A Proposal for Change in Immigration Policy: Asylum for Traditionally Married Spouses

By Laldee, Tamika S. | Case Western Reserve Journal of International Law, Winter 2009 | Go to article overview

A Proposal for Change in Immigration Policy: Asylum for Traditionally Married Spouses


Laldee, Tamika S., Case Western Reserve Journal of International Law


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. …

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