NEW YORK – The husbands of women forced to abort a pregnancy, undergo involuntary sterilization or face persecution under China's coercive population control program do not automatically qualify for asylum in the United States, a federal appeals court ruled Monday.
Judge Guido Calabresi said the ruling by the 2nd U.S. Circuit Court of Appeals in Manhattan conflicts with a dozen other federal appeals courts, as well as the findings of the Board of Immigration Appeals and 10 years of decisions in immigration cases.
A law adopted in 1996 broadened the definition of a refugee eligible for asylum by including anyone who has resisted a coercive population-control program, or who has been forced to abort a pregnancy or undergo involuntary sterilization, or who was persecuted for failing to undergo those procedures.
In 1997 the Board of Immigration Appeals ruled that past persecution of a husband could be established for asylum purposes if his wife had been forced to have an abortion or undergo sterilization.
In the majority opinion written by Judge Barrington Parker said the immigration board "lacks authority to adopt a policy that presumes that every person whose spouse was subjected to a forced abortion or sterilization has himself experienced persecution based on political opinion."
Parker said spouses would have to prove their own resistance to a coercive population-control program or demonstrate a well-founded fear that he or she will be subjected to persecution for resisting the policy.
The court said the ruling Monday should not result in the reopening of cases of Chinese refugees already granted asylum.
The opinion noted that the U.S. Congress can rewrite the law if it finds the court's interpretation inconsistent with its intentions.
The court was ruling on three separate asylum cases, none involving spouses. Two of the cases involved boyfriends of women awarded asylum, and the other involved a fiance.
China's family planning policy — implemented in the late 1970s — limits most urban couples to one child and families in some rural areas to two children in order to control population growth.
Human rights activists complain the policy has led to forced abortions, sterilizations and a dangerously imbalanced sex ratio due to a traditional preference for male heirs, which has prompted countless families to abort female fetuses.