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John Schmidt Briefing Book 1 of 3 [Binder] [2]
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Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
11
Divider Title:
Federal Advisory Committee Act
American Association of Physicians & Surgeons, et al. V. Hillary
Rodham Clinton, No. 93-399 (D.D.C)
1. ISSUE STATEMENT
Shortly after taking office, President Clinton established a
cabinet level Task Force, headed by the First Lady, to advise him
with respect to submitting legislation to Congress to reform health
care. An intergovernmental working group under White House Adviser
Ira Magaziner was set up to gather information and develop options
for the Task Force.
Plaintiffs contend that both groups are "advisory committees"
within the meaning of the Federal Advisory Committee Act (FACA),
and therefore required to issue a charter, hold public meetings
after notice in the Federal Register, have a balanced membership,
and otherwise comply with the procedural provisions of the Act.
2. STATUS
On appeal of a district court order holding the Task Force to
be an advisory committee, the D.C. Circuit reversed. It found the
First Lady to be an official of the federal government, thereby
qualifying the Task Force for FACA's exemption for committees
composed of full time officers or employees of the U.S. The Court
of Appeals, however, remanded for further proceedings on whether
the working group came within the Act. That question is now
pending before the district court on cross motions for summary
judgment. Also pending before that court are Motions by plaintiffs
for sanctions and to hold Ira Magaziner in contempt for allegedly
lying in his declaration. No hearing has yet been scheduled.
3. DEPARTMENT POSITION
Defendants have argued that the working group is not a FACA
committee because it lacked the structure, purpose and formality
that the Court of Appeals held characterize "advisory committees"
under the Act. The group had a shifting membership, a purpose that
was not contemplated by Congress in enacting FACA, and operated by
the President to deal with what he considered an urgent national
crisis.
Plaintiffs' sanctions motion is groundless; they claim that
the government shifted litigation positions to their detriment.
Plaintiffs simply assumed that we would brief the case a certain
way and were caught unaware by our change in emphasis. Ira
Magaziner's declaration was accurate. Plaintiffs are elevating a
legal dispute over "membership" on the working group into
allegations of perjury.
4. JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
No known interest.
5.
REFERENCE MATERIALS
There are numerous briefs, available from the Federal Programs
Branch, in which defendants' positions are detailed.
Clinton Presidential Records
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digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
12
Divider Title:
Armstrong V. Executive Office of the President
Civ. No. 89-0142 (D.D.C.) (Richey, J.)
1. ISSUE STATEMENT
The Armstrong suit involves a challenge under the Federal
Records Act (FRA) to the "e-mail" recordkeeping practices in the
Executive Office of the President (EOP), coupled with a FOIA suit
to obtain Reagan-era PROFS notes from the National Security
Council (NSC) currently on backup tapes. In an August 1993
opinion affirming the holding of the district court, the Court of
Appeals held that the prior practice in the Reagan and Bush
Administrations of printing hard copies of e-mail, which among
other things lacked certain "transmission" information, was
insufficient to comply with the government's overall obligations
under the FRA to manage e-mail communications as they exist in
electronic form. The Court of Appeals remanded the case for
further proceedings in light of outstanding injunctive orders
entered by the district court which have resulted in the
preservation of thousands of Reagan, Bush, and Clinton
Administration backup tapes. Pursuant to a cross-appeal filed by
plaintiffs, the Court of Appeals also remanded on the specific
issue of resolving the legal status of whether the NSC is an
"agency" under the FOIA. The Solicitor General declined seeking
rehearing en banc or petitioning for certiorari.
The main issues currently present in the litigation are (a)
resolution of the legal status of the NSC; and (b) how EOP
components expect to comply with the mandate of the Court of
Appeals, both prospectively for their respective "e-mail"
systems, as well as retroactively in terms of restoring federal
records from preserved backup tapes. Since the appellate panel's
remand, the parties, with the approval of the district court,
have been engaging in settlement negotiations on the issues
involved in the lawsuit.
In connection with this settlement process, the
Administration sought and obtained $13,125,000 in the Emergency
Supplemental Appropriations Act (H.R. 3759) for necessary
expenses in compliance with and towards resolution of the
lawsuit. These funds will be applied both to efforts at
restoring federal records off of the preserved backup tapes, as
well as to the development of new "electronic recordkeeping
systems" for the long-term maintenance of e-mail in electronic
form.
2. STATUS
On March 25, 1994, defendant NSC filed a motion to dismiss
or in the alternative for summary judgment on the issue of its
legal status, arguing that NSC solely exists to advise and assist
the President, and thus its records are exempt from the FRA and
FOIA (but are covered instead under the Presidential Records
Act). However, pursuant to Presidential Memorandum, the NSC will
undertake to put into effect a policy of voluntary disclosure of
NSC records consistent with past practice under the FOIA.
Briefing on defendants' motion, including time for discovery,
currently runs through July 1994.
As a result of the Armstrong lawsuit, on March 24, 1994, the
Archivist issued in the Federal Register a notice of proposed
rulemaking specifically on government-wide "e-mail" recordkeeping
standards and practices. The comment period closes June 22,
1994.
The parties also have entered into a Stipulation, endorsed
by the Court and filed January 27, 1994, which provides for
resolution of plaintiffs' original FOIA request for Reagan-era
materials. On other matters, the parties are continuing their
settlement negotiations.
