Xin-Chang v. Slattery

• Citation: 859 F. Supp. 708
• Decision Date: 05 August 1994
• Docket Number: No. 94 Civ. 2119 (RPP).,94 Civ. 2119 (RPP).
• Parties: XIN-CHANG Zhang, A72-762-145, Petitioner, v. William SLATTERY, INS District Director for Detention and Deportation, Roseanne Sonchik, INS Acting Assistant District Director for Deportation, and Charlene Monroe, INS Immigration Officer, Respondents.
• Court: U.S. District Court — Southern District of New York

859 F. Supp. 708

XIN-CHANG Zhang, A72-762-145, Petitioner, v. William SLATTERY, INS District Director for Detention and Deportation, Roseanne Sonchik, INS Acting Assistant District Director for Deportation, and Charlene Monroe, INS Immigration Officer, Respondents.

No. 94 Civ. 2119 (RPP).

United States District Court, S.D. New York.

August 5, 1994.

COPYRIGHT MATERIAL OMITTED

Davis Polk & Wardwell by Niall J. Lenihan, New York City, for petitioner Xin-Chang Zhang.

Mary Jo White, U.S. Atty., S.D.N.Y. by F. James Loprest, New York City, for respondents William Slattery, Roseanne Sonchik, and Charlene Monroe.

OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.

Xin-Chang Zhang petitions this Court pursuant to 8 U.S.C. § 1105(a)(10) for a writ of habeas corpus to review the determinations of the Board of Immigration Appeals ("BIA") denying Petitioner's application for asylum and upholding Petitioner's placement in exclusion rather than deportation proceedings. For the reasons stated below, the BIA's determinations are remanded.

BACKGROUND

The smuggling ship Golden Venture ran aground off the beaches of Rockaway, Queens on June 6, 1993. Petitioner Xin-Chang Zhang, a passenger and a national of the People's Republic of China, swam ashore where he was taken into custody by law enforcement officials and subsequently transferred into the custody of the INS. Petitioner was placed in exclusion proceedings and, in separate hearings before an immigration judge, petitioned for asylum and moved to terminate his exclusion proceedings. Petitioner subsequently appealed to the BIA on both issues.

Petitioner's Experience in China

Petitioner states that in October 1991, one month after the birth of his first child, Petitioner was asked by local officials in Chang Le County in Fu Jian Province that he or his wife undergo sterilization surgery pursuant to China's one child per family policy. (Lenihan Aff.Ex. 31, ¶¶ 2, 11-12). Petitioner further states that local officials usually do not pressure people to undergo sterilization after having only one child, and that Petitioner was singled-out because he had had a quarrel with a powerful neighbor. Id. ¶ 17. Petitioner states that he and his wife opposed sterilization because they wanted to have more children and feared the health effects of sterilization surgery. Id. ¶ 18.

Petitioner's Flight from China

Petitioner states that, in order to avoid sterilization, he and his wife fled from their home and went into hiding separately. (Lenihan Aff.Ex. 31, ¶¶ 18-20). After working for approximately six months, Petitioner hired professional smugglers to take him to the United States, paying $5,000 in advance and agreeing to pay an additional $25,000 after arriving in the United States. Id. ¶¶ 25-26. After more than three months at sea, Petitioner arrived in the United States aboard the Golden Venture, which ran aground approximately 100 to 200 feet off the Rockaway Beach in Queens, New York. (Lenihan Aff. Ex. 1 at 3). Petitioner states that, after the ship ran aground, there were "helicopters with floodlights flying over the Golden Venture and rescue boats in the water." (Lenihan Aff.Ex. 31, ¶ 44). Petitioner climbed down a ladder into the water and swam ashore. Id. ¶ 45. When Petitioner arrived on the beach, he "walked a few steps and then collapsed to the ground"; the police were a short distance away and took Petitioner into custody. Id. ¶ 46.

An immigration judge ("IJ") found that Petitioner was properly placed in exclusion proceedings because he had not made "entry" into the United States, (Lenihan Aff.Ex. 1 at 7), and denied Petitioner's application for asylum on the grounds that Petitioner had not established a well-founded fear of persecution within the meaning of the asylum laws. (Lenihan Aff.Ex. 2 at 30). On March 22, 1994, the Board of Immigration Appeals ("BIA") upheld both conclusions of the IJ. (Lenihan Aff.Ex. 3).

