(CN) - A Chinese national who claims to have been persecuted in her home country for removing an intrauterine device mandated by the government for population control may find asylum in the United States after arguing her case before the 2nd Circuit.
The Manhattan-based federal appeals panel remanded the case back to the Board of Immigration Appeals so it can clearly state why China's policy of forcing the birth control device on women does not constitute persecution.
An intrauterine device, or IUD, is placed in the uterus to prevent pregnancy.
Immigration judges have determined that involuntary IUD insertion does not warrant asylum, echoing laws written by Congress that consider abortion and sterilization the only two involuntary procedures for population control.
The appeals court is tasking the lower court "to articulate a consistent position on whether and under what conditions forced insertion of an IUD constitutes persecution," the ruling states.
In early 2000 Mei Fun Wong and her 9-year-old son Ling Go attempted to enter the United States through Seattle without valid entry documents, according to the ruling.
Before Immigration and Naturalization Service, Wong conceded her removability and sought asylum based on fear of future persecution.
"The basis for her fear was professed past persecution evidenced by her subjection to involuntary insertion of an IUD in furtherance of China's population control policy," Judge Reena Raggi wrote for the appellate court's three-judge panel.
The immigration appeals board had denied asylum while assumed that Wong's story had bee truthful. Earlier in the case history, however, an immigration judge noted the story might not be credible since IUD usage is mandated in Wong's province only for families that had two children, and Wong only had one child when she says officials forced her to get the device.
Wong testified in support of her application that she married in 1989 and gave birth to her son the following year. Her husband purportedly fled China for the United States in April 1990 to avoid persecution for his support of the student movement that culminated in the 1989 Tiananmen Square massacre.
A year after her husband's departure, Chinese family planning officials required her to have an IUD inserted.
"Finding the device painful, Wong requested its removal during one of her required quarterly gynecological examinations," the ruling said. "With official permission denied, Wong arraigned for a private doctor to remove the IUD."
When Chinese officials discovered her actions, Wong refused to have another IUD inserted. "I was afraid of the pain and problems it caused," she claimed in her declaration supporting asylum, as quoted by the 2nd Circuit.
"As a result, she was detained without harm for three days until she 'finally succumbed to wearing another IUD' and her mother-in-law paid a 'bribe,' ostensibly a fine for Wong missing gynecological examinations, to secure her release," the 35-page opinion states.
Five years later, in 1998, Wong attempted to leave China to avoid what she characterized as the "continual torture and torment" of wearing an IUD.
Stopped in Hong Kong, she was jailed for four months before being returned to the mainland, where she was fined 20,000 RMB for leaving China illegally and for continuing to miss gynecological exams. Wong said she paid the fine under threats that she would otherwise be jailed and her son prohibited from attending school.
Wong asserted that Chinese family planning officials continued "threatening" and "menacing" her until she managed to leave China to "end the torture." Although she did not provide any particulars as to what qualified as "threatening" and "menacing" behavior, Wong fled to the United States and had her IUD removed in New York sometime in 2000.
Wong and her husband conceived a second child the next year.
"Wong testified that if she were removed to China before delivering her child, she would be forced to undergo an abortion; if she were removed after delivering her child, she would be involuntarily sterilized," the ruling states.
"The difficulty with identifying the boundaries of such a general concept is evident in our precedent," Raggi wrote. "We have emphasized that persecution is 'an extreme concept that does not include every sort of treatment our society regards as offensive.'"
The appeals court judges seemed cautious of stepping on the toes of the executive branch, heeding the Supreme Court's warning that the "judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance or [potential] diplomatic repercussions."
The 2nd Circuit judges noted that Congress is free to amend the law and identify other conduct, such as involuntary IUD insertion, as persecution.