Chinese men's asylum plea cites one-child rule
Partners of women forced to abort appeal to U.S. Supreme Court
Mark Sherman, Associated Press
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/05/09/MN0N10J3DH.DTL&hw=china&sn=009&sc=501
Friday, May 9, 2008
Partners of Chinese women who were forced to have abortions are
pressing the Supreme Court to make it easier to get asylum in the
United States.
The Bush administration is resisting the male partners' efforts to get
asylum, even though the Republican congressman who wrote a 1996 asylum
law said it was intended to cover men as well as women who are victims
of China's controversial family planning policy. There is no dispute
that women can seek asylum under the law.
The justices will consider appeals by two men in the coming weeks.
U.S. courts have taken varying approaches to claims by Chinese men
that they should be allowed to stay in the United States because they
have suffered under a policy that generally limits couples to one
child.
China prohibits marriage until the man is 22 and the woman is 20, but
the government concedes that many people enter into traditional
marriages at younger ages.
Still, authorities sometimes force abortions or sterilization on
people who seek to have children even though they are not legally
married or who want more than one child, according to the State
Department's most recent human rights report for China, issued in
March.
U.S. immigration authorities and some courts have seized on the
distinction between traditional and legal marriage to deny asylum
claims.
Yi Qiang Yang was 20 when he married his 17-year-old wife in a
traditional ceremony. More than a year later, Yang's wife was eight
months pregnant when Chinese authorities forced her to have an
abortion.
Yang fled, fearing persecution for trying to have a child outside
China's strict rules and eventually asked for asylum in the United
States. Immigration officials and the 11th U.S. Circuit Court of
Appeals in Atlanta turned him down, in part because the marriage was
not legal. "Legal marriage reflects a sanctity and long-term
commitment that other forms of cohabitation simply do not," the
appeals court said.
The administration, which has criticized China's human rights
practices, said the decision was correct.
"An applicant who participates in a traditional marriage ceremony, but
is not legally married, is not automatically deemed eligible for
asylum if his partner is forced to undergo an abortion," wrote
Solicitor General Paul Clement, the Justice Department lawyer who
represents the administration at the Supreme Court.
Rep. Chris Smith, R-N.J., a frequent critic of China's human rights
practices, said the administration is in essence blaming the victim.
"The solicitor general is profoundly wrong and misguided in taking
that view," Smith said.
Smith authored a 1996 law that he said was designed to expand
eligibility for asylum and erase uncertainty that both partners would
be covered.
"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?"
A second case that the court could soon consider involves just such an
arrangement. Zen Hua Dong contends his fiancee was forced to have two
abortions and he was threatened with sterilization by local officials.
But immigration judges denied his asylum application because he is not
married.
The Second U.S. Circuit Court of Appeals in New York went further,
however, saying that the law does not cover even spouses in legal
marriages.
New York University law Professor Samuel Estreicher, Dong's lawyer at
the Supreme Court, said the appeals court narrowed the law, despite
substantial evidence that Congress intended to expand eligibility for
asylum.
"The Chinese government is not just going after the pregnant woman, it
is going after the unit, the couple," Estreicher said.
Appeals courts in Chicago and San Francisco have sided with spouses
seeking asylum.
The ruling in New York spurred the Justice Department to review its
policy on the eligibility of spouses.
Smith and former Illinois Rep. Henry Hyde, who has since died, urged
Attorney General Michael Mukasey to take an expansive position on who
is eligible for asylum.
The U.S. Conference of Catholic Bishops and other faith-based groups
also are calling on Mukasey to clarify that both spouses should be
able to seek asylum because of "the dramatic impact that forced
abortions and sterilizations have on both spouses."
The Justice Department has not said when the review will be completed.
This article appeared on page A - 9 of the San Francisco Chronicle
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