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Feng Chai Yang said she kicked and screamed as Chinese government officials and doctors implanted an intrauterine device in her body on two occasions. Doctors also gave her what she believed was an experimental injection intended to sterilize her. Yang was dragged from her home to a hospital for the procedures required under China’s one-child policy. The question of whether Yang’s experience makes her eligible for political asylum in the United States was before the 11th U.S. Circuit Court of Appeals last week. But, like two other federal circuits, the court declined to answer the politically volatile question involving two superpowers. All three courts deferred to the U.S. Board of Immigration Appeals, the administrative court that reviews the decisions of immigration judges. Yang was found living in New York, but had her case moved to Miami. Chinese women face fines for having more than one child and jail for removing IUDs under population-control policies that have been criticized by human rights groups around the world. It is notoriously difficult to win U.S. asylum, but Yang’s lawyer could have done it if he had proven Yang feared sterilization if she returned to China. Instead, Marco Pignone III, a solo practitioner in Philadelphia, is stuck with clearing up the nebulous question of whether a woman’s resistance against birth-control implants qualifies her for protection under an ill-defined section of the Immigration and Nationality Act. “It’s obvious that she’s being targeted,” said Pignone, who has handled many Chinese immigration cases during his four years of practice. What he really wants is an opportunity to provide more proof that experimental injection sterilizations are being done in China. If that’s the case, he believes he can prove that she has the required fear of sterilization. “In fact, these are done and have been attempted in China,” Pignone said. Although he had never heard of sterilization by injection before, he said it is likely the Chinese government is looking for a cheaper and faster method of foolproof population control. Unfortunately for Yang, the pivotal question of the U.S. response to Chinese policy is being bounced from immigration judges to the appeals board to the circuit courts and back. “Certain areas of China apply the policy very harshly,” Pignone said. “It’s apparent that she’s from one of those places.” Pignone fears the case could be sent by the Board of Immigration Appeals back to the original immigration judge. If that happens, a decision could be far off. “It’s a long way back to the circuit courts,” he said. BIRTH-CONTROL MEASURES Yang, now 36, was notified that she would be deported soon after having her third child in New York in 1998; it was her first child born in the United States. Yang challenged her deportation, claiming the Chinese government forcibly gave her a sterilization injection and two IUDs and that she qualified for asylum under the U.S. Immigration and Nationality Act and the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. But Immigration Judge Nancy R. McCormack in Miami denied the asylum request argued by Miami solo practitioner Hedayat Tahbaz, and the Board of Immigration Appeals affirmed the denial. Yang’s first child was born in China in 1991 shortly before her 21st birthday. After the delivery, Yang says, the Chinese government forced her to get an IUD. A private doctor removed it because she said it caused discomfort and interfered with her menstrual cycle. She became pregnant again in 1992. This time, she fled her home in Fujian province on China’s rapidly developing southeast coast to hide her pregnancy from government officials. She said her family was harassed when she didn’t show up for government mandated check-ups. That same year, her husband fled to New York. Yang gave birth to her second child and was later fined for violating the one-child policy. Yang says that she and other women were forced to undergo what was called an “experimental medical sterilization” in 1996. She claims a group of police and government officials dragged her from home and took her to a hospital, where she was forced onto a hospital bed while she screamed for them to let her go. Yang says she was about to undergo the procedure when she informed the staff that she was allergic to anesthesia. She says a doctor told her she would undergo an “injection sterilization” instead. A three-judge panel of the 11th Circuit determined the injection was most likely a hormone injection, intended to temporarily keep her from having children, and not a permanent sterilization. The panel noted that Yang provided an official document that reported she underwent a sterilization procedure, but the court said the document had not been verified and the court could not “depend on its veracity.” A year later, Yang claims, she was again taken from her home for a second “injection sterilization” because other women who got the shots were still getting pregnant. When she again notified doctors of her allergy to anesthesia, Yang says, the doctor tested a small amount of anesthesia on her. Yang said she broke out in burning bumps all over her body. A month later, she says, she was required to have another IUD inserted. Yang was smuggled out of China in 1998 and into the United States via Canada. She went to New York to join her husband. Before having her third child, Yang says, a gynecologist removed her second IUD and diagnosed an ovarian cyst. In 1996, Congress expanded the definition of a refugee eligible for asylum under the Immigration and Nationality Act. The new language recognized as a refugee “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control.” Although the “injection