Guo Chun Di v. Carroll

• Citation: 842 F. Supp. 858
• Decision Date: 14 January 1994
• Docket Number: No. CV 93-1377-A.,CV 93-1377-A.
• Parties: GUO CHUN DI, Petitioner, v. William J. CARROLL, District Director of the United States Immigration and Naturalization Service, Washington District; and David L. Milhollan, Director of the Executive Office for Immigration Review and Chairman of the Board of Immigration Appeals, Respondents.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

842 F. Supp. 858

GUO CHUN DI, Petitioner, v. William J. CARROLL, District Director of the United States Immigration and Naturalization Service, Washington District; and David L. Milhollan, Director of the Executive Office for Immigration Review and Chairman of the Board of Immigration Appeals, Respondents.

No. CV 93-1377-A.

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

January 14, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Timothy S. Burgett, John W. Polk, Philip K. Lau, Baker and McKenzie, Washington, DC, for petitioner.

Helen Fahey, U.S. Atty., Theresa Carroll Buchanan, Asst. U.S. Atty., Alexandria, VA, Kristin A. Cabral, David M. McConnell, Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice, Washington, DC, for respondents.

MEMORANDUM OPINION

ELLIS, District Judge.

I.

This petition for a writ of habeas corpus presents the question whether aliens who have a well-founded fear that they will be arrested and involuntarily sterilized because they oppose and refuse to obey their country's coercive population control policies may be granted asylum on the ground of "persecution * * * on account of ... political opinion." 8 U.S.C. § 1101(a)(42)(A) (hereafter "the Act"). Imbedded in this general question are subsidiary, predicate questions concerning the validity and effect, if any, of various administrative efforts to construe the Act. Finally, because the Court concludes that the cacophonous administrative record merits no judicial deference, the central question presented is whether the Act, properly construed, extends asylum to an alien who fled his country to avoid arrest, imprisonment and involuntary sterilization because he and his wife oppose and will not obey their country's policy of coercive population control through involuntary sterilization and abortion.

II.

1. Petitioner's History

Petitioner, Guo Chun Di, is a 28 year old citizen of the Peoples Republic of China ("PRC"), who fled his country aboard the vessel Golden Venture, which ran aground in New York harbor on June 6, 1993. When this occurred, petitioner was one of many aliens on the ship who jumped overboard and attempted to swim to shore. While still in the water, petitioner was rescued, and then detained and taken into custody by the Immigration and Naturalization Service ("INS"). The INS charged petitioner with attempting to enter the United States without valid documents in violation of federal law. Petitioner, who asserted a claim for political asylum under the Act, was transferred to a state detention facility in Winchester, Virginia, pending completion of an exclusion and deportation proceeding initiated against him by INS pursuant to 8 U.S.C. § 1226.

At a hearing before an immigration judge in Arlington, Virginia, petitioner testified through an interpreter and described the events that led to his decision to flee his country. Specifically, he testified that following the birth of his first child, government family planning officials ordered his wife to report to a local hospital for a sterilization operation. Strongly opposed to this involuntary sterilization, his wife fled from the village in which they lived to relatives in a distant city. At this point, government planning officials then sent petitioner a similar notice to report to a local hospital for a sterilization operation. Firmly opposed to the government-ordered involuntary sterilization, petitioner also fled his home village and joined his wife in the city. While living in the city, petitioner received word from relatives living in his home village that government officials had visited his home, confiscated his and his wife's personal property and then destroyed the portion of the house in which petitioner and his wife had lived. On receiving this information, petitioner decided to leave the PRC and come to the United States. In his own words, his reasons for doing so were as follows:

Q. And can you say exactly why you wanted to leave China?

A. Because I feared that China has no freedom. Because I only have one child, I want to have two more child, but they don't let me have. If .. I afraid that if they find me, they will took me to get sterilize operation.

