Uighurs and The Forgotten Protection

By Elizabeth Freud, J.D. Class of 2021

I have to be upfront and admit that until recently the vast majority of my knowledge of the Uighur Muslims came directly from John Oliver. In June 2018, he did a scathing report on the current Chinese President, Xi Jinping, and touched briefly on the treatment of the Uighurs-a Muslim minority who live primarily in the region of Xinjiang and have long been discriminated against by the Chinese government.1 Oliver then followed up this reporting in July 2020 and dove deeper into the current treatment of Uighurs by the Chinese government.2 Effectively, China has been systematically detaining Uighurs in “re-education camps” and using them for forced labor.3 A report by the New York Times in July 2020 found that companies throughout China had used Uighurs to satisfy the high demand for PPE, some of which ended up in the United States.4 Uighur women in these camps have also been reportedly subjected to forced sterilization.5

In 2019, the New York Times unearthed 403 pages of internal Chinese documents detailing the systematic detention of Uighur Muslims.6 At that time, the Times reported that since 2016, authorities had confined as many as one million ethnic Uighurs and other Muslim groups from Xinjiang into internment camps and prisons.7 China has rejected criticisms of the camps and describes these camps as “job-training centers” that include mild methods of fighting Islamic extremism.8 However, the international community doesn’t quite see it the same way. In recent months, former U.S. Secretary of State, Mike Pompeo, referred to the situation as genocide,9 and the Dutch parliament passed a motion saying that the treatment of Uighur Muslims amounts to genocide.10 As of mid-March, the EU agreed on a list of persons and entities to be sanctioned for the human rights abuses, including ones committed against the Uighurs.11 The consensus among activists is that China is attempting to eradicate Uighur culture and calls for further sanctions have been made.

It is quite clear that the Uighurs are facing immense persecution, and the U.S. may see a rise in the coming years of Uighurs seeking asylum. In order to qualify for asylum in the U.S., an applicant must demonstrate either past persecution or well-founded fear of future persecution.12 If China continues their current treatment of the Uighurs, immigrants’ rights advocates would likely not have a difficult time proving past or a well-founded fear of future persecution. However, with mounting public outrage over the treatment of Uighurs, calls for sanctions, and talks of boycotting the 2022 Beijing Winter Olympics,13 one can only hope that the attempted cultural eradication of the Uighurs could end soon. If immigration attorneys are faced with clients who were clearly persecuted under these conditions, but the presumption against a well-founded fear of future persecution is rebutted because the detainment of Uighurs has ceased, the typical route to asylum may be closed. Under these circumstances, Humanitarian Asylum will become a very important tool for immigration advocates.

Although asylum normally requires an applicant to show a risk of future persecution, Humanitarian Asylum is utilized when the risk of future persecution may no longer exist, but it would be inhumane to force an asylum applicant to return to the country of their past persecution. There are two avenues to show that an applicant qualifies for humanitarian asylum: (1) the applicant has shown compelling reasons for being unwilling to return to their country of origin arising out of the severity of past persecution, or (2) the applicant has demonstrated that there is a “reasonable possibility” of other serious harm.14 The first option would be especially relevant to Uighur asylum seekers. A grant of asylum based on the severity of past persecution is reserved for applicants who have suffered particularly extreme persecution, and can establish both the severe harm and the long-lasting effects of that harm.15

This is a high bar to meet, and, therefore, Humanitarian Asylum is not a widely granted form of protection from removal. One immigration law firm website even calls it the “forgotten protection.”16 However, this avenue of relief has been granted to victims of some of history’s worst atrocities, including the Chinese “Cultural Revolution.”17 The Chinese Cultural Revolution took place from 1966-1976 under Chinese Community Party (CCP) Chairman Mao Zedong.18 Mao used Red Guards, groups of the country’s urban youths, to root out those in the country who were not “sufficiently revolutionary” and those suspected of being “bourgeois.”19 The Red Guards had little oversight and their actions led to much persecution and terror.20 Notably, during this time, places of worship were demolished, closed, or re-appropriated and religious practices in general were banned.21

Matter of Chen is the seminal case in the area of Humanitarian Asylum. In that case, the respondent was the son of a Christian minister in China during the Cultural Revolution.22 The Red Guards ransacked his home, put him on house arrest for six months as a child, abused his entire family, and on specific occasions, both dragged his father through the streets and severely burned him.23 However, the respondent did not face any fear of future prosecution because the Cultural Revolution had ended by the time that he applied for asylum in the United States.24 Despite this, because of the severity of his past persecution, the court granted him asylum.25