3. DEPARTMENT POSITION
This Administration has committed itself to developing
appropriate electronic recordkeeping systems for the long-term
maintenance of "e-mail" communications constituting federal
records, at least within components of the EOP. Assistant to the
President John Podesta stated in his declaration dated May 28,
1993, filed in Armstrong, that "[i]t is our goal to develop a
technologically advanced computer system in the Executive Office
of the President which will permit a significantly larger amount
of electronic material to be permanently stored and segregated,
in retrievable form, than has ever been preserved in the past.'
President Clinton addressed the matter of NSC's legal status
in a memorandum to National Security Adviser Anthony Lake and NSC
Executive Secretary William Itoh dated March 24, 1994, which
stated that the President "understand[s] our position is that the
NSC is an entity within the Executive Office of the President
that exists solely to advise and assist me in the discharge of my
constitutionally based responsibilities over the national
security affairs of the United States." The President went on to
state that "[njotwithstanding this legal conclusion, I strongly
support the policy of past Administrations of permitting public
access to certain NSC records, and of leaving certain NSC records
to the incoming Administration in order to ensure a smooth
transition on national security matters."
4. JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
Unknown
5. REFERENCE MATERIALS
O H.R. 3759 (Emergency Supplemental Appropriations Bill)
"For necessary expenses for electronic communications records
management activities for compliance with and resolution of
Armstrong V. Executive Office of the President, $13,125,000, to
remain available until expended."
Armstrong V. EOP, 1 F.3d 1274 (D.C. Cir. 1993)
Federal Records Act, 44 U.S.C. §§ 2901, 3101, 3301
Presidential Records Act, 44 U.S.C. § 2201
Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
13
Divider Title:
FBI SEXUAL HARASSMENT CASE
Doucette V. Reno, No. 93-1198 (D. Ariz.)
1. ISSUE STATEMENT
Suzane Doucette, an FBI Special Agent formerly employed in
the Tucson, AZ, office, alleges that she was subject to
discrimination, retaliation, and sexual harassment, including a
"sexual assault" in December 1988. In 1993, she filed a lawsuit
in the District of Arizona. In February 1994, she resigned from
the Bureau, claiming that she had been constructively discharged.
Ms. Doucette testified before the Senate Governmental
Affairs Committee in May 1993, and before a House Committee in
March 1994. She has sought media attention for her lawsuit: she
traveled to Washington in October 1993 to "turn in her badge,"
called a press conference, appeared in numerous television
interviews (e.g., Nightline, Court TV, The Joan Rivers Show), and
has been the subject of a number of magazine articles. She has
recently retained Los Angeles attorney Gloria Allred, who is
known for handling high-profile cases.
2. STATUS
A partial motion to dismiss based on the statute of
limitations has been pending since December, 1993. Both parties
have propounded written discovery, and the government is seeking
compliance by Ms. Doucette with requests to produce her medical
and psychiatric records, which relate to issues she has raised in
the case. Plaintiff has scheduled depositions of two FBI
employees for May 27 and June 16.
3. DEPARTMENT POSITION
The government's position (formulated after several internal
investigations) is that Ms. Doucette's allegations are without
foundation, and additionally that many are also time-barred.
The Department has declined comment on the pending
litigation. Director Freeh has stated generally that he learned
as a judge that "there are two sides to every story," and that
the government's side of this story would come out in the course
of the litigation.
The FBI has recently settled another well-publicized case,
Power-Anderson et al. V. Reno D.Cal.), in which two agents
alleged sexual harassment in the FBI's Santa Ana, CA office. The
Director has recently issued a message to all FBI field offices
reiterating the seriousness with which the Bureau views sexual
harassment, and plans to make a public statement to this effect
in the near future. (Although this cannot be made public, the
difference between Power-Anderson and Doucette is that in the
former, the FBI determined that the plaintiffs had a valid claim,
and proposed the removal of the harasser. But in Doucette, after
several internal investigations as well as the litigators'
interviews of all the witnesses, the FBI had determined that Ms.
Doucette's allegations are not valid.)
4. JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
When Ms. Doucette testified in May 1993, her home-state
Senator, Dennis DeConcini, introduced her with supportive
remarks.
5. REFERENCE MATERIALS
The government's pending Motion to Dismiss, available from
the Federal Programs Branch, is the most comprehensive statement
of the government's position in the case so far, though it only
addresses the statute of limitations issues.
Ms. Doucette's May 1993 Senate testimony has been published
and is available from Congressional Affairs.
Clinton Presidential Records
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marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
14
Divider Title:
FREEDOM OF INFORMATION ACT
Tax Analysts V. Department of Justice and West Publishing Co.,
No. 94-0043 (D.D.C.)
1. ISSUE STATEMENT
JURIS is the computerized legal research system of the
Department of Justice. A substantial portion of JURIS, including
most of the federal case law, was procured commercially from West
pursuant to a series of contracts and licensing agreements. This
contractual arrangement continued until the most recent contract
between West and the Department expired on December 31, 1993.
In addition to the legal research data provided by West,
JURIS also contains databases and files that were provided by
components of the Department and other agencies. These
government-provided materials include statutory law,
administrative law, government manuals, brief banks, and limited
access files containing case-specific resource materials and
attorney work files.
Plaintiff seeks disclosure of the JURIS database, including
the portions of the database provide under license by West
Publishing Co. Plaintiff requests a copy of the JURIS database
in computer tape format.
2. STATUS
Judge Charles R. Richey allowed West to intervene as
defendants. On January 27, 1994, the court held a status
conference and established a briefing schedule for the
defendants' dispositive motions to dismiss the complaint to the
extent it seeks release of data that was provided by West
pursuant to contracts entered into with the Department. The
Court instructed the Department to continue processing the
portion of plaintiff's FOIA request seeking data contributed to
JURIS by Departmental components and other agencies.
