In re X-G-W-, Interim Decision No. 3352.
| Decision Date | 25 June 1998 |
| Docket Number | Interim Decision No. 3352. |
| Citation | 22 I&N Dec. 71 |
| Parties | In re X-G-W-, Applicant. |
| Court | U.S. DOJ Board of Immigration Appeals |
Before: Board En Banc: SCHMIDT, Chairman; VACCA, HOLMES, HURWITZ, VILLAGELIU, COLE, ROSENBERG, MATHON, GUENDELSBERGER, and GRANT, Board Members. Concurring Opinion: FILPPU, Board Member. Dissenting Opinion: HEILMAN, Board Member.
SCHMIDT, Chairman.
The applicant has filed a motion to reopen exclusion proceedings asking the Board to reconsider our prior decision in this case, dated May 10, 1996, denying asylum in the United States and withholding of deportation to the People's Republic of China. The motion to reopen is untimely. We would therefore normally lack jurisdiction to consider it. See 8 C.F.R. § 3.2(c) (1997). However, because of the significant changes to the asylum law enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), we will consider motions to reopen to apply for asylum based on coerced population control policies pursuant to this Board's authority "to reopen or reconsider on its own motion in any case in which we have rendered a decision." See 8 C.F.R. § 3.2(a). We will grant the applicant's application for asylum on a conditional basis, and we also will grant his application for withholding of deportation.
In our prior decision in this case, we found the applicant excludable under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994), for failure to possess a valid immigrant visa upon his arrival in the United States. Further, we agreed with the Immigration Judge that, notwithstanding the applicant's credible testimony concerning his punishment for violating China's "one couple, one child" policy, enforcement of the family planning policy was not, by itself, deemed to create a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Matter of Chang, 20 I&N Dec. 38 (BIA 1989); see also Matter of G-, 20 I&N Dec. 764 (BIA 1993). We therefore dismissed the applicant's appeal on May 10, 1996.
Sweeping changes in the immigration laws were enacted 4 months later. Pertinent to this case, section 601(a)(1) of the IIRIRA, 110 Stat. at 3009-689, amended the definition of a "refugee" by adding the following:
[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.
Section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42)(Supp. II 1996).
In light of this significant change in the asylum law, the applicant, through counsel, filed with the Board a motion to reopen exclusion proceedings, arguing that under section 601 of the IIRIRA, he is now eligible for a grant of asylum and withholding of deportation based on his punishment for violating China's "one couple, one child" policy.
Pursuant to the regulations at 8 C.F.R. § 3.2(c)(2), only one motion to reopen is allowed and must be filed with the Board not later than 90 days after the date on which the final administrative decision was rendered, or, on or before September 30, 1996, whichever date is later. The applicant's motion to reopen our May 10, 1996, order was not filed until February 6, 1997. It is therefore untimely.
The time and number limitation set forth in 8 C.F.R. § 3.2(c)(2), does not, however, apply to (1) motions to reopen certain types of in absentia cases, (2) motions to reopen that are agreed upon by all parties, or (3) motions to reopen to apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality, if such evidence is material and was not available and could not have been discovered or presented at the former hearing. 8 C.F.R. § 3.2(c)(3), The applicant's motion to reopen does not arise in the context of an in absentia proceeding, does not proffer evidence of changed circumstances arising in China, and is opposed by the Service. Thus it does not fall within any of the exceptions enumerated in 8 C.F.R. § 3.2(c)(3).
In addition to the exceptions listed above, the Board retains limited discretionary powers under the regulations to reopen or reconsider cases sua sponte in unique situations where it would serve the interest of justice. Matter of J-J-, 21 I&N Dec. 976 (BIA 1997); 8 C.F.R. § 3.2(a). We find that this case represents such a situation.
This case presents a difficult dilemma for the Board because a marked change in the refugee law, which was meant to provide relief to individuals suffering persecution on account of coerced population control policies, is running up against a change in the regulations intended to bring finality to immigration decisions and to prevent successive and frivolous motions designed to delay deportation. We believe that the change in the asylum law supports reopening in this case for reasons similar to those that allow reopening to apply for asylum based on changes in country conditions in the alien's country of nationality. 8 C.F.R. § 3.2(c)(3)(ii). There is no indication that the applicant in this proceeding delayed applying for asylum or purposefully filed dilatory motions, which is what the 1996 motions regulations sought to prevent. Rather, a significant change in the immigration law made relief available to the applicant on the basis of the same asylum application he filed initially, and he has filed his motion promptly following the new developments.
In response to this situation, affecting many of our recently decided cases, we will accept motions to reopen, which might otherwise be barred by 8 C.F.R. § 3.2(c)(2), to pursue applications for asylum based on coerced population control policies. The motions should continue to be filed in accordance with all other regulatory requirements for filing a motion to reopen, including the submission of the appropriate fee or fee waiver form.
The applicant testified at his hearing that he and his wife had two children in China born 1 year apart. This is a violation of the "one couple, one child" policy, which at most allows for a second child, under certain circumstances, after a determined number of years have passed since the birth of the first child. Bureau of Democracy, Human Rights and Labor, Dep't of State, China — Country Conditions and Comments on Asylum Applications (Dec. 20, 1994). As a result of their violation, the applicant's wife was made to undergo a tubal ligation, the applicant and his wife were fined, and the applicant was dismissed from his government forestry job. The Immigration Judge found the applicant's testimony to be credible and determined that there were no adverse factors that would prevent an asylum grant. Indeed, the Immigration Judge concluded that he would have granted the applicant's request for asylum were it not for the Board's holding in Matter of Chang, supra.
The applicant's punishment for violating China's population control policies falls squarely within section 101(a)(42) of the Act, as amended by section 601 of the IIRIRA, which supersedes our prior ruling in Matter of Chang, supra. Under the new refugee definition, the applicant appears to have suffered past persecution in China on account of political opinion and is presumed under 8 C.F.R. § 208.13(b)(1) (1996) to have a well-founded fear of future persecution. Matter of X-P-T-, 21 I&N Dec. 634 (BIA 1996); see also Matter of H-, 21 I&N Dec. 337 (BIA 1996). This presumption may be rebutted by a showing that country conditions have changed to the extent that the applicant no longer has a well-founded fear of persecution if returned to China. Such a rebuttal has not been offered. Indeed, the Immigration and Naturalization Service stated that it was willing to discuss with the applicant the possibility of filing a joint motion at a later date. Therefore, the applicant's application for asylum will be granted on a conditional basis under Matter of X-P-T-. The applicant is also entitled to withholding of deportation under Matter of X-P-T-, supra.
Due to the fundamental change in asylum law enacted by the IIRIRA, the Board will allow reopening for asylum claims based on coercive family planning policies, which might otherwise be barred by 8 C.F.R. § 3.2(c)(2), where the alien had previously presented persuasive evidence of persecution based on China's "one couple, one child" policy, and where the Board previously denied asylum based on Matter of Chang, supra. The motion must be properly filed with the Board and must be supported by evidence of prima facie eligibility for asylum based on the new definition of a refugee. In this case, we will reopen the applicant's proceedings and grant his application for asylum, on a conditional basis, and his application for withholding of deportation.
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