Chinese husbands must prove persecution beyond wife's forced abortion to receive asylum in U.S.


BOSTON, Mass. — A federal appeals court in Boston decided last week that the husbands of Chinese women who undergo forced abortions because of China's one-child policy would not automatically be eligible for asylum in the United States.

U.S. Rep. Chris Smith, R-N.J., introduced a law in 1996 that allowed protection for "a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program."

Smith said the law's original intent was to include husbands, and early in the law's existence immigration courts agreed that a husband could establish past persecution and qualify as a refugee. In 2006, a provision was added that the husband had to be opposed to the abortion and legally married. By 2008, then-U.S. Attorney General Michael Mukasey saw the statute to mean that the husband of a woman who had a forced abortion was not entitled to refugee status unless he had other well-found fears of persecution.

Last week's ruling by the 1st U.S. Circuit Court of Appeals agreed with four other appellate courts, claiming that the law does not cover husbands since "the focus is on persons targeted for a procedure, not upon the results of the procedure."

The husband in question in this particular case, Xian Tong Dong, came to the United States in 2006 and applied for asylum in order to bring his wife and child over as well. Xian's wife had been fitted with an intrauterine device (IUD) after the birth of her first child but had a private doctor remove it and then conceived a second child. When Chinese officials found out, they forcibly aborted the child.

Xian claims that he should be allowed asylum because he lost the child as much as his wife did. But the judges upheld Mukasey's interpretation and said Xian did not show any "special circumstance—that is, something more than his relationship to the recipient of a forced abortion."

Xian also tried to apply for asylum under the threat of religious persecution if he returns. While awaiting the court's decision, Xian joined a Chinese Christian church in Boston and was baptized in 2009. He said he feared government persecution for joining an unregistered church if he were to return to China.

But the judges in the case also rejected the religious argument, claiming that China's dealing with the underground church varied widely across the country.

While the two previous rulings on this issue—in the 4th and 11th Circuit—had opened up the possibility that husbands could be included in the provision, the courts deferred the decision of the ambiguous law to Mukasey, who then stuck with the plain-language ruling.

Earlier this year, the 2nd Circuit said an immigration judge mistakenly denied a similar asylum request by Zi Bin Pan. While the court still upheld the view that husbands of women with forced abortions would not be granted asylum, it seemed Zi could fulfill the "special circumstance" as he had been attacked and arrested by Chinese authorities when he resisted his wife's forced abortion. The case has been sent back to immigration court.

Kat Lewis, director of communications at All Girls Allowed, a non-profit group that combats the effects of China's one-child policy, pointed out that husbands are also victims in forced abortions.

"Forced abortion, an ugly effect of the China's brutal one-child policy, has many victims," she said. "The mother suffers a violent, involuntary procedure and loses a child. The child suffers death. And the father suffers deeply at the loss of a child and violation of his wife's human dignity."