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Court Grants Mother Seeking Asylum to Stop FGM a BIA Review

By Robyn Hagan Cain on December 08, 2011 | Last updated on March 21, 2019

The Eleventh Circuit Court of Appeals granted a petition for review this week to a Senegalese mother seeking asylum to protect her minor daughter, a U.S. citizen, from the practice of female genital mutilation (FGM).

The Court declined to reach the question of whether the petitioner, who opposes the practice of FGM on her daughter, falls within a "particular social group" for purposes of withholding of removal, and remanded the issue for a Board of Immigration Appeals (BIA) review.

Petitioner Ndeye Ndicke Seck, a native and citizen of Senegal, gave birth to her daughter, B.D., while in the U.S. as a tourist. She returned to Senegal two months later.

Seck is a member of the Lebou ethnic group, B.D. is a member of her father's ethnic group, the Toucouleur. The Lebous do not practice any form of FGM, but the Toucouleur perform FGM on their girls, typically beginning at around age three.

FGM is a general term used to describe several types of procedures involving the removal of some or all of the external genitalia, which is performed on girls and women primarily in Africa and Asia. Certain Senegalese groups believe that the Quran requires women to undergo FGM. It is generally performed without anesthesia.

Seck fled to the U.S. with B.D. when B.D. reached the common age for FGM, and B.D.'s paternal family members started planning to perform the process on B.D.

Following a 2007 Notice to Appear, Seck conceded removability, and filed an application seeking asylum and withholding of removal under the Immigration and National Act and relief under the Convention Against Torture.

Seck claimed that if she returned to Senegal, she would be forced to take B.D., still a minor, with her because she had no family or friends in the U.S. who could care for B.D. Seck believed that in Senegal, B.D. would be subjected to FGM, and Seck would be beaten or killed when she tried to prevent the procedure.

The BIA denied Seck's requests based on an assumption that Seck could relocate to an urban part of Senegal that does not practice FGM.

The Eleventh Circuit Court of Appeals granted Seck's request for BIA review because the BIA failed to give reasoned consideration to Seck's application when it found she could relocate to an urban area within Senegal to avoid persecution. The court noted that the BIA decision only evaluated the country conditions, and not the facts specific to Seck's case.

While it's not easy to prevail in an asylum claim, this case could prompt immigration judges and BIAs to give greater consideration to asylum applicants who seek withholding of removal to protect their children.

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