China Aid Association May 15, 2013 By DAVID E. TAYLOR
On May 9, 2013, the United States Court of Appeals for the Seventh Circuit issued a fascinating decision in which it expressed its irritation with both the Board of Immigration and the Department of Justice in what the Court referred to as an “insouciant” (nonchalant) attitude towards forced sterilization in Fujian Province China, as well as the Board’s systematic disregard of the annual reports of the Congressional Executive Commission on China regarding asylum seekers from China. Qiu Yun Chen v. Eric Holder, Jr., Attorney General of the United States, No. 12-2563.
Click here to read or download the full text of Decision on Qiu Yun Chen’s Case by the 7th Circuit Court of US:
https://docs.google.com/file/d/0B_YUgSyiG6aIdlJ6YWVxRFNUSEE/edit?usp=sharing
In this somewhat amazing case, the Chinese petitioner, a woman from China with two children born in the United States argued that if she were not granted asylum she would be returned to Fujian Province and subjected to forced sterilization. The Board of Immigration upheld the Immigration judge’s denial of her request for asylum upon which appeal was taken to the Seventh Circuit.
The Court pointed out that despite China’s repeated assertions that sterilization is against national policy, there is an abundance of evidence that local officials, particularly in Fujian Province, routinely ignore or violate that policy. The Court took the Department of Justice to task on its assertion that it is against Chinese Law for anyone to be subjected to forced sterilization.
Resorting to a lot of common sense and reference to many independent sources, including the Congressional-Executive Commission on China, the Court pointed out that forced sterilization is equal to persecution, a proposition with which apparently even the Department of Justice does not disagree. Yet the Court noted the “frequently obstinate manner in which the Department defends to Board’s rulings in asylum cases …”
The Court literally shreds the arguments of the Department of Justice that the evidence submitted by the petitioner was not properly authenticated partly because some of the evidence were documents from local officials in China, and others were letters from family members of the petitioner. The Court noted in this regard that when one flees from persecution it is, in fact, escape and flight upon which that person is focused and not the gathering of documentary evidence in the land from which he or she is fleeing. Moreover, the Court noted that some commonsensical approach must be used in analyzing whether or not local official documents from China should be authenticated, ruling that when it can be determined that such documents are verified on a government sponsored website that should be sufficient. In this case, some of the documents were, in fact, on a Fujian government website.
Between the lines in this case one can readily detect a sense of high frustration on the part of the Court with the inability of the Board of Immigration and the Department of Justice to admit the facade put up by the Chinese government, claiming on the one hand that forced sterilization is against national policy, while on the other hand turning a blind eye at the least to local officials who engage in such practices. As the Court put it “how realistic is it to expect the petitioner to be able to obtain an authenticated copy of a communication from a local official that states an intention to violate Chinese national policy, whether or not codified in law, against resorting to sterilization to punish violations of the one-child policy or deter future violations?”
Not only is this case fascinating and terribly significant for its holding but goes a long way as a primer for those interested in how to gather evidence of persecution to be presented to the Board of Immigration. It remains to be seen whether the Court’s decision will be appealed but it is this writer’s belief that it most likely will not be because the U.S. State Department and the U.S. Department of Justice probably have a well-founded fear that the United States Supreme Court in rendering its decision could play an extremely important role in relations between the United States and China at least in this one very sensitive area. That is a role which the Obama Administration wishes to preserve for itself so that it is subject to less scrutiny.
In the meantime, chalk one up to the citizen and to the Court, and let China chew on its own cud regarding its coercive population control policies which are increasingly causing a sour stomach.
DAVID E. TAYLOR,
Legal Counsel, China Aid Association
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