X-P-T

Interim Decision #3299




                              In re X-P-T-, Applicant

                             Decided December 18, 1996

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) An alien who has been forced to abort a pregnancy or to under go involuntary sterilization,
  or who has been persecuted for resistance to a coercive population control program, has suf-
  fered past persecution on account of political opinion and qualifies as a refugee within the
  amended definition of that term under section 101(a)(42) of the Immigration and Nationality
  Act (to be codified at 

8 U.S.C. § 1101

(a)(42)). Matter of Chang, 

20 I&N Dec. 38

 (BIA
  1989), superseded.
(2) The language of section 101(a)(42) of the Act deeming persons who have been subject to
  population control measures or persecuted for resistance to such programs to have been per-
  secuted on account of political opinion applies to determinations of eligibility for withhold-
  ing of deportation, as well as asylum.
(3) Section 207(a)(5) of the Act (to be codified at 

8 U.S.C. § 1157

(a)(5)) limits the number of
  refugees that may be admitted to the United States or granted asylum pursuant to the provi-
  sions of section 101(a)(42) of the Act relating to persecution for resistance to coercive popu-
  lation control methods.
(4) The applicant, who was forcibly sterilized for violating the coercive population control pol-
  icies of China, is granted asylum conditioned upon a determination by the Immigration and
  Naturalization Service that a number is available for such grant; withholding of exclusion
  and deportation is also granted without condition.

FOR APPLICANT: Jan Potemkin, Esquire, New York, New York

AMICUS CURIAE: Ann Carr, Esquire, Lancaster, Pennsylvania,1

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: David M. Dixon, Chief
Appellate Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG,
MATHON, and GUENDELSBERGER, Board Members.

SCHMIDT, Chairman:

  We have jurisdiction under 

8 C.F.R. § 3.1

(b)(1) (1996) over this timely
appeal from the Immigration Judge’s October 5, 1995, decision ordering the
applicant excluded and deported from the United States. Excludability was
  1 The Board acknowledges with appreciation the brief submitted by amicus curiae.



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conceded. The only issues on appeal concern the Immigration Judge’s denial
of the applicant’s claims for asylum under section 208(a) of the Immigration
and Nationality Act, 

8 U.S.C. § 1158

(a) (1994), and withholding of exclusion
and deportation under section 243(h)(1) of the Act, 

8 U.S.C. § 1253

(h)(1)
(1994). Both of these claims were based on the applicant’s persecution for
violations of the coercive population control policies of China.
   We will sustain the applicant’s appeal because of the changes to the law of
asylum and withholding of deportation made by section 601 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C
of 

Pub. L. No. 104-208, 110

 Stat. 3009-546, 3009-689 (enacted Sept. 30,
1996) (“IIRIRA”). Our contrary ruling in Matter of Chang, 

20 I&N Dec. 38

(BIA 1989), is superseded by the new law. We will grant the applicant with-
holding of deportation and conditionally grant her application for asylum.

                                 I. BACKGROUND
   The applicant presented credible testimony and documentary evidence,
and the Immigration Judge found that she and her husband violated the “one
couple, one child” population control policy of China by having three chil-
dren, and that as a result, she was forcibly sterilized. On appeal, neither party
has challenged those findings, which we accept as accurate. Other than our
decision in Matter of Chang, supra, no grounds for denial of asylum on the
basis of either statutory ineligibility or discretionary matters were raised
below.

                                       II. ISSUE
   The Immigration Judge denied asylum and withholding of deportation
because, pursuant to Matter of Chang, supra, the applicant failed to show that
forcible sterilization imposed because of violations of China’s population
control policy constitutes persecution on account of any protected basis. The
issue on appeal is whether that result is changed by the enactment of section
601 of the IIRIRA. We hold that it is. Our ruling that the applicant meets the
persecution definition contained in section 601 also requires us to address the
numerical limitations on asylum grants set forth in that section.

                         III. SECTION 601 OF IIRIRA
   Section 601(a)(1) of the IIRIRA, 110 Stat. at 3009-689, amends the refu-
gee definition of section 101(a)(42) of the Act (to be codified at 

8 U.S.C. § 1101

(a)(42)) by adding a sentence stating:
   For purposes of determinations under this Act, a person who has been forced to abort a preg-
   nancy or to undergo involuntary sterilization, or who has been persecuted for failure or
   refusal to undergo such a procedure or for other resistance to a coercive population control
   program, shall be deemed to have been persecuted on account of political opinion, and a
   person who has a well founded fear that he or she will be forced to undergo such a procedure

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   or subject to persecution for such failure, refusal, or resistance shall be deemed to have a
   well founded fear of persecution on account of political opinion
Section 601(b) of the IIRIRA, 110 Stat. at 3009-689, also adds a new subsec-
tion to section 207(a) of the Act (to be codified at 

8 U.S.C. § 1157

(a)),
stating:
   (5) For any fiscal year, not more than a total of 1,000 refugees may be admitted under this
   subsection or granted asylum under section 208 pursuant to a determination under the third
   sentence of section 101(a)(42) (relating to persecution for resistance to coercive population
   control methods).
   In the absence of a specific effective date in the statute, both of these pro-
visions became effective on September 30, 1996, the date of enactment of the
IIRIRA. See Matter of U-M-, 

20 I&N Dec. 327, 332

 (BIA 1991), aff’d, 

989 F.2d 1085

 (1993).

