Many recent Chinese immigrants will find it more difficult to get asylum after a federal appellate court in New York yesterday narrowed the definition of who qualifies as a political refugee.

At issue is how America views policies in some localities of China requiring abortions or sterilization for those who have more than the government’s allotment of one or two children. For a decade, the Justice Department’s immigration courts had considered the husbands of women forced to undergo abortions or sterilizations to be political refugees in their own right. The protection also extended to women whose husbands were sterilized.

A deeply divided 2nd U.S. Circuit Court of Appeals reversed the Justice Department’s interpretation of the immigration law yesterday, holding that only the person unwillingly subjected to the medical procedure counted as a political refugee. The old policy, the majority found, was encouraging husbands to leave their wives for America, where they might win asylum based on the past sufferings of the women they had abandoned.

This “perverse effect of creating incentives for husbands to leave their wives” was not Congress’s intent in granting broad refugee status to those affected by China’s family planning practices, Judge Barrington Parker Jr. wrote in a majority opinion signed by six other judges.
The 2nd Circuit is the first federal circuit to deny, as a matter of law, refuge to the spouses of those forced to undergo the surgery. The decision, which differs from the rulings of five other circuits, could tempt the U.S. Supreme Court to take the case.

“This opinion is a severe narrowing of who is meant to be protected,” a professor at New York Law School who is an expert in immigration law, Lenni Benson, said.

As a result, immigration lawyers say, incoming Chinese asylum seekers may decide to settle outside of New York to take advantage of more favorable readings of the law.

“They’ll probably be better moving somewhere else temporarily,” a lawyer who exclusively handles Chinese immigration cases, Richard Tarzia, said of how he expects some immigrants to respond to the decision. “They should certainly find a job and live out of state.”

Far more asylum seekers arrive in America from China than any other country. Between 2000 and 2005, 35,000 of a total of 157,000 asylum seekers were Chinese, according to data gathered by Syracuse University. It is unclear exactly how many of the Chinese asylum cases hinge on China’s family planning regulations, and not other alleged persecution. In 2005, Congress lifted an existing 1,000-person cap on the number of asylum seekers who would be accepted on claims of forced surgery or sterilization.

In recognition of the high number of Chinese asylum claims it hears, the 2nd Circuit took the case as an entire circuit – a rare step for the court. As a signal of how deep are the court’s divisions on the issue, the 11 active judges who participated in the hearing issued four separate opinions.

The majority expressed skepticism at granting asylum status to individuals who may never have been personally targeted by a government’s repressive policies.

“A spouse who has not demonstrated that he himself is a victim of persecution cannot be entitled to asylum under this section of the statute,” the majority decision said.

The various dissenters criticized the majority for not giving enough weight to the suffering of the spouses.

“I see no reason why the BIA could not reasonably conclude that one has suffered harm or injury sufficiently severe to constitute persecution when one’s spouse is forced to undergo an abortion or sterilization,” Judge Robert Katzmann wrote of the Justice Department’s Board of Immigration Appeals.

In another dissenting opinion, a judge wrote that the majority did not fully grasp the social significance of China’s policies.

“The majority clings to the notion that the persecution suffered is physically visited upon only one spouse, but this simply ignores the question of whom exactly the government was seeking to persecute when it acted,” Judge Sonia Sotomayor wrote. “The harm is clearly directed at the couple who dared to continue an unauthorized pregnancy in hopes of enlarging the family unit.”

Refugees who win asylum in America can frequently get legal status for their dependents as well, so the decision is not expected to split up families. But the decision will bar the asylum applications of some applicants who emigrate individually.

Mr. Tarzia estimated the number of asylum seekers affected at about 500 a year.