G

 Interim Decision #3215




                                 MATTER OF G-

                              in Exclusion Proceedings

                                       A-72761974

                     Decided by Board December 8, 1 993

(1) An alien with no colorable claim to lawful permanent resident status is properly in
  exclusion proceedings where he fails to satisfy his burden of proof that he has effected
  an "entry" into the United States. Matter of Z-, 20, MN Dec. 707 (BIA 1993),
  followed.
(2) The determination of whether an alien has effected an entry into the United States is
  a matter appropriately litigated in exclusion proceedings.
(3) For purposes of section 101(a)(13) of the Immigration and Nationality Act, 

 I(a)(13) (1988), an "entry" into the United States requires: (1) a crossing into
  the territorial limits of the United States, i.e., physical presence; (2) (a) inspection and
  admission by an immigration officer, or (b) actual and intentional evasion of
  inspculiun at the nearest inspection point; and (3) freedom from official restraint.
  Matter of Z -, supra, followed.
(4) The mere crossing into the territorial waters of the United States, whether detected or
  undetected, has never been held to constitute "physical presence" in this country "free
  from official restraint."
(5) The grounding of a vessel 100 or more yards off shore with its passengers facing a
  hazardous journey to land does not of itself constitute an entry into the United States.
(6) In the case of the Golden Venture, an alien will be found to have been "free from
  official restraint" if he establishes that he was among the first of the ship's occupants
  to reach the shore, that he landed on a deserted beach, or that he managed to flee into
  a neighboring community.
(7) In contrast, an alien who was escorted off the Golden Venture, pulled from the water
  by rescue personnel, or who landed in the cordoned-off area of the beach after it was
  secured will not be found to have been "free from official restraint," as his movements
  were restricted to the immediate vicinity of the beach that was cordoned-off and
  controlled by the enforcement officers of the various governmental organizations
  present at the site to prevent the ship's occupants from absconding.
(8) In a case where there is no clear evidence of the facts determinative of the entry issue,
  the case ultimately must be resolved on where the burden of proof lies.
(9) Where there is no evidence that an alien, who arrives at other than the nearest
  inspection point, deliberately surrenders himself to the authorities for immigration
  processing, or that, once ashore, he seeks them out, voluntarily awaits their arrival, or
  otherwise acts consistently with a desire to submit himself for immigration inspection,
  actual and intentional evasion of inspection at the nearest inspection point may be
  found.

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(10) Pending a decision of the Attorney General on asylum and withholding of
   deportation claims premised on coercive family planning policies of another country,
   the Board will continue to follow Matter of Chang, 

 (BIA 1988), as
   precedent in all proceedings involving the same issues.
(i t) To prevail on a claim that "extrajudicial" sources compromised the impartial and
   unbiased nature of an exclusion proceeding, an alien must show how the immigration
   judge's decision was affected or how he was prejudiced by these "outside influences."
EXCLUDABLE: Act of 1952—Sec. 212(a)(7)(A)(i)(I) [

(a)(7)(A)(i)(1)1—
                                  No valid immigrant visa

                               Sec. 212(a)(7)(B)(i)(I) [

(a)(7)(B)(i)(I)1—
                                 Nonimmigrant without valid passport
                               Sec. 212(aX7)03)(i)(11) [

(a)(7)(B)
                                 (i)(II)j—No valid nonimmigrant visa or border crossing card
ON BEHALF OF APPLICANT:                              ON BEHALF OF SERVICE:
 Timothy J. Shultis, Esquire                          Jack Pence
 Crabbs & Frey                                        Regional Counsel
  14 Center Square
  Hanover, Pennsylvania 17331

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


  On August 17, 1993, an immigration judge denied the applicant's
motion to terminate the instant exclusion proceedings, found him
excludable as charged on the basis of his admissions, and denied his
applications for asylum and withholding of deportation. The applicant
has appealed. The appeal will be dismissed and the request for oral
argument before this Board is denied. fi § 3.1(e) (1993).
  The applicant is a 29-year-old married, male native and citizen of
the People's Republic of China, who attempted to enter the United
States on June 6, 1993. The applicant was taken into custody by the
Immigration and Naturalization Service and detained for exclusion
proceedings. He was charged as an excludable alien under sections
212(a)(7)(A)(i)(I), (B)(i)(I), and (B)(i)(II) of the Immigration and
Nationality Act, 

(a)(7)(A)(1)(I), (B)(i)(I), and (B)(i)(II)
(Supp. IV 1992).
  At the ensuing hearing, the applicant moved for termination of the
exclusion proceedings. Arguing that an entry into the United States
had been made within the meaning of section 101(a)(13) of the Act, 

(a)(13) (1988), he provided a testimonial account of his
arrival into the United States and several newspaper articles describing
the events of the early morning hours of June 6, 1993. The Service
objected to the motion and countered with its own evidence of the
events of that morning in the form of a Service examiner's "Memo to

                                         765
 Interim Decision #3215

 File" and an affidavit of its Special Agent, Sal Alosi. The immigration
 judge denied the applicant's motion and proceeded to hear testimony
 on his applications for asylum and withholding of deportation.
 Ultimately, the immigration judge found the applicant excludable as
 charged on the basis of his concessions and denied his applications for
 the requested forms of relief. This appeal followed.
   The applicant's first challenge on appeal concerns the propriety of
 these exclusion proceedings.
   To determine whether the instant proceedings brought under
 section 236 of the Act, 

