not brought the decision down. Congress passed a bill overruling the decision, but President Bush vetoed it. The 1990 Interim Rule recognized the PRC's family planning policies as a valid basis for asylum, but the 1990 Final Rule eliminated the 1990 Interim Rule and removed from asylum regulations any mention of coercive family planning practices. Indications of viability from the Appellate Counsel and the Office of the General Counsel of the INS are insufficient to preserve the 1990 Interim Rule and render it binding.
Furthermore, although Executive Order 12,711 reiterated the theme of the 1990 Interim Rule, an Executive Order may not be enforced by a private party where no private right of action is created. See Haitian Refugee Center v. Baker, 953 F.2d 1498, 1510-11 (11th Cir. 1992), cert. denied, 117 L. Ed. 2d 477, 112 S. Ct. 1245 (1992). Not only does the Executive Order itself not overrule Chang, Si, 1994 U.S. Dist. LEXIS 14619, at *8, the Attorney General's failure to carry out the order in not overruling Chang in no way entitles petitioner to compel the Attorney General to change BIA standards. Chen, 862 F. Supp. 814, 1994 WL 518996, at *9.
Like Executive Order 12,711, the 1993 Rule reiterated the 1990 Interim Rule in overruling Chang. By its own terms, however, the 1993 Rule was to become effective on its publication. Not only was it withdrawn from publication, but when asylum regulations were published in the Code of Federal Regulations in February 1993, they made no mention of the 1993 Rule. Because the 1993 Rule was never published, it did not become effective and, therefore, did not overrule Chang.
Unless modified by the BIA or the Attorney General, decisions of the BIA are binding on immigration judges. 8 C.F.R. § 3.1(g) (1994). The Attorney General may modify a BIA decision through the referral process set out in 8 C.F.R. § 3.1(h) (1994), or through issuance of an effective regulation. The BIA has not modified Chang; the BIA has followed it. See Matter of G--, Int. Dec. 3215 (BIA December 8, 1993). The Attorney General has not modified Chang pursuant to 8 C.F.R. § 3.1(h). Nor, as discussed above, has the Attorney General issued an effective regulation modifying Chang. Petitioner's claim that the BIA erred in relying on Matter of Chang, because the decision has been overruled, is unpersuasive.
The Court next considers petitioner's claim that the BIA erred in relying on Chang because the decision was wrongly decided and should be overruled. According to Petitioner, the BIA misconstrued § 1101(a)(42)(A) of the INA in rejecting the PRC's policy of family planning as a basis for asylum. The Court cannot agree.
The Attorney General has delegated to the BIA the authority to grant asylum to refugees through the adjudication of claims in administrative deportation and exclusion proceedings. Accardi v. Shaughnessy, 347 U.S. 260, 266-67, 98 L. Ed. 681, 74 S. Ct. 499 (1954). In considering the BIA's interpretation of the INA, a reviewing court has limited discretion. Chen, 862 F. Supp. 814, 1994 WL 518996, at *8. An "inconsistency of policy is not, by itself, sufficient to require less deference to an agency's determination. An interpretation will be rejected only where it is unreasonable and at odds with the plain meaning of the statute." Id.; see Himes v. Shalala, 999 F.2d 684, 690 (2d Cir. 1993) (according deference to Secretary's interpretation of statute even though inconsistent with prior interpretation because current interpretation was "not at odds with the plain meaning of the statute [and was] reasonable").
As discussed in Chen, 862 F. Supp 814,1994 WL 518996, at *8, and Si, 1994 U.S. Dist. LEXIS 14619, at *22-24, the BIA's interpretation of the statute governing asylum claims in Chang is not unreasonable and at odds with the plain meaning of the statute. See Chai v. Carroll, CV 94-0037 (E.D. Va. May 4, 1994) (finding Chang a reasonable interpretation of immigration laws and therefore entitled to deference); Guan v. Carroll, No. CV 94-410-A (E.D. Va. May 13, 1994 (oral opinion upholding Chang); See also Saleh v. Dep't of Justice, 962 F.2d 234, 239 (2d Cir. 1992) (punishment for violation of generally applicable criminal law not persecution); Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir. 1984) (affirming BIA denial of asylum where danger facing petitioner was "the same as faced by other Salvadorians").
That Chang is not unreasonable and at odds with the plain meaning of the INA is made plain by the Supreme Court's decision in Elias-Zacarias. In Elias-Zacarias, the Court held that a guerilla organization's use of threats of violence to coerce a person into joining its forces in fighting the Guatemalan government did not constitute persecution on account of political opinion within the meaning of § 1101(a)(42). 112 S. Ct. at 816. The BIA's ruling in Chang is of the same stripe, except that it relates to coerced family planning rather than forced military inscription.
Accordingly, the Court cannot conclude that the BIA misconstrued § 1101(a)(42)(A) of the INA in rejecting the PRC's policy of family planning as a basis for asylum. Petitioner's claim that the BIA erred in relying on Chang, because the decision was wrongly decided and should be overruled, is unpersuasive.
Finally, the Court considers petitioner's claim that the BIA erred in relying on Chang because the decision in no way undermines his application. According to petitioner, his application for asylum and withholding of deportation is consistent with Chang. The Court cannot agree.
Chang recognized that the PRC's family planning policy could be "implemented in such a way as to individuals or categories of persons so as to be persecution on account of a ground protected by the Act." 1989 WL 247513, at *5. While the PRC's family planning policy may not serve as a basis for asylum to the extent it is "solely tied to controlling population," it may provide a ground for asylum where it represents "a guise for acting against people for reasons protected by the Act." Id. at *5. As explained in Chang,
an individual claiming asylum for reasons related to this policy must establish, based on additional facts present in his case, that the application of the policy to him was in fact persecutive or that he had a well-founded fear that it would be persecutive on account of one of the reasons enumerated in section 101(a)(42)(A). For example, this might include evidence that the policy was being selectively applied against members of particular religious groups or was in fact being used to punish individuals for their political opinions. This does not mean that all who show that they opposed the policy, but were subjected to it anyway, have demonstrated that they are being "punished" for their opinions. Rather, there must be evidence that the government action arises for a reason other than general population control (e.g., evidence of disparate, more severe treatment for those who publicly oppose the policy).