Monday, March 02, 2009

Lin-Zheng: Stopping Presumed Persecution For Spouse or Partner of Coercive Family Planning Policies

Lin-Zheng v. Holder
No. 07-2135
En Banc
February 19, 2009

Judges Scirica, Sloviter, McKee, Rendell, Barry, Ambro, Fuentes, Smith Fisher, Chagares, Jordan, Hardiman, Weis, and Garth. Opinion by Judge McKee. David X. Feng of Feng & Associates of New York, NY for Mr. Lin-Zheng. Thomas H. Dupree, Jr. (DOJ), Paul Fiorino, Sada Manickam, and Song E. Park (OIL) for the government. Nancy Winkelman of Schnader Harrison Segal & Lewis of Philadelphia for amicus curiae.

The Third Circuit had held that the BIA's view in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) (en banc) was appropriate that a husband may qualify for asylum based on his wife's well-founded fear of persecution under a coercive population control policy. Here, the Third Circuit changes its mind and agrees with the Second Circuit's decision in Lin v. DOJ, 494 F.3d 296 (2d Cir. 2007) that there should not be automatic refugee status to spouses or unmarried partners of people forcibly subjected to coercive family planning measures.

The Third Circuit focused on the common meaning given to the word "person" when it is used in section 601(a) of IRRIRA. The BIA held that the failure to mention spouses did not preclude extending protection to spouses. The Third Circuit disagrees, believing that including spouses would violate the clear meaning of IRRIRA. The Third Circuit did not discuss international law principles regarding refugee status, which was likely the purpose of IRRIRA's definition of refugee protections. We'll have to see whether the Third Circuit revisits this to consider international law definitions and principles.

In the meantime, someone can still succeed through derivative asylum or by showing actual persecution for resisting a coercive family planning policy or a well-founded fear of future persection for doing so. So it is still possible to succeed with a few additional steps.


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