She Must Be Mutilated, First: How the United States Violates its Duties Under the Convention Against Torture by Denying Relief to Women Who Fear Future Female Genital Mutilation
An estimated three million girls are expected to suffer Female Genital Mutilation (FGM) in 2018. Also known as Female Genital Cutting or Circumcision, FGM is performed for the purposes of curbing sexual behavior and increasing a perception of cleanliness and feminism. It is encouraged and perpetuated through social norms, like receiving increased dowries and bride prices for circumcised women, in many cultures across the globe. In actuality, there are no health benefits to the practice, but instead FGM causes a massive number of health effects. Viewed as a violent violation of human rights by the United Nations (UN) and other entities worldwide, FGM is still a principal practice within at least 30 countries and on three continents.
Victims of FGM have sought remedies in the United States for decades, including asylum and relief from removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under CAT, “torture” is defined as:
[A]ny act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
While FGM victims are traditionally not mutilated for the purposes of obtaining information, as a form of punishment, or to coerce, FGM is viewed internationally as a form of discrimination against women. The United States grants CAT relief for women who have suffered FGM in the past, however women have been unsuccessful in obtaining relief when they have a fear of suffering FGM in the future if they must return to their country of origin. As ratified, the United States cannot “expel, return, or extradite a person to another State where there are substantial grounds for believing that [they] would be in danger of being subjected to torture.” When the applicant fears a future threat to life or freedom, they bear the burden of proof of showing that they are “more likely than not” going to suffer future harm.
First, this Note will explain the cultural implications and prominence of FGM worldwide. It will introduce CAT and briefly distinguish CAT’s relief from removal from other kinds of relief, like a grant of asylum. It will also identify how women who have already suffered FGM qualify for CAT relief.
The second part of this Note will analyze why women who have not yet undergone FGM, but who fear FGM upon being forced to return to their country of origin, are denied CAT relief. Women who fear future undergoing FGM in the future are denied CAT relief for any of four reasons: (1) applicants have inconsistencies across testimonies and evidence, creating credibility questions; (2) applicants have not shown that they are “more likely than not” going to face harm upon return to their home country; (3) applicants have not shown that they are unable to find another region within their home country to return where they would not face torture; (4) the perpetrators of FGM did not complete the torture with the acquiescence of the applicant’s home country’s government. This section will conclude that the United States yields faulty conclusions regarding a government’s acquiescence in cases. One example includes cases where women are denied relief because their home country has outlawed FGM or a well-known public official has spoken out opposing the practice, which the United States accepts as the government not “acquiescing” to the practice. This logic is faulty, however, if these countries show little enforcement of the laws and prevalence rates are still overwhelmingly high. This Note argues that, in situations like described, the United States violates its obligations under CAT as it deliberately sends women back to countries where it is reasonable to believe that, upon return, they will more likely than not face torture in the form of FGM.
The third and final part of this Note will provide recommendations to the Courts and Practitioners in working to obtain relief for women who fear future FGM. This proposal will set forth recommendations that the Court recognize CAT’s obligations in granting relief where the applicant has satisfied the “more likely than not” burden. Additionally, it will recommend that practitioners provide evidence to show lack of enforcement measures in an applicant’s home country to illustrate that the country’s action satisfies the “acquiescence” element of the definition.
 Sexual and Reproductive Health: Female Genital Mutilation (FGM), World Health Org., http://www.who.int/reproductivehealth/topics/fgm/prevalence/en/ (last visited Oct. 14, 2017).
 Female Genital Mutilation: Fact Sheet, WHO (Feb. 2017), http://www.who.int/mediacentre/factsheets/fs241/en/ (last visited Oct. 12, 2017) [hereinafter FGM Fact Sheet].
 Michelle Krupa & India Hayes, The Alarming Rise of Female Genital Mutilation in America, CNN (July 15, 2017) http://www.cnn.com/2017/05/11/health/female-genital-mutilation-fgm-explainer-trnd/index.html.
 FGM Fact Sheet, supra note 2.
 Sexual and Reproductive Health: Female Genital Mutilation (FGM), supra note 1.
 Zsaleh E. Harivandi, Note, Invisible and Involuntary: Female Genital Mutilation as a Basis for Asylum, 95 Cornell L. Rev. 599, 607–10 (2010).
 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [CAT], Dec. 10, 1984, 1465 U.N.T.S. 85, art. 3.
 Harivandi, supra note 6 at 624–25.
 FGM: An Internationally Recognized Human Rights Issue, Ont. Hum. Rts. Comm’n, http://www.ohrc.on.ca/en/policy-female-genital-mutilation-fgm/3-fgm-internationally-recognized-human-rights-issue (last visited Oct. 13, 2017).
 Kone v. Holder, 620 F.3d 760, 765 (7th Cir. 2010).
 Richard P. Shafer, Annotation, Construction and Application of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, or Punishment, 184 A.L.R. Fed. 385 (2003).
 8 U.S.C. § 2242 (1998).
 8 C.F.R. § 203.16(c)(2) (1999).
 See Niang v. Gonzales, 422 F.3d 1187, 1202 (10th Cir. 2005) (holding that the applicant’s inconsistencies in her application materials and testimony made her “untruthful” in her application for CAT relief).
 See In re A-K-, 24 I. & N. Dec. 275, 280 (BIA 2007) (holding that the applicant does not meet the requirements of obtaining CAT relief as a father did not provide evidence to show that his daughters are more likely than not going to be tortured upon return to their home country).
 See Kipkemboi v. Holder, 587 F.3d 885, 889 (8th Cir. 2009) (holding that the applicant has not shown that they could not live in a part of the country where FGM is less common in order to avoid being tortured).
 See Toure v. Ashcroft, 400 F.3d 44, 50–51 (1st Cir. 2005) (explaining how, since the Guinean government has outlawed FGM and public officials have spoken out against the practice, the Court denied CAT relief for fearing future FGM, holding that the Guinean government has not “acquiesced” to the torture).
 Guinea has one of the highest prevalence rates of FGM worldwide at 97% and rarely prosecutes and enforces the ban on the practice. Cécile Barbière, Guinean Expert: “We Need to Target Different People in our Fight Against FGM,” Euractiv (Samuel White trans., Jan. 31, 2017), https://www.euractiv.com/section/development-policy/interview/guinean-expert-we-need-to-target-different-people-in-our-fight-against-fgm/.