 (1988 & Supp. IV 1992), are
 proper, we must first resolve the issue of whether the applicant
 "entered" the United States within the meaning of section 101(0(13)
of the Act, for if an "entry" occurred, the question of the applicant's
continued presence here may only be adjudicated in deportation
proceedings commenced under section 242(b) of the Act, 

(b) (Supp. W 1992).'
             GENERAL FACTS OF SHIP'S ARRIVAL
   The record reflects the applicant arrived in the United States on
Sunday, June 6, 1993, aboard a cargo freighter named the Golden
 Venture. The applicant was one of a cargo of some 300 passengers
when the vessel, piloted by a crew of 13 Indonesian nationals, ran
aground on a sandbar off the coast of New York. The grounding took
place 100 to 200 yards offshore of the Fort Tilden military reservation
located on the Rockaway Peninsula in the Gateway National Recreation Area of Queens, New York.
   According to the record, at about 1:45 a.m. on that Sunday, two
officers of the United States Department of Interior Park Police were
patrolling the Gateway National Recreation Area when they observed
the distressed ship and a number of its passengers swimming in the
water or running on the beach. The officers spotted life preservers
bobbing in the water and heard people yelling. 2 At 1:58 a.m., the
officers placed an emergency call for help to the New York City Police
Department and other authorities and then proceeded to assist several
of the ship's passengers out of the water.
   The Coast Guard dispatched boats and helicopters to the scene of
   'Deportation and exclusion proceedings are mutually exclusive methods of removing
an alien from the United States. Sections 236 and 242(b) of the Act; Lang May Ma v.
Barber, 

 (1958). However, the question of whether an alien has
effected an entry is appropriately litigated in exclusion proceedings. Landon v. Plasencia,

. 31 (1982).
  2 The record indicates the Coast Guard had been monitoring the ship the previous
night as it neared the coast. When vessels were dispatched to intercept it, however, the
ship disappeared.

                                           766
                                                         Interim Decision #3215

the reported shipwreck to observe and rescue persons aboard the
disabled vessel.
   At 2:19 a.m., officers from the New York City Police Department
arrived on the beach at Fort Tilden; 2 minutes later, the New York
City Fire Department was alerted. Police canine units and New York
State police helicopters equipped with searchlights also were deployed
to search for passengers on shore or still in the water. Officers from the
various law enforcement agencies involved              —  the New York City
 Police Department, the Park Police, the Jacob Riis Park Police, and
 the Coast Guard—waded into the harbor to assist people to shore.
    During these early morning hours, a portion of the Fort Tilden
 beach—about 1/4- to 1/2-mile-long and extending 600 yards inland
 from the water line—was ultimately cordoned off and controlled by
 enforcement officers of these various organizations to prevent passengers who reached shore from leaving the area.
    According to newspaper accounts of several passengers interviewed,
 pandemonium erupted on board when the ship grounded. Passengers
 began spewing out of the cargo hold of the ship, where they had been
 forced to stay during their 3-month-long voyage. They crowded the
ship's deck, only to be told by the ship's crew to jump overboard.
    Over the next several hours as rescue personnel assembled in the
area, about 200 passengers fled the ship by leaping blindly into the surf
or descending a ladder on the side of the boat. Ignoring police and
Coast Guard pleas to remain on the vessel, many swam and waded to
shore clutching plastic bags of belongings while others used plastic jugs
as makeshift floats.
    An armada of small vessels, rafts, and cutters fished many of these
200 out of the • 53 degree waters and brought them to shore. 3 Other
                      -


passengers managed to reach dry land on their own only to be
apprehended on the beach or within the perimeter of the cordoned-off
area. Many of the ship's occupants who swam to shore suffered from
hypothermia and simply collapsed on reaching the beach. A few,
however, eluded capture by fleeing through the thick-brushed dunes
into the surrounding neighborhoods. Several of these survivors were
reported seen knocking on the doors of homes in several nearby
communities, offering money in exchange for the use of a telephone.
Three men, for example, were found in a construction site in the
neighboring town of Breezy Point after having offered a resident $100
to use his telephone. Local police later apprehended 26 other men near
a shopping center in the town of Huntington Beach after receiving an

  3 The Coast Guard recovered the bodies of four passengers who had drowned in the
choppy waters. Three other passengers plucked from the 53-degree waters died later.

                                        767
 Interim Decision #3215


 anonymous telephone call that several Asian men were seen leaving a
 tan van.
    More than 100 passengers, however, remained on board and
 awaited the arrival of rescue personnel.
    In an effort to detain those passengers apprehended, a building in
 the Fort Tilden military reservation was used to house passengers not
in need of medical treatment; these individuals were subsequently
transferred to detention facilities for immigration processing. Police
escorted about 30 other passengers to local hospitals for treatment;
these passengers were later released to the immigration authorities.
   By 3:30 a.m., when the first immigration officials arrived, 200 to
 300 rescue personnel were at the scene. Swimmers were still being
pulled from the water and passengers were still being rescued from the
boat.
   Understandably under the circumstances, no attempt was made to
differentiate and keep track of those persons rescued from the deck of
the Golden Venture, plucked from the water, intercepted within the
cordoned-off area, or taken to medical facilities. Immigration officials
processed all detainees as one large group.
   By the evening of June 6, 1993, 273 of the 300 passengers reported
to have been aboard the vessel had been accounted for while some 30
remained at large. Law enforcement authorities took the captain of the
freighter and his crew of 12 off the ship and arrested them pending
criminal prosecution on smuggling charges. 4
                           THE ISSUE OF ENTRY
   In relevant part, an "entry" for immigration purposes is defined as
"any coming of an alien into the United States, from a foreign port or
place or from an outlying possession, whether voluntary or otherwise."
Section 101(a)(13) of the Act. Over time, caselaw has led to the
formulation of a more precise definition of that term, requiring: (1) a
crossing into the territorial limits of the United States, i.e., physical
presence; (2) (a) inspection and admission by an immigration officer,
or (b) actual and intentional evasion of inspection at the nearest
inspection point; and (3) freedom from official restraint. Matter of
Patel, 

