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The Matter of Kasinga and Layli Miller Muro & Karen Musalo

Sydney Downs, 13

Building Background

FGM

What is FGM? FGM, or Female Genital Mutilation, is the practice of mutilating a woman’s genitals for cultural reasons. It has no know medical benefits, and can lead to many complications. It can cause infection due to unsterilized tools, it can lead to hepatitis B or C due to a number of causes, it can cause extreme pain, and lead to hundreds of psychological complications. There are four subtypes. The type usually practiced in Togolese women is type III, the most extreme and life-threatening one. It’s where the clitoral gland is sliced off with a knife, sharpened piece of glass, or razors. This is all while the child or teenager is full conscious and awake, and is usually held down by her family. After this, the labia minora is mutilated with the same tool, and the labia majora is sewn over the urethra and vagina, leaving a pin sized hole for urine and period blood to escape. For childbirth, it is sliced open with a knife and usually resewn, only further putting the woman at risk for all types of diseases and infections. This practice is outlawed in many countries, but is exceptionally common in east African and north African countries. Around 115,000,000 women have undergone a type of FGM, and the number is only more likely to grow, due to the lack of protecion in many countries for young women.

Fauziya Kassindja

Fauziya Kassindja was (at the time of the legal case) a Togolese teenager that belonged to the Tchamba-Kunsuntu Tribe of northern Togo. She was 17 years old, and had been protected from the practice usually performed on 15 year olds by her father, until he died. After his death in 1993, her father’s sister became her legal guardian, and her mother relocated to Benin. Her aunt decided to force a marriage to a 45 year old man with three wives already on the young girl. At this time, Fauziya Kassindja had completed 2 years of high school. Her aunt needed Fauziya Kassindja to undergo FGM before she could be married.

Layli Miller Muro

Born Layli Miller Bashir, Layli Miller Muro was a law student at American University during the Matter of Kasinga legal case. She took on Fauziya Kassindja’s case, and has gone on to become the founder and CEO of Tahirih Justic Center, and continues to focus on legal cases involving rape, domestic violence, FGM and other gender discrimination cases for women and children all around the world. She has been recognized by many for her pro bono work for vulnerable people all over the USA, and received many awards for her innovation in the legal world.

Karen Musalo

Professor Karen Musalo is a professor and chair director of International Law at UC Hasting College of Law, as well as the founding director of the Center for Gender and Refuge Studies. She was the lead co-author of Refugee Law and Policy: An International and Comparative approach. She was the lead attorney of the Matter of Kasinga, and has continued her groundbreaking work for refugees and gender studies. Another famous case she’s worked on is Rody Alvarado’s, further proving that domestic violence is reason to grant asylum. She was the first attorney to work with psychologists to help traumatized refugees, which is now become standard. She also edited the handbook for practitioners of law on how to deal with cross cultural issues. She’s received a number of awards for her teaching and humanity, and how well she has impacted the way that the U.S. interacts and helps refugees. She also focuses on issues of domestic violence in many South American countries.

The Matter of Kasinga.

In 1993, Kassindja was 17. In fear of undergoing type III FGM, she and her older sister escaped Togo to Ghana, but were fearful of being found. Their mother gave them money for plane tickets, which they used to travel to Germany. It is unclear if Kassindja’s sister came with her to Germany, but it is likely that she remained in Ghana, since she was less at threat than her sister.

In Germany, Kassindja found a German woman, who she could speak to in English. Kassindja told her about her situation, and the German woman offered her a shelter until she could fly to America, where Kassindja had family. Kassindja could not remain in Germany long term because she could not speak German, and couldn’t continue her education.

Eventually, after two months, Kassindja met a Nigerian man in Germany, who offered her his sister’s British passport, so she could apply for refuge in America. She bought it from him, and in December 1994, flew to the United States, and immediately asked for refugee status. She remained in Immigration Custody until April 1996. Her case began around the summer of 1995, and her family hired law student, Layli Miller Muro and attorney Karen Musalo

In court, Kassindja and her lawyers testified that the Togolese police knew about FGM, and would not protect her, that her family wished to mutilate her, and shared information about FGM and her marriage.

There were inconsistencies about whether Kassindja was actually technically married, and like a traumatized teenage girl would be, she was confused herself. Her marriage application was signed only by her ‘husband’ and though they had a traditional ceremony and rituals, the technicalities are blurry. Also, she was unsure about who actually performed the FGM for others, in her tribe. But these inconsistencies were not undermining to her credibility, and INS (Immigration and Naturalization Services) suggestion that these showed Kassindja lacked credibility were rejected.

Then the issue was if FGM was persectution or not. They found that under Acosta, that Kassindja was a part of social group that she could never leave or change, and therefore checked that box. Then, they decided that FGM was persecution, and that it applied to INS’s ‘shock the conscience’ test, among other definitions. Then it was found that Kassindja’s fear of FGM was reasonable, and many would find it terrifying as well. Finally, it was decided that Kassindja’s persecution was ‘on account of…’ her being a part of a certain, defined social group.

The INS suggested that Kassindja had not proved that she couldn’t escape FGM by moving to some other part of Togo, but she presented credible testimony to prove otherwise, that it was a common practice, and her husband was in close ties with the Togolese police.

Therefore, in June 1996, the following conclusion was reached:

“We have determined that the applicant is eligible for asylum because she has a well-founded fear of persecution on account of her membership in a particular social group in Togo. A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987). The type of persecution feared by the applicant is very severe. 367 Interim Decision #3278 To the extent that the Immigration Judge suggested that the applicant had a legal obligation to seek refuge in Ghana or Germany, the record does not support such a conclusion. The applicant offered credible reasons for not seeking refuge in either of those countries in her particular circumstances. The applicant purchased someone else’s passport and used it to come to the United States. However, upon arrival, she did not attempt to use the false passport to enter. She told the immigration inspector the truth. See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). We have weighed the favorable and adverse factors and are satisfied that discretion should be exercised in favor of the applicant. Therefore, we will grant asylum to the applicant.”

[Interim decision #3278] 1996

Those are words to give you chills.

Sources

“Karen Musalo.” Karen Musalo | Center for Gender and Refugee Studies, Aug. 2018, cgrs.uchastings.edu/about/bio/karen-musalo.

Multiple Contributors. “Layli Miller-Muro.” Wikipedia, Wikimedia Foundation, 29 Mar. 2020, en.wikipedia.org/wiki/Layli_Miller-Muro.

Musalo, Karen. “Matter of Kasinga (1996).” Matter of Kasinga (1996) | Center for Gender and Refugee Studies, cgrs.uchastings.edu/our-work/matter-kasinga-1996.

UC Hastings Law | San Francisco. “Karen Musalo, Clinical Professor of Law - UC Hastings College of the Law.” UC Hastings Law | San Francisco, 22 July 2019, www.uchastings.edu/people/karen-musalo/.

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals. “In Re Fauziya KASINGA, Applicant.” Justic.gov, www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3278.pdf.