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?