14 Georgetown Immigration Law Journal 881

Summer, 2000

Article

*881 POPULATION POLITICS: REPRODUCTIVE RIGHTS AND U.S. ASYLUM POLICY

Paula Abrams [FNa1]

Copyright © 2000 by Georgetown Immigration Law Journal; Paula Abrams

Within the United States, the term "population control" is most commonly associated with the one-child policy of the People's Republic of China. The media descriptions of women abducted in the dark and subjected to forced abortions or sterilizations leave deep impressions in the United States, another country where violent responses to the exercise of reproductive choice are not unknown. [FN1] So perhaps it is not surprising that the United *882 States' first domestic protection of international reproductive rights should be directed at China. In 1996, after seven years of botched efforts on the part of both Congress and the Executive Branch to protect Chinese fleeing from their country's one-child policy, the President enacted specific protection under U.S. asylum law for individuals subjected to involuntary abortion, sterilization, or other coercive population control programs. [FN2] This amendment changed existing precedent which had rejected coercive population control policies as a basis for asylum. [FN3]

Section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amends the Immigration and Nationality Act to provide that a "person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal or resistance shall be deemed to have a well founded fear of persecution on account of political opinion." [FN4] The net effect of this statutory change is to relieve the asylum applicant who has been a victim of, or resistor to, coercive population policies, of the burden of establishing persecution on one of the grounds established under the Refugee Act. [FN5]

Section 601 specifically identifies involuntary abortion or sterilization as a basis for seeking asylum. The statute's further authorization of "resistance to a coercive population control program" as a separate basis for establishing asylum, raises significant issues about the scope of reproductive rights violations which may establish eligibility for asylum. Coerced abortion or sterilization is a clear violation of international human rights. [FN6] Reproductive rights are not, however, limited to protection from such extreme state action. The right of an individual to determine freely and responsibly the number and spacing of children constitutes a basic human right to freedom of reproductive choice. [FN7] This principle was expanded at the United Nation's *883 1994 Cairo Convention on Population and Development to protection for a broader definition of reproductive health. [FN8] The linkage between physical violence and "coercive" population programs is not surprising. Direct violations of physical integrity are traditional civil rights abuses prohibited by a host of international treaties and human rights instruments. [FN9] Coercive population programs, however, encompass a far broader spectrum of government action than physical violence. This article examines which government practices, other than involuntary abortion or sterilization, constitute "coercive population control programs". It takes the position that United States asylum law must recognize and incorporate advances in international reproductive rights law in its assessment of "coercive population control program[s]" under Section 601. It posits that the ambiguities inherent in this asylum policy are representative of more pervasive ambivalence about protection of international reproductive rights. In the United States, abortion politics have driven both domestic and foreign policy on reproductive rights. Internationally, the enhancement of the status of women required for real protection of reproductive rights faces significant political and social obstacles. At a minimum, the right of a woman to exercise reproductive choice means that government policy can no longer assume that reproduction is the "norm" against which coercion can be measured. Violation of rights may therefore occur either when government limits reproduction or when government denies access to contraception or basic family planning services. Nor can coercion be so narrowly defined as to be limited to the physical "laying on of hands" inherent in forced abortion or sterilization. A "coercive population control program" is any program which prevents the exercise of reproductive choice.

Section I explains the legislative and administrative history of Section 601 and the changes effected under asylum law. Section II analyzes the international protection of reproductive rights which could form the basis for an *884 asylum claim under Section 601. Section III examines how population control programs may violate reproductive rights and considers which types of government actions should constitute coercive population programs. Section IV explores the connection between coercive population policies and establishing persecution under Section 601.

I. ASYLUM UNDER SECTION 601

A. The Effect of Section 601

Existing law provides that an alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee. [FN10] A refugee is defined as a person who is unable or unwilling to return to his or her country because of "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." [FN11] The statute does not define "persecution" but case law has construed it as "harm or suffering inflicted upon an individual to punish [her] for possessing a belief or characteristic a persecutor [seeks] to overcome." [FN12] Violations of basic human rights constitute persecution. [FN13] Persecution or "feared" persecution under the Act must be committed by the government or by individuals or groups that the government cannot or will not control. [FN14] Section 601 changes the burden for establishing asylum based on coercive population policies. An applicant who has been subjected to coerced abortion or sterilization is assumed to have been persecuted on account of political opinion under the Refugee Act. This type of applicant is relieved of both the burden of establishing persecution and the burden of establishing persecution on account of one of the grounds in the Refugee Act. An applicant who has not been subject to involuntary abortion or sterilization but who has resisted a coercive population program must establish persecution or well-founded fear of persecution for such resistance, but is relieved of the burden of establishing that the persecution *885 occurred because of race, religion, nationality, membership in a particular social group, or political opinion. Under Section 601, persecution, once established, is deemed to be on account of political opinion.

B. Legislative and Administrative Preludes to Section 601

The passage of Section 601 effectively overrules a Board of Immigration Appeals (BIA) decision, Matter of Chang. [FN15] In Chang, the BIA held that implementation of a coercive population control policy is not, on its face, a basis for asylum eligibility. The BIA found that an applicant had to establish that the population policy was "selectively applied" against the applicant as a member of a particular religious or other social group, or that the policy was being used to punish the applicant because of race, religion, nationality or political opinion. [FN16] In other words, Chang requires the asylum applicant to demonstrate that the government acted for more specific reasons than the enforcement of a generally applicable population control policy. [FN17] According to the BIA, a finding of persecution requires evidence of an individualized threat, not merely evidence of general oppression. [FN18] The decision in Chang was seriously flawed because to insulate human rights violations "uniformly applied" from asylum protection places a higher priority on isolated violations than systematic government abuses of human rights. [FN19] More importantly, Chang ignored the significance of the human rights violations implicit in the imposition of forced abortion or sterilization. Cases subsequent to Chang consistently denied asylum to applicants from the People's Republic of China seeking refuge from the country's population policies. [FN20]

*886 Chang was issued in May 1989, just weeks before the violent events in China's Tiananmen Square. The coupling of these events sparked Congressional efforts to protect Chinese fleeing from their country's one child program. The Armstrong-DeConcini Amendment to the Emergency Chinese Immigration Relief Act of 1989, H.R. 2712, was intended to explicitly overrule Chang. [FN21] President Bush vetoed the Act, insisting that executive action would be sufficient to achieve the "laudable objectives of Congress." [FN22] Specifically, the President directed the Attorney General to give "enhanced consideration [to] ... individuals from any country who express a fear of persecution upon returning to their country related to their country's policy of forced abortion or coerced sterilization." [FN23] For the next three years, the Executive embarked on a series of bungled attempts to provide this "enhanced consideration". In January 1990, the Attorney General promulgated an interim rule providing that "[a]liens who have a well-founded fear that they will be required to abort a pregnancy or to be sterilized because of their country's family planning policies may be granted asylum on the ground of persecution on account of political opinion." [FN24] President Bush reiterated the priority of this policy in an Executive Order. [FN25] In July 1990, the Attorney General issued a final rule outlining procedures for determining asylum. The rule contained no language relating to coercive family planning policies and made no mention of the interim rule. [FN26] On the last day of the Bush Administration, the Attorney General signed a final rule which provided even greater protection than the lost interim rule. This rule mandated that refugee status be granted to individuals subject to or facing forced abortion or sterilization as part of their country's family planning policy. [FN27] While the clear intent of this policy was to supersede Chang, [FN28] this rule was never published. [FN29] By this time the BIA, unclear as to the impact of President Bush's Executive Order 12,711 upon Chang, certified two cases for review by Attorney General Janet Reno to resolve the apparent conflict. [FN30] The Attorney General formally declined to resolve the conflict because resolution of the cases presented to her did not "require a determination that one or the other of these standards is lawful and binding." [FN31] Subsequent cases continued to apply Chang and deny asylum to applicants seeking asylum based on coercive population policies. [FN32]

II. THE MEANING OF REPRODUCTIVE RIGHTS

Reproductive self-determination is both a specific right and one which is inherent in a broad range of human rights already protected by international law. The basic human right to determine "freely and responsibly the number and spacing" of children was first articulated at the 1968 International Conference on Human Rights. [FN33] The 1974 World Population Plan of Action expanded this definition to provide that "[a]ll couples and individuals have the basic right to decide freely and responsibly the number and spacing of their children and to have the information, education and means to do so ...." [FN34] The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is the first treaty to include this language. [FN35]

*888 The 1994 Cairo Population Conference reached a consensus that population policies must adhere to international human rights norms. [FN36] The relevant human rights norms are those which protect physical integrity, equality, and self-determination. [FN37] The Universal Declaration of Human Rights protects the right to "life, liberty, and security of person", [FN38] and assures freedom from "torture" and from "cruel, inhuman or degrading treatment or punishment." [FN39] The International Covenant on Civil and Political Rights protects the right of "self-determination" [FN40] and "security of person" [FN41] in addition to safeguarding many of the same rights guaranteed in the Universal Declaration of Human Rights. [FN42] It also guarantees the right not to be subjected to medical or scientific experimentation without consent. [FN43] Article 17 of the Political Covenant also protects the individual from "arbitrary or unlawful interference" with privacy or family. [FN44] The Human Rights Committee's General Comments to The Political Covenant, which the U.S. has ratified, also specifically provides that "[t]he right to found a family implies, in principle, the possibility to procreate and live together. When nation parties adopt family planning policies, they should be compatible with the provisions of the covenant, and should, in particular, not be discriminatory or compulsory." [FN45]

