September 1, 2009
By ANNIE YOUDERIAN
(CN) - A Senegal native seeking to protect his two young daughters from female genital mutilation in his homeland lost his appeal of a deportation order in the 5th Circuit.
Abou Kane entered the United States illegally in 1996, followed shortly by his wife. They had five children in the country, including two daughters who are under 10 years old.
Facing deportation in 2006, he filed for withholding of removal and protection under the Convention Against Torture Act, claiming his daughters would face forced genital mutilation if they came back to Senegal with him.
The immigration judge agreed to withhold the deportation order, noting that "it is, quite frankly, difficult for this court to expose two young U.S. citizens to this practice, simply because their parents were not of status in this country."
The government appealed, arguing that immigration law doesn't protect fathers from deportation based on a fear that his minor children - both U.S. citizens - would be persecuted.
The Board of Immigration Appeals agreed and reversed the immigration judge's opinion, ordering Kane's removal to Senegal. The board said it couldn't grant Kane relief based solely on fears about his daughters, who were free to stay in the United States with their mother. Even if they did move to Senegal with him, the board added, the family could likely prevent mutilation by settling in a relatively safe area.
The board also rejected Kane's claims for asylum and protection against torture.
Satisfied with the decision, the federal appeals court in New Orleans said the board's removal order was "supported by substantial evidence."
It rejected Kane's claim that the tribe's enforcement of genital mutilation against his daughters would, in effect, be persecuting him.
The board had acknowledged that there are cases where loved ones are harmed as a way of persecuting an asylum applicant. Those cases differ from Kane's, the board explained, because the applicant can show that he or she was the target of persecution.
"We see no reversible error in this decision," Judge Wiener wrote.
"Kane himself testified that Fulani tribal elders would likely enforce the practice against his daughters only because they believe that their culture compels them to do so," the court noted, "and not as a way to persecute Kane for any particular belief or characteristic that he exhibits."