Court upholds denial of asylum to Chinese

RICHMOND — A woman who fled China after the government forced her to have an intrauterine birth control device implanted is not entitled to asylum in the United States, a divided federal appeals court ruled yesterday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals upheld a decision by the Board of Immigration Appeals, which concluded that Qiao Hua Li had failed to prove persecution and that her fears of harassment were not well-founded.

Mrs. Li was 16 when she got married in 1997, despite being denied a marriage certificate because Chinese law prohibits women from marrying until they are 20. She became pregnant four months later and, fearing a government-forced abortion, fled with her husband into the mountains.

The couple returned home eight months after the child was born and were fined 10,000 renminbi, or about $1,300, for the unauthorized birth.

Chinese officials also forced her to submit to an intrauterine device (IUD) insertion, she said, and she was checked every few months by doctors to ensure that the device was still in place and that she was not pregnant.

Her husband moved to avoid family planning officials seeking to collect the fine, and the child was sent to live with Mrs. Li’s parents. Mrs. Li incurred a $60,000 debt to smugglers to help her flee China. She arrived in Los Angeles on July 31, 2001, and was detained by U.S. officials.

An immigration judge ruled that China’s actions did not amount to persecution and noted that Mrs. Li had not had the IUD removed while in the United States. Mrs. Li testified that she feared repercussions if she is returned to China with the device removed.

The immigration appeals board adopted the judge’s ruling. The board said Mrs. Li’s fear of persecution lacked merit because her husband continued to live in China unharmed despite failing to pay the fine, which Mrs. Li said was more than her family earned in a year.

The appeals court agreed, saying the fine — although harsh — paled in comparison with Mrs. Li’s voluntary indebtedness to smugglers and, therefore, could not be viewed as a threat to her life or liberty.

The court also said Mrs. Li complained only about the insertion of the IUD — not the usage — and that there was no evidence of physical abuse in what is usually a routine procedure.

Judge Karen Williams wrote the majority opinion, which was joined by Judge Michael Luttig.

Judge Roger Gregory wrote in a dissenting opinion that the medically routine insertion of the IUD “was still persecution because Li was compelled coercively to submit to a procedure that caused her harm, that she found offensive, and that was done in violation of her personal bodily privacy.”