Bench Memos

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Mukasey and Political Asylum


Anxiety among some conservatives about the nomination of Judge Mukasey to be Attorney General rests in part on his 1994 ruling (in Dong v. Slattery) affirming the Board of Immigration Appeals’ denial of political asylum to a Chinese national who feared punishment for helping his wife evade China’s vile “one child” policy (which is implemented in part through coerced abortion).  Andy McCarthy has already explained on The Corner his view that Judge Mukasey’s ruling was legally correct.   

I agree with Andy and will add only that I believe that the result in that case was compelled by Justice Scalia’s 1992 majority opinion in INS v. Elias-Zacarias.  In that case, Scalia explained that in order to show that he faces “persecution on account of … political opinion,” an asylum applicant must show that the persecution would be on account of his political opinion, not the persecutor’s.  Faithfully applying the reasoning of Elias-Zacarias in Dong, Judge Mukasey stated that “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.”  (Emphasis added.)   

Bottom line:  China’s one-child policy and its use of coercive abortion are appalling, and I’m glad that the federal laws governing asylum were amended in 1996 to provide refuge to victims of that practice.  But there’s nothing in Judge Mukasey’s faithful application of then-existing asylum law that should lead anyone to infer anything negative about him.  Indeed, in 2006, Judge Mukasey, sitting by designation on a Second Circuit panel (in Bao v. Gonzales), joined an opinion that applied the 1996 amendment in the course of reversing BIA’s denial of an asylum petition.

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