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Seventh Circuit Blocks Removal to Botswana

CHICAGO (CN) - Though female genital mutilation is uncommon in Botswana, the Seventh Circuit blocked a woman's removal to the country, one of the most stable in Africa, since the government might permit the practice if she returns.

Bathusi Musa met and married a U.S. citizen after entering the United States on a visitor's visa in April 2008.

When Musa sought permanent resident status, however, the Department of Homeland Security denied her application in June 2009, finding that Musa's husband was already married to someone else.

Musa faced removal proceedings five months later, as her visa had expired. The couple divorced in 2010, and Musa applied later that year for asylum, withholding of removal, and protection under the Convention Against Torture.

Now 30, Musa says she is a member of the Kalanga tribe in Botswana. Noting that her grandmother is a "medicine woman" who has performed female genital mutilation in the past, Musa says she would be forced undergo this procedure if retuned to Botswana to keep the entire family from being cursed.

The immigrant reported that her family tried to force her to undergo the mutilation twice before: first, having a group of kidnap her when she was 16, and then sending several men to attack her one year later.

Plus, since she left home, Musa's parents have allegedly found her a 75-year-old suitor, marriage with whom would help them financially, but also make her undergo genital mutilation.

The immigration judge denied Musa's application for asylum as untimely, however, going on to note that the incidents in Botswana did not amount to past persecution because Musa had not actually undergone female genital mutilation.

Relying on figures that female genital mutilation is "not widely practiced" in Botswana, the judge pointed to a 2005 study by Unicef that says 3 million girls in Africa are at risk of female genital mutilation each year.

Though the Board of Immigration Appeals affirmed, the Seventh Circuit granted Musa withholding of removal Friday.

"Substantial evidence does not support the agency's conclusion that Musa likely will not be subjected to FGM," Judge David Hamilton wrote for the three-judge panel, abbreviating female genital mutilation.

Hamilton agreed with Musa's claim that the immigration judge "wrongly disregarded ... testimony about her family's FGM practice - testimony that he explicitly credited.

"The fact that FGM is not widespread in Botswana as a whole does not contradict her statements about her family's practice," the judge added.

Plus, the immigration judge "erred by failing to acknowledge the likelihood that she will be subjected to FGM upon returning to Botswana and acceding to the marriage," the opinion states.

Hamilton said the administrative judge also improperly credited a possibility that Musa could find a home in another part of Botswana.

The court nevertheless denied Musa relief under the Convention Against Torture, finding no evidence that the government in Botswana would allow forced FGM.

Musa likewise failed to show that her marriage and divorce represented extraordinary circumstances that would toll the statute of limitations.

Musa "disputes only the application of the law to her circumstance, not the governing legal rules," Hamilton wrote. "We thus lack jurisdiction to review the denial of her asylum application."

The panel remanded the case to the Board of Immigration Appeals.

Justice Department spokeswoman Nicole Navas and U.S. Immigration and Customs Enforcement spokeswoman Gillian Christensen both declined to comment on the ruling Tuesday.

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