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GAO v. WATERS

November 14, 1994

JIA-HU GAO, Petitioner,
v.
PHILIP L. WATERS, Acting District Director, United States Immigration Service, and MARY MAGUIRE DUNNE, Director, Executive Office for Immigration Review, Respondents.



The opinion of the court was delivered by: EUGENE F. LYNCH

 Petitioner Jia-Hu Gao ("Gao"), a citizen of the People's Republic of China ("PRC"), arrived in the United States illegally on June 20, 1993. Gao seeks review of the Board of Immigration Appeals ("BIA") denial of his application for asylum and withholding of deportation, 8 U.S.C. § 1105(a) (1970 & 1994), and a writ of habeas corpus. 28 U.S.C. § 2241 (1994). For reasons set out below, the petition is denied.

 BACKGROUND

 This action is one of many necessitated by "the Department of Justice's continuing failure to resolve the controversy over asylum applications based on the PRC's family planning practices." Chen v. Slattery, 862 F. Supp. 814 (E.D.N.Y. 1994). The controversy began with the BIA's decision in Matter of Chang, 1989 BIA LEXIS 13, Int. Dec. 3107, 1989 WL 247513 (1989), and has intensified in the decision's legislative and executive aftermath. See Chen, 862 F. Supp. 814, 1994 WL 518996, at *1-3, Fei v. Carroll, 866 F. Supp. 283 (E.D. Va. 1994), and Di v. Carroll, 842 F. Supp. 858, 861-64 (E.D. Va. 1994), for excellent discussions of the decision's subsequent history.

 In Chang, the BIA held that while the PRC's family planning policy could be implemented so as to make it a basis for asylum, "implementation of the 'one couple, one child' policy in and of itself, even to the extent that involuntary sterilizations may occur," is not persecution and does not create a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, within the meaning of § 101(a)(42)(A) of the Immigration and Nationality Act ("INA"). 1989 WL 247513, at *5.

 In reaching its decision, the BIA declined to follow 1988 policy guidelines announced by Attorney General Meese. Id. at *4. The guidelines directed "INS asylum adjudicators" to give "careful consideration" to the asylum applications of PRC nationals who refused to abort a pregnancy or undergo sterilization as an "act of conscience." The BIA found the Attorney General's directive inapplicable to decisions by immigration judges and the BIA. Id.

 Not long after Chang was decided, Congress attempted to overrule the decision by amending the Emergency Chinese Immigration Relief Act of 1989. *fn1" Congress passed the bill at the end of November 1989, but President Bush rejected it. His veto notwithstanding, however, the President directed the Attorney General to give "enhanced consideration" under the immigration laws to "individuals from any country who express a fear of persecution upon return to their country related to that country's policy of forced abortion or coerced sterilization." Memorandum of Disapproval for the Emergency Chinese Immigration Relief Act of 1989, 25 Weekly Compilation of Presidential Documents, at 1853-54 (1989).

 In January 1990, Attorney General Thornburgh issued an interim rule (the "1990 Interim Rule") relating to coercive family planning policies. The rule was published in the Federal Register with requests for comments, see 55 Fed. Reg. 2803 (1990), and then became effective on January 29, 1990. According to the 1990 Interim Rule, the PRC's family planning policy and practice could serve as a basis for asylum. *fn2" Id.

 Approximately three months later, on April 11, 1990, President Bush issued Executive Order 12,711, underscoring the 1990 Interim Rule. Executive Order 12,711 directed the Attorney General to slow or stop the deportation or exclusion of PRC nationals from the United States. The Order reiterated the directive to "provide for enhanced consideration under the immigration laws for individuals" who expressed a fear of persecution on return to their homelands due to policies of forced abortion or coerced sterilization "as implemented by [the January 1990 Interim Rule]." *fn3" Exec. Order No. 12,711, 55 Fed. Reg. 13,897 (1990).

 Then in July 1990, Attorney General Thornburgh published a final rule ("the 1990 Final Rule") setting out the procedures for determining asylum under § 208 and withholding of deportation under § 243(h) of the INA. See 55 Fed. Reg. 30,674 (1990). The rule not only eliminated the 1990 Interim Rule without mention, but it also removed from the asylum regulations any mention of coercive family planning practices.

 Confusion as to the status of the 1990 Interim Rule ensued, and in April 1991, the Chief Attorney Examiner of the BIA made a written inquiry to the Appellate Counsel of the Immigration and Naturalization ("INS") on the matter. The Appellate Counsel replied that the January 1990 Interim Rule had not been amended or repealed and that the interim regulation remained the policy of the INS. In a November 1991 memorandum to Regional Counsel and District Counsel, the Office of the General Counsel of the INS indicated that Department of Justice and INS "policy with respect to aliens claiming asylum or withholding of deportation based upon coercive family planning policies is that the application of such coercive policies does constitute persecution on account of political opinion."

 In the last days of the Bush administration, in January 1993, the Attorney General signed a final rule (the "1993 Rule"), reiterating the 1990 Interim Rule and overruling Chang. The 1993 Rule referred specifically to comments made on the 1990 Interim Rule and amended the regulations to permit asylum on the basis of the PRC's family planning policy. *fn4" The rule provided that it was to become effective on its date of publication in the Federal Register. *fn5"

 The 1993 Rule was sent to the Federal Register and scheduled for publication on January 25, 1993, but was never published. When President Clinton was inaugurated on January 22, 1993 -- three days before the scheduled publication -- the proposed director of the Office of Management and Budget issued a directive prohibiting the publication of any new regulation not approved by a Clinton-appointed agency head. Asylum regulations published in the Code of Federal Regulations in February 1993 made no mention of the 1993 Rule. See 8 C.F.R. §§ 103, 208, 236, 242, 253 (1993).

 Finally, when in December 1993 two cases of individuals seeking asylum based on the population control practices of the PRC were referred to Attorney General Reno for her review pursuant to 8 C.F.R. § 3.1(h)(1)(ii), she declined to resolve any conflict between Chang and Executive Order 12,711. The Attorney General stated that "after review, it is apparent that the BIA's decisions in these cases do not require a determination that one or the other of these standards is lawful and binding." *fn6" See Att. Gen. Order No. 1756-93 (June 29, 1993).

 FACTS

 Against the backdrop of this controversy, petitioner Gao has sought asylum and withholding of deportation. When he arrived in the United States, petitioner Gao was taken into custody by the INS, and exclusion proceedings were initiated against him pursuant to INA § 236. Petitioner conceded he was excludable from the United States but ...


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