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LIU DI WANG v. RENO

September 6, 1994

Liu Di Wang et alia, Plaintiffs,
v.
Janet Reno et alia, Defendants.



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

 SIFTON, District Judge.

 In this action challenging the standard used by the Board of Immigration Appeals ("BIA") to evaluate asylum applications based on coercive family planning practices, plaintiffs seek declaratory, injunctive, mandamus, and habeas relief. Plaintiffs also seek a temporary restraining order, a preliminary injunction, class certification, and leave to supplement their pleadings and add additional parties. The Attorney General opposes these motions and has filed a motion to dismiss contending that this Court lacks subject matter jurisdiction to provide the relief sought. For the reasons discussed below, the Attorney General's motion to dismiss is granted except as to those two plaintiffs who are located within the Eastern District of New York and have received final orders of exclusion. All other motions are denied with leave to refile.

 BACKGROUND

 Plaintiffs are citizens of the People's Republic of China (the "PRC") who are in various stages of the process of seeking asylum and orders withholding deportation under the Immigration and Naturalization Act, 8 U.S.C. §§ 1101 et seq. (the "INA"), based on what they contend are the coercive family planning practices of the PRC. The original complaint was filed on behalf of ninety-seven plaintiffs. Of those ninety-seven, eleven were residing in the Eastern District of New York and one, plaintiff Chen, Xiu Qin, a.k.a. Chen, Xie Xing ("Chen") (Chinese names are hereinafter given in the Chinese style, with family name prior to first name), was being held here in the Wackenhut detention facility in Springfield Gardens, Queens. At the time the complaint was filed, the majority of the plaintiffs either resided or were being detained within the Southern District of New York; the rest were located in eight states and Peru. *fn1" Plaintiffs also seek to add a total of sixty-nine additional plaintiffs to the action, forty-three of whom resided in the Eastern District and one, Zhou, Shan Bin ("Zhou"), who was being detained here. *fn2"

 Chen is a twenty-nine year old citizen of the PRC who arrived at Kennedy International Airport seeking entry into the United States on July 31, 1993. She was taken into INS custody and placed in exclusion proceedings. She contends that she fled the PRC "fearing continuing repercussions, after having suffered (with her husband) threats and demands of sterilization, as well as being pursued and subjected to harsh economic sanctions." Memo In Support, Chen v. Slattery, 862 F. Supp. 814. She alleges that the local government in the PRC closed down her family hairdressing business as a result of her opposition to the PRC's birth control policy. After her arrival in the United States, her request for asylum was denied by an immigration judge on October 26, 1993, and her appeal to the BIA was dismissed on March 14, 1994.

 According to his habeas petition, Zhou is a citizen of the PRC who sought entry into the United States on July 19, 1993. In his initial asylum application, he contended that he was involuntarily sterilized after the birth of his second child. However, the sterilization was apparently unsuccessful and his wife became pregnant again. During that pregnancy, she attempted to avoid detection. When she was discovered, local officials threatened to subject her to an immediate abortion. Zhou and his wife ultimately paid a large fine to avoid the abortion, and the child was born. Ten days later, Zhou left the country, afraid that he would be sterilized against his will. After arriving in the United States, his request for asylum was denied by an immigration judge on November 5, 1993, and his appeal to the BIA was dismissed on April 6, 1994.

 According to his habeas petition, Liu is a thirty-one year old native of the PRC from the Fouzhou Province who was a farmer and a tile or brickmaker. After traveling to Burma and Thailand, Liu boarded the Golden Venture in an attempt to reach the United States. He was arrested in the Eastern District of New York after that vessel ran aground in the waters off Queens, New York on June 6, 1993. *fn3" Liu asserts that he left the PRC to avoid sterilization. His asylum application was denied by an immigration judge on August 9, 1993, and on November 3, 1993, the BIA dismissed his appeal of that denial.

 The heart of plaintiffs' suit is a challenge to the reasonableness and the applicability of the decision of the BIA in Matter of Chang, Int. Dec. 3107 (BIA May 12, 1989), 1989 BIA LEXIS 13, 1989 WL 247513 (B.I.A.), 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." The BIA noted that the policy could be implemented in a way that would serve as a basis for asylum under the INA but stated that "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 addition, the BIA stated that, even if an asylum-seeker could show that he would be forced to undergo mandatory sterilization, that evidence, by itself, would not be sufficient to establish a well-founded fear of persecution under the terms of the INA because the alien would not have shown that he was treated differently from other citizens or that the application of the policy in his case was actually an attempt to achieve an end other than the legitimate governmental goal of general population control.

 In reaching that determination, the BIA specifically declined to follow the reasoning of an August 5, 1988 memorandum of the Attorney General issued to the Commissioner of the INS which directed 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." *fn4" The BIA held that it was not bound by the policy directives of the Attorney General.

 Plaintiffs' challenge to Chang is based on the response of the Executive and Legislative Branches to the decision. In an explicit attempt to overrule Chang, Congress added the Armstrong-DeConcini Amendment to the Emergency Chinese Immigration Relief Act of 1989 (H.R. 2712), a bill which grew out of 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, with the Armstrong-DeConcini Amendment, at the end of November 1989. *fn5" Id. Although President Bush rejected the bill through a pocket veto, 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). Pl. Ex. B.

 In January 1990, then Attorney General Thornburgh promulgated an interim rule (the "January 1990 Interim Rule") and had it Published in the Federal Register with requests for comments. See 55 Fed. Reg. 2803 (1990). That rule, 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 directing the Attorney General to take certain steps to slow or stop the deportation or exclusion of PRC nationals from the United States. The order also directed 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] *fn6" Executive Order 12,711 of April 11, 1990, published on April 13, 1990 at 55 Fed. Reg. 13897 (1990).

 In July 1990, 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, however, made no mention of the January 1990 Interim Rule. It also changed sections of the C.F.R. which had been amended by the January 1990 Interim Rule so that the regulations concerning asylum procedures made no mention of coercive family planning practices. The July 1990 Final Rule eliminated the January 1990 Interim Rule without explanation.

 Subsequent events illustrate the confusion this engengered. 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. See Pl. Ex. H. 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. See Pl. Ex. I. 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. See Pl. Ex. J.

 In January 1993 the Attorney General signed a final rule (the "January 1993 Rule"), similar to the January 1990 Interim Rule, which overruled Chang. The January 1993 Rule incorporated 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 ...

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