We all like stories with a happy ending, and thanks to the many people who fought on her behalf, Fauziya Kassindja’s story does have a happy ending. On April 24, 1996, she was released from detention, and on June 13, 1996, she was granted political asylum. The happy ending to Fauziya’s story has an almost fairy tale quality to it. The young woman who was treated like a criminal and suffered insults and indignities at the hands of prison guards is now sought after by journalists, celebrated by congressmembers, and embraced by notables such as Alice Walker and Gloria Steinem. In addition, the media attention devoted to her struggle for justice led to extraordinary public awareness of female genital mutilation and increased compassion for the plight of refugees.
Notwithstanding the happy ending, it is important to acknowledge the suffering Fauziya endured along the way. She suffered the pain of separation that only a refugee, forced to leave home and family behind, can know. She suffered the loneliness of exile in the strange lands of Germany and America. She suffered the humiliation of jail cells and strip searches. And she suffered the injustice and bias of an immigration judge who dismissed her reality, and refused to believe the truth she told. By telling us the details, Fauziya reminds us that her story is not the only story; she is but one of the many asylum seekers fleeing persecution who arrive on our shores.
Keeping that in mind, this story would not be complete without asking if we have learned any lessons from the mistakes we made in treating Fauziya as we did. Have we learned that asylum seekers are not criminals and should not be treated as if they were? Have we come to accept that immigration judges – like all human beings – can and do make mistakes? And knowing that immigration judges make mistakes, have we made sure that there is the opportunity to correct those mistakes? Have we come to acknowledge that women’s human rights are legitimate human rights, and that women have the right to be protected as refugees even if the persecution that they fear is female genital mutilation, or some other harm unique to women which is an accepted norm in the culture in which they live?
I would like to answer each of these questions with a resounding yes. I would like to tell you that asylum seekers like Fauziya are no longer jailed, that they are assured of the right to appeal erroneous decisions of immigration judges such as Judge Ferlise, who ruled against Fauziya. I would also like to trumpet a victory for women’s human rights, and women refugees, and to tell you that there is an increased acceptance that FGM, rape, domestic violence, and other violations that commonly befall women, are protected by our refugee system. It would make for a very happy ending, indeed, to be able to say that not only was Fauziya vindicated, but that her story had a larger impact on U.S. refugee law and policy. However, if I told you that, I would be engaging more in wishful thinking than in truth-telling.
There have been some encouraging developments as a result of Fauziya’s struggle for justice. For example, there has been some progress in recognizing that gender-specific harms, such as FGM, should qualify a woman asylum seeker for protection. Not all judges and INS trial attorneys enthusiastically embrace the principle, but many do, and the Board of Immigration Appeals’ decision established binding precedent, upon which other cases may rely.
But, for the most part, U.S. refugee policy has become harsher. A new ‘expedited removal’ law, enacted by Congress in September 1996, reduces procedural protections for arriving immigrants. Under this law, asylum seekers such as Fauziya, who arrive in the U.S. without legitimate travel documents, will not be permitted to apply for asylum unless they express a fear of persecution or an intent to apply for asylum to an INS officer immediately upon arriving in the U.S. This requirement may not sound unreasonable. After all, Fauziya told the INS upon her arrival that she wanted to apply for asylum. But remember that Fauziya was advised by Charlie to request asylum immediately upon arriving. Many refugees do not know that it is in their best interest to talk to the first INS officer with whom they have contact, and to ask for asylum.
Even if the asylum seeker tells the INS officer that she fears persecution or wants to apply for asylum, she will only be permitted to do so if she can convince an asylum officer of the strength of her claim in an interview, which is normally to take place within two days of arriving in the U.S. Because this interview takes place so quickly, asylum seekers may be unable to contact an attorney to assist them in presenting the important facts of their case so that they can demonstrate the strength of their claim to the asylum officer.
A committed lawyer or legal team can make all the difference in a refugee’s case, as it did in Fauziya’s. One of the most important roles for the lawyer at this initial stage is to reassure the asylum seeker that she can and should tell all of the reasons why she fled her home country. This reassurance is necessary not because asylum seekers want to hide the truth, but because the things that happen to refugees are often painful and humiliating – making them excruciating to recount. And yet it is often those things which are the most painful to talk about that are the most significant facts in establishing one’s eligibility for political asylum.
