Tuesday, February 07, 2006

How compelling is a parallel, oblique cite?

Mohammed v. Gonzales, 400 F.3d 785 (9th Cir., 2005) really rocked the world by stating that suffering female genital mutilation (FGM) was a continuing persecution. This is important because usually past persecution isn't enough: you need to dig into speculation about what would happen if an asylum-applicant were to return home. No simple past facts (having already been beaten, raped, etc.) will normally keep you from deportation if the situation in your home country has changed--say the government has turned over so that your beaters are out of power. Asylum law is usually prospective: what will happen if you return? (See, though, Matter of Chen.)

Mohammed says that having your privates chopped up scars you for life, and so this past persecution continues, and you don't need to establish anything about the future except that your FGM isn't likely to spontaneously undo itself.

What if you're not in the 9th Circuit? What if your client is in New York? Well, you've got
Ai Xun Jiang v. AG, 2005 U.S. App. LEXIS 28749 (2nd Cir., 2005). But this is a case about forced sterilization as the continuing persecution, and only cites Mohammed without discussing it.

How compelling is this? The case I want (9th Cir) is only obliquely mentioned, and the case that's binding (2nd Cir) is on a different topic.

UPDATE: wtf? When you Shepardize Mohammed, Lexis tells you the case is in the 2nd Cir. But when you look at the top of the case, it says it's 3rd Cir! I just lost a great case, even if it wasn't fully compelling. Maybe Lexis can change the case's preamble rather than correcting the Shepard's entry. Damn.

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