In re X-P-T-
| Citation | 21 I&N Dec. 634 |
| Decision Date | 18 December 1996 |
| Docket Number | Interim Decision No. 3299. |
| Parties | In re X-P-T-, Applicant. |
| Court | U.S. DOJ Board of Immigration Appeals |
We have jurisdiction under 8 C.F.R. § 3.1(b)(1) (1996) over this timely appeal from the Immigration Judge's October 5, 1995, decision ordering the applicant excluded and deported from the United States. Excludability was conceded. The only issues on appeal concern the Immigration Judge's denial of the applicant's claims for asylum under section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a) (1994), and withholding of exclusion and deportation under section 243(h)(1) of the Act, 8 U.S.C. § 1253(h)(1) (1994). Both of these claims were based on the applicant's persecution for violations of the coercive population control policies of China.
We will sustain the applicant's appeal because of the changes to the law of asylum and withholding of deportation made by section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-689 (enacted Sept. 30, 1996) ("IIRIRA"). Our contrary ruling in Matter of Chang, 20 I&N Dec. 38 (BIA 1989), is superseded by the new law. We will grant the applicant withholding of deportation and conditionally grant her application for asylum.
The applicant presented credible testimony and documentary evidence, and the Immigration Judge found that she and her husband violated the "one couple, one child" population control policy of China by having three children, and that as a result, she was forcibly sterilized. On appeal, neither party has challenged those findings, which we accept as accurate. Other than our decision in Matter of Chang, supra, no grounds for denial of asylum on the basis of either statutory ineligibility or discretionary matters were raised below.
The Immigration Judge denied asylum and withholding of deportation because, pursuant to Matter of Chang, supra, the applicant failed to show that forcible sterilization imposed because of violations of China's population control policy constitutes persecution on account of any protected basis. The issue on appeal is whether that result is changed by the enactment of section 601 of the IIRIRA. We hold that it is. Our ruling that the applicant meets the persecution definition contained in section 601 also requires us to address the numerical limitations on asylum grants set forth in that section.
Section 601(a)(1) of the IIRIRA, 110 Stat. at 3009-689, amends the refugee definition of section 101(a)(42) of the Act (to be codified at 8 U.S.C. § 1101(a)(42)) by adding a sentence stating:
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
Section 601(b) of the IIRIRA, 110 Stat. at 3009-689, also adds a new subsection to section 207(a) of the Act (to be codified at 8 U.S.C. § 1157(a)), stating:
(5) For any fiscal year, not more than a total of 1,000 refugees may be admitted under this subsection or granted asylum under section 208 pursuant to a determination under the third sentence of section 101(a)(42) ().
In the absence of a specific effective date in the statute, both of these provisions became effective on September 30, 1996, the date of enactment of the IIRIRA. See Matter of U-M-, 20 I&N Dec. 327, 332 (BIA 1991), aff'd, 989 F.2d 1085 (1993).
As recognized by the parties, the applicant's forced sterilization for violation of China's population control policies falls squarely within section 101(a)(42) of the Act, as amended by the IIRIRA. This amended statute supersedes our prior ruling in Matter of Chang, supra. Therefore, the applicant has suffered past persecution in China on account of political opinion.
Because the applicant has suffered past persecution, she is presumed under 8 C.F.R. § 208.13(b)(1) (1996) to have a well-founded fear of future persecution. 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. The Immigration and Naturalization Service presented no evidence of changed country conditions at the hearing below, nor does it seek to do so on appeal.2 In fact, the Service Appellate Counsel agrees that the applicant should be granted asylum.
We now turn to the numerical limitation imposed under section 207(a)(5) of the Act on asylum grants based on resistance to coercive population control policies. Counsel for the applicant urges that as impartial adjudicators we should treat that numerical limit not as an asylum eligibility factor, but rather as directed solely at the Service's ability to adjust the status of asylees to permanent residents at some later date. This interpretation conflicts with the literal language of section 207(a)(5), which limits the number of population control-based refugees who may be "granted asylum under section 208." It also is inconsistent with the separate numerical limitation on the number of asylees who may adjust in any fiscal year contained in section 209(b) of the Act, 8 U.S.C. § 1159(b) (1994). We therefore reject counsel's interpretation.
The Service argues that neither it nor the Executive Office for Immigration Review ("EOIR"), of which we are a part, may grant asylum to a population control-based refugee above the 1,000 limit imposed by section 207(a)(5) of the Act. The Service also...
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