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Legislation passed by Congress in 1996 gives special consideration to victims of China's coercive population control program. The law allows for 1,000 Chinese per year to receive asylum on grounds that they were forced to abort a pregnancy or undergo involuntary sterilization, or feared punishment for resisting the program.
Nationwide in the last federal fiscal year, 4,153 Chinese immigrants applied for asylum, more than half citing persecution under China's birth policies, says INS spokesman Bill Strassberger. The INS granted asylum to 943 and denied 379. Denials automatically get referred to immigration courts, as do all cases in which there is no definitive ruling.
In 1999 U.S. immigration courts heard the asylum cases of 6,663 Chinese immigrants. Of those, 29 percent received asylum and 37 percent were denied. The other cases were withdrawn or abandoned by the applicants. Houston's immigration court has handled some 75 asylum cases from Chinese since 1997. It approved 24 percent of the cases and denied 23 percent, with other cases pending.
Asylum cases are tricky because, unlike criminal proceedings, the burden of proof is squarely on the applicants. They must prove that they were persecuted by their government or that they face imminent persecution if they return to their homeland.
Russ Bergeron, another INS spokesman, says many Chinese asylum-seekers, particularly those who are apprehended while being illegally smuggled into the United States, make specious claims. He says they know that alleging persecution under birth policies is often an effective way to obtain legal status here.
"We've learned that most of the Chinese who are smuggled into the United States are briefed and prepped prior to their arrival. They receive instructions on precisely how to claim asylum for that purpose. Sometimes it's a bit ludicrous." He says some unmarried males claim they will be persecuted in the event that someday they try to have a family of more than one child.
"It becomes somewhat of a challenge to differentiate the bona fide claims from those individuals who simply use it as an attempt to dupe the system...," Bergeron says.
Lijun's case is hardly typical. The '96 asylum law generally applies to people persecuted for having more than one child. An unmarried woman with only one child might have a stronger claim if she argues that she belongs to a harassed social group -- single mothers, Bergeron says.
She no longer has a "well-founded fear" that she'll be forced to abort the child, he says. "The question now becomes, 'Does an unwed mother in China suffer persecution?' That really would have to be the basis of her claim."
Applications based on well-founded fear of persecution are harder to prove than those from people who already suffered persecution, says Brian Bates, Lijun's Houston attorney. In cases involving China's population control program, immigration officers are aware of the inconsistent manner in which China's policies get enforced from region to region, so they have leeway to assess the seriousness of the menace to a particular individual, he says.
The Chinese government flatly denies that it punishes unmarried mothers. Xu Ying, the spokesperson for the Chinese consulate in Houston, says the only penalty is intense public scorn. The threat of being ostracized is sufficient to ensure that few women have babies out of wedlock.
"The mother, if her case is [known by] the public, will be morally condemned by the fellow citizens; deemed to be selfish and irresponsible," he says. "There's no legal dimension.... Nine times out of ten the lady would marry the man or marry another man."
Rice professor Lewis says China's statutes may not address single mothers. However, those women are effectively put on the wrong side of the law because the government requires parents to obtain permission before having a child, and it grants that authorization only to married couples.
Xu maintains that out-of-wedlock children are full Chinese citizens who can "in time" get the household registration entitling them to services. "China is a special society which is, shall I say, a very benevolent society, a mild and peaceful society," he says. "As soon as a child was born into this world, he or she will be accepted by the community."
If Lijun had to return to China, her child, as a U.S. citizen, would not qualify for most basic services, such as free schooling and health care. Xu says if a parent attempted to get Chinese citizenship for their foreign-born child, the government "would consider it."
Lijun hopes she will never face such challenges. She is buoyed by her lawyer's confidence. But some attorneys warn against too much optimism, saying that asylum rulings are crapshoots that hinge as much on the mood of the immigration officer as on questions of law.
"Asylum is luck," says Niey-Bor Hsyung, a Taiwanese-born attorney in Houston. "If [the immigration officer] is happy, you're lucky. You'll pass for whatever reason. If they're unhappy, you're out of luck. Even if you have a good case, you'll fail. Believe me."
If asylum is rejected, Lijun still could win a withholding-of-deportation ruling that would enable her to remain in the United States on a year-to-year basis and work. It may take years for a final outcome. Asylum cases can drag on indefinitely through appeals and red tape. Lijun is convinced that she faces a grim reality if she is forced to go back to China.