Saturday, March 29, 2008

Wu (not precedential): Dissenter Questions BIA's Refusal To Extend Protection To Ex-Spouse of Sterlized Chinese Woman

Wu v. Mukasey, Nos. 05-4271, 06-3892 (3d Cir. Mar. 25, 2008) (not precedential).

What's very interesting about this case is how Judge Stapleton wrote a short dissent about one issue -- whether the BIA can refuse to extend protection to ex-spouses of women forcibly sterilized under Chinese birth control policies. In Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), the BIA took a position that the spouse of a women forced to undergo abortion or sterilization can establish part persecution, but that the ex-spouse of those woman may not.

The two-judge majority said that rule was ok and the one to apply. In the dissent, Judge Stapleton reasoned that the BIA should be required to offer more reasoning for not extending protection to people who were spouses at the time of sterilization but now are ex-spouses. Judge Stapleton believed the better approach would be to require the BIA to offer its rationale, especially where it has said that forced sterilization of a wife is an act of persecution against the husband because it naturally and predictably has a profound impact on both of them.

This seems like an unresolved issue that may come up again and require a precedential decision by the Third Circuit.


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