If you took a moment to thank God on Thanksgiving Day, then it is likely that you thanked him that you are a free-born citizen of the United States of America. You live your life, at every moment, with the right to make your own economic choices, to determine your destiny and that of your family, to elect your leaders and to criticize them without fear of government retribution.
As Americans, we take pride in the fact that our nation is both great and good on the world stage. That reputation has led the peoples of the world suffering under tyranny to seek shelter here.
And so it might surprise you that President Bush’s Department of Homeland Security now wants to hand over, to the world’s most systematically brutal government, scores of wholly innocent victims of political persecution, whose only crime was to have children and resist coercive population control programs.
DHS is seeking to reverse decades of U.S. policy and reinterpret a 1996 U.S. law in order to return Chinese fathers whose wives have fled forced sterilization or abortion by the Chinese government to Communist China, where they will be separated from their families and face certain retaliation for the crime of fathering an unapproved child. DHS has now convinced the Second Circuit Court of its position, creating a split among the circuits. The matter now rests in the hands of the attorney general, who has previously had discretion to grant asylum to those worthy.
Under China’s “one-child” policy (which sometimes permits two children), China requires sterilization for new mothers and forced abortions for women exceeding the limit. The State Department reports that in 2005, in just one province, 130,000 women were subjected to forced abortion or sterilization. According to congressional testimony by Chinese refugees and other interviews with Chinese citizens, women who go into hiding to avoid this routinely have their homes destroyed, or members of their family are imprisoned.
China’s population-control program also requires abortions for all unwed mothers. This is even more intrusive than it sounds, because another component of the 1979 population policy bans marriage for men under the age of 22 and women under the age of 20 — and in some provinces, the age requirement for marriage is as high as 25.
Because of the marriage ban, many young Chinese couples secretly get traditional marriages that are not sanctioned by the state. Yet this carries with it a risk — if the wife becomes pregnant, the state will frequently force her, as an “unwed” mother, to abort.
As a consequence of this policy, the Reagan administration began a policy of accepting, with open arms, women who have fled China to avoid forced abortions or sterilization. His policy also accepted the baby’s fathers, upon whom Chinese law confers equal punishment for the crime of unauthorized breeding. This included both “legal” husbands and “traditional” ones, and even committed partners who fathered the children, because like the mothers they faced political persecution.
President Clinton reversed course, adopting an extremely callous policy that no longer considered forced abortion a form of political persecution. His undersecretary of state for global affairs, former Sen. Tim Wirth (D., Colo.), famously and cruelly equated China’s regime of forced abortions with “family planning” when he argued in 1995 for the deportation of 13 Chinese women who had arrived in the United States aboard the Golden Venture: “[W]e could potentially open ourselves up to just about everybody in the world saying ‘I don’t want to plan my family, therefore I deserve political asylum.” (Emphasis added.)
Clinton’s decision to reverse the policy and deport these women was received with bipartisan outrage. In order to force Clinton’s hand, Reps. Chris Smith (R., N.J.) and Henry Hyde (R., Ill.) passed a new policy into law the following year by slipping it into a larger immigration bill that Clinton wanted to sign. Their amendment, known as Section 601, was intended to protect Chinese mothers and their husbands who fled procreative persecution from being deported to China.
The Hyde-Smith law protects “a person who has been forced to abort a pregnancy” or faces persecution “for other resistance to a coercive population control program.” The first phrase, says Smith, does not explicitly refer to couples, but it was clearly intended throughout the congressional debate, sworn testimony in committee, and in the House report language on the measure, to refer to both mothers and fathers. Both, after all, are subject to the same penalties, and both are being forced to terminate a pregnancy they initiated together. At the very least, the second phrase would appear to apply to both.
But now the Bush DHS is asserting, contrary to the lawmakers’ clear intent and previous policy, that the attorney general lacks the power to grant refugee status to Chinese fathers. DHS, which did not respond to National Review Online’s inquiries Monday, made this argument successfully before the Second Circuit Court of Appeals, which ruled that the Bureau of Immigration Appeals has been applying “an arbitrary and capricious interpretation” of the 1996 statute ever since it was written. Fathers, they ruled in July — even legal husbands — are not protected from deportation just because their wives (legal or traditional) have been forced into or face forced abortion or sterilization by the Chinese government.
President Bush took a bold stand early in his presidency against China’s heartless policy by refusing to fund the United Nations Population Fund (UNFPA) after an investigation revealed in 2001 that UNFPA was assisting Chinese officials in enforcing a coercive policy, in violation of U.S. law. UNFPA denied the report, claiming absurdly that the programs are now voluntary, despite mounds of recent evidence to the contrary.
Bush can now take another bold stand in the twilight of his presidency. A similar case has been referred by the Third Circuit Court of Appeals directly to Attorney General Michael Mukasey. He can fix the problem for now by conferring refugee status upon the men in this situation who appear before our immigration courts. Will he apply the law and confer upon both spouses the protection of the United States of America? Or will he return to the Clinton administration’s anti-life, anti-family, and anti-choice policy, that forced refugees to suffer for their unauthorized reproduction?
— David Freddoso is an NRO staff reporter.