Judge Slams Rejection of New Asylum Hearing

(CN) - A 9th Circuit judge said Tuesday that the court erred in denying a full panel review of a case involving a woman seeking asylum from a country where 90 percent of women suffer genital mutilation.

In a dissent from the court's order, Judge Harry Pregerson wrote that Makda Fessehaie Teclezghi deserved a new hearing despite having exceeded time limitations. A three-judge panel declined to reopen Teclezghi's case on April 30, and Teclezghi requested a vote from the full court.

Judge Betty Fletcher dissented from the April opinion, writing that Teclezghi proved that her case was tainted from ineffective counsel.

When the full court voted down a review, Pregerson took up Fletcher's argument, writing that the majority's decision "will have a detrimental effect on asylum seekers" and contradicts precedent.

"Teclezghi filed a motion to reopen based on the ineffective assistance of her previous attorneys, who all failed to ask her whether she had suffered female genital mutilation, a basis upon which she could have applied for asylum," Pregerson wrote.

Teclezghi arrived in the U.S. in 1998 from the northeast African nation of Eritrea, where 90 percent of women suffer genital mutilation, according to a 2005 human rights report from the State Department. Nearly three years after immigration officials denied her claims for asylum based on religious persecution, Teclezghi revealed that her genitals had been mutilated as an infant. At this point, however, the court ruled that her claims were untimely.

While attorneys may be uncomfortable asking immigrants seeking asylum intensely personal questions, Pregerson wrote that failing to do so amounts to incompetence.

"Contrary to the panel majority's view, immigration attorneys do have a duty to identify all forms of relief that are available to their clients, including female genital mutilation," Pregerson wrote. "In turn, clients should be able to rely on their attorneys to competently perform this duty. Teclezghi had no reason to know that her female genital mutilation would qualify as a basis of asylum in the United States. The panel majority, however, erroneously places the burden on the asylum seeker to relay all types of personal facts to her attorney, regardless of whether the asylum seeker knows the facts are relevant to her asylum claim."

Pregerson continued: "The panel majority fails to recognize that most political asylum applications are intensely personal, often painful, and may involve questions of sexual torture, rape, and humiliation. It is entirely expected that clients may not want to readily reveal such circumstances to their attorneys. It is precisely because the subject matter of an asylum claim based on female genital mutilation is so intensely personal and our immigration system so complex that an attorney has a special responsibility to adequately explain to her female clients their rights to asylum and diligently investigate all grounds for relief."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit