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Friday, January 14, 2000, 11:17 a.m. Pacific


Chinese stowaways cite one-child law in quest for asylum

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by Susan Gilmore
Seattle Times staff reporter

When the Chinese container-ship stowaways who arrived here recently file their applications for political asylum, as they are almost certain to do, most will base their claim on one law.

They will say they deserve to immigrate to the U.S. because Chinese policy restricting families to one child persecutes them.

This one-child policy not only is unique to the Chinese applicants, it's also one of the easiest claims to make successfully, say immigration attorneys. Records suggest that since that provision of the U.S. refugee law went into effect in 1996, the percentage of successful asylum claims brought by Chinese has nearly doubled.

According to the U.S. Committee for Refugees, a nonprofit organization based in Washington, D.C., 44 percent of Chinese asylum claims last year were approved. Of those, half sought asylum on the one-child rule.

In the 10 previous years, an average of only 22 percent were approved.

That means many of the nearly 100 Chinese stowaways caught at Seattle-area ports in the past year may well win the right to stay.

Even those who lose won't necessarily be deported.

Bill Birkett, general counsel to the local Immigration and Naturalization Service, said virtually all the recent stowaways have claimed the one-child policy on their asylum applications.

Many of them have already lost their cases before local immigration judges. Some have appealed; others have simply vanished.

Immigration officials think most of those who have come here from Fujian, a Chinese coastal province where most of the smuggling operations are centered, are coming for economic reasons. But that's not a valid claim for asylum. So most raise well-rehearsed claims of persecution under China's one-child policy, Birkett said.

He said he once interviewed 200 Chinese stowaways in San Diego, and almost all said they'd come to America to get a job. Months later, in the immigration process, they'd changed their stories to claim one-child persecution.

"Congress played right into their game when they put into law (the one-child policy)," said Birkett. "People who are smuggled in always make that claim."

Amendment to refugee law

By law, refugees who apply for asylum have five grounds: race, religion, nationality, political opinion or social group.

Partly because of pressure from right-to-life groups, Congress amended the refugee law in 1996 to allow immigrants to claim asylum if they've "been forced to abort a pregnancy, undergo involuntary sterilization, or been persecuted for failure or refusal to undergo such a procedure, or for other resistance to a coercive population control."

Those who can prove such a claim "shall be deemed to have been persecuted on account of political opinion."

Local immigration attorney Dan Kowalski said the one-child claim is popular because it's the easiest to make.

"It's almost like saying the basic law of China is that there is a one-child policy, and if you either had more than one child or want more than one, you're automatically eligible for asylum," Kowalski said.

Stories change

Stephen Singer, an immigration attorney in New York who represents many refugees from Fujian, said the one-child asylum claims are the largest, by far.

"There are limited grounds. Just saying you don't like Communists isn't going to fly," he said.

He figures he wins more than 90 percent of his cases - if his clients don't change their stories before the immigration judge.

Many of the illegal immigrants fall victim to underground operations where, for a price, they are offered phony documents and an invented boiler-plate story to support an asylum claim. When that new story surfaces in a court hearing, the earlier claim is produced and the immigrant loses his case.

The underground operations are a huge problem to the INS, said Bill Strassberger, an INS spokesman. He said many advertise on the Internet and craft phony application claims based on past successful ones.

"If you use what someone else has used before, chances are a few dozen people have also used it," he said.

He, too, said many of the applicants seem to be well-coached in the one-child law. "When you spend several weeks crossing the ocean, that's a long time to talk and get schooled on what to say," he said.

Several steps in process

There are several steps in the asylum process for these stowaways:

First, the immigrant claims he has a "credible fear" of being returned to his country. This threshold test is easy to pass, Birkett said.

Next, the case goes to an immigration judge, a process that could take months.

And if he loses at that level, he can appeal.

The approval rate for 50,000 asylum claims filed last year by all nationalities was 28 percent.

Of the 1,942 Chinese asylum claims granted last year, 1,013 were based on the one-child policy, said Bill Frelick, policy director of U.S. Committee for Refugees, which analyzed government data.

In changing the asylum law in 1996, Congress put a cap of 1,000 on the number of one-child claims allowed each year. But when the number exceeds that amount, applicants are granted conditional asylum and are pushed ahead into the next year's count.

Proof of persecution required

While making the one-child claim is easy, proving it is not, say immigration attorneys. Applicants must show they've been persecuted because of their desire to have another child, whether they've undergone forced abortions, lost their jobs or been denied health benefits.

And the one-child policy has some flexibility in China, say local Chinese scholars. Kam-Wing Chan, a geography professor at the University of Washington, said his studies show those who live in the Chinese countryside are often able to ignore the one-child rule. He said the average Chinese family today has two children.

"There's nothing negative we can say about the people who want to file for asylum," said Birkett, the INS counsel. "They're good people. We just can't have them all here."

Too little detention space

Meanwhile, INS officials say one of the big problems they have is keeping track of illegal immigrants while they are in the immigration process.

Officials say as many as 75 percent of those with weak asylum claims, like those who stow away on container ships, will disappear.

Compounding the problem, said Strassberger is that the INS has such a scarcity of detention facilities the immigrants are often released on bond.

He said the INS has or contracts 17,000 beds around the country, but about 14,500 of them are occupied by criminal noncitizens.

With the arrival of so many stowaways on four container ships since the beginning of the year, space is so tight at the local INS detention center that some of the detainees are being housed at the state's Regional Justice Center in Kent.

The U.S. also has trouble obtaining travel documents necessary to deport them. The process of dealing with the Chinese government, said Strassberger, can be very slow.

"They don't have passports, and the Chinese government doesn't issue them passports because they don't want them back," said Singer, the immigration attorney.

Meanwhile, another asylum claim is gaining popularity in Canada, where it is harder to win a one-child policy claim.

Many of those arriving are claiming to be religious refugees because of their association with the Falun Gong, a Chinese spiritual movement under attack in China.

But Vancouver, B.C., immigration attorney Richard Kurland said the success rate on these claims is "virtually nil" because Canadian authorities discover many of those who claim such persecution know little about the Falun Gong movement.



Copyright © 2000 The Seattle Times Company


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