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In 1996, Congress created a presumption in favor of granting asylum to foreigners forced to undergo an abortion or sterilization or who had reason to fear such treatment if they returned to their native country. Court decisions have extended the benefit of the presumption, codified at 8 U.S.C. 1101(a)(42), to the spouses of those facing such treatment. But what about unmarried couples? It’s clear that the direct victim (in many cases, a woman subject to China’s coercive birth-control laws) has a claim for asylum even if she is unmarried. But what about her unmarried partner? In a pair of decisions handed down this year, the 9th U.S. Circuit Court of Appeals and the 3d Circuit have taken divergent approaches to the issue. Marriage bans In March, the 9th Circuit dealt with the case of Kui Rong Ma, who fled China in the hope that he could establish a toehold in the U.S. and then send for his partner, Lei Chiu Ma (referred to as “Chiu” in the court’s opinion). Ma v. Ashcroft, 361 F.3d 553. Ma and Chiu met when he was 19, three years short of the mandatory age for marriage. The couple went ahead anyway with a traditional ceremony (not recognized by the state) and Chiu became pregnant. Local officials learned of her pregnancy and lured her out of hiding by beating Ma and arresting his father. She was forced to undergo an abortion in the third trimester and became physically and mentally ill, according to the court’s opinion. In ruling that Ma, who had been held in U.S. detention for several years, should not be denied asylum merely because he was not legally married, the 9th Circuit emphasized that China refused to allow early marriages for the same reason it engaged in coercive birth control-to limit the number of children. Denying asylum to Ma, “an individual who cannot register his marriage with the Chinese government on account of a law promulgated as part of its coercive population control policy, a policy deemed by Congress to be oppressive and persecutory, contravenes the statute and leads to absurd and wholly unacceptable results,” the court declared. In an Aug. 20 opinion, Chen v. Ashcroft, No. 03-3124, the 3d Circuit denied asylum to Cai Luan Chen even though he raised the same argument found so persuasive by the 9th Circuit. Chen’s story was much like Ma’s, with some minor differences that played no explicit part in the court’s decision. (For instance, Chen’s fiancee became pregnant before the couple sought a marriage license and it appears they did not go through an unofficial ceremony.) The court ruled that it owed deference to the Board of Immigration Appeals’ interpretation of the statute as denying relief to unmarried partners not directly victimized. The court said, “While limiting [the presumption] to married persons may produce undesirable results in some cases, the BIA’s interpretation, which contributes to efficient administration and avoids difficult and problematic factual inquiries, is reasonable.” In addition, it said that there was no legislative history favoring the 9th Circuit’s interpretation. Remarkably, the 3d Circuit seemed to deny the existence of a circuit split, arguing that the 9th Circuit’s reasoning was dicta because it should have reached its result by a different route. Even so, the 3d Circuit acknowledged a “tension.” Young’s e-mail address is [email protected].

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