Coercive Family Planning and Asylum
Date: October 21, 1996
HQCOU 120/11.33-P
To: Management Team
Regional Directors
District Directors (Including Foreign)
Chief Patrol Agents
Officers In Charge (Including Foreign)
Chief, ODTF, Glynco, Gallegos
Chief Patrol Agent, BPA, Glynco, Gallegos
Asylum Office Directors
Service Center Directors
Regional Counsel
District Counsel
From: Office of the General Counsel
Background
On September 30, 1996, the President enacted into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104- 208, 110 Stat. 3009 (September 30, 1996)(the 1996 Act). Among many other landmark changes to the Immigration & Nationality Act (the Act), Section 601 of the 1996 Act added the following sentence to the end of Section 101(a)(42), the Act’s definition of refugee:
For purposes of determination under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
This provision is effective immediately. The amendment effectively overrules the Board of Immigration Appeals precedent on this issue represented by Matter of Chang, 20 I&N 38 (BIA 1989) and Matter of G-, 20 I&N 764 (BIA 1993). In those cases, the Board held that implementation of population control policies by coercive means is not on its face a basis for asylum eligibility, even to the extent that involuntary sterilizations or forced abortions may occur. According to past Board precedent, in order to prevail on a request for asylum based on coercive family planning practices, the applicant had to establish that the policy was being “selectively applied against [the applicant] as a member of a particular religious or other social group, or being used as a means to punish [the applicant] because of his race, religion, nationality, or political opinion.” Matter of G-at 778.
Recognizing the compelling humanitarian factors such claims can involve, however, the Deputy Commissioner established an administrative program independent of asylum to provide protection to those persons facing coercive population control practices. This program was introduced in a memorandum issued on August 5, 1994 which allows district directors to exercise their discretion to release from detention and to stay the repatriation of Chinese nationals who credibly demonstrate that they 1) face imminent danger of forced abortion or involuntary sterilization; 2) have suffered or would suffer severe harm for refusing to submit to an abortion or sterilization; or 3) have suffered or would suffer severe harm because they violated other unreasonable family planning restrictions. The Deputy Commissioner revised the program by issuing enhanced procedures on June 7, 1996. Given the amendment to the refugee definition, however, this discretionary administrative program has become unnecessary, and the Deputy Commissioner has authorized us to include in this memorandum the following directive: immigration officers are no longer to follow the procedures set forth in the August 5, 1994, and June 7, 1996 memoranda, effective immediately.
Eligibility for Asylum an Withholding of Deportation
By linking resistance to coercive population control practices to political opinion, Section 601 of the 1996 Act relieves applicants of the burden of demonstrating a nexus between the persecution for their resistance to such practices and a status protected under the Refugee Act. Under the new law, one who has been forced to abort a pregnancy, forced to undergo sterilization, or otherwise persecuted for refusal to undergo such a procedure “shall be deemed to have been persecuted on account of political opinion.” In like manner, one who has a well-founded fear of being forced to undergo an abortion or sterilization, or a well-founded fear of being persecuted for failure, refusal, or resistance to such procedures “shall be deemed to have a well-founded fear of persecution on account of political opinion.” There is no need for the applicant to demonstrate independently that the program was being selectively applied to him or her due to membership in a particular religious or social group, or being used as a means to punish the applicant due to race, nationality or political opinion.
Similarly, applicants who base their claim for withholding of deportation on resistance to coercive population control practices are relieved of the burden of establishing that the threat to the applicant’s life or freedom is on account of race, religion, nationality membership in a particular social group, or political opinion. The statute automatically provides that nexus.
In asylum claims based on coercive population control practices, Service attorneys and asylum officers should examine the issues raised by all asylum claims. These include, for example, whether the applicant is unable or unwilling to return to his or her country of nationality, the opportunity for internal relocation, whether the harm is severe enough to constitute persecution, and whether are subjective and objective bases for considering the applicant’s fear to be well-founded. Service attorneys and asylum officers should also consider the applicability of any of the statutory and regulatory bars to asylum. See INA Section 208(b)(2) [As amended by Section 604 of the 1996 Act.]; 8 CFR Section 208.14(d).
