CARYN TAMBER
Daily Record Legal Affairs Writer
September 23, 2009 8:03 PM
The full 4th U.S. Circuit Court of Appeals will not review the asylum case of a woman whose father has said he will bring her back to Senegal, circumcise her and marry her off to a much older man.
The court, which is authorized to have 15 judges but currently has only 10, split 5-5 Monday on whether to rehear the case en banc. The tie means Francoise A. Gomis, whose asylum petition was denied by three-judge panel in July, will not get a rehearing.
Gomis, who came here on a work visa that expired in April 2003, filed an asylum petition in 2005. She testified that she did so after learning that her 15-year-old sister had been forcibly circumcised, suffering blood loss and infection, and that when their brother complained to the police, he was told to go home.
Judge Paul V. Niemeyer, who penned the majority opinion in July, also wrote Monday’s opinion. He called female circumcision “abhorrent” but said the court must defer to the Board of Immigration Appeals, which found that Gomis failed to prove it was “more likely than not” she would be circumcised.
Judge Roger L. Gregory, the vehement but sole dissenter in July, requested the rehearing and objected to its denial as contrary to settled law.
“There is…one basis for asylum that is clearly established in both this Circuit and the other federal courts: protection from female genital mutilation,” Gregory wrote Monday.
“Gomis’s family made it clear that were she to return to Senegal, there is no chance that she could escape circumcision at their hands,” he added. “Neither invocation of sympathy nor innovation in the law of asylum was necessary to grant Ms. Gomis’s petition; it merely required the application of our precedent — simple justice.”
Seeking high court review
Even before the denial of rehearing en banc, Gomis had petitioned the Supreme Court for certiorari to examine the 4th Circuit panel’s decision on procedural grounds. Lee Gelernt, deputy director of the ACLU’s National Immigrants’ Rights Project, which filed the cert petition, said he was heartened by the 5-5 vote.
“It’s disappointing that the 4th Circuit decided not to rehear the case, but we take some comfort in the fact that five of the 10 judges believed there was more than 50 percent likelihood she would be subject to FGM — female genital mutilation,” Gelernt said. “That is a far higher burden than she faces with her asylum application, which is what is at issue in the Supreme Court petition.”
The Department of Justice declined to comment on the result.
Gomis has asked for both asylum and withholding of removal. Asylum requires the claimant to show a 10 percent chance of harm if she is returned to her own country, but withholding requires a 50 percent chance.
While asylum claims must be filed within one year of unauthorized entry, there is no deadline for filing a withholding claim.
There are exceptions to the one-year asylum filing deadline, including for refugees whose circumstances change after the deadline has passed.
Gomis testified that her sister’s forcible circumcision constituted a change in circumstances.
According to her 2005 asylum petition and testimony, she had fled Senegal because her family wanted her to undergo circumcision and get married to a man in his 60s.
Female circumcision was made illegal in Senegal in 1999, the same year Gomis’ parents allegedly took her out of school to arrange her marriage. She was 21.
With the help of an uncle in France, Gomis left home and obtained the visa to work as a domestic servant for a friend of her uncle.
Gomis presented the Immigration Court with what Gregory called “a mountain of evidence” that she would be circumcised if she returned to Senegal, including a letter from her father saying that she had embarrassed the family and that he would use “all means” to get her back and circumcise her.
Immigration Judge Thomas G. Snow denied Gomis’ petition for withholding, finding that a State Department report on female circumcision in Senegal indicates that she probably would not be forced to undergo the procedure.
Most Senegalese women, especially in big cities like Gomis’ native Dakar, have not been circumcised, he wrote. Circumcision is typically performed on young girls or at puberty, not on grown women, he found.
Snow also denied Gomis’ petition for asylum, ruling that Gomis had missed the deadline and that her sister’s circumcision was not enough to constitute changed circumstances.
The Board of Immigration Appeals affirmed the denial, as did the 4th Circuit panel in July.
Gregory’s dissent took the majority to task for “focus[ing] on general statistics” and not considering the circumstances specific to Gomis’ case.
Gomis’ family has said she will be circumcised and, in her small ethnic group, almost all women are circumcised, many right before marriage, he noted.
“To deny her withholding of removal and send her back to Senegal, to virtually certain circumcision, would be a great miscarriage of justice,” Gregory wrote. “If we choose to ignore the blatant evidence before us of her specific situation by shielding our eyes with general statistics, then we will be sending her to a torturous future of which I shudder to imagine.”
Jurisdictional point
Gomis’ Supreme Court petition focuses on whether the appellate court had jurisdiction to review the ruling on her claim of changed circumstances.
All three judges on the July panel agreed that they lacked such jurisdiction. However, Gomis’ lawyers argue that the circuits are split on that point, since the 9th Circuit has gone the other way.
“We’re very concerned that people who are legitimate refugees are being denied asylum in this country because of the one-year filing deadline,” said Eleanor Acer, director of the refugee protection program at Human Rights First, which filed an amicus curiae brief urging the Supreme Court to take Gomis’ case.
“Because of the fact that there hasn’t been judicial review in some circumstances, there’s no doubt that some individuals who would be entitled to asylum have been deported back to places where they would face persecution,” she said.
The government’s response to Gomis’ Supreme Court petition is due Oct. 14.
