I had a case last week where the Eritrean government arrested and beat my client because they believed she helped her brother escape from the national military service. We tried to frame the case in terms of imputed political opinion (our claim was that the authorities thought my client was “anti-government” because she helped her brother escape), but it was a bit of a tough sell. We came up with a strategy that may have saved the day (she received asylum), so I thought I would share, as this strategy could be employed by many women who face persecution that is not based on a protected ground.
The key to our strategy was that my client had been a victim of female genital mutilation (“FGM”) early in her life. In a well known decision, the Board of Immigration Appeals held that FGM could form the basis for an asylum claim. Thus, FGM may be considered past persecution based on a protected ground.
Where a person has been subject to past persecution based on a protected ground, she is eligible for asylum if there is a “reasonable possibility” that she will face “other serious harm” in her country, regardless of whether that harm is based on a protected ground and regardless of whether that harm is related to the original persecution. See 8 C.F.R. § 208.13(b)(1)(iii)(B). While I had written previously about “other serious harm,” it had not occurred to me how useful this provision could be for many female asylum seekers.
FGM is prevalent in a number of African countries and elsewhere. A woman who has been subjected to FGM has likely satisfied the first prong of the requirement for “other serious harm” asylum. To satisfy the other requirement, the asylum seeker must demonstrate that she faces a reasonable possibility of other serious harm in her country. This could be any type of harm and does not have to be based on a protected ground or related to the original persecution.
Until recently, there has been little guidance about what constitutes “other serious harm,” but last month, the BIA published a decision examining this basis for asylum. See Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). In that case, the Board held that to qualify as “other serious harm,” the harm must be as severe as persecution, and the Board has given some examples:
Such conditions may include, but are not limited to, those involving civil strife, extreme economic deprivation beyond economic disadvantage, or situations where the claimant could experience severe mental or emotional harm or physical injury.
A number of federal circuit courts (all listed in Matter of L-S-) have given examples of what might constitute other serious harm. The list is quite diverse: (1) harm resulting from the unavailability of necessary medical care; (2) the mental anguish of a mother who was herself a victim of FGM whose daughter faces the same fate; (3) the unavailability of needed psychiatric medications; (4) victimization by criminals or militias; (5) unavailability of necessary AIDS medications coupled with social stigma. While diverse, this list is obviously not exhaustive, and it seems to me there is a lot of room for creative lawyering (for example, might criminal prosecution qualify if the punishment is severe enough?).
Thus, for victims of FGM, the “other serious harm” category of asylum could be a useful tool to obtain asylum, even if the harm they face is not based on a protected ground.
