Friday, December 6, 2002
Court Denies Asylum to Woman Fearing China’s Population Program
By ALLISON LOMAS, Staf Writer
Chinese population control policies prohibiting a 19-year-old from marrying and forcing her to undergo a pregnancy examination do not rise to the level of persecution or torture, a federal court ruled yesterday, upholding an immigration panel’s denial of asylum.
The Board of Immigration Appeals, Congress, and the federal courts have struggled for 15 years with the problems China’s one-child policy, its enforcement of that policy pose for U.S. asylum law, Senior Judge J. Clifford Wallace of the Ninth U.S. Circuit Court of Appeals wrote.
In yesterday’s opinion the Ninth Circuit became the first circuit, Wallace said, to address the meaning of a 1996 statute’s vague reference to persecution “for other resistance” to the country’s birth-rate reduction policy, meaning resistance other than failure or refusal to undergo sterilization or abortion.
The debate began in 1989 when the board decided that a person subject to China’s population control policy, even if forced to be sterilized, was not eligible for asylum, ruling that such coercive tactics did not constitute persecution on account of race, religion, nationality, membership in a particular social group or political opinion as required for asylum.
Congress quickly set out to reverse the decision. The Illegal Immigration Reform and Immigration Responsibility Act of 1996 made involuntary sterilization, and forced abortion, or persecution for resisting such coercive tactics, persecution on the basis of political opinion per se.
Wallace, writing for the three-judge panel, considered the fate of Xu Ming Li, who was born and raised in a small village in the Fujian Province, and did not wish to return to China.
Li told immigration officials that she had been persecuted in her homeland and feared further persecution, and even being tortured, due to her outspoken and blatant defiance of China’s one-child policy.
As a teenager, Li met and quickly fell in love with Xin Kui Yu. They spent a great deal of time together and Yu often stayed at Li’s house until early in the morning.
Rumors began to spread about the couple and a man from the village confronted Li saying the relationship was “shameful” and should be ended. The man warned the young girl that she would pay after she defiantly responded to his accusations saying that she did not believe in the birth control policy and planned to have many children, Wallace wrote.
Two days after the incident nurses from the Department of Birth Control came to Li’s home and took her to a medical center where she was physically restrained during a pregnancy examination, according to the opinion.
Li screamed and struggled during the half-hour exam and was told that if pregnant she was subject to a mandatory abortion and her boyfriend could be forcibly sterilized, she testified. The couple petitioned for a marriage certificate, found they were not old enough, but married anyway and fled after learning the government intended to arrest them.
An immigration judge in the United States determined that Li was not entitled to asylum or withholding of removal because she had not shown persecution, a well-founded fear of persecution, or torture. On administrative appeal the Board accepted the immigration judge’s decision and dismissed the case.
In an opinion joined by Judge Alex Kozinski, Wallace looked to the court’s treatment of a 1995 asylum case involving a Fijian of Indian descent named Prasad. Prasad was arrested by ethnic Fijians following a 1987 coup in Fiji, taken to a police station, beaten, and released between four and six hours later.
Although a reasonable fact-finder could have found that the treatment constituted persecution, Wallace wrote, the Ninth Circuit affirmed the board’s decision because the evidence did not compel such a determination.
After finding that sufficient similarities existed between the fact patterns including physical assault and government detention, the judge decided to follow the approach used in the earlier case and defer to the board’s decision that Li’s experience was not tantamount to persecution.
Judge Richaed A. Paez disagreed, concluding that “Li was clearly a victim of past persecution.”
He wrote that her testimony showing she struggled with Chinese officials during the invasive “rape-like” physical exam and that they threatened future abortions or sterilization compelled the conclusion that she suffered persecution by local Chinese officials. Paez indignantly rejected the majority’s suggestion that being hit in the stomach and then kicked from the behind once was more severe than the pregnancy test.
Paez agreed with the majority that Yu had not been persecuted and was ineligible for asylum.
Copyright 2002, Metropolitan News Company