CHANG

Interim Decision #3107




                           MATTER OF CHANG
                          In Deportation Proceedings

                                     A-27202715

                      Decided by Board May 12, 1989

(1) Implementation of the one couple, one child policy of the Chinese Government is not
  on its face persecutive and does not create a well-founded fear of persecution on
  account of one of the five reasons enumerated in section 101(a)(42)(A) of the
  Immigration and Nationality Act, 

(a)(42)(A) (1982), even to the
  extent that involuntary sterilization may occur.
(2) An individual claiming asylum for reasons related to the one couple, one child policy
  must establish 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 because the policy was being
  selectively applied against members of a particular religious group or was being used
  to punish individuals for their political opinions or for other reasons enumerated
  under section 101(a)(42)(A) of the Act.
(3) A person who shows that he opposed the one couple, one child policy but was
  subjected to it nevertheless has not demonstrated that he was being punished for his
  opinion as a member of a particular social group (persons opposed to the policy), but
  rather, there must be evidence that the governmental action arose for a reason other
  than general population control (for instance, evidence of disparate, more severe
  treatment for those who publicly oppose the policy).
(4) If the applicant claims that action occurred at the hands of local officials, he must
  normally show that redress from higher officials was unavailable or that he has a well-
  founded fear that it would be unavailable.
(5) The policy guidelines announced by Attorney General Meese on August 5, 1988,
  regarding the one couple, one child policy do not apply to decisions by immigration
  judges and the Board of Immigration Appeals.
CHARGE:
Orden Act of 1952—Sec. 241(a)(2) [

(a)(2)]—Entered without inspection
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
 Lebenkoff & Coven                                     Jill H. Dufresne
 505 Fifth Avenue                                        Deputy Chief Legal
 New York, New York 10017                                  Officer

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


  In a decision dated December 18, 1986, the immigration judge
found the respondent deportable on the charge set forth above and
                                            38
                                                 Interim Decision #3107

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, 

(a) and 1253(h) (1982), the respon-
dent, 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 be
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 dine 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
                                   10
Interim Decision #3107

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.' 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 in 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 compli-
ance. 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
    Counsel for the respondent states that the Service is aware of this report. The sources
cited in the report were not furnished to the Board in connection with this appeal and it
is not known whether they were furnished to the Service by the Library of Congress. The
Service, however, has not objected to consideration of this report. On appeal,
respondent has also referenced newspaper articles and various other non-legal sources
which were not offered into evidence at the hearing and whose texts have not been made
available to this Board. These latter sources will not be considered.
                                            An
                                                               Interim Decision #3107

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
      [deported 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 Govern-
      ment'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
  2   In addition to the excerpts quoted by the respondent, we note the following relevant
excerpts from the Country Reports on the PRC:
  Implementation [of the family planning program] has varied widely from place to
  place. Although coercive family planning is contrary to official Chinese policy, there
  have been numerous reliable reports of coercive birth control practices, including
  forced abortions and sterilization....
1985 Country Reports at 738.
  Extensive regulation of individual and family life is one of the distinctive features of
  the Chinese sociopolitical system. For most Chinese (particularly urban residents), life
  revolves around the work unit, which provides not only employment, but also
  housing, ration coupons, permission to marry and have a child, and other aspects of
  ordinary life....
 Faced with one-fifth of the world's population squeezed onto 7 percent of the world's
 arable land, China's leaders have made family planning a top national priority.    They
 believe that economic modernization goals will be unattainable without a low birth
  rate, particularly given the current high number of females of childbearing age,
 traditionally high Chinese birth rates, and recent medical advances leading to longer
 life expectancies. To achieve its goal of limiting China's population to 1.2 billion in
 the year 2000, the Government is discouraging early marriage and promoting as an

                                             41
Interim Decision #3107

   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. §§ I101(a)(42)(A), 1158(a) (1982); INS v. Cardoza-
Fonseca, 

 (1987); Carcamo-Flores v. INS, 

 (2d
Cir. 1986); Guevara Flores v. INS, 

 (5th Cir. 1986), cert.
denied, 

 (1987); Matter of Vigil, 

 (BIA
1988); Matter of Mogharrabi, 

 (BIA 1987). The
respondent bears the evidentiary burdens of proof and persuasion in
any application for asylum under section 208(a) or withholding of
deportation under section 243(h) of the Act. 

