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The following is a submission in support of an asylum petition in which it is argued that due to the implementing legislation passed by Congress last year, Convention Against Torture claims can and should be considered during Asylum proceedings.

Submission in Support of Asylum Petition of
_________________________

This submission is being made by the World Organization Against Torture, USA. We are the United States affiliate of a worldwide network of more than 200 human rights monitoring organizations evaluating and reporting on their governments' compliance with international human rights standards associated with torture or cruel and unusual punishment, with a particular emphasis on the Convention Against Torture. Over the past several months our organization has become the primary source of information exchange and legal support on issues associated with the nonrefoulement (non-return) protections of Article 3 of the Convention Against Torture (CAT) here in the United States. We have provided back-up legal assistance in a number of significant cases involving CAT issues, written a review of current legal standards and procedures involving CAT that was published in the July 1, 1998 edition of Benders' Immigration Digest, have been asked to assist the INS in training its personnel on CAT requirements, and have been designated by the U.S. office of the United Nations High Commissioner for Refugees to handle all their case and information referrals involving CAT issues.

Our organization becomes directly involved in only a limited number of cases where the legal or factual issues that are presented are particularly important or compelling, and where there is convincing evidence that the claims being made by the petitioner clearly justify support. We believe these criteria are met in the petitioner's case. Among the very significant issues that are raised by her case are the following:

Especially since the adoption of an implementing statute by Congress on October 19, 1998, the Article 3 non-return prohibition applies to all U.S. government personnel and procedures, including asylum proceedings and the actions of immigration judges, not just to the special procedures that have been set up by the INS to process CAT petitions. A rejection of a request for withholding of deportation that results in the return of an individual to a situation of torture would be in violation of Article 3 protections and the new U.S. law executing Article 3 of the Convention, whether that rejection takes place in an asylum proceeding or as a result of a CAT petition.

Sexual abuse, such as female genital mutilation (FGM) and rape, have come to be accepted by the United States Government, the INS and the BIA as legitimate grounds for the granting of asylum and the withholding of deportation where government inaction or acquiescence contributes to these practices.

The above points are addressed in the section below, followed by a review of the major elements of the petitioner's case.

1. Summary of Argument

A. Article 3 Non-Return Prohibitions Apply to All Government Personnel and Procedures, Including Asylum Proceedings

On October 19, 1998, the United States Congress passed, and the President signed, legislation that fully executed and gave domestic effect to the Article 3 Convention Against Torture non-return prohibition. This implementing action was given further weight with the issuance by the President of an Executive Order on December 10, 1998, Human Rights Day, affirming the responsibility of all Executive Departments and Agencies to fully respect, implement and enforce obligations under the international human rights treaties, notably the Convention Against Torture, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of Racial Discrimination.

Under the terms of the implementing statute, Congress has made it binding policy, applicable to all government officials, "not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture..." (Section 2242(a)). By fully executing, perfecting and giving domestic enforceability to the Article 3 non-return prohibition, the new statute and Executive Order require that all federal officials, including Immigration Judges and the BIA in dealing with asylum proceedings, must fully adhere to the Article 3 non-return prohibition. The previous decision of the BIA in the H-M-V case that the Article 3 CAT provisions could not be applied in asylum proceedings because the Convention was non-self executing no longer applies, since the Convention now has been fully executed by Congress and made an enforceable part of domestic law.

B. INS Policies and Judicial Decisions Support the View that Risk of Persecution or Torture Faced by Close Family Members Justify Recognition of Asylum or CAT claims by Parents, Spouses or Children who are Indirectly Subjected to Persecution or Torture as a Result.

There are two cases directly on point, where the threat of the imposition of FGM on a child was found to justify withholding of deportation of a parent (see Appendix, Tab A). In the Matter of Adeniji found a father eligible for withholding of deportation under Article 3 of the Convention Against Torture on the basis of the threat faced by his two American daughters of FGM, and the fact that his spouse, who had already received asylum, could not care for or support them because of disabilities, leaving the family in the position of having to return with the father if he were deported. In the Matter of Oluloro found a mother, who was divorced from an abusive husband who had permanent resident status, eligible for withholding of deportation because the risk of FGM "posed an extreme hardship for her young U.S.-born daughters."

In addition, there are a number of analogous situations where Congress, the INS and the courts have recognized the need to provide special protection to other close family members when their spouses, parents, siblings or children face threats of persecution or abuse. Although these situations do not involve Convention Against Torture claims directly, they should be taken into account as providing collateral evidence of the strong policy (as well as the practical reasons) for extending protections to close family members of those under threat of persecution and torture. They provide legal support for the granting of protection under situations analogous to those dealt with under CAT. This is especially true, as in the petitioner's case, where deportation of one family member would necessarily result in placing at-risk another family member who is in a protected class.