The current era of Uighur persecution has been likened to Mao’s Cultural Revolution. In the New York Times article detailing the 403 pages of leaked Chinese documents, the writer noted that the detainment of Uighurs was the country’s most far-reaching internment campaign since the Mao era.26 If we were to see the end of Uighur persecution in the coming years, immigrants’ rights advocates can utilize cases such as Matter of Chen in showing that the treatment of the Uighurs is particularly extreme, allowing the Uighurs to remain in the U.S. Although this may be the “forgotten protection,” it may become very important for Uighur asylum seekers in the near future.

[1] Why You Can’t Talk About John Oliver in China, BBC News (June 21, 2018), https://www.bbc.com/news/world-asia-china-44557528.

[2] Adrian Horton, John Oliver Explains China’s ‘Appalling’ Treatment of Uighurs, Reuters (July 27, 2020), https://www.theguardian.com/tv-and-radio/2020/jul/27/john-oliver-china-uighurs-last-week-tonight.

[3] Id.

[4] Muyi Xiao et al., China Is Using Uighur Labor to Produce Face Masks, NY Times (Aug. 13, 2020), https://www.nytimes.com/2020/07/19/world/asia/china-mask-forced-labor.html.

[5] Ivan Watson et al., Xinjiang Government Confirms Hus Birth Rate Drop but Denies Forced Sterilization of Women, CNN (Sept. 21, 2020), https://www.cnn.com/2020/09/21/asia/xinjiang-china-response-sterilization-intl-hnk/index.html.

[6] Austin Ramzy & Chris Buckley, ‘Absolutely No Mercy’: Leaked Files Expose How China Organize Mass Detentions of Muslims, NY Times (Nov. 16, 2019), https://www.nytimes.com/interactive/2019/11/16/world/asia/china-xinjiang-documents.html.

[7] Id.

[8] Id.

[9] Who are the Uighurs and Why is the US Accusing China of Genocide?, BBC News (Fed. 9, 2021), https://www.bbc.com/news/world-asia-china-22278037.

[10] Reuters Staff, Dutch Parliament: China’s Treatment of Uighurs is Genocide, Reuters (Feb. 25, 2021), https://www.reuters.com/article/us-netherlands-china-uighurs-idUSKBN2AP2CI.

[11] EU Agrees China Sanctions Over Human Rights Abuses, Deutsche Welle (Mar. 17, 2021), https://www.dw.com/en/eu-agrees-china-sanctions-over-human-rights-abuses/a-56897653.

[12] 8 C.F.R. § 208.13.

[13] Deirdre Shesgreen & Tom Schad, 2022 Winter Olympics Without the USA? Push to Boycott Grows Over China’s Alleged Human Rights Abuses, USA Today (Mar. 8, 2021), https://www.usatoday.com/story/news/politics/2021/03/08/beijing-olympics-china-human-rights-record-scrutinized-push-us-boycott/6911847002/.

[14] 8 C.F.R. §§ 208.13(b)(1)(iii)(A)-(B).

[15] Kane v. Holder, 596 F.3d 141, 152.

[16] Carolina Antonini, Humanitarian Asylum, the Forgotten Protection, Antonini & Cohen (Sep. 11, 2014), https://antoniniandcohen.com/en/blog/refugees-and-asylum/humanitarian-asylum-the-forgotten-protection/#:~:text=To%20obtain%20asylum%20in%20the,based%20on%20a%20protected%20ground.&text=The%20persecution%20must%20include%20evidence%20of%20past%20and%20future%20persecution.

[17] See Kane, 596 F.3d at 152 (“A grant of asylum under this theory is reserved for “atrocious forms of persecution.”); Matter of Chen, 20 I&N Dec. 12 (BIA1989).

[18] Editors of Encyclopaedia Britannica, A Brief Overview of China’s Cultural Revolution, Britannica, https://www.britannica.com/story/chinas-cultural-revolution.

[19] Id.

[20] Id.

[21] Eleanor Albert, Christianity In China, Council on Foreign Relations (Oct. 11, 2018), https://www.cfr.org/backgrounder/christianity-china.

[22] Matter of Chen, 20 I&N 12 (BIA1989).

[23] Id.

[24] Id.

[25] Id.

[26] See Ramzy & Buckley, supra note 6.