -- I mean, our submission 
is this -- this could very well be the basis for a valid claim of 
political asylum but there are unanswered factual issues that should 
be examined on remand after an elaboration of --  
 
Mr. Schmidt: I mean, the standard for asylum is just what a 
reasonable likelihood -- what a reasonable person -- I would think 
50 percent is well within that standard.  
 
Mr. Martin: Well, I do not mean to suggest that that goes to the 
well-founded fear issue in that particular respect as it was 
developed, for example in Cardoza-Fonseca. But if there are 
internal flight alternatives, cases like Matter of Fuentes suggest 
that that should be examined.  
 
Mr. Schmidt: You're at your three minute mark.  
 
Mr. Martin: Okay, I will take one more minute to close out a 
couple of additional points. One of them we've been criticized for 
asking the Board to look at hypothetical cases involving ostracism 
or social pressure. We do not know -- but again because we submit 
that the case should be returned to the Immigration Judge for 
further fact finding. This may not be a hypothetical.  
 
The protection of asylum should be reserved for those who are 
severely at risk upon return. Now, I do not want to be understood 
on that. Anyone who is subjected to social pressure or ostracism 
that is intended to force them into undergoing this procedure, that 
is a matter of human rights concern. That is something to which the 
Federal Government has objected. It has been an important part of 
our human rights diplomacy everywhere.  
 
But the Board is asked to apply the specifics of the asylum and 
withholding standards. That must be reserved for people who 
really need the protection and although we would object to 
ostracism or social pressure here, if that's all they're being sent 
back to, there is a choice. It would be like Matter of Chang. But if, 
on the other hand, would be forcibly subjected to it, there should 
be protection in these circumstances for people who would be 
potential victims of F.G.M.  
 
Finally, I just want to mention that there are other important limits 
on this that we suggest in the brief and are more elaborated there in 
terms of understanding either the shock a conscience test or the 
application of this in the past.  
 
The bodily invasions are likely to meet the shock a conscience test 
but when they are visited upon unconsenting individuals and, 
therefore, we think if -- for the practice -- if the practice were 
visited upon someone at a time when they consented to it, that 
would not have the special invidious quality that makes for 
persecution so the past persecution analysis would not apply.  
 
The protection should be available for people who have a serious 
risk of being forcibly subjected to F.G.M. upon return. We ask you 
to elaborate the document as we have suggested here and remand 
the case to the Immigration Judge for further development in light 
of the Board's standards.  
 
Thank you very much. 
 
Mr. Schmidt: Thank you, Mr. Martin and you have about 
approximately two minutes left for rebuttal.  
 
Mr. Martin: Thank you. 
 
Mr. Schmidt: Professor Musalo, you have five minutes for rebuttal.  
 
Ms. Musalo: Thank you. There is a record in this case and there is 
a clear legal standard for reviewing the credibility finding of the 
Judge. And there is -- it is very clear what the Judge's reasons were 
for finding Ms. Kasinga not credible and we can look at each of 
those reasons and see if there's evidence in the record which is 
what I addressed when I listed the different reasons that the Judge 
relied upon and how none of them were supported by the record.  
 
What the I.N.S. has done is to try to raise some additional grounds 
of lack of credibility but these are also so tangential and so -- I 
think transparently -- almost absurd -- to say that an individual who 
is forced into marriage is being inconsistent when at sometime she 
says, if I go back, I'll be forced to marry; and at other times she 
says, I have been married. I mean, a person who is forced to do 
something isn't going to refer to their husband as their husband and 
isn't going to return to -- refer to a shotgun marriage as a marriage.  
 
I think that is very explicable that at times she has said, I was 
forced to marry. And at other times she says, if I'm forced to go 
back, I'll have to marry. And this -- the other thing that's always 
been raised by the I.N.S. is this whole relationship with this 
German woman at the airport or the issue of Ms. Kasinga couldn't 
explain who performs F.G.M. These are things that don't go to 
credibility. They simply don't.  
 
She has testified she was protected from the practice. The fact that 
she would be inconsistent in describing how F.G.M. was 
performed simply doesn't go to credibility. So again I just would 
like to -- to, you know, emphasize the point that we do have a 
record. We do have a legal standard for evaluating the credibility 
determination of a Judge and clearly there is no substantial 
evidence to support the Judge's adverse credibility finding, period.  
 
Then the I.N.S. seizes upon the issue of this possibility of internal 
flight alternative and I think as Board Member Holmes, or Your 
Honor, mentioned that there was a record that addressed that very 
issue. If we look at Group Exhibit 4, there's quite a bit on the 
inability to relocate.  
 