To illustrate this point, imagine how wrenching it is for a woman to tell any stranger (especially a male) about multiple rapes and forced impregnation – a fate suffered by thousands of Bosnian Muslim refugees during the conflict in the former Yugoslavia. I have known of many asylum seekers, who only told their attorneys about rapes or other sexual violence after months of developing the trust and confidence to speak about such things. How likely is it that a woman asylum seeker will freely speak of such private things in an interview which is to take place within hours or days of arriving in the U.S.? Fauziya’s case provides a good example of the way in which humiliation and a sense of personal privacy may limit the information that an asylum seeker will tell strangers. When Fauziya was questioned by an INS official at Newark Airport, she told them that her reason for seeking asylum was to flee a forced marriage. She was too embarrassed to talk about the impending genital mutilation she had fled.
Fauziya was fortunate – her failure to tell the whole story at the airport did not foreclose her from obtaining protection. She was still permitted to apply for asylum and to press her case before an immigration judge. When the immigration judge denied her claim, she had the right to appeal to the Board of Immigration Appeals. Had the board denied her claim, she would have been able to appeal her case to the U.S. federal courts. This is no longer the case for asylum seekers like Fauziya. If the asylum officer who interviews the asylum seeker is not persuaded by the strength of her claim, there is only one level of review of this decision. This review is done by an immigration judge, and must occur within seven days. Even if the asylum seeker has managed to obtain representation, the expedited time frame does not give the lawyer much time to gather evidence or to otherwise develop the case. If you recall, much of the key evidence in Fauziya’s case – her marriage certificate, photographs of the wedding, her mother’s letters, information about FGM, expert testimony regarding cultural norms in Togo – were only obtained over time.
So what would happen if Fauziya Kassindja arrived today at Newark International Airport seeking asylum? We cannot really answer this question because we don’t yet know how expedited removal is working. We know that the INS officials who questioned Fauziya when she arrived at the airport in 1995 didn’t believe she was from Togo. But these officers have been given additional training to carry out their new function under expedited removal, and it is possible that as a result of this training they would respond differently to Fauziya’s story. We know that the immigration judge who decided Fauziya’s case ruled that she was lying, and that even if she was telling the truth, fear of FGM didn’t qualify her for asylum. Fauziya prevailed because she had the opportunity to appeal Judge Ferlise’s decision to the Board of Immigration Appeals, which reversed the immigration judge’s decision. Under expedited removal, such an appeal is no longer possible, though Fauziya would now be entitled to an interview with an asylum officer if she expressed fear of persecution. It is possible that such an interview with an asylum officer would be the measure to prevent her return to Togo. But we can only speculate about these possible results – we simply do not know what effect the elimination of procedural safeguards will have on asylum seekers like Fauziya Kassindja, who continue to arrive seeking protection.
Upon reading this, you may wonder why Congress adopted the expedited removal law, which eliminates the right to appeal and speeds up the process in a manner which appears to cut back on the safety net for asylum seekers. The proponents of expedited removal have said that it is necessary because immigrants with fraudulent claims for asylum have been taking advantage of the system. Whether or not there is merit to this concern, we must recognize that you and I – all of us who are citizens of the U.S. – are responsible for the actions of our government, and in particular for the restrictive measures against immigrants. In recent years we have expressed a fear of ‘illegal immigrants,’ who we imagine to be at the root of many societal problems – from unemployment, to crime, to overpopulation and environmental degradation. We fear that we are being overrun by ‘aliens’ and we believe that we are protecting ourselves and our families by keeping them out. Toward these ends, we have encouraged our congressional representatives to enact restrictive measures – such as expedited removal.
Yet, at the very same time that we as a nation are engaged in heated and negative anti-immigrant rhetoric, we are deeply touched by Fauziya’s suffering. In April 1996 when Celia Dugger published her front page story in The New York Times detailing Fauziya’s plight, we – her legal team – received literally hundreds of calls and letters of support for her. The callers and writers were incredulous that the U.S. would lock up a young woman such as Fauziya. They were outraged that we treated asylum seekers in this fashion. Is this a contradiction? Or is it simply the fact that when we Americans are confronted with the real story of an ‘illegal immigrant’ and are able to see the human face of the individual who has fled to us seeking protection, we are able to summon a noble response. We are able to put aside the rhetoric, and to replace it with concern and compassion.
America is known around the world as a defender of liberty and a haven for the oppressed. We should not pull up the drawbridge and turn a deaf ear to those who flee injustices and persecution. We should not close our eyes to suffering in the world. Instead of being motivated by our fear, we should be guided by our generosity, and remain true to Emma Lazarus’s time-worn inscription on the Statue of Liberty, which stands as a welcome to all those who would arrive at our ‘golden door.’
Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!
—Karen Musalo