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IMMIGRATION AUGUST 01, 2025 | The Indian Eye 36
The Exception that Disproves the
Rule: How Matter of K-E-S-G-‘s FGM
Exception Exposes Its Incoherence
BY DAVID ISAACSON work, I want to focus on why lation and our holding in this group in the FGM context seca, the outcome in Hassan
an exception that the BIA case does not affect the via-
should have been the same
in a country where the prev-
I n its recent decision in made in multiple footnotes bility of such claims in the fu- alence of FGM is so high. if only 10% of women in So-
malia were subject to FGM,
Matter
K-E-S-G-,
of K-E-S-G- for cases relating ture” and on this basis distin-
(The BIA does not make en-
of
29 I&N Dec. 245 (BIA to female genital mutilation guishes Hassan v. Gonzales,
2025), the Board of Immigra- (FGM) actually makes clear 484 F.3d 513 (8th Cir. 2007), tirely clear how it would ana- if that implied a 10% proba-
lyze an FGM case involving a bility that a particular asylum
tion Appeals (BIA) held that that the entire decision is log- which recognized a partic- lower prevalence than 98%, applicant would be so subject
“a particular social group ically incoherent. ular social group of Somali although footnote 8 of K-E- by virtue of being a woman.
defined by the alien’s sex or The BIA in K-E-S-G- re- females in the context of a S-G- broadly exempts FGM The same is logically true of
sex and nationality, standing jected the claim of the Sal- claim based on FGM. claims from the decision’s any other form of mistreat-
alone, is overbroad and in- vadoran asylum applicant The BIA’s exception for holding without reference to ment, sufficiently severe to
sufficiently particular to be in that case, and seemingly FGM was presumably made a numerical cutoff.) qualify as persecution, that a
cognizable under the INA” attempted to pre-empt the because of case law such as Asylum, however, does woman is exposed to with a
as a basis for asylum. Matter asylum claims of all other Hassan, and perhaps because not require that persecution 10% or greater likelihood, in
of K-E-S-G-, 29 I&N Dec. women who assert that they of a more general realization have a 98% likelihood, or a particular country, by virtue
at 152. Several organizations face persecution due to their that it would be facially lu- anything close to that. The of being a woman—keeping
have already explained why gender and nationality (ab- dicrous to deny that wom- statutory standard under 8 in mind, again, that statis-
this decision is an unlawful sent other factors). In foot- en subjected to FGM have U.S.C. § 1158(b)(1)(A) and tical certainty is usually not
attack on refugee women notes 7 and 8 of its decision, faced persecution—although 8 U.S.C. § 1101(a)(42)(A) is, obtainable in these matters.
that will have horrible con- however, the BIA states that even if the BIA had taken instead, a well-founded fear Since the regulations at
sequences. In this blog post, K-E-S-G- “does not involve a that ludicrous step, Court of persecution. The Supreme 8 CFR 208.13(b)(1) and 8
rather than duplicating that claim of female genital muti- of Appeals cases like Has- Court clarified many years CFR 1208.13(b)(1) provide
san and Mohammed v. ago in INS v. Cardoza-Fon- that a victim of past perse-
Gonzales, 400 F.3d 385 seca, 408 U.S. 421 (1987), cution benefits from a pre-
(9th Cir. 2005), would that “to show a “well found- sumption of a well-founded
exist whether the BIA ed fear of persecution,” an fear of future persecution,
acknowledged them or alien need not prove that it there will be many cases in
not. Upon further analy- is more likely than not that which it will not make sense
sis, however, this excep- he or she will be persecuted to require a (previously per-
tion for asylum claims in his or her home country.” secuted) asylum applicant to
based on FGM exposes Rather, “a showing of a ten make any statistical showing
why the overall holding percent likelihood of perse- at all. Moreover, a conflation
of K-E-S-G- does not cution could suffice to estab- of likelihood of persecution
make sense. lish that an applicant’s fear is with the particularity of a
The BIA says of well-founded.” Kyaw Zwar particular social group is po-
Hassan that the Eighth Tun v. INS, 445 F.3d 554, 565 tentially problematic to begin
Circuit there “held that (2d Cir. 2006) (citing Cardo- with, since the evaluation of
“Somali females” was a za-Fonseca, 408 U.S. at 431). a particular social group and
particular social group Ordinarily, of course, one the evaluation of likelihood
because of the preva- cannot quantify a likelihood of persecution are supposed
lence—98 percent—of of persecution with statistical to be different stages of the
female genital muti- certainty, but the basic point asylum analysis. But even if
lation in the country.” remains: the chance of per- we accept that an approxi-
Matter of K-E-S-G-, 29 secution required in order mate statistical assessment
m of I&N Dec. at 151 n.7. to support an application for may be relevant, as the BIA
CYRUS D. MEHTA & PARTNERS PLLC The implication seems asylum is much, much lower indicates in footnote 7 of
to be that, according to than the 98% suggested by K-E-S-G-, we must accompa-
the BIA, other forms of the evidence in Hassan. ny that acceptance with the
persecution of women Given this, however, the realization that under Car-
are not so statistical- BIA’s basis for distinguish- doza-Fonseca, the relevant
ly prevalent, and that ing Hassan and FGM while statistical threshold is no-
women in other contexts attempting to maintain an where near the 98% at issue
thus cannot constitute a otherwise broad rule against in Hassan. If, as the BIA has
particular social group gender as a particular social implied in footnote 7, perse-
even if they can consti- group is logically unsustain- cution of 98% of women in a
2 6th Floor
tute a particular social able. Under Cardoza-Fon- particular country by means
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