,
242.17(e) (1988); Rebollo-Jovel v. INS, 

 (9th Cir. 1986);
Matter of Maldonado-Cruz, 

 (BIA 1988); Matter of
Acosta, 

 (BIA 1985), modified on other grounds,
Matter of Mogharrabi, supra; see also Young v. United States Dept. of
Justice, INS, 

 (5th Cir.), cert. denied, 

 (1985).
We recognize, as have the courts, the difficulties faced by many aliens

 ideal a norm of one child per family, backed by a massive, grassroots institutional
 effort involving education, contraceptive counseling, free contraceptive devices, and
 economic and social incentives and disincentives.
1985 Country Reports at 740.41 (emphasis added).
 The effect of the economic reforms and the central policy of relaxing social controls in
 the rural areas has influenced the implementation of the birth-planning policy. In
 February the State Statistical Bureau published the results of a population sampling
 which indicated that 3.12 million more babies were born in 1986 than in 1985, 1.6
 million more than the number planned for 1986. The increase was attributed to the
 rise in the number of multiple births and to the increased number of people of
 marriageable and childbearing age. According to the survey, in 1986 the crude birth
 rate rose to 20.7 per thousand compared to 17.8 per thousand in 1985. There was a
 slight decrease in the rate of abortions. The number of first births in 1986 was 51.2
 percent of the total, second births were 31.5 percent of the total, and third or more were
 17.3 percent. Only 15 percent of all couples of childbearing age have signed a one-child
 pledge.
 After years of resisting the view held widely outside China that the PRC had to take
 steps to limit the growth of its population, now     at 1.08 billion, the post-Mao reform
 leadership decided to institute family planning program& During 1986-1987, China's
 leaders reiterated that family planning is a top national priority and expressed concern
 that the Government's policy has not been uniformly implemented in the past 12
  months. The Government cited particular concern over the current unusually high
  number of females of childbearing age, increasing birth rates, and recent medical
  advances leading to longer life expectancies as reasons for renewed efforts to achieve
  its goal of limiting China's population to around 1.2 billion in the year 2000. Early in
  1986, authorities began a massive campaign to extend education, contraceptive
  counseling, free contraceptive devices, and economic and social incentives down to
  the grassroots level.
1987 Country Reports at 665 (emphasis added).

                                             42
                                                 Interim Decision #3107

in obtaining documentary or other corroborative evidence to support
their claims of persecution. Although every effort should be made to
obtain such evidence, the lack of such evidence will not necessarily be
fatal to the application. The alien's own testimony may in some cases
be the only evidence available, and it can suffice where the testimony
is believable, consistent, and sufficiently detailed to provide a
plausible and coherent account of the basis for his fear. Matter of
Mogharrabi, supra; see also, e.g., Blanco-Comarribas v. INS, 

 (9th Cir. 1987).
    In support of his appeal from the denial of his applications for
asylum and withholding of deportation, the respondent makes a
number of arguments to which we shall respond in turn.
    The respondent initially submits that the Board should apply to this
case certain "policy guidelines" announced by Attorney General
Meese on August 5, 1988. These guidelines, however, were directed to
the Immigration and Naturalization Service, rather than the immigra-
tion judges and this Board. See 

, 3.1, 236.1, 236.3,
242.2(d), 242.8(a) (1988); United States ex rel. Accardi v. Shaughnessy,

 (1954). The Service's apparent position is that the case
before us on its facts does not come within the scope of the guidelines
the Attorney General has directed "will be used by the Immigration
and Naturalization Service in considering asylum requests from
[individuals who cite a fear of persecution upon return to the PRC for
having violated that country's 'one couple, one child' planning
policy]."
   The respondent's position on appeal is that he has a well-founded
fear of persecution based on the likelihood he would face mandatory
sterilization, that he has a reasonable fear of persecution as a member
of a "particular social group" (namely, persons who actually oppose
the government policy of "one child per family"), and that he is
eligible for withholding of deportation under section 243(h) of the Act
because he has demonstrated a clear probability of being sterilized if
returned to China.
   We do not find that the "one couple, one child" policy of the
Chinese Government is on its face persecutive. China has adopted a
policy whose stated objective is to discourage births through economic
incentives, economic sanctions, peer pressure, education, availability
of sterilization and other birth control measures, and use of propagan-
da. Chinese policymakers are faced with the difficulty of providing for
China's vast population in good years and in bad. The Government is
concerned not only with the ability of its citizens to survive, but also
with their housing, education, medical services, and the other benefits
of life that persons in many other societies take for granted. For China
to fail to take steps to prevent births might well mean that many
                                  43
Interim Decision #3107