Among the analogous situations where federal law or policy has given special recognition to secondary claims of protection based on family status, particular attention should be given to the following (see Appendix, Tab B for cited materials):

Provision for the granting of temporary protected status and waiver of inadmissibility "for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest..." (8 USC section 1254(c)(2));

authorization for granting suspension (withholding) of deportation based on "extreme hardship," which has been interpreted by the courts to include the maintenance of family unity. (8 USC section 1254(a)(1)); and

the granting of asylum status to a spouse or child of another alien who has been granted asylum. (8 CFR section 208.19(a))

2. Review of the Major Elements of the Case

The Petitioner's Young Daughter Would Have No Alternative But to Accompany Her Mother To Mali, Despite the Fact that She is an American Citizen.

The deportation of the petitioner would, without question, as a practical matter, cause the involuntary deportation to Nigeria of her three-year old daughter. Although the petitioner's husband is currently living in the United States, leaving the child with him is not a viable option as he also is in the deportation process with an asylum application pending, and is without permanent residence status. In addition, out of necessity, he works two jobs and would not be able to adequately care for the child on his own.

The Result of the Petitioner's Deportation and Her Daughter's Involuntary Expulsion, Will Be the Infliction of Severe Pain and Suffering Under the Definition of CAT, Including Placing the Petitioner In the Position of Seeing her American Daughter Subjected to Mutilation and Other Severe Pain and Suffering.

Article 3 of CAT recognizes that psychological as well as physical abuses are covered by the definition of "torture" under the meaning of the Convention. The Petitioner, herself, would experience treatment that would most certainly meet the definition of "severe pain or suffering," both "physical or mental." If returned to Mali, she would undoubtedly be forced to see her daughter subjected to FGM against her will. FGM is widespread in Mali, especially in the Southern region of Mali where the petitioner's family resides. A report prepared by the Office of Asylum Affairs, U.S. Department of State, indicates that in the Southern region of Mali, over 95% of women have been subjected to FGM. For the country as a whole the figure stands at 94%.

The petitioner, who was forced to undergo FGM as a young child, is opposed to having this procedure performed on her child, but credible reports demonstrate that there would be little that she could do to prevent it. The mother and daughter would have to abide by the wishes of the extended in-law family. If the mother tried to physically prevent the daughter's excision, she would likely be severely abused and beaten by the family, as well as socially ostracized. A report released by the U.S. Department of State, confirms that violence against women in Mali is "tolerated and common." (Report released by the Bureau of Democracy, Human Rights and Labor, U.S. Department of State, Mali Country Report on Human Rights Practices for 1997, January 30, 1998).

In addition, the Office of Asylum Affairs (see Appendix, Tab C) reports that "FGM is so deeply rooted in tradition and culture, that any challenge to it runs into strong social opposition and repercussions. Women who have not been subjected to the procedure or parents who refuse to subject their daughters to it face social pressures and ostracism from society...", including "...pressure exerted from other members of the extended family to perform the operation." Moreover, the pressures are so strong that often women who have not been excised are not permitted to marry. A further indication of the strong pressure that exists is that in response to an increasing number of "older girls objecting to the procedure, some families are excising girls at a younger age."

The Government of Mali's Complicity and Acquiescence in FGM, and in the Customary Practices Associated with the Discriminatory Treatment of Women.

The Government of Mali is heavily complicit in producing the condition that would result in severe pain and suffering for the petitioner. It has failed to take steps along the lines of those taken by other African governments to prohibit and criminalize FGM. The Government in Mali has never passed any law to prohibit FGM, nor has it passed any law to protect women from the potentially harmful aspects of practice of FGM. Through its inaction and unwillingness or inability to prevent this practice, the Mali Government must be considered to have indirectly supported, or at least acquiesced in the continuation and promotion of the practice of FGM. This is important, since government acquiescence or involvement must be shown to meet the criteria spelled out in Article 3 of CAT.

FGM, and Assistance in Conducting the Practice of FGM, Has Been Prohibited and Made a Crime by the U.S. Congress, and Has Been Recognized as Constituting Persecution and Torture by the INS.

The U.S. Government itself has made clear its policy and position, both in our own criminal laws, and in the recognition of FGM as being a legitimate basis for a claim of asylum based on persecution, that FGM constitutes cruel and inhumane treatment (see FGM statutory provisions and case law, Appendix, Tab D). The U.S. Congress, recognizing the barbaric nature of FGM, has outlawed the practice in the United States and made the act of assisting in the practice of FGM a federal crime (see Appendix, Tab D). Action by U.S. government officials that produces FGM as a likely result of deportation could well constitute a violation of these criminal prohibitions, and of the federal government's established policy to prohibit the involvement of U.S. citizens and officials in this practice.

INS also has given special recognition to the threat that FGM presents by accepting the abusive nature of FGM as sufficient basis for the making of a claim of persecution under the Convention on the Status of Refugees and implementing U.S. asylum laws. (See attached decision in the Kassinga Case, Appendix, Tab A). Moreover, in two official memoranda, "Considerations for Asylum Officers Adjudicating Asylum Claims from Women" (1995) and "Guidelines for Children's Asylum Claims," (1998) the INS has recognized that FGM serves as evidence of past persecution under our asylum laws (see Appendix, Tab E).

Respectfully submitted this 14^th day of January, 1999by:

Morton Sklar
Director

and

Marissa Maurer
Refugee Project Director