DISCUSSION

I. Standard of Review

The BIA's conclusions of law are reviewed de novo. Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2d Cir.1994); Abedini v. United States Immigration and Naturalization Serv., 971 F.2d 188, 190-91 (9th Cir. 1992). "The BIA's factual findings ... must be upheld if supported by substantial evidence." Sotelo-Aquije, 17 F.3d at 35.

II. Petitioner's application for asylum

Section 1158 of 8 U.S.C. provides: "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." Section 1101(a)(42)(A) defines "refugee" as:

Any person who is outside any country of such person's nationality ... 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.

The IJ concluded that Petitioner did not meet this definition: "This court believes that it has no choice but to apply Matter of Chang, Interim Decision 3107 (BIA 1989), which held that ... the implementation of the one-couple, one-child policy in and of itself even to the extent that involuntary sterilizations may occur is not persecution nor does it create a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (Lenihan Aff. Ex. 2 at 23). On appeal, the BIA stated: "We conclude that the immigration judge's decision was correct, and we adopt as our own his findings of fact and conclusions of law on the asylum issue." (Lenihan Aff.Ex. 3 at 6). Thus the IJ and the BIA concluded that Petitioner had not established political refugee status as interpreted by the BIA in Matter of Chang.

Petitioner argues that the BIA erred in relying on Matter of Chang because the Attorney General overruled that decision in an unpublished final rule signed in January 1993 ("the January 1993 Rule").¹ The January 1993 Rule provides in relevant part:

§ 208.13(b)(2)(ii) An applicant for asylum ... shall be found to be a refugee on the basis of a well-founded fear of persecution on account of political opinion if the applicant establishes a well-founded fear that, pursuant to the implementation by the country of the applicant's nationality ... of a family planning policy that involves or results in forced abortion or coerced sterilization, that applicant will be forced to ... undergo sterilization or will be prosecuted for failure or refusal to do so, and that the applicant is unable or unwilling to return to, or to avail himself or herself of the protection of, that country because of such fear.²

The supplementary information to the January 1993 Rule explains: "One effect of this rule is to supersede the Board of Immigration Appeals decision in Matter of Chang, Int.Dec. No. 3107 (BIA 1989)...." The rule recognizing that fear of persecution pursuant to a family planning policy for failure or refusal to undergo sterilization or abortion would be grounds for asylum was signed by the Attorney General on January 15, 1993, and scheduled to be published in the Federal Register on January 25 of that year. On January 23, 1993, the proposed Director of the Office of Management and Budget barred publication of any new rules until approved by an agency-head appointed by the newly inaugurated president. Guo Chun Di v. Carroll, 842 F.Supp. 858, 864 (E.D.Va. 1994). The January 1993 Rule although public was never published in the Federal Register.³

Petitioner argues that the January 1993 Rule is binding upon the INS, although a new administration stopped publication of the rule in the Federal Register. The Freedom of Information Act provides in relevant part:

Each agency shall separately state and currently publish in the Federal Register for the guidance of the public ... (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.... A person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.

5 U.S.C. § 552(a)(1). The Second Circuit has stated: "The requirement for publication in 5 U.S.C. § 552(a)(1)(D) attaches only to matters which if not published would adversely affect a member of the public." State of New York v. Lyng, 829 F.2d 346, 354 (2d Cir.1987) (quoting Hogg v. United States, 428 F.2d 274, 280 (6th Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 805 (1971)). Accordingly, the Second Circuit stated, albeit in dicta: "`Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures....' even though the procedural requirement has not yet been published in the federal register." Montilla v. Immigration and Naturalization Serv., 926 F.2d 162, 168 (2d Cir.1991) (reversing an order of the INS because the INS failed to follow a published rule which benefitted an alien) (quoting Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974)). Thus, where a rule confers a substantive benefit to a person, an agency must comply with it, even if the rule is not published. See also Nguyen v. United States, 824 F.2d 697, 700 (9th Cir.1987) (stating that an unpublished rule which should have been published under 5 U.S.C. § 552(a)(1) is effective unless it adversely affects a person's substantive rights).

The January 1993 Rule is not adverse to Petitioner but confers upon him the benefit of an expanded interpretation of the standards for refugee status. Furthermore, the government does not argue that the January 1993 Rule is adverse to the INS. Therefore, the January 1993 Rule, which does not affect petitioner adversely, became effective despite the agency's...