The opinion of the court was delivered by: MIRIAM GOLDMAN CEDARBAUM
Peng-Fei Si, a citizen of the People's Republic of China ("PRC") who has been ordered excluded from the United States, petitions this court for a writ of habeas corpus. Si argues that the Board of Immigration Appeals ("BIA") relied on an improper legal standard in dismissing his appeal from the Immigration Judge's ("IJ") determination that he did not qualify for asylum or withholding of deportation based on his fear that he will be forcibly sterilized if he is sent back to the PRC. Si also argues that asylum or withholding of deportation based on his fear of persecution arising from membership in a social group comprised of those persons who had fled the PRC aboard the Golden Venture was improperly denied. For the reasons discussed below, Si's petition for a writ of habeas corpus is denied.
The following facts were presumed to be true by the IJ for the purpose of deciding Si's applications. See Oral Decision of IJ, at 11-12 (Sept. 3, 1993) (Rec. at 82-83). Shortly after the birth of Si's son, family planning officials began to pressure Si and his wife to have no more children. Because Si's wife had a medical condition which would not permit her to undergo any sort of operation, the officials demanded that Si be sterilized. Si attempted to avoid sterilization by pleading with the officials who came to his house on several occasions and eventually by giving the officials a $ 3,000 deposit to postpone the operation.
In February of 1992, more than ten officials came to Si's house to demand that he be sterilized. However, Si had been warned by a friend that they were coming, and fled before they arrived. Initially, Si hid from the officials at his aunt's house. Later, he made arrangements to be smuggled out of the country. Si went to Burma, Thailand, and Kenya before he boarded the Golden Venture which brought him to the United States.
On September 3, 1993, after conducting a hearing, the IJ denied Si's request for asylum and withholding of deportation and ordered him excluded. In denying Si's claim based on his fear of forced sterilization, the IJ relied on Matter of Chang, Int. Dec. 3107, 1989 WL 247513 (BIA May 12, 1989), a decision which Si contends has been overruled. On November 17, 1993, the BIA, also relying on Chang, dismissed Si's appeal. Thereafter, Si filed a petition for a writ of habeas corpus.
On August 17, 1994, this action was remanded to the INS for reconsideration of Si's requests for asylum and withholding of deportation in accordance with instructions that had just been issued by the Deputy Commissioner of the INS.
On August 31, 1994, the parties each moved for clarification of the August 17, 1994 order to confirm that this court retained jurisdiction to decide whether the IJ and the BIA applied an improper legal standard in determining Si's claims. Those motions are hereby granted to the extent that I now address the law applied by the IJ and BIA in denying Si's requests for asylum and withholding of deportation.
The BIA's conclusions of law are reviewed de novo. Doherty v. Thornburgh, 750 F. Supp. 131, 135 (S.D.N.Y. 1990), aff'd, 943 F.2d 204 (2d Cir. 1991), cert. dismissed, 112 S. Ct. 1254 (1992). Its factual findings, however, are given considerable deference. See 8 U.S.C. § 1105a(a)(4) (findings of fact are conclusive "if supported by reasonable, substantial, and probative evidence on the record considered as a whole"); Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2d Cir. 1994). The Supreme Court, in INS v. Elias-Zacarias, 502 U.S. 478, 112 S. Ct. 812, 117 L. Ed. 2d 38 (1992), stated that a petitioner seeking reversal of a BIA factual determination must show "that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Id. at 817.
In order to be eligible for asylum, Si must establish that he has "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. §§ 1101(a)(42)(A); 1158(a). The standard for withholding of deportation is similar, but sets a higher burden of proof. See 8 U.S.C. § 1253(h); Sotelo-Aquije, 17 F.3d at 38 (alien must demonstrate a "clear probability" of persecution). Therefore, the following discussion will focus on Si's claim for asylum.
In 1989, the BIA decided Matter of Chang which addressed the issue of whether a person who feared returning to the PRC because of its policy of forced sterilization was eligible for asylum. The BIA held that:
We cannot find that implementation of the "one couple, one child" policy in and of itself, even to the extent that involuntary sterilizations may occur, is persecution or creates a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." This is not to say that such a policy could not be implemented in such a way as to individuals or categories of persons so as to be persecution on account of a ground protected by the Act. To the extent, however, that such policy is solely tied to controlling population, rather than as a guise for acting against people for reasons 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.
Id., 1989 WL 247513. Thus, an alien whose fear of persecution is based on forced sterilization is not eligible for asylum, unless he can demonstrate, for example, "that the policy was being selectively applied against members of particular religious groups or was in fact being used to punish individuals for their political opinions." Id.
Si has not asserted that the family planning officials singled him out to be sterilized because of any religious or political belief that he held, and therefore does not argue that he qualifies for asylum under Chang. Instead, Si argues that the BIA should not have applied Chang because it has been overruled. Specifically, Si argues that interim regulations promulgated by the Attorney General in 1990 ("1990 Interim Regulations"), an executive order issued by President Bush ("Executive Order 12,711"), and final regulations promulgated by the Attorney General in 1993 ("1993 Regulations") established that the fear of forced sterilization in and of itself is a ground for asylum, and thereby overruled the BIA's holding in Chang. The Government argues that Chang is still controlling authority, and that therefore, Si's requests for asylum and withholding of deportation were properly denied.
Si argues that the BIA's holding in Chang is no longer binding because it has been overruled by the Attorney General in the 1990 Interim Regulations. See 8 C.F.R. § 3.1(g). Those regulations, which became effective on January 29, 1990, amended 8 C.F.R. § 208 and set forth standards for evaluating claims for asylum and withholding of deportation based on coercive family planning policies. 55 Fed. Reg. 2803 (1990). According to those regulations, "aliens who have a well-founded fear that they will be required to abort a pregnancy or to be sterilized because of ...