Man Wins Asylum Review on China’s 1-Child Policy

(CN) - The 7th Circuit ordered immigration officials to reconsider the asylum claims of a Chinese man whose mother and aunt were forcibly sterilized for defying China's strict population control laws.

The federal appeals court in Chicago called the Board of Immigration Appeals' review "woefully inadequate," saying it failed to consider the "cumulative significance" of the hardships and persecution leveled against Chinese citizens who resist the government's one-child policy.

Shi Chen was the fifth child born to a rural family of subsistence farmers. He is one of millions of members of a disenfranchised subculture in China known as the hei haiz, those born illegally and so not allowed to be listed as official members of their families. The hei haiz are denied state-provided schooling, heath care, food allowances and many of the other rights of Chinese citizenship, including in many cases the right to marry and have a family, hold a job and own property, according to the ruling.

As a penalty for Chen's birth, the state sterilized his mother against her will. Before that, his aunt was forced to abort an illegal pregnancy in its ninth month and was also sterilized.

Chen's parents paid large sums to keep him school until he was 17, when he left China for the United States and applied for asylum.

He argued that he would be persecuted if returned to China because of his family's resistance to the one-child policy and his membership "in social groups that include his family and the hei haizi."

An immigration judge denied Chen's petition, and the appeals board affirmed, rejecting Chen's claim that he had a well-founded fear of future persecution and that he would be targeted for sterilization himself.

Chen appealed to the 7th Circuit, which found that the board had given his claims an "incomplete" review and had made too much of the fact that he was able to obtain a passport and leave China.

Judge Diane Sykes wrote that the board wrongly rejected Chen's argument that Chinese population-control authorities have held or will hold his parent's resistance to the one-child policy against him. While the board argued that there is no circuit precedent to support Chen's claim, Sykes found that "the concept of persecution based on imputed political opinion has long been recognized in this circuit, and Chen's claim falls comfortably within this theory of relief."

Sykes said the board also failed to consider Chen's claim that, as a member of the hei haizi, he will be "deprived of many fundamental rights and governmental benefits" if he is returned to China.

"The agency did not evaluate the cumulative significance of these hardships when evaluating Chen's claim of past persecution (on political-opinion grounds or based on his membership in a particular social group); nor did the agency properly account for this evidence in evaluating the reasonableness of his fear of future persecution," Sykes wrote (original emphasis).

She added that "many of the hardships Chen suffered as a hei haizi and will continue to face if returned to China are economic in nature," and that "it is well established that persecution can take the form of economic deprivation as well as physical mistreatment."

The panel vacated the BIA's ruling and remanded.

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