Pursuant to the court's instructions, the Department and
West filed 12 (b) (1) motions to dismiss plaintiff's complaint to
the extent it seeks disclosure of the West provided portions of
the JURIS database. The motion is pending.
On April 5, 1994, the Department informed plaintiff that it
would release several JURIS files that were contributed to JURIS
by various Departmental components and other agencies.
Subsequently, the Department denied plaintiff's request to the
extent it seeks Shepard's data, which was licensed to the
Department by McGraw-Hill. Plaintiff's counsel informed the
Department that plaintiff's FOIA request does not encompass
Shepard's.
The Department continues to process plaintiff's request for
the remaining portions of the JURIS database.
Although the West contract required the Department to remove
from the JURIS system all data received from West, and either
return it to West or destroy it, West has authorized the
Department to retain one tape copy of the West database until the
conclusion of plaintiff's FOIA lawsuit.
3. DEPARTMENT POSITION
Both West and the Department argue that the database
licensed by West to the Department is not an "agency record"
under the FOIA, and therefore the court does not have subject
matter jurisdiction to compel its disclosure. Should the court
deny defendants' motions to dismiss, the Department and West will
file motions for summary judgment on the basis that, even if the
data provided by West is covered by the FOIA, the data is
confidential commercial information exempt from disclosure under
5 U.S.C. § 552 (b) (4).
Much of the remaining data on JURIS is not subject to the
FOIA. Nevertheless, the Department intends to release as much
non-West data on JURIS as is feasible and consistent with
Attorney General Reno's announced FOIA policy, regardless whether
release would be required under the FOIA.
The Department and other contributing agencies anticipate
denying the FOIA request to the extent it seeks disclosure of
limited access files containing attorney work product and other
privileged and exempt materials. Furthermore, the Air Force,
which contributed the FLITE database to JURIS, anticipates
denying plaintiff's FOIA request to the extent it seeks FLITE
data. FLITE is a legal research database developed by the Air
Force as a result of its own commercial procurement arrangements
with West and other publishers.
4. JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
No known interest.
5. REFERENCE MATERIALS
There are numerous briefs, available form the Federal
Programs Branch, in which defendants' positions are detailed.
Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
15
Divider Title:
OVETT, MISSISSIPPI LITIGATION
Hendry V. Reno, No. 2:94-CV-78PS (S.D. MS)
1. ISSUE STATEMENT
The Henson sisters established Camp Sister Spirit, a lesbian
cultural and educational retreat center in Ovett, Mississippi,
which encountered hostility from elements of the community. When
the sisters were threatened with violence, the Attorney General
dispatched Community Relations Service personnel to offer to
mediate the dispute. Plaintiffs, two community leaders who claim
they oppose Camp Sister Spirit on religious grounds, filed suit
alleging that the Attorney General violated their First, Fifth,
Ninth and Tenth Amendment rights and acted in excess of statutory
authority. They seek injunctive relief and damages.
2. STATUS
Plaintiffs moved for a preliminary injunction to prohibit
CRS from mediating and the Attorney General filed a motion to
dismiss. On May 9, 1994, with the agreement of the parties, the
district court entered an order of dismissal.
3. DEPARTMENT POSITION
The Attorney General's motion challenged plaintiffs'
standing because they have suffered no injury, and also argued
that none of the plaintiffs' statutory or constitutional claims
has any merit. The dismissal is on standing grounds, the court
observing that the Department recognizes it cannot compel
mediation and that any participation by plaintiffs in such a
process would be voluntary.
While mediation without community participation is
impossible, if at a future date the Attorney General
attempted to send the Community Relations Service personnel back
to Ovett to mediate, the plaintiffs could refile their lawsuit.
Nothing in the settlement, however, prohibits the Attorney
General from doing this in the future should she so desire.
4. JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
No known interest.
5. RESOURCE MATERIALS
The Attorney General's motion to dismiss, available from the
Federal Programs Branch, is a comprehensive discussion of our
position.
STATE OF
Office of the Attorney General
Washington. D. C. 20530
JUSTITUA
DELEGATION OF AUTHORITY TO THE
COMMUNITY RELATIONS SERVICE
ORDER NO. 1850-94
By virtue of the authority vested in me as Attorney General
of the United States, including 28 U.S.C. §§ 509 and 510, I
hereby authorize the Community Relations Service to intervene in
the matter arising from the establishment of Camp Sister Spirit
in Ovett, Mississippi. The Community Relations Service shall
provide conciliation and technical assistance to the community
and the persons therein.
6/7/44
Date
Jánet Reno
Attorney General
INTERNAL ORDER/NOT PUBLISHED
IN F.R.
DEC 07 '93 18:52 202 332 020700
P.1
?
Anniversary
N N.A
NGLTH
GAY & LESBIA
FORCE
Policy Institute
December 7, 1993
The Honorable Janet Reno
U.S. Attorney General
Department of Justice
VIA FAX: 202-514-4371
Dear Attorney General Reno,
Iam writing to request your immediate assistance in ending a violent
situation in Ovett, Mississippi between some members of the community and
two lesbians who own land in Jones County and run a feminist educational
center. The women's lives are in danger.
On December 6, 250 people attended a meeting at the Ovett
Community Center to condemn the two women, Brenda and Wanda
Henson, because the women are lesbians. At the meeting, residents discussed
ways to force the women and Camp Sister Spirit to leave the land. Private
citizens and public officials (including the attorney for the Board of
Supervisors in neighboring Perry County) vowed to research state and
county laws, including the state anti-sodomy law, to discover means to force
the women to leave the area. The women did not attend the meeting because
they fear for their safety. A second community meeting is scheduled for
January 4, 1994.
