Saturday, January 19, 2013

Status Quo on 1 Million Forced Abortions Every Year?

There were rumors and whispers that change was imminent. That China was about to modify its current one-child policy. But according to an NBC News story a couple days ago, this is not the case.

For decades, China has regulated the number of children couples are permitted to have. Although the name of the policy implies that couples can only have one child, many rural areas permit more than one if enough time has passed and the first child was female. Parents prefer male children under the assumption that a male child will be more able to work and take care of his parents when they get older.

China’s population control policy has resulted in very large numbers of abortions. Some of these abortions are certainly done against the will of the prospective parents. If you believe the figures advocated by some watchdog groups, the number of forced abortions is close to one million a year. I’m a little skeptical of the number, but let’s be honest, I have no way to verify. China doesn’t exactly publicize its figures. Anecdotal evidence only emerges when an act is so egregious that efforts to conceal it are futile.

China’s one-child policy has a special place in U.S. refugee law. The basic definition of a refugee is purposefully vague, based on the need to show persecutory conduct on account of one of the five protected grounds by the government or a group the government is unable to control or punish adequately. But here’s how the law was amended based on Congress’ reaction to China’s one child policy:

“[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 raises a number of quandaries for the DHS asylum office and the immigration judges. What information does an applicant need to present to verify that she has undergone an abortion? How do you determine if an abortion was “forced”? And, what if a Chinese national comes to the United States, has multiple children, and then claims that she should be entitled to asylum because the Chinese government will sterilize her if she is deported? Should we permit individuals to essentially create an asylum claim based on their actions after they arrive in the United States? Does it matter that the right to make familial decisions is considered fundamental?

The whispers and grumblings that China was on the verge of changing its one-child policy would have been a welcome reprieve from these difficult questions, particularly since, as I mentioned in a previous post, there has been a fair amount of asylum fraud going on among some asylum applicants from China. But as of now, it appears the status quo is holding, and population control claims will continue to inundate the immigration courts.


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