(CN) - A Chinese citizen should not be returned to his home country because of the chance he or his wife could be sterilized for having too many children, the 2nd Circuit ruled.
Xiao Kui Lin illegally entered the United States in 1992. He was ordered to be deported in 1994, but the removal never took place and he was married in 2000. Lin and his wife had two daughters.
Lin applied for asylum, citing his desire to have a third child and fears of repercussions if is deported to China. He said his mother had been sterilized and his sister was fined for violating the family-planning laws of Fujian Province.
The immigration judge ruled against Lin, doubting "the closeness of his relationship with his wife and whether they even live together."
Similarly, the Board of Immigration Appeals (BIA) was skeptical that Lin's children would accompany him back to China, and that the Chinese government would punish him for having children in the United States.
The federal appeals court in New York took a different view, saying the prior rulings weren't based on any credible source.
"In determining that China has no national policy of forcibly sterilizing those with more than one foreign-born child," Judge Livingston wrote, "the BIA did not take administrative notice of any commonly known facts or official documents - indeed, the BIA cited no evidence for this proposition whatsoever."
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