In addition to these restraints on government action, international covenants also recognize the "right of everyone to the enjoyment of the highest attainable standard of physical and mental health." [FN46] The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) specifically guarantees "[a]ccess to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning." [FN47] Article 12 of CEDAW requires States to eliminate discrimination with regard to access to health care, including family planning, and to ensure appropriate health care during pregnancy, childbirth, and the postnatal period. [FN48]

*889 The connection between human rights and reproductive integrity is articulated most thoroughly in the Programme of Action adopted by 184 UN Member States at the 1994 Cairo Conference. The Programme protects reproductive self-determination through the medium of "reproductive health" which it defines as:

a state of complete physical, mental and social well-being and is not merely the absence of disease or infirmity, in all mattes relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition is the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of fertility which are not against the law, and the right of access to appropriate health care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant. [FN49]

Although these norms protect both men and women, state population policies more frequently target women. [FN50] The application of human rights norms to reproductive policy has proceeded slowly, in large measure because discrimination against women remains pervasive throughout most of the world. [FN51] Human rights norms are, for the most part, the product of men's experiences. [FN52] As a result, atrocities which tend to be suffered primarily by women have simply been absent from the radar screen of human rights considerations until very recently. [FN53]

The Declaration and Platform for Action, adopted by 187 UN Member States at the 1995 Fourth World Conference on Women in Beijing, explicitly articulated the connection between human rights and reproductive health. It provides that "[t]he human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence." [FN54]

*890 Although some variation in language exists between these documents, two core reproductive rights principles clearly emerge: first, the freedom of an individual to choose how many children he or she wants and when to have them; and second, the entitlement to family planning services. These foundational principles are emphasized through the repetition of language stressing that individuals have the right to determine "freely and responsibly the number and spacing of their children and to have the information, education and means to do so." [FN55] The protection of access to family planning is an implicit recognition that reproductive "rights" have little practical meaning without such access. [FN56] Reproductive rights therefore impose upon a State dual obligations of noninterference and performance. [FN57]

The international commitment to protection of reproductive self- determination is fraught with ambiguities. While many developing countries seek to reduce population growth, they are unwilling to undertake the reshaping of cultural, political and legal practices which discriminate against women and prevent them from exercising reproductive autonomy. [FN58] The United States, one of the key architects of the Cairo Programme of Action's definition of reproductive health, is also one of the few developed countries which has not ratified the Convention on the Elimination of All Forms of Discrimination Against Women. [FN59]

III. REPRODUCTIVE RIGHTS AND POPULATION POLICY

A. Regulating Reproduction

Reproductive self-determination may be denied in countries where the state seeks to regulate population growth through policies intended to influence family size. Population programs can seek to decrease population (anti- natalist) or increase it (pro-natalist). Regardless of the ultimate governmental purpose, it is the means of regulation which may violate human rights. Population programs may seek to achieve their objectives through a variety of means, including direction regulation, indirect regulation, or a combination. Direct regulation of fertility in anti-natalist programs may take the form of specific limitations on births, such as the PRC's "one-child" *891 policy. [FN60] It also may include direct physical intervention such as forced contraception, abortion, or sterilization. [FN61] Direct regulation in pro-natalist programs may take the form of denial or restriction of access to birth control, abortion, or sterilization. [FN62]

Indirect regulation of fertility consists of various types of governmental incentives or disincentives directed at reproductive behavior. [FN63] In both anti-natalist and pro-natalist programs, indirect regulation may reward compliance with government policy through cash or in-kind payments, legal and monetary penalties, and perks or expanded benefits. For example, tax advantages, favorable employment, maternity, health or education benefits and payments in cash or necessities (e.g., food, clothing) are common incentives used to influence reproductive behavior. Typical disincentives, which penalize reproductive behavior deemed undesirable by the government, include legal and monetary penalties, such as reduction of wages or benefits, loss of status or work opportunities, and severe taxation. [FN64] Pronatalist incentives are incorporated into many aspects of domestic policy in developed countries, such as tax credits or exemptions per child subsidizing childbearing. [FN65] Thus while disincentives to reproduction may be readily recognized as penalties and thus, potentially coercive, the prevalence of incentives helps mask the possible coercive nature of these policies.

B. The Meaning of Coercion in Population Programs

The reproductive rights guaranteed by international law include the right "to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so." [FN66] They also include the "right to make decisions concerning reproduction free of discrimination, coercion and violence." [FN67] The Cairo Programme of Action explicitly applies these rights to the context of state sponsored family planning programs. [FN68] It emphasizes that "[a]ny form of coercion has no part to play." [FN69] Coercion in population programs arises in several different ways, depending *892 upon the specific government actions and their impacts upon the individual. It is useful to examine coercion by reference to the following categorizations of government behavior.

1. Coercion by Physical Invasion.

The physical violations of bodily integrity are readily recognizable as coercive. Forced sterilizations and abortions are explicitly designated by Section 601 as grounds for asylum. [FN70] Other forms of involuntary physical intrusion for controlling reproduction also clearly constitute coercion. Government sponsored implantation of the contraceptive Norplant without informed consent, or refusal to remove Norplant when a woman no longer wants it, has been documented in Indonesia and other countries. [FN71] Government mandated gynecological examinations have been reported in both pronatalist and antinatalist programs. [FN72] The element of government imposed physical force common to all these violations falls well within the traditional understanding of human rights violations, such as acts of torture, cruel treatment or punishment, and threats to life or person. [FN73]

2. Coercion by Direct Government Barriers.

This type of coercion occurs when the government regulates so as to prohibit the exercise of reproductive autonomy. Examples of regulations which impose direct governmental barriers are laws which make contraception illegal, [FN74] eugenic laws which prohibit certain people from having children, [FN75] restrictive abortion laws [FN76] and significant limitations on access to *893 voluntary sterilization. [FN77] Direct government barriers also include limitations on the number of children an individual may bear. [FN78]

These types of regulations are, like physical coercion, readily recognizable government actions which directly prevent reproductive decisionmaking. Direct barriers to reproductive choices therefore fall squarely within traditional human rights analysis and are likely to be recognized as coercive.

3. Coercion by Government Pressure.

The legitimacy of incentives and disincentives in population programs is a continuing source of controversy. [FN79] At some point, incentives or disincentives become coercive. While there has been a broad consensus in the international community that coercive population programs violate human rights, there is no clear consensus on the meaning of "coercive" as it relates to government action other than direct compulsion. [FN80] The question of coercion in population programs arises in a spectrum of situations from direct threats of physical force or severe economic deprivation to implicit threats and psychological and social pressures to alter reproductive behavior to conform to government policy. Governmental violations of reproductive rights can also occur when access to reproductive health services, such as abortion, is conditioned on submission to sterilization, [FN81] or where access to health care (e.g., delivery of a baby) is conditioned on sterilization. [FN82]

*894 Disincentives are more readily recognizable as coercive. Harsh penalties for violation of government policy in the form of severe economic sanctions, potential incarceration, loss of benefits or imposition of significant social disadvantages clearly leaves an individual no reasonable choice but to submit to government imposed pressure. This governmental abrogation of choice violates reproductive self-determination. [FN83] One of the primary expert witnesses testifying on behalf of the proposed asylum policy described "coercive social pressures" in China as including "extreme fines" and harassment of pregnant women until they agreed to submit to abortions. [FN84] Disincentives also lead to more direct coercion in programs where state recruiters are punished if family planning quotas are not met. [FN85]

Governmental incentives present a more complex analysis. While theoretically incentives expand an individual's options, in reality many incentive programs specifically target the poor, offering relatively large sums of money, food or clothing to pressure procreative decisions. For example, the most common incentive is a one time lump sum payment in exchange for sterilization. [FN86] The sum offered is often the equivalent of one year's wages or more. [FN87] A destitute woman's "freedom" to reject such an offer is illusory. The sacrifice of reproductive self-determination is effected through the unequal bargaining power between the state and the individual.

Other problems with government incentives in population programs have arisen where the state provides incentives to employees to recruit "acceptors" for sterilization or contraception programs. In this situation, individuals may be pressured or misled into accepting a procedure without informed consent. [FN88]

Abuses associated with incentives in family planning programs led the International Conference on Population and Development to reject the legitimacy of incentives which undermine informed choice. The Cairo *895 Programme of Action, while recognizing that "[i]n every society there are many social and economic incentives and disincentives that affect individual decisions about child-bearing and family size," concluded that state incentive and disincentive programs directed specifically at fertility "have had only marginal impact on fertility and in some cases have been counterproductive .... Demographic goals, while legitimately the subject of government development strategies, should not be imposed on family planning providers in the form of targets or quotas for the recruitment of clients." [FN89] While "[p]rogrammes may offer incentives to individuals and couples ... even small incentives may interfere with discussion and informed choice for the very poor .... Incentives, if offered, should be modest and proportional and not infringe on informed choice." [FN90]

The inherently coercive nature of disproportionate incentives offered to impoverished individuals is often enhanced by the environment of social, economic and political pressures in which these incentives are offered. For example, in some provinces in China, programs establish "qualified birth control villages" where couples otherwise eligible to have children may only do so if no one in the village has an unauthorized birth or pregnancy. [FN91] Tactics such as gathering all the women in a village for a day long lecture on sterilization or Norplant, with medical personnel waiting to perform the medical procedure, are specifically intended to generate substantial social pressure to conform to government policy. [FN92]

Thus, while government regulation by incentives and disincentives does not present the same type of direct government interference exemplified in conduct involving physical force or direct barriers, it nonetheless should be considered coercive where there is substantial punitive impact or where individual choice is illusory.

4. Coercion by Discrimination.

Far less obvious violations of reproductive self-determination arise in many cultures where patriarchal laws and traditions vest control of women's reproductive functions in fathers and husbands. [FN93] Control of women's reproduction in these societies may be reinforced by traditions which view *896 the family, rather than the individual, as the primary unit of society. [FN94] The pervasive discrimination against women which characterize these societies belies any concept of reproductive "choice." For example, in Saudi Arabia, discrimination against women denies them the right to travel without a male companion or to receive medical treatment in a hospital without the consent of a male relative. [FN95] Polygamy and restrictions on work which lead to total financial dependence create a culture in which reproductive choice has no practical meaning. [FN96]

Despite the significant violations of reproductive self-determination which may occur, legal recognition of this type of coercion has been problematic. The government's role is perceived as indirect, and therefore, less culpable. [FN97] In addition, where patriarchal cultural traditions, rather than explicit laws, are the source of discrimination, denial of rights may be attributed to private parties rather than state action. [FN98] These interpretations present persistent problems for the legal recognition of women's rights. Although women may be subject to traditional violations of civil and political rights where direct government action is easily recognized, most violations of women's rights result from pervasive discrimination which has both legal and cultural roots. [FN99] Even though discrimination is clearly prohibited by international law, the consequences of discrimination, including violations of other rights, such as reproductive self-determination, are not as well recognized. [FN100] *897 Nonetheless, where the government actively perpetrates discrimination which results in the denial of rights, or refuses to provide legal protection for women's rights, coercive government action may be found. [FN101]

C. Coercion and Pronatalism

Like most developed countries, the United States, by tradition and politics, is a pronatalist culture which tolerates reproductive self-determination. [FN102] Throughout history, religious, economic, and political factors have motivated large families. [FN103] These factors, combined with patriarchal assumptions that women's primary function is to bear children, produced a cultural tradition where procreation is viewed as normative. One of the modern consequences of this tradition is the perception that government regulation which prevents or limits procreation is inherently problematic. Thus a governmental violation of reproductive self-determination may be readily recognized where a state interferes with procreation, as in involuntary sterilization, forced abortion or contraception.

In contrast, violations of reproductive self-determination which result from pronatalist policies may not be acknowledged in a culture which views procreation as the norm. This is particularly true of less direct interference with reproductive choice, such as governmental restrictions on contraceptive access or requirements that a husband consent to contraceptive use. The "coerced motherhood" program in Romania under Ceausescu, which criminalized abortion and most contraception and used the "pregnancy police" to monitor women's monthly cycles, presents the most dramatic recent example of violations of reproductive self-determination in pronatalist population programs. [FN104] Denials of reproductive choice in Romania led to over 10,000 deaths from illegally performed abortions and approximately 5.2 million cases of permanent sterility resulting from faulty abortion procedures. [FN105]

In other states, the infusion of religious doctrine into legal policy also operates to deny reproductive self-determination under the guise of pronatalist *898 doctrine. [FN106] Significant legal barriers to obtaining and using contraception currently exist in many states characterized by these traditions. [FN107]

Even where law, rather than culture, denies women access to contraception, violations of reproductive self-determination may not be recognized as violations of human rights, depending upon the country in question. The U.S. Department of State Country Report on Human Rights Practices in Saudi Arabia, describes extensively a variety of forms of discrimination against women prevalent in Saudi Arabia, but fails to mention that contraception is illegal. [FN108] By contrast, forced abortions and sterilizations in China receive extensive reporting. [FN109]

The right of an individual to determine "freely and responsibly the number and spacing of children and to have the information, education and means to do so" protects antinatalist as well as pronatalist choices. Oppressive laws which deny women access to contraception or voluntary sterilization are as coercive as those laws which restrict procreation. In fact, involuntary motherhood presents significant threats to a woman's right to life, liberty, and health. [FN110] Pronatalist biases should not obscure the significance of the harm that occurs when the state prevents a woman from controlling her fertility.

Closely related to the problem of pronatalist bias in the interpretation of rights is the question of what constitutes a "population control program" as the term is used in Section 601. Neither the statute nor the legislative history defines this term. [FN111] Most antinatalist population policies, which are seeking controlled reduction of births through alteration of reproductive behavior, are *899 promulgated as explicit programs with demographic targets. [FN112] By contrast, pronatalist policies, which may violate reproductive self-determination by denial of access to contraception or voluntary sterilization, are rarely articulated as part of a comprehensive population program. In societies where procreation is viewed as the norm, pronatalist policies do not tend to be tied to specific demographic targets, but instead are perceived as a form of allowing "nature to take its course." The Romanian policy under Ceausescu is one of the few examples in recent history of an organized pronatalist policy. [FN113]

In most instances, violations of reproductive rights occur in the context of governmental "family planning programs" run amok. The state family planning program may well espouse "voluntary" family planning where the *900 reality may be coercive practices. [FN114] Abuses in the Chinese family planning program, which is the primary target of Section 601, are repeatedly denied by the Chinese government, which insists the plan is implemented without coercion. [FN115] These family planning programs may or may not contain demographic targets, but the coercion which results from their implementation should be deemed to arise under a "coercive population control program" as used in Section 601.

A "population program" is one which seeks to adjust fertility, mortality, and/or migration rates. [FN116] The regulations to achieve these adjustments may be based on demographic targets or may simply be based on policies which tend to enhance the ultimate goal, whether more people (pronatalist), or less people (antinatalist). Regulation of fertility, whether in the context of an explicit statement of policy and/or demographic goals, or individual measures which directly affect reproduction, should be considered within Section 601. Any other result essentially limits Section 601 to antinatalist programs, while ignoring the significant abuses which may occur under pronatalist policies.

IV. COERCION AND PERSECUTION UNDER SECTION 601

Applicants who seek asylum under Section 601 must establish either that they have been forced to have an abortion or undergo involuntary sterilization, that they have a well-founded fear of being subject to involuntary abortion or sterilization, or that they have been "persecuted" or have a "well-founded fear of persecution" for resistance to coercive population control programs. Thus Section 601 perpetuates the priority given to coercion by physical invasion over other forms of human rights violations. Those individuals who have been coerced into an abortion or sterilization are deemed to be "persecuted"; similarly, those individuals who have a well-founded fear of being coerced into an abortion or sterilization are deemed to have a well-founded fear of persecution. By contrast, those individuals who have resisted these procedures or resisted other coercive measures must establish that they have been persecuted or have a well-founded fear of persecution.

Persecution is not defined by the Refugee Act or Section 601. By established precedent, persecution is considered the infliction of harm or suffering upon an individual in order to punish that individual for possessing a particular belief of characteristic a persecutor seeks to overcome. [FN117] Types *901 of harm which may constitute persecution include serious physical harm, confinement, threats to life, and economic restrictions so severe they constitute a threat to life or freedom. [FN118] In a recent, highly publicized case, a 15-year-old girl, who was the product of her parents' violation of China's one child policy, was granted asylum under Section 601 because she and her family had been subjected to extensive fines and denied access to education. [FN119] Serious violations of basic human rights and extreme discriminatory treatment may also constitute persecution. [FN120] Where an applicant suffers some form of government imposed or sanctioned harm or retribution for a refusal to undergo abortion or sterilization or other resistance to a coercive program, he or she may be successful in proving persecution. This harm can include private acts of violence which are knowingly tolerated by the government where the government refuses to offer protection. [FN121] Domestic violence which occurs because a woman resists restrictive laws can constitute persecution if the state refuses protection. [FN122] However, in the context of a coercive population program, in many instances the applicant will be seeking relief, not from specific acts of retribution, but from the application of a policy which violates human rights.

Considerable controversy exists regarding the context in which an applicant may seek asylum by claiming that generally applicable laws are persecutory. The BIA maintains that generally harsh conditions shared by many others do not constitute persecution, even where a policy may be repugnant to our concepts of freedom. [FN123] Prosecution under generally applicable laws is not considered persecution unless the punishment is disproportionately severe or prosecution is a pretext for persecution. [FN124] Thus in several *902 cases pre-dating Section 601 in which applicants were prosecuted, or feared prosecution, for violation of China's one child policy, the courts concluded the applicant must demonstrate the government acted for a reason other than the "mere enforcement of its population control policies." [FN125]

This approach presents particular problems in the context of social policies which violate human rights norms. The burden of this approach is felt disproportionately by women whose human rights violations arise far more frequently as a result of severe discriminatory policies than as a result of specific targeted deprivations of civil or political rights. [FN126] The recognition of this burden led to the development by the INS in 1995 of guidelines to assist INS officers in the adjudication of women's asylum claims. [FN127] The difficulties in assessing women's asylum claims are directly relevant to adjudication of claims under Section 601. Coercive population policies are most often experienced by women. [FN128] This is particularly true when coercion occurs by virtue of direct government barriers or severe discrimination, situations which are likely to involve laws of general applicability. Under Section 601, applicants subject to coerced abortion or sterilization are deemed to be persecuted and thus qualify for asylum even if the harm was imposed in the context of generally applicable laws. By contrast, applicants seeking asylum on the basis of coercive population policies other than involuntary abortion or sterilization are likely to find their claims of persecution disputed because they were harmed by the application of general laws.

At some point, serious human rights violations constitute persecution, even when they occur as a result of generally applicable laws. Section 601 implicitly recognizes this by exempting victims of coerced abortion or sterilization from the burden of proving persecution. The INS recognition that serious violations of basic human rights can constitute acts of persecution makes no distinction on the manner in which the human rights violation *903 arises. [FN129] Governmental action which significantly interferes with reproductive self-determination should be considered persecution, regardless of whether the interference arises in the context of laws of general applicability or specific targeted conduct. Any other result wreaks a considerable disadvantage upon women subject to severe discriminatory laws which deny reproductive rights.

It is important to distinguish between the types of harms which may constitute persecution under laws of general applicability. Persecution may arise from the punishment imposed for violation of generally applicable laws. Thus under Section 601, coerced abortion or sterilization is likely to occur as punishment for violations of the government's restrictions on the number of children allowed. This type of persecution, even though it is in response to general laws, is very much akin to traditionally accepted forms of persecution because it involves government action targeted at a specific individual.

A court may also conclude that the imposition of the law itself constitutes persecution. [FN130] This type of claim is the most difficult to bring under existing law because it is outside the traditional model of persecution. It is also the type of claim commonly associated with gender-based discrimination and thus highly relevant to establishing coercive population practices by denial to women of basic human rights. The courts, in beginning to analyze the particular issues surrounding gender-based asylum claims, are recognizing that persecution can occur where laws of general application are severely discriminatory. In Fatin v INS [FN131] the Third Circuit found that persecution could occur where compliance with Iran's harsh restrictions on women, including having to wear the traditional Islamic veil, compels an individual to engage in conduct that is abhorrent to the individual's deepest beliefs. [FN132]

The legal obstacles to establishing persecution based on severely discriminatory laws are, in part, a response to concerns that many of the women in the world could seek asylum based on severe discrimination limiting reproductive *904 rights or other fundamental human rights. The reality is quite different. Although the majority of refugees in the world are women, women are far less likely to qualify for asylum than men. [FN133] Section 601 sets a limit on the number of refugees who may be granted asylum on the basis of coercive population practices. [FN134] It also is no accident that the majority of asylum seekers under Section 601 are male. [FN135] Most are men who base their asylum claims on the fact that their wives back in China have been forcibly sterilized. [FN136] The husbands and fathers escape persecution, while women often remain to tend to family responsibilities. [FN137] In addition, women often lack the economic independence to escape oppressive conditions. [FN138] Regardless of the statistical realities of women's asylum claims, the floodgates argument does not provide a principled basis to distinguish gender-based harms from the harms more traditionally associated with asylum claims.

For asylum purposes, Section 601 prioritizes reproductive rights violations that occur in the form of involuntary abortion or sterilization. While these harms are heinous violations of human rights that should clearly provide a basis for asylum, Section 601 offers a stunted view of the human rights violations at stake in the context of coercive population programs. This perspective reflects a more troubling dynamic -- the failure to recognize that women who are denied the ability to control their own reproduction are denied the fundamental human dignity which underlies the protection of all human rights. Government insertion of contraceptives without informed *905 consent, denial of access to contraception or sterilization, eugenic laws which prohibit certain individuals from having children, and spousal consent requirements for use of contraceptives are all examples of coercive population policies which violate the right of an individual to decide freely and responsibly on the number and spacing of children. The violations of fundamental human rights which occur in the application of these policies should constitute persecution under Section 601.

V. CONCLUSION

Section 601 is in many ways an admirable effort to recognize the human rights violations which can occur throughout the implementation of population control programs. At the same time, the priority given to coerced abortion and sterilizations over other forms of reproductive rights violations, and the statute's obvious targeting of China's one-child policy, demean the serious violations of reproductive rights which can occur in contexts other than forced abortion or sterilization. By authorizing asylum claims for those establishing persecution for resistance to a coercive population control program, Section 601 clearly leaves open the possibility that coercive population policies encompass methods other than involuntary abortion or sterilization. The analysis of what constitutes a coercive population program should incorporate current international consensus on the definition and scope of reproductive rights. Any other approach reduces the language of Section 601 to just another political shibboleth.

[FNa1]. Professor of Law, Northwestern School of Law of Lewis & Clark College. The author wishes to thank Franco Capriotti, John Grant and Elaine Sutherland for their thoughtful comments and Katy Proebstel for her excellent research assistance.

[FN1]. See, e.g., Jim Yardley, Doctor Who Gave Abortions is Stain, TIMES UNION, Oct. 25, 1998, at A1.

Dr. Barnett Slepian, an obstetrician with a practice in suburban Buffalo, returned home from synagogue Friday night with his wife, Lynn, and greeted his four sons. Then he stepped into his kitchen, where a sniper's bullet crashed through a back window and struck him in the chest, police said. He fell to the floor, calling for help, but he would die within two hours. Slepian was one of a handful of doctors who provide abortions in the Buffalo area, and law-enforcement officials said Saturday that his slaying was the most deadly example of what they described as an annual pattern of anti- abortion violence in Canada and western New York. Slepian had endured years of picketing and harassment, and earlier on Friday he had received a warning about possible attacks against abortion providers. Slepian, 51, is the third abortion doctor killed in the United States since 1993. In the past four years, three Canadian doctors and a doctor in Rochester, all of whom performed abortions, have been wounded by snipers.

Id. Compare Patrick E. Tyler, Birth Control in China: Coercion and Evasion, N.Y. TIMES, June 25, 1995, at A5, relating the story of Tongmuchong, a village in China's Hunan Province whose residents have been living in isolation for nearly 30 years, ignoring China's "one child per family" policy. In April 1995, Communist Party officials "found" Tongmuchong, and a local family- planning official ordered the women who had the most children to report to a clinic for sterilization. If they refused to go, she said, their houses would be blown up. See id. See also, Matt Miller, Harsh China Policy Works, SAN DIEGO UNION & TRIB., Aug. 29, 1994, at A4.

Take the case of Bai Fangdai, who was granted political asylum in the United States ... after fleeing China in 1993. According to an accounting by her lawyer, Bai was eight months pregnant with a second child when local officials ... dragged her out of her home after midnight and into a clinic. The next morning, the clinic staff induced labor and, the woman testified, when the baby was born alive someone strangled the child.

Id.; see also Xiaorong Li, License to Coerce: Violence Against Women, State Responsibility, and Legal Failures in China's Family-Planning Program, 8 YALE J.L. & FEMINISM 145, 164 (1996).

Some rural officials even mobilize local militia (minbing) or request assistance from county police to hunt down women who have not voluntarily undergone abortion or sterilization as required by the regulations. The armed men, accompanied by family-planning officials, deliver these women to the clinics. In instances documented in different parts of the country, these men have surrounded the homes of women who went into hiding, beating up their husbands, confiscating their furniture and destroying their houses.

Id.

[FN2]. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [[IIRIRA], Pub. L. No. 104-208, § 601, 110 Stat. 3009-546, 3009-689.

[FN3]. See infra notes 15-17 and accompanying text.

[FN4]. IIRIRA § 601(a) (codified at 8 U.S.C. § 1101(a)(42)(B)(Supp. II 1997)).

[FN5]. Refugee Act of 1980, Pub. L. No. 96-212, § 201, 94 Stat. 102 (codified at 8 U.S.C. § 1101(a)(42)(A) (1994)) (stating that persecution must be on account of race, religion, nationality, membership in a social group, or political opinion).

[FN6]. The physical invasion is clearly inconsistent with provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. See infra note 9 and accompanying text.

[FN7]. See, e.g., Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, art. 16(1)(e), 1249 U.N.T.S. 14, adopted Dec. 18, 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 [hereinafter CEDAW] ("States Parties shall ... ensure ... [t]he same rights to decide freely and responsibly on the number and spacing of their children ..."); see also Universal Declaration of Human Rights, G.A. Res. 217 (III), arts. 3 & 12, U.N. Doc. A/810, at 73 (1948) ("Everyone has the right to life, liberty and the security of person," and "No one shall be subjected to arbitrary interference with his privacy, family, ....").

[FN8]. See PROGRAMME OF ACTION, infra note 49 and accompanying text (defining reproductive health).

[FN9]. See, e.g., Universal Declaration of Human Rights, supra note 7, art. 5 ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."); International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 7, 999 U.N.T.S. 171, [hereinafter ICCPR] ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Annex, Supp. No. 51, arts. 1 & 2, U.N. Doc. A/39/708 (1984) (defining torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ..." and requiring each State Party to "take effective legislative, administrative, judicial or other measures to prevent acts of torture."); Declaration on the Elimination of Violence Against Women, Feb. 23, 1994, G.A. Res. 48/104, U.N. GAOR, 48th Sess., arts. 1 & 2, U.N. Doc. A/48/49 (1994) (defining violence against women as "violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women" and giving examples of violence against women, including battering, sexual abuse, marital rape, and female genital mutilation).

[FN10]. See 8 U.S.C. § 1158 (b)(1) (1994).

[FN11]. 8 U.S.C. § 1101(a)(42)(A) (1994). This codification brings U.S. law in conformity with Article 1(A)(2) of the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267. An alien who claims persecution may seek asylum and/or withholding of return. An alien seeking asylum must demonstrate a well-founded fear of persecution while an alien seeking withholding of deportation must establish a "clear probability" of persecution if returned home. Zhang v. Slattery, 55 F.3d 732, 737 (2d Cir. 1995). Asylum allows an alien to remain legally in the U.S. while withholding of return only enables the alien to avoid returning to the country of persecution. See id. The final determination of asylum is committed to the discretion of the Attorney General. Withholding of deportation, however, is mandatory once an alien satisfies the statutory requirements. See id. at 738.

[FN12]. Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985).

[FN13]. Forms of harm that can amount to persecution include serious physical harm, loss of freedom, discriminatory treatment or other serious violations of basic human rights. See IMMIGRATION & NATURALIZATION SERVICE, OFFICE OF THE GENERAL COUNSEL, THE BASIC LAW MANUAL: U.S. LAW AND INS REFUGEE/ASYLUM ADJUDICATIONS 24 (1994) [hereinafter INS Basic Law Manual].

[FN14]. See, e.g., In re Fauziya Kasinga, 1996 WL 379826, Int. Dec. No. 3278 (BIA 1996); Matter of Acosta, 19 I. & N. Dec. at 222-23.

[FN15]. 20 I. & N. Dec. 38 (BIA 1989).

[FN16]. Id. at 44-45.

[FN17]. See Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1336 (4th Cir. 1995); see also Liu v. INS, 133 F.3d 915, 1997 WL 787151, at **3 (4th Cir. 1997) (unpublished opinion).

[FN18]. See Chang, 20 I. & N. Dec. at 44-45; see also Matter of G, 20 I. & N. Dec. 764, 778 (BIA 1993).

[FN19]. Rejection of grounds for asylum if the case involves generally applicable law stems from concerns that fugitives from justice would seek asylum based on their fear that the law in their native country would be enforced against them. See M.A. v. INS, 899 F.2d 304, 312 (4th Cir. 1990). The Refugee Act does not require such a result. See Guo Chun Di v. Carroll, 842 F. Supp. 858, 872 n.29 (E.D. Va. 1994), rev'd Guo Chun Di v. Moscato, 66 F.3d 315, 1995 WL 543525 (4th Cir. 1995) (unpublished opinion). Some courts have recognized, in asylum cases not involving population control policies, that a generally applicable law may form the basis for asylum if the law is based on one of the enumerated grounds for asylum (race, religion, nationality, membership in a particular social group, political opinion) and application of the law or punishment is sufficiently extreme as to constitute persecution. See Chang v. INS, 119 F.3d 1055, 1060-61 (3d Cir. 1997). The Third Circuit quoted the Second Circuit in admonishing that "the memory of Hitler's atrocities and of the legal system he corrupted to serve his purposes ... are still too fresh for us to suppose that physical persecution may not bear the nihil obstat of a 'recognized judicial system."' Id. (quoting Sovich v. Esperdy, 319 F.2d 21, 27 (2d Cir. 1963)).

[FN20]. See generally Liu, 133 F.3d 915; Chen Zhou Chai, 48 F.3d 1331; Chen v. INS, 95 F.3d 801 (9th Cir. 1996). Two lower courts held contrary to Chang but were reversed on appeal. See Xin-Chang v. Slattery, 859 F. Supp. 708 (S.D.N.Y. 1994), rev'd Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995); see also Guo Chun Di v. Carroll, 842 F. Supp. 858 (E.D. Va. 1994), rev'd Guo Chun Di v. Moscato, 66 F.3d 315 (4th Cir. 1995).

[FN21]. The Amendment was also a frustrated response by Congress to the failure of the INS to implement a similarly protective policy proposed by the Department of Justice ("DOJ") almost a year earlier. These guidelines were promulgated by Attorney General Meese on August 5, 1988. See Armstrong- DeConcini Amendment on Asylum for PRC Nationals, 135 CONG. REC. S8244 (daily ed. July 19, 1989) (description of the amendment and the DOJ guidelines).

[FN22]. See Memorandum of Disapproval for the Emergency Chinese Relief Act of 1989, 25 WEEKLY COMP. PRES. DOC. 1853 (Nov. 30, 1989).

[FN23]. Id.

[FN24]. Refugee Status, Withholding of Deportation, and Asylum; Burden of Proof, 55 Fed. Reg. 2803, 2805 (1990). The interim rule also provided that an applicant who has "refused" to abort a pregnancy or to be sterilized and who has a well-founded fear that he or she will be subject to such action or otherwise persecuted may be granted asylum. See id.

[FN25]. See Policy Implementation with Respect to Nationals of the People's Republic of China, Exec. Order No. 12,711, 55 Fed. Reg. 13,897 (1990). Section 4 of Executive Order 12,711 provides that "[t]he Secretary of State and the Attorney General are directed to provide for enhanced consideration under the immigration laws for individuals from any country who express a fear of persecution upon return to their country related to that country's policy of forced abortion or coerced sterilization, as implemented by the Attorney General's regulation effective January 29, 1990."

[FN26]. See Aliens and Nationality: Asylum and Withholding of Deportation Procedures, Final Rule, 55 Fed. Reg. 30,674 (1990). Bureaucratic confusion appears to be the explanation for the disappearance of the interim rule. See Chen Zhou Chai, 48 F.3d at 1337 n.4.

[FN27]. See Chen Zhou Chai, 48 F.3d at 1337 (describing the January 1993 Rule, Sect 208.13(b)(2)(ii) and its disposition upon the arrival of the Clinton Administration).

[FN28]. See id. (commenting on the January 1993 Rule).

[FN29]. Incoming President Clinton requested all regulations which had not yet been published be withdrawn pending review by his advisors. See 58 Fed. Reg. 6074 (1993). The rule was never resubmitted for publication. See Chen Zhou Chai, 48 F.3d at 1338.

[FN30]. 8 C.F.R. § 3.1(h)(1)(ii) (2000) authorizes review by the Attorney General.

[FN31]. See Chen Zhou Chai, 48 F.3d at 1338.

[FN32]. See, e.g., Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995); Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995) (involving challenges to the validity of Chang in light of the administrative history). In 1994, the INS established an administrative program, independent of asylum claims, to address the "compelling humanitarian factors" associated with coercive population programs. See INS Sends Instructions on New Chinese Asylum Seekers Policy, 71 INTERPRETER RELEASES 1056 app. 1 (1994). The program authorized INS district directors to exercise their discretion to release from detention and stay repatriation of nationals from the PRC who credibly demonstrate they face "imminent danger of forced abortion or involuntary sterilization" or have suffered or would suffer harm for refusing to submit to such a procedure or other unreasonable family planning restrictions. Id. at 1057.

[FN33]. UNITED NATIONS, FINAL ACT OF THE INTERNATIONAL CONFERENCE ON HUMAN RIGHTS, art. 16, U.N. Doc.A/Conf. 32/41 (1968).

[FN34]. UNITED NATIONS, REPORT OF THE UNITED NATIONS WORLD POPULATION CONFERENCE, para. (f), U.N. Doc.E/CONF.60/19, U.N. Sales No. E.75.XIII.3 (1974). The World Population Plan of Action is a consensus policy document, not a treaty.

[FN35]. See CEDAW, supra note 7. The treaty requires the state parties to "take all appropriate measures to ... ensure, on a basis of equality of men and women ... [t]he same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights." Id. at art. 16(1)(e).

[FN36]. See UNITED NATIONS, PROGRAMME OF ACTION OF THE INTERNATIONAL CONFERENCE ON POPULATION AND DEVELOPMENT, Sept. 13, 1994, para. 7.3, U.N. Doc. A/CONF. 171/13, U.N. Sales No. E.95.XIII.18.C1 Annex (1994) [hereinafter PROGRAMME OF ACTION].

[FN37]. See id.

[FN38]. Universal Declaration of Human Rights, supra note 7, at art. 3.

[FN39]. Id. at art. 5.

[FN40]. ICCPR, supra note 9, at art. 1(1).

[FN41]. Id. at art. 9(1).

[FN42]. See, e.g., id. at art. 7 (providing that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.").

[FN43]. See id.

[FN44]. Id. at art. 17(1).

[FN45]. International Covenant on Civil and Political Rights: General Comments, U.N. GAOR, Hum. Rts. Comm., general cmt. No. 19(39), para. 5, U.N. Doc. CCPR/C/21/Rev.1/Add.2 (1990).

[FN46]. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A(XXI), U.N. GAOR, 21st Sess., Supp.No.16, at 8, art. 12, U.N. Doc. A/6316, 993 U.N.T.S. 3 (1966) (entered into force Jan. 3, 1976) [hereinafter ICESCR].

[FN47]. CEDAW, supra note 7, at art. 10(h).

[FN48]. Id. at art. 12.

[FN49]. PROGRAMME OF ACTION, supra note 36, at para. 7.2.

[FN50]. See infra note 128 and accompanying text; see also Molly Moore, Teeming India Engulfed by Soaring Birthrate, WASH. POST, Aug 21, 1994, at A1.

[FN51]. See INS Memo, infra note 121.

[FN52]. See Rebecca Cook, Human Rights and Reproductive Self- Determination, 44 AM. U. L. REV. 975, 978, 986-87 (1995).

[FN53]. Note that involuntary castration of men has drawn significant public outrage. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). India's forced sterilizations of men in the 1970's provoked international recrimination. The government shifted its program to a less "controversial" subject -- women. See Moore, supra note 50, at A1.

[FN54]. Beijing Declaration and Platform for Action of the United Nations Fourth World Conference on Women, Oct. 17, 1995, at para. 96, U.N. Doc. A/ CONF. 177/20 (1995).

[FN55]. PROGRAMME OF ACTION, supra note 36, at para. 7.3.

[FN56]. See, e.g., PROGRAMME OF ACTION, supra note 36, at paras. 7.3 & 7.12; CEDAW, supra note 7, at art. 10(h).

[FN57]. Obligations of noninterference are most commonly called "negative" rights--the State must not act so as to restrict exercise of certain rights, e.g., freedom of speech. Performance obligations are generally known as "positive" rights because the State must take action in order for rights to be realized.

[FN58]. Enhancement of the status of women is considered by experts to be the single most significant factor in reducing fertility rates. See generally 3 WORLD POPULATION 1589-789 (James A. Joyce ed. 1976).

[FN59]. For updated information regarding countries that have ratified CEDAW, see Convention on the Elimination of All Forms of Discrimination Against Women (visited July 7, 2000) <http:// untreaty.un.org/English/sample/EnglishInternetBible/partI/chapterIV/treaty9.asp>.

[FN60]. See text accompanying note 112, infra.

[FN61]. See infra note 71 and accompanying text.

[FN62]. See Reed Boland, The Environment, Population and Women's Human Rights, 27 ENVTL. L. 1137, 1141-42 (1997). The most tragic example is that of Romania under Ceausescu where laws prohibited contraceptives or voluntary sterilizations and mandated workplace gynecological exams. Id.

[FN63]. See CORINNE PACKER, THE RIGHT TO REPRODUCTIVE CHOICE 102 (1996).

[FN64]. See id.

[FN65]. See Mona Hymel, The Population Crisis: The Stork, the Plow and the IRS, 77 N.C. L. REV. 13, 54-68 (1998). Economic policies which favor and subsidize childbearing are another example. See also PAUL R. EHRLICH ET AL., THE STORK AND THE PLOW 108 (1995) (noting that "[i]n the 1994 debate on welfare reform in the United States, some commentators claimed that generous welfare benefits had inadvertently encouraged childbearing.").

[FN66]. PROGRAMME OF ACTION, supra note 36, at para. 7.3; see also CEDAW, supra note 6, at art. 16.

[FN67]. PROGRAMME OF ACTION, supra note 36, at para 7.3.

[FN68]. See id. at para. 7.12.

[FN69]. Id.

[FN70]. See IIRIRA § 601.

[FN71]. See, e.g., Karen Hardee et al., Contraceptive Implant Users and Their Access to Removal Services in Bangladesh, 20 INT'L FAM. PLAN. PERSP. 59 (1994); BETSY HARTMANN, REPRODUCTIVE RIGHTS AND WRONGS 73-83, 209-13 (1987); PACKER, supra note 63, at 100 (describing Norplant safaris in Indonesia); see also Coercive Population Control in China: Hearings Before the Subcomm. on International Operations and Human Rights of the Comm. on International Relations, 104th Cong. 18 (1995) [hereinafter Hearings] (statement of Nicholas Eberstadt, demographer, American Enterprise Institute). One study documented that, among women who obtained removal of contraceptive implants, 15ad to make at least three requests before they were removed. See Hardee, supra, at 62. Note also the description of the Depo Provera Campaign in Nepal where posters advertise simply "the Three Month Needle." Sushma Joshi, My Friend Sangini: Women's Bodies in Population Control, KATHMANDU POST, July 12, 1998, at 1.

[FN72]. See, e.g., Charlotte Hord, Reproductive Health in Romania: Reversing the Ceausescu Legacy, STUD. FAM. PLAN 231 (1991) (discussing Romania under the Ceausescu dictatorship); HARTMANN, supra note 71, at 162 (discussing periodic exams in China to ensure that IUDs are still in place).

[FN73]. See, e.g., Universal Declaration of Human Rights, supra note 7, at art. 5 ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."); ICCPR, supra note 9, at art. 7 ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.").

[FN74]. See infra note 108 and accompanying text regarding Saudi Arabia.

[FN75]. In China, for example, a law that went into effect in 1995 places severe restrictions on certain persons' ability to marry and have children. If a mandatory pre-marital exam reveals a serious genetic defect, marriage is prohibited unless "long-lasting contraceptive measures" or tubal ligation procedures are used. If already married, "appropriate measures" must be adopted. Those diagnosed with certain mental and communicable diseases must postpone marriage. See Presidential Decree No. 33 of 27 October 1994 Promulgating the Law of the People's Republic of China on the Protection of Maternal and Child Health, translated in 46 INT'L DIG. HEALTH LEGIS. 39 (1995). Geneticists worldwide oppose this new law. See, e.g., Tim Beardsley, China Syndrome, SCI. AM., Mar. 1997, at 33.

[FN76]. Access to abortion is as controversial internationally as it is domestically. Induced abortion is one of the oldest, and most frequently used, method of fertility control. Nonetheless, the Cairo Programme of Action provides that "[I]n no case should abortion be promoted as a method of family planning." PROGRAMME OF ACTION, supra note 36, at para. 8.25. Abortion was the most controversial issue at Cairo. The compromise paragraph adopted at Cairo emphasizes the health issues relating to unsafe abortion: "All governments ... are urged to strengthen their commitment to women's health, to deal with the health impact of unsafe abortion as a major public health concern and to reduce the recourse to abortion through expanded and improved family planning services." Id. Thus, while access to abortion on request was not recognized at Cairo as part of legitimate family planning services, it is clear that denial of access to abortion in situations where the woman's life or health were in danger would violate Cairo's definition of reproductive health.

[FN77]. During the Ceausescu regime in Romania, for example, sterilization was permitted only for serious health reasons. See Boland, supra note 62, at 1141.

[FN78]. See Li, supra note 1, at 152-55 (discussing China's "one birth" policy).

[FN79]. See PROCEEDINGS OF THE SYMPOSIUM ON POPULATION & HUMAN RIGHTS, infra note 80; see also HARTMANN, supra note 71 at 66-72.

[FN80]. Compare, for example, two positions espoused at the Vienna Symposium on Population and Human Rights. See UNITED NATIONS, DEPT. OF INTERNATIONAL ECONOMIC & SOCIAL AFFAIRS, POPULATION & HUMAN RIGHTS: PROCEEDINGS OF THE SYMPOSIUM ON POPULATION & HUMAN RIGHTS, VIENNA, 29 JUNE - 3 JULY 1981, U.N. DOC ST/ESA/SER.R/51 (1983). The United Nations Secretariat asserted that coercive population programs are those which violate human rights. See id. at 37-38. The Director of Research of the National Institute for Demographic Studies in Paris argued that compulsion in population policies may be justified if over- population is a terrible threat to humanity. See id. at 94-95.

[FN81]. See HARTMANN, supra note 71, at 262-63.

[FN82]. See Amartya Sen, Fertility and Coercion, 63 U. CHI. L. REV. 1035, 1059 (1996).

[FN83]. In his book, Alan Wertheimer defines coercion by a two-pronged test which requires both that A has no reasonable option but to succumb to B and that B's proposal is wrongful. Thus coercion is inherently normative, which helps explain why some countries insist that compelled reproductive behavior is not coercive if the governmental interest is of over-riding importance. See ALAN WERTHEIMER, COERCION 32-35 (1987).

[FN84]. Hearings, supra note 71, at 11 (testimony of John Aird, Demographer and former senior research specialist on China at the U.S. Bureau of Census). The Committee Report includes denial of business licenses, crop permits and other means of livelihood and destruction or expropriation of property as examples of coercive policies. See S. Rep. No. 104-95 § 603 (1995).

[FN85]. See Boland, supra note 62, at 1142, 1145 (describing practices in India and "fines and imprisonment" for those who failed to meet demographic targets).

[FN86]. See HARTMANN, supra note 71, at 67; see also L.M. Cirando, Informed Choice and Population Policy: Do the Population Policies of China and the United States Respect and Ensure Women's Right to Informed Choice?, 19 FORDHAM INT'L L.J. 611, 646 (1995) (describing the situation in China where "[c]ouples or individuals who submit to sterilization after their first child are rewarded with cash sums ....").

[FN87]. See HARTMANN, supra note 71, at 67.

[FN88]. See RUTH DIXON-MUELLER, POPULATION POLICY AND WOMEN'S RIGHTS 19 (1993). The Norplant safaris in Indonesia were the work of aggressive government recruiters seeking to meet target quotas of acceptors. See Hearings, supra note 71, at 18 (statement of Nicholas Eberstadt, Demographer).

[FN89]. See PROGRAMME OF ACTION, supra note 36, at para. 7.12.

[FN90]. UNITED NATIONS POPULATION FUND, THE STATE OF WORLD POPULATION, at ch. 3 (1997), (last modified April 19, 2000) <http:// www.unfpa.org/swp/1997/chapter3.htm#principle>.

[FN91]. See Hearings, supra note 71, at 11 (testimony of John Aird).

[FN92]. Id. at 18 (statement of Nicholas Eberstadt). Additionally, Article 23 of the Indonesian Family Planning Program includes "arousing community members to participate in the family planning drive or to motivate others in this respect" and "providing motivation for the creation of family resilience and independence conducive to the realization of prosperous families" as responsibilities of the community. See 21-22 ANNUAL REVIEW OF POPULATION LAW 457, 460 (1994-95).

[FN93]. Even where the law does not require the husband's approval of contraception, in fact, the husband's approval is often the key factor determining whether contraception will be used. See Ashraf Lasee & Stan Becker, Husband-Wife Communication About Family Planning and Contraceptive Use in Kenya, 23 INT'L FAM. PLAN. PERSP. 15, 18 (1997).

[FN94]. This is particularly true today in countries where fundamentalist religious doctrine is an integral element of state policy. See T.K. Sundari Ravindra & Marge Berer, Contraceptive Safety and Effectiveness: Re-Evaluating Women's Needs and Professional Criteria, 3 REPRODUCTIVE HEALTH MATTERS 6 (1994); see also, Marta Lamas, The Feminist Movement and the Development of Political Discourse on Voluntary Motherhood in Mexico (visited July 7, 2000) < http://www.hsph.harvard.edu/Organizations/healthnet/_ Spanish/pop/docs/lamas.html> (discussing the religious and patriarchal influences in Mexico which make "Voluntary Motherhood" an unacceptable concept).

[FN95]. See U.S. DEPARTMENT OF STATE, 1999 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: SAUDI ARABIA, at sec. 5 (visited July 7, 2000)

<http:// www.state.gov/www/global/human_rights/1999_hrp_report/saudiara.html>.

[FN96]. See id.

[FN97]. Cultural relativism forbids value judgments regarding specific cultural practices. See generally, Alison Dundes Renteln, The Unanswered Challenge of Relativism and the Consequences for Human Rights, 7 HUM. RTS. Q. 514 (1985). The conflict between cultural relativists and universalists "may divert attention from pervasive violations of women's rights in national practices, cultures, traditions and religions ... Moreover, the conflict inhibits those living in diverse cultural settings from collaborating to hold states responsible for violations of women's rights." Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125, 173-74 (1994).

[FN98]. In Brazil, for example, 70% of reported incidents of violence against women occur in the home, and almost all were committed by a husband or lover. The Brazilian criminal system sanctions defenses (including "defense of honor") which reduce the punishment or result in acquittal of wife-murderers. Brazilian justice officials blame society as a whole rather than the judges. See Celina Romany, Women as Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, 6 HARV. HUM. RTS. J. 87, 115-16 (1993). Under the U.N. International Law Commission's Draft Articles on State Responsibility, "the conduct of a person or a group of persons not acting on behalf of the State shall not be considered as an act of the State under international law." Cook, supra note 97, at 142. Numerous exceptions, however, can result in states having legal responsibility. See id. at 142-43, 150-52.

[FN99]. See INS memo, infra note 121, at 4-5.

[FN100]. See Cook, supra note 52, at 978-79, 983.

[FN101]. See infra notes 121-22 and accompanying text regarding government culpability for persecution.

[FN102]. The U.S. Supreme Court's constitutional protection of reproductive self-determination in cases such as Griswold v. Connecticut, 381 U.S. 479 (1965), and Planned Parenthood v. Casey, 510 U.S. 1309 (1994), contrasts to persistent legislative efforts at both the state and national level to restrict access to abortion and contraceptive services.

[FN103]. See Paula Abrams, The Tradition of Reproduction, 37 ARIZ. L. REV. 453, 456-61 (1995). Biological imperative also may be a relevant factor. See HARTMANN, supra note 71, at 9 ("High infant and child mortality rates are major underlying causes of high birth rates.").

[FN104]. Forced marriage policies in Afghanistan under the Taliban regime are another, more recent, example. U.S. DEPARTMENT OF STATE, 1999 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: AFGHANISTAN, at sec. 5 (visited July 7, 2000)

<http://www.state.gov/www/global/human_rights/1999_hrp_ report/afghanis.html>.

[FN105]. See Boland, supra note 62, at 1141.

[FN106]. See 1999 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: SAUDI ARABIA, supra note 95.

[FN107]. The difficulties in accessing contraception in Ireland are described by Jo Murphy-Lawless in Fertility, Bodies and Politics: The Irish Case, (visited July 7, 2000)

<http:// www.hsph.harvard.edu/Organizations/healthnet/reprorights/docs/murphy.html>. The availability of safe, legal abortion is clearly an element of reproductive self-determination. However, the continuing international controversy over abortion has led to compromises on the characterization of abortion and access to abortion. For example, abortion was the most controversial issue at the Cairo Conference and the Cairo Programme of Action provides that abortion should "in no case" be promoted as a method of family planning. Governments are then exhorted to assure that, where legal, abortion procedures are safe, and to recognize the health consequences associated with illegal abortions. See PROGRAMME OF ACTION, supra note 36, at para. 8.25.

[FN108]. See 1999 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: SAUDI ARABIA, supra note 95. On April 28, 1975, the Government of Saudi Arabia issued a Royal Decree banning contraceptives in the country and prohibiting the smuggling of pills or devices into the country. The Decree follows an alleged ruling of the World Moslem League that birth control is inimical to Islam. See 2 ANNUAL REVIEW OF POPULATION LAW 31 (1975).

[FN109]. See U.S. DEPARTMENT OF STATE, 1999 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: CHINA, at sec. 5 (visited July 7, 2000)

<http:// www.state.gov/www/global/human_rights/1999_hrp_report/china.html>.

[FN110]. According to the World Health Organization, for example, "[i]n many parts of Africa, one woman in sixteen dies from the complications of pregnancy or childbirth." Safe Motherhood (visited July 7, 2000) <http:// www.who.int/aboutwho/en/promoting/safe.htm>.

[FN111]. The legislative history primarily focuses on China's program without defining the elements of a population control program. See, e.g., Hearings, supra note 71, at 5-18 (statements of John Aird and Nicholas Eberstadt).

[FN112]. For example, China's State Council issued a "Ten-Year Plan" and "The Eighth Five-Year Plan," in 1992, specifying the population quotas that each provincial government was expected to meet. See Li, supra note 1, at 153 n.36 (citing Guowuyuan Guanyu Xiada Shinianguihua he "Bawu" Jihua Fengdigu Renkou Zhibiao de Tongzhi [Notification by the State Council Regarding the Ten- Year Plan and the Eighth Five-Year Plan Regional Birth Quota] (adopted Jan. 6, 1992), Zhonghua Renmin Grongheguo Falu Fagui Quanshu [The Complete Book of Laws and Legal Regulations of the P.R.C.] at 914-16). The Central Committee of the Communist Party and the State Council issued a joint directive in 1991, ordering the provincial governments to tighten enforcement of the "one-birth" policy. See id. at 150 n.18 (citing Zhonggong Zhongyang. Guowuyuan Guanyu Jiaqiaqiang Jihua Shengyu Guong Zuo Yange Kongzhi Kenkou Zengzhang de Juedeng [[Decision on Stepping up Family Planning Work and Strictly Controlling Population Growth], Zhongua Renmin Gongheguo Falu Fugui Quanshu [The Complete Book of Laws and Legal Regulations in the P.R.C.] at 911-12 (1991)). Ethiopia's national population policy includes demographic targets reducing the total fertility rate of 7.7 children per woman to 4.0 by the year 2015. See 20 ANNUAL REVIEW OF POPULATION LAW 149, 154 (1993).

[FN113]. See Boland, supra note 56, at 1140-41. Other historical examples include Nazi Germany and Japan. See D.A. Jeremy Telman, Abortion & Women's Legal Personhood in Germany: A Contribution to the Feminist Theory of the State, 24 N.Y.U. REV. L. & SOC. CHANGE 91 (1998); see also Sara L. Walsh, Liquid Lives and Liquid Laws: The Evolution of Abortion Law in Japan & The United States, 7 INT'L LEGAL PERSP. 187, 201 (1995).