millions of people would be condemned to, at best, the most marginal
existence. The record reflects that China was in fact encouraged by
world opinion to take measures to control its population.
   There is no evidence that the goal of China's policy is other than as
stated, or that it is a subterfuge for persecuting any portion of the
Chinese citizenry on account of one of the reasons enumerated in
section 101(aX42)(A) of the Act. The policy does not prevent couples
from having children but strives to limit the size of the family. It
appears that exceptions are made so that couples facing certain
hardships may have another child. The policy applies to everyone but
expressly protects, and indeed is more leniently applied to, minority
(non-Han) peoples within China. It appears to impose stricter
requirements on Party members (state cadres) than on some non-Party
members. The Chinese Government has stated that it does not
condone forced sterilizations and that its policy is to take action
against local officials who violate this policy.
   The population problem arising in China poses a profound dilem-
ma. We cannot find that implementation of the "one couple, one
child" policy in and of itself, even to the extent that involuntary
sterilizations may occur, is persecution or creates a well-founded fear
of persecution "on account of race, religion, nationality, membership
in a particular social group, or political opinion." This is not to say
that such a policy could not 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. To the extent, however, that such a
policy is solely tied to controlling population, rather than as a guise for
acting against people for reasons protected by the Act, we cannot find
that persons who do not wish to have the policy applied to them are
victims of persecution or have a well-founded fear of persecution
within the present scope of the Act.
   Thus, an asylum claim based solely on the fact that the applicant is
subject to this policy must fail. 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 five 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 governmental action arises for
a reason other than general population control (e.g., evidence of
                                    44
                                                 Interim Decision #3107

disparate, more severe treatment for those who publicly oppose the
policy). Finally, if the applicant claims that the punishment occurred
at the hands of local officials, he must normally show that redress from
higher officials was unavailable or that he has a well-founded fear that
it would be unavailable.
   We note that the respondent has not shown that mandatory
sterilization is or was authorized under regulations or programs in
effect in Fukien province, whence he came, or that forced sterilization
has in fact occurred in his locality. The Country Report for 1987
reflects that 48.8% of the births in China in 1986 were second, third, or
later births, which indicates that millions of persons in China were
allowed or chose to have more than one child in that year. It also is
support for the Chinese claim that the one-child policy is not routinely
enforced by mandatory sterilization and abortion. The sole evidence at
the hearing regarding this respondent's claim was his asylum applica-
tion itself and his testimony. His testimony was simply not sufficiently
detailed to provide a plausible and coherent account of the basis of his
asylum claim and was contradicted by other information in the record.
His asylum application undermines his testimony as it disclaims any
mistreatment by the Government and does not refer to any fear
stemming from China's population control measures. However, even if
we accept the characterization of the evidence as set forth by the
respondent on appeal (i.e., that he - and his wife wished to have more
than two children and he would be forced to undergo mandatory
sterilization if returned to China), we would not find that evidence
sufficient in itself to support a well-founded fear of persecution on
account of a reason enumerated in section 101(a)(42)(a) of the Act.
The respondent has not asserted or established that he was treated
differently from other Chinese with respect to application of the "one
couple, one child" policy, or that its application in his case was in
reality a guise to achieve a governmental goal other than general
population control.
    Such a showing cannot be made by arguing that there is a
"particular social group" made up of those persons who "actually"
oppose the policy of "one couple, one child," and that the evidence
that this "group" is persecuted is simply the fact that the policy is
applied to them despite their opposition to it. If a law or policy is not
inherently persecutive (as would be, for example, a law enacted to
punish individuals because of their religious beliefs), one cannot
demonstrate that it is a persecutive measure simply with evidence that
it is applied to all persons, including those who do not agree with it.
This is true even where questions of conscience or religion may be
involved. In the United States, there are numerous cases upholding the
imposition of religiously neutral laws against persons whose religious
                                   45
Interim Decision #3107

beliefs conflicted with them. See, e.g., United States v. Lee, 

 (1982) (imposition of Social Security taxes against Amish persons
whose religious beliefs forbade payment of the taxes or receipt of the
benefits did not interfere with the free exercise of their religion);
United States v. Merkt, 

 (5th Cir. 1986), cert.
denied, 

 (1987) (conviction for illegally transporting aliens
not barred by first amendment although defendants contended they
were religiously motivated in conducting "sanctuary" activities), and
cases cited therein.
   The respondent submits that the freedom to have children is an
absolute right under the 14th amendment to the United States
Constitution and, for that reason, countries that abridge this right
must be found to be engaging in acts of persecution. The resolution of
the constitutional issues that could arise if the population problems
underlying the implementation of the "one couple, one child" policy
in China were to occur in the United States is a matter of speculation
that it is hoped this country need never address. However, the fact that
a citizen of another country may not enjoy the same constitutional
protections as a citizen of the United States does not mean that he is
therefore persecuted on account of one of the five grounds enumerated
in section 1 01(a)(42)(A) of the Act.
   The respondent points out that Congress has chosen to provide
financial aid only to countries that employ voluntary family planning
techniques. It has prohibited the use of such aid to coerce or provide
any financial incentive to any person to undergo sterilization, or for
the performance of involuntary sterilizations as a method of family
planning, or for biomedical research relating to methods of performing
abortions or involuntary sterilization as a means of family planning.
However, the fact that Congress may strongly disapprove of a foreign
country's policy does not mean that Congress has found that the policy
involves "persecution on account of race, religion, nationality, mem-
bership in a particular social group or political opinion."'
   The respondent submits that involuntary sterilization is both a
violation of fundamental human rights and a denial of the "right to
life, liberty, and ... security" within the meaning of 22 U.S.C.
§ 2151n(a) (1982), which restricts the use of international develop-
ment funds in countries which engage in a consistent pattern of gross
violations of internationally recognized human rights. However, even

