Asylum Claims Based on Coercive Family Practices Persecution

by Tudor Mihai Neagu on Oct. 04, 2018


Summary: Coercive family practices by foreign governments, such as China's one-child (now two-child) policy, are specifically designated by the Immigration and Nationality Act as grounds for an asylum claim.

Today I’d like to discuss a selected topic from asylum law, and that is asylum based on family planning.  When I say family planning, I mean the coercive actions that the Chinese government takes to enforce its one-child, now two-child policy.   As you know, in January of 2017 it was announced that the Chinese government will now allow families two children, so I’ll discuss that development. 

Coercive family planning enforcement refers to things like forced abortions that happened in the past because a family already had a child, or they were not married, or forced sterilizations.  If you experienced a forced abortion or forced sterilization at the hands of the Chinese government, asylum law in the United States gives you a privileged position.  You are presumed to be a political refugee if these things happened to you. 

Of course, the challenge will then be, how do we prove this?  Oftentimes these things happened a long time ago, maybe ten, twenty, thirty years ago.  For cases of sterilization, that is relatively easy – you just go to an OBGYN here in the US, and they will be able to examine you and determine whether you have been sterilized.  With forced abortions, it’s a bit harder, because oftentimes a judge will ask you to produce documentary proof from the hospital in China, and of course those records can be lost, or hospitals can refuse to give you such records, or the records were never created in the first place.  Forced abortions are also often followed by the implantation of an IUD contraceptive.  That is another clue that an OBGYN can examine, and may be used to prove your case. 

The asylum process happens as follows.  It is a two step process: first, you file affirmatively with the asylum office, meaning you voluntarily come to the government and say, hey, I was persecuted in China, please consider my application.  Then, an asylum officer accepts your evidence and interviews you about your experience.  The asylum office has a low rate of granting asylums, about twenty percent.  So more likely than not, your case will not be granted at that stage, but it’s possible if you have a strong case. 

If your case is not granted at the asylum office, then your case is referred to immigration court.  So, this is step two, you get to do it again in front of an immigration judge.  This process is a little different, than the asylum office, and the chances of winning are higher than at the asylum office.  However, it’s obviously dependent on the strength of your case, and success is never guaranteed. 

You should also be aware that it is very important to tell the truth.  Please do not try to make up a story, because there are very severe consequences for lying in court, including fines and imprisonment on top of deportation.  Also, believe it or not, it is very easy to tell whether someone is lying, because the asylum process takes a very long time, and it requires you to write your story down, then testify about it in a recorded setting, several times, so if the story is not true, it would be very difficult for someone to keep their facts straights.  So if you’re thinking about making up a story, don’t. 

Lastly, let’s talk about China’s new “two child policy.”  As you may or may not know, an announcement was made by someone high up in the party in China that now each family would be allowed two children.  So the question is, does this change things for asylum seekers?  The answer is, not yet, but maybe it could affect some cases in the future.  The reason why the answer is “not yet” is because, quite simply, there is not enough evidence yet of the Chinese government’s implementation of this policy.  Are they actually allowing two children now?  It’s unclear because this policy is enforced at a local level, and every district has different officials who behave differently.  Also, even if this policy is enacted and enforced as such, it still stops people from having three or more children.  And it will likely still affect couples who have children out of wedlock.  So the bottom line is, right now, no one is affected as far as I can tell, but some cases may be affected in the future.  

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