On February 25, 2010, the United States Court of Appeals for the Second Circuit determined that a woman’s repeated returns to her home country was not enough, in and of itself, to bar her claim for asylum.  Petitioner Nan Marie Kone grew up in Cote d’Ivori (the Ivory Coast) in a community that practiced female genital mutilation (FGM).  Since being subjected to the ritual as a young girl, she has had to cope with both the physical and mental harm she suffered.

Ms. Kone first came to the United States in 2002, and between the years began traveling back and forth between her home country and then United States.  During many of her times she returned to her home country, she suffered maltreatment, whether being arrested for her political believes or having family members murdered for their religious beliefs.  Following tumultuous events, she would seek refuge in the United States, but never gave up the hope that eventually the political and ethnic strife in her home country would be resolved.  Eventually, this hope dissipated, and she sought out asylum in the United States in 2005.

This petition was denied, based primarily on the evidence of her repeated returns to the Ivory Coast.  Asylum is based on the premise that a safe-haven will be given to those who face persecution in their home countries.  A finding of past persecution creates a rebuttable presumption that fear of future persecution is well-founded.  Evidence of FGM is generally held to be fundamental evidence of past persecution.  This places the burden on the government to show that by a preponderance of the evidence, the reasons for this fear no longer exist, because of changed circumstances.  In Ms. Kone’s case, the government argued that the evidence of her frequent visits back to her home country were enough to meet the burden of proof to show a change of circumstances.  Though the trial court agreed with this argument, the appellate court for the Second Circuit disagreed.  They instead held that while it may be relevant evidence, such evidence alone is not enough to meet the preponderance of the evidence standard.  Based on this finding, the court remanded the case for a new trial to reevaluate the circumstances surrounding Ms. Kone’s case in light of this new rule.

This holding, that the simple fact of safe return on a particular occasion does not negate the potential of future harm, can help provide precedence for many immigrants who are torn between facing heinous treatment in their home country and living a better life in the United States, at the cost of abandoning their family, friends, and previous lives.  By allowing more leeway for those who don’t up and leave their lives in one final move, this helps many of those in the worst situations have a greater chance of having hope of a better life once they have made their final decisions.