Abay v. Ashcroft: The Sixth Circuit's Baseless Expansion of INA § 101(a)(42)(A) Revealed a Gap in Asylum Law

Abstract

In Abay v. Ashcroft, the United States Court of Appeals for the Sixth Circuit held that a noncitizen mother qualified for asylum based on her fear that her daughter, who qualified as a refugee, would undergo female genital mutilation if her daughter were to return to the family’s home country. The Immigration and Nationality Act (INA) provides derivative asylum for spouses and children, but not parents, of refugees granted asylum. Parents of asylees must therefore independently qualify for asylum under INA § 101(a)(42)(A), which requires that the applicant show a well-founded fear of persecution if returned to the applicant’s home country. The circuit courts of appeals have generally denied refugee status to mothers in situations similar to that of the petitioner in Abay. Nevertheless, the Abay court concluded that there is a “governing principle” in favor of granting asylum to mothers when their daughters would face genital mutilation upon return to the family’s home country. This Note argues that the Abay court erred in granting asylum to the petitioner mother because no such “governing principle” exists. Further, this Note argues that the mother in Abay lacked a well-founded fear of persecution, making her ineligible for asylum, for two reasons. First, harm to her daughter did not amount to persecution of the mother. Second, because her daughter is a refugee, the petitioner cannot reasonably fear the genital mutilation of her daughter in the family’s home country. When the law is correctly applied in cases such as Abay, a mother of an asylee must choose between abandoning her child in the United States or taking the child back to her home country where the child may be persecuted. Congress did not contemplate this appalling predicament when it drafted the current asylum laws. Accordingly, this Note concludes that Congress should amend the INA to grant derivative asylum to parents of asylees.

Keywords: Asylum, Immigration, Female Genital Mutilation, Immigration and Nationality Act

JEL Classification: K37