Monday, August 24, 2009

Benyamin v. Holder (9th Cir. - Aug. 24, 2009)

Few things in life are certain. Death. Taxes. Stuff like that.

But let me add another item to the list. I'm exceedingly confident that if you're the BIA, and if you draw Judge McKeown as part of your panel on appeal, she isn't going to be all that pleased when you deny asylum on the ground that the child's threatened female genital mulilation "isn't really all that bad."

Okay, so that's a slight exaggeration of what the BIA said. Here are the actual quotes: Comparing a five-day old infant's involvuntary Type I genital mutilation to "a minor form of genital ritual," the BIA said that this act was "less extreme" than other situations in which people hack off parts of your body -- thanks for that, BIA --and "involves minimal short term-pain, suffering, and complications." Hence you're not eligible for asylum even if the applicant can demonstrate that that'll happen to her (or her child) if she's deported.

Needless to say, that ain't how Judge McKeown views it. Or the rest of the panel (Judges Betty Fletcher and Randy Smith). Or anybody else who's rational, in my view.

I surely can't complain about the opinion, which is both well-written as well as reaches the right result. The only thing I might have added is a less sterile description of what's at stake. The opinion nowhere describes the procedure we're talking about other than calling it "Type I." Descriptive words like "clitoridectomy" -- or even "clitoris" -- are nowhere in the opinion, or even a routine description of what transpires and why.

Now, I understand that maybe we're writing for the squeamish, but when the opinion is all about why this procedure is still horrible (albeit less devastating than, say, Type IV), I think it'd be helpful to be more than clear about what we're talking about. This is not a piercing. This is not a minor act. This is something that's incredibly substantial, and its involuntary practice more than justifies asylum.

Judge McKeown does a very good job describing how Type I multilation can cause complications, damage to the psyche, etc. But we need a little more of this type of stuff as well. Because, especially here, the more you know, the more persuasive the opinion.

At least in my view.