First Circuit Rules Against Asylum for Husbands of Forced-Abortion Victims

In an effort to control the size of their population, China has enacted a one-couple one-child policy[1].  This policy often forces Chinese women expecting a second child to undergo forcible abortions and other invasive procedures.  The U.S. views the policy as coercive and has granted political asylum to women forced to undergo these procedures.  The issue in the present case was whether the husbands of these women should should be granter asylum as well.

Recently, a Chinese national recently fled China after his wife was forced to terminate a pregnancy.  He sought asylum here in the U.S.  An immigration judge and the Board of Immigration Appeals both ruled against granting him asylum.  A petition for review of the BIA’s ruling was brought before the U.S. Court of Appeals for the First Circuit in Dong v. Holder[2].

The First Circuit upheld the BIA’s order.  Like the Second, Third, Fourth, and Eleventh Circuits[3], the First Circuit held that the asylum rights do not include husbands of women forced to undergo these invasive procedures.

 

The plain-language of the statute

The statue in question is 8 U.S. C. § 1101(a)(42)(B), which reads:

in such special circumstances as the President after appropriate consultation (as defined in section 1157 (e) of this title) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

The First Circuit ruled that the plain-language of the statute — particularly the use of the singular “person” — does not extend asylum to husbands. Moreover, what the plain language of the text does not clarify, the Attorney General’s interpretation does.

 

Attorney General’s interpretation

Under 8 C.F.R. § 1003.1(h)(1)(i), the Attorney General may direct the BIA to refer specific cases to him for review and determination[4].  The Attorney General rejected an expansive interpretation of the statute that would have included the husband petitioner[5].

Although the Attorney General’s interpretation denied spouses based on the plain-language of the statute, the door was left open for the possibility that some spouses may be granted asylum based on this statute.  That spouse would, however, have to show special circumstances beyond merely being the spouse of an individual forced to undergo an abortion.  Those special circumstances may include fear of persecution in the event of a return or forced sterilization.


[2] No. 12-1091, Slip Op., (1st Circuit, October 3, 2012), available athttp://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=12-1091P.01A

[3] Shi Lian Lin v. U.S. Dep’t of Justic, 494 F.3d 296 (2d Cir. 2007); Lin –Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir. 2009); Yi Ni v. Holder, 613 F.3d 415 (4th Cir. 2010); Yu v. U.S. Att’y Gen., 568 F.3d 1328 (11th Cir. 2009)

[4] The Board shall refer to the Attorney General for review of its decision all cases that the Attorney General directs the Board to refer to him.

[5] Matter of J-S, 24 I&N 520, 536 (BIA 2008) (opinion of Attorney General)

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Immigration Law: Standards Still High For Those Seeking Asylum

Standards still high for those seeking Asylum, Vargas v. Holder, No. 11-1680, 2012 WL 2042623 (1st Cir. June 7, 2012)

Summary: The First Circuit has reinforced prior case law stating that refugees who suffered from economic terrorism and pervasive non-political criminality do not constitute grounds for asylum. Petitioners Romelia America Vargas and her husband, Walter Antonio Vargas, were denied their petition for review after failing to convince the Court that Guatemalan gang members persecuted them because of their political opinion and association with a cognizable social group.

Discussion: To qualify for asylum, one must establish past discrimination and a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. §1101(a)(42)(A). Over 12 years, Guatemalan gang members made extortion demands upon several businesses owned by Mr. Vargas and his family. The Vargases sought to avoid harassment by moving to a different region within the country, but they never escaped the gang’s reach. In 2005, the Vargases fled to the United States.

Despite their “compelling case of suffering,” the Vargases failed to establish that the gang’s threats stemmed from more than a desire for money. The Vargases never expressed a political opinion to the gang members who threatened them. Instead, they argued that the gang members knew the Vargases’s opinion “opposing their criminal lifestyle.” Further, the Vargases argued that gang members targeted them not for their wealth, but because they belonged to a well-known business family. Yet belonging to a social class is not sufficient for fear of future persecution. Yes, gang members targeted the Vargases. Unfortunately, their threats do not meet the requisite statutory grounds for asylum.

Implications: This case emphasizes that those seeking asylum need more than sympathy; they need evidence disproving that something besides money motivated their persecution. When arguing for asylum, always point to affirmative actions taken by refugees. Circumstantial evidence may not be enough.