failed to make the requisite showing "that the guerrillas will persecute him because of [his] political opinion, rather than because of his refusal to fight with them." Id. Elias-Zacarias therefore obligates an applicant seeking asylum on "political opinion" grounds to show both that he holds a political opinion or is imputed to hold a political opinion, and that he reasonably believes that he will be persecuted because of that political opinion. Id.
It follows from the plain meaning of refugee under the Immigration Act, as set forth in Elias-Zacarias, that a PRC citizen prosecuted for opposition to a universally applied coercive family planning policy is not being persecuted for his political opinion. Under the "one child" policy, it is not the individual's political opinion or the expression thereof, but, rather, his past or likely future act that exposes him to punishment. The BIA in Chang therefore correctly concluded that those "who show that they opposed the policy, but were subjected to it anyway, have [not] demonstrated that they are being 'punished' for their opinions." 1989 WL 247513 at 5. Moreover, the conception and rearing of children is not the inherently political activity whose general prohibition can reasonably be construed as veiled persecution of political opinion. Cf. Osorio v. I.N.S., 18 F.3d 1017, 1030-31 (2d Cir. 1994) (union leader's activities organizing a strike and demonstrations "clearly evince the political opinion that . . . workers should be given more rights"); Dwomoh v. Sava, 696 F. Supp. 970, 979 (S.D.N.Y. 1988) ("a coup attempt is a form of expression of political opinion the prosecution of which can qualify as 'persecution' within the statutory definition of 'refugee'"). The absence of political motive here was borne out at Dong's hearing, where he testified that he and his wife decided to have a third child because they wanted a healthy son (R. 65), not that they did so to protest the "one child" policy. That is not a political opinion under Elias-Zacarias.
Dong urges this court to rely on Di v. Carroll, 842 F. Supp. 858 (E.D. Va. 1994), in which the Court refused to apply Chang. There, the Court reviewed a series of legislative and executive pronouncements intended to overrule Chang, and concluded that "the cacophonous administrative record merits no judicial deference" to Chang.2 842 F. Supp. at 861. Specifically, the court in Di cited: 1) a January 1990 interim rule promulgated by the Attorney General amending the asylum regulations to include as eligible aliens who reasonably fear sterilization because of their country's family planning policies (the "January 1990 Interim Rule"), which was never published as a final rule, id. at 863; 2) an executive order calling for "enhanced consideration" for aliens seeking asylum under the January 1990 Interim Rule, id. ; 3) a July 1990 final rule published by the Attorney General which incorporated none of the provisions of the January 1990 Interim Rule relating to aliens' eligibility for asylum based on their country's coercive family planning policies, and made no reference to such policies (the "July 1990 Rule"), but which superseded the January 1990 Interim Rule, id. at 863-64; and 4) a January 1993 final rule promulgated by a new Attorney General, which reiterated the January 1990 Interim Rule, and stated in its explanatory notes that "one effect of this rule is to supersede . . . Chang " (the "January 1993 Rule"), but which was withdrawn before publication by the subsequent Administration. Id.
The Court in Di did not specify which particular pronouncement effectively overruled Chang, and, indeed, conceded that each is of uncertain legal effect. See, e.g., id. at 868 ("the status and legal effect of the 1993 Rule remain unclear"), id. at 869 ("the January 1990 Interim Rule likely did not erase or overrule Chang "). The Court nevertheless relied on language in Cardoza-Fonseca, 480 U.S. at 446 n.30, that an inconsistent "agency interpretation . . . is entitled to considerably less deference than a consistently held agency view," in deciding to disregard all administrative pronouncements on the subject, including Chang. See 842 F. Supp. at 870. However, where, as here, the interpretation applied by the agency has in fact not changed, such diminished deference is inappropriate. See N.L.R.B. v. United Food & Commercial Workers, 484 U.S. 112, 124 n.20, 98 L. Ed. 2d 429, 108 S. Ct. 413 (1987) ("we also consider the consistency with which an agency interpretation has been applied"); see also Lile v. University of Iowa Hosps. & Clinics, 886 F.2d 157, 161 n.4 ("While a court may grant lesser deference to agency interpretations where inconsistency between final agency decisions exists, that is not the case where . . . the inconsistency [does not] lie between . . . final agency decisions") (citation omitted). The policy consistently adhered to by the BIA and applied to aliens seeking asylum based on the "one child" rule is the policy articulated in Chang. Under the circumstances presented here, therefore, all that the various pronouncements cited in Di suggest is that the legislative and executive branches studiously abstained from overruling Chang.
This conclusion is all the more compelling when one considers that the Attorney General has the express authority to formally review any BIA decision, see 8 C.F.R. § 3.1(h)(1)(i) (1994), and thus has been free to modify or overrule Chang since it was decided over five years ago. In the intervening years, the BIA has consistently applied and explicitly endorsed Chang, see Di, 842 F. Supp. at 866 & n.11 and BIA decisions cited therein, while the Attorney General conspicuously has refrained from repudiating Chang. Indeed, as Judge Cedarbaum pointed out in Peng-Fei Si v. Slattery, 1994 U.S. Dist. LEXIS 14619 (S.D.N.Y. Oct. 13, 1994) at *14-17, draft regulations inconsistent with Chang were withdrawn by the Acting Attorney General from publication in the Federal Register, and thereby prevented from entering into effect. Absent reversal by the Attorney General, Chang remains binding on the BIA. 8 C.F.R. § 3.1(g)-(h) (1994). It is reasonable to conclude therefore that Chang is still in force, and is deserving of considerable deference.
For similar reasons, I respectfully disagree with the decision in Xin-Chang Zhang v. Slattery, 859 F. Supp. 708 (S.D.N.Y. 1994), which held that Chang was superseded by the January 1993 Rule notwithstanding that that rule was withdrawn from publication in the Federal Register. The Court in Zhang relied on two Second Circuit cases, Montilla v. I.N.S., 926 F.2d 162 (2d Cir. 1991) and New York v. Lyng, 829 F.2d 346, 354 (2d Cir. 1987), and a Ninth Circuit case, Nguyen v. United States, 824 F.2d 697 (9th Cir. 1987), for the proposition that "where a rule confers a substantive benefit to a person, an agency must comply with it, even if the rule is not published." 859 F. Supp. at 712. But it does not necessarily follow from these cases that a non-published rule be accorded legal effect when it contradicts an agency's consistently applied policy. Cf. Nguyen, 824 F.2d at 702 ("the [unpublished agency] Instruction made no change in past agency practices").
Because Chang is neither erroneous nor ineffective, the only remaining issue is whether the BIA correctly applied the Chang standard here. In order to secure reversal of a BIA order that applied a proper legal standard, Dong must show evidence in the record that "compels" the conclusion he was persecuted on account of one of the five statutorily protected grounds. Elias-Zacarias, 112 S. Ct. at 815 n.1. The only evidence in the record, from Dong himself, is that the "one child" policy was applied to him for no other reason than that he had violated it. Dong has not pointed to any evidence that would suggest that he was persecuted on a statutorily protected ground, much less evidence that "compels" such a conclusion. Accordingly, the BIA's determination that Dong does not qualify for asylum because he has failed to prove that he has a well-founded fear that he will be persecuted on account of his political opinion must be upheld, and the petition dismissed.
Michael B. Mukasey,
U.S. District Judge
Dated: New York, New York
November 22, 1994