China's family planning rules at issue in US asylum cases

By MARK SHERMAN Associated Press Writer

WASHINGTON (AP) - Partners of Chinese women who were forced to have abortions are pressing the Supreme Court to make it easier to get asylum in the United States.

The Bush administration is resisting the male partners' efforts to get asylum, even though the Republican congressman who wrote a 1996 asylum law said it was intended to cover men as well as women who are victims of China's controversial family planning policy. There is no dispute that women can seek asylum under the law.

The justices will consider appeals by two men in the coming weeks.

U.S. courts have taken varying approaches to claims by Chinese men that they should be allowed to stay in the United States because they have suffered under a policy that generally limits couples to one child.

China prohibits marriage until the man is 22 and the woman is 20, but the government concedes that many people enter into traditional marriages at younger ages.

Still, authorities sometimes force abortions or sterilization on people who seek to have children even though they are not legally married or who want more than one child, according to the State Department's most recent human rights report for China, issued in March.

U.S. immigration authorities and some courts have seized on the distinction between traditional and legal marriage to deny asylum claims.

Yi Qiang Yang was 20 when he married his 17-year-old wife in a traditional ceremony. More than a year later, Yang's wife was eight months pregnant when Chinese authorities forced her to have an abortion.

Yang fled, fearing persecution for trying have a child outside China's strict rules and eventually asked for asylum in the United States. Immigration officials and the 11th U.S. Circuit Court of Appeals in Atlanta turned him down, in part because the marriage was not legal. "Legal marriage reflects a sanctity and long-term commitment that other forms of cohabitation simply do not," the appeals court said.

The administration, which has criticized China's human rights practices, said the decision was correct. "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," wrote Solicitor General Paul Clement, the Justice Department lawyer who represents the administration at the Supreme Court.

Rep. Chris Smith, R-N.J., a frequent critic of China's human rights practices, said the administration is in essence blaming the victim. "The Solicitor General is profoundly wrong and misguided in taking that view," Smith said in an interview with The Associated Press.

Smith authored a 1996 law that he said was designed to expand eligibility for asylum and erase uncertainty that both partners would be covered.

"Not to include both when both are harmed irreparably would be a gross miscarriage of justice," Smith said. "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?"

A second case that the court could soon consider involves just such an arrangement. Zen Hua Dong contends his fiance was forced to have two abortions and he was threatened with sterilization by local officials.

But immigration judges denied his asylum application because he is not married.

The 2nd U.S. Circuit Court of Appeals in New York went further, however, saying that the law does not cover even spouses in legal marriages.

New York University law professor Samuel Estreicher, Dong's lawyer at the Supreme Court, said the appeals court narrowed the law, despite substantial evidence that Congress intended to expand eligibility for asylum.

"The Chinese government is not just going after the pregnant woman, it is going after the unit, the couple," Estreicher said.

Appeals courts in Chicago and San Francisco have sided with spouses seeking asylum.

The ruling in New York spurred the Justice Department to review its policy on the eligibility of spouses.

Smith and former Rep. Henry Hyde, who has since died, urged Attorney General Michael Mukasey to take an expansive position on who is eligible for asylum.

The U.S. Conference of Catholic Bishops and other faith-based groups also are calling on 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 Justice Department has not said when the review will be completed.