participating in persecution

A recent case – Chen v. U.S. Atty. Gen., — F.3d —, 2008 WL 150205 (11th Cir. 2008) – discussed a woman’s application for asylum status. Chen lived in China and worked at a governmental family planning office. Her job was to watch over the pregnant women who had violated the country’s family planning policies until they were forced to abort the fetuses. After about a month of working there, she released a woman who was eight months pregnant and was subsequently fired. She feared worse, and so she fled to Thailand and then the US two years later (in 2005).

She applied for asylum status and was denied on the grounds that she had assisted in persecution and was thus ineligible. Chen at *2. She had the burden of proof for showing that those grounds did not apply to her case. Id. The standard for determining “assistance” was set out in Fedorenko v. United States, 449 U.S. 490 (1981), which dealt with a concentration camp guard. “An individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians.” Chen at *3 (quoting Fedorenko, 449 U.S. at 512 n. 34). The Eleventh Circuit set its standard as “a particularized, fact-specific inquiry into whether the applicant’s personal conduct was merely indirect, peripheral and inconsequential association or was active, direct and integral to the underlying persecution.” Id.

Comparing Chen’s situation to a case in the Second Circuit, the court determined that her actions amounted to assistance in persecution, supported by substantial evidence, especially because her job of monitoring the women was essential to the ultimate goal of forcing abortions upon them. Id. at *4. Her release of the woman was minimized to a single act that did not “absolve her of the consequences of her personal culpability for the previous assistance.” Id.

Perhaps the standard does not take enough factors into account. Chen may have taken on the employment voluntarily, but because of her coming so close to the government and then disregarding her job, she was persecuted. A change of heart should come into play when determining refugee status. When someone realizes that what they’re doing is wrong and changes their behavior accordingly, they should not be denied asylum. The standard seems too strict, and if the court will not recognize a person’s ability to at least begin to atone for their actions, then perhaps the entire concept of parole should be done away with. That might be dramatic, but why apply different standards to different groups of people?

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