This meeting follows nearly two months of harassment, intimidation
and violence directed at the women. The women receive constant harassing
and threatening phone calls; a school bus filled with children drove by and
shouted "faggots" at the women following media attention about the
existence of the feminist camp; a dead dog was hung from their mailbox; the
14th Street NW
shington DC 20009
(202) 332-6483
(202) 332-0207 (fax)
(202) 332-6219 (tty)
IFC 07 '93 18:53 202 332 020700
P.2
mailbox has also been shot at and stuffed with sanitary napkins; and several
unknown men (some of them armed) have been found wandering on the 120
acres of Camp Sister Spirit.
The National Gay and Lesbian Task Force asks that you and the
Department of Justice move immediately to support the lesbians' right to
purchase property and live free of violence and harassment. Any delay by the
Department of Justice in intervening in this explosive situation could result
in harm to the two women.
We request the following actions of you and divisions of the
Department of Justice:
-The Community Relations Service should perform mediation in the
community to immediately alleviate the potential for violence.
-The Federal Bureau of Investigations should monitor the on-going
situation.
-The Department of Justice Civil Rights Division should investigate
the attempts to violate the civil rights of the Hensons.
--A representative of the Attorney General's office should attend the
January 4 Ovett community meeting.
Finally, we request that you meet with us and one of the women from
Camp Sister Spirit in order to work together to alleviate the violent situation
and to insure that these women may live free of violence in their
community.
I look forward to your immediate attention to this matter.
Sincerely,
-
Peri Jude Radecic
Executive Director
cc
Jeffrey Weiss, acting director of the Community Relations Service
Louis Freeh, director of the Federal Bureau of Investigations
James P. Turner, acting director of the Department of Justice,
-
Civil Rights Division
Attachment
PJR/rak
02/18/94
10:06
6202 514 0563
OLC
41002
THEY
Office of the Attorney General
Washington, D. C 20530
February 17, 1994
Peri Jude Radecic
Executive Director
National Gay and Lesbian Task Force
1734 14th St. NW
Washington DC 20009
Dear Ms. Radecic:
Thank you for your December 7, 1993 letter concerning the
situation in Ovett, Mississippi. As are you, I am deeply
troubled by the harassment and intimidation of Brenda and Wanda
Henson, the lesbian owners of Camp Sister Spirit. The
intolerance and bigotry demonstrated by some of the people of
Ovett has no place in this country.
I have carefully considered your requests on behalf of the
Hensons for assistance from the Department of Justice. As you
are aware, Department officials met with representatives of the
National Gay and Lesbian Task Force (NGLTF) on January 12 to talk
about the Department's ability to respond to the situation in
Ovett.
As was discussed at the January 12 meeting, federal
jurisdiction is currently restricted by statute. At this time,
sexual orientation is not a protected status under the federal
civil rights law. Accordingly, we are unable to assist the
Hensons through the enforcement of existing federal criminal
civil rights laws concerning housing or federally-protected
activities.
However, we recently learned from an NGLTF staff member that
some federal criminal laws may have been violated through use of
the federal postal system. The NGLTF staff member reported that
an envelope addressed to the Hensons containing a threatening
letter was postmarked January 9, 1994 and mailed from Gulfport,
Mississippi. Based on this development, the Federal Bureau of
Investigation has been asked to conduct an investigation into
this matter. If the evidence shows that there was a violation of
federal criminal statutes, appropriate action will be taken.
In addition to initiating the FBI investigation, I have
signed a tasking order pursuant to my authority under 28 U.S.C.
$509-510 asking the Community Relations Service (CRS) to
intervene in the matter and to help mediate the dispute. While
02/18/94
10:07
6202 514 0563
OLC
03
CRS is statutorily limited to assist only in conflicts arising
from race, color and national origin issues, I consider the
threat of violence in Ovett to be real and believe CRS's
involvement is both appropriate and necessary to restore calm to
the community.
Finally, I have asked my staff to schedule your requested
meeting. Since the Ovett case is a pending criminal
investigation, it would be inappropriate for me to discuss the
specifics of the case at this time. However, I look forward to
the opportunity to talk with you about the general issues that
the situation highlights.
I intend to keep fully apprised of the situation and ask
that you continue to provide information to the Department.
Thank you again for sharing your concerns with me. Together we
can and will fight the discrimination faced by the Hensons and
others like them.
Sincerely,
Office of Policy Development
Office of the Assistant Attorney General
Washington, D.C. 20530
February 15, 1994
TO:
The Attorney General
FROM
Susan Liss
pml
Senior Counsel
RE:
Proposed CRS Tasking Order re Ovett, Miss.
You have asked for information regarding situations in the
past where the Community Relations Service may have been directed
to intervene, either formally or informally, by the leadership of
the Department of Justice.
There does not appear to be any written record of tasking
orders or directions to CRS, but current CRS personnel report
several instances in the past where CRS has been directed to
intervene in matters beyond its clearly defined statutory mandate.
These are listed below:
1. In the late 1970's, CRS was asked to provide
conciliation services to defuse demonstrations by environmental
activists around nuclear power plants.
2. In the early 1980's, on the tenth anniversary of the
shootings on the campus of Kent State University, CRS was asked to
conciliate demonstrations that were occurring over the building of
a gym on the site of the shootings.
3. In 1985, Attorney General Ed Meese asked CRS to
mediate conflicts between several federal agencies and the Church
of Scientology. These apparently concerned tax-related matters.
