On May 7, 2007 the United States Court of Appeals for the Eighth Circuit found that a woman who had been subjected to Female Genital Mutilation (FGM) could qualify for asylum.  A citizen of Somalia, Hafza Hassan was subjected to Type III FGM, the most invasive type, as a young woman.  She entered the U.S. in 1997 and sought asylum.  Hassan argued she qualified for asylum both because her own FGM experience qualified her, and because her daughters would be subjected to FGM if they accompanied her to Somalia.  The immigration judge concluded that FGM did not qualify Hassan as an asylee and that, if she was forced to return to Somalia, her daughters could remain in the U.S. with their father.  The BIA affirmed.  Hassan appealed.

To qualify for asylum, one must demonstrate a well-founded fear of persecution based on race, religion, national origin, membership in a particular social group, or political opinion.  If an applicant can establish past persecution, there is a presumption of a well-founded fear, and the burden then shifts to the government to show that the applicant no longer possesses such a fear. 

The eighth circuit found that FGM qualifies as persecution.  Furthermore, the court found that Hassan was a member of a protected social group, Somali females, stating “a factfinder could reasonably conclude that all Somali females have a well-founded fear of persecution based solely on gender given the prevalence of FGM.”  (Hassan v. Gonzalez, page 6). Therefore, Hassan established past persecution, thus evoking the presumption of well-founded fear.  Accordingly the burden should have shifted to the government, but the BIA failed to do so. 

However, the government argued the case should not be remanded because Hassan cannot be subject to FGM again and therefore does not have a well-founded fear.  The circuit court dismissed this argument, stating that there was no requirement that Hassan fear the exact harm she had already suffered.  Therefore, the court held that “on remand, the government must prove, by a preponderance of the evidence, that conditions in Somalia have changed to such an extent that Hassan no longer has a well-founded fear of the infliction or threat of death, torture, or injury to her persons or freedoms.”  (Hassan v. Gonzalez, page 7). The court went on to note that with the frequency of rape in Somalia, this would be difficult for the prosecution to do.  The court also remanded Hassan’s second claim of asylee status based on Somali persecution of her daughters because her husband’s asylum status has been terminated, thereby eliminating their ability to remain in the U.S.

Compiled from: Hassan v. Gonzales, No. 05-2084 (8th Cir. decided May 7, 2007).