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WANG v. SLATTERY

January 31, 1995

SHAN MING WANG, Petitioner, against WILLIAM SLATTERY, District Director of the United States Immigration and Naturalization Service, New York District, and DAVID 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: CHARLES S. HAIGHT, JR.

 HAIGHT, District Judge:

 Petitioner, Sham Ming Wang, a citizen of the People's Republic of China ("PRC") and a passenger on an ill-fated journey of the vessel "Golden Venture," brings this habeas corpus petition pursuant to 8 U.S.C §§ 1105a(a)(10) and 1105a(b), to challenge an order of the Board of Immigration Appeals ("BIA") dismissing petitioner's appeal of the decision of an Immigration Judge ("IJ") denying his request for asylum and ordering him excluded from this country. Because I conclude that the BIA applied the correct legal standard to Wang's claim, his petition will be dismissed.

 Wang arrived in the United States when the ship on which he was travelling ran aground off the shore of Queens, New York on June 6, 1993. Immediately thereafter, Wang was apprehended by law enforcement officials and taken into the custody of the Immigration and Naturalization Service ("INS") where he remains to this day. On June 8, 1993 the INS charged Wang with being "excludable" pursuant to § 212(a) of the Immigration and Nationality Act of 1952 (the "Act"), 8 U.S.C. §§ 1182(a)(7)(A)(i)(I) (Supp. IV 1992), and commenced exclusion proceedings against him. Wang, in turn, filed an application seeking asylum and withholding of deportation on the basis that he fears persecution if he returns to the PRC because of his opposition to its coercive family planning policies. A hearing on his application was held on June 23, 1993.

 On the basis of Wang's testimony, which the IJ deemed credible, the IJ found the following facts. At the time of his exclusion hearing, Wang was 26 and married with one child. When his wife became pregnant with their second child in July of 1990, she unsuccessfully endeavored to conceal the pregnancy from the family planning authorities. When the authorities discovered her condition, they required her to have an abortion in October of 1990 and thereafter demanded that she be sterilized. Not willing to be subjected to such treatment, his wife fled the PRC for the United States in December of 1990.

 The authorities did not restrict their punishment to Wang's wife. Wang was fined for violation of the policy, assigned to dangerous and undesirable work at a government-owned factory, and was informed that he must undergo forced sterilization if his wife did not return to the PRC for sterilization before December of 1992. In reaction to these measures, in early 1993 Wang departed China bound for the United States.

 On September 16, 1993, the IJ issued a decision holding Wang ineligible for asylum or withholding of deportation. Applying a decision by the BIA, Matter of Chang, Interim Decision No. 3107, 1989 WL 246513 (BIA May 12, 1989), the IJ held that Wang failed to demonstrate that the PRC's family planning policy had been applied invidiously against him or his wife, that he was disproportionately punished for his violation of the policy, or that its implementation against him was aimed to punish him for his political belief or opinion. As such, Wang failed to demonstrate persecution on the basis of his political opinion, as required under the asylum statute. The IJ accordingly denied his claim for asylum and ordered Wang excluded. See Certified Administrative Record of the Proceedings ("R") at 55.

 The BIA affirmed the IJ's decision by opinion dated November 18, 1993, concluding that the IJ had properly applied Chang and had correctly concluded that Wang failed to offer evidence of persecution on the basis of his political opinion. R at 23. On March 24, 1994, the BIA denied Wang's motion to reopen and reconsider the order of exclusion on the basis of two subsequent pronouncements concerning the issue. R at 1. Wang thereafter filed the present habeas corpus petition *fn1" and moved to preliminarily enjoin the INS from deporting him pending consideration of his petition before this Court. The parties thereafter agreed to a stay of deportation and the motion for a preliminary injunction became moot.

 DISCUSSION

 Wang principally contends that the BIA and the IJ erroneously applied Chang because it had been overruled by subsequent pronouncements of the Attorney General and the President. Wang further argues that Chang is itself an improper decision because it violates the asylum statute by precluding individual determinations of persecution based upon consideration of the facts of each application. The issue for this Court is whether Chang remains in effect and if so, whether it is a reasonable interpretation of the asylum law. Because Wang does not argue that his asylum application should have, or could have, been granted under the rule announced in Chang, this Court is not asked to determine whether the IJ and the BIA properly applied Chang to the facts presented in this case. *fn2"

 Asylum and Withholding of Deportation Standards

 An alien who arrives in the United States without the valid documentation set forth in § 1182(a)(7) of the Act shall be excluded from the United States unless he is eligible for "asylum" or "withholding of deportation." In order to qualify for asylum under 8 U.S.C. § 1158, an applicant must establish that he "is unable or unwilling to return to [his country of origin] . . . 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." An asylum applicant bears the burden of demonstrating on the basis of the evidence that he faces a reasonable possibility of persecution for one of the specified reasons if he were to return. See Gomez v. INS, 947 F.2d 660, 663 (2d Cir. 1991). Even if he satisfies this burden, however, the alien faces an additional hurdle of prevailing upon the Attorney General to exercise her discretion to grant asylum. See Osorio v. INS, 18 F.3d 1017, 1021 (2d Cir. 1994).

 An applicant seeking withholding of deportation under 8 U.S.C. § 1253 (h) must establish that his life or freedom would be threatened if he returned to his country on the basis of the same grounds set forth in the asylum law. Perhaps because withholding of deportation is mandatory once the standards are met, an applicant who seeks withholding of deportation under § 1253(h) faces a higher evidentiary burden than an asylum applicant. He must demonstrate a "clear probability" of persecution on the basis of one of the enumerated grounds. See Sotelo-Aquije v. Slattery, 17 F.3d 33, 38 (2d Cir. 1994). Accordingly, an applicant who fails to qualify for asylum a fortiori cannot satisfy the more stringent standards for obtaining withholding of deportation. See Osorio, 18 F.3d at 1032.

 Matter of Chang

 In Chang, the BIA considered the asylum application of a Chinese alien who claimed he reasonably feared persecution on the basis of his opposition to the PRC's population control measures. After discussing the goals and manner of implementation of the PRC population policy, the BIA concluded:

 
"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.'"

 Id. Although an alien may not invoke asylum merely by claiming that he had been or would be punished for violating the policy, the BIA recognized that the "policy could [] 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." Slip op. at p. 6. To demonstrate persecution on the basis of a protected ground, an alien must adduce "evidence that the governmental action arises for a reason other than general population control (e.g., evidence of disparate, more severe treatment for those who publicly oppose the policy)." Id. To this end, an alien may show that "he was treated differently from other Chinese with respect to application of the 'one couple, one child' policy, or that its application in his case was in reality a guise to achieve a governmental goal other than general population control." Slip op. at p. 7.

 Unless modified by the BIA or the Attorney General, decisions of the BIA are binding upon immigration judges. See 8 CFR § 3.1(g) (1994). The BIA has consistently applied Chang in considering applications for asylum filed by aliens who claim they fear persecution on the basis of their opposition to the PRC's population control policies. See, e.g., Matter of ...


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