INS Policy on Family Planning Claims from PRC

Please observe the following instructions in processing nationals of the People's Republic of China (PRC) who present claims relating to the enforcement of coercive family planning practices.

I. Asylum Claims Involving Coercive Family Planning Practices

There has been a difference of opinion between the INS and the Executive Office for Immigration Review (EOIR) regarding the proper treatment of asylum and withholding of deportation claims based on coercive family planning practices. Immigration judges have generally continued to follow Matter of Chang, Int. Dec. 3107 (1989). The INS Office of the General Counsel maintained that INS' obligations with respect to such claims stem from Executive Order 12711 and earlier related Department of Justice directives.

In June 1993, the Board of Immigration Appeals (BIA) certified two cases to the Attorney General, Matter of Chu, A71 824 281 (BIA June 7, 1993), and Matter of Tzun, A71 824 320 (BIA a memorandum declining to review the two cases. Her memorandum was based upon a determination that the cases "do not require a determination that one or the other of these standards [i.e., that of Chang or that of the Executive Order] is lawful and binding." The Attorney General's memorandum did not address the effect of the Executive Order.

The following day the BIA issued Matter of G-, Int. Dec. 3215 (BIA December 8, 1993), its first published decision on this issue since Chang. In Matter of G- the BIA followed Chang to deny an asylum claim based upon coercive population control practices. Matter of G- represents an exercise by the BIA of the power delegated to it by the Attorney General to issue a published precedent decision. That decision is binding on employees of INS. See 8 C.R.F. ' 3.1(g). Accordingly, absent further instructions, INS employees must follow Matter of G- and Matter of Chang when assessing claims for asylum and withholding of deportation from persons fleeing coercive family planning practices.

It should be noted that neither Chang nor Matter of G- sets forth a blanket rule the no person fleeing coercive population control practices in the PRC can qualify for asylum or withholding of deportation. An applicant might be entitled to asylum or withholding of deportation where there are "facts that establish that the policy was being selectively applied against [the applicant] as a member of a particular religious or other social group, or being used as a means to punish him because of his race, nationality, or political opinion." Matter of G-, slip op. at 17 (citing Chang.).

II. Repatriation of PRC Nationals Who Fear Coercive Family Planning Practices

While asylum may not be available in most cases, the more extreme practices sometimes employed in the enforcement of family planning policies in the PRC can give rise to difficult cases where, for humanitarian reasons, INS may not wish to repatriate the alien. In order to address the genuine humanitarian issues that exist in such cases, prior to removing such an alien with a final order of exclusion or deportation, consideration will be given to granting such an alien a stay of deportation.

This discretion should only be exercised in cases where, in the context of an asylum application or other wise, the alien has expressed a credible fear of returning to the PRC and his claim falls into any of the following three categories: (1) the person, upon return to the PRC, is faced with imminent danger of forced abortion or involuntary sterilization; (2) the person has suffered or would suffer severe harm for refusing to submit to an abortion or sterilization; or (3) the person has suffered or would suffer severe harm because he violated other unreasonable family planning restrictions. This latter category would include not only persons who have refused to submit to abortion or sterilization, but persons who have been or would be subject to severe harm for violations of other family planning restrictions, including limitations on the number of spacing of children. It would not, however, include a person who has one child, expresses an intention to have a second child, and speculates that this will result in severe harm.

A. Aliens with Final Orders

In evaluating whether a PRC national with a final order should be removed, the following procedures should be followed:

1. The DDP officer tasked with processing the case for removal must review the alien's file to determine whether the alien has ever applied for asylum or withholding of deportation or otherwise expressed a fear of return based upon the enforcement of family planning practices in the PRC. The DDP officer's review should include a review of the following:

a. Asylum pre-screening officer (APSO) interview notes
b. Form I-589 (any version)
c. Decision of the asylum officer
d. Decision of the immigration judge
e. Transcript of the proceedings
f. Appeal(s) filed before the Board of Immigration Appeals (e.g., briefs, motions etc.)
g. Decision of the Board of Immigration Appeals
h. Motion(s) to Reopen
i. Petition(s) to the District court (habeas corpus) or the Court of Appeals

2. In cases where the alien has not expressed a fear of returning based on the enforcement of family planning practices in the PRC or the alien wishes to depart the United States, arrangements for the alien's repatriation may proceed.