 (BIA 1991), and cases cited therein; see also
Correa v. Thornburgh, 

 (2d Cir. 1990).
   The definitional "entry" requirements at issue in this case are those
of evasion of inspection and freedom from official restraint. It is this

  4 According to newspaper accounts, the Golden Venture sailed from Thailand with its
cargo of illegal Cninese immigrants as part of an elaborate multimillion-dollar smuggling
operation. Many passengers paid more than $20,000 or agreed to pay off a portion of the
fee by agreeing to be indentured servants in this country.

                                          768
                                                   Interim Decision #3215

 latter requirement, however, which is the principal focus of the parties
 on appeal.
    Regarding the requirement of freedom from official restraint, we
 note at the outset that, in circumstances such as those now before us,
 there can be no certainty as to when and under what precise
 circumstances during those few critical hours immediately following
 the Golden Venture's grounding each and every individual alien landed
 on shore. Viewing the situation in its totality, however, it is clear that
 some passengers of the Golden Venture arrived in the United States
 free from official restraint, while others did not. See United States v.
 Vasilatos, 

 (3d Cir. 1954); United States v.
Lazarescu, 1Q4 F. Supp. 771, 777 (D. Md.), affd, 

(4th Cir. 1952); In re Dubbiosi, 

 (E.D. Va. 1961).
    For example, although the exact number may never be known,
several of the ship's occupants, presumably the first to jump ship, did
reach dry land before the vessel was spotted by the two Park Police
 officers who first observed the disabled ship at 1:45 a.m. According to
the record, the officers witnessed "numerous" individuals running "to
avoid detection." These passengers were clearly free from any official
restraint. Similarly, other evidence in the record suggests that several
passengers were found, possibly hours later, in neighboring communities. These aliens were not only free from any restraint, but were in fact
mixing with the general population. See, e.g., United States v. MartinPlasencia, 

 (9th Cir.), cert. denied, 

 (1976)
(finding that an alien at a port of entry effected an entry when he
evaded inspectors and fled 50 yards into San Ysidro, California);
Cheng v. //TS, 

 (2d Cir. 1976); Matter of Z- , 

 (BIA 1993) (finding that an alien who debarks from his
vessel at a place not designated as a port of entry effected an entry
when he fled into the interior undetected with every apparent
intention of evading immigration inspection).
    In contrast, for those 100 or more passengers who were escorted off
the ship—as well as the many others who were pulled from the water
by rescue personnel or who landed in the cordoned-off area after it was
secured—we would not find that their physical presence here was
coupled with "freedom from official restraint." The movements of
these aliens were restricted to the immediate vicinity of the beach
cordoned-off by the scores of law enforcement personnel at the scene.
These aliens were never free to leave the area. They were never at
liberty in the United States, and, under these circumstances, clearly
lacked the freedom to go at large and mix with the general population.
See Correa v. 

 (defining "freedom from
official restraint" as freedom from constraint emanating from the
government that would otherwise prevent the alien from physically
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 Interim Decision #3215

passing on); Matter of Pierre, 

 (BIA 1973)
(quoting Ex parte Chow Chok, 

(C.C.N.D.N.Y.), affd, 

 (C.C.A. 2 1908)); Edmond v.
Nelson, 

 (E.D. La. 1983); Matter of Yam, 

 (BIA 1978) (finding no entry to have been effected
where alien found at border and taken under police guard to a medical
facility).5
   Thus, some passengers of the Golden Venture were clearly in this
country free from official restraint, while others were not. However, in
circumstances such as those which occurred on the morning of June 6,
 1993, the facts of each individual case may never be clearly determinable for various reasons. For one, it could never be definitively
established at what precise point the cordoned-off area of the beach at
Fort Tilden was finally secured. Secondly, even if that time theoretically could be established, e.g. at 3:49 a m , many aliens           even if   —


testifying fully and truthfully—would not know exactly when they
reached shore. Finally, particularly where saving lives was the primary
concern of the government officials on the scene, one would not expect
those officials to be recording specific data on the identities of each
passenger or on the times when and circumstances under which each
was taken into custody. Indeed, in many cases, particularly those
involving aliens who managed to swim to shore, there likely will never
be any certainty as to exactly when and under what circumstances they
made it onto the beach.
   If aliens can establish the specific circumstances of their arrivals,
their cases can be resolved on the facts. For example, if an alien can
show that he was one of the first passengers to disembark the ship and
reach shore, or that he managed to arrive at a neighboring town,
freedom from official restraint would be found.
   On the other hand, in cases where there is no clear evidence of the
facts determinative of the entry issue, those cases ultimately must be
resolved on where the burden of proof lies. Accordingly, since it is the
alien, with a limited exception not relevant here, 6 who bears the

  5 Similar cases can be found involving Haitians who arrived by private or makeshift
boats at uncontrolled beaches having no immigration inspection facilities in southern
Florida, made their way on land, and, shortly thereafter, were taken into official custody
and ultimately processed in exclusion proceedings. See, e.g., Bertrand v. Sava, 

