The Board of Immigration Appeals, in the Matter of C-Y-Z (Interim Decision 3319), reversed an immigration judge’s ruling and held that an asylum applicant forced to abort a fetus or to undergo a sterilization procedure can file an asylum claim based on persecution for a political opinion.
In the C-Y-Z case, the applicant, a Chinese national, is the married father of three children. The applicant claimed that after his first child was born his wife was forced to where an intrauterine device (IUD) to prevent further pregnancies. He was jailed for a day after protesting the forced medical procedure. The IUD device was removed and his wife became pregnant. His wife hid with relatives in order to avoid a forced abortion and received a government fine for doing so. After becoming pregnant with the couple’s third child, the wife hid again. When the child was born, the wife was forced to undergo sterilization.
The government conceded past persecution in this case, but said that the applicant’s could not establish a well-founded fear of future persecution. The government relied on an INS General Counsel opinion stating the following:
“If the applicant does not have a well-founded fear of future persecution, he would only merit a favorable exercise of discretion … if the abortion or involuntary sterilization is determined to be an “atrocious form” of persecution to the applicant.”
The BIA held that the applicant has no additional obligation to show the persecution was “atrocious.” If an applicant can show past persecution, there is a legal presumption that there is a continuing threat. The only way the government can get around this presumption would be to show a change in the conditions in the country. That was not done here and the application for asylum was approved by the Board.
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