Federal Appeals Court Rules Spouses Of Women Who Underwent Forced Abortions In Foreign Countries Do Not Automatically Qualify For Asylum

Main Category: Women's Health / Gynecology
Also Included In: Abortion
Article Date: 20 Jul 2007 - 15:00 PDT

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The 2nd U.S. Circuit Court of Appeals in New York on Monday ruled that the spouses of women from other countries, such as China, who were forced to undergo abortions or sterilizations do not automatically qualify for asylum, the AP/Staten Island Advance reports.

In the majority opinion written by Judge Barrington Parker, the court said the finding is based on its interpretation of a 1996 law that broadened the definition of a refugee eligible for asylum. According to the AP/Advance, Congress changed the law to grant asylum to anyone who has defied a coercive population control program, been forced to undergo involuntary sterilization or abort a pregnancy or who was persecuted for failing to undergo those procedures.

Majority Opinion
According to Parker, the Department of Justice's Board of Immigration Appeals in 1997 did not provide a reason to support its conclusion that past persecution of one spouse can be established by coerced abortion or sterilization of the other (Neumeister, AP/Staten Island Advance, 7/16). The court ruled that spouses would have to prove their own resistance to a coercive population control program or show that they held a "well-founded" fear of persecution for resisting the policy, the AP/Houston Chronicle reports.

The court said the ruling should not result in the reopening of previous cases in which refugees from China were granted asylum, adding that Congress can rewrite the law if it finds the interpretation inconsistent with its original intentions (Neumeister, AP/Houston Chronicle, 7/16). The old policy encouraged husbands to leave their wives and seek asylum in the U.S. This "perverse effect of creating incentives for husbands to leave their wives" was not the intent of Congress when it granted refugee status to those affected by China's family planning practices, Parker wrote.

Other Opinions
According to the New York Sun, four separate opinions were filed in the case. "The majority clings to the notion that the persecution suffered is physically visited upon one spouse, but this simply ignores the question of whom exactly the government was seeking to persecute when it acted," Judge Sonia Sotomayor wrote in one opinion, adding, "The harm is clearly directed at the couple who dared to continue an unauthorized pregnancy in hopes of enlarging the family unit."

In another opinion, Judge Robert Katzmann wrote, "I see no reason why the BIA could not reasonably conclude that one has suffered harm or injury sufficiently severe to constitute persecution when one's spouse is forced to undergo an abortion or sterilization" (Goldstein, New York Sun, 7/17).

Judge Guido Calabresi said he agreed with the ruling, even though it conflicted with 12 other federal appeals courts and findings of the immigration board (AP/Staten Island Advance, 7/16).

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