Olowo v. Ashcroft: Granting Parental Asylum Based on a Child's Refugee Status

Pace International Law Review Volume 18 Issue 1 Spring 2006 Article 13 April 2006 Olowo v. Ashcroft: Granting Parental Asylum Based on a Child's Refugee Status Meredith Aherne Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation Meredith Aherne, Olowo v. Ashcroft: Granting Parental Asylum Based on a Child's Refugee Status, 18 Pace Int'l L. Rev. 317 (2006) Available at: https://digitalcommons.pace.edu/pilr/vol18/iss1/13 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact . CASENOTES OLOWO V. ASHCROFT: GRANTING PARENTAL ASYLUM BASED ON A CHILD'S REFUGEE STATUS Meredith Ahernet I. Introduction ....................................... 318 II. Historical Background of Female Genital M utilation ......................................... 32.2 A. Types of Female Genital Mutilation ........... 322 B. The Debate Over the Practice of Female Genital Mutilation ............................. 323 C. Female Genital Mutilation in Nigeria ......... 325 III. Preceding Case Law and Legislation Before Olowo v. A shcroft ......................................... 326 IV. Circuit Court Cases in 2004 ....................... 329 A. Background of Olowo v. Ashcroft .............. 329 B. Abay v. Ashcroft ............................... 332 V. Discussion and Analysis of Child-Parent Asylum.. 333 A. "Persecution". ................................. 333 B. Comparison of Olowo and Abay ................ 334 C. United States Policy of Family Unity .......... 336 D. Best Interests of the Child ..................... 337 E. International Support ......................... 339 VI. The Need for Future Legislation .................. 341 VII. Conclusion ......................................... 341 t J.D., Pace University School of Law; magna cum laude; B.A. European History, cum laude, 2003, Dickinson College. I would like to dedicate this article to my parents John and Elena, and my sisters Kristelle and Elyce for their continued love and support. Special thanks to the editors and staff of the Pace International Law Review for their efforts in editing this article. 1 PACE INT'L L. REV. I. [Vol. 18:317 INTRODUCTION On May 11, 2004, the Seventh Circuit declared that Esther Olowo should be removed from the United States and sent back to her native country of Nigeria. The court ordered the deportation of Mrs. Olowo because of her attempts to smuggle an undocumented Nigerian child into the country in direct violation of the Immigration and Nationality Act (INA) § 212(a)(6)(E)(i). 1 On appeal Mrs. Olowo argued she should be granted asylum in the United States based on the fear that if she was forced to return to Nigeria, her twin daughters would also be "constructively deported" and forced to undergo female genital mutilation (FGM). 2 The issue facing the court was whether a valid asylum claim should be extended to a mother who feared her children would be subjected to persecution, against her will, if forced to return to- Nigeria. 3 Significantly, both daughters were legal permanent residents of the United States, and it was uncontested that it was in their best interests to remain in the United States. In making its decision, the court weighed the consequences of the girls going back to Nigeria with Mrs. Olowo, against the consequences of allowing Mrs. Olowo to remain in 4 the United States despite her illegal activity. Olowo v. Ashcroft is one of several recent cases to address the "parent-child FGM issue." 5 The circuits are split over this issue because of the varying statutory interpretation and differing applications of the term "persecution."6 0 lowo, a Seventh Circuit case, is within the group of cases holding that a mother (the most common family member trying to make this claim) cannot "bootstrap" her asylum claim to the threat facing her children. 7 Under § 208(b)(3) of the INA, asylum granted to parents can be extended to spouses and children under the concept 1 See Olowo v. Ashcroft, 368 F.3d 692, 695 (7th Cir. 2004). 2 Id. at 695; see also Marcelle Rice, ProtectingParents:Why Mothers and Fathers Who Oppose Female Genital Cutting Qualify for Asylum, 04-11 IMMIGR. BRIEFINGS 1, 18 (2004) ("constructive deportation refers to the de facto removal of a citizen or resident child that typically occurs when the minor's care-taking parent is removed from the country"). 3 Olowo, 368 F.3d at 701. 4 See id. at 701-02. 5 See Rice, supra note 2, at 1. 6 Id. 7 Id. at 5. https://digitalcommons.pace.edu/pilr/vol18/iss1/13 2 2006] CASENOTES 319 of "derivative asylum."8 However, the statute does not mention the extension from children to parents. Thus, some courts, such as those in the Seventh Circuit, prevent parents from seeking asylum through their children's potential persecution. 9 The opposing viewpoint, led by the Sixth Circuit, holds that a mother's asylum claim is independently valid because she fears her own persecution - the persecution of seeing her child suffer from FGM. 10 A mother, in such jurisdictions, may claim asylum under a broadened interpretation of the term "persecution," which includes emotional pain.1" This article argues that courts across the country should administer the broader interpretation of a mother's independent persecution and that the best way to accomplish this consistency is to develop this area of asylum law in order to remove the problem of statutory misinterpretation. Consistency when dealing with the issue of child-parent FGM can only be achieved through legislative improvements by Congress, not through inconsistent judicial interpretation. Congress needs to adopt specific requirements to ensure a balance between competing policies; controlling the number of asylum claims based on the fear of harm to another family member, as well as ensuring family unity in the best interests of a child. 12 Immigration law cannot continue to ignore this increasingly prevalent problem. It is against both American and international values to remove a family to a country where physical and emotional persecution awaits their return. During the process of developing new legislation, Congress should research the asylum laws of Canada, the United Kingdom, Australia, and other international bodies to gain insight into 13 different humanitarian policies. Every year approximately two million girls across the globe are subjected to the horrors of female genital mutilation.14 ToImmigration and Nationality Act 208(b)(3), 8 U.S.C. § 1158(b)(3)(A) (2006). 9 See id.; Rice, supra note 2, at 18. 10 See Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004). 11 Rice, supra note 2, at 8. 12 See Rice, supra note 2, at 14. 13 See id. at 10. 14 United Nations Organization, "What is Female Genital Mutilation? What Actions are Being Taken to Prevent it?," (...truncated)