A proposal for change in immigration policy: asylum for traditionally married spouses.

• Author: Laldee, Tamika S.

In Lin v. U.S. Department of Justice, the Second Circuit defied ten years of precedent by holding that 8 U.S.C. [section] 1101(a)(42) aloes not automatically provide asylum eligibility to the spouses or unmarried partners of individuals who have been forced to undergo abortions or sterilizations under China's coercive family planning policies. This Note argues that Lin's interpretation of [section] 1101(a)(42) was correct, though misplaced, for the particular facts of that case. Furthermore, this Note concludes that, based on the clear circuit split that has been fortified by Lin, lawmakers should clarify the statutory requirements for asylum. This Note proposes that automatic asylum eligibility should ultimately be extended to legally married couples and cohabitating, traditionally married couples (who would be married but for China's age requirement for marriage) because such relationships possess presumptions of paternity and commitment that are consistent with the family unit.

INTRODUCTION

The Chinese government claims that the guiding principle of the abortion program is 'voluntarism,' but there was nothing voluntary about the process I observed when living in a Chinese village in 1980. It involved subjecting pregnant women, many very close to term, to exhausting morning-to-night 'study sessions,' levying heavy penalties on them and their families, and the actual incarceration of those who still proved recalcitrant.

Nor does the description 'voluntary' adequately encompass the reports that have come out of China since then of pregnant women being handcuffed, thrown into hog cages and taken to operating tables of rural clinics.

--Steven Mosher, President of the Population Research Institute (1)

The birth of a child is widely considered to be not only a joyous occasion but also a fundamental human right, which is recognized by the United Nations in the Universal Declaration of Human Rights and implied in the Fourteenth Amendment of the United States Constitution. (2) Any favorable sentiments surrounding a pregnancy, however, may be stifled by unfortunate consequences when the pregnancy is "unauthorized" under the family planning policies of the People's Republic of China (China). (3) When a couple has an unauthorized pregnancy in China, they risk exposure to the coercive population control practices of forced abortion and sterilization. (4)

In response to such activity, the United States has expressed its deep commitment "to upholding the liberty and dignity of human life" and its strong and absolute opposition to "the practices of coercive abortions and sterilizations." (5) In 1996, Congress amended section 1101 (a)(42) of the Immigration and Nationality Act (INA) to broaden the definition of refugee under the statute. (6) The new definition grants automatic asylum eligibility to victims of forced abortions or involuntary sterilizations and specifically provides refugee status to direct victims of "a coercive population control program." (7)

Although INA [section] 1101(a)(42) refers only to individuals who have personally endured forced abortions or involuntary sterilizations, the Board of Immigration Appeals (BIA) held, 8 in the 1997 case of In re C-Y-Z-, (9) that the spouses of victims of coercive population control practices automatically qualify for asylum as refugees. (10) Although the Third, Seventh, and Ninth Circuits have consistently accepted the BIA's interpretation of section 1101 (a)(42), (11) the Second Circuit recently defied ten years of precedent by holding that neither a spouse nor an unmarried partner is automatically entitled to refugee status based on a partner's forced abortion or sterilization. (12) By finding that the BIA and the Third, Seventh, and Ninth Circuits incorrectly interpreted section 1101(a)(42) as extending refugee status to the partners (e.g., legally married spouses and traditionally married partners) of the persecuted, the Second Circuit has created a split among the circuits. (13) The Second Circuit's interpretation of section 1101(a)(42) has also prompted Congressional support for an amendment to section 1101(a)(42) that would extend refugee status to the "legally recognized spouse[s]" of "persons who have been forced to abort [a] pregnancy or undergo [an] involuntary sterilization." (14)

