Attorney General Michael B. Mukasey, a former federal judge, threw out a decision by an arm of the Justice Department denying asylum to a 28-year-old woman from Mali who has already undergone genital mutilation.
First in September last year the U.S. Board of Immigration Appeals turned down the unidentified woman's plea for asylum. Then in April this year a Justice Department panel refused a request for reconsideration, inviting criticism from immigration and refugee groups and medical ethicists.
The board's rationale was that because the woman had already been mutilated, she no longer had a legitimate fear of further persecution!
Under U.S. law such a possibility must exist for asylum to be granted.
In Monday's six-page order Attorney General Mukasey said the Board's decision was replete with "legal and factual errors."
"To begin with, the board based its analysis on a false premise: that female genital mutilation is a 'one-time' act that cannot be repeated on the same women," he wrote. "As several courts have recognized, female genital mutilation is indeed capable of repletion."
He cited a case where an asylum applicant's vaginal opening was sewn shut five times after being opened to allow for sexual intercourse and childbirth, Los Angeles Times reported.
"The board was wrong to focus on whether the future harm to life or freedom that [the applicant] feared would take the 'identical' form," he added.
The Malian woman had expressed concern that if she were deported she would be forced into marriage, and that any daughters she might have would also face mutilation.
Mukasey's decision to intervene came as the woman's case was being appealed to the U.S. 4th Circuit Court of Appeals in Virginia. His order -- that the immigration panel reconsider its position -- does not guarantee the woman permanent residency in the U.S., but legal observers said they doubted the agency would oppose the move.
"I think the response now is one of overwhelming relief and jubilation . . . and a feeling of hope that this will set a precedent for future cases," said Jen Smyers, a policy analyst with the immigration and refugee program at Church World Service, a New York-based humanitarian cooperative of churches.
Kevin Johnson, an immigration specialist and dean of the UC Davis School of Law, said the action was something of a surprise.
"This administration has been pretty tough on women who claim persecution," he said. "It is a positive step in the right direction.
"It is not a particularly human gesture to turn your back on people who have been previously persecuted. It is not a particularly generous way of looking at our asylum laws."
Mukasey had been urged to look into the matter by angered members of Congress in the wake of the January decision, CNN said.
"This recent action taken by the Board of Immigration Appeals is a step backward for the rights of women worldwide," declared Rep. John Conyers, D-Michigan, in a January letter.
"Female genital mutilation is a gross violation of a woman's human rights and has traditionally been grounds for the granting of an asylum claim," Rep. Zoe Lofgren, D-California, said in the letter.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, issued a statement applauding Mukasey's action, and declaring female genital mutilation a "barbaric practice widely regarded as a human rights abuse."
The Justice Department acknowledged it is extraordinarily rare for an attorney general to jump into a relatively low-level immigration case. The immigration courts decide about 40,000 cases a year, and an attorney general has issued an opinion on a case only three times in the past three years.
Female genital mutilation is common in parts of Africa, Asia and in some Arab countries, according to the United Nations. The operation is viewed by some ethnic groups as a means to control a woman's sexuality and is sometimes a prerequisite for marriage or the right to inherit.
The procedure can cause tissue injury, severe infection and fever, among other complications. The U.N. has recorded cases in which hemorrhaging and infection lead to death.