Chen v. Carroll

• Citation: 858 F. Supp. 569
• Decision Date: 04 May 1994
• Docket Number: Civ. A. No. 94-0037-A.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: CHEN Zhou Chai, Petitioner, v. William J. CARROLL, District Director, Immigration and Naturalization Service (Washington District), and David L. Milhollen, Director of the Executive Office of Immigration Review and Chairman of the Board of Immigration Appeals, Respondents.

858 F. Supp. 569

CHEN Zhou Chai, Petitioner, v. William J. CARROLL, District Director, Immigration and Naturalization Service (Washington District), and David L. Milhollen, Director of the Executive Office of Immigration Review and Chairman of the Board of Immigration Appeals, Respondents.

Civ. A. No. 94-0037-A.

United States District Court, E.D. Virginia, Alexandria Division.

May 4, 1994.

COPYRIGHT MATERIAL OMITTED

Rebecca Stack Campbell, Covington & Burling, Washington, DC, for petitioner.

Helen Fahey, U.S. Atty., E.D.Va., Rebecca O. Hidalgo, Asst. U.S. Atty., Alexandria, VA, for respondents.

MEMORANDUM OPINION

HILTON, District Judge.

This matter came before the Court on Petitioner's petition for a Writ of Habeas Corpus. Petitioner Chen Zhou Chai seeks a reversal of the asylum ruling of the Board of Immigration Appeals ("Board") in his case by attacking a precedent decision of the Board concerning asylum claims based on the family planning policies of the Peoples Republic of China ("PRC"). Petitioner contends that he suffered past persecution and harbors a well-founded fear of persecution "on account of" political opinion, as defined in the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 et seq. (1988), and asserts that the Board's decision in Matter of Chang, Int.Dec. 3107 (BIA 1989), has been either superseded by subsequent case law or certain interim regulations on the issue.¹

The Board has ruled that the PRC's family planning policies do not constitute persecution "on account of" political opinion under the circumstances of petitioner's case. The Board found that persecution "on account of" political opinion requires more than a generalized political motive, and a petitioner must show that government officials were motivated to persecute him because of political opinion. INS v. Elias-Zacarias, 502 U.S. 478, ___ - ___, 112 S.Ct. 812, 816-17, 117 L.Ed.2d 38 (1992).

Petitioner is a native and citizen of PRC. On June 6, 1993, he arrived in the United States by paying to be smuggled aboard a vessel called the "Golden Venture," which ran aground in New York. On June 7, 1993, the Immigration and Naturalization Service ("INS") charged petitioner with excludability for failing to possess a valid entry document under Sections 212(a)(7)(A)(i) and 212(a)(7)(B)(i)(I & II) of the INA, 8 U.S.C. §§ 1182(a)(7)(A)(i) and 1182(a)(7)(B)(i)(I & II). Petitioner sought relief by applying for asylum pursuant to Section 208 of the INA, 8 U.S.C. § 1158, and for withholding of deportation pursuant to Section 243(h) of the Act, 8 U.S.C. § 1253(h). At a hearing on June 24, 1993, the Immigration Judge ("IJ") found petitioner subject to exclusion and deportation for attempting to enter the United States without a valid visa.

On July 22, 1993, petitioner's applications for asylum and withholding of deportation were heard at an evidentiary hearing before the Immigration Judge ("IJ"). At that hearing, petitioner testified that he is 41 years old and that, until he came to the United States, he worked at a government food distribution cooperative or commune near the city of Fouzou. Petitioner testified that in January 1992, after he had disagreed with the head of the commune's decision to fine him a nominal amount of 5 yuan for missing two meetings of the commune, government population control officials took his wife to the regional hospital and coerced her to undergo an abortion against her will. Also, previously in 1988 or 1989, the head of the commune asked Chen to become a member of the Communist Party, but Chen testified that he did not want to become a member.

Petitioner testified that his persecution by the head of the commune continued thereafter when he was coerced by government officials to undergo surgical sterilization. Petitioner also testified that, after his coerced sterilization, the head of the government's commune required petitioner to pay for five years between two and three times petitioner's annual salary as a fine for having a second child who is now 12 years old, and against whom the government had not taken any prior action under population control policy. After the operation, in October 1992, the head of the commune told petitioner that he would have to pay the 20,000 yuan fine off in five years or else his wife would be sterilized. As Chen continued to disobey commune orders that he pay 5 yuan for missing cooperative meetings or 20,000 yuan for his second child, he testified that he was ultimately barred from working and fled to the United States.

