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JIA-GING DONG v. SLATTERY

November 22, 1994

JIA-GING DONG, a/k/a JIA QING DONG, Petitioner, against WILLIAM SLATTERY, District Director of the United States Immigration and Naturalization Service, New York District, L. MILHOLLEN, Director of the Executive Office for Immigration Review and Chairman of the Board of Immigration Appeals, Respondents.


The opinion of the court was delivered by: MICHAEL B. MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 Petitioner Jia-Ging Dong petitions for habeas corpus relief from a Board of Immigration Appeals ("BIA") decision denying him political asylum. He argues that a prior decision on which the BIA relied is no longer good law, and is otherwise inapplicable. For the reasons set forth below, the Order is affirmed and the petition is dismissed.

 I.

 Dong, a thirty-year old citizen of the People's Republic of China ("PRC"), was one of approximately 300 PRC nationals aboard the vessel Golden Venture when it ran aground on a beach in New York on June 6, 1993. (R. 183-84, 190) After Dong swam to shore, the Immigration and Naturalization Service ("INS") detained Dong and charged him with attempting to enter the United States without valid entry documents. (R. 154-55, 171) The INS then transferred Dong to an INS detention facility in New York City and instituted exclusion proceedings under the Immigration and Nationality Act of 1952 (the "Immigration Act"), 8 U.S.C. §§ 1182, 1226. (R. 192)

 At a hearing before an Immigration Judge ("IJ") on August 18, 1993, Dong testified to the following circumstances that led him to flee the PRC. Dong and his wife lived in the Lian Giang county in the Fujian Province of the PRC. (R. 60) They had their first child, a son, in 1986. (R. 62) Because their son suffered from polio, PRC family planning officials permitted them to have a second child, an exception to the general rule in the PRC that a family may have only one child. (R. 63, 144) They had a healthy daughter in March 1988. (R. 63) In July 1988, the "chairwoman" of the local family planning committee came to Dong's home and "ordered his wife to have an IUD inserted." (R. 65) Dong and his wife decided to comply because an IUD would have been inserted "by force anyway." (R. 65)

 Dong's wife nevertheless became pregnant with a third child in November 1992. (R. 66) After learning of the pregnancy, the chairwoman for local family planning visited the Dongs again in February 1993 and ordered Dong's wife to have an abortion. (R. 66) She warned Dong's wife that if she fled to avoid the abortion her house would be destroyed. (R. 66) Several days later Dong and his wife fled to her sister's home in another village, where they planned to hide until she gave birth. (R. 67) Shortly thereafter, Dong's father, with whom they had lived, visited them in hiding and told them that he had been beaten by the authorities, and that some of the contents of their home had been destroyed, including the door to their home, the kitchen stove, and some cabinets. (R. 68-69) Dong's father further recounted that the authorities said that if they caught Dong and his wife, they would "beat [Dong] up" and "seize [his] wife for abortion." (R. 68) At that time, Dong decided to flee the PRC. (R. 69)

 On March 3, 1993, Dong boarded the Golden Venture for the United States. (R. 69) He later learned from his father that the authorities had seized his wife when she was four and one-half months pregnant and forced her to undergo an abortion. (R. 69-70) She experienced some complications, which required hospitalization, but has since been released and is recuperating. (R. 70) In a declaration attached to his asylum application dated July 15, 1993, Dong stated further that "if I am sent back to China I will be severely punished for aiding my wife in evading the State policy and additional punishment will certainly be imposed for leaving China." (R. 145)

 The IJ found Dong's testimony to be "credible in every respect." (R. 43) Nevertheless, the IJ denied Dong asylum. The IJ found controlling Matter of Chang, Interim Decision No. 3107, 1989 WL 247513 (BIA May 12, 1989), in which the BIA held that the PRC's implementation of its family planning policies ordinarily does not constitute persecution within the meaning of section 101(a)(42)(A) of the Immigration Act. (R. 46-47) The IJ concluded that the damage to Dong's home and the injury to his father was intended to influence Dong's wife to submit to the PRC's family planning policies. (R. 47) The IJ noted that the damage to Dong's house was limited, and that Dong's father required no medical attention. (R. 45)

 On appeal, the BIA affirmed the IJ's order of exclusion, also relying on Chang. The BIA found that the actions taken against Dong and his family were "not shown to have been motivated by the imputation of a political opinion to the applicant or by anything other than an effort to implement [the PRC]'s family planning policy by limiting the size of his family." (R. 5) The BIA found further that Dong's experience under the PRC's family planning policy was not "disproportionately severe and hence persecutive." (R. 4) The BIA concluded that, if anything, Dong had a well-founded fear of being prosecuted for violating a validly administered law, not of being persecuted on account of his political opinion. (R. 5) Accordingly, the BIA dismissed Dong's appeal. He then filed this petition for habeas corpus.

 II.

 A citizen of a foreign country seeking to enter the United States without valid entry documents generally must be deported to the country from which he arrived, 8 U.S.C. §§ 1182(a)(7)(a)(i)(I), 1227(a)(1), unless he is eligible for asylum or temporary withholding of deportation. 8 U.S.C. § 1158; 8 U.S.C. § 1253(h). Eligibility for asylum *fn1" is a two-step process. The asylum applicant first must demonstrate that he is a "refugee" within the meaning of the Act. 8 U.S.C. § 1101(a)(42)(A). The Act defines refugee as one who is unable or unwilling to return to his country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. These grounds are the only recognized grounds upon which asylum may be based. Second, if the applicant establishes refugee status, he must then prevail upon the Attorney General to grant asylum, 8 U.S.C. § 1158(a), whose decision is "discretionary." Id.; Carranza-Hernandez v. I.N.S., 12 F.3d 4, 7 (2d Cir. 1993).

 III.

 The principal issue presented here is whether the PRC's imposition of its population control policies on a PRC national may in itself constitute "persecution on account of . . . political opinion" under the Immigration Act. In Chang the BIA held that it may not. Dong maintains that Chang is both erroneous and ineffective, and that the ...


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