By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
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The girl is 12, but looks older. She wasn't born here, but she's American. She sounds like an American. She left Nigeria when she was an infant, and has no memories of the place. She attends school in Phoenix.
Xaviera Makinde has a long, thin body, large eyes and a nervous smile. As I sit with her in her lawyer's office, she doesn't understand what might happen to her.
U.S. authorities are trying to deport her.
But her mother and grandfather claim that if she is returned to Nigeria, her father will be waiting to have a traditional ritual performed on her--using a crude knife, a person with no medical training will cut off her clitoris and cut away all or part of her labia minora. No anesthesia will be used. The girl will be held down by two older women. When the procedure is over and the girl is bleeding, the wound will only receive superficial treatment. No doctor will be involved. Infection is common, and is often fatal.
Some call it female circumcision.
This term could not be less accurate. In males, circumcision simply means the removal of the foreskin. Although many consider it a pointless procedure, it has little or no effect on sexual function. The point of "female circumcision" is the removal of any sexual function other than the ability to procreate.
In the West, it's called by a different name: female genital mutilation.
"But she seems to be okay with it," Story says.
The girl tells me the same thing, so we go ahead. Her answers to my questions are monosyllabic. Like any other child of her age, she has no complex theory regarding the politics of immigration. My questions are simple, and so are her answers.
Does she object to being deported?
"I want to stay here. I don't feel I should have to go back to Nigeria all of a sudden. The education here is really good."
She knows about the plan to mutilate her, but she hasn't been told the details and clearly doesn't yet understand what it means.
Is she afraid?
The girl's mother, Theresa Daniyan, was never married to Xaviera's father. Daniyan came to the U.S. from Nigeria in 1987 with another Nigerian to whom she was married. She had a visitor's visa good for six months.
When the visa expired, she stayed on illegally. She had three more kids who are U.S. citizens, having been born here. She split up with her husband, who remarried. And then someone reported her to the Immigration and Naturalization Service, which initiated deportation proceedings against her and Xaviera in 1995.
They had a hearing in front of an immigration judge, John Richardson. They requested suspension of deportation. To be eligible for this form of relief, applicants must show seven years' continuous residence in the U.S. and good moral character and prove that they or U.S. citizens would face extreme hardship if the deportation went forward.
The judge found mother and daughter to meet the first two criteria, but ruled that they had failed to demonstrate that they would suffer extreme hardship, or that Daniyan's U.S. children would suffer hardship.
It might seem brutal enough to take children whose identity is American, who have never known anything other than being American, and send them to live in a foreign country.
But, while the deportation battle went on, the scenario became even darker for Xaviera.
Daniyan received a letter from her father, Joseph Daniyan, who still lives in Nigeria. He wrote to warn her that Xaviera's father and paternal grandfather wanted to bring the girl to Nigeria to have her mutilated according to tribal custom.
Although the prevalence of female genital mutilation in Nigeria is 60 percent countrywide, among the Yoruba tribe--which is Daniyan's tribe--it's 90 percent. Daniyan herself escaped it only because her father was against it. Her mother happened to oppose it as well, but the father always has the power of decision; the mother's wishes are irrelevant.
In March 1997, Joseph Daniyan wrote to his daughter again, telling her that he was being harassed by her former lover's family, and expressing fear that they would try to kidnap Xaviera from the U.S.
Joseph Daniyan's letter concludes, "So, Theresa, if anybody comes to you in America with the pretext of a desire to say hello to you . . . be wary. Don't give your address to anyone."
By this time, Theresa Daniyan had appealed to the Board of Immigration Appeals, been denied, and appealed to the Ninth U.S. Circuit Court of Appeals. The Ninth Circuit denied the appeal in November 1997. Daniyan and her daughter were given until February 5, 1998, to voluntarily leave the country.
In January, Theresa Daniyan's attorneys filed a motion to reopen the case to allow a request for asylum. The INS filed briefs to oppose the motion.
While waiting for adjudication, mother and daughter requested an extension of their voluntary-departure date, and a stay of deportation. The Phoenix district office of the INS denied both requests. In March, the INS requested that they surrender themselves for deportation. They did, and Theresa Daniyan was taken into custody and sent to a detention facility near Las Vegas. Xaviera was released into the custody of her former stepfather.
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