3. In cases where the alien has submitted an asylum or withholding or deportation application or has otherwise expressed a fear of return based on the enforcement of family planning practices in the PRC or, due to an incomplete file, the DDP officer is unable to determine on what basis the alien has claimed asylum or withholding of deportation, the case should be referred to the District Counsel.

4. Upon receiving an A-file from DDP, the responsible trial attorney must review the file to determine whether the facts of the alien's circumstances fall into one of the three categories enumerated in the second paragraph of Section II. The trial attorney must also assess the credibility of the alien's claim. In making such assessments, the trial attorney should rely on evidence in the record that demonstrates that the alien's testimony has been expressly deemed credible (or not credible) by an asylum pre-screening officer, an asylum officer, an immigration judge, or the BIA. In cases where no express credibility finding was made by an asylum pre-screening officer, an asylum officer, an immigration judge, or the BIA, the trial attorney should make a credibility determination based upon a review of the file. If the trial attorney is unable to make a credibility determination, the alien should be scheduled for an interview before an APSO for such an evaluation. All findings and assessments made by the trial attorney and/or the APSO should be forwarded to the DDP officer tasked with processing the case.

5. In cases in which an alien with a final order of exclusion or deportation is found to be credible and has presented facts which fall into any of the three categories enumerated in the second paragraph of Section II, the DDP officer tasked with processing the case for removal should forward a recommendation for a stay of deportation to the District Director.

Note: If the alien is found to be incredible and/or has not presented facts which fall into any of the three categories enumerated in the second paragraph of Section II, INS may continue repatriation arrangements.

6. The District Director may exercise his/her discretion to grant a stay of deportation.

7. In cases where the District Director intends to deny a stay of deportation, the District Director must forward his/her decision, and the reasons for the decision, to the Regional Director or anyone designated in writing by him/her to act on his/her behalf. The decision whether or not to grant a stay of deportation in such case will be made by the District Director in consultation with the Regional Director or his/her designee. The Regional Director shall keep the Executive Associate Commissioner for Field Operations apprised of such cases.

8. As with other discretionary determinations, the decision of the District Director will not be limited or controlled by any referral or recommendation made to him/her, nor will it be restricted to a consideration of the matters bearing on whether the facts presented by the alien properly fits one or more of the referral categories described in the second paragraph of Section II.

An alien granted a stay of deportation will, upon appropriate application, be given work authorization not to exceed the time in which he is authorized to remain in the United States.

B. Detained Aliens

All PRC nationals who have expressed a fear of return relating to the enforcement of family planning practices in the PRC may, at the discretion of the District Director, be released from INS custody or paroled into the United States pending final resolution of their immigration proceedings. This discretion may be exercise if the alien's testimony has been deemed credible and the facts he presents fall into any of the three categories enumerated in the second paragraph of Section II. In evaluation whether a PRC national should be released from detention, a file review similar to that outlined in Section II.A should be performed. If the District Director favorably exercises his discretion to release (in the case of an alien in deportation proceedings) or parole (in the case of an alien in exclusion proceedings) the alien, upon filing the appropriate application, that alien will also be granted work authorization pending resolution of his case.

When an APSO interviews a PRC national who expresses a fear of return related to the enforcement of family planning practices in the PRC, he should recommend the alien for parole into the United States pending resolution of the alien's immigration status if he finds that person's testimony credible and the facts he presents fall into any of the three categories enumerated in the Second paragraph of Section II. The APSOs should employ the same standards when conducting interviews at sea.

Notwithstanding the release or parole of such an alien, where appropriate, INS personnel are instructed to pursue final orders of exclusion or deportation even in instances where the alien fails to prosecute his case through the hearing process.

The grant of parole or release from custody pending final resolution of the alien's case is separate and district from any action which may be taken upon the entry of a final order of exclusion or deportation in accordance with Section II.A.

Chris Sale

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