48 F.3d 1331 (4th Cir. 1995), 94-1694, Chen Zhou Chai v. Carroll

Docket Nº:94-1694.
Citation:48 F.3d 1331
Party Name:CHEN ZHOU CHAI, Plaintiff-Appellant, v. William J. CARROLL, in his official capacity as District Director, Washington District, United States Immigration and Naturalization Service; Mary M. Dunne, Acting Chairman of the Board of Immigration Appeals; Anthony Moscato, Director, Executive Office for Immigration Review, Defendants-Appellees.
Case Date:March 06, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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48 F.3d 1331 (4th Cir. 1995)

CHEN ZHOU CHAI, Plaintiff-Appellant,

v.

William J. CARROLL, in his official capacity as District

Director, Washington District, United States Immigration and

Naturalization Service; Mary M. Dunne, Acting Chairman of

the Board of Immigration Appeals; Anthony Moscato,

Director, Executive Office for Immigration Review,

Defendants-Appellees.

No. 94-1694.

United States Court of Appeals, Fourth Circuit

March 6, 1995

Argued Nov. 2, 1994.

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[Copyrighted Material Omitted]

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ARGUED: Michael Peter Socarras, Sr., Covington & Burling, Washington, DC, for appellant. Lauri Steven Filppu, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for appellees. ON BRIEF: Nicholas W. Fels, Jeffrey B. Coopersmith, Christopher A. Donesa, Covington & Burling, Washington, DC, for appellant. Frank W. Hunger, Asst. Atty. Gen., David M. McConnell, Kristin A. Cabral, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for appellees.

Before RUSSELL and WIDENER, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

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Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge WIDENER and Senior Judge CHAPMAN joined.

OPINION

DONALD RUSSELL, Circuit Judge:

In this immigration case, the Board of Immigration Appeals (the "Board") denied appellant Chen Zhou Chai's application for asylum in the United States. Chen sought judicial review of the Board's decision by filing a petition for a writ of habeas corpus. Chen appeals the district court's denial of the petition. We affirm.

I.

Chen Zhou Chai ("Chen"), a citizen of the People's Republic of China ("PRC"), is one of approximately 300 illegal Chinese immigrants who jumped off the M/V Golden Venture when it ran aground on a sand bar in New York harbor about 100 yards from shore. Chen boarded the Golden Venture on February 14, 1993 in Fouzhou, a city in the Fujian Province, PRC. On June 6, 1993, the Golden Venture ran aground in New York harbor, within the maritime boundaries of the United States. Chen jumped into the water and started to swim to shore, but a rescue boat picked him up before he reached the shore. 1

On shore, the Immigration and Naturalization Service ("INS") placed Chen in detention. The INS initiated exclusion proceedings against Chen under 8 U.S.C. Sec. 1182(a)(7). Chen applied for political asylum under 8 U.S.C. Sec. 1158 and for withholding of deportation under 8 U.S.C. Sec. 1253(h).

An immigration judge held an evidentiary hearing on July 22, 1993. Chen testified that he lived in Kung Shiao commune in Tin Tiang village, Fujian province, with his wife and two children, a daughter born in 1977 and a son born in 1981. Although the birth of their second child violated the PRC's "one couple, one child" policy, the government imposed no sanctions on Chen or his family at that time.

Chen worked as a clerk at a government-owned food cooperative on a commune. Chen testified that he had received two notices informing him that he must attend commune meetings. Chen did not attend the commune meetings and informed Jian Guo Dong, the head of the commune, that he did not want to attend. Jian fined Chen five yuan for not attending these meetings, but Chen refused to pay the fine. 2 Chen testified that the commune director once asked him to join the Communist party but that he declined.

In January 1992, the government arrested Chen's wife, who was five months pregnant with the couple's third child, and forced her to have an abortion. In March 1992, the Chinese government, through the cooperative, imposed a 20,000 yuan fine on Chen for having a second child. The amount was approximately twelve times Chen's annual salary. Chen advised Jian that he did not have the money to pay the fine.

In July 1992, the government sent Chen a notice to report to a local hospital for surgical sterilization. Jian threatened that Chen's family would not be able to eat if Chen did not undergo the procedure. Concerned that he would lose his job, Chen underwent the sterilization.

