News Update - June 8, 2007Board Of Immigration Appeals Makes Unfavorable Rulings In Long Awaited One Child Policy CasesFollowing remand of a number of cases from the Second Circuit Court
of Appeals involving two children born in Fujian, China, and two
children born in the U.S. to individuals seeking political asylum
on the basis of the population control policy of China, the Board
of Immigration Appeals on June 7, 2007, dismissed the applicants'
appeals in Matter of J-H-S-, 24 I&N Dec. 196 (BIA 2007), and
Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007). In J-H-S-, a case
involving children born in Fujian, the BIA set out very stiff criteria
for asylum eligibility - that an applicant had to show 1.) there
is a specific policy applicable to the applicant's case, 2.) the
applicant violated the policy, and 3.) violation of the policy would
be punished in the local area in a way that gives rise to an objective
fear of future persecution. The BIA cited Department of State reports
in finding that the record did not clearly show that the birth of
the applicant's second child would be viewed as a violation of family
planning policies in Fujian province, and even if the second child's
birth would be viewed as unauthorized, the record did not contain
persuasive evidence that the birth would trigger enforcement activity
in Fujian province. In J-W-S-, a case involving children born in
this country, the BIA stated that the evidence of record did not
demonstrate that the Chinese government had a national policy in
requiring forced sterilization of a parent who returned with a second
child born outside of China and that the evidence suggested that
if a parent was penalized at all upon return, the sanctions would
be fines or economic penalty. The BIA also held that although some
sanctions might be imposed pursuant to the local family planning
policies in China for the birth of a second child abroad, the applicant
had failed to provide evidence that such sanctions in Fujian province
or Changle City would rise to the level of persecution. The rulings
are a disappointment to many asylum applicants who had hoped that
the BIA would come up with better results in light of the recent
criticism of its rulings by the Court of Appeals. † The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2007 Alan Lee, Esq.
|
Copyright © 2003-2012 Alan Lee,
Esq. |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |