U.S. Supreme Court To Consider Asylum Cases Of Men Whose Partners Were Forced To Undergo Abortions In China

Main Category: Abortion
Also Included In: Public Health;  Litigation / Medical Malpractice
Article Date: 09 May 2008 - 7:00 PST

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The U.S. Supreme Court has agreed to consider appeals by two men whose partners were forced to undergo abortions in China, the AP/Google.com reports. According to the AP/Google.com, U.S. courts have taken "varying approaches" to petitions for asylum by Chinese men who argue that they have suffered from the country's one-child-per-family policy. The Bush administration is opposing the two petitions for asylum for the men, although there is no dispute that women can seek asylum under the law.

As part of China's one-child policy, couples are prohibited to marry until the man is 22 and the woman is 20, but the government says that many people enter into traditional marriages at younger ages. As part of a report on human rights released in March, the U.S. State Department found that Chinese authorities sometimes impose forced abortions or sterilizations for people who seek to have children and are not legally married, or who want more than one child. The distinction between traditional and legal marriages in China has been the basis for the denial of asylum by some U.S. immigration authorities and courts, the AP/Google.com reports.

U.S. appellate courts in Chicago and San Francisco have sided with spouses seeking asylum, but the men have been denied asylum in the two cases the Supreme Court is expected to consider. The cases involve Yi Qiang Yang, whose wife was forced to undergo an abortion, and Zen Hua Dong, who alleges that his fiancé was forced to have two abortions and that he was threatened with sterilization by local officials.

The 11th U.S. Circuit Court of Appeals in Atlanta rejected Yang's petition for asylum in part because the marriage was not legal. Yang was 20 and his wife was 17 when the couple had a traditional ceremony. The 11th Circuit Court said, "Legal marriage reflects a sanctity and long-term commitment that other forms of cohabitation simply do not." The 2nd U.S. Circuit Court of Appeals in New York denied Dong's petition because he was not married. According to the AP/Google.com, the 2nd Circuit Court went further, saying U.S. law does not cover spouses in legal marriages.

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Solicitor General Paul Clement, who will represent the administration at the Supreme Court, said, "An applicant who participates in a traditional marriage ceremony but is not legally married is not automatically deemed eligible for asylum if his partner is forced to undergo an abortion." Rep. Chris Smith (R-N.J.), who sponsored the 1996 asylum law, said the law was intended to cover men and women who are victims of China's family planning policies. "Not to include both when both are harmed irreparably would be a gross miscarriage of justice," Smith said. He added, "These are bona fide marriages. But even if this were boyfriend-girlfriend, what would happen if the couple defended their unborn child? She gets asylum and he doesn't?"

Samuel Estreicher, Dong's attorney, said the appeals court narrowed the law despite substantial evidence that Congress intended a more expansive interpretation of the asylum law. "The Chinese government is not just going after the pregnant women, it is going after the unit, the couple," Estreicher added. Smith, the U.S. Conference of Catholic Bishops and other faith-based groups are calling on Attorney General Michael Mukasey to clarify that both spouses should be able to seek asylum because of the "dramatic impact that forced abortions and sterilizations have on both spouses," the AP/Google.com reports. The Justice Department has not said when the review will be completed (Sherman, AP/Google.com, 5/8).

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