 (2d Cir. 1982). We also note that it has never been held that the mere crossing into
the territorial waters of the United States, whether detected or undetected, constitutes
"physical presence" in this country "free from restraint." Nor would we find that the
grounding of a vessel 100 or more yards off shore with passengers facing a hazardous
(indeed, fatal for some) journey to land in itself constitutes an entry into this country.
  6 In exclusion proceedings involving an alien having a colorable claim to lawful
permanent resident status, it is the Service who bears the burden of proving that the

                                          770
                                                              Interim Decision #3215

burden of showing that exclusion proceedings are improper, it is he
who must prove that his arrival on land constituted an "entry" into the
United States within the scope of section 101(a)(13) of the Act. Section
291 of the Act, 

; Matter of Z-, supra, at 710; Matter of
Matelot, 

 (BIA 1982); Matter of De La Nues, 

 (BIA 1981); Matter of Healy and Goodchild, 

 (BIA 1979); Matter of Pierre, supra, at 468.7
   Turning to the case at hand, we note that, in support of his motion
to terminate proceedings, the applicant testified that he was in (what
appears to have been) the cargo hold of the ship when the vessel ran
aground. According to the applicant, he made his way to the deck of
the ship and was told by those in the front to jump. He did so and
swam to shore clutching a plastic bag containing his personal
belongings. He admittedly did mot know how long he was in the water,
but found himself cold and dizzy as he reached the shore.
   Once on the beach, he quickly changed his clothes and went
searching for a road in the dark. He did not recall being chased. He
recounted having passed two roadways, but could not explain how far
from the beach he had walked or in what direction he was walking
when apprehended. He did not testify with any clarity as to any of the
time frames involved. All he was certain of was that he was in New
York. As he entered what he described as a "forest," he encountered
two police officers who escorted him back to the beach and instructed
him to lie on his stomach. 8 Eventually, the Service took the applicant
into custody and detained him for exclusion proceedings. The
applicant paid a down payment of 3,000 yuan for this voyage to the
United States.
   On appeal, the applicant argues that his testimony coupled with the
circumstances surrounding his landing far from any inspection facility
conclusively demonstrate that he had no intention of submitting

alien should be deprived of that status. Matter of Z-, supra, at 710; Matter of Salazar, 

 (BIA 1979); Matter of Kane, 

 (BIA 1975).
   7 1n In re Phelisna, 

 (E.D.N.Y. 1982), appeal dismissed, 

 (2e1 19A1), the United States District Court for the Eastern District of New
York held that the burden of establishing that an alien had no intent to evade inspection
and thus made no "entry" rested with the Government That holding has never been
adopted by a higher court, is not controlling authority in this circuit, and is not binding
precedent on this Board. See State of Ga. Dep't of Medical Assist. v. Bowen, 

 (11th Cir. 1988); Starbuck v. City & Cty. of San Francisco, 

(9th Cir. 1977); Matter of K-S-, 

 (BIA 1993); Matter of Cerna, 

 (BIA 1991), affd, 

 (11th Cir. 1992).
   RThis testimony varies somewhat from the applicant's written account of that
morning. In a statement attached to his motion to terminate, the applicant wrote that he
crossed a road and a grassy field, and then came upon a second road, when he was
spotted by two policemen and apprehended.

                                           771
 Interim Decision #3215

 himself to the immigration authorities for inspection, thus proving
 that he actually and intentionally evaded inspection at the nearest
 inspection point.
    We observe that nowhere in the record is there evidence suggesting
 that the applicant deliberately surrendered himself to the authorities
 for immigration processing, or that, once ashore, he sought them out,
 voluntarily awaited their arrival, or otherwise acted consistently with a
 desire to submit himself for immigration inspection. In fact, given the
 circumstances under which the Golden Venture landed,9 the applicant's
 payment of money to a smuggling operation for passage to the United
 States, his lack of travel documents entitling him to enter this country,
 and his conduct once he came ashore, we find that the requisite intent
to evade can be sufficiently gleaned from the record. See Cheng v. INS,
supra, at 1019 (crossing the border from Canada in a smuggler's van at
night without headlights, and turning away from the nearest inspection
station, provided "overwhelming" evidence of actual and intentional
evasion of inspection); Matter of Estrada-Betancourt, 

 (111A 1967) (finding evasion where aliens arriving at other
than a designated port proceed 10 miles inland with intention of
presenting themselves for inspection at other than the nearest inspection point); see also United States ex rel. Giacone V. Corsi, 

(2d Cir. 1933). See generally Thack v. Zurbrick, 

(6th Cir. 1931); but cf. Pierre v. Rivkind, 

 (S.D. Fla.
1986), rev'd on other grounds, 825 Fid 1501 (11th Cir. 1987) (finding
no evasion where alien arriving by boat walks away from the vessel
and hides in a heavily-wooded mangrove area but later surrenders
herself to the authorities).'° As to the second requirement—freedom
from official restraint—the applicant points out on appeal that some
passengers did manage to make their way into neighboring towns,
thereby proving he too was "free from official restraint."
   As noted above, the applicant is correct in his assertion that several
passengers from the Golden Venture were found in nearby communities. However, the applicant does not allege nor can we find any
  9 The vessel did not arrive at an inspection station, nor did the captain and crew
restrict the passengers to the ship pending immigration clearance once the ship
grounded. As the evidence reflects, the crew unlocked the cargo hold and apparently
encouraged the 300 or so passengers to jump and flee. Although it is unclear on this
record whether the grounding was an accident or a deliberate act calculated to lessen the
odds of the illegal off-loading being detected, the captain placed no distress call when the
boat ran aground and many immigrants carried their belongings in plastic bags as if
prepared for a swim.
  10 In Matter of Z., supra, at 711-12, this Board recently held that an alien's intent in
this context may be established absent a statement by the alien and even in the face of
his contrary testimony.

