Court Rules Asylum OK for Chinese Couple Escaping Population Control Officials

National   |   Steven Ertelt   |   Feb 2, 2004   |   9:00AM   |   WASHINGTON, DC

Court Rules Asylum OK for Chinese Couple Escaping Population Control Officials

by Steven Ertelt Editor
February 2, 2004

San Francisco, CA ( — A federal appeals court last week ruled that political asylum could be granted for a Chinese woman who suffered from a rape-like gynecological exam and her husband, who was threatened with forced sterilization. The ruling gives further support to Chinese citizens who face prosecution as a result of China’s coercive one-child population control policies.

Congress favors allowing Chinese citizens to receive political asylum when persecuted for "other resistance to a coercive population control program."

However, the courts have largely failed to back members of Congress until now. Judges routinely deny asylum for women who haven’t actually undergone a forced abortion or been forcibly sterilized, but have only faced threats from population control officials.

The ruling by the 9th U.S. Circuit Court of Appeals was the first to address the meaning of "other resistance."

The federal court considered the case of Xu Ming Li and her boyfriend, Xin Kui Yu who had fled Chinese authorities when a population control official visited the couple in their rural village to investigate false rumors that Li was pregnant. The Communist official ordered the couple to terminate their relationship.

The couple refused the request and Li told him "I’m going to have many babies … you have nothing to do with this."

The government official alledgedly told her she "would pay for" her defiance.

Two days later, she was forcibly taken to a birth control office where two men pinned her down while she was subjected to a 30-minute invasive gynecological exam. As she yelled, kicked and demanded they release her, she was told she would receive similar tests in the future, and if found pregnant, would be subject to an abortion.

"I was so scared. I was yelling. I was making noises," Li said, according to court documents, adding that officials told her, "For the rest of your life you cannot have child."

Officials also threatened to sterilize her boyfriend.

An immigration judge and the Board of Immigration Appeals had earlier said the couple were not eligible for asylum and the 9th circuit originally agreed.

However, the couple’s attorney, Michael Karr, asked the full court to review the decision of the three-judge panel.

The full court sided with the couple in a 10-1 decision.

"Even by rudimentary medical standards, the examination that followed was crude and aggressive," the court wrote. "The timing and physical force associated with the examination compelled the conclusion that its purpose was intimidation, and not legitimate medical practice."

Li and Yu were just short of China’s minimum age requirements for marriage. Li and Yu decided to marry anyway and their families sent wedding invitations, according to the Associated Press. When they found out, Chinese population control officials issued an arrest warrant for the couple, who immediately fled to the United States.

The appeals court directed the Bureau of Immigration Appeals, and ultimately U.S. Attorney General John Ashcroft, to grant the asylum.
"The ultimate decision to grant asylum is discretionary," the judges noted in the decision written by Judge Michael Daly Hawkins. "We do anticipate, however, that the Attorney General will give appropriate consideration to this court’s view of the seriousness of Li’s treatment at the hands of Chinese officials and the threat she faces if returned."

Only 1,000 political asylum slots are granted to people from population control countries.