Li v. Ashcroft, Ninth Circuit

Xu Ming Li and Xin Kui Yu, a wife and husband from China, sought asylum in the US, claiming that they had suffered persecution because of China’s one child policy. After they began seeing each other, people in the small village where they lived began confronting them, saying that they were conducting themselves shamefully. Xu replied that they were in love, and that they did not care about the Chinese government’s policy limiting children. Shortly thereafter, two nurses from the “Department of Birth Control” came to see Xu and forced her to submit to a pregnancy examination. She was threatened and told that if she became pregnant, she would be forced to have an abortion and her boyfriend would be sterilized. Shortly thereafter, the two applied for a marriage license. They were told that they did not meet the minimum age for marriage, and were denied a waiver of this requirement. A neighbor then suggested that they go to the US and offered to help them. They agreed to do this and began planning for a wedding ceremony. A few weeks later a friend of Xin’s who worked as a government messenger told him that he had seen a warrant for Xin and Xu’s arrests. The couple fled town and learned that the next day officials came looking for them. They then decided to leave China and made their way to the US, where they made a false claim of US citizenship. They later admitted the lie and applied for asylum.

An immigration judge found that they did not establish a well-founded fear of persecution, a decision the Board of Immigration Appeals affirmed. The couple then appealed to the Ninth Circuit.

In 1996, Congress passed a law making coercive population control measures a ground for asylum. There are three specific grounds: forced abortions, forced sterilization, and “other resistance to a coercive population control program.” This case, according to the court, is the first to address the third ground. To be granted asylum on this court, the court found, required Xu to show that she was persecuted because of her resistance to a population control program. The court found that while a determination that her treatment did rise to the level of persecution, such a conclusion was not compelled, and that the immigration judge’s finding that there was no persecution was reasonable.

Because she had not suffered past persecution, there is no presumption that she has a well-founded fear of future persecution, and she must establish this fear with other evidence. The court found that there was no evidence that she would face future persecution because of her past actions, and that any fear she did have of returning to China was not objectively reasonable.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0070157p.pdf.

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Iyengar v. Barnhart, District Court for the District of Columbia

Several nonimmigrants residing lawfully in the US filed a lawsuit challenging a new Social Security Administration policy of not issuing social security numbers solely for the purpose of obtaining a driver’s license. The plaintiffs claimed that because they cannot obtain SSNs, they cannot obtain driver’s licenses, and sought an injunction against the SSA to prevent it from enforcing the new policy. At this point, before the court were the plaintiffs’ motion for summary judgment and the defendants’ motion to dismiss the case.

SSNs are used primarily to verify that a person is eligible to work and to track their earnings. Nonimmigrants who are authorized to work may obtain numbers. SSA regulations also allow the issuance of SSNs to anyone legally in the US, not authorize to work, but who needs the number for a “valid nonwork purpose.” Under this provision, for many years the SSA has issued numbers so that people may obtain driver’s licenses if the state requires one for a license. The SSA policy change was made internally, without being published in the Federal Register any without opportunity for public notice and comment. This, the plaintiffs argued, violated laws dealing with how government agencies are to introduce new regulations.

The SSA argued that the new policy was only an interpretative rule, and thus not subject to the notice and comment procedure. The court found that even if this was the case, because the new rule changed policies that had been announced in the Federal Register, the new rule had to go through the same process. Therefore, the court granted the plaintiffs’ motion for summary judgment and found that the SSA had violated rule-making procedures in the way it introduced the new rule.

The case is available online at http://www.dcd.uscourts.gov/02-0825.pdf.