Guidelines Pave Way for Togo Woman's Freedom in Mutilation Case

Three years of legal research and advocacy by Harvard's Women Refugees Project led the Immigration and Naturalization Service (INS) to issue groundbreaking instructions for women's asylum claims. These circumstances have in turn led to the decision to free 19-year-old Fauziya Kasinga from INS custody and to its current position that female genital mutilation can be the basis for an asylum claim.

Kasinga, who is claiming asylum based on female genital mutilation, was freed after more than a year in dismal INS custody last week and her case will be argued today, May 2, to the agency's highest administrative court. She is being represented by attorney Karen Musalo of American University International Human Rights Clinic.

"The INS is now arguing in its legal brief that female genital mutilation is a serious human rights violation and should be the basis for an asylum claim. This is directly based on its groundbreaking guidelines and the coalition of 36 agencies which presented these guidelines two years ago," said Nancy Kelly, co-founder of the Women Refugees Project, Harvard clinical supervisor, and author of the draft guidelines presented to the INS in March of 1994. The INS has credited the Women's Project for drafting the guidelines and getting the issue of asylum for women on the agency's agenda.

The INS issued its guidelines in May of last year. According to Deborah Anker, refugee law lecturer at Harvard and head of its asylum and immigration program, "Before this advocacy and the guidelines, women's claims were completely invisible, ignored, treated as trivial -- even when the threatened violations were as extreme as they are in Fauziya's case. It didn't matter, women were not important. Claims were regularly denied. Now the climate has, hopefully, profoundly changed."

The guidelines make the United States the second country in the world, after Canada, to formally recognize women's claims. "Although the number of women who can escape and come to the United States is tragically small, Kasinga's and other women's asylum claims with which we are assisting make real the commitment that human rights standards are universal and that women's rights are human rights. This is the real and critical issue in Fauziya's case," said Anker and Kelly in a joint statement.

For two years now, Harvard's Project has been monitoring women's asylum cases being brought all over the United States and at all levels of agency adjudication; it has been providing representation, legal assistance, amicus briefs, networking, country documentation, etc. "We have an extraordinary record of cases being brought from countries and regions all over the world -- cases based on female genital mutilation, sexual violence and rape, bride-burning, state sponsored violence against women who believe in women's rights, freedom over their bodies and rights to procreate, women who refuse to obey fundamentalist religious codes, etc. Every one of these individuals -- like Fauziya -- is a portrait in courage," said Kelly and Anker in a joint statement.

The Women Refugees Project is arguing several of these cases before the INS's highest administrative court -- the Board of Immigration Appeals -- and was responsible for the Board's first women's asylum case ever in its history, issued last May, for a Haitian woman who supported democracy and was gang-raped by military officers and made permanently unable to bear children as a result. The Women's Project discovered the case, brought it to the Board's attention, and with congressional and other support, convinced the Board to publish the decision and make it binding.

Both Kelly and Anker commented, however, that while the INS is arguing in Kasinga's case, based on the guidelines, that female genital mutilation can constitute persecution, "we are seeing many cases in which the INS is disingenuously acting as if the guidelines don't exist, claiming, based on pure speculation, that sexual violence -- even of the worst kind -- is just based on a man's natural and uncontrollable attraction for a woman; this position is unconscionable and must be changed."