August 25, 2009
By Bob Egelko
SAN FRANCISCO -- A Northern California family whose daughter underwent forced circumcision in Indonesia is entitled to seek political asylum in the United States, a federal appeals court said Monday.
The Ninth U.S. Circuit Court of Appeals in San Francisco criticized immigration officials who, in ordering the family deported, decided that the girl had suffered no serious harm when her genitals were mutilated as a newborn.
Any form of female genital mutilation is "horrifically brutal" and amounts to persecution under established precedents in federal courts and the Justice Department's immigration courts, the court said.
The 3-0 ruling gives Bob Benito Benyamin, his wife, Anabella Rodriguez, and their three daughters another chance to challenge deportation to Indonesia, where the oldest daughter underwent forced circumcision at 5 days old in 1992 at the orders of a grandmother. The family said she has felt pain from the procedure ever since.
The family entered the United States legally in 1999 and applied for asylum in 2002 after Benyamin's business visa expired. They live in the Sacramento area, their lawyer said.
Federal courts have granted asylum to women who fled their countries after being genitally mutilated or threatened with mutilation. In this case, the parents argued that one of their younger daughters would face ritual mutilation if deported to Indonesia, and that sparing her from deportation would be meaningless if the rest of her family was deported.
In denying asylum, immigration judges cited a State Department report that said female genital mutilation as practiced in Indonesia "involves minimal short-term pain, suffering and complications."
Contrasting the procedure to a court's description of mutilation in Ethiopia, where the genitals are cut with knives and recovery takes 40 days, immigration courts said the Indonesian girl had not been persecuted and that neither she nor her family was entitled to asylum.
But the appeals court said its rulings and a World Health Organization report have found that even in its least drastic form, the genital mutilation of women and girls causes physical and psychological harm and the risk of serious complications.
An immigration review board's "attempt to parse the distinction between differing forms of female genital mutilation is ... a threat to the rights of women in a civilized society," Judge Margaret McKeown said in the court ruling.
The court returned the case to the immigration board to decide whether the younger daughter faced a likelihood of genital mutilation in Indonesia. If so, the board must decide whether the entire family is eligible for asylum or whether the parents and their daughters might instead be sent to Venezuela, the mother's native country. The younger daughter was born there.
Robert Ryan, an attorney in San Francisco who represents the family, said the court had corrected a series of legal errors by the immigration judges, including their downplaying of the older daughter's trauma.
"There's no such thing as mild female genital mutilation," he said.