Lin v. United States Department of Justice: The Circuits Split On the Issue of Whether Marital Status is Dispositive of Asylum Eligibility in the United States for Individuals Who Suffer Persecution under China\u27s Coercive Family Planning Practices

In Lin v. United States Department of Justice, the United States Court of Appeals for the Second Circuit remanded three consolidated appeals to the Board of lmmigration Appeals (BIA) for reconsideration. Petitioners Shi Liang Lin, Xian Zou, and Zhen Hua Dong applied for asylum based on persecution they and their unmarried girlfriends suffered under the coercive family planning practices employed by the People\u27s Republic of China. Retaining jurisdiction over the petitions after re-disposition by the BIA, the Second Circuit demanded that the BIA clarify two issues regarding its interpretation of United States\u27 immigration laws. First, the Second Circuit insisted on a precise explanation of the rationale behind interpreting the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) section 60l(a) to include the forced sterilization of one spouse on account of a ground protected under the Act as an act of persecution against the other spouse, resulting in the spouse\u27s per se asylum eligibility. Secondly, the court asked the BIA to clarify \u27\u27whether, when, and why boyfriends and fiancés may or may not similarly qualify as refugees pursuant to IIRIRA § 601(a). As of March 29, 2006, the BIA has not yet considered the appeals on remand. Although analyzed disparately by Immigration Judges (IJs), the BIA, and the United States Courts of Appeals, the question that lingers is whether refugee status, and the concomitant eligibility for asylum in the United States, should be extended to individuals who are persecuted pursuant to China\u27s coercive family planning practices because their unmarried partners are forced to undergo an unwanted abortion or sterilization procedure. As a result of China\u27s coercive family planning practices, couples who are denied access to a legally recognized marriage, and who fear a traditional marriage will alert Chinese authorities of their unlawful cohabitation, are faced with a dismal decision: either remain in China and suffer continued threat and persecution, or flee to the United States and encounter a judicial system whose interpretation of immigration laws will result in the denial of asylum based on a marital status that is the consequence of coercive family planning laws