Chen v. Carroll

• Decision Date: 01 November 1994
• Docket Number: Civ. A. No. 94-653-A.
• Citation: 866 F. Supp. 283
• Court: U.S. District Court — Eastern District of Virginia
• Parties: CHEN Chaun Fei, Petitioner, v. William J. CARROLL, in his official capacity as the District Director of the United States Immigration and Naturalization Service, et al., Respondents.

866 F. Supp. 283

CHEN Chaun Fei, Petitioner, v. William J. CARROLL, in his official capacity as the District Director of the United States Immigration and Naturalization Service, et al., Respondents.

Civ. A. No. 94-653-A.

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

November 1, 1994.

Richard P. Whiteley, Legal Services of Northern Va., Fairfax, VA, for plaintiff.

Kristin Cabral, U.S. Dept. of Justice, Immigration Litigation, Washington, DC, for defendant.

MEMORANDUM OPINION & ORDER

BRINKEMA, District Judge.

Petitioner is a citizen of the Peoples Republic of China (PRC) who entered the United States illegally on June 6, 1993 aboard the vessel Golden Venture. Petitioner has applied for asylum and withholding of deportation. On August 11, 1993, an Immigration Law Judge (IJ) denied Petitioner's application, finding that Petitioner's fear of forced sterilization upon return to the PRC did not meet the standards for eligibility for asylum or withholding of deportation under Sections 208 and 243(h) of the Immigration and Naturalization Act (the Act), respectively. 8 U.S.C.A. §§ 1158(a) & 1253(h)(1) (1994). On March 9, 1994, the Board of Immigration Appeals (the Board) affirmed the IJ's decision. The Petitioner timely sought review of the Board's decision in this court pursuant to 8 U.S.C.A. § 1105a (1970 & 1994), and seeks a writ of habeas corpus as provided for by 28 U.S.C.A. § 2241 (1994).

To qualify for asylum under the Act,¹ an applicant must fall within the statutory definition of "refugee." 8 U.S.C.A. § 1158(a) (1994). The Act defines "refugee" as:

any person who is outside any country of such person's nationality or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and 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....

8 U.S.C.A. § 1101(a)(42)(A) (1994). Petitioner claims that he fears that if he returns to his homeland he will be forcibly sterilized or fined in accordance with the PRC's population control policy. He argues that because he opposes the policy, his fear constitutes a well-founded fear of persecution based on a political opinion.

In denying Petitioner's application for asylum, the IJ and Board relied upon the Board's decision in Matter of Chang, 89 WL 247513 (BIA 1989). In Chang, the Board held that fear of coerced sterilization as part of a governmental population control policy is not itself fear of persecution on the basis of a political opinion. Petitioner argues that Matter of Chang has been overturned or, alternatively, that the decision of the Board should not receive the Court's deference. For the reasons discussed below, we reject the Petitioner's argument.

Petitioner further argues that the facts found by the IJ support a finding of a well-founded fear of persecution on account of a political opinion. Applying the standards prescribed in Chang, we review the record and find that the facts do not support Petitioner's application for asylum.²

Because we find that Chang remains a valid precedent and that the IJ's factual findings were supported by substantial evidence, the Petition for a Writ of Habeas Corpus is denied.

A. The Board's and Immigration Judge's reliance on Matter of Chang

Petitioner argues that the IJ and Board's decisions were in error because they relied on the Board's decision in Matter of Chang, 89 WL 247513 (BIA 1989). Because of the convoluted effort to reverse Chang administratively, Petitioner argues that Chang is not valid precedent. Under the Administrative Procedures Act, courts reviewing agency decisions must consider questions of law de novo. 5 U.S.C.A. § 706 (1977). Thus, this Court must determine whether Chang was valid legal authority and appropriate precedent for the IJ and Board's decisions. Although the Court conducts a de novo review, the legal determinations of the Board in interpreting the Act are entitled to deference by this court. Nwolise v. INS, 4 F.3d 306, 309 (4th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 888, 127 L.Ed.2d 82 (1994).³

Even without giving the appropriate deference to the Board's determination, this Court would find that Chang is valid legal authority. As discussed below, the administrative pronouncements that sought to supersede Chang are all without force, leaving Chang valid precedent.