The Judge simply did not read the record. It is patently apparent 
that this Judge did not look at the record and he just simply should 
not be given another ---another bite at the apple at my client's 
expense. He refers to sterilization at the beginning of the hearing 
when he refers to the documentation that was submitted.  
 
He asked the Counsel representing Ms. Kasinga, what is F.G.M.? It 
is inconceivable that any Judge that could have read this record 
could ask, what is F.G.M.? F.G.M. is all over this record in terms 
of Group Exhibit 4 and its discussion and simply is no reason to 
send it back to him to look at what he did -- since he abdicated his 
responsibility in the first place to carefully and conscientiously 
evaluate the evidence and make a determination.  
 
The Judge also failed to be aware of cases that are directly on 
point, such as the Fatin (phonetic sp.) case in the Third Circuit 
which directly addresses the issue of practices which were imposed 
on individuals because of their gender and lays out a test for the 
application -- or for the evaluation of a claim which raises gender 
as a social group characteristic. The Judge didn't mention Fatin.  
 
I think that there are so many things that the Judge didn't do that he 
should have done then that there's really no reason to send it back 
to him.  
 
Finally, I wanted to make one other point and it really -- this 
follows up on a point raised by one of the Honorable Board 
Members and I don't remember which one of you raised this but 
the record is very -- there is much evidence in the record to explain 
the reason why F.G.M. is inflicted and I just want to remind a few 
of you of what I know you've already reviewed. The report by 
Nehid Tobia (phonetic sp.) talks about the fact that the practice of 
F.G.M. is purely for the purpose of gender subjugation and the 
perpetuation of social injustice at Page 16.  
 
At Page 18, her report says, although nearly all society subjugate 
women in some way, F.G.M. is the most drastic measure taken by 
any society to control women's sexuality and reproduction.  
 
And on Page 35 of that same report, it says, in the few studies on 
the subject when researchers asked men and women why they 
performed genital mutilation, the answers were surprising clear 
about the patriarchal underpinnings of the practice and the ways in 
which women came to accept their secondary status. A constant 
reiterated theme was inferiority of women. A fact both men and 
women seem to accept.  
 
And there -- I think looking at this, it's very clear the societal 
context in which this practice takes place and I would beg to 
disagree with the General Counsel when he says that the societal 
context is irrelevant.  
 
I think in political asylum claims, the 
societal and political context-is the very texture in which the 
claims must be evaluated. If we evaluate a claim of race 
discrimination or persecution on account of race, we need to know 
the societal attitudes towards that race. And if we're talking about 
persecution on account of gender, we must know the societal 
attitudes towards gender. So I think it's simply is to me 
incomprehensible to argue that the societal reasons underlying a 
practice are irrelevant in a claim of this nature.  
 
Mr. Schmidt: Thank you, Professor Musalo.  
 
Ms. Musalo: Thank you. 
 
Mr. Schmidt: Mr. Martin, you have two minutes.  
 
Mr. Martin: Thank you. Perhaps I've been misunderstood, the 
social context -- the societal context -is certainly relevant.  It needs 
to be looked at here. That's exactly part of what we're suggesting 
here. We urge the Board to establish doctrine that points the Fact-
finders in exactly that direction and to examine it closely in the 
context of the society in which it arises.  
 
Most of what Ms. Musalo had spoken to on rebuttal went to 
credibility. We believe that particularly with a record that has the 
gaps and the inaudibles that are presented here, that it is not 
appropriate and it is not wise -- although we do not doubt the 
Board's power -- it is not appropriate in this kind of a case to make 
the factual determinations here.  
 
This is a situation that calls out for further inquiry and we do 
believe that the Board can establish doctrine that will help very 
importantly to guide that kind of inquiry and to help to sensitize 
those who are the Decision-makers in these cases to the kinds of 
cross-cultural determinations that have to be taken into account 
here.  
 
We believe that's important in these circumstances. We do urge 
you to adopt doctrine as we have suggested -- that F.G.M. could be 
the basis for a political asylum claim but within certain narrow and 
carefully defined limits. And then we urge you to remand it for 
further inquiry into credibility and other -- potential other factual 
matters upon remand to an Immigration Judge.  
 
Thank you very much. 
 
Mr. Schmidt: Thank you, Mr. Martin. And thank you, Professor 
Musalo. I thank both of you for your enlightening and outstanding 
arguments. The Board will take this matter under consideration. 
We will advise you of our Decision in writing.  
 
This hearing is now adjourned. 
 
HEARING CLOSED