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XIU QIN CHEN v. SLATTERY

September 6, 1994

Xiu Qin Chen, Petitioner,
v.
William Slattery, etc., et ano., Respondents.



The opinion of the court was delivered by: CHARLES P. SIFTON

 SIFTON, District Judge.

 In this habeas petition filed by a former citizen of the People's Republic of China (the "PRC") seeking political asylum in the United States, petitioner contends that the Board of Immigration Appeals (the "BIA") used an improper standard in denying her applications for asylum and withholding of deportation. In the alternative, petitioner contends that, even under the standard employed by the BIA, her asylum claim should not have been rejected. The respondents argue that the BIA's decision should be upheld because the BIA used the proper standard, and substantial evidence supports the determination that petitioner is not entitled to asylum or withholding of deportation as a "refugee" within the meaning of section 101(a)(42) of the Immigration and Naturalization Act of 1952, as amended (the "Act"), 8 U.S.C. 1101(a)(42). For the reasons discussed below, the petition is granted, and petitioner's application for asylum is remanded to the BIA for further proceedings consistent with this opinion.

 BACKGROUND

 This is the second action before this Court and one of a number pending in other jurisdictions stemming from the Department of Justice's continuing failure to resolve the controversy over asylum applications based on the PRC's family planning practices. See Wang v. Reno, CV-93-5523(CPS) (E.D.N.Y.). The genesis of the controversy is the BIA's decision in Matter of Chang, Int. Dec. 3107 (BIA May 12, 1989), 1989 WL 247513 (BIA 1989) ("Chang"), in which the Board found that the PRC's "one couple, one child" family planning policy did not include officially-sanctioned mandatory sterilization and was not "on its face persecutive." That decision has been assailed from various quarters, yet is still followed by the BIA. See Matter of G--, Int. Dec. 3215 (BIA December 8, 1993) (reaffirming reliance on Chang). Petitioner -- like the plaintiffs in Wang v. Reno and, as described below, members of Congress, one President, and two Attorneys General -- seeks to overturn Chang.

 In Chang, the BIA held that, while the PRC's family planning policy could be implemented in a way that would serve as a basis for asylum under the INA, "to the extent . . . that such a policy is solely tied to controlling population, rather than as a guise for acting against people protected by the Act, we cannot find that persons who do not wish to have the policy applied to them are victims of persecution or have a well-founded fear of persecution within the present scope of the Act."

 In its decision in Chang, the BIA also declined to follow an August 5, 1988 memorandum of the Attorney General issued to the Commissioner of the INS directing that "INS asylum adjudicators" give "careful consideration" to the asylum applications of PRC nationals who refused to abort a pregnancy or undergo sterilization as an "act of conscience." *fn1" In Chang, the BIA held that it was not bound by the policy directives of the Attorney General.

 Congress reacted to the BIA decision by adding an amendment which would have overruled Chang to the Emergency Chinese Immigration Relief Act of 1989. The bill itself was spurred by the events in Tiananmen Square in June of 1989. See generally Di v. Carroll, 842 F. Supp. 858, 863 (E.D. Va. Jan. 14, 1994). Congress passed the bill, along with the amendment, at the end of November 1989. *fn2" Id. Although President Bush rejected the new legislation, he directed the Attorney General to give "enhanced consideration" under the immigration laws to "individuals from any country who express a fear of persecution upon return to their country related to that country's policy of forced abortion or coerced sterilization." Memorandum of Disapproval for the Emergency Chinese Immigration Relief Act of 1989, 25 Weekly Compilation of Presidential Documents at 1853-54 (1989).

 In January 1990, then Attorney General Thornburgh promulgated an interim rule (the "January 1990 Interim Rule") which was published in the Federal Register with requests for comments. See 55 Fed. Reg. 2803 (1990). Interim Rule 2803 became effective on January 29, 1990, and amended C.F.R. § 208.5 as it then read to provide:

 
(a) Burden generally. . . .
 
(b) Related to coercive family planning policies. . . .
 
(1) Aliens who have a well-founded fear that they will be required to abort a pregnancy or to be sterilized because of their country's family planning policies may be granted asylum on the ground of persecution on account of political opinion.
 
(2) An applicant who establishes that the applicant (or the applicant's spouse) has refused to abort a pregnancy or to be sterilized in violation of a country's family planning policy, and who has a well-founded fear that he or she will be required to abort the pregnancy or to be sterilized or otherwise persecuted if the applicant were returned to such country may be granted asylum.

 Id.

 On April 11, 1990, President Bush issued Executive Order 12,711, which directed the Attorney General to take steps to slow or stop the deportation or exclusion of PRC nationals from the United States. The Executive Order also reiterated the directive to the Attorney General and the Secretary of State to "provide for enhanced consideration under the immigration laws for individuals" who expressed a fear of persecution on return to their homelands due to policies of forced abortion or coerced sterilization "as implemented by [the January 1990 Interim Rule]." *fn3" Executive Order 12,711 of April 11, 1990, published on April 13, 1990 at 55 Fed. Reg. 13897 (1990).

 In July 1990, then Attorney General Thornburgh published a final rule which established the procedures to be used in determining asylum under section 208 and withholding of deportation under section 243(h) of the INA, as amended by the Refugee Act of 1980. See 55 Fed. Reg. 30674 (July 27, 1990) (the "July 1990 Final Rule"). The July 1990 Final Rule not only made no mention of the January 1990 Interim Rule, but it also changed sections of the C.F.R. which had been changed by the January 1990 Interim Rule so that the resulting regulations concerning asylum procedures made no mention of coercive family planning practices. The result of the July 1990 Final Rule was effectively to eliminate the January 1990 Interim Rule without explanation.

 As noted in Wang, considerable confusion was created by the July 1990 Final Rule. In April 1991, the Chief Attorney Examiner of the BIA made a written inquiry to the Appellate Counsel of the INS requesting the position of the INS on the status of the January 1990 Interim Rule in light of the July 1990 Final Rule. The Appellate Counsel responded that the January 1990 Interim Rule had not been amended or repealed and that the interim regulation remained the policy of the INS. In a memorandum to Regional Counsel and District Counsel dated November 7, 1991, the Office of the General Counsel of the INS stated that Department of Justice and INS "policy with respect to aliens claiming asylum or withholding of deportation based upon coercive family planning policies is that the application of such coercive policies does constitute persecution on account of political opinion" and directed that INS trial attorneys act accordingly.

 In January 1993 the Attorney General signed a final rule (the "January 1993 Rule"), similar to the January 1990 Interim Rule, which specifically stated that its intent was "to supersede the decision in Matter of Chang . . . to the extent that it held that the threat of forced sterilization pursuant to a government family planning policy does not give rise to a well-founded fear of persecution on account of political opinion. . . ." The January 1993 Rule specifically mentioned comments made on the January 1990 Interim Rule and then amended the regulations so an applicant (and the applicant's spouse, if also applying) would be found to be a refugee on the basis of political opinion if the applicant could establish that

 
pursuant to the implementation by the country of the applicant's nationality or last habitual residence of a family planning policy that involves or results in forced abortion or coerced sterilization, the applicant has been forced to abort a pregnancy or to undergo sterilization or has been persecuted for failure or refusal to do so, and that the applicant is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such persecution.

 The January 1993 Rule also provided that an applicant (and the applicant's spouse, if also ...


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