U.S. asylum laws allow individuals to remain in the U.S. indefinitely (but not permanently) and to enjoy certain rights, such as the right to work and to apply for permanent resident status after one year. To qualify for asylum status, the applicant must fit within the definition of a “refugee” and not be barred from applying for or receiving asylum status under the law. A “refugee” is generally defined as one who is unwilling to return to one’s native or resident country because of persecution “or a well-founded fear of persecution” on account of race, religion, nationality, membership in a particular social group or political opinion.
The IIRIRA and Asylum for Victims of Coercive Population Control Programs
The People’s Republic of China has a one-child policy that limits most married couples to one child per couple. Enforcement of this policy includes such draconian means as forced abortion (sometimes as late as in the 9th month) and sterilization. In a 1989 case, however, the USCIS Board of Immigration Appeals (BIA) ruled that forced abortion and sterilization did not rise to the level of “persecution” necessary for refugee status and asylum.
In response, the U.S. Congress passed the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), which amended the definition of “refugee” to include within the definition of persons who are “persecuted or have well-founded fear of persecution” on account of political opinion, those:
Quotas on the New IIRIRA Asylum
The IIRIRA specifies that up to “a total of 1,000 refugees” can be granted “CPC asylum” in any fiscal year. Because of the limitation, those who successfully establish a right to CPC asylum may only be granted “conditional asylum.” Once the total number of CPC asylum grants is known, the first 1,000 are notified of their final approval. The quota does not apply to “derivative” asylum available to a successful applicant’s spouse and children under 21 at the time of application for asylum.
The IIRIRA law has also been interpreted to give the legal spouse of a CPC applicant the right and standing to apply for asylum on their own behalf as well. Such an application would also be subject to the 1,000 quota.
The Xu Ming Li Case and Further Expansion of CPC Asylum
The IIRIRA was generally interpreted narrowly to apply only where forced abortion or sterilization had actually been performed. In 1998, a young Chinese woman, Xu Ming Li (Li), applied for asylum in the U.S. on the grounds of resistance to China’s CPC program. While still in China, Li fell in love and wanted to marry. She spent long hours with her intended, which gave rise to rumors that she was pregnant. Li was therefore seized and forced to submit to a “crude and aggressive” gynecological exam, which she unsuccessfully resisted, to determine if she was pregnant in violation of China’s CPC law.
When it was determined that Li was not pregnant, she was released, but told that she would be subject to such exams at any future time she was believed pregnant (had she been pregnant, she would have been forced to undergo an abortion). Li was not yet old enough to marry under Chinese law and permission to do so was denied by authorities. The couple decided to wed anyway and their families announced the forthcoming marriage. Warrants were then issued for the arrest of Li and her fiancé, who then fled to the U.S. and applied for asylum.
The Immigration Judge who first heard Li’s case denied her application. Neither forced abortion nor sterilization had occurred, therefore the judge held that Li’s treatment did not rise to the level of “persecution” necessary for asylum, even under the IIRIRA. Li appealed, but the BIA affirmed. The 9th Circuit U.S. Court of Appeals granted review and reversed, stating that Li’s resistance to the gynecological exam and marriage prohibition constituted “other resistance to a coercive population control program” under the IIRIRA, and therefore met Congress’ definition of persecution. The court of appeals recommended to the BIA and the U.S. Attorney General that asylum be granted.
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