Ninth Circuit on Forced Abortion and Asylum Eligibility

Thw U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge Willie Fletcher, issued the latest ruling on forced abortion and asylum eligibility:

We hold that Tang established that Li Zhen underwent a forced abortion within the meaning of § 1101(a)(42)(B), see Ding v. Ashcroft, 387 F.3d 1131, 1139 (9th Cir. 2004), and is therefore statutorily eligible for asylum. We remand for the Attorney General to exercise discretion on Tang’s asylum claim. We further hold that victims of forced abortion, like victims of forced sterilization, are statutorily entitled to withholding of removal. We therefore grant withholding of removal.

Tang v. Gonzales (June 6, 2007).  Click here to read the opinion.

On June 7, the Board of Immigration Appeals decided two cases dealing with reproductive rights and asylum in China.

Matter of J-H-S--, 24 I&N Dec. 196 (BIA 2007), Interim Decision #3567, June 7, 2007: “A person who fathers or gives birth to two or more children in China may qualify as a refugee if he or she establishes that the births are a violation of family planning policies that would be punished by local officials in a way that would give rise to a well-founded fear of persecution.” http://www.usdoj.gov/eoir/vll/intdec/vol24/3567.pdf

Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007), Interim Decision #3566, June 7, 2007: “(1) The evidence of record did not demonstrate that the Chinese Government has a national policy of requiring forced sterilization of a parent who returns with a second child born outside of China. (2) Although some sanctions may be imposed pursuant to local family planning policies in China for the birth of a second child abroad, the applicant failed to provide evidence that such sanctions in Fujian Province or Changle City would rise to the level of persecution.” http://www.usdoj.gov/eoir/vll/intdec/vol24/3566.pdf

KJ