Skip to comments.Asylum backed for woman opposing childbirth policy (Chinese one-child/abortion policy)
Posted on 01/30/2004 11:26:53 AM PST by CounterCounterCulture
A Chinese woman who was subjected to a harrowing medical examination after expressing her objection to China's one-child policy should be granted political asylum in the United States, a federal appeals court ruled Thursday.
The 9th U.S. Circuit Court of Appeals ruling broadens the legal definition of political persecution, said Robert Jobe, a San Francisco attorney who represented the woman.
Asylum seekers from China who can prove that they've been forced to undergo abortion or sterilization are granted political asylum in the United States.
But in its ruling, the court judges said the woman, Xu Ming Li, in her 20s, deserves asylum for resisting China's tough population-control edict of one-child per family.
Li and her boyfriend Xin Kui Yu, also in his 20s, arrived in San Francisco in 1999 from the southern China province of Fujian. They immediately sought asylum but were denied.
In China, Li was forced to undergo a gynecological examination in which she was held down by two men. Chinese officials allegedly threatened that if she got pregnant she would be forced to have an abortion, and her boyfriend would be sterilized.
The couple were ordered deported by U.S. immigration officials in January 2000. The couple then appealed before the 9th Circuit Court. Yu's case is still being reviewed.
-- Jessie Mangaliman
(Excerpt) Read more at mercurynews.com ...
TAMI MIN, Associated Press Writer
Friday, January 30, 2004
(01-30) 00:08 PST SAN FRANCISCO (AP) --
In a ruling that could enable many more people to qualify for political asylum after resisting population control policies, a federal appeals court said Thursday that a Chinese woman who suffered through a rape-like gynecological exam met Congress' definition of persecution.
Congress has decided to grant asylum annually to as many as 1,000 victims of forced abortion or sterilization, as well as anyone persecuted for "other resistance to a coercive population control program."
But until Thursday's ruling by the 9th U.S. Circuit Court of Appeals, no federal appellate court had addressed what Congress meant by "other resistance," and immigration judges routinely deny asylum to anyone who hasn't actually undergone a forced abortion or sterilization.
Such was the case with Xu Ming Li and her boyfriend, Xin Kui Yu, who nevertheless fled China after a series of run-ins with Chinese authorities that the appeals panel said clearly qualifies as persecution.
According to couple's story, which their immigration judge determined to be credible, their troubles began in the early 1990s, when a population control official from the Communist government visited Li in her rural village in Fujian province in response to false rumors that she was pregnant. The official ordered the couple to end their relationship.
"I'm going to have many babies ... you have nothing to do with this," Li responded.
The government official allegedly told her: "You will pay for this."
Two days later, Li was forcibly taken to a birth control office, where two men pinned down Li, kicking and screaming, on a bench during an invasive, 30-minute gynecological exam. "If you keep on doing this, we will take you back any minute we want to give you (another) examination," they told her after finding no signs of pregnancy. Officials also threatened to have her boyfriend sterilized.
"Even by rudimentary medical standards, the examination that followed was crude and aggressive," the panel said. "The timing and physical force associated with the examination compelled the conclusion that its purpose was intimidation, and not legitimate medical practice."
China has a one-child policy that limits most married couples to one child per couple in an attempt to contain the country's expanding population of 1.3 billion.
Li, now 24, and Yu, who turns 27 on Friday, were just shy of China's minimum age requirement for marriage at the time, which was 20 for women and 22 for men. When their families decided to send out wedding invitations anyway, Li and Yu learned that warrants had been issued for their arrest. The couple fled China in 1998, then applied for asylum in the United States.
Ruling 10-1, the appellate panel determined that Li, and by extension her boyfriend Yu, are eligible for asylum, and sent their cases back for reconsideration by the Bureau of Immigration Appeals, and ultimately U.S. Attorney General John Ashcroft.
"The ultimate decision to grant asylum is discretionary," the judges noted in the decision written by Judge Michael Daly Hawkins. "We do anticipate, however, that the Attorney General will give appropriate consideration to this court's view of the seriousness of Li's treatment at the hands of Chinese officials and the threat she faces if returned."
The U.S. Department of Justice has yet to decide whether to appeal to the Supreme Court. "We will review the ruling and make a determination on what the next step is," said Charles Miller, a department spokesman.
People are on long waiting lists to get one of 1,000 slots for asylum from population control policies, and this ruling does nothing to expand the cap. But the appellate court did say that in cases like this, the people should have a chance to be considered for one of the 1,000 slots.
So while the ruling doesn't necessarily open a new door for immigrants seeking asylum, it is "going to help many women from China," said Robert B. Jobe, an attorney who represented Li and Yu, who now live in the Sacramento area. "To me this was an obvious case," said Jobe, calling earlier rulings denying asylum to the couple "downright offensive."
Judge Andrew J. Kleinfeld, the sole dissenter in Thursday's decision, called the Chinese government's treatment of Li and Yu "disgraceful," but suggested their experience was simply one of many unpleasant results of life in a Communist system.
"Our court is not in a position to change the ideology of the Communist Party," Kleinfeld said, "nor to afford a safe harbor to all those Chinese who chafe under it."
The case is Li v. Ashcroft, 00-70157.
POSTED: 5:12 PM PST January 29, 2004
SAN FRANCISCO -- A federal appeals court ruled in San Francisco Thursday that a young Chinese woman who spoke out against her country's population control policies is eligible for political asylum in the United States.
A special 11-judge panel of the 9th U.S. Circuit Court of Appeals ruled by a 10-1 vote that the experiences of Xu Ming Li in China amounted to persecution.
At age 19, Li fell in love with a 21-year-old fisherman, Xin Kui Yu, in a rural village in the province of Fujian.
Two days after she told a local official that she didn't agree with population policies and planned to have many babies, she was taken to a birth control center and subjected to a forced gynecological examination.
The incident, allegedly to determine whether she was pregnant, occurred three weeks after Li had met Yu. She testified that two men held her down while she kicked and screamed during the 30-minute exam.
Li, who was not pregnant, also testified she was told that she was subject to similar exams at any time and that if found to be pregnant, she would be forced to have an abortion and her boyfriend would be sterilized. She described the exam as "rape-like."
After Li and Yu were denied permission to marry, they fled to San Francisco via South Korea.
Li's lawyer, Robert Jobe, said Li and Yu now live in the Sacramento area and are free on bond while they appeal for political asylum.
The appeals court said the "crude and aggressive" medical exam given to Li and the following events "clearly constitute persecution."
The court overruled decisions in which immigration judges and smaller panel of the appeals court said Li's testimony was credible but that the events did not amount to persecution.
Li's case now goes to U.S. Attorney General John Ashcroft to decide whether she should be granted asylum.
The appeals panel ordered further hearings before immigration judges in Yu's case to develop a more complete factual record on the background of his bid for asylum.
Jobe said the case is the first time a federal appeals court in the United States has ruled on the interpretation of a provision of an immigration law that allows asylum in cases of persecution for "resistance to a coercive population control law."
The law passed by Congress in 1996 specifically makes forced abortion or forced sterilization grounds for asylum bids and also includes persecution for "other resistance" without defining the term.
Circuit Judge Michael Hawkins wrote in the majority opinion that Li had resisted the population policy both vocally and then physically during the forced exam.
"The timing and physical force association with this examination compel the conclusion that its purpose was intimidation and not legitimate medical practice," Hawkins wrote.
Jobe said, "It's obviously a correct decision. The examination was a sexual assault."
I hope she isn't expecting sympathy from the 9th Circus. They don't have any problem with murdering unborn children.
I never thought I would thank the 9th circuit
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