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Jason Dzubow on Political Asylum

Second Circuit Denies Chinese Asylum Cases En Masse

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The United States Court of Appeals for the Second Circuit recently issued a summary order denying petitions for review in 24 separate cases involving Chinese asylum seekers.  The Court held:

Each of these petitioners, all Chinese citizens, challenges a decision of the BIA denying their applications for relief based on the birth of one or more children in the United States. For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA's decision denying each application.

The Court's Internal Operating Procedures allow for such orders, and this is not the first time the Court has denied cases like this en masse.  But are these mass denials fair to the petitioners and proper under the law?

First, some background.  In response to the "one family, one child" population control measures in China, Congress passed a law modifying the definition of "refugee" to include anyone subject to forced sterilization or forced abortion, as well as people who resist coercive population control measures.  This (predictably) led to hundreds of claims by Chinese nationals who had not been subject to past persecution or credible threats of future persecution.  Rather, these asylum seekers argued that because they had more than one child--which is not allowed under Chinese law--they would be subject to forced sterilization if returned to China, and should thus be granted asylum. 

Sometimes one is enough.

Because laws are enforced differently throughout China, the BIA found that cases involving Chinese nationals with more than one child must be examined on a case-by-case basis to determine whether each alien has a well founded fear of persecution.  Thus, the BIA has restricted a provision that was arguably meant to be expansive.  In Jian Hui Shao, the Second Circuit accepted the case-by-case analysis endorsed by the BIA, and held that it would not disturb the BIA's ruling unless it concluded that "no reasonable fact-finder could have failed to find in favor of petitioner."

Turning to the summary order disposing of the 24 Chinese asylum cases, all of those cases involve Chinese nationals who fear persecution because they have more than one child.  Apparently, some of the asylum seekers were originally granted asylum, but those decisions were reversed by the BIA.  Other asylum seekers were denied by the Immigration Judge and the BIA.  The asylum seekers are represented by different attorneys and have all filed their own briefs.  Aside from the fact that they share similar legal issues, the cases are unrelated.  But the Court denied them en masse.

Whether intentional or not, the cursory review and mass denials send a message that the Second Circuit will not entertain Chinese forced-sterilization cases.  This seems inconsistent with our system of justice and unfair to the litigants, who deserve to know (1) that the Court actually considered their individual claim, and (2) the reason for the Court's decision.  It is also unfair to the attorneys (the private attorneys and the Department of Justice attorneys) who have spent many hours briefing their cases.  I doubt a federal appeals court would issue mass denials in cases involving civil or criminal appeals.  Immigration cases should be treated with the same respect.  It is understandable that the Court would be frustrated with the large number of cases coming from the Board of Immigration Appeals.  However, all litigants deserve to have their cases heard and considered.  Perhaps the Second Circuit has carefully reviewed each litigant's claim, but the summary orders and mass denials send a message that the Court simply does not care about these cases.

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