Asylum ruling leaves out Chinese spouses

The husbands of women forced to abort a pregnancy or undergo involuntary sterilization, or else face persecution under China's coercive population control program, do not automatically qualify for asylum, a federal appeals court ruled Monday.

The ruling by the 2nd U.S. Circuit Court of Appeals found that U.S. law does not automatically grant asylum to spouses or partners in cases in which the women have been persecuted under China's family-planning policy, which limits most urban couples to one child and families in some rural areas to two.

The ruling conflicts with a dozen other federal appeals courts, as well as the findings of the the Board of Immigration Appeals and 10 years of decisions in immigration cases, said Judge Guido Calabresi, who partially dissented. The ruling was unusual because all 12 judges joined the opinion.

The court said that the board, which decides whether to accept immigration judges' conclusions, had been too permissive and that spouses do not necessarily qualify for asylum.

The majority opinion, written by Judge Barrington Parker, said spouses would have to prove their own resistance to a coercive population-control program or demonstrate a well-founded fear that he or she will be subjected to persecution for resisting the policy.

However, the judges said the ruling should not result in the reopening of cases in which Chinese refugees have been granted asylum. The opinion also noted that Congress can rewrite the law if it finds the court's interpretation inconsistent with its intentions.

The court was ruling on three separate asylum cases, none involving spouses. Two of the cases involved boyfriends of women awarded asylum, and the other involved a fiance.

China's family planning policy was implemented in the late 1970s to control population growth and conserve natural resources. Human rights activists claim it has led to forced abortions, sterilizations and a dangerously imbalanced sex ratio because of a traditional preference for male heirs, which has prompted countless families to abort female fetuses.