New Jersey Naturalization
Lawyer

A person unable to return to the country of their birth because of persecution may possibly seek asylum in the United States. One situation where a person may petition for such protection under U.S. law is where the petitioner has been persecuted for resistance to a coercive population control program.

The recent United States Court of Appeals case of Xing Ming Huang v. Attorney General of U.S. provides an example.

An abortion forcibly required . . . and resistance

The petitioner arrived at the United States without inspection and was later served with a notice to appear, which alleged he was removable from the United States. The petitioner later conceded his removability on those grounds.

However, the petitioner requested asylum, alleging he had suffered past persecution for resisting China's strict family planning policies. In 1995, while living in China's Fujian Province, the petitioner's wife had given birth to a child who required corrective surgery and continuing medical care. After the birth, the Chinese government forcibly installed an intrauterine device in his wife. After the petitioner arranged for the device to be removed by a private physician, and his wife then became pregnant, his wife was required to undergo a forced abortion.

When the officials arrived to take away his wife for the procedure, the petitioner attempted to stop them and was severely beaten by the officers, sustaining injuries which required surgery. He was also charged criminally for fighting with a Chinese government official. Years later, both the petitioner and his wife fled China for the United States.

At the immigration hearing, the judge concluded that the petitioner had been persecuted, but at the same time found that the U.S. government had presented sufficient evidence to rebut the petitioner's presumption of a well-founded fear of persecution. Specifically, the government presented evidence that a new law supposedly went into effect permitting Chinese couples living in the Fujian Province to request permission to have a second child where that couple's first child was handicapped, and that there was no policy of sterilizing returning Chinese nationals who had a second child while abroad. The man petitioned the Court of Appeals for relief from this decision.

Alleged changed conditions in China were not enough

The Court of Appeals held that the petitioner's past persecution and beating were based on his resistance to China's family planning policy, meaning he had suffered persecution on account of his political beliefs. While changed country conditions were alleged by the U.S. government, such general evidence of improvement would not suffice to rebut the credible testimony of past persecution.

None of the evidence addressed the specific basis of the petitioner's well-founded fear: his prior resistance. Not a single piece of relevant evidence had been produced showing, specifically, that the petitioner would not be again persecuted for his prior resistance to China's family planning policy upon his return to China. Thus, the earlier decision against the petitioner which might have led to deportation was reversed.

Ensure all immigration requirements are met

The laws and regulations related to immigration can be very complex. Even a case that seem very clear-as in the petitioner's asylum request in this case-can run afoul of these requirements. If you need advice on deportation, asylum, visas or other immigration issues, seek an experienced immigration attorney who can ensure that you comply with all the formalities and requirements that are necessary for your immigration matter.