In 1997, Fei Mei Cheng gave birth to a daughter. Cheng was living in Fujian, China, a mountainous province in the southeast known for its rocky coast, Oolong teas and terraced rice fields. The Wuyi Mountains shelter Fujian from cold winds out of the northwest, allowing lush subtropical forests to flourish in the humid air. In Mandarin, Fujian means “Happy Establishment"; the capital of the province is Fuzhou, “Happy City.”
But there is a dark side to lovely Fujian. According to reports by the Immigration and Refugee Board of Canada, the province is one where China’s restrictive family planning policies are enforced with particular enthusiasm. Local officials threaten and harass families for violations, levying fine of ten times a family’s annual income, seizing property, and forcing women to be sterilized or abort children who family planning officials deem are to be in violation of the policy. And local officers are themselves punished if they don’t enforce the laws: the New York Times reported in 2012 that officials “may be given a warning, fined or even removed from office if they did not meet family planning targets.”
According to the Fujian Population and Family Planning Regulations, birth out of wedlock is one such punishable offense. A violation like this is grounds for “remedial measure”--something U.S. Congressional reports have bluntly called “a euphemism for abortion.” Cheng and her boyfriend wanted to be married, but at 21 years old she was too young--China’s age of consent at the time was 23.
Local officials pressured Cheng to abort the child, threatening that if she did not go voluntarily they would force her to do so. Cheng refused. She fled with her boyfriend to her aunt’s house, where the couple went into hiding. In the middle of the night officials visited Cheng’s parents’ house, intending to bring her to abort the child. According to Cheng’s testimony before an Immigration Judge, offers were “furious” when they discovered she was gone, threatening her parents with confiscation of the family’s truck and farm, their livelihood.
Cheng gave birth to her daughter in secret. But she was ultimately unable to hide from officials, who followed through on their promise: they took her family’s farm and truck and forbade her parents from working on the farm.
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In 2005, the year Fei Mei Cheng testified before an immigration judge in New York, the United States granted asylum to 2,216 Chinese citizens--16 percent of all asylees, second only to Colombia’s 2,225, where the government was engaged in a long standing, bloody war with FARC and ELN rebels. The Department of Homeland Security keeps a Yearbook of Immigration Statistics going back to 1996, and these numbers have held steady throughout the decades. In some years, Chinese citizens granted asylum account for upwards of 27 percent of all cases. In 2015, the most recent data available, 2,582 people from China were granted asylum.
The United States does not track the reasons people are granted asylum, so there’s no real way to tell how many claims are related to China’s coercive family planning policies, which have been in place since the late 1970s. But by 1996 enough cases were coming in to warrant a change in U.S. immigration law, and Congress broadened the U.S. Immigration and Nationality Act to include those who have “been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for resistance to a coercive population control program.” The change was aimed almost exclusively at China.
These 1996 amendments were the one of the first times, says Fatma Marouf, that courts had recognized a gendered application of asylum protection--“forms of harm that are related to gender and experienced primarily by women.”
Marouf is a slight woman with shoulder length black hair, sharp features and a high, lilting voice. As one of the country’s leading asylum attorneys and a professor at Texas A&M Law School, she has spent years trying to get courts to recognize “gender related harm”--namely, rape, female genital mutilation (FGM), forced IUD insertion and domestic violence, as well as the emotional and psychological issues that come with them--as grounds for asylum.
“Will we get there? I’m optimistic. It’s been a slow process; the advocacy has been going on for decades, but I think it’s getting better...Courts are taking it more seriously and recognizing different types of persecution.” Marouf sees the court’s recent acknowledgement that certain domestic violence victims may constitute a “social group” as hopeful. To be eligible for asylum, a refugee must be able to demonstrate persecution based on “membership in a particular social group,” and the case sets a precedent for victims of abuse to make the same argument.
But Marouf worries that judges are still reluctant to afford other harms--emotional and psychological ones--the same weight that they do physical ones, and that a lack of consistent guidance results in decisions that are all over the map.
“It’s not just the physical harm, which tends to be the focus, but it’s the loss of autonomy.”
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Cheng and her boyfriend wanted to have more children. But after witnessing a neighbor tied hand and foot and “treated like a pig” while undergoing sterilization without sufficient anesthesia, the couple knew that any attempts to expand their family would have dire consequences, and they fled with their daughter to the United States in 2000.
Shortly after arriving in New York, Cheng gave birth to another child. She was also served with notice to appear in court for an expired visa. Cheng applied for asylum, testifying before an immigration judge in November of 2005. At the time of her testifying, Cheng was pregnant with her third child.
The immigration judge granted her asylum on the grounds that it was likely she would be sterilized if she returned to Fujian and that she would likely face “severe economic distress” in the face of the fines that would be imposed for her violations, and that returning to China with three children, two of whom would be “unauthorized” would likely result in Cheng being sterilized. But forced IUD insertion had little precedent in the courts, and the judge ruled that in Cheng’s case it was not evidence of “past persecution.” To settle the matter, the judge sent the case to the Board of Immigration Appeals, the highest administrative immigration body in the nation.
