When Chinese dissident Chen Guangcheng escaped house arrest and fled to the U.S. Embassy in Beijing on April 22, it touched off an international crisis. A high-level visit to China by Secretary of State Hillary Clinton and Treasury Secretary Tim Geithner was upstaged by the incident, which remains unresolved.
In some ways, when a prominent political activist seeks shelter at a foreign embassy, it seems like a classic case of political asylum. Technically, though, an embassy cannot offer asylum to someone in his or her home country. Asylum is only for refugees, and a refuge–by definition–is “any person who is outside any country of such person’s nationality [and who has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 101(a)(42) (emphasis added).
Since Mr. Chen never left China, he was ineligible for refugee status and could not have been granted asylum by the U.S. Embassy. This does not mean that our government was powerless to help him after he arrived at the embassy. United States embassies (indeed, all embassies) can offer protection to people on embassy grounds, as the host country is not permitted to violate embassy property.
A well-known example of our government offering protection under similar circumstances was when another Chinese dissident, Fang Lizhi, fled to the U.S. Embassy after the massacre in Tienanmen Square. Dr. Fang remained in the embassy for over a year, until the Chinese government finally agreed to allow him to leave the country.
I suppose in Mr. Chen’s case, the Embassy might have smuggled him out without getting permission from China, but that would have had serious implications for U.S.-China relations and for Mr. Chen, whose family had been threatened by the Chinese government on account of his actions. Also, it seems, Mr. Chen had not yet made up his mind to leave the country.
As of today, the Chinese government has apparently agreed to allow Mr. Chen to travel to the U.S. to attend New York University, which has offered him a visiting scholar position (I wrote about this idea in an article called Private Asylum for Refugee Academics). If he really is permitted to leave, Mr. Chen can claim asylum once he reaches the United States. He obviously has a strong case for receiving protection. But until he actually departs from China, Mr. Chen’s situation remains precarious.
Originally posted on the Asylumist: www.Asylumist.com.
Jason Dzubow's practice focuses on immigration law, asylum, and appellate litigation. Mr. Dzubow is admitted to practice law in the federal and state courts of Washington, DC and Maryland, the United States Courts of Appeals for the Third, Fourth, Eleventh, and DC Circuits, all Immigration Courts in the United States, and the Board of Immigration Appeals. He is a member of the American Immigration Lawyers Association (AILA) and the Capital Area Immigrant Rights (CAIR) Coalition. In June 2009, CAIR Coalition honored Mr. Dzubow for his Outstanding Commitment to Defending the Rights and Dignity of Detained Immigrants.