Chen v. I.N.S.

• Decision Date: 06 September 1996
• Docket Number: No. 95-16179,95-16179
• Parties: , 96 Cal. Daily Op. Serv. 6676, 96 Daily Journal D.A.R. 10,916 De You CHEN, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; Thomas J. Schiltgen, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 801

95 F.3d 801

65 USLW 2207, 96 Cal. Daily Op. Serv. 6676,

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

De You CHEN, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; Thomas J.

Schiltgen, Respondents-Appellees.

No. 95-16179.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 13, 1996.

Decided Sept. 6, 1996.

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 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 to overturn Chang by attaching the Armstrong-DeConcini amendment to the Emergency Chinese Immigration Relief Act of 1989, a bill introduced in response to the events in Tiananmen Square in June of 1989. The amendment would have provided for "careful consideration" of any asylum applicant who expressed a fear of persecution relating to the PRC's birth control policy. Emergency Chinese Immigration Relief Act of 1989, § 3(a), H.R. 2712, 101st Cong., 1st Sess. (1989). President Bush, however, vetoed the bill for reasons unrelated to the substance of the Armstrong-DeConcini amendment. Memorandum of Disapproval for the Bill Providing Emergency Chinese Immigration Relief, reprinted in Public Papers of the Presidents of the United States 1611-12 (Nov. 30, 1989). He ordered administrative action to provide asylum applicants with the same protections envisioned in the amendment by directing the Attorney General and Secretary of State to provide "enhanced consideration" under the "immigration laws for individuals from any country who express a fear of persecution upon return to their country related to that country's policy of forced abortion or coerced sterilization." Id. Meanwhile, Congress failed to override the veto. Its subsequent efforts to overturn Chang have also failed.

Attorney General Thornburgh responded to President Bush's directive by publishing an interim rule with request for comments on January 29, 1990, providing that coercive birth control policies could serve as a basis for asylum. 55 Fed.Reg. 2803, 2805 (1990) (to be codified at 8 C.F.R. pts. 208 & 242). Specifically, the Interim Rule amended the regulation on the applicant's burden of proof, providing, in part, that:

(1) Aliens who have a well-founded fear that they will be required to abort a pregnancy or to be sterilized because of their country's family planning policies may be granted asylum on the ground of persecution on account of political opinion.

(2) An applicant who establishes that the applicant (or applicant's spouse) has refused to abort a pregnancy or to be sterilized in violation of a country's family planning policy, and who has a well-founded fear that he or she will be required to abort the pregnancy or to be sterilized or otherwise persecuted if the applicant were returned to such country may be granted asylum.

Id. On April 11, 1990, President Bush incorporated the Interim Rule by reference into Executive Order 12,711, which directed the Attorney General and the Secretary of State to

provide for enhanced consideration under the immigration laws for individuals from any country who express a fear of persecution upon return to their country related to that country's policy of forced abortion or coerced sterilization, as implemented by the Attorney General's regulation effective January 29, 1990.

Executive Order 12,711, § 4, 55 Fed.Reg. 13897 (1990).

On July 27, 1990, however, Attorney General Thornburgh published a final rule on the procedures for determining asylum under 8 U.S.C. § 1158 and withholding of deportation under 8 U.S.C. § 1253(h). 55 Fed.Reg. 30674 (1990) (to be codified at 8 C.F.R. pts. 3, 103, 208, 236, 242 & 253). This rule, a comprehensive revision of the regulations governing asylum and withholding claims, rewrote the regulations addressed in the Interim Rule, and did not provide for asylum based on persecution due to a country's family planning policies. Id. The language or substance of the Interim Rule did not appear in the July 1990 rule.

On January 15, 1993, Attorney General Barr responded to public comments on the Interim Rule, and signed a final rule. Att'y Gen. Order No. 1659-93 (the "January 1993 Rule"). Unlike the Interim Rule, which merely suggested that refugee status could be granted to individuals facing forced abortion or sterilization, the final rule mandated the grant of such status upon the proper showing. Id. In addition, the commentary to the January 1993 Rule stated that

[o]ne effect of this rule is to supersede the Board decision in Matter of Chang, Int. Dec. No. 3107 (BIA 1989), to the extent that it held that the threat of forced abortion or involuntary sterilization pursuant to a government family planning policy does not give rise to a well-founded fear of persecution on account of political opinion, without an additional showing on the issue of the applicant's actual political opinion.

Id. at 4.

The January 1993 Rule was scheduled to take effect on the date of publication in the Federal Register. Id. However, it was never published. President Clinton, following his inauguration on January 22, 1993, directed his newly appointed director of the Office of Management and Budget to issue a memorandum requesting that each agency withdraw from the Federal Register...