Li v. Ashcroft

A 2004 U.S. Court of Appeals for the Ninth Circuit en banc decision expanded protection for women who seek asylum on the basis of China’s repressive population control policies. The Ninth Circuit ruled that a young woman who had been subjected to a forced and invasive pregnancy examination in retaliation for her vocal challenge to China’s population control policy qualified for relief. See Li v. Ashcroft, 356 F.3d 1153 (2004).

CGRS Involvement

CGRS was co-counsel with San Francisco immigration attorney Robert B. Jobe in the applicant’s petition for a rehearing of the three-member panel decision before the larger en banc panel. CGRS argued that an invasive exam, which involved inserting fingers into Ms. Li’s vagina, constitutes persecution, expanding the court’s view of qualifying persecution under the coercive population control regulations.

Basic Facts

In 1998, Xu Ming Li was forcibly taken from her home in a rural Chinese village, restrained, and subjected to an invasive pregnancy examination against her will. She was threatened with continued examinations and a forcible abortion, as well as forced sterilization of her boyfriend, if she was found to be pregnant. This incident occurred after rumors spread in Li’s village that she was pregnant by her boyfriend, Yu. Li had also stated her intention to have multiple children, a violation of the Chinese population control policies. About two months after the forced examination, Li and Yu learned that a warrant had been issued for their arrest, presumably because they had made plans to get married without government approval. The couple fled to the United States. Security officials subsequently made many visits to Li’s home looking for her.

Procedural History

An Immigration Judge (IJ) denied Li and Yu’s applications for asylum, withholding of removal, and relief under the Convention Against Torture. They appealed to the Board of Immigration Appeals (BIA), which used the same reasoning as the IJ and dismissed the appeal. A three-judge panel of the Ninth Circuit affirmed the BIA’s decision.

The Ninth Circuit then vacated their decision and agreed to rehear the case en banc. The court determined that Li’s statements against the Chinese population control policy constituted “other resistance to a coercive population control policy” under the law and that the invasive examination she was forced to undergo and the threats made against her were a form of persecution. The Court determined that she qualified for asylum under a proper interpretation of the statute.

Legal Documents

Li v Ashcroft en banc.pdf

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