Husband of Chinese Forced Abortion Victim Gets Second Chance at U.S. Asylum

International   |   Steven Ertelt   |   Aug 21, 2009   |   9:00AM   |   WASHINGTON, DC

Husband of Chinese Forced Abortion Victim Gets Second Chance at U.S. Asylum

by Steven Ertelt Editor
August 21
, 2009

Washington, DC ( — The husband of a woman who was a victim of a forced abortion in China has won a second chance to receive asylum in the United States. Liang Chen is one of many Chinese residents who flee to the U.S. because they are targeted by family planning campaigners enforcing the one-child policy.

Liang left China in 2004, five years after his wife was forced to submit to an abortion when she violated the nation’s pregnancy rules.

At the time he applied for asylum, the Bureau of Immigration Appeals conferred automatic refugee status on the spouse of a person forced to have an abortion. However, according to Courthouse News Service, an immigration judge did not find Liang’s story credible and denied the application.

Liang appealed and, one year later, former Attorney General Michael Mukasey reversed the BIA interpretation of the abortion rule. He determined that a spouse was not entitled to automatic refugee status because of his wife’s forced abortion.

Mukasey new policy, CNS noted, makes it so the spouse must prove that he has suffered persecution or faces the threat of persecution.

Many partners face forced sterilizations for violating the pregnancy rules, imprisonment, job loss or other threats or deprivation of rights.

Now, the 7th Circuit Court of Appeals has ruled that Liang should get a new opportunity to seek asylum under the new rules.

"Because of the way the proceedings unfolded in Chen’s case, he has been deprived" of the chance to meet those new standards, the appeals court ruled, according to CNS.

Asylum cases involving forced abortions and sterilizations have been confusing enough that the Supreme Court is reviewing decisions made at the appeals court level that are conflicting.

The dispute is over whether partners of the women who are victimized can qualify for asylum and interpreting the U.S. asylum law.
Last year, a ruling against asylum for the partner of one victim by the 2nd U.S. Circuit Court of Appeals put it at odds with the 9th Circuit, which supported it.

In the June 2007 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.

A month earlier, the 9th Circuit ruled that asylum protections include the women as well as their spouses or partners.

Rep. Chris Smith, who authored the law in dispute, says it was intended to cover them.

"Not to include both when both are harmed irreparably would be a gross miscarriage of justice," Smith said. "These are bona fide marriages. But even if this were boyfriend-girlfriend, what would happen if the couple defended their unborn child? She gets asylum and he doesn’t?"

In the competing rulings, the 2nd Circuit court said section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 explicitly protects those 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 appeals court alleges the law is unambiguous about extending protection beyond that — such as helping spouses or partners of the victims.

But the 9th Circuit ruled unanimously the other way.

"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.

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