Friday, January 14, 2000, 11:17
a.m. Pacific
Chinese stowaways cite one-child law
in quest for asylum
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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