Forced Re-Insertion of IUD as Routine Part of China’s One
Child Policy Held by Board of Immigration Appeals not to Constitute
Persecution for Asylum
By Alan Lee, Esq.†‡
In a decision issued on October 6, 2008, Matter of M-F-W &
L-G, the Board of Immigration Appeals (BIA) upheld an Immigration
Judge’s decision denying a woman’s application for asylum
who was forced to have an intrauterine device (IUD) reinserted after
having a private doctor remove the device due to the discomfort
it had caused the woman. The BIA determined that although the woman
had resisted the Chinese Government’s family planning policy
by removing the IUD, the forced reinsertion of the device did not
fall within the definition of refugee in Section 601(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 because
it was not done to specifically punish the woman but rather as routine
part of the Government’s family planning policy.
The BIA found that Section 601(a) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 created four new and specific
categories of refugees who have been subjected to the Chinese Government’s
family planning policy:
1. persons who have been forced to abort a pregnancy
2. persons who have been forced to undergo involuntary sterilization
3. persons who have been persecuted for failure or refusal to undergo
such procedure or for other resistance to a coercive population
control program
4. persons who have a well founded fear that they will be forced
to undergo such a procedure or subject to persecution for such failure,
refusal, or resistance.
If a person can prove that she falls within the first two categories,
she will be determined to be a refugee. Since the insertion of an
IUD is temporary and does not cause sterilization, the BIA found
that the woman could not be deemed a refugee based on these definitions.
If a person claims she falls within the last two categories she
must prove that (1) she resisted the Chinese Government’s
family planning policy, (2) she has been persecuted or has a well-founded
fear of persecution, and (3) that the persecution was or would be
as a result of her resistance to the policy. The BIA concluded that
the removal of an IUD or a failure to attend mandatory gynecological
appointments may qualify as “other resistance” under
the third definition of refugee. However, she still must prove that
persecution results from the resistance. In this case, the BIA determined
that although the woman resisted China’s family planning policy,
the forced reinsertion of the IUD was not carried out to specifically
harm the woman but rather as a routine part of the family planning
policy. The BIA found that requiring a woman to use an IUD, although
intrusive, does not generally rise to the level of harm necessary
to establish persecution under the definition of refugee in the
statute. The BIA explained that the difference between harm and
persecution is one of degree and, unless the harm involves aggravating
circumstances, it will not be considered persecution. In this case,
the BIA examined the particular facts that the alien had an IUD
inserted after the birth of her son in 1991; experienced discomfort
including back pain and an irregular menstrual cycle and after being
refused permission to have the device removed, hired a private doctor
to remove it at 1992. She did not attend several required gynecological
checkups, and in 1993, officials came to her house and took her
for a gynecological examination. They discovered that the IUD was
missing and detained her for three days because she refused to have
another IUD inserted. After concluding that there was "other
resistance", the BIA stated that her pain did not rise to the
level of persecution, and she had not reasonably established that
the second IUD insertion was on account of her "other resistance."
In considering the detention for three days, the BIA conceded that
three days of detention was not insignificant and that the alien
had testified that she was harassed during that time, but noted
that she was not beaten or injured, and the collective harm she
experienced even considering that the detention was by the government,
did not rise to the level of persecution. The BIA contrasted this
case with a Seventh Circuit Court of Appeals decision in 2005 in
which the alien was repeatedly required to submit to an involuntary
insertion of IUDs where the first insertion resulted in infection,
bleeding, headaches, and fatigue before the alien had the IUD removed
by a private doctor; IUDs were then inserted on two more occasions
and the alien had them removed; she fled to the U.S. after the third
IUD was removed; and she also provided evidence that she and her
husband were identified as "Birth planning targets" by
local family-planning officials.
In the BIA’s view, it would thus appear that for persons
attempting to obtain political asylum on the basis of forcible insertion
of IUDs, they will have to show physical harm in the insertion or
reinsertion of the IUDs, and that the harm was the result of resistance
to the birth control policy. This BIA decision by and large does
away with a possible argument of a well-founded fear of forced IUD
insertion or re-insertion upon return to China.
The BIA also reasserted that evidence of non-excessive fines for
resisting the Chinese Government’s family planning policy
by removing an IUD, missing gynecological exams, or having another
child, are not sufficient in harm to constitute persecution.
It should be noted that the BIA was on the defensive in making
this decision as the Second Circuit Court of Appeals had pointed
out its inconsistent policy in denying asylum cases based upon forced
IUD insertion or reinsertion on the basis that such acts did not
constitute persecution while at the same time denying asylum claims
of applicants for being persecutors in that they took part in inserting
or re-inserting IUDs as part of China's family-planning policy.
Those latter individuals who were denied on this ground alone may
now wish to have their cases reexamined by motions to reopen.
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