Chinese Asylum Issue Bounces Between Courts

Chinese asylum issue bounces between courts
October 14, 2006

A federal appeals court has asked an immigration appeals court to decide whether Chinese immigrants who have two children in violation of China's family planning policies can establish grounds for asylum on that factor alone.

The Second U.S. Circuit Court of Appeals in Manhattan posed the question late Thursday to the Board of Immigration Appeals as it and a dozen other federal appeals courts seek to deal with a deluge of immigration cases.

“Whether the United States should grant asylum to Chinese nationals with more children than is allowed by that country's family planning policies raises complicated public policy and foreign policy questions, significantly affecting our foreign relations,” the court wrote.

The appeals court said in a written decision that it wants to know whether any Chinese national who has two children in China may on that basis alone establish the asylum claim requirement that they have a well-founded fear of persecution.

Ruling in the case of a citizen of China, Jian Hui Shao, the appeals court noted that Shao's circumstances are shared by “innumerable potential asylum applicants.” In February 2002, Shao entered the United States at Honolulu International Airport carrying phony documents. He conceded he was in the country illegally but applied for asylum, saying that as a non-agricultural worker, he was banned in China from having more than one child.

Shao testified before an immigration judge that his wife is in hiding in China after delivering their second child, and that his father helps her and the children survive by delivering food and medicine to her. He said that if he and his wife were caught in China, they would likely be sterilized against their will. He could also face criminal punishment.

The appeals court returned the case to the lower court, saying it would be unreasonable for each of the courts of appeals across the United States to decide the cases differently when the facts in cases such as Shao's are essentially the same.

The three-judge panel of the Second Circuit said the Board of Immigration Appeals has “far more relevant expertise than we do” because it considers only immigration cases and can better predict the likely effects of a resolution of that question of law.

Ultimately, the appeals court said, the Supreme Court might have to decide the issue.