In 1989, the Board issued its ruling in Matter of Chang. The Board held that implementation of the PRC's one-child-one-family policy is not itself persecution and does not necessarily create a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. Rather, an alien would be eligible for asylum only if he or she showed that the PRC population policy was selectively enforced or imposed more harshly to punish him or her on account of one of the enumerated reasons. As an example, the Board explained that evidence that the policy was being selectively applied against members of a particular religious group would support a claim for asylum. In addition, the Board surmised that an alien might be eligible for asylum if the population policy were used to punish his public opposition to the policy. Where, however, the applicant's fear was solely that he would be forced to submit to the PRC's population policy, grounds for asylum are absent.

Chang has never been overruled, although several attempts were made by former Attorneys General. In January 1990, an interim rule was published. It stated that "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." 55 Fed.Reg. 2803 (January 29, 1990). The interim rule amended the regulations for asylum, 8 C.F.R. § 208. However, in July 1990, the Attorney General published a final rule that effected a comprehensive revision of the regulations governing procedures for asylum and withholding of deportation, 8 C.F.R. § 208. 55 Fed.Reg. 30674 (July 27, 1990). The July 1990 final rule did not incorporate the interim rule, and therefore superseded it.

Petitioner argues that the July 1990 final rule was not intended to revoke the January 1990 interim rule. Petitioner notes that the preamble to the July 1990 rule makes no mention of the January interim rule. This argument fails because the Attorney General's intention does not affect the validity of the various rules. Regardless of what the Attorney General may or may not have intended, the July 1990 rule was a valid revision of the relevant regulations and did not incorporate the January 1990 rule.

The recision of the January 1990 interim rule, whether by implication or oversight, was valid. The rule that an agency may modify or repeal a regulation only if the change is supported by a reasoned explanation does not apply in this case. See Motor Vehicle Mfrs. Assn. v. State Farm, 463 U.S. 29, 42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) ("an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change"). The State Farm holding applies to "settled" rules. Id. At the time of its recision, the interim rule had been in existence for only seven months, and was therefore not a "settled" rule.

In April 1990, President Bush issued an Executive Order directing the Secretary of State and the Attorney General 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." Exec. Order No. 12711, 55 Fed.Reg. 13,897-98 (1990). Contrary to Petitioner's arguments, the Executive Order did not have the force of law and was not binding on the IJ and the Board. The Executive Order was a directive to the Attorney General and the Secretary of State to "provide for" enhanced consideration. It was not itself a requirement that such enhanced consideration be given.

In January 1993, the Attorney General submitted a final rule to the Federal Register for publication. This rule stated that an "applicant shall be found to be a refugee on the basis of a well-founded fear of persecution on account of political opinion" if the alien shows that he or she will be forced to abort a pregnancy or undergo sterilization, or will be persecuted for refusing to do so, in accordance with the family planning policy of the alien's country. The 1993 final rule was never published. Petitioner argues that the rule was effective despite lack of publication; however, it is unnecessary to reach this question. The 1993 final rule provides that it was to become effective on its date of publication in the Federal Register.⁴ Because the rule was never published, it never became effective.

Unless modified or overruled by the Board or the Attorney General, decisions of the Board are binding on all Immigration Law Judges. 8 C.F.R. § 3.1(g) (1994). The Attorney General may modify or overrule a Board decision through the referral process prescribed in 8 C.F.R. § 3.1(h) (1994) or through issuance of an effective regulation. As discussed above, none of the regulations addressing the issues in Chang were effective at the time of the IJ's decision in this case. Furthermore, the Attorney General has neither modified nor overruled Chang.⁵ Thus, Chang remains in force and was valid, binding precedent for the IJ and Board's decisions.

B. The Board's Factual Findings

The Board's factual determination that Petitioner...