Thursday, June 7, 2007
Man Whose Wife Was Forced to Abort Held Eligible for Asylum
By TINA BAY, Staff Writer
A Chinese man whose wife was required by her employer to undergo an abortion in their home country was eligible, along with her, for asylum in the United States, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
An immigration judge improperly denied Zi Zhi Tang’s asylum application on the ground he had not demonstrated that the abortion procedure performed on his wife was “forced” within the meaning of the asylum statute, a unanimous panel concluded.
Tang’s wife underwent the allegedly forced abortion in 1980, while she and Tang were not yet married but living together as husband and wife. Neither had yet reached the age required by China’s population control policies to register for marriage.
Tang’s wife, a bookkeeper for a house repair company, discovered she was pregnant during while undergoing a gynecological examination required by her employer in April or May 1980. Because the couple were underage and did not have documentation of an official marriage, the company’s policy required Tang’s wife to “abort the baby immediately.”
The day after her exam, Tang’s wife was told by her employer that she must have an abortion. The couple did not go to their respective workplaces the next day. Tang’s wife, who had been aware of the company’s abortion policy, stayed home to prepare herself for the procedure.
Company officials arrived at the couple’s home in the afternoon and allegedly “took” Tang’s wife to the company’s women’s clinic, where Tang waited outside while the fetus was aborted. Tang claimed his wife cried and screamed, and that the clinic staff performed the procedure without administering anesthesia.
The couple conceived again after the abortion but the mother was unable to carry the baby to term due to complications from the abortion procedure. They eventually had an official marriage ceremony, after which they had one child.
Tang, a carpenter, was subsequently sent to Guam in 1991 to work on a construction project. He remained there after leading a worker’s strike protesting poor working conditions and the lack of wages, and was notified by U.S. immigration officials that he had overstayed his worker’s visa.
At his removal hearing in 2002, he applied for asylum and withholding of removal on the basis that his wife had undergone a forced abortion that constituted persecution by the Chinese government.
The immigration judge denied both applications reasoning that, although Tang was credible, he failed to show the abortion was “forced” within the meaning of 8 U.S.C. Sec. 1101(a)(42)(B)—which renders victims of coercive population planning polices statutorily eligible for asylum.
The abortion was something the couple “apparently were agreeable to doing” since they expressed no opposition and made no efforts to avoid the procedure, the judge concluded. Additionally, the judge stated, the fact that Tang’s wife did not go into hiding to avoid the abortion indicated she underwent it voluntarily.
The abortion was not forced within the meaning of the statute because it had been compelled by the employer rather than “pursuant to any official summons or any type of family planning officials,” the judge added.
The decision was affirmed by the Board of Immigration Appeals.
The Ninth Circuit said the immigration judge too narrowly defined “force” to require that the victim demonstrate resistance.
Writing for the court, Judge William A. Fletcher said that whether Tang’s wife could have or did express any opposition to the abortion did not affect whether there was force, because the facts surrounding the abortion demonstrated the company’s exertion of authority over her. There was also no statutory requirement that the woman go into hiding for a finding of force, Fletcher added.
He also rejected the distinction between an abortion performed by an employer and that performed pursuant to an official summons.
“The record in this case establishes that the structure of the Chinese population control program is a ‘top to bottom system,’ involving ‘coordinat[ion] of all departments and all fields in excellent implementation of ‘planned-birth work,’” ” the judge wrote, quoting a 1998 congressional report.
“[T]he policy implemented by Li Zhen’s employer required her to have an abortion because of her age and lack of official marriage. This policy corresponds exactly with the official Chinese population control policies and can only be seen as an implementation of those policies,” he concluded.
Based on the statutory definition of forced abortion, Fletcher said, Tang was not only eligible for asylum but also entitled to withholding of removal as the partner of a woman who had a forced abortion.
“A woman who has had a forced abortion has experienced unwanted governmental interference into one of the most fundamental and personal of decisions: whether she will have a child. The effects of that intrusion last a lifetime. In addition,
the governmental infringement on a woman’s bodily integrity during a forced abortion results in, as one Congressman described it, ‘one of the most gruesome human rights violations in the history of the world.’”
Senior Judge Stephen S. Trott and Judge Kim McLane Wardlaw concurred in the opinion.
The case is Tang v. Gonzales, 04-70804.
Copyright 2007, Metropolitan News Company