On August 31, 1993, the IJ issued his decision denying petitioner asylum and withholding of deportation relief. The IJ based his decision on the grounds that petitioner's opposition and disagreement with coercive population control policies applied to him by the PRC is excluded from the scope of political opinion protected by the INA, citing Matter of Chang. The IJ first found that petitioner did not make an entry into the United States because he was not free from official restraint. Essentially, the IJ found that Chen was not credible in claiming that political nonconformity was the motive for the family planning enforcement against his family. The IJ pointed out that the limitation on children is applicable to all inhabitants of the PRC. Moreover, the IJ found no evidence that family planning policies are used as a means to punish political dissent. Finally, the IJ held that the "most incongruous aspect" of petitioner's testimony was his claim that he is a "recalcitrant political dissident," and that he suffered no punishment by the government until his wife became pregnant in 1992.

As for his asylum claim, the IJ found that Chen failed to establish by a preponderance of credible evidence that the proximate cause of his alleged persecution in the PRC was his political dissidence rather than his failure to comply with the birth control policy. The IJ emphasized that the sequence of events belied petitioner's claim that political dissidence caused his problems. In 1988 or 1989, he refused to join the Communist Party, and no action was taken for more than three years thereafter. Only after his wife became pregnant for the third time was petitioner subject to forced sterilization and a fine. Therefore, the IJ held that the proximate cause of these events was his violation of the birth control policy and not his alleged political dissidence.

In looking to the motivation of the alleged persecutor as required, the IJ found that the evidence showed that the PRC government applies its family planning policies to the entire population. He also held that there was no evidence of an invidious application of the policies toward petitioner and his wife, and the record failed to show that the birth control policies were a manifestation of communist political doctrine or used to enforce political conformity. Ultimately, the IJ held that petitioner had failed to demonstrate that he possessed an immutable trait or belief that was of adverse interest to a potential persecutor in the PRC and, therefore, failed to meet the definition of a "refugee" under the INA.

Petitioner filed a timely notice of appeal to the Board on September 13, 1993. On January 3, 1993, the Board adopted and affirmed the IJ's decision. In answering petitioner's appeal issues, the Board found that he failed to provide evidence establishing a factual nexus between his failure to attend commune meetings and the enforcement of the PRC's family planning policies against him and his wife.

Contrary to Chen's contentions, this Court has jurisdiction under section 106(b) of the INA, 8 U.S.C. § 1105a(b), because petitioner has not effected an "entry" into the United States and, as required by the INA, petitioner's case properly continues in exclusion proceedings. Petitioner argues that the Board "violates" the INA by requiring that an alien by free of official restraint before he enters the United States. The INA provides that an "`entry' means any coming of an alien into the United States, from a foreign port or place from an outlying possession, whether voluntary or otherwise ..." Section 101(a)(13) of the INA, 8 U.S.C. § 1101(a)(13). Congress has required that those seeking admission to the United States are subject to exclusion proceedings to determine whether they be allowed to enter or shall be excluded.

Here, although he came voluntarily, petitioner never "entered" the United States because he failed to prove that he was free from official restraint. It is well-established that an alien is required to be detained at the border pending formal disposition of his request for admission, Kaplan v. Tod, 267 U.S. 228, 230, 45 S.Ct. 257, 257, 69 L.Ed. 585 (1925), and that there is no formal "entry" until the alien has been freed from this official restraint. See Lazarescu v. United States, 199 F.2d 898, 900 (4th Cir.1952). As a result, physical presence in the United States alone is not enough to effectuate an "entry".² See Leng May Ma v. INS, 357 U.S. 185, 188, 78 S.Ct. 1072, 1074, 2 L.Ed.2d 1246 (1958). Petitioner has failed to show that he was ever free from official restraint, despite being physically present in the United States. Therefore, this Court has jurisdiction because petitioner never effectuated an "entry" as required by the INA. Thus, his case properly proceeds as one of exclusion.³

Under section 208(a) of the INA, the Attorney General, in her discretion, may grant asylum to an alien if it is determined that the alien is a "refugee" within the meaning of section 101(a)(42)(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). Section 101(a)(42)(A) defines a "refugee" as a person who is unable to return to his or her 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."⁴ 8 U.S.C. § 1101(a)(42)(A); see also ...