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Board Of Immigration Appeals Makes Unfavorable Rulings In Long Awaited One Child Policy Cases

by Alan Lee, Esq.

Following 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.

2007 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 25+ 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.

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