Judge Alito and Forced Sterilizations

There is still more on Judge Alito and international law. It seems remarkable that one appellate court judge could be faced within the span of two years two terribly wrenching asylum applications. But Judge Alito was. As I recently posted, his decision in Chen v. Ashcroft addressed the denial of asylum to someone engaged to a person forced to undergo an abortion. One year later in the case Zhang v. Gonzalez, 405 F.3d 150 (3d Cir. 2005), Judge Alito was faced with an asylum application by a woman who allegedly was ordered by Chinese authorities to undergo a forced abortion and a forced sterilization.

The immigration authorities denied Zhang’s application, finding her story of forced abortion and forced sterilization not credible. Zhang had documents showing she was fined hundreds of dollars for having too many children, and another document ordering Zhang to “go to the local hospital for [a] sterilization operation. Otherwise we will be forced to complete the sterilization operation, and punish severely as well.” The immigration authorities rejected these documents because they were not properly authenticated by the U.S. consulate in China and therefore denied her asylum application.

On appeal, the Third Circuit, per judge Alito, reversed. While recognizing the extraordinary deference that is owed to immigration authorities, Judge Alito concluded that the evidence compelled a contrary conclusion. Finding that the documents were improperly excluded, he ordered the agency to explain more fully why these documents were excluded.

“The document ordering Zhang or her husband to submit to a sterilization procedure on pain of severe punishment would corroborate Zhang’s testimony that the Chinese authorities threatened her with forced sterilization and would bolster her claim that she has a well-founded fear that she would again be threatened with forced sterilization if she were sent back to her native country. Because of the significance that the documents in question would have if they are authentic and accurate, it is obvious that the IJ must have given them reduced weight or no weight at all.The IJ never explained which of these options he chose or why he did so.”

The significance of this case again concerns deference. Judge Alito strongly favors deference, but Zhang suggests he will not defer to agency findings if compelled by a conclusion that the decision was clearly wrong. Excluding without explanation documentary evidence that strongly corroborated Zhang’s story of forced sterilization precluded a finding of deference.

Considering Zhang and Chen in tandem, the wrenching stories are remarkable, but his approach to executive deference is not.