858 F.Supp. 569 (E.D.Va. 1994), Civ. A. 94-0037, Chen v. Carroll

Docket Nº:Civ. A. 94-0037
Citation:858 F.Supp. 569
Party Name:Chen v. Carroll
Case Date:May 04, 1994
Court:United States District Courts, 4th Circuit, Eastern District of Virginia
 
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Page 569

858 F.Supp. 569 (E.D.Va. 1994)

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

Page 570

[Copyrighted Material Omitted]

Page 571

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 (1988), and asserts that the Board's decision in Matter of Chang, Int.Dec. 3107 (BIA 1989), has been either superseded by subsequent case law or certain interim regulations on the issue. 1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,

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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...

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