Ruling Has Federal Appeals Courts at Odds on Forced Abortion Asylums

International   |   Steven Ertelt   |   Jul 16, 2007   |   9:00AM   |   WASHINGTON, DC

Ruling Has Federal Appeals Courts at Odds on Forced Abortion Asylums Email this article
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by Steven Ertelt Editor
July 16
, 2007

New York , NY ( — A new ruling by the 2nd U.S. Circuit Court of Appeals has federal appeals courts at odds over how frequently victims of the forced abortion policies of China can apply for asylum in the United States. While the 2nd Circuit ruled against asylum in a recent case, the 9th Circuit supported it.

In it’s Monday decision, the 2nd Circuit ruled that spouses and unmarried partners of women who face inhumane treatment under rigid Chinese population control measures do not automatically qualify for asylum.

The court said section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 explicitly protects those who are forced to "abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program."

However, the appeal court alleges the law is unambiguous about extending protection beyond that — such as helping spouses or partners of the victims.

The court acknowledged that by deciding the Board of Immigration Appeals incorrectly interpreted the statue, they were conflicting with decisions in a number of other circuits.

Most specifically, the 2nd Circuit is at odds with a 9th Circuit ruling last month.

That appeals court ruled that asylum protections include both the women themselves as well as their spouses or partners.

The three judge panel of the federal appeals court ruled unanimously in its June decision.

"Both forms of persecution have serious, ongoing effects," the panel wrote. "We see no way to distinguish between the victims of forced sterilization and the victims of forced abortion for withholding of removal eligibility purposes."

Writing for the 2nd Circuit, Judge Guido Calabresi acknowledged that his court is out of step with colleagues on most other circuits but called it remarkable that "essentially everyone on this court agrees" that the U.S. asylum law doesn’t cover spouses and partners.