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Daniyan's lawyers called the appeals board and asked again for a stay of deportation. The board refused to consider the request on behalf of the child because her deportation was "not imminent"--i.e., she was not in custody and no travel arrangements had been made. Daniyan's application was also denied, on the grounds that "the Board has concluded that there is little likelihood that the motion (to reopen) will be granted."
The lawyers then spoke to Patricia Vroom, the INS' district counsel, and asked her to join in the motion to reopen. According to the lawyers, a joint motion has a greater chance of success. Vroom conceded that female genital mutilation is a basis for asylum--this was established in 1996 in the case of Fauziya Kasinga, a young woman from Togo who won asylum on the basis that her husband intended to force her to undergo mutilation--but said that the child had not shown that her father had the ability to carry it out, because Nigeria is a large country and she could hide from him. The lawyers showed the INS documentation proving that in Nigeria the courts would help Xaviera's father gain access to her.
The INS had set the departure date for April 16. On April 8, the INS changed its mind and agreed to join in a motion to reopen solely in Xaviera's case. They still refuse to join in Daniyan's motion to reopen, saying that she doesn't have a case for asylum. But, because the person seeking asylum is a minor, they agreed to stay her mother's deportation. Daniyan was released from custody after three weeks.
Before receiving notification that the INS was joining the lawyers in a motion to reopen, the Board of Immigration Appeals denied the first motion, made solely by the lawyers. The board still has to decide whether to reopen the case and let Xaviera's asylum claim be presented.
When will the decision be made?
"We have no idea," says Rebecca Story. "They just could say no, in which case we'll appeal it to the Ninth Circuit."
It could be argued--and probably will be--that Daniyan's claim lacks credibility. It seems an improbable coincidence that, just when she's about to be deported, she conveniently gets a letter telling her that her child will be in danger if the deportation goes ahead. Only a saint could fail to wonder if she called her father and asked him to write the letter.
But coincidences happen, and the circumstantial evidence favors Daniyan. Her father's letter seems genuine--the concern he expresses about Xaviera arises naturally in a discussion of other family matters. And, even without his statement, the prevalence of female genital mutilation in Nigeria and the Yoruba tribe make it very likely, if not certain, that Xaviera would have to suffer it if she were sent back there.
Story argues that this case has more documentation to support it than most asylum cases.
"People don't admit in writing that they intend to do terrible things to the person seeking asylum," she says. "The evidence is nearly always circumstantial."
The little girl is scared and excited at the same time. Because I'm a reporter, she wonders if she'll get on TV. I joke with the kid and try to make her laugh. As I look at her, the health and beauty of her, I imagine her screams, the faces of those holding her down, the blade between her thighs, cutting her young flesh. And I think about those who would sign papers that will let it happen.
Contact Barry Graham at his online address: firstname.lastname@example.org