                          IV. ASYLUM ELIGIBILITY
   As recognized by the parties, the applicant’s forced sterilization for viola-
tion of China’s population control policies falls squarely within section
101(a)(42) of the Act, as amended by the IIRIRA. This amended statute
supersedes our prior ruling in Matter of Chang, supra. Therefore, the appli-
cant has suffered past persecution in China on account of political opinion.
   Because the applicant has suffered past persecution, she is presumed
under 

8 C.F.R. § 208.13

(b)(1) (1996) to have a well-founded fear of future
persecution. See also Matter of H-, 

21 I&N Dec. 337

 (BIA 1996). This pre-
sumption may be rebutted by a showing that country conditions have
changed to the extent that the applicant no longer has a well-founded fear of
persecution if returned to China. The Immigration and Naturalization Service
presented no evidence of changed country conditions at the hearing below,
nor does it seek to do so on appeal.2 In fact, the Service Appellate Counsel
agrees that the applicant should be granted asylum.

                    V. NUMERICAL LIMITATION ON
                    ASYLUM—CONDITIONAL GRANT
   We now turn to the numerical limitation imposed under section 207(a)(5)
of the Act on asylum grants based on resistance to coercive population con-
trol policies. Counsel for the applicant urges that as impartial adjudicators we
should treat that numerical limit not as an asylum eligibility factor, but rather
as directed solely at the Service’s ability to adjust the status of asylees to per-
manent residents at some later date. This interpretation conflicts with the lit-
eral language of section 207(a)(5), which limits the number of population

  2 The Service does not contend that the change in the applicant’s personal circumstances—

her sterilization—amounts to a change in country conditions that would overcome the
regulatory presumption.

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control-based refugees who may be “granted asylum under section 208.” It
also is inconsistent with the separate numerical limitation on the number of
asylees who may adjust in any fiscal year contained in section 209(b) of the
Act, 

8 U.S.C. § 1159

(b) (1994). We therefore reject counsel’s interpretation.
   The Service argues that neither it nor the Executive Office for Immigra-
tion Review (“EOIR”), of which we are a part, may grant asylum to a popula-
tion control-based refugee above the 1,000 limit imposed by section
207(a)(5) of the Act. The Service also notes that the this numerical limit
includes population control-based refugees admitted under the Service’s
overseas refugee program and those granted asylum on that basis by Service
Asylum Offices. Additionally, the Service points out that the section
207(a)(5) numerical limit would not apply to certain qualifying relatives of
those granted population control-based refugee or asylee status by the Ser-
vice or EOIR, because those qualifying relatives would not be admitted under
section 601 of the IIRIRA. See sections 207(c)(2), 208(b)(3) of the Act (to be
codified at 

8 U.S.C. §§ 1157

(c)(2), 1158(b)(3)).
   As pointed out by the Appellate Counsel and counsel for amicus curiae,
the precise implementation of the numerical limit contained in section
207(a)(5) of the Act is a complex matter that would be an appropriate subject
for a regulation promulgated by the Attorney General. For the present, how-
ever, we find that the Service, as the agency involved in all aspects of the asy-
lum and overseas refugee system, is in the best position to monitor the usage
of numbers under section 207(a)(5) and to establish a reasonable interim sys-
tem for their allocation among the various potentially eligible individuals.
Therefore, in the absence of applicable regulations, as an interim measure,
we will grant the applicant’s application for population control-based asylum
conditioned upon a subsequent administrative determination by the Service
that a number is available under section 207(a)(5) for such a grant.

              VI. WITHHOLDING OF DEPORTATION
   Because the conditional nature of our asylum grant does not ensure that
the applicant will be one of the 1,000 individuals who actually obtains asy-
lum, we find it necessary to reach the issue of withholding of deportation
under section 243(h) of the Act. As noted by all counsel, the population con-
trol-based persecution language of section 101(a)(42) applies to all relevant
determinations under the Act, not just asylum determinations. We also agree
with both counsel that the applicant, whose forced sterilization is uncon-
tested, has established past persecution on the basis of political opinion for
purposes of withholding of deportation under section 243(h).
   Therefore, the applicant is entitled under 

8 C.F.R. § 208.16

(b)(2) (1996) to
a regulatory presumption of a continuing threat in China to her life or free-
dom. This regulatory presumption is nearly identical to the previously dis-
cussed presumption under 

8 C.F.R. § 208.13

(b)(1)(i) (1996) of a continuing

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Interim Decision #3299


well-founded fear on the basis of past persecution available in asylum deter-
minations. As with the asylum regulatory presumption, we find that the regu-
latory presumption of a continuing threat in China to the applicant’s life or
freedom for purposes of withholding of deportation is unrebutted in this
record.
    There being no numerical limitations on population control-based grants
under section 243(h), we will grant the application for withholding of depor-
tation to China.

               VII. SUMMARY AND CONCLUSION
   The applicant has shown that she was forcibly sterilized for violating the
coercive population control policies of China. We conclude, as a result of the
amendments made by section 601 of the IIRIRA, that forcible sterilization is
a basis for grants of asylum and withholding of deportation to China. Section
601 thus supersedes our contrary ruling in Matter of Chang, supra. In the
absence of implementing regulations for the numerical limits on population
control-based asylum imposed by section 601(b) of the IIRIRA, we will, as
an interim measure, grant asylum conditioned upon the Service’s subsequent
administrative determination that a number is available for such a grant.
   ORDER:           The applicant’s application for asylum is granted, con-
ditioned upon an administrative determination by the Service that a number
is available for such a grant under section 207(a)(5) of the Act.
   FURTHER ORDER:                  The applicant’s application for withhold-
ing of deportation to China is granted.




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