4. In 1991, CRS received an oral directive from the
Office of Policy Development to expand its "Hate Hotline" (an 800
number) to include collection of information on hate crimes based
on sexual orientation or religion. This followed passage of the
Hate Crimes Statistics Act, which permitted voluntary collection
and reporting of hate crime statistics by local law enforcement
agencies to the FBI. CRS had put its Hotline in place prior to the
passage of the Act and independent of the Act. The directive made
clear that CRS should collect information regarding hate crimes,
whatever the basis, and even though the CRS mandate did not
2
-explicitly cover sexual orientation or religion.
In addition, there is reference in an article in Current
Biography on Burke Marshall, former AAG for Civil Rights, to his
personal efforts to mediate in Birmingham, Alabama in 1963 during
the race riots there.
We have asked CRS to search their records for documentation of
the incidents listed above, but no documentation has been found.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
JAMES HENDRY AND JOHN ALLEN
PLAINTIFFS
VERSUS
CIVIL ACTION NO. 2:94-CV-78PS
JANET RENO, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY AS ATTORNEY
GENERAL OF THE UNITED STATES
OF AMERICA
DEFENDANT
CONSENT ORDER
This matter is before the Court on Plaintiffs' Complaint and
Petition to enjoin Defendant from further action in regard to
dispatching the CRS (Community Relations Service), an entity within
the Department of Justice, to intervene in a dispute between a
group identified as Sister Spirit Incorporated, who seek to locate
a lesbian cultural and educational retreat center in Ovett,
Mississippi, and certain citizens of Ovett who oppose the location
of this camp in their community. Plaintiffs seek various other
relief. The CRS was created by Act of Congress with the following
mandate:
It shall be the function of the service to provide
assistance to communities and persons therein in
resolving disputes, disagreements or differences relating
to discriminatory practices based upon race, color, or
national origin which impair the rights of persons in
such communities under the Constitution or laws of the
United States.
42 U.S.C. $2000(g-1).
Complainants-Petitioners allege they oppose the location of a
lesbian cultural camp in their community on religious grounds.
They contend that the Bible condemns homosexuality as it does
adultery and other acts of immorality. They claim constitutional
rights under freedom of religion and free speech to oppose bringing
this type culture into their community. Defendant does not deny
that Complainants-Petitioners have these constitutional rights, nor
does she deny Complainants-Petitioners' right to the free exercise
thereof.
Complainants-Petitioners contend that sexual orientation is
not protected under the Civil Rights Act and that consequently
Defendant had no right to dispatch the CRS to Ovett. Defendant
does not contend that sexual orientation is covered by 42 U.S.C.
200(g-1). However, Defendant contends that as the chief law
enforcement officer of the nation, she has general powers to keep
the peace, including the right to dispatch mediators into a
situation she considers volatile.
Defendant further points out that there is no law that compels
Complainants-Petitioners or any other citizens of Ovett to talk to
the mediators or participate in any mediation efforts and the
citizens of Ovett are free to participate or not participate in
mediation. Complainants-Petitioners have made it clear they do not
wish to participate in mediation under the facts of this case.
Defendant states that as the situation now stands there is no basis
for mediation efforts.
The power of this Court to second guess actions of any
governmental agency is limited. See Laird V. Tatum, 408 U.S. 1
(1972) i Allen V. Wright, 468 U.S. 737 (1975). Aside from that
general proposition, this Court finds that since the Attorney
General has no authority to compel mediation, has no authority to
restrict Complainants-Petitioners from the free exercise of
religion and speech, and since Defendant is not attempting to
compel mediation nor to interfere with Complainants-Petitioners'
right to freedom of religion or free speech, Complainants-
Petitioners are not threatened by any immediate "injury." See
Allen V. Wright, supra; O'Shea V. Littleton, 414 U.S. 488 (1974) ;
United States V. Students Challenging Regulatory Agency Procedures,
412 U.S. 669 (1973) Consequently they have no standing to bring
this action.
Accordingly, this action shall be and the same is hereby
dismissed.
This the 19th day of May, 1994.
UNITED CHARLES STATES W. PICKERING, WDay DISTRICT SR. JUDGE In
AGREED TO:
PLAINTIFFS:
DEFENDANT:
Jor R. VyL
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Divider Title:
BRADY ACT LITIGATION
1. ISSUE STATEMENT
Six suits have been filed in district courts by local law
enforcement officers seeking to invalidate part of the Brady Act
on the grounds that it violates the 5th and 10th Amendments, and
Art. I Sec. 8 of the Constitution. Four of the plaintiffs are
represented by counsel retained by the National Rifle
Association, and the complaints and legal memoranda in those
cases are identical. The remaining two plaintiffs do not appear
to be receiving financial support from the NRA, but they have
filed the same complaint and legal memoranda as the NRA-supported
plaintiffs.
The Brady Act imposes a 5-day waiting period before
federally licensed firearms dealers may transfer possession of a
handgun to a potential purchaser. The Act also requires that
licensed dealers notify the chief law enforcement officer
("CLEO") in their respective jurisdictions of the proposed
transfer, and directs that the CLEO then undertake a "reasonable
investigation" of the purchaser's criminal history. If the CLEO
determines that a purchaser is barred by state or federal law
from obtaining a handgun, the CLEO is obliged to notify the
licensee of that fact. The Act further directs CLEOs to destroy
within twenty days all records received or created by the CLEO in
connection with a Brady Act background check for those purchasers
who are not barred from obtaining handguns, and obliges the CLEO
to provide a statement of the reasons for disapproving a transfer
to any disappointed purchaser who requests an explanation.
