In re C-Y-Z-, Interim Decision #3319

• Decision Date: 04 June 1997
• Docket Number: Interim Decision #3319
• Parties: In re C-Y-Z-, Applicant
• Court: U.S. DOJ Board of Immigration Appeals

Page 1

In re C-Y-Z-, Applicant

Interim Decision #3319

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Decided June 4, 1997

(1) An alien whose spouse was forced to undergo an abortion or sterilization procedure can establish past persecution on account of political opinion and qualifies as a refugee within the definition of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (1994), as amended by section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009, ____.

(2) The regulatory presumption of a well-founded fear of future persecution may not be rebutted in the absence of changed country conditions, regardless of the fact that the sterilization of the alien's spouse negates the likelihood of future sterilization to the alien.

Yee Ling Poon, Esquire, for the applicant

Charles Parker, Jr., Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HEILMAN, HOLMES, HURWITZ, COLE, MATHON, and GUENDELSBERGER, Board Members. Concurring Opinion: ROSENBERG. Concurring and Dissenting Opinion: FILPPU, Board Member. Dissenting Opinions: VACCA, Board Member; VILLAGELIU, Board Member.

HEILMAN, Board Member:

The applicant, a native and citizen of the People's Republic of China, has timely appealed from the Immigration Judge's denial of asylum and withholding of deportation. The appeal will be sustained.

I. FACTS

The applicant is a native and citizen of the People's Republic of China who arrived in this country on April 23, 1993. He was married in China on October 25, 1986,¹ and is the father of three children, two daughters born on July 31, 1988, and March 18, 1990, and a son born on April 14, 1991. The applicant claimed in his asylum application that he was persecuted in China on account of his opposition to China's birth control policies. He claimed in a supplemental affidavit to his asylum application that, after the birth of his first child, his wife was forced to obtain an intrauterine device ("IUD") in September 1988, and that when he protested, he was arrested and detained for 1 day. The IUD was later removed, and his wife became pregnant a second time. The applicant stated that his wife was ordered to undergo an abortion in January 1990, but avoided doing so by hiding with relatives. The applicant and his wife returned home for the child's birth. On May 8, 1990, they were fined 2,000 yuan. The applicant stated that he paid the fine to avoid having his house destroyed by birth control cadres.

The applicant then testified that his wife became pregnant a third time because they wanted a son, and that he and his wife once again hid to avoid detection. They also returned home in time for his wife to give birth. After the birth of the third child, the applicant's wife was forced to be sterilized against her will on May 25, 1991. The applicant left China approximately 18 months after his wife's sterilization. In support of his application, the applicant submitted unauthenticated copies of the following documents: a certificate that his wife was sterilized, a document showing that he was fined, a marriage certificate, birth certificates for his children, and a copy of his household registry.

II. IMMIGRATION JUDGE'S DECISION

The Immigration Judge did not make an adverse credibility finding in this case. He stated that "[p]utting aside any questions I might have as to whether the applicant has been completely truthful about the actual facts in the case, whether he has told the truth, whether he has lied, whether he has embellished or puffed the story to make it seem more than it is," it appeared only that the Chinese Government "put some roadblocks in this applicant and his wife's way in having their family," but that ultimately, they were able to do so with only a minimal fine. Although the Immigration Judge mentioned the fact of the forced sterilization procedure, he noted only that the applicant had no other problems in China, and that "[c]ertainly his wife, if indeed she was forced to undergo an involuntary sterilization, did not gain anything from having the applicant abandon her and the children for the United States." The Immigration Judge concluded that nothing specific had happened to this applicant other than a threat of arrest and a brief 1-day detention, and that, "[i]n effect, the applicant seeks to ride on his wife's coattails or claim asylum because of alleged adverse factors to his wife, including forced sterilization. He, himself, has never been persecuted and he cannot show either past persecution or a reasonable fear of future persecution."

We note that the Immigration Judge's decision that the applicant had not been a victim of past persecution or a member of a group protected under the Immigration and Nationality Act was consistent with the Board's decision in Matter of Chang, 20 I&N Dec. 38 (BIA 1989). However, subsequent to the Immigration Judge's decision, the law was amended to specifically address coercive family planning practices in the context of applications for asylum, and Matter of Chang, supra, has been superseded by our recent decision in Matter of X-P-T-, 21 I&N Dec. 3299 (BIA 1996), which is discussed below.

III. SECTION 601(a) OF THE IIRIRA

During the pendency of this appeal, section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009, ____ ("IIRIRA"), was enacted on September 30, 1996. Section 601(a) amended the refugee definition of section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (1994), by adding the following sentence:

For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

This Board subsequently determined in Matter of X-P-T-, supra, that an alien who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for resistance to a coercive population control program, has suffered past persecution on account of political opinion and qualifies as a refugee within the amended definition of that term under section 101(a)(42) of the Act.

IV. ISSUE

The threshold issue on appeal is whether the applicant in this case can establish past political persecution based upon his wife's sterilization. If so, we then must determine whether, without more, the applicant has established statutory eligibility for asylum in the absence of changed country conditions.

V. SERVICE'S POSITION

The position of the Immigration and Naturalization Service is that past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse. The Service specifically stated in a memorandum of October 21, 1996, entitled "Asylum Based on Coercive Family Planning Policies — Section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996," that "an applicant whose spouse was forced to undergo an abortion or involuntary sterilization has suffered past persecution, and may thereby be eligible for asylum under the terms of the new refugee definition." Memorandum from the Office of the General Counsel of the Immigration and Naturalization Service 4 (Oct. 21, 1996) [hereinafter Memorandum]. The Service also conceded this fact in its brief on appeal in this case, stating, "The Service is aware that its legal perspective as directed by the General Counsel is that the husband of a sterilized wife can essentially stand in her shoes and make a bona fide and non-frivolous application for asylum based on problems impacting more intimately on her than on him." The Service asserted, however, that an alien who has established past persecution may or may not be able to establish a well-founded fear of future persecution. In its brief the Service relied on the memorandum, which stated: "If the applicant does not have a wellfounded fear of future persecution, he would only merit a favorable exercise of discretion . . . if the abortion or involuntary sterilization is determined to be an `atrocious form' of persecution to the applicant." Memorandum, supra, at 4. The Service then argued that this case is distinguishable from Matter of X-P-T-, supra, because the documents submitted were not authenticated, and that there were other factors which impacted on the applicant's credibility, noting, "[F]or example, the IJ was not convinced of the necessity of fleeing China because the harm, if any, that had occurred has ceased and did not impact directly against the person of the applicant." In addition, the Service also stated that there was no evidence in the record which alleged "that sterilization was accomplished under any governmental orders entered against the wishes of the applicant or his wife."

VI. APPLICANT'S POSITION

The applicant stated on appeal that he is entitled to asylum on the basis of our decision in Matter of X-P-T-, supra, and on the basis of the October 21, 1996, memorandum from the Immigration and Naturalization Service's Office of General Counsel. Memorandum, supra. The applicant asserted, however, that the "atrocious form of...