  3 The respondent also states that on July 11, 1985, the House of Representatives
"passed legislation- accusing China of coercive gm-ill/Aden and abortion programs.
While the House passed a bill on that date with such a provision, it was dropped from
the final legislation. See H.R. Rep. No. 237, 99th Cong., lst Sess. 101, 105, 118,
reprinted in 1985 U.S.C.C.A.N. 210, 214, 227.

                                         46
                                                             Interim Decision #3107

if involuntary sterilization was demonstrated to be a violation of
internationally recognized human rights, 4 that fact in itself would not
establish that an individual subjected to such an act was a victim of
persecution "on account of race, religion, nationality, membership in a
particular social group, or political opinion." We are satisfied that if
an individual demonstrated a well-founded fear that such an act would
occur "on account of a reason protected by the Act, the "refugee"
definition in section 101(a)(42) of the Act would be met.
   The issue before us is not whether China's population control
policies, in whole or in part, should be encouraged or discouraged to
the fullest extent possible by the United States and the world
community. The issue is whether the respondent demonstrates perse-
cution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion simply with evidence that he and his wife desire to
have more than two children and that, because of China's populatiOn
control measures, he may be subjected to mandatory sterilization.
Where there is no evidence that the application of the policy is a
subterfuge for some other persecutive purpose, we do not find that he
demonstrates eligibility for asylum by this evidence alone. Whether
these policies are such that the immigration laws should be amended
to provide temporary or permanent relief from deportation to all
individuals who face the possibility of forced sterilization as part of a
country's population control program is a matter for Congress to
resolve legislatively.
   On the record before us we find that the respondent's claims are
insufficient to establish that he has a well-founded fear of persecution
on account of one of the five grounds enumerated in section
101(a)(42)(A) of the Act. Because the respondent has failed to
demonstrate a well-founded fear of persecution, he has necessarily
failed to demonstrate a clear probability of it. See, e.g., INS v.

 Carcamo-Flores v. INS, supra; Guevara Flores
v. INS, supra. Therefore, the respondent has failed to show that he
qualifies for withholding of deportation.
   The immigration judge denied the respondent's application for
voluntary departure as a matter of discretion solely because the
respondent made no reference to a lawful permanent resident sister on
his request for asylum and mentioned a citizen "cousin" on the

  4 The State Department is required to make reports on human rights violations under
22 U.S.C. § 2151n(d)(1) (1982), which was amended in 1987 to require in addition a
report on "practices regarding coercion in population control, including coerced
abortion and involuntary sterilization." 

Title I, § 127(1), 

 (1987).

                                           47
Interim Decision #3107

application, who appeared 'to be a pure fabrication." However, the
Service does not challenge the respondent's testimony at the hearing
regarding his relatives or the fact that he has a lawful permanent
resident sister. We are not satisfied that the reference to a "cousin" on
the asylum application was not simply caused by error, particularly as
the closer, and more significant, familial relationship was not refer-
enced. As this was the sole basis underlying the immigration judge's
discretionary denial of voluntary departure and as the respondent does
have a relative in the United States who at least potentially could file a
preference visa petition on his behalf, considering the record in its
entirety we will grant the respondent the privilege of voluntary
departure in the exercise of discretion.
   Accordingly, the appeal will be dismissed except insofar as it
pertains to the denial of voluntary departure.
   ORDER:        The appeal. is dismissed except insofar as it concerns
the denial of voluntary departure.
   FURTHER ORDER:              The outstanding order of deportation is
withdrawn, and in lieu of an order of deportation the respondent is
allowed to depart voluntarily, without expense to the Government,
within 30 days from the date of this order or any extension beyond
that time as may be granted by the district director and under such
conditions as he may direct. In the event of the respondent's failure so
to depart, the order of depertation will be reinstated and executed.[*]




  [*]By order of the Board dated /sprit 5, 1990, pursuant to a motion of the Immigration
and Naturalization Service, deportation proceedings in this case were reopened and
terminated as improvidently begun.

                                          48