CHANG
20 I. & N. Dec. 38 (1989)
Rule of Law:
Implementation of a foreign government's generally applied population control policy, even to the extent of involuntary sterilization, does not on its face constitute persecution for asylum purposes unless there is evidence it is a pretext for targeting individuals on account of race, religion, nationality, membership in a particular social group, or political opinion.
Facts:
- Respondent, a 33-year-old native and citizen of the People's Republic of China, initially stated in his asylum application that he was an anti-Communist who fled due to 'Communist domination' and had not been mistreated.
- Respondent and his wife had two children.
- Their commune ordered respondent and his wife to submit to sterilization operations after the birth of their second child.
- Respondent's wife was able to postpone her sterilization operation due to illness.
- Respondent testified that he fled China because he did not want to be forced to undergo a sterilization operation.
- China's 'one couple, one child' policy aims to control population size through economic incentives, sanctions, peer pressure, education, and availability of birth control, with local officials implementing the program.
- The Chinese Government consistently denies supporting the use of force to obtain compliance with birth quotas and states it takes action against local officials who violate this policy.
Procedural Posture:
- An immigration judge found the respondent deportable.
- The immigration judge denied the respondent's applications for asylum, withholding of deportation, and voluntary departure.
- The respondent appealed the immigration judge's denial of those applications to the Board of Immigration Appeals.
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Issue:
Does the implementation of China's one couple, one child policy, even to the extent of involuntary sterilization, constitute persecution or create a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion under the Immigration and Nationality Act?
Opinions:
Majority - Chairman Milhollan
No, the implementation of China's one couple, one child policy, even to the extent that involuntary sterilizations may occur, does not on its face constitute persecution or create a well-founded fear of persecution on account of one of the five reasons enumerated in the Immigration and Nationality Act. The Board determined that the policy's stated objective is population control, not a subterfuge for persecuting individuals based on race, religion, nationality, particular social group, or political opinion. The policy applies generally to the population, with some exceptions and more lenient application to minority groups, and the Chinese Government officially states it does not condone forced sterilizations. The Board clarified that an applicant claiming asylum must establish, based on additional facts beyond mere subjection to the policy, that the application of the policy was in fact persecutive or feared to be persecutive 'on account of' one of the protected grounds. Merely opposing the policy and being subjected to it does not demonstrate persecution for political opinion, nor does it create a 'particular social group' of persons opposed to the policy, unless there is evidence of disparate, more severe treatment for those who publicly oppose it. The Board also noted that while involuntary sterilization could be a human rights violation, that fact alone does not establish persecution 'on account of' a protected ground under the Act.
Analysis:
This decision established a significant precedent by clarifying the nexus requirement for asylum claims based on population control policies. It held that generally applicable policies, even if coercive or involving severe measures like forced sterilization, are not per se persecutive under the Immigration and Nationality Act unless they are a pretext for targeting individuals on protected grounds. This ruling placed a high burden on asylum seekers to demonstrate that the policy's application to them was specifically 'on account of' their race, religion, nationality, membership in a particular social group, or political opinion, rather than solely for population control. It limited the scope of asylum law in addressing broad human rights abuses, emphasizing that the BIA's role is to apply the specific statutory criteria for refugee status.
