A seventh federal appeals court has ruled that men married to women victimized by China’s forced abortion policies are not automatically eligible for asylum. 

On October 3, a unanimous panel of the U.S. Court of Appeals for the First Circuit rejected Xian Tong Dong’s petition for review of a Board of Immigration Appeals ruling. Dong, a Chinese national, wanted to stay in the United States, where he fled after his wife was forced to have a abortion.

The law in question, covering victims of China’s coercive abortion policies, states that a “refugee” includes someone “who has been forced to abort a pregnancy or to undergo involuntary sterilization.”

On various grounds, the Second, Third, Fourth, Seventh, Ninth and Eleventh circuits have, since 2007, held that the law doesn’t automatically extend to the victims’ spouses.

A 2008 opinion by former U.S. Attorney General Alberto Gonzales held that the ordinary meaning of the statutory terms and “settled principles of asylum law, does not support the per se rule of spousal eligibility.”

Until the statute is changed to define the husband of a woman forced to undergo sterilization or an abortion as a refugee, husbands who seek asylum because of China’s one-child policies will have to demonstrate that they have a well-founded fear of persecution, said Susan Cohen, a partner at Boston’s Mintz, Levin, Cohn, Ferris, Glovsky and Popeo who wasn’t involved in the case.

Dong fled to the United States in March of 2006 following his wife’s forced abortion in 2005. He applied for asylum in October 2006. His plan was to send for his wife and son after getting permission to remain in the United States.

Dong claimed that he also lost that child and “thus, has been forced to abort a pregnancy,” according to the First Circuit opinion.

An immigration judge heard the case in December 2009. The judge held that the spouse of a person who has been physically subjected to a forced abortion is not entitled to refugee status per se.

Senior Judge Bruce Selya wrote the opinion in Dong v. Holder, joined by Senior Judge Kermit Lipez and Judge O. Rogeriee Thompson.

Selya wrote that the Second and Third circuits have embraced the idea that “the statutory language appears unambiguously to refer only to the person who actually undergoes the procedure, not to the spouse of that person.”

The Fourth and the Eleventh circuits, he continued, “have agreed with the plain-language interpretation, but in an abundance of caution have gone on to discuss the Attorney General’s interpretation.”

Selya also wrote that those Fourth and Eleventh circuit rulings, plus two others from the Seventh and Ninth, have “concluded that the Attorney General’s interpretation of [the relevant] section [of the law] is both reasonable and worthy of deference.”

“We too hold that the plain language of the statute defeats the petitioner’s claim. But even if we assume—favorably to the petitioner—that the statutory text, read charitably, might admit of some conceivable ambiguity, the Attorney General’s interpretation would demand the same result,” Selya wrote.

Selya noted that that the attorney general’s opinion did not categorically exclude spouses. “But a spouse must show some special circumstance—that is, something more than his relationship to the recipient of a forced abortion—in order to avail himself of this caveat,” he wrote.

Selya wrote, “We agree with the other courts of appeals that have mulled the question: given the language of the relevant statute and the Attorney General’s reasonable interpretation of it, we hold that the agency did not err in refusing to grant the petitioner per se refugee status on the basis that the Chinese government had compelled his wife to undergo a forced abortion.”

The ruling also upheld the immigration board’s denial of asylum based on Dong’s separate fear of religious persecution due to his conversion to Evangelical Christianity. “His evidence in this respect consists primarily of information about some generalized trends in China, gleaned from a variety of reports published by the State Department and the United States Commission on International Freedom,” Selya wrote.

Nathan Weill, a New York lawyer who represented Dong, declined to comment.

The Justice Department did not respond to requests for comment.

Cohen of Mintz Levin said that, as a practical matter, the husband in such situations usually escapes to the United States because the wife is caring for a child in China. “It’s very, very difficult to manage with a young child to escape China. The husband is much more able to do what it takes to get into the country.”

Sheri Qualters can be contacted at squalters@alm.com.