The Coalescence of United States Immigration Law and International Criminal Law: An Exploration of Elias Zacarias in the Context of Female Genital Mutilation


In INS v. Elias Zacarias, the Supreme Court (SC) affirmed that nongovernmental actors (e.g., guerilla groups) can commit “persecution” as defined by § 101(a)(42) of the Immigration and Nationality Act (INA). Human rights violations by any international actor, governmental or otherwise, can thus, according to Elias Zacarias, trigger asylum protection in the United States (US). In contrast, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the US is a party, requires the victimizer to be a “public official or other person acting in an official capacity.”

The CAT thus imposes a state actor requirement. This definitional discrepancy creates a curious intersection between US immigration law and international criminal law. Given the comparable levels of harm between persecution and torture, the holding in Elias Zecarias challenges the CAT’s state actor requirement. The state actor requirement is a critical element to the categorization of certain forms of torture under the CAT. A body of scholarly literature has examined whether female genital mutilation (FGM) constitute tortures under the CAT. A major obstacle to this recognition, however, is that FGM is traditionally committed by nongovernmental actors. Because the CAT requires that the victimizer be a state official, the commission of FGM has fallen outside of its realm. The holding in Elias Zecarias offers the opportunity to revisit both the CAT’s state actor requirement and the exclusion of suspected FGM perpetrators from the CAT’s personal jurisdiction. Part I of this essay assesses the prohibition of torture in international law. Part II, first, describes the history and prevalence of FGM, and second, examines the relationship between FGM and the CAT. Part III, first, explores the concept of persecution within US immigration law, and second, reviews the holding in Elias Zacarias. Part IV concludes that because FGM and persecution involve comparable levels of harm, the definition of the CAT should be expanded to include the commission of torture by both state and non-state actors. Extirpating the state actor requirement would permit the inclusion of FGM as torture under the CAT, which could then lead to, first, civil litigation in the US under the Alien Tort Claims Act (ATCA) and/or the Torture Victims Protection Act (TVPA), and second, to individual criminal prosecution before the International Criminal Court (ICC).


Human Rights Law | Immigration Law | International Law

Date of this Version

October 2006