Coercive Population Control and Immigration Law
AILA member Sylvia Miller wrote an article for the Spring 2021 edition of the AILA Law Journal entitled “From China’s One-Child Policy to Central America’s Gender-Based Violence Epidemic: An Argument for Expansive Application of the “Coercive Population Control” Political Opinion Ground“. In this blog post she reflects on the topic and process and why she felt readers should know more about this issue.
I wrote this article because I had been thinking about the application of the coercive population control prong of U.S. asylum law to Central American asylum cases for years. However, when I searched for cases, articles, or practice advisories, I found little to no information on the topic. From informal conversations with other attorneys I respect, I knew many of us have been bringing, developing—and sometimes winning—coercive population control claims for clients from Guatemala, Honduras, and El Salvador. I suppose I always wanted to read an article about this topic, but I was just waiting for someone else to write it.
When I decided to write it myself, the issue felt timely and important for two reasons. First, the Trump administration had a very intense and transparent hostility towards Central American asylum seekers, particularly victims of gender-based violence. Over time, the case law and regulations that attorneys relied on to argue these kinds of claims (under the “particular social group” ground of asylum), got increasingly worse, despite some sporadic victories in the federal courts. In that climate, I think many practitioners—including myself—became more invested in searching for and developing alternative arguments and theories to help our clients get the protection they need and deserve.
Second, I realized that many attorneys who primarily represent clients from Central America may not have a strong background on the coercive population control prong of asylum law. This prong is generally only applied to asylum seekers from the People’s Republic of China, where the government had a “one child” policy in effect. As attorneys, it is easy for us to become siloed in our areas of practice. We become experts in one geographical area or legal argument but feel less confident on topics that are unfamiliar. I clerked at the New York Immigration Court after law school, which has a very high caseload of Chinese asylum claims, so early in my career I did a lot of writing and research on forced abortion and sterilization claims from China. While I primarily represent Central American asylum seekers today, this article seemed like an opportunity to cross-pollinate those two worlds and share information about coercive population control claims with readers who perhaps have never represented a single Chinese client.
Ultimately my hope is that this article helps continue and broaden conversations, both within the legal community and between attorneys and our clients. It can be intimidating to present creative or novel legal arguments, especially using unfamiliar areas of law. I encourage other attorneys to experiment with, develop, and improve upon the arguments and ideas presented here. Our Central American clients have often overcome enormous physical and legal obstacles in their journey to seek protection in the United States; as their lawyers we need to bring the same tenacity to their cases and make sure we are using every tool in our legal arsenal.