In New York V. U.S., 112 s.ct. 2408 (1992), the Supreme
Court held that the 10th Amendment prohibits Congress from
enacting legislation which compels a state to enact or administer
a federal program without affording the state an opportunity to
opt out of the program. As each of the plaintiffs in the Brady
Act suits are CLEOs, their primary contention is that the Brady
Act is unconstitutional because it directly requires CLEOs to
undertake a reasonable investigation of a prospective handgun
purchaser's criminal background. Had the Act simply conditioned
federal funding on such a requirement, it would not have run
afoul of the 10th Amendment. Plaintiffs make the same argument
with respect to the ancillary requirements concerning the
destruction of Brady Act documents and the provisions for letters
to disappointed purchasers.
The Administration has consistently championed the Brady Act
as part of its overall anti-crime program, and Congress
considered the Act, or its predecessors, for a number of years
before it was finally enacted.
2. STATUS
Briefing has been completed in five of the cases. One case
was not filed until May 9, and our brief opposing plaintiff's
motion for summary judgment in that case is not due until June 1,
1994. A hearing on the preliminary injunction motion in that
case will be held on June 2. Trial briefs are due to be filed in
one case on June 1.
Hearings have been held in three of the cases during which
the parties agreed to consolidate the motions for preliminary
injunctions with decisions on the merits pursuant to Fed. R. Civ.
P. 65. The last case is set for a hearing May 31 on plaintiff's
preliminary injunction motion. Plaintiff has yet to move for
consolidation of the preliminary injunction with the merits in
that case, although we expect he will do so.
On May 16, 1994, a decision was issued in the first case in
which a hearing was held. Judge Charles Lovell declared
unconstitutional the provision in the Brady Act which requires
CLEOs to undertake reasonable background investigations of
potential handgun purchasers, but rejected all of plaintiff's
other challenges to the Act. Printz V. U.S. (D. Mont.) The
court also enjoined defendant from enforcing that provision as to
plaintiff "or any other law enforcement officer." While a final
determination on appealing the merits of the decision has yet to
be made, we will shortly be filing a motion for reconsideration
pursuant to Fed. R. Civ. P. 59 (e) which will ask the court to
modify the injunction to make it applicable solely to Sheriff
Printz, the only named plaintiff.
3. DEPARTMENT POSITION
In light of New York V. United States, we have recognized
from the outset that defense of the Brady Act is a difficult
fight. To this end, the Office of Legal Counsel has interpreted
the requirement in the Act that CLEO's undertake a reasonable
investigation of the criminal histories of handgun purchasers to
mean that the CLEO's only obligation is to decide whether, in
light of his or her other enforcement priorities it is reasonable
to divert his or her resources to Brady Act background checks,
instead of employing them for some other purpose. We also
explicitly concede that the result of this balance may be that in
a given case, it will not be a reasonable use of a CLEO's
resources to conduct Brady Act checks. Further, we argue that
the government will not be in the business of second-guessing the
CLEO's reasonableness determination. Obviously, our concerns
about the difficulties we faced in defending the brady Act were
confirmed by the Printz decision.
4. COMMITTEE MEMBERS INTEREST/POSITIONS
Sen. Kennedy is a strong supporter of the Brady Act.
5. REFERENCE MATERIALS
The key documents are the complaints, the papers supporting
the motions for preliminary injunctions, our opposing memoranda,
the recent decision in Printz and the OLC opinion interpreting
the Brady Act provision at issue.
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Divider Title:
NIXON PAPERS LITIGATION
Nixon V. U.S. (D.D.C.)
1. ISSUE STATEMENT
Summary. The remaining issue in this case is how much
compensation the United States must pay to the estate of former
President Richard M. Nixon for the statutory "taking" of his
presidential materials in 1974.
Background. Shortly after former President Nixon resigned
from the presidency in 1974, he entered into an agreement with
the Administrator of General Services, Arthur Sampson [the
"Nixon-Sampson Agreement"], which dealt with the disposition of
Mr. Nixon's presidential materials. These materials encompassed
42 million documents and 950 tape recordings, including the
infamous "Watergate" tapes. Under the Nixon-Sampson Agreement,
the materials were supposed to be shipped to California and
temporarily stored in a government facility. Controlled access
was to be granted to government prosecutors. The tapes were to
be destroyed upon Mr. Nixon's death or September, 1984, whichever
came first. The Agreement stipulated that title to all the
materials was vested in Mr. Nixon.
The Nixon-Sampson Agreement provoked a tremendous public
outcry, which led to the enactment in December, 1974, of the
Presidential Recordings and Materials Preservation Act of 1974
[the "1974 Act"]. The 1974 Act effectively nullified the Nixon-
Sampson Agreement, and directed the Administrator of General
Services to take custody and control of the Nixon presidential
materials and store them in the Washington, D.C. area. The Act
also assured government prosecutors of unrestricted access to the
materials, and granted public access to all materials except
those deemed private and personal. The 1974 Act expressly
mandated the payment of just compensation to any person held to
have been deprived by its provisions of private property.
After unsuccessfully challenging the constitutionality of
the 1974 Act, Mr. Nixon brought suit in 1980 against the United
States for just compensation under the Fifth Amendment. We
defended the suit on the grounds that the Nixon presidential
materials were not Mr. Nixon's "private property," and that, even
if they were, they had not been "taken" within the meaning of the
Fifth Amendment under the 1974 Act. We prevailed in the district
court, but a unanimous panel of the United States Court of
Appeals for the District of Columbia Circuit reversed. The court
of appeals held, on the basis of a tradition dating back to
George Washington, that Mr. Nixon had a compensable property
interest in his presidential materials, and that the 1974 Act
effected a per se taking of those materials. It remanded the
case to the district court for a determination of how much
compensation was due. The Solicitor General declined to seek
review in the Supreme Court of the court of appeals' decision.
