Tuesday, April 6, 2010

Forced Sterilization and Asylum

In the Matter of H-L-H & Z-Y-Z, the Board of Immigration Appeals (BIA) held that evidence failed to establish reasonable possibility that a husband and wife seeking asylum who are citizens of China would be subject to forced sterilization for having two U.S.-born children. While the couple have not suffered past persecution or have been threatened with persecution in China, the wife claims to have a well-founded fear of persecution if she is returned to China as a result of having two U.S. citizen children, ages 7 and 3. Based on witness testimony, a Chinese national who violates the regulation requiring the insertion of an intrauterine device (“IUD”) after the first birth and sterilization after the second birth would be sterilized and fined 20,000 yuan upon her return to China. The Immigration Judge had granted asylum, and the Department of Homeland Security (DHS) appealed the case to the BIA.

Under Section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006) includes a definition of “refugee” as a person who has a well-founded fear that he or she will be forced to undergo involuntary sterilization or will be subject to persecution for failure, refusal, or resistance to undergo such a procedure. The wife must prove that a reasonable person in her circumstances would fear being subjected to forced sterilization and show that Chinese government officials would enforce the family planning policy against her in ways rising to persecution. The BIA gave “special weight” to reports on country conditions compiled by the State Department, which indicated that “U.S. officials in China are not aware of the alleged official policy...mandating the sterilization of one partner of couples that have given birth to two children, at least one of whom was born abroad.” While acknowledging that there were previous reports of forced sterilization and coercion through public and other pressure, the State Department did not find any cases of physical force used in connection with sterilization or abortion. Moreover, Consulate General officials of the State Department did not find any evidence of forced abortion or property confiscation for violators of the one-child policy, only fines and economic penalties.

BIA also considered a Report of Investigation by the U.S. Citizenship and Immigration Services (USCIS) dated April 17, 2007, which states “that Chinese nationals who have not obtained permanent or long term residence overseas, or who did not have resident visas for 3 or more years, will be 'sanctioned in compliance with the relevant family planning rules and regulations upon returning to mainland China if they have conducted any birth acts in violation of the family planning regulations enforced at the local administrative level with jurisdiction over their residence of household registration in China.'” Moreover, the report indicates “[a]ccording to the regulations from the competent department of China, any children of Chinese mainland residents who are born in the U.S. are not considered as Chinese mainland residents if they have not gone through the formalities to become Chinese mainland residents [so that such] children who were born abroad will not be counted into the numbers of children the Chinese mainland residents are entitled to have.” Noting that “the requirement to use an IUD and to receive periodic medical examinations would not constitute persecution”, the BIA determined that “the evidence indicates that physical coercion to achieve compliance with family planning goals is uncommon and unsanctioned by China's national laws and that the overall policy is much more heavily reliant on incentives and economic penalties.” Finding that the wife did not establish her eligibility for asylum because she failed to to show that she has a well-founded fear of being subjected to forcible sterilization or other sanctions constituting persecution if returned to China, the BIA vacated the previous grant of asylum by the Immigration Judge and ordered the removal of the couple to China.

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