Toward a Compassionate Solution: The UNHCR Guidance Note and Asylum for Parents of Female Genital Mutilation Vulnerable Children

Jennifer Mesko, Case Western Reserve University School of Law

Abstract

On August 26, 2009, the United States Court of Appeals for the Fifth Circuit handed down its decision in Kane v. Holder denying a father’s petition for withholding of removal despite the threat of FGM to his minor daughter. As one ground of relief, the father, Kane, advanced a principal claim because he would be subject to persecution: “(1) as a member of a social group of ‘parents of minor daughters of the Fulani Tribe who have not had FGM, and who oppose the practice,’ (2) as a result of his political and religious opposition to FGM, and (3) by having to endure his daughters' FGM.” At the eleventh hour before judgment, Kane submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j) informing the court that the United Nations High Commissioner for Refugees (“UNHCR”) had recently issued a UNHCR Guidance Note addressing a parent’s claim of persecution by virtue of the likely genital mutilation of his or her daughter. Kane argued that the UNCHR Guidance Notice provided new persuasive, though non-binding, authority in favor of his claim. The Court dismissed the UNHCR Guidance Note stating, “it is doubtful whether this particular guidance note offers persuasive authority, as it appears to contradict the express terms of the [Immigration and Nationality Act].”

This Article will argue that the Fifth Circuit’s characterization of the UNHCR Guidance Note is overbroad. The UNHCR Guidance Note addresses two types of asylum claims for parents of possible FGM victims: derivative claims and principal-applicant claims. A derivative claim allows the parent to piggy-back on his or her child’s asylum claim, whereas the parent in a principal-applicant claim petition for asylum status in his or her own right due to the persecution the parent would suffer by opposing the practice or FGM or witnessing his or her child’s mutilation. The UNHCR Guidance Note does not conflict with current immigration law with regard to parental-principal applicant asylum claims. Instead, it should, as Kane argued, serve as highly persuasive authority in interpreting the meaning of “persecution” under the immigration statute. Currently, the circuits are split and the Board of Immigration Appeals’ (“BIA”) precedent is unclear on whether parents can validly assert principal-applicant claims that are inextricably based on the threat of FGM to their female children. In this Article, I will argue that the circuit split and ambiguity in BIA jurisprudence should resolve in favor of a broad construction of the term “persecution” to allow parents of potential FGM victims to succeed in principal-applicant claims.