Immigration: No Refuge

In 1988 I helped a pregnant Chinese woman, Chi An, win political asylum in the United States on the then-novel grounds that she was fleeing a forced abortion: The Immigration and Naturalization Service bitterly opposed her application from the beginning. Those who resisted China's one-child policy, INS attorneys argued, were merely social malcontents, not true political dissidents. Besides, they said, granting asylum to Chi An would "open up the floodgates" to a torrent of illegal Chinese immigrants.

I regarded the INS position as naive and troubling. In China dissent from any government policy—be it the prohibition on underground publications or the ban on second children—is an act of political rebellion. As far as "opening up the floodgates" was concerned, how could Chinese in any numbers escape from that closed society, much less cross the vast Pacific to our shores? To me, the INS arguments sounded like an attempt to exploit old, irrational fears of a "yellow peril."

Chi An's victory on August 5, 1988, established a precedent: Those Chinese arriving on our shores who could demonstrate a well-founded fear of persecution in connection with the one-child policy would henceforth be granted asylum. Still, contrary to the dire prophecies of the INS, only a few dozen Chinese filed claims for sanctuary on that basis during the next few years. Many, though not all, were granted permission to remain.

Then, on June 6 of this year, an old freighter named the Golden Venture went aground in New York Harbor. All 256 survivors claimed asylum, most on the grounds that they were fleeing the one-child policy. The following is the story of one such claimant, Chang Zhen, which I recount not because it is extraordinary but because it is typical. (I use pseudonyms for both Chang and his lawyer so as not to prejudice their case.)

Like many of the passengers aboard the Golden Venture, Chang Zhen was a native of Fuchoa city, located in Fujian province on the rugged southwest coast of China. Shortly after the birth of his first son in March 1991, he was visited by the director of birth planning for the city ward in which he lived. It was not a social call. There would be no second child, the director told Chang. Now that he and his wife had the one child permitted by law, she would have to submit to a tubal ligation, and the sooner the better.

Secretly hoping eventually to have other children, Chang cut a deal with the director. In return for an 8,000-renminbi bribe—about a year's income—this official agreed to back off. Chang's wife would not have to be sterilized, but neither would she be permitted to have any more children.

There the matter rested until the following year, when Chang's wife again became pregnant. This time the birth-control official brushed off Chang's offer of a bribe. As the weeks passed, his demands that Chang's wife abort the "illegal" child she was carrying grew ever more insistent.

Then one day when Chang was at work, the official led a band of policemen to Chang's house. Chang's wife, now six months pregnant, was arrested and dragged off to the local medical clinic. A neighbor who witnessed the scene ran to warn Chang, who hurried to the clinic, but by the time he arrived it was too late. His unborn child was dead. Chang flew into a rage and threw himself at the birth-control official, pummeling him to the ground. Then he fled.

Realizing that he was now a marked man, Chang went into hiding at the home of a relative. He saw his wife only infrequently, for he was afraid that she would be followed and give away his hiding place. The police were looking for him, and if he were caught it would mean a long prison sentence. Attacking a birth-control official is a serious crime.

Chang's wife urged him to flee China. He couldn't stay in hiding forever, she told him, and if he showed himself too often in public he would surely be arrested. Chang didn't want to leave his wife and young son, but he realized that he didn't really have a choice. Besides, he reasoned, he would be of more use to his family abroad, where he could work and send back remittances, than in a Chinese labor camp.

It was not easy to escape from China, even with the help of smugglers. Following their instructions, Chang first flew to the city of Kumming in the far south. He and eight others were taken by jeep to a place near the Burmese border. They crossed over that night and spent the next three weeks on foot, following their guide through the mountainous terrain of northern Burma until they reached the Thai border. Then it was on to Bangkok by truck and out to sea in a fishing boat. Fifty miles out in the Gulf of Thailand, they rendezvoused with a nondescript old freighter: the Golden Venture.

Six months later the Golden Venture lay aground on a sandbar at Rockaway, New York. The crew had abandoned ship even before the collision, leaving the passengers to fend for themselves. Chang and the others were taken into custody, then interviewed by the INS one by one. I wish to apply for political asylum, he told the official when it was his turn. I opposed the "one couple, one child" policy and fled China to avoid being punished.

When attorney Don Jonathan was assigned to Chang's case, he was surprised to find that an asylum hearing had been scheduled for only two days later. He quickly filed a motion to postpone the hearing, noting that he had not even had a chance to meet with his client, much less prepare a brief on his behalf. Under the circumstances, Jonathan expected his request for a three-week delay in the proceedings to be honored as a matter of course. But it was not. The immigration judge told him brusquely that the hearing would go forward as scheduled.

Working through an interpreter the day before the hearing, Jonathan quickly reconstructed his client's story. Despite the lack of supporting documentation—common enough in asylum cases—Jonathan thought that Chang had a strong case. He was a credible witness, and he had openly opposed the one-child policy. Were he to be deported back to China, there was little question that he would be persecuted.

Jonathan was even able to corroborate Chang's account of his wife's travail. A computer search revealed several accounts in the Western press of Chinese officials using physical force, dragging or pushing pregnant women to the medical clinics for abortions. Going into the hearing, Jonathan expected that Chang would be granted asylum.

The immigration judge listened intently to Chang's account of how his wife had been forced to undergo an abortion and how he had attacked the official responsible. In his questioning, the judge even seemed to indicate some sympathy for Chang's plight. Yet at the end of the hearing he ruled that "Chang's wife voluntarily aborted their baby with the assistance of the clinic." As far as Chang's subsequent actions were concerned, he was a mere criminal, "running from criminal prosecution." Chang's claim for asylum was denied.

If Jonathan was surprised by the judge's ruling, which seemed totally contrary to fact, he was even more astonished by what happened next. Going off the record, the judge told Jonathan that he should appeal. "Your client has a strong case," he said. "I urge you to appeal my decision."

"But, Your Honor," Jonathan sputtered, "If you think my client has a strong case, why don't you simply grant him asylum yourself?" The judge was no longer listening.

"It was as if the judge had made up his mind not to grant Chang asylum even before hearing his testimony," Jonathan told me later.

What accounts for the unseemly haste with which the Chang case, and hundreds of similar cases, have been disposed of? The exclusionary mentality of the INS is well known. Early on in the Golden Venture saga, an INS official went so far as to claim that 99 percent of the asylum claims of those on board were bogus. But the people who judge asylum cases are not employees of the INS. Immigration judges are part of a separate Justice Department agency, the Executive Office for Immigration Review.

In an unusual move that must have had the approval of senior officials in the Justice Department, immigration judges from as far away as California and New York were flown to Baltimore at great expense to hear the Golden Venture cases. Some judges and clerks privately revealed to defense attorneys that they were under considerable pressure to process each claim as quickly as possible; hence the refusal to grant continuances. Did this pressure originate from within the Justice Department, or from even higher levels of government?

Attorneys tell of an official in the Baltimore INS office to whom they complained about how little time they were being given to prepare their clients' cases. "The White House has told us," this person is said to have responded, "that it wants 'all these Chinese bastards out of the country by October.' "

As of this writing, all but 14 of the 256 asylum seekers from the Golden Venture—and all of those who claimed that they were fleeing persecution for their opposition to China's policy of forced abortion and forced sterilization—have had their claims denied. Appeals have been filed on several grounds, including violation of due process. Final decisions from the Immigration Appeals Court in Arlington, Virginia, are expected by late October.

Contributing Editor Steven W. Mosher, director of the Asian Studies Center at the Claremont Institute in California, is the author of A Mother's Ordeal: Escape from One-Child China (Harcourt Brace Jovanovich).