Areas of Controversy and Sensitivity. There is the
potential for a multi-million dollar compensation award against
the United States in this case. While the remand process of
evaluation is in its earliest stages, the record contains a 1968
appraisal of the materials of former President Lyndon B. Johnson,
made at the request of a former Archivist of the United States,
which estimates the value of the documentary portion of the
Johnson materials at $54 million. The Nixon presidential
materials, including the "Watergate" tapes, likely will have a
significantly higher fair market value than the value of the
Johnson presidential materials. A multi-million dollar award to
the Nixon estate as compensation for the "taking" of materials
(which many people regard as public property) probably would
generate considerable adverse media and public reaction.
2. STATUS
The parties have hired experts to develop a methodology for
placing a dollar value on the Nixon presidential materials. A
status conference is scheduled for June 20, 1994, at which the
parties are supposed to inform the presiding judge whether they
have reached agreement on the methodological approach, or whether
that must be litigated.
[CONFIDENTIAL: Counsel for Mr. Nixon's estate recently
forwarded to us the general outline of a proposed settlement of
this case. We are reviewing it internally, and if the White
House and the National Archives and Records Administration
concur, we plan to pursue settlement negotiations.]
3. DEPARTMENT POSITION
Our position on remand is that any compensation award must
be reasonable and not excessive. We may argue that certain
categories of materials (e.g., copies of government memoranda)
have no economic value.
4. JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
Unknown.
5. REFERENCE MATERIALS
Public Law 93-526, "Presidential Recordings And
Materials Preservation Act."
Nixon V. U.S., 978 F.2d 1269 (D.C. Cir. 1992)
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Divider Title:
GAYS IN THE MILITARY
1.
ISSUE STATEMENT
Whether the military's homosexual policy, which bars
service by persons who, by their conduct or statements,
reveal a propensity to engage in homosexual acts,
violates the Constitution.
Since 1981, the military had a policy that: (1) asked
persons at accession whether they were homosexuals, and
barred entry if they responded in the affirmative; and
(2) mandated separation for members who, through their
acts or statements, revealed that they committed or had
a propensity to commit homosexual acts.
In January 1993, the President established an interim
policy whereby the military no longer asked persons
about their sexual orientation during the accession
process. In July 1993, the President announced a new
homosexual policy that was later embodied in legisla-
tion enacted in November 1993 as part of the Defense
Authorization Act of FY 1994. See Pub. L. No. 1033-
160, 107 Stat. 15647 (1993) (to be codified at 10
U.S.C. § 654). The Department of Defense issued
regulations pursuant to this legislation on December
22, 1993. The new policy differs from the old policy
in that it: (1) expressly states that a person's
sexual orientation is a personal and private matter,
and that only homosexual acts, marriages, and
statements that reveal a propensity (or likelihood) to
engage in homosexual acts are grounds for separation;
(2) eliminates questions regarding sexual orientation
during the accession process; (3) clarifies that the
regulatory term "homosexual" is conduct-directed by
eliminating references to homosexual "desires"; (4)
specifies the circumstances in which investigations
will be commenced; and (5) spells out the procedures by
which a member who states that he is a homosexual may
rebut the presumption that he engages in or is likely
to engage in homosexual acts.
2.
STATUS
Approximately twelve lawsuits are pending that involve
challenges -- primarily under the First and Fifth
Amendments -- to the military's former and interim
policies governing service by homosexuals. Previously,
appellate decisions that have reached these issues have
upheld the military's former policy. However, in
Steffan V. DOD, 8 F.3d 57 (D.C. Cir. 1993), a panel
held that the former policy violated equal protection,
and it ordered the Navy to award plaintiff a Naval
Academy diploma and an officer's commission. In
January 1994, the full court vacated the Steffan
decision and directed that the entire case be reheard
en banc. The en banc court heard oral argument on May
11, 1994.
In other recent cases challenging the former policy,
two district courts issued adverse decisions from which
the Government has appealed. In Meinhold V. Navy, 808
F. Supp. 1455 (C.D. Cal. 1993), the court held that the
policy violated equal protection, and it issued a broad
injunction that would effectively have barred the
military from applying the former, interim, or new
policy against any service member. After being denied
relief by the Ninth Circuit, in October 1993 the
Supreme Court granted the Government's application to
stay the injunctive order pending appeal insofar as it
granted relief to persons other than plaintiff. In
December 1993 the Ninth Circuit heard oral argument.
In Dahl V. Navy, 830 F. Supp. 1319 (E.D. Cal. 1993),
the district court held that the policy violated equal
protection and enjoined the Navy from applying that
policy to plaintiff. The Ninth Circuit granted the
Government's motion to stay proceedings pending a
decision in Meinhold.
In significant cases challenging the interim policy, a
district court in the D.C. Circuit issued a preliminary
injunction barring the military from placing the named
plaintiff in the standby reserve. See Elzie V. Aspin
(D.D.C.). The Government did not appeal this
interlocutory order, but instead will oppose
plaintiff's request for a permanent injunction. The en
banc proceedings in Steffan may determine the outcome
of this case.
