Chen: Husband of Wife Fearing China One-Child Policy Can Get Asylum

In Chen v. Gonzales, No. 05-4011 (3d Cir. June 20, 2007), the Third Circuit ruled on an issue that is frequently litigated -- whether a man can seek asylum based on how his wife fears persecution if she returns to China due to China's one-child policy. The BIA in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) concluded that a man can seek asylum based on the forced sterlization of his wife. In this appeal, the Third Circuit concluded it was acceptable for the BIA to reach that conclusion. (If the BIA makes a ruling that contradicts Congress's intent or is not a reasonable interpretation of the statute, then the Third Circuit must overturn the BIA's conclusions, even though the BIA is given a great deal of deference in this area.)

There are two interesting points: Judge McKee wrote a lengthy dissent in which he disputed whether the BIA's conclusion was legitimate. The government on appeal was not even questioning this point, but the Third Circuit analyzed this because that was part of its responsibility to decide the case.

The final ruling in the case was that if someone seeks asylum, he only needs to show a fear of persecution if he returns to China. The BIA must analyze facts to decide whether he has a fear. The BIA cannot merely point to facts that indicate it is not 100% certain whether he would be persecuted to conclude he does not have a reasonable fear. After all, a one in ten chance of persecution can justify a well-founded fear.

Therefore, the Third Circuit overturned the BIA's decision and remanded the case for the BIA to conduct the proper analysis. Immigration Judge Henry Dogin had granted asylum and the government is questioning that decision in its appeal.

Warning: see Lin-Zheng v. Holder (3d Cir. Feb. 19, 2009)