FGM and well-founded fear

Lo v. Holder, No. 10-3497 (6th Cir. Nov. 8, 2012) (published)

In this FGM case from Senegal, the female applicant suffered past persecution based on two attempts to subject her to genital mutilation.  The BIA found that the birth of her daughter in the U.S., and the resultant fear that the daughter could be subjected to FGM, constituted an exceptional circumstance excusing the late-filed application.

The question was whether she had a well-founded fear of persecution.  The court agreed with the BIA that she did not.  First, she "aged out" in that she was too old to be a target of FGM. Second, FGM is in decline in Senegal.  Third, her husband belongs to a tribe and religion that does not practice FGM, so she could safely relocate to an area of Senegal where she would not be in danger.

The court also rejected her claim based on her fear that her daughters would be subjected to FGM.  Distinguishing the Court's decision in Abay, the Court noted that the family could live in an area and with a tribe that does not practice FGM, and the daughters are U.S. citizens who could remain in the U.S. with guardians or other family members.

This "painful" result, as the court suggests it is, should have been considered for humanitarian asylum because separating this family would seem to constitute "other serious harm."  One wonders why this claim was not presented or considered since the female applicant suffered past persecution.