Although United States immigration law currently provides foreign-nationals who have been directly victimized by coercive population control policies of foreign governments a chance to obtain refugee status, there is no similar opportunity for the spouses of victims of population control policies. This Note argues that Congress and the courts should expand the scope of asylum to include the legally married spouses and traditionally married, cohabiting partners of victims of coercive population control programs. Part I provides an overview of the evolution of China's family planning policies. Part II examines the legislative evolution of asylum law in response to those policies. Part III explores the BIA's decision to extend per se asylum eligibility to husbands based on the persecution of their wives in China in C-Y-Z- as well as how the Third, Seventh, and Ninth Circuits have approached C-Y-Z-, the Second Circuit's request for clarification of C-Y-Z-, and the BIA's subsequent clarification of C-Y-Z-. (15) Part IV analyzes the Second Circuit's unprecedented determination that neither spouses nor unmarried partners are per se eligible for asylum. Part IV also discusses the events precipitated by the Second Circuit's decision. Finally, Part V argues that the Second Circuit was correct in its interpretation of section 1101(a)(42). Part V also recommends that section 1101 (a)(42) be amended to extend automatic asylum eligibility to legally married spouses as well as to partners in cohabiting, traditional marriages who would be legally married but for China's coercive family planning policies.

1. BACKGROUND

   Family planning has been practiced in China for more than twenty-five years. In 1979, Chinese leader Deng Xioping encouraged the concept of family planning legislation and established the one-child policy to curb the population growth of communist China and conserve scarce resources. (16) Although the one-child policy was initially designed as a temporary measure, the Chinese government has declared that the policy will continue through the middle of the twenty-first century. (17) Part A of this section provides a brief overview of China's one-child policy. Part B examines how the Chinese government enforces its population control policies, highlighting both the legally recognized, noncoercive techniques openly used by the government and the illegally employed, coercive practices covertly applied by some Chinese authorities.

   1. China's One-Child Policy

      Although China's family planning policy is often called the "one-child policy," this term is a misnomer. While China's population and family planning laws advocate that each married couple have only a single child, the law also allows a married couple to have a second child if they make the appropriate requests and satisfy the necessary formalities, which are subject to regulation by local, provincial, and municipal governments. (18) For example, in order for an urban couple to be allowed a second child, both parents must be the products of one-child families (19) Other couples facing "genuine difficulties," particularly rural couples, whose first child was a girl, and ethnic minorities may also seek permission to have a second child by satisfying particular policy control requirements. (20) In addition to advocating the one child per couple policy, the law "maintains its current policy for reproduction" by "encouraging late marriage and child bearing." (21) Under the marriage laws of China, the legal age for marriage is twenty-two for men and twenty for women. (22)

   2. Enforcement of China's Population Control Policies

      China's population and family planning law specifically prohibits "oversimplified and uncivilized" approaches to implementing birth control policies, particularly: (1) illegally performed operations related to family planning (i.e., forced abortions and involuntary sterilizations), (2) fetal gender identification techniques for non-medical purposes (such as population control) or sex selective abortions, and (3) fake birth control operations, false medical reports, or counterfeit certifications of family planning (for the purposes of coercive population control); and it declares that those who engage in such activities will be fined and punished. (23) Despite the law's clear disapproval of such activities, local authorities continue to use physical coercion to ensure compliance with China's strict family planning policies and to keep the birth rate down. (24) Thus, implementation and enforcement of China's family planning policies can be divided into two broad categories: (1) legislated, noncoercive techniques, and (2) nonlegislated, coercive techniques. This section initially focuses on the noncoercive techniques (which are mainly economic incentives) and then highlights the coercive practices illicitly employed by Chinese officials to comply with population control standards. Finally, this section discusses the effects of such techniques on China's population.

      1. Noncoercive techniques

         China's noncoercive family planning techniques include economic and social incentives and disincentives, as well as educational policies and media propaganda. (25) Citizens who comply with China's family planning policies are rewarded with "longer nuptial and maternity leaves" and special occupational protections and subsidies. (26) Couples who volunteer to have a single child in their lifetime are designated a "Certificate of Honor Single-Child Parents" and are given larger living quarters, better child care, and other rewards from local officials. (27) The Chinese government has also called on family planning and...