                                           772
                                                               Interim Decision #3215

evidence to suggest that he was one of those passengers. In this regard,
it is incumbent upon the applicant to prove that his physical presence
in the United States was coupled with "freedom from official
restraint." Section 101(0(13) of the Act; Matter of Z-, supra. From the
applicant's testimony, however, it is not clear where in the continuum
of events on the morning of June 6, 1993, he actually reached shore.
No evidence was presented suggesting that he was one of the first
passengers to reach dry land or that the beach was deserted when he
landed, from which one might conclude that he was free from official
restraint. We note that he did not have a watch and could not explain
how long he was in the water or how many minutes passed before he
was caught. He admittedly did not know where he was when he was
apprehended, in what direction he was walking, or how far from the
beach he had travelled. Consequently, we do not find that the
applicant has presented clear evidence that he was ever free from
official restraint. As such, we do not find that he has met the burden,
which he alone must bear, of demonstrating that he made an entry into
the United States. Accordingly, we find that these exclusion proceedings are proper."
     ASYLUM AND WITHHOLDING OF DEPORTATION
  The applicant has requested relief from exclusion by way of asylum
and withholding of deportation. In support of his applications, the
applicant testified that he fled China because he violated that
country's mandatory family planning policies—with which he disagrees—by having more than one child. He claims that he fled China
to escape persecution stemming from these policies and fears that he
would be jailed, fined, and sterilized upon his return.
   The record reveals the applicant is a stone cutter by profession and
a father of two from the city of Fuzhou, Fujian province, China. The
applicant's problems with the Chinese Government began in October
1990 when the local family planning authorities fitted his wife with an
   I I Counsel for the applicant represents in his appeal brief that an ongoing human
salvage operation was underway bum in the water and on the beach when the applicant
was swimming to shore. These assertions, however, are not based on counsel's personal
knowledge and have never been corroborated personally by the applicant. See Matter of
Ramirez-Sanchez, 17 MN Dec. 503, 505 (BIA 1980).
The applicant also advances the claim that the humanitarian efforts of the governmental
authorities on June 6, 1993, should not be construed as "official restraint." No legal
authority has been cited in support of this contention; nor are we inclined to agree with
the applicant in the face of clear evidence in the record of the efforts undertaken by these
officials to prevent the passengers of the Golden Venture from leaving the Fort Tilden
area. See Correa v. 

; Edmond v. 

; Matter
of Yam, supra, at 536-37 (BIA 197B) (involving alien found at border and taken under
guard by local police to a medical facility).

                                            773
Interim Decision #3215

intrauterine device after the birth of their first child (a son). To
monitor the couple's use of contraception, the authorities conducted
monthly physical examinations of the applicant's wife and furnished
the applicant and his wife with a record book in which the province's
mandatory birth control policies and related penalties were set forth.
   Around March 1992, the applicant's wife became pregnant with
their second child. To conceal the pregnancy from the authorities, the
applicant and his family left their house and resided in other parts of
the city. 12 In their absence, the authorities appropriated their possessions and interrogated the applicant's parents. When his parents
feigned ignorance about the applicant's whereabouts, the authorities
threatened his parents with imprisonment and destroyed their home,
thereby forcing them to flee the city. Fearful of further retribution for
having more than one child, the applicant left China in February 1993,
leaving behind his wife and two children.
   To prove that his fears of punishment are well founded, the
applicant recounted that his underage cousin suffered a forced
abortion when she was 7 months pregnant with her second child. In
addition, his sister incurred heavy fines after the births of three of her
four children, and her house was destroyed when she was unable to pay
the fines in full.
   In a letter the applicant recently received from China, his wife wrote
that the birth control authorities have fined him RMB 11,300 and are
requiring her to undergo sterilization. She went on to explain that,
until these demands are met, the authorities will not allow her to
register the birth of their second child with the civil registrar. His wife
included with her letter a photograph of herself and their two children;
a copy of the family's household registration book; and a notice
purportedly issued by the In-Shih Village Committee informing the
applicant that he was being fined for violating China's family planning
policies."
  The applicant also furnished for the record voluminous background
material about China's coercive family planning policies, including a
"Master Exhibit" prepared by the Nationalities Service Center on
behalf of the applicant and other former passengers of the Golden
Venture."
   12 The applicant's wife moved to an aunt's home; the applicant frequently relocated
until he was able to leave China 11 months later.
   13 Although not an issue on appeal, this Board notes that the notice from the In-Shih
Village Committee was not certified in accordance with 

 (1993). See
Matter of Bader, 

 (CIA 1980).
   "The "Master Exhibit" was admitted into evidence by the immigration court sitting
in Baltimore, Maryland, but not included in the record of proceedings as a matter of
convenience for the parties.

