95 F.3d 801 (9th Cir. 1996), 95-16179, Chen v. I.N.S.

Docket Nº:95-16179.
Citation:95 F.3d 801
Party Name:96 Daily Journal D.A.R. 10,916 De You CHEN, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; Thomas J. Schiltgen, Respondents-Appellees.
Case Date:September 06, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 801

95 F.3d 801 (9th Cir. 1996)

96 Daily Journal D.A.R. 10,916

De You CHEN, Petitioner-Appellant,



Schiltgen, Respondents-Appellees.

No. 95-16179.

United States Court of Appeals, Ninth Circuit

September 6, 1996

Argued and Submitted Feb. 13, 1996.

Page 802

Paul M. Isel, Tsoi & Isel, Los Angeles, California; Helen Morris, Catholic Legal Immigration Netword, Inc., Washington, D.C.; for petitioner-appellant.

Patricia A. Duggan, Assistant United States Attorney, San Francisco, California; Kristin A. Cabral, Office of Immigration Litigation, Civil Division, Washington, D.C.; for respondents-appellees.

Appeal from the United States District Court for the Northern District of California, D.C. No. CV-94-04094-MHP; Marilyn H. Patel, District Judge, Presiding.

Before: SCHROEDER, D.W. NELSON and KOZINSKI, Circuit Judges.

SCHROEDER, Circuit Judge

De You Chen ("Chen"), a native and citizen of the People's Republic of China ("PRC"), appeals the district court's denial of his petition for writ of habeas corpus under 8 U.S.C. § 1105a(b). He seeks relief from a final order of the Board of Immigration Appeals ("BIA") denying his application for political asylum under 8 U.S.C. § 1158. Chen argues that the PRC's application of its one child per couple birth control policy constitutes a basis for such relief. He contends that the BIA's decision in Matter of Chang, Int. Dec. 3107 (BIA 1989), holding that the PRC's family planning policies do not constitute a ground for political asylum, is not dispositive because it has been overruled by administrative action. He further contends that an executive order also overruled Chang, and created a basis for asylum. The U.S. Courts of Appeals for the Second and Fourth Circuits have rejected similar contentions under factual circumstances indistinguishable from the instant one. Zhang v. Slattery, 55 F.3d 732 (2d Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996); Chen v. Carroll, 48 F.3d 1331 (4th Cir.1995). We agree with the conclusions reached in those decisions, and affirm the district court's denial of Chen's petition.

Facts and Procedural History

De You Chen and Lan-Zheng Sun are married, and now have three children, two girls, and the youngest, a boy. After the birth of the second girl, birth control authorities fined the couple 2,000 RMB (the PRC's currency) for having a second child within four years of the first. The authorities also required the implantation of an intra-uterine device in Sun. Because Chen and Sun wanted a boy, however, they had the device illegally removed. In 1990, Sun became pregnant again. Upon learning of her pregnancy, the authorities threatened to destroy the couple's home if she did not abort the child. Chen and Sun responded by fleeing to a nearby village. The authorities then destroyed the couple's home, extorted information from Chen's father, and fined him 2,000 RMB. After Sun gave birth, the couple returned to their original village. The authorities scheduled Sun for a sterilization surgery, imposed a 10,000 RMB fine, and barred all three children from attending school. Because Sun was too ill for surgery, the authorities ordered that Chen be sterilized instead. In August, 1991, Chen fled his village to hide at his workplace. In November 1992, his sister warned him that the authorities would find him, jail him and sterilize him. Chen then fled China aboard a boat headed for the U.S.

On May 12, 1993, Chen arrived in California. Upon arrival, the Immigration and Naturalization Service arrested and detained him, and placed him in exclusion proceedings. Chen conceded excludability, but applied for political asylum and withholding of deportation on the basis of his political opinion and membership in a particular social group pursuant to 8 U.S.C. §§ 1158 & 1253(h). On July 6, 1994, the Immigration Judge denied Chen's application, relying on Chang and Matter of G, Int. Dec. 3215 (BIA 1993). Chen appealed. The BIA dismissed his appeal

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on October 26. Chen then filed a petition for writ of habeas corpus, urging only his asylum claim, and seeking relief from the BIA's final exclusion order. On May 19, 1995, the district court denied his petition, holding that the BIA had properly applied Chang. Chen timely appeals.

Legal and Political Developments

Under 8 U.S.C. § 1158, the Attorney General has discretion to grant asylum to any person who is a "refugee," as defined in 8 U.S.C. § 1101(a)(42)(A). A "refugee" is any person who is unable or unwilling to return to his or her country of origin because of past 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. § 1101(a)(42)(A). In May 1989, the BIA handed down Chang, which held that the PRC's implementation of its birth control policies does not in itself constitute a basis for relief under the INA. Int. Dec. 3107, at 10-11. The BIA has consistently followed Chang, notwithstanding subsequent legislative and administrative activity that threatened to overrule it.

In 1989, Congress attempted...

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