Credibility
This change to the refugee definition does not require that asylum be granted to every applicant alleging a claim based on coercive population control programs. As always, credibility of the applicant will be a key concern. Except in those cases which are extremely well-documented prior to a hearing or interview, Service attorneys should not stipulate to a grant of asylum prior to a hearing. As with any case, the trial attorney or asylum officer should closely examine the applicant’s credibility by attempting to elicit detailed testimony about the applicant’s past experiences, comparing the applicant’s live testimony with prior statements, examining any documentary evidence provided by the applicant, and considering any other relevant information conditions in the applicant’s home country, region or town.
Past Persecution
An applicant who demonstrates that he or she was persecuted in the past meets the statutory refugee definition under INA Section 101(a)(42) if the persecution is on account of a protected ground, and the applicant is not disqualified under the second sentence of the definition. The relevant question then becomes whether such an applicant is eligible for a grant of asylum in the exercise of discretion. One key factor to be considered in the exercise of discretion is whether the applicant has a well-founded fear of future persecution. Matter of Chen, 20 I&N 16 (BIA 1989). Current regulations provide that an applicant who has established past persecution is presumed to have a well-founded fear of future persecution. [See 8 CFR Section 208.13(b)(1)(i).] In cases where the INS rebuts the presumption by establishing by a preponderance of the evidence that there is no longer a well-founded fear of future persecution, asylum generally will be denied as a matter of discretion. [See 8 CFR Section 208.13(b)(1)(ii).] However, even if there is little likelihood of persecution in the future, asylum may be granted if the applicant has suffered under “atrocious forms of persecution.” Matter of Chen, quoting the Handbook on Procedures and Criteria for Determining Refugee Status at Paragraph 136. See also 8 CFR Section 208.13(b)(1)(ii) which requires the applicant who does not have a well founded fear of future persecution to demonstrate “compelling reasons” arising out of “the severity of the past persecution” for his unwillingness to return to his country. These principles should be applied to all claims, including those based on coercive population control practices.
Claims involving past persecution in connection with coercive population control practices can raise difficult issues, particularly in cases involving involuntary sterilization of the applicant and harm inflicted upon the applicant’s spouse. Until these issues are addressed in BIA or judicial decisions, the following discussion represents our best view of the governing law.
The amended refugee definition provides that a person who is forced to abort a pregnancy or to undergo an involuntary sterilization is deemed to have been persecuted on account of political opinion. Accordingly, to establish past persecution based on an abortion or sterilization, the applicant must demonstrate that he or she was “forced” to undergo the procedure. We believe that the procedure should be considered “forced” only when the applicant demonstrates that he or she was physically coerced or would have faced harm rising to the level of persecution if he or she had failed or refused to undergo the procedure. For instance, the imposition of a fine alone would not be a sufficient basis to consider the procedure to have been “forced,” unless the fine would result in such a substantial economic deprivation that it would constitute persecution. A sterilization or abortion effected through physical coercion or the threat of a substantial prison term would, in most cases, meet the requirement of being “forced.”
In cases where an applicant has been forcibly sterilized there may be little reason to suspect that he or she will be subjected to mistreatment in the future. Barring any indication that the family planning authorities have an inclination to continue punishing the applicant, the successful imposition of measures to eliminate the applicant’s ability to procreate would presumably end the authorities’ interest in him or her. Nonetheless, if involuntary sterilization was carried out in such a way as to amount to an “atrocious form” of persecution, the applicant would be presumed to merit a favorable exercise of discretion, barring any adverse factors. These determinations, however, should be made on a case-by-case basis, depending largely on the degree of trauma, both emotional and physical, suffered by the applicant. See Matter of Chen; Matter of H-, Int. Dec. 3287 (BIA 1996).
Cases where the applicant demonstrates that his or her spouse has been forced to undergo an abortion or involuntary sterilization raise the issue of what constitutes past persecution. In general, we believe that an applicant whose spouse was forced to undergo an abortion or involuntary sterilization has suffered past persecution, and may thereby be eligible for asylum under the terms of the new refugee definition. In such a case, the applicant may or may not have a well-founded fear of future persecution. If the applicant does not have a well-founded fear of future persecution, he would only merit a favorable exercise of discretion, pursuant to Matter of Chen, if the abortion or involuntary sterilization is determined to be an “atrocious form” of persecution to the applicant. This would depend on the specific facts of the case, such as the degree of trauma, both emotional and physical, suffered by the applicant and the circumstances of the marriage.
