FGM Victory

2nd Circuit Revives Woman's Bid for Asylum Despite Numerous Trips to Native Country
Mark Hamblett

New York Law Journal

March 04, 2010

A woman who suffered genital mutilation in Côte d'Ivoire may argue for asylum in the United States in spite of the fact she made return trips to her native country, a federal appeals court has ruled.

The 2nd U.S. Circuit Court of Appeals said an immigration judge erred in finding that the repeated trips Nan Marie Kone made to the west African nation undermined her credibility and showed she did not really fear further persecution.

Judges Guido Calabresi, Jose A. Cabranes and Gerard E. Lynch reversed an order of removal issued against Kone and remanded for further proceedings in Kone v. Holder, 08-1445-ag.

Kone applied for asylum in January 2005, just after giving birth to her second daughter. She based her application on her own experience with genital mutilation in 1981 and her fear that her daughters, both U.S. citizens, would be subjected to the practice. She also cited alleged persecution based on her Muslim religion, her Dioula ethnicity and her membership in a Dioula-based opposition group, Rally of the Republicans (RDR).

Kone first came to the United States in July 2002, but in November she was back in the Côte d'Ivoire, where she was arrested for carrying an RDR membership card. She was thrown in jail for 10 days and claimed to have been beaten by guards on a daily basis.

Kone returned to the United States in September 2003 but made three more trips to her homeland before finally coming back to the United States for good and applying for asylum.

Immigration Judge Sandy K. Hom found that Kone's account of her genital mutilation was credible and that it had created a presumption she would be persecuted in the future.

But he denied the application, saying Kone's "voluntary actions to go back to the Ivory Coast…rebuts the presumption of future persecution that arises from her past persecution."

Judge Hom rejected her other claims of persecution and said Kone's credibility was also undercut by the fact that she worked for the government when she returned to the Côte d'Ivoire -- a finding that later proved to be incorrect.

On the appeal, Judge Lynch said, "This cursory analysis neglects to make the specific finding required by the regulations of either a fundamental change in circumstances or the possibility of internal relocation" -- factors that the government can argue to rebut the presumption of future persecution.

Judge Lynch said the immigration court demonstrated "the erroneous belief that voluntary return trips are sufficient, as a matter of law, to rebut the presumption of future persecution to which Kone is entitled."

"The simple fact of a safe return on a particular occasion does not negate the potential of future harm," he said. "Nothing in the regulations requires an applicant to show that she would be immediately persecuted upon return, that persecution would be likely to occur within some short time span, or that it would recur in regular intervals."

The judge noted that return trips might be evidence that circumstances have changed for some asylum seekers and their native countries are now safe but that they do not shift the burden to the petitioner.

The court also faulted Judge Hom for making an adverse credibility finding against Kone, again based on the return trips she had made.

"Under various circumstances, a person very well might risk persecution to return to his or her home country, despite previous persecution or a well-founded fear of future persecution," Judge Lynch said.

He said Judge Hom also committed "clear error" in finding that Ms. Kone worked for the government upon her return to Côte d'Ivoire, when, in fact, she worked for a private company.

Brian I. Kaplan of Goldberg & Kaplan represented Kone.

The government was represented by Andrew B. Insenga, trial attorney with the Justice Department's Office of Immigration Litigation.