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November|December 2005
Leaving One-Child Behind By Michelle Chen
Display Cases By Laura Longhine
Uneasy Riders By Paul Wachter
Not Bloody Guilty By Dana Mulhauser
The Prudent Jurist By William H. Simon
Cases & Controversies

Leaving One-Child Behind

Chinese immigrants seek asylum in America from China's one-child policy.

By Michelle Chen

IN A PLAIN, WINDOWLESS MANHATTAN COURTROOM a few blocks from Chinatown, an immigrant from China's coastal province of Fujian recently sought sanctuary from political persecution. The request was not based on religious oppression, torture for dissidence, or any of the better-publicized human rights violations in that country. Instead, Liu (not his real name) cited its "family planning" policy, which, through mandatory abortion or sterilization of women, generally restricts parents from having more than one child. The petition of the former bicycle repairman was based on his wife's sterilization; American federal judges have ruled that male spouses sometimes suffer under China's coercive birth control through heavy fines and other penalties for noncompliance or, as in Liu's case, by being denied another child.

Birth certificates submitted to the judge indicated that the couple had run up against the one-child limit by having twins (counted as one child under Chinese law). An X-ray showed that the wife had undergone a sterilization procedure. Some papers attached to the records displayed a chain of authenticating signatures by a county official, a provincial official, and an official from the regional United States Consulate.

The immigration judge observed that the higher-level "authentication" verified only the signatures of the two lower officials, not the actual records themselves. "I fully expect these are mass produced and handed out," the judge remarked. According to a report by the U.S. State Department, document fraud is so widespread in China that investigators at one U.S. Consulate office could verify only 17 of 60 notarized records. But with a backlog of 140,000 asylum claims, immigration judges cannot afford to scrutinize every piece of evidence, so the proceedings moved on to Liu's testimony.

When Liu reported that he did not flee to the U.S. until 11 years after his wife was sterilized, a U.S. government attorney questioned the delay. Through a translator, Liu replied solemnly that he would have left years earlier, but that he lacked the money and connections to arrange to be smuggled out.

The judge noted that Liu already had twin sons—considered an extraordinary blessing in a country where male children are favored—and asked why Liu cared that his wife could not have more children. Liu claimed that he and his wife, still young at the time, would have tried for a daughter had the government not taken away that possibility.

In reality, Liu's reasons for opposing the birth control policy and for leaving China probably mattered little to the court. Since he had followed U.S. regulations by filing an asylum claim within a year of arrival, he needed only to prove that the persecution had occurred. After a few minutes of questioning, the judge delivered another blessing for the asylum-seeker: the chance to get on with life in the U.S., legally.

In U.S. immigration courts, persecution under Chinese family-planning laws is a uniquely convenient basis for an asylum claim. Since China's policy is, at least in theory, universally enforced, it could open a path to asylum in the U.S. for any Chinese citizen who has faced the legal consequences of having or trying to have more than one child.

Liu's claim might not have passed muster had he been able to immigrate soon after his wife's sterilization. It was not until 1996 that Congress officially recognized this form of persecution by amending the definition of "refugee" in the Immigration and Naturalization Act to include Chinese citizens subjected to "coercive population control" programs. Clarifying a longstanding legal gray area, the statute granted asylum status to women who had been forced to have an abortion or had been sterilized, as well as people "persecuted for failure or refusal to undergo such a procedure" or facing "a well founded fear" of such persecution. The amendment was driven in part by the controversy in the U.S. over abortion rights. Decrying China's policy as a large-scale human rights abuse, anti-abortion groups successfully pressed Congress to oppose coercive family planning.

As a result of Congress's move, China's effort to control fertility now has the potential side effect of reducing the population through emigration as well. In 2003, the last year for which data is available, the American government received more new asylum claims from Chinese immigrants than from any other category of newcomers. U.S. Citizenship and Immigration Services and the Department of Justice's Executive Office for Immigration Review collectively received more than 14,000 new Chinese asylum claims, with overall approval rates of 36 and 44 percent, respectively. The State Department estimates that about half of Chinese asylum claims relate to the country's family-planning laws. Fujian, which accounts for nearly one-fifth of all emigrants from China, is reportedly a primary point of origin for those seeking asylum in the U.S.

WHILE RECENT TRENDS IN ASYLUM CLAIMS suggest that the Chinese are fleeing in droves from forced birth control, the real incentive drawing them to the U.S. is probably not the right to procreate. According to a Department of Justice report, family planning policies are not enforced especially harshly in Fujian, and disproportionate rates of Fujianese out-migration are more a product of a good economy than of a bad policy. As one of China's booming global manufacturing hubs, Fujian is sufficiently developed to encourage its denizens to dream bigger. Their desire for economic opportunity abroad in turn fuels extensive smuggling networks. The main link between population policies and the demand for asylum is a logistical one, a human chain that leads migrants from China to New York City's Chinatown and to the courts where they seek legal status.

Some smuggling rings have turned asylum law into a side gig. One Fujianese woman said that she had paid thousands of dollars to a "travel agency" moonlighting as a legal mill for a court hearing that never materialized. "After that, we decided to go through the regular legal channels," she recalled. She eventually won asylum based on the family planning policy after finding a legitimate, American-born lawyer. "He's more responsible," she said. "It's safer this way."

But even with a proper attorney, success is far from guaranteed. Theodore Cox, a Chinatown immigration lawyer, said that he has seen tough judges reject true family planning claims for picky reasons like a missed court date or because "something just smells funny to them." He also noted that fake claims sometimes win. In every case, he said, "there's something of a lottery about it."

At asylum hearings, the uncertainty often leads anxious claimants to fudge otherwise true testimony. "They'll start making up a story," said Chinatown immigration lawyer Peter Lobel, about a wife being dragged off in the middle of the night or about an abortion occurring on a later date, in order to make the flight to the U.S. seem urgent. But lawyers coach their clients that a consistent story goes farther than an embellished one. Lobel said that his clients might have developed an inclination to twist the truth while living under an authoritarian regime that is notoriously unaccountable. "I think that's the world they live in, in China," he said. "You have to have a backup story."

Applying the same tactic here, many undocumented Chinese immigrants arrive armed with an array of tales—they fled to avoid a forced marriage to a local Communist Party official, or they escaped to dodge punishment for practicing the religious tenets of a banned Buddhist sect—to prove to immigration officials that they have a good reason to remain in the U.S. Since migrants must pass safely into the workforce in order to pay back their smuggling fees, savvy smugglers typically furnish these prefab sagas as a kind of freight insurance, in case their human cargo is held up in detention.

Though Liu could do without the insurance, his long journey still carried a high premium. After his legal victory he returned to Chinatown, ready to work off a smuggling debt of about $50,000.

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