Three plaintiffs from Guinea who underwent female genital mutilation (“FGM”) appealed decisions from the Board of Immigration Appeals (“BIA”), which had denied their claims for relief and withholding of removal under the Convention Against Torture based on FGM. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution, unless the government shows either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the presumption was automatically rebutted because the FGM had already occurred. On appeal, the Second Circuit held that the fact that an applicant had already undergone FGM cannot, in and of itself, rebut the presumption that her life or freedom will be threatened in the future. In doing so, the Second Circuit found that the BIA had committed two significant errors in its analysis. First, it assumed that FGM is a one-time act without placing the burden on the government to show that the individuals in this case are not at risk of further mutilation. Second, to rebut the presumption, the government must show that changed conditions in the country obviate the risk to life or freedom related to the original claim; it is not enough that the particular act of persecution suffered by the victim in the past might not reoccur. The Second Circuit accordingly vacated the BIA decisions and remanded the cases.
Bah v. Mukasey