Testing Mukasey

Editorial of The New York Sun
September 19, 2007

Judge Michael Mukasey's nomination as attorney general is but a day old, and already there is talk about one of the most difficult cases of his career, one that arose from the Golden Venture. That is the name of the tramp steamer bearing 286 immigrants fleeing Communist China that ran aground within sight of the Statue of Liberty. New Yorkers will never forget the 10 drownings that ensued as desperate passengers tried to swim to shore — nor the story of another of the Golden Venture passengers, Jia-Ging Dong, whose saga illuminates the legal minefields a great judge must navigate in our shrinking world.

President Clinton's Justice Department brought a deportation proceeding against Mr. Dong. He responded with an asylum application on the grounds that he had actively opposed Communist China's so-called "family planning" practices, some of the most barbarous on the planet. Before emigrating, Mr. Dong had placed his wife, in her third pregnancy, in hiding to prevent local communist officials from forcing her to undergo an abortion. His wife's pregnancy had been in violation of a mandate by family planning officials that Mr. Dong and his wife have no more children after their first two.

If returned to the communist mainland, Mr. Dong argued, he would be severely punished for his defiance to the mandatory abortion policy. Judge Mukasey, in a decision that marks his commitment to follow the law despite the raw emotions of a case, ruled that Mr. Dong was not entitled to asylum as a political refugee. "The conception and rearing of children is not the inherently political activity whose general prohibition can reasonably be construed as veiled persecution of political opinion," Judge Mukasey wrote.

Brian Burch, president of the Catholic advocacy group Fidelis, has cited the case of Mr. Dong to the Associated Press, saying Judge Mukasey's "federal judicial record has been at times hostile to the issues that we care and have concern about, like abortion." We would have liked to see Mr. Dong, and the other passengers of the Golden Venture receive a warm welcome to this country, instead of the deportation orders many received. But it strikes us that it's going to be difficult to fault the judge for following the law.

It was not until 1996 that Congress amended the definition of refugee to make those in Mr. Dong's position eligible for asylum. Only then did defiance of China's policy of forced sterilizations or abortions become grounds for political asylum. Courts still differ on whether to grant asylum to husbands such as Mr. Dong, who left their wives in China — some temporarily — to seek freedom in America. It's a terrific topic to look at during a time when one wing of the Republican faction is agitating for tighter controls on immigration into America.

As Judge Mukasey's nomination goes forward, as we hope and trust that it will, we expect both Democrats and Republicans to notice the benefits of having a figure like him at the head of the Justice Department. The points of policy Mr. Burch raises deserve to be taken seriously but also to be recognized as matters where the duty lies with those who make the laws, not with those who sit on the bench. It is for Congress, not for any judge, to declare that our nation stands for choosing life and to enact laws to protect those who come here seeking to escape forced abortions and mandatory sterilization that are a part of the Chinese communist system.