                                         774
                                                             Interim Decision #3215

    As required by 

 (1993), a copy of the applicant's
 Request for Asylum in the United States (Form 1-589) was forwarded
 for comment to the Bureau of Human Rights and Humanitarian
 Affairs of the Department of State ("BHRHA"). The BHRHA
 responded in August 1993 with a report entitled "Asylum Claims
 Relating to Family Planning in Fujian Province, China."
    Based- on this evidence and our precedent decision in Matter of
 Chang, 

 (BIA 1988), the immigration judge determined
 that the applicant was not eligible for asylum or withholding of
 deportation. In denying the applicant relief, the immigration judge
 found that the applicant had failed to demonstrate that China's one
 couple, one child policy was applied to him for persecutory motives as
required by Chang.
   On appeal, the applicant has raised several challenges to this denial
of discretionary relief. The Center for Reproductive Law & Policy has
likewise filed an amicus curiae brief in support of the appeal.
   First, the applicant complains that the immigration judge wrongfully decided his case under Matter of Chang, supra. He argues that the
holding in Chang has been implicitly overruled by the following: (1) an.
August 5, 1988, memorandum of the Attorney General to the
Commissioner of the Service directing all "INS asylum adjudicators"
to give "careful consideration" to applications from Chinese nationals
who refused to abort a pregnancy or resisted sterilization as an "act of
conscience"; (2) interim regulations that were promulgated by the
Attorney General on January 29, 1990; (3) Executive Order No.
 12,711, 

-98 (1990); and (4) a November 7, 1991,
memorandum of the General Counsel of the Service subscribing to the
view that China's coercive family planning policies constitute persecution on account of political opinion.
   We have carefully considered the applicant's present challenges, the
background materials contained in the Master Exhibit, and the amicus
brief submitted in support of this appeal. Nevertheless, we remain of
the opinion that our interpretation of the law regarding China's one
couple, one child policy articulated in Matter of Chang, supra, is
legally correct and consistent with INS v. Elias-Zacarias, 

,
(1992). 15

  15 The arguments advanced in the amicus brief neither compel us to disturb our
holding in Chang nor persuade us to modify it in any way. For example, although it is
argued that the United States is obligated under various international human rights
instruments to recognize coercive interference with a person's right to reproductive selfdetermination as persecution, these instruments do not provide potential avenues of
relief to aliens in exclusion proceedings beyond those provided for in the Immigration
and Nationality Act and implementing regulations. See Matter &Medina, 

 (BIA 1988).

                                          1,7
Interim Decision #3215

   First, 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 the immigration judges and this Board.
Matter of Chang, supra, at 43; see also United States ex rel. Acaordi v.
Shaughnessy, 347 'U.S. 260 (1954); 

, 3.1, 3.10, 2013.2(b),
236.1, 236.3, 242.8(a) (1993). 16 Second, the interim regulations cited
by the applicant were never finalized. 

 (1994' 7 On
July 27, 1990, the Attorney General issued final regulations governing
the adjudication of asylum and withholding of deportation applications which superseded these interim regulations. See 55 Fed.. Reg.
30,680 (1990) (codified at 8 C.F.R. Parts 3, 103, 208, 236, 242, and
253 (1991)). The final regulations, which are currently in effect, did
not incorporate any of the provisions of the interim regulations
concerning asylum and withholding claims premised on coercive
family planning policies of another country, and, in fact, make no
reference to such policies.ig
   Third, while Executive Order No. 12,711 directs the Secretary of
State and the Attorney General           to give enhanced consideration to the
asylum and withholding claims of individuals who express a fear of
persecution related to a policy of forced abortion or coerced sterilization, the Attorney General has never directed this Board to evaluate
these claims other than in accordance with the standard enunciated in
the July 27, 1990, regulations. See 8 C.F.R. Part 208 (1993).' 9 These
regulations represent the most recent directive by the Attorney
General in this area and are binding on both this Board and the
immigration judges. See Matter of Fede, 

 (BIA 1989);
Matter of Ansehno, 

 (BIA 1989).
                                              memorandum, the
   Lastly, we note that in his November 7, 1991,
former General Counsel of the Service expressed a view of the law with
respect to persecution claims based upon coercive birth control
policies contrary to that found in Matter of Chang, supra. 2° This

   "In Matter of Chang, supra, the respondent urged this Board to apply these "policy
guidelines" to his case. It was the Service's apparent position, however, that the case did
not fall within the reach of the guidelines. Id. at 9.
   17 These regulations, which were to be codified at B C.F.R. §§ 208.5 and 242.17(c),
provided that aliens fleeing their country's family planning policies of forced abortions
or sterilization may be considered to have a well-founded fear or a clear probability of
persecution on account of political opinion. See 

, 2805 (1990).
   "The applicant's reliance upon an April 2, 1990, memorandum of the Commissioner
of the Service is misplaced. This memorandum was written in response to the interim
regulations and was intended as a policy guideline to Service adjudicators in the
implementation of those regulations.
   I9 President George Bush issued Executive Order No. 12,711 on April 11, 1990.
  "In the memorandum, it was stated that "Department of Justice and INS policy with
respect to aliens claiming asylum or withholding of deportation based upon coercive

                                           776
                                                              Interim Decision #3215

memorandum, however, has no binding effect on the decisions of this
Board and the immigration judges. Moreover, where the opinion
expressed relies for its support on authority that predates the Attorney
General's final regulations and appears-to be inconsistent with INS v.
Elias Zacariase supra, at 481 85 (holding that since the Immigration
       -                              -


and Nationality Act makes motive critical, persecution on account of
political opinion requires evidence that the alien has a political
opinion and that the persecution feared would be "on account of that
opinion), we find it to be of little, if any, persuasive authority on the
present issue. See Lee v. INS, 

 (9th Cir. 1982); Matter of
Chang, supra, at 43; Matter of M/V Saru Meru, 

 (BIA
 1992); Matter of Salim, 

 (BIA 1982); Matter of
Cavazos, 

 (BIA 1980).
   On June 7, 1993, we referred two of our decisions involving these
issues to the Attorney General for review under the provisions of 8
        § 3.1(h) (1993). Pending the decision of the Attorney General
on these referred cases, we will continue to follow Matter of Chang,
supra, as precedent in all proceedings involving the same. issues,
including the case now before us. See 

