First Circuit Rejects Per Se Refugee Status

By Robyn Hagan Cain on October 05, 2012 | Last updated on March 21, 2019

A woman can use China's one-child policy as the basis for an asylum application, but her husband cannot.

The First Circuit Court of Appeals ruled this week in a matter of first impression that 8 U.S.C. § 1101(a)(42)(B), a statute enacted to pave the way for asylum for victims of China's coercive population control policies, does not automatically extend to a spouse of a person forced to undergo an abortion.

Section 1101(a)(42)(B) says that "refugee" shall include "a person who has been forced to abort a pregnancy or to undergo involuntary sterilization."

The issue came up in Xian Tong Dong's asylum application. Xian, a Chinese national, wanted to remain in the U.S. because, among other things, the Chinese government forced his wife to have an abortion.

Xian testified that his wife was fitted with an intrauterine device (IUD) after the birth of their first child. She had the IUD removed by a privately retained physician. The couple later conceived a second child. When Chinese authorities became aware of the pregnancy, they subjected the Xian's wife to a forced abortion. That event prompted him to leave China and come to the United States.

Xian argued that he was entitled to per se refugee status as "a person who has been forced to abort a pregnancy." The IJ rejected this argument, holding that the spouse of a person who has been physically subjected to a forced abortion is not entitled to refugee status per se, and the BIA affirmed.

On appeal, Xian argued to the First Circuit that a man whose wife is forced to abort a child loses the child in the same way as the mother and, thus, has been forced to abort a pregnancy. Based on this reasoning, the plain language of the statute encompasses a person -- like himself -- whose spouse experienced a forced abortion at the hands of the government.

The appellate panel disagreed, concluding that, under a natural reading, the focus in the statute is on persons targeted for a procedure, not upon the results of the procedure.

The panel noted that the Second and Third Circuits have "unreservedly embraced this plain-language construction," while the Fourth and Eleventh Circuits have agreed with the plain-language interpretation," but discussed the Attorney General's interpretation in an abundance of caution. (In the 2008 BIA ruling for Matter of J-S, the Attorney General, relying heavily on a textual analysis of the statute, rejected an expansive interpretation of Section 1101(a)(42)(B) that would have dictated spousal eligibility.)

If you have Chinese clients seeking asylum based on the one-child policy, you will either have to include the husband on his wife's asylum application, or seek derivative asylum for the husband.

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