Matter of Chang
| Decision Date | 12 May 1989 |
| Docket Number | Interim Decision Number 3107,A-27202715. |
| Citation | 20 I&N Dec. 38 |
| Parties | MATTER OF CHANG. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated December 18, 1986, the immigration judge found the respondent deportable on the charge set forth above and denied his applications for asylum, withholding of deportation, and voluntary departure. The respondent has appealed from the denial of those applications. The appeal will be dismissed, except insofar as it concerns the denial of voluntary departure. The request for oral argument is denied.
With respect to his applications for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1253(h) (1982), the respondent, a 33-year-old native and citizen of the People's Republic of China, made the following assertions. In his application for asylum, the respondent indicated that he was an anti-Communist who fled his homeland "because of Communist domination of China"; that he did not base his asylum claim on conditions in China that affected his freedom more than the rest of the country's population; and that neither he nor any member of his immediate family had "ever been mistreated by the authorities of his home country." His asylum application did not reference any claim to asylum based on his country's population control measures and he did not allege any mistreatment arising from such policies.
At his deportation hearing, the respondent testified that he was afraid of persecution in China; that people there were "mobilized" and "forced to do the bidding of the government"; that he and his wife were not given any work to do; that he and his wife were forced to flee from their commune because they had two children and did not agree to stop having more children; and, that they disagreed with China's family planning policies because "in the countryside, especially in the farming areas, we need more children." He indicated that the "government" wanted him to go to a clinic to be sterilized, that he thought the operation would "harm" his body, that he did not want to be sterilized, and that if he returned to China he would be forced to submit to the operation. He testified that his wife was supposed to go to the clinic but did not do so because she was ill. He testified that he did not know what would have happened if his wife had gone to the clinic. He further testified that he did not mention his opposition to China's birth control policies on his asylum application because "nobody had asked [him]" and because he was not very "conversant" in expressing himself and did not understand English.
On appeal, the respondent, through counsel, states that the facts of the case are that he and his wife were ordered by their commune to submit to sterilization operations after the birth of their second child, that his wife was able to "postpone" the operation due to illness, but that he fled China because he had no choice other than to submit to the surgery.
In conjunction with the appeal, the respondent also submitted a letter from the Library of Congress dated November 23, 1987, transmitting to the Immigration and Naturalization Service a report entitled "Population Control in the People's Republic of China." The report was apparently requested by the Service in connection with another matter.1 According to the report, the People's Republic of China ("PRC") has no national law on population control per se. The constitution provides that the state shall carry out family planning to control the size of the population and that spouses have the duty to carry out family planning. The Marriage Law of 1980 sets minimum marriage ages and places responsibility for birth control on both partners. The provinces and the cities governed directly by the state have enacted their own regulations on population control, but the population control program is guided by a joint directive of the Chinese Communist Party and the state entitled "On the Further Implementation of Family Planning Work" of February 1982. The policy provides that state cadres and urban residents are allowed one child per couple, with exceptions when special permission is granted. In rural areas generally the one-child rule is applied, except that where there are special difficulties, such as the birth of a handicapped child who cannot work, application to have a second child can be made. In no case is a third birth to be permitted. The rules are more leniently applied to families of non-Han ethnic minority groups. Late in 1985, it was announced that the one-child rule would be relaxed, and that in some areas a second child would be permitted if the first was a girl and in other special circumstances. The mechanics of the implementation of the program are by and large locally determined. Economic sanctions, peer pressure, and propaganda are used to insure compliance. Single child families receive health and educational benefits for the child. Couples who continue pregnancies which are not allowed may suffer the suspension of wages, fines, loss of seniority for promotion, and so forth. Couples are urged to undergo birth control operations (sterilization). Wages are sometimes paid during a rest period after sterilization, and cash rewards have been used to encourage sterilization. The Chinese Government has consistently denied supporting any use of force to obtain compliance with birth quotas. The transmittal letter forwarding the report states that punishment in the form of a sterilization operation is not provided for in Chinese law, though local officials may have used the one-child campaign to carry out a private vendetta.
Counsel also relies on the 1985 and 1987 Country Reports on Human Rights Practices, Joint Committee of the Senate and the House of Representatives, 99th Congress, 2d Session (1986), and 100th Congress, 2d Session (1988) ("Country Reports"), respectively. The 1985 Country Report on the PRC indicates that
[r]eported instances of family planning malpractice occur mostly in rural areas, where local officials have sometimes translated the policy into rigid quotas. Chinese authorities say they take measures against local officials who violate the Government's policy in this regard, but there have been few reports of punishment of such offenders.
1985 Country Reports at 741. According to the 1987 report, provinces are allowed to make their own regulations regarding implementation of the one-child policy as long as overall birthrates match the state-imposed goals. In the past, local officials coerced significant numbers of women into having abortions. In 1987 the Chinese Government stressed repeatedly that it does not condone forced abortions or sterilizations. Chinese authorities have said that they take measures against local officials who violate the Government's policy. Despite central government efforts to prevent the imposition of rigid quotas, local government officials and peers reportedly continue to exert pressure on some persons seeking to have second children. Economic pressure on families with more than two children can be severe and can include loss of party membership, loss of job, difficulty in purchasing state-supplied seed, fertilizer, and fuel and other sanctions. 1987 Country Reports at 666.2
An applicant for asylum must establish that he was persecuted, or that a reasonable person in his circumstances would fear persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See sections 101(a)(42)(A), 208(a) of the Act, 8 U.S.C. §§ 1101(a)(42)(A), 1158(a) (1982); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Carcamo-Flores v. INS, 805 F.2d 60 (2d Cir. 1986); Guevara Flores v. INS, 786 F.2d 1242 (5th Cir. 1986), cert. denied, 480 U.S. 930 (1987); Matter of Vigil, 19 I&N...
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