(g) (1993).
Accordingly, we will deny the applicant's request for a stay of these'
appellate proceedings pending the Attorney General's review of the
two referred cases.
   Turning to the particulars of this case, we do not find that the
applicant was persecuted in the past or that he possesses a "well-founded fear" of persecution on account of his race, religion,
nationality, !membership in a particular social group, or political
opinion. Sections 101(a)(42)(A) and 208(a) of the Act, g U.S.C.
§§ 1101(a)(42)(A) and 1158(a) (1988); INS v. Cardoza-Fonseca, 

 (1987) (holding that a "well-founded fear of persecution"
standard applicable to asylum requests is significantly different from,
and, in fact, requires a lesser degree of proof than the "clear
probability" of persecution standard applicable to withholding requests); Janusiak v. United States INS, 

 (3d Cir. 1991);
Matter of Mogharrabi, 

 (BIA 1987) (finding that
an applicant for asylum has established a well founded feat if a-


reasonable person in his circumstances would fear persecution on
account of one of the grounds enumerated in section 101(a)(4.2) of the
Act); Matter of Chen, 

 (BIA 1989) (stating that an
family planning policies is that the application of such coercive policies does constitute
persecution on account of political opinion." According to this view, aliens whose claims
were based on birth control measures involving forced abortion or coerced sterilihation
were not required to demonstrate that the coercive measures were tied to a governmental purpose other than to control the population.

                                           777
Interim Decision #3215

applicant for asylum may establish his claim by presenting evidence of
past persecution in lieu of evidence of a well-founded fear of
persecution); Matter of Chang, supra; 

 (1993).
   The applicant contends that he was persecuted by the Chinese
Government when it confiscated his property in accordance with their
general population control policies. He further claims that he will face
future persecution there in the form of sterilization, imprisonment,
and a fine should he return. However, as we held in Matter of Chang,
supra, at 43, the Chinese Government's implementation of its family
planning policies is not on its face persecutive and does not by itself
create a well-founded fear of persecution on account of one of the five
grounds delineated in the Act, even to the extent that involuntary
sterilization may occur. Thus, it is not enough for the applicant to
show that such acts may have occurred or that there is a reasonable
possibility that they would occur upon his return to China. To prevail
on a claim premised on China's one couple, one child policy, it is
incumbent upon the applicant to come forward with facts that
establish that the policy was being selectively applied against him 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. Id. at 43.
   To this end, we note that however strongly the applicant may
believe his violation of China's one couple, one child policies was an
expression of a political opinion, he has provided no evidence even
suggesting that the actions taken against him and his family were
intended to punish him for that reason. The applicant never openly
disagreed with the local family planning officials, or made known to
them his opinion of their policies or his reasons, if any, for choosing to
have another child. Nor is there any evidence indicating that his
treatment was disparate or in some way more severe than the
treatment of others who, like himself, violated the policy.
   On appeal, the applicant relies on Desir v. lichen, 

 (9th
Cir. 1988), a case involving a Haitian national who, because of his
financial inability, refused to pay bribes to certain government
officials. In that case, the United States Court of Appeals for the Ninth
Circuit found that Desir had been persecuted, reasoning that the
Government of Haiti perceived Desir to be a political subversive
because of his refusal to pay.
   To the extent Desir v. Ilchert, supra, has been cited for the
proposition that asylum could be granted on the basis of a perceived or
"imputed political opinion," it lends little support to the applicant's
present claim to relief. Nowhere in the record is there evidence
suggesting that the Chinese authorities have ascribed a political
opinion to the applicant contrary to their own or revealing a
                                   778
                                                              Interim Decision #3215

motivation on their part to penalize the applicant apart from his
failure to observe that country's birth control policies 2'
   Abortion and sterilization may be untenable to the applicant's
political beliefs. Coerced abortions and sterilization are certainly
horrible acts. However, as the applicant has failed to show that the one
couple, one child policy was applied to him for reasons protected
under the Act, he has not demonstrated his eligibility for asylum under
section 208(a) of the Act, and, accordingly, has failed to satisfy the
more rigorous "clear probability" standard of eligibility required for
withholding of deportation. See INS v. 

;
Matter of Chang, supra; section 243(h) of the Act, 

(h)
(1988& Supp. IV 1992); INS v. Stevic, 

 (1984).
The evidence presented does not demonstrate that it is more likely
than not the applicant would be subject to persecution on account of
one of the five grounds specified in section 243(h) of the Act. See 

 (1993).
   Nor are we persuaded to grant the applicant asylum or withholding
of deportation because he claims to have violated his country's travel
laws. First, the applicant has not shown that he violated any law
related to his exit from China. Moreover, even assuming that he did,
he has not demonstrated that the prosecution he fears is on account of
his political opinion or any other ground enumerated in the Act. See
Janttsiak v. United States WS, supra; Blazina v. Bouchard 

 (3d Cir.), cert. denied, 

 (1961); Coriolan v. INS, 

 (5th Cir. 1977); Matter of Sibrun, 

(BIA 1983); Matter of Matelot, supra, at 337; Matter of Nagy, 

 (BIA 1966); see also Rodriguez-Rivera v. INS, 

 (9th Cir. 1988); Zupicich v. Esperdy, 

 (2d Cir. 1963),
cert. denied, 

 (1964).


