Supreme Court declines to hear asylum case involving forced abortion

Unresolved: Can spouses of victims of China's population control claim harm if they weren't officially married?

By , Staff writer of The Christian Science Monitor

The US Supreme Court has declined to take up a case examining whether a Chinese national should be granted political asylum in the United States because his wife was forced to abort their first child under China's harsh population-control measures.

The action, announced on Monday, means that lower court rulings rejecting the Chinese citizen's asylum claims remain in place. At issue in the case was whether the spouse of someone who had suffered directly under the Chinese program – enduring a forced abortion or sterilization – could claim political asylum in the US.

Immigration judges and a federal appeals court had earlier rejected Yi Qiang Yang's application for asylum, saying that he did not qualify since he and his wife were not officially married under Chinese law.

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Lawyers for Mr. Yang countered that he and his wife participated in a traditional Chinese marriage ceremony when he was 21 and she was 17.

As part of its population control policies, the Chinese government has banned legal marriage for any man under 22 and any woman under age 20. Rather than wait, the couple wed through a traditional ceremony attended by family and friends. The Chinese government does not recognize such marriages as genuine and legal.

In addition, the Chinese marriage law carries heavy consequences. When Yang's wife, Jian Hui Ling, became pregnant, she had to hide from authorities to protect their unborn child.

The effort failed. She was discovered when she was eight months pregnant. Chinese population-control officials took her to a hospital and forcibly ended her pregnancy, according to a legal brief submitted by Yang's lawyers.

"The fetus was placed in a bag and disposed of in front of Ling," the brief says.

Specifically at issue in Yang's case was whether the US government must recognize traditional Chinese marriages and give them the same weight as marriages sanctioned under China's population-control regime.

"Because traditionally married spouses are unable to register their marriages with the government, the state treats such couples who have children as violators of the population control policy," Yang's lawyer, Charles Rothfeld, wrote in his brief urging the Supreme Court to take up the case. "Such couples are often subjected to forced abortions or sterilizations."

The US Solicitor General's Office urged the court not to take up the case. The lower courts ruled correctly, Solicitor General Paul Clement said in his brief. In addition, he said, the attorney general is now reviewing whether to change US asylum policy concerning spouses.

Federal appeals courts have reached different conclusions on the legal marriage versus traditional marriage issue. Both the Ninth Circuit in San Francisco and Seventh Circuit in Chicago have recognized traditional marriages, while the Second Circuit in New York and 11th Circuit in Atlanta have not.

"If Yang's case had been decided in the Seventh or Ninth Circuits, he would have been deemed eligible for asylum," Mr. Rothfeld said in his brief. "The fate of traditionally married spouses thus turns on nothing more [than] where their case is heard."

Rothfeld said that in 2006 US immigration courts received nearly 9,000 claims for asylum from Chinese nationals, many of them filed by couples in traditional marriages fleeing China's harsh population-control policies.

Mr. Clement argued on behalf of the Bush administration that the US government was justified in drawing a distinction between officially authorized marriages in China and traditional marriages.

He quoted the 11th Circuit opinion in Yang's case. "Legal marriage reflects a sanctity and long-term commitment that other forms of cohabitation simply do not," the court wrote. "A legal husband ... shares significantly more responsibility in determining, with his wife, whether to bear a child in the face of societal pressure and government incentives."

The court added, "It would be absurd to characterize reliance on marital status ... as arbitrary and capricious [when] benefits and presumptions based on marriage are found in so many other areas of the law."

Yang's lawyers say Congress wrote its immigration policies to protect married people – not simply those whose unions are recognized under the Chinese government's population-suppression program.

"Traditionally married spouses are victimized by coercive population control policies in precisely the same way as registered spouses," Rothfeld wrote.

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