Yuhui Chen’s 13-year fight to prove poverty is persecution

 NEW YORK — It was a little after 7 and the temperature below freezing one recent Monday morning when Yuhui Chen left the small home he shares with a handful of other Chinese immigrants. A massive winter storm was supposed to hit the city later that day, and anxious New Yorkers had stripped grocery store shelves of essentials.

Chen, a hooded blue-gray sweatshirt pulled up around his face and faded jeans cinched tight around his narrow frame, unwrapped the chain from his bicycle and began his short ride to work through Brooklyn’s ethnically diverse Sunset Park neighborhood. He steered down Eighth Avenue, around double-parked delivery trucks and past Chinese-run convenience stores, then over to Sixth Avenue, the heart of the neighborhood's Latino section.

The first snowflakes started to fall as he locked his bike to a dumpster in front of a white, stone row house. Minutes later, two of Chen’s co-workers arrived and, after exchanging a few words and sharing a cigarette, the three pulled a tarp off the dumpster and set to work pulling debris out of the gutted house. After a couple hours the snow let up. They knocked off a little after 6 p.m.

Chen, who is 52, works like this every day except Sunday and has done so pretty much since he arrived in the United States in April 2001. He has also, since his arrival, been trying to convince immigration authorities that he should be allowed to stay in the country, saying that he faced persecution under China’s coercive population-control rules, called the one-child policy, and that he should be granted asylum here because of it. (Yuhui is not his real given name; fearing the attention might affect his family in China, he asked that his name be withheld.)

His case has been bouncing from an immigration court to the board that oversees those courts to an appeals court; the appeals court recently sent the case back to the immigration judge. Chen says his case is on his mind a lot, but it doesn’t compare with the worries he carried back in China. “Back home I had all kinds of pressures,” he says, speaking in Mandarin through an interpreter. “When I went out to work I had to worry about my family and the fines I had to pay. Here I don’t have all of those burdens.” His voice is warm and soft, a bit rough from the cigarettes. “Without that pressure, I can handle the tiring work.”

To people who’ve watched the Chinese-asylum boom up close, there’s a lot about Chen’s case that looks familiar. Like many asylum seekers, he’s from southeastern Fujian province. He was a farmer like all of his neighbors, growing rice and some vegetables on the same third of an acre his father worked before him. “We’d feed the family first, and if there was anything left, we’d sell it,” Chen says. During the mid-1980's, he made about 1,000 yuan in a typical year, roughly $300 at the time.

Chen and his wife had their first child, a daughter, in 1988. Local rules at the time allowed married couples to have a second child five years after the first, provided they had government approval. But they were eager to have a son, Chen says, so they didn’t wait or get government approval. Their second child, a girl, was born in 1990. They’d heard what could happen to families who broke the one-child policy: fines, intimidation, forced sterilization. “So we started moving around,” Chen says. “We would move somewhere and live for a little bit, then we moved to another place for a little bit.”

In 1993, Chen’s wife got pregnant a third time. “My wife hid in the house all day; she didn’t dare to go outside,” he says. “Even when she wanted to buy vegetables from vendors walking past the house, she’d ask them to hand them through the window.” Their third child, a son, was born in the fall, shortly before the family returned temporarily to their home village to mark the coming new year.

How, then, to prove economic hardship is actually persecution? That’s tricky. The appellate judges acknowledged as much in their latest opinion, writing that “a consistent standard for identifying when economic injury rises to the level of persecution has proved elusive.” Chen was already poor — how much poorer does a government policy have to make him for it to warrant asylum?

“One judge in the 3rd Circuit said that there has to be evidence of near starvation,” says James Hathaway, a law professor and director of the Program in Refugee and Asylum Law at the University of Michigan, as an example of the divergent standards judges use to weigh economic persecution.

In fact, Hathaway says, U.S. asylum law lacks clear standards, economic or otherwise, for determining if someone’s experience rises to the level of persecution, even though doing so is key to deciding an asylum case. “The bottom line is we don’t have a measuring stick for persecution in the United States other than the subjective perception of a particular judge of what he thinks is really bad,” Hathaway said.

He says that Canada, Australia, New Zealand and many European countries look to international laws for guidance. “The U.S. is the only developed country that has refused to use international human-rights law as its barometer,” Hathaway says. “It does mean that one person will be protected when someone in the exact same circumstances may not be. It’s a huge problem for the U.S.”

The flow of Chinese asylum seekers dropped 40 percent in fiscal year 2013 and another 30 percent in 2014, according to Department of Justice numbers. Muzaffar Chishti, a lawyer and analyst at the Migration Policy Institute, thinks this may be due in part to a 2012 crackdown on a New York City-based network that helped Chinese nationals file fraudulent asylum claims. “That may have put some chilling effect on it. I think there’s also some speculation that Chinese one-child policy, which is the basis with most of these cases, is not as severe as it used to be.” The Chinese government’s announced loosening of the policy has been cited in several recent court decisions denying one-child-policy asylum claims.

Mei Fong, a fellow at New America Foundation who’s working on a book about the one-child policy, says that it is evolving, but still alive. “Despite the fact that it is loosening up, there still appears to be abuse,” Fong says. “The nature of the abuse may be changing. For example, cases of forced abortion and forced sterilization seem to be much less than they have been, but cases of people being asked to pay a very high social compensation fee — that’s still going on.”

Chen talks to his wife a couple times a week and dreams of her being able to join him in the U.S. She keeps him updated on their three children: the younger two are in college and the oldest is getting her master’s. He says he’s spent about 200,00 yuan on their education. “If I had stayed in China it would have been impossible for my kids to go to college,” Chen says. “That’s why I keep appealing to the court.” He laughs when asked how he thinks China has changed since he’s been away. “I know that China is developing very fast now, but no matter how fast it develops it’s still not as good as the U.S.” He points to health care that older people get here and, yes, to this country’s legal system.

As his case stretches toward its 14th year, he says he’s not optimistic he’ll end up winning. He knows that the immigration judge assigned to his case is tougher than most. “If I had to go back home, I wouldn’t go back to where I’m from. I’d live in a city,” he says. In a city he'd be away from the government officials who'd hounded his family, he figures. Plus, there would be more opportunities for work there. But a lot of time has passed since he was last in China, and that presents some challenges. “I’m older than the average worker in China now, so it would be hard to find a job.”