   21 1n a January 19, 1993, legal opinion addressing the issue of the continuing viability
of the imputed political opinion doctrine in light of the decision in INS v. Elias-

 the General Counsel of the Service stated that a "final rule" was signed
by Attorney General Barr on January 15, 1993, essentially finalizing the January 1990
interim rules that had been previously superseded. This rule provided that "an applicant
who establishes a well-founded fear that he or she will be forced to undergo abortion or
sterilization pursuant to the implementation of a coercive family planning policy, or will
be persecuted for failure to do so, shall be regarded as having established a well-founded
fear of persecution on account of political opinion." The rule further provided that an
applicant "is not required to make a separate showing that the persecutor will impute a
political opinion to him nr her." This rule, however, was never promulgated. Moreover,
this legal opinion, like the November 7, 1991, memorandum of the former General
Counsel of the Service, does not appear consistent with the decision of the Supreme
Court of the United States in INS v. 

                                           779
 Interim Decision #3215

                 THE FAIRNESS OF THE HEARING
    The applicant's final challenge concerns the fairness of the hearing
 that he was afforded before the immigration judge. It is the applicant's
 position that "extrajudicial" sources prevented the immigration judge
 from rendering an independent determination and compromised the
 impartial and unbiased nature of the proceedings below.
    The applicant submits that an attorney representing another
passenger on the Golden Venture contacted the Immigration Court in
Baltimore, Maryland, to request a continuance of the hearing, only to
learn that the Court was explicitly directed by the White House not to
grant such requests. 22 The applicant also references two newspaper
articles in which officials from the United States Department of State
and United States Department of Justice "confirmed" the administration's interest in expediting the cases of Golden Venture as a deterrent
against future smuggling operations. See Chinese Immigrants Refuse to
Eat, Philadelphia Inquirer, August 21, 1993, at A10; U.S. Tightens
Asylum Rules For Chinese, New York Times, September 5, 1993, at
45. The applicant further references a quote in one of the articles in
which an unidentified employee of the Service described 99% of the
Golden Venture immigrants' claims as "bogus." See Chinese Immigrants Refuse to Eat, supra, at A10.
   The applicant contends that this direct interference by the White
House coupled with the administration's expressed desire to "send a
signal" to future Chinese immigrants and smugglers have tainted these
proceedings and those of other Golden Venture aliens. He argues that
the disparity between the approval rates of the asylum requests of
aliens from the Golden Venture and other Chinese aliens whose
applications were adjudicated in 1992 prove that the Clinton administration is seeking to "steer" the immigration judges to a specific
political result.
   Administrative proceedings must conform to the basic notions of
fundamental fairness. See Harisiades v. Shaughnessy, 

(1952). However, we fail to see in what manner the applicant here has
been denied a constitutionally fair hearing. For example, he does not
explain how he himself was prejudiced by these "outside" influences
or how the immigration judge's finding with respect to the entry issue
and her denial of his applications for asylum and withholding of
deportation stemmed from these "extrajudicial" sources. See generally
Garcia-Jaramillo v. INS, 

 (9th Cir. 1979), cert.
denied, 

 (1980); Matter of Santos, 

 (BIA
  22 1n
        an affidavit submitted for the first time on appeal, the attorney who was apprised
of this communication admitted that she did not know the identity of the person to
whom she had spoken.

                                           780
                                                    Interim Decision #3215

 1984). He cites no specific examples of misconduct on the part of the
 immigration judge to support the notion that her decision was decided
on some basis other than her understanding and knowledge of the
applicable laws and regulations and what she adduced from her
participation in the case, and we can find none here. See Matter of
Exame, 

 (BIA 1982); Matter of Bader, 

 (BIA 1980); Matter of Carrillo, 

 (BIA 1979);
Matter of Lennon, 

 (BIA 1974); Matter of De Lucia, 11.
I&N Dec. 565 (BIA 1966), affd, 

 (7th Cir. 1966); Matter
of Bufalino, 

 (BIA 1965).
   As for the statistical disparity between the approval rates of the
 Golden Venture cases and those of other Chinese nationals, it is largely,
if not entirely, attributable to the difference between this Board's
interpretation of the law regarding coercive family planning policies,
as enunciated in Matter of Chang, supra, and the view adopted by the
previous General Counsel of the Service. Thus, we do not find this
empirical data persuasive to the applicant's present claim.
   The applicant submits that the Clinton administration has made it
known for some time that cases involving aliens smuggled into the
United States, including those passengers on the Golden Venture,
would receive expedited treatment to discourage illegal smuggling into
this country. However, there is no evidence that the immigration judge
was biased in her handling of the applicant's case or that the hearing
afforded the applicant was unfair. Moreover, the attention given the
applicant's case is no different than the priority attention given to
other cases of aliens detained at government expense.
   With regard to the alleged ex parte communication between the
Clinton administration and the Office of the Immigration Judge, we
are at a loss as to its relevance here. Aside from the fact that there is no
evidence that such a communication occurred, the applicant never
requested a continuance of the hearing on the merits of his applications and does not now allege that he was denied the opportunity to
obtain legal representation or to prepare his asylum or withholding
case. See generally Saballo-Cortez v. INS, 

 (9th Cir.
1984); Matter of Carrillo, supra, at 31. For these reasons, we do not
find that the immigration judge erred in her handling of the
proceedings below or in any way denied the applicant due process of
law. Accordingly, the following orders will be entered.
   ORDER:           The appeal is dismissed.
   FURTHER ORDER:                  The applicant's motion for a stay of
these appellate proceedings before this Board is denied.



                                    781