Adelaide Abankwah, Fauziya Kasinga, and the Dilemmas of Political Asylum
David A. Martin
University of Virginia School of Law
IMMIGRATION STORIES, David A. Martin and Peter H. Schuck, eds., Foundation Press, 2005
This essay constitutes a chapter in a volume that tells the background story to well-known cases in immigration law, covering human impact, litigation strategy, political maneuvering, and developing doctrine, as appropriate to the case under consideration. The book appears in Foundation Press's Stories series, and could be used as a companion to casebooks in a basic immigration course.
This chapter examines closely two political asylum cases wherein the claim was based on the risk that the applicant would be subjected to female genital mutilation (FGM) if returned to her home country. Matter of Kasinga, decided by the Board of Immigration Appeals in 1996, established basic doctrine favorable to such a claim and represented a global milestone in the consideration of gender-related asylum cases. The chapter tells the story behind this application, filed by a young woman from Togo who had been shielded from the practice by her father until his death when she was 16. It also sketches the background legal framework and situates the Board's rulings in the context of developing asylum doctrine. In Abankwah v. INS, decided in 1998, the Second Circuit reversed a ruling by the Board that denied asylum to a young woman who asserted that she would be subjected to FGM as punishment, because she was about to become queen mother of her tribe and the elders would discover in that process that she had not remained a virgin as required by tribal rules regarding that role. The chapter's account provides a detailed insight into how an asylum case proceeds before an immigration judge, the Board, and the courts, portrays the important role of counsel (asylum applicants often must rely on pro bono attorneys; it took Abankwah seven continuances to secure counsel), and examines the importance of credibility determinations. Certain surprise developments involving Abankwah after the court's ruling reveal additional facets of the acute policy challenges presented by political asylum, and suggest lessons about cross-cultural complications in assessing such applications.
JEL Classification: H00, K33, K41, K42
Date posted: August 5, 2005