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In October 1992, Jian notified Chen that he would have to pay the 20,000 yuan fine over five years or his wife would be sterilized. Furthermore, Chen was not allowed to work after October 1992 because he did not attend commune meetings and did not cooperate with the commune.

Chen made arrangements to leave China. Chen's cousin arranged passage for Chen to come to the United States and borrowed $9,000 to help pay the $25,000 cost of the trip. Chen sailed to the United States on the M/V Golden Venture, jumped off the ship when it ran aground, and was picked up by a rescue boat before he reached the shore.

After hearing Chen's testimony, the immigration judge issued a decision on August 31, 1993 denying asylum and withholding of deportation. The immigration judge found that Chen's "effort to portray himself as a political dissident who suffered sterilization in retaliation for his political non-conformity was not plausible." Administrative Record 54. The judge instead found that all the actions that the Chinese government took against Chen stemmed from his failure to comply with the PRC's birth control policy. The immigration judge accepted as credible Chen's testimony regarding his refusal to comply with the birth control policy and the sanctions applied by the government for his noncompliance.

The immigration judge, however, denied Chen's asylum claim under the precedent of Matter of Chang, Int.Dec. 3107 (BIA1989). In Matter of Chang, the Board interpreted the asylum statute to require an alien seeking asylum based upon coercive population control practices of the PRC to produce evidence that the feared governmental action actually arises not for reasons of population control, but specifically because of the alien's political opinions (or another reason protected by the Act). Because the immigration judge found that the PRC's actions against Chen, including the forced sterilization, resulted from Chen's noncompliance with the PRC's birth control policy and not from any political dissidence, the immigration judge denied Chen's claim for asylum. The immigration judge also found that exclusion proceedings were proper because Chen never made an entry into the United States.

On appeals to the Board and thereafter to the Eastern District of Virginia, Chen argued that Matter of Chang, in light of subsequent administrative actions, no longer controlled the administrative policy toward asylum petitions based on persecution for failure to comply with the PRC's coercive birth control policy. The Board, finding that Matter of Chang was still the controlling administrative precedent, affirmed the decision of the immigration judge on January 3, 1994. The district court also applied Matter of Chang and denied Chen's petition for a writ of habeas corpus on May 4, 1994. Chen v. Carroll, 858 F.Supp. 569 (E.D.Va.1994). We affirm the decision of the district court.

II.

The Immigration and Nationality Act (the "INA") provides that an alien "may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title." 8 U.S.C. Sec. 1158(a). Section 1101(a)(42)(A) defines the term "refugee" as:

any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that 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....

8 U.S.C. Sec. 1101(a)(42)(A) (emphasis added).

In Matter of Chang, Interim Decision 3107, at 10-11 (BIA1989), the Board of Immigration Appeals held that implementation of the PRC's population control policy, even to the extent that involuntary sterilizations may occur, does not in itself constitute persecution or create a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. If the PRC took action or

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threatened to take action against the asylum applicant merely to enforce its population control policy, the asylum claim must fail. Id. at 11. In order to establish asylum eligibility, the applicant must demonstrate that the PRC selectively enforced its population control policy against the applicant because of his or her race, religion, nationality, membership in a particular social group, or political opinion. Id. Thus, the Board held that an asylum applicant cannot claim that his failure to comply with population control policy expressed a political opinion against the policy, and that any sanctions taken by the PRC to enforce the policy amounted to persecution for that political opinion. See id. Under the Board's ruling in Matter of Chang, the asylum applicant must demonstrate that any action taken by the PRC against him "arises for a reason other than general population control." Id.

Soon after the Board issued its opinion in Matter of Chang, Congress began considering legislation to overturn it. Senators William L. Armstrong and Dennis DeConcini offered an amendment to the Emergency Chinese Immigration Relief Act of 1989 (the "1989 Act"), H.R. 2712, a bill introduced in response to the events in Tiananmen Square in June of 1989. The Armstrong-DeConcini amendment would have provided for "careful consideration" of any asylum applicant who expresses a fear of persecution upon...

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