Conference Call: In Asylum Case, A Question Of Marriage

The following column, featuring a selected petition up for consideration at the Justices’ private conference on May 8, appears in today’s edition of Legal Times (available to subscribers here). To see the full list of “petitions to watch” for Friday’s conference, click here.

The U.S. Supreme Court has stayed far away from the fight regarding same-sex couples and the definition of marriage. But Yi Qiang Yang, a Chinese national seeking asylum in the United States, has recently asked the Court to enter the marriage-definition fray in a different context: Namely, does a spouse in a “traditional marriage”-a common Chinese practice involving a ceremony, but no official marriage license-have the same asylum rights as a legally married spouse? A per curiam opinion of the U.S. Court of Appeals for the 11th Circuit recently affirmed an agency decision that such individuals should not be granted asylum, and the Court will decide whether to grant review of this question when it considers the case of Yang v. Mukasey, No. 07-756, at its private conference on May 8. The following week, the Court will consider taking up a similar appeal in Dong v. Department of Justice.

In Yang’s petition filed by Charles Rothfeld of the firm Mayer Brown, with the assistance of the Yale Law School Supreme Court Clinic, Yang relates a story overflowing with hot-button issues. The ordeal began in 2000 when Yang’s “wife,” Jiang Hui Ling, became pregnant-a violation of China’s family planning laws as the couple was not legally married. (Only men over age 22 and women over 20 can get marriage licenses in China; Yang and Ling were 20 and 17 at the time.)

The couple unsuccessfully attempted to hide the pregnancy from Chinese officials, who forcibly took Ling to a hospital and aborted her 8-month-old fetus. According to the petition, Yang had a “vocal confrontation with . . . officials” at the hospital, but he ultimately “managed to escape” and fled to the United States on a fake passport.

Upon discovering that he had entered the country illegally, U.S. immigration officials commenced removal proceedings against Yang, who in response claimed that he was entitled to asylum because he faced persecution as the “husband” of the victim of a coerced abortion. In 1997, the Board of Immigration Appeals specifically ruled that “an alien whose spouse was forced to undergo an abortion…can establish persecution” and will be given refugee status.

But the question remained whether partaking in a traditional wedding ceremony without obtaining a marriage license entitled Yang to qualify as a “spouse” and thus receive asylum. In his petition for certiorari, Yang contends the answer is clear: “Culturally, socially, and functionally, ‘traditional marriage’ and ‘legally sanctioned marriage’ are indistinguishable.”

Emphasizing that such marriages are extremely common in China because the government’s “stringent” marriage rules require many young, committed couples to pursue this option, Yang urges the Court to grant certiorari and hold that such marriages should be treated identically for the purposes of immigration policy. Adding support to his claim that the Supreme Court must step in, Yang argues that the 11th Circuit’s decision conflicts directly with the holdings of the 7th and 9th Circuits.

Opposing certiorari, Solicitor General Paul Clement contends the 11th Circuit “correctly determined that an applicant who participates in a traditional marriage ceremony, but is not legally married, is not automatically eligible for asylum.” Responding to Yang’s argument that traditional marriages are virtually “indistinguishable” from the legally recognized variety, the solicitor general notes that “a legally married couple occupies a fundamentally different position in society than a couple that is not married.”

While Clement acknowledges the existence of “some current disagreement on this issue” among the circuits, he nonetheless contends that review is not warranted because “[t]he Seventh and Ninth Circuits may well reconsider their decisions” in light of a more recent decision of the Board of Immigration Appeals (In re S-L-L-). That decision, according to Clement, makes clear that the “spousal eligibility rule does not extend to participants in traditional marriage ceremonies.”

In another twist, Attorney General Michael Mukasey-who possesses authority to overrule BIA decisions-is currently considering whether to modify the agency’s position. This creates the somewhat odd circumstance in which the attorney general’s lawyer, in the form of the solicitor general, indicates that his client may modify the agency’s position but maintains that Yang’s petition raising this issue should nonetheless be denied.

Yang argues that a denial before Mukasey reaches a conclusion would be “grossly inequitable” and may prevent him from benefiting from that ruling because of “an accident of timing.” “If the Court determines not to grant the petition,” he states, “it should defer disposition of the petition until the Attorney General renders his decision.”© 2008 ALM Properties Inc.