In reaction to the government of China's one-child policy, Congress amended the asylum law in 1996 so that "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." In other words, a person who is or could be subject to a forced abortion or forced sterilization may be eligible for asylum in the United States.

While this law was created with China in mind, there is no requirement that asylum seekers fear persecution in that nation. Indeed, over the years, advocates (including yours truly) have tried to use this law to obtain protection for people from many different countries. A recent article by Karla Colley in the Columbia Human Rights Law Review sets forth the arguments for an expansive use of the forced abortion-forced sterilization basis for asylum. Due to the prevalence of these practices around the world, Ms. Colley concludes that "attorneys and physicians need to screen all female clients for involuntary sterilization during the intake process and the forensic medical evaluation." I think she is exactly right. Women who have been victims of forced abortion or forced sterilization can use that as a basis for an asylum claim, and as advocates, we have a responsibility to pursue all avenues of relief for our clients.

As I see, there are a few categories of asylum applicants who can benefit from the 1996 law, which appears in Section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).

First is anyone who has been subject to a forced abortion or forced sterilization, or anyone who has been harmed for resisting such coercive population controls. Many women (and presumably some men) are subject to forced sterilization or sterilization without their consent. A report from the Open Society Foundations documents how such practices are widespread, and often target women who are already marginalized: Racial and ethnic minorities, poor women, women with HIV, and women with mental or physical disabilities. In other words, women who society has deemed unworthy of having children. There are different ways that abortion or sterilization can be coerced--it could be done through misinformation, intimidation or as a condition for receiving health services or employment. Women might also be sterilized without their knowledge during childbirth or some other medical procedure. The mental, emotional, and physical harm caused by forced abortion or forced sterilization is severe, and under IIRAIRA would constitute past persecution for purposes of an asylum case.

Relevant evidence for such a claim would include a medical evaluation (physical and mental) by a doctor in the United States, medical records from the home country, medical reports and letters from family members or friends who have suffered similar harm, police documents, witness letters, expert letters, and country condition reports.

Of course, demonstrating past persecution does not necessarily guarantee a grant of asylum. However, if you show that you have been persecuted in the past, you would be eligible for asylum unless there is evidence that country conditions have changed such that it is now safe for you to return home. In the case of forced sterilization, which can presumably only happen once, you can still argue for humanitarian asylum, which allows for a grant of asylum even when there is no more danger in the home country, as long as the applicant can "demonstrate compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution." Given the severe harm caused by forced sterilization, victims of this practice would likely have a strong claim for humanitarian asylum. Similarly, others who have been subject to coercive population controls, but who no longer face danger in the home country, might qualify for humanitarian asylum.

For people persecuted on these basis in the past, and who might not qualify for humanitarian asylum (where the harm is not deemed severe enough), another option is available--other serious harm asylum. Under this provision, a person who has suffered persecution in the past (due to forced abortion or forced sterilization, for example) could qualify for asylum if she faces any other serious harm in the home country, even where that harm would not normally qualify a person for asylum (such as criminal behavior or a personal vendetta).

So as you can see, people who have been subject to a forced abortion or forced sterilization, or who have suffered other related harm, have several options when it comes to presenting an asylum claim.

People who have not been persecuted in the past, but who fear future harm in the form of forced sterilization or forced abortion, or for resisting such procedures, might be eligible for asylum as well. Proving that you face a possibility of persecution can be challenging, but you would present evidence of direct threats, similar harm to others like you, country condition information, and expert reports.

Another challenge with these types of cases is convincing Immigration Judges and Asylum Officers that Section 601(a) is not limited to asylum seekers from China. The law was clearly created to protect people (women and men) fleeing forced family planning in China, but the plain language of the statute does not mention China at all. The law also does not require government involvement. It is written in the passive voice ("a person who has been forced to abort a pregnancy or to undergo involuntary sterilization... shall be deemed to have been persecuted"), and so whether the persecutor is a government or non-government actor should not matter (though of course, where the persecutor is a non-government actor, the asylum seeker must show that the government is unable or unwilling to protect her, and that she cannot safely relocate within her country). Perhaps one way to overcome this challenge is to present country condition evidence or expert reports demonstrating the prevalence of forced abortion or forced sterilization in your country, and whether the practice is targeted at vulnerable women (minorities, poor women, etc,).

U.S. law specifically recognizes forced abortion, forced sterilization, and other coercive family planning measures as persecution. Given that these forms of harm are common throughout the world, lawyers should be screening our clients for this harm, and asylum seekers should be including this harm in their applications for protection.

Originally posted on the Asylumist: