In reaction to the government of China’s one-child policy, Congress amended the asylum law in 1996 so 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.” In other words, a person who is or could be subject to a forced abortion or forced sterilization may be eligible for asylum in the United States.
While this law was created with China in mind, there is no requirement that asylum seekers fear persecution in that nation. Indeed, over the years, advocates (including yours truly) have tried to use this law to obtain protection for people from many different countries. A recent article by Karla Colley in the Columbia Human Rights Law Review sets forth the arguments for an expansive use of the forced abortion-forced sterilization basis for asylum. Due to the prevalence of these practices around the world, Ms. Colley concludes that “attorneys and physicians need to screen all female clients for involuntary sterilization during the intake process and the forensic medical evaluation.” I think she is exactly right. Women who have been victims of forced abortion or forced sterilization can use that as a basis for an asylum claim, and as advocates, we have a responsibility to pursue all avenues of relief for our clients. (more…)
In Nicaragua, abortions are illegal under all circumstances. That includes cases of rape and incest, and when the life or health of the pregnant woman is at risk. Women and girls who have abortions are subject to long terms of imprisonment. Health professionals who perform abortions also face stiff criminal penalties. Of course, with abortion (as with any remotely political subject these days), there are strong opinions on all sides of the issue, and little agreement on the facts.
Amnesty International issued a report documenting the opposition to the law from Nicaraguan health care professionals, and documenting some unintended consequences of the law–certain treatments are now less available to pregnant women because the treatment might put the fetus at risk. Amnesty also cites the case of a pregnant woman with cancer who could not get treatment because of the law. On the other hand, a pro-life website called Life Site News claims that the maternal mortality rate in Nicaragua has dropped by almost 30% since the law went into effect (though I have not seen any evidence that the law actually caused the drop in mortality rates).
Apparently, Nicaragua is not in the running this year.
While I personally think this law is a bad idea, the morality or efficacy of the law is not my concern here. Rather, I wonder whether women who are prevented from terminating their pregnancies, or health care professionals who perform abortions, might be eligible for asylum in the United States.
Nicaraguan Women
To obtain asylum, a woman would need to show a well-founded fear of persecution based on a protected ground. The protected ground that might apply here is “particular social group.” I can think of two possible “particular social groups:” (1) women who have had an abortion, and who now face jail time, and (2) women who are pregnant and face risks to their life or health (physical or mental health) because they are not permitted to abort their pregnancies.
While the first category seems to me a cognizable social group, such women would have a hard time demonstrating that the prison time they face rises to the level of “persecution,” as that term is defined by case law. I’ve actually spent some time in a Nicaraguan prison (long story), and what I saw would likely not qualify as persecution. Of course, I am no expert, and if prison conditions are bad enough, they may be considered persecution. See, e.g., Phommasoukha v. Gonzales, 408 F.3d 1011, 1015 (8th Cir. 2005).
The second category–pregnant women who face health problems because they are unable to obtain abortions–is more interesting. Again, this is probably a cognizable particular social group. The harm, which includes physical and mental harm, and even the possibility of death, could, I think, qualify as persecution. The Board of Immigration Appeals has held that severe economic deprivation, including deprivation of liberty, food, housing, and other essentials of life may constitute persecution. See Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007). Health care is certainly an “essential of life,” and if a woman is denied the care she needs, she can demonstrate a possibility of persecution.
So it seems to me that women in the second category–and perhaps also in the first–would qualify for asylum under the Immigration and Nationality Act.
Nicaraguan Health Care Workers
The law also provides for incarceration of health care workers who perform abortions, even so-called therapeutic abortions, which are done to protect the life or health of the mother. As I discussed above, I doubt that prison time in Nicaragua would be considered “persecution,” so the health care workers would have difficulty establishing this element of an asylum claim. Even assuming they could demonstrate persecution, I think they would have a hard time showing that the persecution is based on a protected ground.
One possible protected ground is political opinion, i.e., that women should be allowed to have abortions. However, the Nicaraguan government does not arrest health care workers (or anyone else) on account of their opinion that women should be permitted to obtain abortions; the government arrests people who actually perform abortions.
The other possible protected ground is particular social group–health care workers who have performed abortions. The problem here is that the health care workers are seeking classification as a particular social group based on the criminal act that causes them to fear persecution. In Bastanipour v. INS, 980 F.3d 1129 (7th Cir. 1992), the Seventh Circuit held:
Whatever its precise scope, the term “particular social groups” surely was not intended for the protection of members of the criminal class… merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other…. We suppose there might be an exception for some class of minor or technical offenders… who were singled out for savage punishment in their native land.
Bastanipour does not completely close the door on the Nicaraguan health care workers, but it certainly presents a hurdle for them to demonstrate that they constitute a “particular social group.”
So far, I do not know of any United States asylum cases arising from Nicaragua’s abortion law (or similar abortion laws in other countries), but I would not be surprised if we see some soon. If you are interested to learn more about this topic, check out Rights Undone, a blog about the “struggle to repeal the ban on life-saving abortions in Nicaragua.”
