Posted on September 24, 2004

Citing China’s 1-Child Policy, Court Allows Mom To Stay

Matt O’Connor, Chicago Tribune, Sept. 23

For months, Xia J. Lin has been moving between friends’ homes in the Chicago area and New York City, fearful she could be deported at a moment’s notice after she had been denied political asylum.

Lin, a mother of two, had sought asylum here because she feared that her return to China would mean being sterilized for violating its controversial policy limiting families to one child.

But in a victory for Lin that some applauded as upholding basic rights and others feared could set a dangerous precedent that would lead to many more asylum requests, a federal appeals court in Chicago on Wednesday overturned an immigration judge’s order that she be deported to her native China.

The 7th Circuit U.S. Court of Appeals criticized the immigration judge’s reasoning and, in a rare rebuke, ordered that the case be sent back to a different judge for a decision.

But lawyers for Lin said the strongly worded opinion all but makes it certain that she will be allowed to stay in the United States.

Noting the appeals court found Lin’s account of events credible, her attorney, Jeffrey C. Bloom of Flushing, N.Y., said, “That’s the crux of an asylum case. It’s implausible that a judge could ever deny her at this point.”

A pregnant Lin contended she had fled China in 1999 to avoid undergoing a third forced abortion. A number of Chinese women in the Chicago area have sought asylum in the last eight years to escape China’s policies on reproduction.

Speaking through an interpreter, Lin, 35, now living in New York City, said Wednesday she hopes her husband and two children can join her from China as a result of Wednesday’s court decision.

“I am very happy,” she said.

Lin said it was difficult being apart from her family, adding that she slept fitfully and often cried on awakening in the morning.

In the opinion, Judges Diane P. Wood and Ann Williams, two of the three judges who decided the case, made it clear they weren’t finding that every woman of child-bearing age in China automatically would be entitled to asylum because of its coercive family-planning policies.

But Judge Terence Evans wrote, “I think, as a practical matter, we are either doing, or coming close to doing, just that.”

Evans went on to say that “the floodgates are probably open.”

Nevertheless, he concurred in the opinion, written by Wood, except for the recommendation that the case be assigned to a different judge. “We should not be making gratuitous suggestions of that sort,” he said.

The appeals court opinion didn’t name the immigration judge who denied asylum to Lin, but court records identify him as Robert Vinikoor.

Sweeping 1996 immigration reform legislation expanded the definition of a refugee to include people forced to abort a pregnancy or undergo involuntary sterilization, or who have been persecuted for resistance to coercive population-control programs.

‘Basic human rights’

“This type of coercive family planning does violate a person’s basic human rights,” said Mary Meg McCarthy, director of the Midwest Immigrant & Human Rights Center, who applauded Wednesday’s decision.

But others warned that the legislation and Wednesday’s decision set a dangerous precedent.

“We couldn’t let everyone [in China] who wants to have 10 kids come here,” said Dan Stein, president of the Federation for American Immigration Reform, a group that favors tightening immigration restrictions. “No country can sustain an asylum policy that tries to remedy broad social problems.”

But attorney Steven Greenberg, who represented Lin in oral arguments before the appeals court in December, doubted the decision would open the floodgates because of the United States’ traditional limits on immigration from China and elsewhere.

In seeking asylum, Lin alleged persecution by the Chinese government. In addition to the two forced abortions in 1989 and 1995, she maintained that three separate times family-planning officials had inserted an intrauterine device to prevent pregnancies.

Vinikoor had concluded that Lin’s testimony was inconsistent with State Department reports on conditions in China.

The appeals court questioned if Vinikoor had read the reports, saying they had actually corroborated key points of Lin’s story.

Vinikoor had found it difficult to believe that Chinese authorities found Lin after she moved to a brother’s house following the first abortion, or that family-planning officials would send eight people to detain her.

Reports of detention

But the appeals court cited testimony before Congress in 1998 in which a former Chinese family planning official said women would be apprehended by a supervision team if they failed to show up for required IUD checkups, as Lin had done.

Lin had been fined for giving birth while under 23, the legally permissible age in China, which likely brought her to attention of family planning officials early on, the court held.

The court took issue with Vinikoor’s conclusion that Lin fled China for economic reasons.

Vinikoor’s determination that Lin’s testimony was implausible “is not supported by substantial evidence,” the opinion said. “She provided ample detail to explain why and how she was detained during her second and third pregnancies.”

“She was also resolute in explaining that she left China because of the one-child policy,” the court wrote. “The [immigration judge’s] stated reasons for disbelieving Lin’s descriptions are not based on cogent reasons.”

The judges also concluded Lin corroborated parts of her testimony by submitting original copies of fines. She also explained she couldn’t corroborate the forced abortions, because documentation is provided only with voluntary abortions, a fact supported by the State Department reports, the court noted.

By 1989, Lin, then the mother of a daughter, paid to have a private doctor remove the government-forced IUD the first time, according to court records and her lawyers. After becoming pregnant, she fled to her brother’s house, but eight family-planning officials found her there one night, took her to a hospital and forcibly aborted the fetus at 4 months.

One month later, she was fined, and another IUD was inserted. In 1995, Lin again paid a private doctor to remove the IUD, and she became pregnant again. This time, she stayed with a sister, but after she missed her IUD checkup in late 1995, about 10 family-planning officials tracked her down at night. The pregnancy was aborted at a hospital at about 6 months.

Lin was fined again, and another IUD was inserted. Lin had a doctor remove the IUD in 1998. When she became pregnant, she hired smugglers. She traveled from China to Thailand, then Singapore and Japan before arriving in the U.S. in May 1999.

After her second child, a daughter, was born in the U.S., she sent the child to live with her parents while she worked here to pay off her $20,000 smuggling debt.

Lin said she regretted leaving China but felt she had no choice, because she wanted to provide a better life for her baby.

Lin said she was in frequent touch with her family by phone but hadn’t seen her husband and children since April 1999 when she fled China.