sterilization” failed, Yang’s lawyer maintains she still has a fear of being sterilized if she is deported. DETERMINING ASYLUM Under the 1996 law, refugees can be granted asylum if they can prove “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.” Pignone said the 11th Circuit determined that the birth of the third child proved she had not been sterilized and concluded she had no proven fear of future sterilization. But the court left open the possibility of Yang staying put. “Although we did not find substantial evidence in the record that would compel us to conclude that Yang was forcibly sterilized, we do believe, and the IJ did not find to the contrary, that Yang was credible in her claim that she was forced to undergo an atrocious injection procedure to which she fought back by kicking and screaming,” Judge Phyllis A. Kravitch wrote for the panel. “This claim could constitute ‘other resistance to a coercive population control program.’ “ Judges J.L. Edmondson and Gerald Bard Tjoflat concurred. LACK OF PRECEDENT The panel said there was little case law to guide them on the resistance claim and found little documentation to help decipher legislative intent. The court noted that only the 9th Circuit has granted asylum for a woman under the “other resistance” clause. In Li v. Ashcroft, a woman claimed her reproductive organs were probed and she was threatened with forced abortion if she ever became pregnant. The court looked at decisions by the 3rd and 7th circuits for help in deciding qualifications for asylum. In the 2004 Fang v. Ashcroft case, the 3rd Circuit concluded other courts have not specifically addressed whether a woman who unwillingly acquiesced to an IUD “has been persecuted” under the resistance clause. Like the 11th panel, the circuit remanded the case to the Board of Immigration Appeals. More importantly, the 7th Circuit later noted that the illegal removal of an IUD could be considered resistance, but again the court remanded the question to the Board of Immigration Appeals. Citing those inconclusive results, the 11th Circuit said it also would send back Yang’s case back for a determination of the same questions left unanswered by its sister courts. In reviewing the case, the 11th Circuit panel first said it had to determine whether immigration courts had unfairly ruled against Yang and whether her resistance made her eligible for asylum. Answering the first question was difficult since the BIA did not issue an opinion in Yang’s case. The 11th Circuit said it could not overturn the immigration judge’s finding on Yang’s credibility “unless a reasonable fact finder would be compelled to conclude to the contrary.” To further complicate things, the immigration judge did not determine whether or not Yang was telling the truth, the 11th Circuit said. ‘RIDICULOUS FABRICATION’ The immigration judge has the power to grant asylum based on testimony alone, but the panel noted that the weaker the testimony, the more corroborating evidence is needed. The judge called Yang’s story a “ridiculous fabrication” that was “extremely inconsistent and [made] no sense whatsoever,” but the appellate panel felt that was not an “explicit finding” on Yang’s credibility. The court noted that the immigration judge focused on the lack of evidence to support Yang’s claims and not on her credibility. The panel found Yang’s credibility was not a crucial factor in her appeal. Next, the panel looked at whether Yang provided enough evidence to show she was eligible for asylum. The court said it must affirm the judge’s decision if there was substantial evidence to support it. To reverse the decision, the court noted, the facts must clearly show Yang deserves protection as a refugee. The 11th Circuit found that Yang was not persecuted and did not have a fear of persecution because of her political opinion opposing China’s birth control policy. The court found that Yang “failed to establish that the officials’ alleged attempts to sterilize her made her eligible for asylum.” The panel also affirmed the determination that Yang had not proven she was allergic to anesthesia or that she successfully prevented a sterilization procedure. The panel noted she had claimed she was allergic to all anesthetics, including over-the-counter pain relievers. But the panel said her American medical records show she received Tylenol, disproving the allergy claim. On the persecution issue, Yang’s claim that she was fined for having her second baby was not enough because the court said the record shows she paid the fine without contesting it. Furthermore, the court held that “a single fine is not akin to a sterilization procedure or forced abortion.” Pignone expects the important issues at play will likely be answered by the circuit courts rather than Congress or the U.S. Supreme Court. Pignone expects the circuits probably will be split for some time before a consensus is reached. And what if the BIA rules women like Yang should be given asylum? “Obviously, a holding that qualifies her for asylum would increase the number of individuals who are eligible, which is not necessarily a bad thing,” Pignone said. “I suppose the [11th Circuit] court’s gut reaction is that they tend not to want a larger number of individuals to be eligible.” William Saunders, general counsel for the conservative Family Research Counsel, said it is clear to him that women like Yang fit the 1996 definition of refugees. “We fully support the women trying to flee such policies, and they deserve a chance to come to the U.S. as refugees,” said Saunders, who opposes IUDs because of what he claims are the abortive effects of the devices. “The West has not paid enough attention.”

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