Most nations consider the right to bear children to be among the most cherished human rights. Enshrined by the United Nations in the Universal Declaration of Human Rights' and implied as a fundamental right embodied by the Fourteenth Amendment of the Constitution,2 the right to bear children has united activists from across the political spectrum.3 Ostensibly for this reason, the United States has granted asylum to refugees who have proven that their native countries have persecuted them under coercive family planning policies since the passage of section 601 (a) of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA").4
Under United States immigration law, most asylum claims require proof of persecution based on political opinion, religion, or membership in a certain ethnic group.5 However, asylum applicants under section 601 (a) need only prove that they have been victims of coercive family planning practices, not that their victimization was based on membership in a particular group.6 The statute is neutral with respect to the asylum-seeker's country of origin. However, the purpose of the legislation, since its inception, has primarily been to aid victims of the coercive family planning measures that China has employed since it made it a goal, twenty-five years ago, to reduce the number of offspring of every woman to one.7
Scholars have examined the legitimacy and morality of China's population control measures.8 Some have argued that basic human rights such as food and shelter cannot be provided to China's citizens unless the country's population growth is drastically curtailed, and that these coercive measures are perhaps the only means likely to succeed.9 Others have countered that China's policies constitute appalling human rights violations, and that the United States should take a firm stance against them.10
China has come close to succeeding in its mission of reducing population growth into the low single digits." To achieve its goal, China has employed a combination of social and economic incentives and punishments, including forcible sterilizations and abortions for those who fail to abide by the detailed set of laws prescribing when citizens may bear children.12 The additional constraints China has placed on marriage have reduced birth rates even further.
While the language of the statute is silent about spouses of victims of coercive family planning measures, referring only to direct victims, the Board of Immigration Appeals ("BIA") has held that those whose husbands and wives have been victimized directly by coercive family planning practices should be allowed to "stand in [the] shoes" of their spouses for the purpose of qualifying for asylum.13 The BIA, however, has declined to expand the scope of coverage under section 601 (a) beyond spouses-never explaining, beyond a basic policy choice, either the reasoning behind extending asylum coverage to spouses or the logic of denying asylum to nonmarital partners.14 In many cases, the BIA has simply affirmed the ruling of the immigration judge ("IJ") without issuing an opinion.15
There is currently a split among several Courts of Appeals as to whether section 601 (a) covers the non-marital partners of victims of forced sterilization or abortion.16 Whereas the Third,17 Fifth18 and Eleventh19 Circuits have affirmed denials of asylum to fiances and boyfriends of women who have been involuntarily sterilized or forced to have an abortion, the Ninth20 and Seventh21 Circuits have granted asylum to men who-too young under China's laws to officially marry their partners-married them in traditional Chinese ceremonies instead.22 The Second Circuit recently remanded three consolidated cases to the BIA concerning the eligibility of boyfriends and fiances for asylum under section 601 (a).23 It has charged the BIA with fully explaining its reasoning for extending asylum to married partners and its rationale, if any, for denying similar protections to nonmarital partners. …