CINCINNATI (TDB) -- A federal appeals court rebuffed the Bush Administration's attempt to deport a male illegal immigrant from China who says he has fathered two children in Ohio and faces sterilization if sent home. The 6th U.S. Circuit Court of Appeals in Cincinnati instructed the Justice Department's bureau of immigration appeals (BIA) to reopen Xin Mao Wu's petition for political asylum.
A three-judge panel ruled unanimously the agency did not legally explain its decision to reject the asylum plea. (Case No. 05-3939.)
In November, a different 6th Circuit panel said the government could deport Xue Ying Lin, a mother whose two children were born in Ohio. She argued she faces prosecution by the People's Republic of China because she violated that nation's policy of limiting families to one child. (Case No. 05-4505.)
The panel on the mother's case was comprised of three male judges. The latest ruling came from a panel that included two women, former Ohio Supreme Court Justice Deborah Cook and Cornelia G. Kennedy of Detroit.
The U.S. State Department's most recent Human Rights Report about China criticizes the country's coercive birth control policies. It confirms that forced sterilizations and abortions occur. The Daily Bellwether's story about the mother's asylum case mentions the annual human rights reports prepared by American diplomats.
Wu slipped into the U.S. in August 1995 and worked in a Cleveland restaurant, where he was arrested in February 1996. He did not show up for a deportation hearing and never left. In 2003 he applied for asylum, saying he had two children. He claimed if he returned to China either he or his wife would be forcibly sterilized.
"The BIA has been charged with providing expert interpretations of the immigration laws, and this court must give the BIA deference in making such decisions," the appeals court said. "Accordingly, where, as here, a reviewing court cannot sustain an agency decision because the agency has failed to consider a legal issue central to resolution of the petitioner's claim, the appropriate remedy is to remand to the agency for further consideration." A link to the full text of the decision is HERE.