Motions to Reopen
Many asylum applicants who based their claims, unsuccessfully, on coercive family planning practices will likely file motions to reopen their cases. For decisions of an immigration judge or the Board, a motion to reopen must be filed not later than 90 days after the date on which the final administrative decision was rendered, except:
(ii) To apply or reapply for asylum, or withholding of deportation, based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the former hearing; or
(iii) Agreed upon by all parties and jointly filed. Notwithstanding such agreement, the parties may contest the issues in a reopened proceeding.
61 Fed. Reg. 18900, 18905 (1996) (amending CFR Section 3.2(c)(3)).
Since motions to reopen in this context would generally not be based on changed country contributions, the proceedings should only be opened if the INS agrees. The INS’s position on these motions should be determined on a case-by-case basis.
In many cases, the file will have been reviewed by a trial attorney pursuant to one of the Deputy Commissioner’s memoranda for discretionary humanitarian relief for certain nationals of the People’s Republic of China. In cases where humanitarian relief was granted, the INS should join the motion to reopen, and should presumptively enter a stipulation of asylum eligibility, barring the presence of new facts that cast doubt on the earlier administrative determination or weigh heavily against a grant of asylum in the exercise of discretion.
In cases where humanitarian relief was denied or there was not file review for humanitarian relief, the INS should consider motions to reopen on a case-by-case basis. INS attorneys should determine whether the applicant was found credible by the immigration judge and whether his or her claim meets the criteria of the revised refugee definition. If the applicant was found credible by an immigration judge, or there was not an explicit credibility finding, and his or her claim falls within the refugee definition, the INS should join the motion to reopen, reserving the right to challenge the applicant’s asylum eligibility during the course of the reopened asylum proceeding. If the Service attorney determines that the applicant is credible and the claim falls within the revised refugee definition, he or she should consider a stipulation of asylum eligibility. If not, the Service attorney should explore the issue of credibility in the course of the reopened asylum proceeding.
The INS should oppose the motion to reopen in cases where: 1) the applicant was explicitly found lacking in credibility by an immigration judge; 2) a review of the claim indicates that it does not fall within the revised refugee definition; or 3) the alien did not previously base an asylum claim on coercive population control practices. In many cases, however, there may not be an explicit credibility determination and it may not be clear whether the applicant’s claim falls within the new refugee definition. INS’s position on these cases should be determined on a case- by-case basis.
The above discussion applies to motions to reopen that may be filed with an immigration judge or with the Board of Immigration Appeals. Asylum offices, however, may also receive motions to reopen cases where the asylum office previously denied an asylum claim that was based on coercive population control practices. Asylum offices should treat these motions consistently with the guidelines set forth above.
Ceiling for Asylum Grants and Refugee Admissions
In addition to the revision of the refugee definition in Section 101(a)(42) of the INA, section 601 of the 1996 Act sets a limit on the number of refugee admissions or asylum grants on the basis of coercive family planning practices. The application of this limit would not affect an applicant’s entitlement to withholding of deportation based on coercive population control practices. Specifically, the 1996 Act amends subsection 207(a) of the INA by adding paragraph 5, which provides:
(5) For any fiscal year, not more than a total of 1,000 refugees may be admitted under this subsection or granted asylum under section 208 pursuant to a determination under the third sentence of section 101(a)(42) (relating to persecution for resistance to coercive population control methods).
In order to adhere to this provision, it will be necessary for the INS to keep track of the number of such asylum grants or refugee admissions over the course of each fiscal year, and to advise the appropriate adjudicators when the number approaches 1000. We are working with the Office of International Affairs and with the Executive Office for Immigration Review to develop procedures for tracking asylum grants and refugee admissions. In the meantime, the relevant INS offices should take steps to ensure that the office maintains a record, by name, alien number, date of birth, and the date of grant (or admission), of any person granted asylum or admitted as a refugee under the third sentence of section 101(a)(42), within the responsibility of that office
David A. Martin
General Counsel