55 F.3d 732 (2nd Cir. 1995), 1403, Zhang v. Slattery

Docket Nº:1403, Docket 94-6258.
Citation:55 F.3d 732
Party Name:Xin-Chang ZHANG, Petitioner-Appellee, v. William SLATTERY, as District Director of the New York District of the Immigration & Naturalization Service, and Roseanne C. Sonchik, as Acting Assistant District Director for Detention and Deportation of the New York District of the Immigration & Naturalization Service, Respondents-Appellants.
Case Date:May 19, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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55 F.3d 732 (2nd Cir. 1995)

Xin-Chang ZHANG, Petitioner-Appellee,


William SLATTERY, as District Director of the New York

District of the Immigration & Naturalization Service, and

Roseanne C. Sonchik, as Acting Assistant District Director

for Detention and Deportation of the New York District of

the Immigration & Naturalization Service, Respondents-Appellants.

No. 1403, Docket 94-6258.

United States Court of Appeals, Second Circuit

May 19, 1995

Argued Feb. 15, 1995.

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Naill J. Lenihan, pro hac vice, New York City (Ogden N. Lewis, Michael Osborne, Vina Shukla, Law Clerk, Jerome Wilson, Law Clerk, Davis Polk & Wardwell, New York City, Stanley Mark, Asian-American Legal Defense and Education Fund, New York City, on the brief) for petitioner-appellee.

Diogenes P. Kekatos, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty. for the S.D. of N.Y., Steven I. Froot, Asst. U.S. Atty., F. James Loprest, Jr., Special Asst. U.S. Atty., on the brief), for respondents-appellants.

Bruno Joseph Bembi, Hempstead, NY, for amicus curiae Yau Gwong Liu, Hua Qing Li, and Shu Yao Li.

Before: MINER and JACOBS, Circuit Judges. [*]

JACOBS, Circuit Judge:

Petitioner-appellee Xin-Chang Zhang, a native of the People's Republic of China ("PRC" or "China"), arrived on a Rockaway, Queens beach in June 1993 after more than three months' transit in the cargo hold of the smuggling ship "Golden Venture". Within hours of the ship's grounding, Zhang was in the custody of the Immigration and Naturalization Service ("INS"). This appeal arises out of Zhang's petition for habeas corpus filed in the United States District Court for the Southern District of New York (Patterson, J.). See Xin-Chang v. Slattery, 859 F.Supp. 708 (S.D.N.Y.1994) (hereinafter "Zhang ", the form of the name favored by appellee's counsel).

The INS challenges the district court's order remanding Zhang's case to the Board of Immigration Appeals ("BIA") for further consideration. Zhang's petition challenged a March 22, 1994 decision of the BIA which affirmed the findings of the Immigration Judge ("IJ") and denied his application for asylum and withholding of return to China, and ordered him excluded from the United States. The district court found that the IJ and BIA had (1) erroneously relied on the BIA's earlier decision in Matter of Chang, Int.Dec. No. 3107, 1989 WL 247513, 1989 BIA LEXIS 13 (BIA May 12, 1989) and (2) improperly subjected Zhang to exclusion proceedings (as opposed to deportation proceedings) without first requiring the government to prove that Zhang had failed to achieve "entry" into the United States. The government challenges both of these conclusions on appeal.

Zhang's primary argument both before the district court and on appeal is that the United States must grant (or at least give serious consideration to) petitions for refugee status filed by asylum applicants who demonstrate a well-founded fear that, if forced to return to their own country, they would be subject to

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forced abortions or forced sterilization pursuant to a coercive government program of family planning. Zhang's position has been adopted in various forms at various times by the President of the United States, both houses of Congress, three Attorneys General and the General Counsel of the INS. On this appeal, however, the government demonstrates that, throughout the long debate over this question, the BIA--the agency that denied Zhang's claims and that issued the ruling we review--has consistently refused to grant asylum or withholding of return to an alien who alleges no more than a fear of being subject to a coercive family planning program.