Q. Why did you want to come to the United States instead of some other country?

A. Because I heard about the U.S.A. is a freedom country.

Q. What do you think would happen to you if you were sent back to China?

A. They ... first they will sent me to the jail and then they will force me to do the sterilize sic operation.

The immigration judge found petitioner truthful and accepted petitioner's account of the facts and circumstances that led to petitioner's decision to flee government persecution in the PRC and to come to America.¹ Even so, however, the immigration judge ruled that petitioner (i) was "not a `refugee' as that term is defined by law," (ii) was therefore ineligible for asylum, and (iii) was subject instead to exclusion and deportation. In reaching this conclusion, the immigration judge relied on Matter of Chang, Int.Dec. 3107, 1989 WL 247513 (BIA 1989), a decision of the Board of Immigration Appeals ("BIA") purporting to hold that government persecution in furtherance of a coercive population control policy that includes involuntary sterilization does not constitute "persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).² Petitioner appealed this ruling to the BIA on the ground that certain federal regulations had invalidated Chang. The Board rejected petitioner's appeal after noting that Chang was still valid controlling administrative precedent, as the regulations petitioner cited "were not codified and have no force or effect." This petition for a writ of habeas corpus followed.

2. Regulatory History

Chang issued in May 1989. Almost a year earlier, the Department of Justice had issued policy guidelines to the INS designed to ensure that asylum could be granted to persons who could show well-founded fear of government persecution stemming from the PRC's involuntary sterilization and abortion programs.³ INS did not implement these guidelines and the Board in Chang expressly stated it was not bound by the guidelines.

Soon after the May 1989 Chang decision, efforts were made in Congress to overturn it. These efforts culminated in the Armstrong — DeConcini Amendment to the Emergency Chinese Immigration Relief Act of 1989, H.R. 2712, which was drafted and offered for the express purpose of overruling Chang. Sponsors of the amendment expressed frustration that the Attorney General's guidelines were not implemented by the INS. By November 1989, the Senate had unanimously passed the amendment and the House, by a substantial margin, had voted to concur in the amendment. While in agreement with the amendment, President Bush vetoed the Emergency Chinese Immigration Relief Act of 1989, citing concerns with other portions of the bill. See Memorandum of Disapproval for the Emergency Chinese Immigration Relief Act of 1989, Weekly Comp.Pres.Doc. 1853-54 (Nov. 30, 1989). The House of Representatives voted to override the veto, but the Senate failed by five votes to do so. Several Senators voting to uphold the veto noted that they did so in reliance on the President's assurances that administrative action would be taken to ensure that Chang was reversed.⁴ Faithful to his assurances and reflecting his agreement with the amendment, if not the entire bill, President Bush issued instructions to the Attorney General to take appropriate action.

Responding to this instruction, the then Attorney General, in January 1990, promulgated an interim rule amending the existing regulations governing asylum and withholding of deportation (hereinafter "January 1990 Interim Rule"). Specifically, the January 1990 Interim Rule amended then-existing C.F.R. § 208.5 to provide that:

1. Aliens who have a well-founded fear that they will be required ... 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 the applicant's spouse) has refused ... 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 be sterilized or otherwise persecuted if the applicant were returned to such country may be granted asylum.

Approximately three months after the promulgation of the January 1990 Interim Rule, an executive order issued underscoring the substance of the January 1990 Interim Rule. The executive order stated:

The Secretary of State and the Attorney General are directed 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.

The next chapter in this regulatory saga occurred in July 1990, when the Attorney General published a final rule setting forth extensive changes in the regulations pertaining to asylum and withholding of deportation. See 55 Fed.Reg. 30674 (July 27, 1990) (hereinafter "July 1990 Rule"). The July 1990 Rule inexplicably made no mention whatever of the January 1990 Interim Rule, nor did it refer in any way to the issue of asylum for persecution on the basis of opposition to coercive family planning policies, including policies involving involuntary abortions and sterilizations. Still, this July 1990 Rule rewrote, among other things, the sections of the Code of Federal Regulations that were ostensibly amended by the January 1990 Interim Rule so that when the Code of Federal Regulations was published in January 1991, the January 1990 Interim Rule had quite simply and remarkably vanished...