Within months of the Nazi seizure of power, the new government offered a massive incentive program for German couples to marry and have children. Section 5 of the Law for the Reduction of Unemployment of June 1, 1933, granted marriage loans .... The loans came in the form of vouchers that could be used to purchase household goods. They were interest-free and were to be repaid at a rate of one percent per month. On June 20, 1933, the Nazis added a supplementary decree reducing the amount to be repaid by one-quarter for each child born.

Telman, supra, at 109.

Instead of encouraging its female citizens to join in the industrial machinery during the 1930s and 1940s, the Japanese government insisted that women remain at home to reproduce .... The Meiji government established the Japanese model of the peasant woman who was modest, courageous, frugal, literate, industrious, and productive by having children. The militaristic government continued the earlier governmental management of the Japanese family as state weapon. The family was a means to control the populace and expand productivity and the government adopted pronatalist policies to encourage women to reproduce.

Walsh, supra, at 201. The systematic rape and forced pregnancy of women in Bosnia-Herzogovina is a more recent example. See Nancy Kelly, Gender-Related Persecution: Assessing the Asylum Claims of Women, 26 CORNELL INT'L L.J. 625, 632-33 (1993).

[FN114]. For example, the government in Peru insists its family planning program is voluntary, in spite of widespread complaints of coercive practices. See Calvin Sims, Using Gifts as Bait, Peru Sterilizes Poor Women, N.Y. TIMES, Feb. 15, 1998, at A6.

[FN115]. See Li, supra note 1, at 186-87.

[FN116]. See DIXON-MUELLER, supra note 88, at 5.

[FN117]. Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985). This definition applies whether the applicant is seeking to establish persecution, or a well-founded fear of persecution. An applicant seeking to prove a "well- founded fear" must establish evidence both of a subjective fear and facts which demonstrate a reasonable person in like circumstances would fear persecution. See Yong Hao Chen v. INS, 195 F.3d 198, 201 (4th Cir. 1999).

[FN118]. See Acosta, 19 I. & N. Dec. at 222. For example, persecution has been found where the applicant's government prevented him from obtaining employment. See Kovac v. INS, 407 F.2d 102 (9th Cir. 1969).

[FN119]. See Julie Sullivan, Political Asylum & A Child Behind Bars, THE OREGONIAN, Dec. 10, 1999 at A1. The ILJ issued an oral opinion and the case has not been appealed.

[FN120]. See INS Basic Law Manual, supra note 13, at 24. Persecution occurs where discrimination leads to consequences of a substantially prejudicial nature, such as restrictions on the right to earn a living, practice religion, or have access to normally available educational facilities. See UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS, at para. 54 (1979) [hereinafter UNHCR Handbook].

[FN121]. See IMMIGRATION & NATURALIZATION SERVICE, CONSIDERATIONS FOR ASYLUM OFFICERS ADJUDICATING ASYLUM CLAIMS FROM WOMEN at 16-17, reprinted in 72 INTERPRETER RELEASES 771 app. 1 (1995) [hereinafter INS Memo].

[FN122]. See id. at 17; see also IMMIGRATION & REFUGEE BOARD OF OTTAWA, CANADA, GUIDELINES ISSUED BY THE CHAIRPERSON PURSUANT TO SECTION 65(3) OF THE IMMIGRATION ACT: WOMEN REFUGEE CLAIMANTS FEARING GENDER-RELATED PERSECUTION 14 n.8 (1993).

[FN123]. See Acosta, 19 I. & N. Dec. at 222. This position is primarily grounded in a floodgates concern, since an expansive definition of persecution would allow a significant portion of the world's population to qualify for asylum. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).

[FN124]. See Rodriquez-Roman v. INS, 98 F.3d 416 (9th Cir. 1996) (holding that an individual facing severe punishment for the crime of illegal departure establishes persecution on account of political opinion); see also Hernandez-Ortiz v. INS, 777 F.2d 509, 516-17 (9th Cir. 1985) (finding an inference of political motivation based on absence of conduct that would provide legitimate reason for government action).

[FN125]. Liu, 133 F.3d 915, 1997 WL 787151, at *3 (4th Cir. 1997) (unpublished opinion); see also Chen v. INS, 95 F.3d 801, 806 (9th Cir. 1996).

[FN126]. Persecution based on gender is not even recognized as one of the grounds upon which an individual may seek refugee status. Thus, women have been forced to establish persecution based on political opinion, or membership in a particular social group. Extensive scholarship exists on the difficulties of establishing asylum for gender-based persecution. See, e.g., Kelly, supra note 113; Linda Cipriani, Gender and Persecution: Protecting Women Under International Refugee Law, 7 GEO. IMMIGR. L.J. 511 (1993); Pamela Goldberg, Asylum Law and Gender-Based Persecution Claims, 94-09 IMMIGR. BRIEFINGS 1 (1994).

[FN127]. See INS Memo, supra note 121.

[FN128]. For example, in China, even though both men and women are potentially subject to sterilization, it is generally the woman who is sterilized. See Ellen Keng, Population Control Through the One-Child Policy in China: Its Effects on Women, 18 WOMEN'S RTS. L. REP. 205, 209 (1997). Between 1979 and 1984, thirty-one million women and 9.3 million men were sterilized. See Jason D. Lazarus, Xin-Chang Zhang v. Slattery: An Illustration of the Need for a Change in the United States' Immigration Laws to Provide Appropriate Consideration of Asylum Claims By Chinese National Fleeing China's Coercive Population Control, 5 J. TRANSNAT'L L. & POL'Y 65, 70 n.34 (1995).

[FN129]. See INS Basic Law Manual, supra note 13, at 24; see also UNHCR Handbook, supra note 120, at para. 59 (providing that prosecution under laws which do not conform with accepted human rights standards can constitute persecution); see also Chang v. INS, 119 F.3d 1055, 1061 (3d Cir. 1997) (concluding that the Refugee Act does not distinguish between persecution "disguised" as "under law" and persecution not so disguised).

[FN130]. Discriminatory laws which deprive women of fundamental human rights or lead to consequences of a substantially prejudicial nature constitute persecution. See INS Basic Law Manual, supra note 13, at 24; see also UNHCR Handbook, supra note 120, at para. 54.

[FN131]. 12 F.3d 1233 (3d Cir. 1993).

[FN132]. See id. at 1242. Such conduct might be regarded as a form of "torture," a traditional human rights violation. See id. The Court emphasized that women who found the requirement of wearing the veil, or chador, inconvenient, irritating, mildly offensive, or even highly offensive, could not claim persecution. Cf. Fisher v. INS, 79 F.3d 955 (9th Cir. 1996), where the Ninth Circuit found, on a similar claim by an Iranian woman, that prosecution for violation of Iran's severely discriminatory gender laws, could not constitute persecution. The Court concluded that "[t]he mere existence of a law permitting the detention, arrest, or even imprisonment of a woman who does not wear a chador in Iran does not constitute persecution any more than it would if the same law existed in the United States." Id. at 962.

[FN133]. See Kelly, supra note 113, at 625-27. Nancy Kelly argues this great disparity in successful asylum claims by women is due to the failure of asylum law to account for gender-related claims. See id. at 627.

[FN134]. Not more than one thousand applicants may be admitted under Section 601 per fiscal year. See 8 U.S.C. § 1157(a)(5) (1997).

[FN135]. Asylum applications are overwhelmingly male. See Kelly, supra note 113, at 629 n.16.

[FN136]. See In re C-Y-Z, Int. Dec. No. 3319, 1997 WL 353222 (BIA 1997). Past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse. See also In re X-G-W, Int. Dec. No. 3352, 1998 WL 378104 (BIA 1998). The INS position under Section 601 is also that coerced abortion or sterilization of a spouse constitutes past persecution. See Immigration & Naturalization Service, Asylum Based on coercive Family Planning Policies-Section 601 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, at 4 (1996), reprinted in 73 Interpreter Releases 1597 app. 1 (1996).

[FN137]. As one judge noted in In re C-Y-Z:

The men come first; the husband and father forges the way for the wife and children, who follow when he has established a place to live and a means to support them. In an ideal world, perhaps she who has suffered the more egregious physical persecution should be the first to leave the zone of danger and be afforded refuge. In any event, the applicant's conformity with historical and cultural norms in preceding his wife and family certainly has no bearing ... on the merits of his asylum claim ....

Int. Dec. No. 3319 (BIA 1997) (Lory D. Rosenberg, Board Member, concurring).

[FN138]. See Anne M. Gomez, The New INS Guidelines on Gender Persecution: Their Effect on Asylum in the United States for Women Fleeing the Forced Sterilization & Abortion Policies of the People's Republic of China, 21 N.C. J. INT'L L. & COM. REG. 621, 646 (1996). The difficulties in women's emigration are borne out in Canada, which adopted new guidelines for gender-related persecution in 1993. In 1994, only 2% of the asylum claims were gender-related, and there was no increase in immigration rates of women. See id. at 627, 645.