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I met Theodore Cox at his office on Broadway, on the edge of Chinatown. On the second floor of an unassuming building, the walls are eggshell blue, with framed maps of China and flyers in Chinese and English explaining the asylum process. A notice by the window announces Fee Increases in December. Strings of red and gold firecrackers, remnants of recent New Year celebrations, dangle from the doorways.
Theodore Cox is Cheng’s attorney. One of the foremost Chinese asylum attorneys in the nation, with a PhD in Chinese Politics from Columbia, Cox is steeped in the inner workings of the U.S asylum policies and the Chinese government. He speaks fluent Mandarin and English with warmth and an easy smile, and has handled hundreds of asylum cases based on the 1996 amendments.
But starting in 2007, says Cox, something changed--cases based on forced sterilization and abortion became harder and harder to win. The 1996 amendments still stood. But Chinese family planning policies, said the Board of Immigration Appeals, were no longer coercive.
"They drank the Kool Aid,” says Cox, shaking his head.
Behind the Board’s reasoning was a 2007 State Department report with a brief letter from the Fujian Province and Family Planning Population Commission attached. “The following is a reply to your letter regarding family planning questions," the letter states, before going on to explain that U.S.-born children do not count toward official quotas and that local healthcare workers “should instruct citizens to choose safe, efficient and proper birth control measures to prevent and decrease unwanted pregnancies, with the understanding and knowledge of various birth control measures.” It concludes: “Therefore, there is no forcible insertion of an IUD or sterilization.”
The State Department agreed, writing in their annual Profile of Asylum Claims and Country Conditions for China: "according to the Fujian Province Birth Planning Committee, there have been no cases of forced abortion or sterilization in Fujian in the last 10 years."
“Basically they’re saying, there’s no coercion in China because China told us there isn’t. It's astounding, frankly,” says Cox.
But Congress disagrees. The Congressional-Executive Commission on China wrote in 2016 that, despite the relaxation of the one-child policy in recent years, “Chinese authorities continue to actively promote and implement coercive population planning policies that violate international standards.”
The Board of Immigration Appeals repeatedly chooses to cite State Department reports in its decisions denying petitions from Chinese asylum seekers. Or, as Judge Richard Posner wrote in a 2013 opinion: “...the Board without explanation systematically ignores the annual reports of the Congressional-Executive Commission on China, several of which we have cited, even though they are pertinent official publications of the federal government.”
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The Chinese government contended that Cheng had violated the law by not aborting her child and ordered that both Cheng and her boyfriend be sterilized. The couple continued to resist. Finally, amid threats that her newborn daughter would be taken from her, Cheng consented. According to her testimony before an immigration judge in the United States, she thought she might be able to “escape at the last minute.” But there was no time: according to her testimony, Cheng was immediately “dragged” to a clinic, where doctors inserted an intrauterine device, or IUD. Cheng maintains that she “screamed” during the procedure, which was “very painful.”
Cheng was required to have the device checked every three months, and missing an appointment meant fines she was unable to pay. After pleading with officials who refused to allow her daughter to attend daycare, Cheng was able to sign her up--but only if she paid twice the normal tuition.
Technically, Chinese law prohibits forced sterilization. But humans rights groups and others have documented numerous instances of the practice, particularly in Fujian and Guandong provinces. In a separate asylum case heard by the Seventh Circuit Court of Appeals in 2013, Judge Richard Posner was scathing, and skeptical: “If there is such a law, it seems that the authorities in Fujian either don't know or don't care about it.”
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In the case of Fei Mei Cheng, the Board Immigration Appeals found that she “offered no basis to show that the IUD was inserted because of her resistance to China’s family policy and not merely as part of a routine medical and family planning policy,” that her acts of resistance were “unconnected” to the threats made by officials, and that there were not “sufficiently aggravating circumstances to constitute persecution” when her IUD was inserted. The Board also ruled that the economic distress she’d suffered was not “substantial” enough to warrant asylum. The decision of the immigration judge was vacated, Cheng was deemed ineligible, and she was ordered removed.
In 2010, Theodore Cox filed an appeal on Cheng’s behalf. The case went before the Third Circuit, where the court found that “the Board did not take into account many of the acts of mistreatment” and ruled that “Cheng was persecuted on account of her resistance to China’s coercive population control policies.” The Board has final authority, and the case went back for review. Cheng was ultimately granted her asylum based on the circuit court’s recommendation.
Fatma Marouf argues that “the BIA’s decision in Cheng’s case reflects [two] serious errors...the failure to consider nonphysical forms of harm and the application of a higher standard for physical harm that involves women’s sexual and reproductive functions. Luckily for Cheng, the Third Circuit caught these errors.”
But Marouf cautions that “Asylum applicants cannot count on the circuit courts to catch errors since only eight percent of decisions by immigration judges are appealed to the BIA and only 27 percent of BIA decisions are appealed to the federal court, which means that the chance of a decision being reviewed by a federal judge is only around two percent.” In short, Cheng got very, very lucky.
In a way, says Cox.
"She wins asylum, and now she works in a restaurant six days a week until 11 o'clock at night." He shakes his head. "What a life."