Do you qualify for asylum because of the One Child Policy in China?
You may be able to qualify for asylum to stay in the United States based on fear of persecution because of non-adherence to the one child policy in China.
In 1996, US immigration laws were amended to make certain persons who were victims of the PRC’s One Child Policy eligible for asylum in the US based on political opinion: “
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For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.”
Asylum based on the PRC’s One Child Policy extends not only to women forced to undergo such procedures, but to their spouses and children.
If you are in danger of being persecuted, you can submit a well-documented application for asylum (Form I-589) to the USCIS. If you are in removal proceedings, you must submit your asylum application to an Immigration Judge. There is no filing fee.
While forced abortion and forced sterilization are enough to show persecution, the Board of Immigration Appeals has held that merely having more than one child in the PRC does not enable the parents to receive asylum based on fear of future persecution.
Suffice it to say that this a complex area of law, and that persons who believe that they may be persecuted based on China’s One Child Policy should hire an experienced immigration attorney to assist them with their application for asylum.
You should present sufficient evidence to support your application. For example, attach a detailed affidavit, evidence of past persecution if any, country human rights reports, newspaper articles specific to your situation, proof of threats against you and any other documents authenticating your fears as being well-founded.
If you are outside the US, you may apply for refugee status based on these same criteria.
If your case is in Immigration Court, we recommend you can obtain an expert witness to testify on your behalf. This witness must be able to adequately testify whether you would be subject to persecution such as forced abortion, sterilization, or punished if you were forced to return to the PRC.
Generally, you must apply for asylum within one year of your admission to the US, although there are numerous exceptions to this condition. If you have suffered past persecution in your country, this is a significant factor which should be documented in your petition.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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