Women Who Underwent Forced Abortions Do Not Automatically Qualify For Asylum

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The 2nd U.S. Circuit Court of Appeals in New York on Monday ruledthat the spouses of women from other countries, such as China, who wereforced to undergo abortions or sterilizations do not automaticallyqualify for asylum, the AP/Staten Island Advance reports.

Inthe majority opinion written by Judge Barrington Parker, the court saidthe finding is based on its interpretation of a 1996 law that broadenedthe definition of a refugee eligible for asylum. According to the AP/Advance,Congress changed the law to grant asylum to anyone who has defied acoercive population control program, been forced to undergo involuntarysterilization or abort a pregnancy or who was persecuted for failing toundergo those procedures.

Majority Opinion

According to Parker, the Department of Justice's Board of Immigration Appealsin 1997 did not provide a reason to support its conclusion that pastpersecution of one spouse can be established by coerced abortion orsterilization of the other (Neumeister, AP/Staten Island Advance,7/16). The court ruled that spouses would have to prove their ownresistance to a coercive population control program or show that theyheld a "well-founded" fear of persecution for resisting the policy, theAP/Houston Chronicle reports.

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Thecourt said the ruling should not result in the reopening of previouscases in which refugees from China were granted asylum, adding thatCongress can rewrite the law if it finds the interpretationinconsistent with its original intentions (Neumeister, AP/Houston Chronicle,7/16). The old policy encouraged husbands to leave their wives and seekasylum in the U.S. This "perverse effect of creating incentives forhusbands to leave their wives" was not the intent of Congress when itgranted refugee status to those affected by China's family planningpractices, Parker wrote.

Other Opinions

According to the New York Sun,four separate opinions were filed in the case. "The majority clings tothe notion that the persecution suffered is physically visited upon onespouse, but this simply ignores the question of whom exactly thegovernment was seeking to persecute when it acted," Judge SoniaSotomayor wrote in one opinion, adding, "The harm is clearly directedat the couple who dared to continue an unauthorized pregnancy in hopesof enlarging the family unit."

In another opinion, JudgeRobert Katzmann wrote, "I see no reason why the BIA could notreasonably conclude that one has suffered harm or injury sufficientlysevere to constitute persecution when one's spouse is forced to undergoan abortion or sterilization" (Goldstein, New York Sun, 7/17).

JudgeGuido Calabresi said he agreed with the ruling, even though itconflicted with 12 other federal appeals courts and findings of theimmigration board (AP/Staten Island Advance, 7/16).

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Reprinted with permission fromkaisernetwork.org.You can view the entire KaiserDaily Women's Health Policy Report, search thearchives, and sign up for email delivery at kaisernetwork.org/email. The Kaiser Daily Women's Health Policy Report is published forkaisernetwork.org,a free service of The Henry J. Kaiser Family Foundation.

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