This state of affairs has led to conflicting district court opinions, illustrated by a comparison of the opinion of district court in this case, Zhang, 859 F.Supp. 708, with the opinion of the district court in Si v. Slattery, 864 F.Supp. 397 (S.D.N.Y.1994), the appeal of which was briefed, argued and submitted in tandem with this case (and later withdrawn by stipulation). After reviewing the various executive and legislative initiatives and pronouncements on this subject, we conclude that, under established administrative law, none of them has displaced or overruled the BIA's decision in Chang, the case in which the BIA first announced its policy regarding asylum and the PRC's coercive family planning program (the "one child" policy). Zhang's alleged fear that he will be forcibly sterilized if he is returned to China is not sufficient to entitle him to a grant of either asylum or withholding of return.

Our result is ironic in light of seemingly purposeful efforts by the executive branch and the houses of Congress to achieve the opposite outcome. The executive and legislative branches together have ample power to consummate any goal affecting the country's immigration laws. However, where they fail to do so, we will not amend the deficiency.

The second question presented on this appeal is whether (as the government contends) Zhang is properly the subject of exclusion proceedings on the ground that he was intercepted before he "entered" the country (as the term is defined by the immigration laws). Zhang claims that he effected entry the night his ship arrived off the shores of Rockaway, Queens, and is therefore subject to the (procedurally more vigorous) deportation proceedings. We conclude that Zhang's claim of entry is without merit.

We therefore reverse the order of the district court. Zhang's petition for a writ of habeas corpus must be dismissed.


  1. The Legal Framework.

    Excludable aliens who claim that they will be persecuted if forced to return home may seek two alternative forms of relief: asylum and withholding of return. The two remedies are "closely related and appear to overlap." Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993) (citation omitted). Nevertheless, they differ in the burden of proof placed on the applicant and in the extent of the relief afforded. An alien seeking asylum need only demonstrate that the fear of persecution is well founded while an alien seeking withholding of return must establish a "clear probability" of persecution if returned home. Id. Asylum gives the alien the right to legally remain in the United States, while withholding of return only enables the alien to avoid returning to the country in which the persecution would occur. In his immigration proceedings, Zhang has sought grants of both asylum and withholding of return.

    Under 8 U.S.C. Sec. 1158, 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." A "refugee" in turn is defined as:

    [A]ny person who is outside any country of such person's nationality ... who is unable or unwilling to return to ... 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). The applicant bears the burden of establishing that past persecution took place or that the applicant has a well-founded fear of future persecution

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    "on account of" one of the five groupings listed in Sec. 1101(a)(42)(A). See Saleh v. United States Dep't of Justice, 962 F.2d 234, 238-39 (2d Cir.1992). Even if an alien has met this burden, and thereby met the requirements for refugee status, the ultimate decision to grant asylum is in the discretion of the Attorney General. 8 U.S.C. Sec. 1158(a); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 1211 n. 5, 94 L.Ed.2d 434 (1987) ("It is important to note that the Attorney General is not required to grant asylum to everyone who meets the definition of refugee.").

    By contrast, the withholding of return is an entitlement for any alien who has demonstrated a "clear probability," Cardoza-Fonseca, 480 U.S. at 430, 107 S.Ct. at 1212, that his or her "life or freedom would be threatened in [a] country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1253(h)(1). Thus, while the withholding of return is non-discretionary, eligibility for this relief entails the higher ("clear probability") burden of proof. An applicant who has failed to satisfy the requirements for asylum has necessarily failed to satisfy the requirements for withholding of return. Because of the similarity of the respective inquiries and because withholding of return requires a higher standard of proof, we will hereinafter characterize Zhang's claim as one for refugee status, the statutory pre-requisite to asylum.

    Since the 1970s China has enforced a coercive family planning program under which PRC citizens are encouraged to have no more than one child. Zhang contends that the PRC has been known to implement this policy on occasion by forcing its citizens to undergo abortions and sterilizations. On August 5, 1988, Attorney General Edwin Meese issued guidelines to the INS stating that asylum could be granted to applicants alleging a well-founded fear of persecution based on China's coercive family planning programs:

    All INS asylum adjudicators are to give careful consideration to applications from nationals of the People's Republic of China who express a fear of persecution upon return to the PRC because they refuse to abort a pregnancy or resist sterilization after the birth of a second or subsequent child in violation of Chinese Communist Party directives on population. If such refusal is undertaken as an act of conscience...

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