In Able V. Perry, (E.D.N.Y.), six homosexual service
members challenge the new policy on First and Fifth
Amendment grounds. On April 4, 1994, the district
court issued a preliminary injunction enjoining the
Government, pending resolution of the case, from
investigating or taking other adverse action against
plaintiffs "based on their self-identification as
[homosexuals] in connection with legal proceedings
challenging the [new policy]." We are considering
whether to appeal from this order.
3.
CIVIL DIVISION'S POSITION
The Department vigorously defends challenges to the
military's old, interim, and new policy. Regarding
equal protection challenges, we argue that the
pertinent classification is homosexual conduct, and
that this classification is subject to rational basis
review, with great deference to the military's
considered professional judgment. The policy is
rationally related to preventing the commission of
prohibited acts, promoting unit cohesion, and
accommodating privacy concerns. Regarding First
Amendment challenges, we argue that the First Amendment
is not even implicated, because the policy is directed
at identifying persons who engage, or will likely
engage, in behavior that the military can legitimately
proscribe.
4.
JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
It is not known whether any members of the Judiciary
Committee have particular interest in this issue.
5.
REFERENCE MATERIALS
A statement of the Department's legal positions may be
found in our en banc brief in Steffan V. DOD (D.C.
cir.). Appellate decisions that have accepted our
arguments include: Ben-Shalom V. Marsh, 881 F.2d 454
(7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) ;
Woodward V. United States, 871 F.2d 1068 (Fed. Cir.
1989), cert. denied, 494 U.S. 1003 (1990) ; Dronenburg
V. Zech, 741 F.2d 1388 (1984).
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19
Divider Title:
NATIONAL SECURITY FORMS LITIGATION
National Treasury Employees Union V. Department of Treasury,
Customs Service, and Office of Personnel Management (D.C. cir.)
1.
ISSUE STATEMENT
This case challenges questions on the standard form 85-
P, a questionnaire used for reinvestigation of federal
employees who occupy positions of trust.
A related case, fully briefed and argued in October,
1993, is pending in the Fifth Circuit. Another related
case, fully briefed and awaiting decision in the
district court, challenges the same questions on the DD
398 and 398-2, forms used by the Department of Defense
for reinvestigation of employees who hold security
clearances.
The challenged questions seek information about
financial responsibility, prior arrests, problems
stemming from emotional or mental condition and
treatment related to mental or emotional conditions,
problems stemming from excessive alcohol or drug use
and use of or other activity involving illegal drugs.
These same questions were enjoined in a previous
action, NFFE V. Greenberg (involving the DD 398-2), and
the court of appeals reversed, 983 F.2d 286 (D.C. Cir.
1993).
The questions in all litigation to date have been
challenged on constitutional grounds, i.e., that they
violate employees' constitutionally protected privacy
interests, and that the illegal drug use question
violates the self-incrimination protection in the Fifth
Amendment.
The present framework for the personnel security system
is prescribed by Executive Order 10450, which
establishes a substantive standard for access to
classified information and describes the scope of the
inquiry required to determine whether particular
employees should receive clearance. The continuing
importance of personnel security in the post-Cold War
era has recently been stressed in a report by the Joint
Security Commission to the Secretary of Defense and the
Director of Central Intelligence.¹
1
"Because the government is so completely dependent on
cleared personnel to safeguard classified information, the
personnel security system is at the very heart of the
government's security mission. Without adequate personnel
screening, the rest of the security mission would be a worthless
(continued
)
Although not involving access to classified
information, employees who hold positions of public
trust have access to sensitive information involving
their agencies' missions, e.g., many of the Customs
Service employee positions at issue in the pending
appeal involve access to computer databases and the
handling of large amounts of cash, making these
employees targets of bribery or other corruption,
including blackmail.
It should be noted that, independently of the lawsuits,
OPM and DoD at the urging of OMB have been attempting
to revise several of the standard forms into a single
form. At the same time, a separate initiative is
ongoing within the Department of Justice to revise the
questionnaires, particularly the mental health and drug
use questions. In the course of this latter
initiative, the Civil Rights Division has taken the
position that asking questions concerning mental health
and drug or alcohol abuse, even in the context of a
security clearance investigation, violates the
Americans with Disabilities Act as applied to the
federal government through the Rehabilitation Act. The
Civil Division has disagreed with that legal position.
2.
STATUS
The Solicitor General authorized appeal in the
Treasury/Customs Service case and we intend to move for
expedition (the case is entitled to expedition by
statute and local rule).
The question concerning the applicability of the
Rehabilitation Act to these questionnaires has been
referred to the Office of Legal Counsel.
3.
DEPARTMENT POSITION
1 ( continued)
facade and a waste of resources. Recent history is regrettably
all too rich in proof of the damage that a single cleared person,
such as John Walker, can cause.
"The Commission believes that the personnel security program
will remain the centerpiece of the Federal security system in the
post Cold War era, particularly as we move to a new
classification system in which more information is moved out of
compartments and made available to greater numbers of people."
Joint Security Commission, Redefining Security, A Report to the
Secretary of Defense and the Director of Central Intelligence
(February 28, 1994), at p. 45.
The government's position in the pending appeal
involving the SF 85-P is that the questions do not
violate any constitutionally protected privacy
interests of the Customs Service employees who occupy
positions of public trust. In the Greenberg case, and
in the pending actions in district court that involve
the DD 398 and 398-2, the government's position is that
seeking this kind of information from employees who
have access to classified information is not a
violation of any constitutional right to privacy. The
government's position in all of the cases that
challenge the illegal drug use question is that the
Fifth Amendment does not bar the government from asking
this question.
4.
JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
It is not known whether any members of the Judiciary
Committee have particular interest in this litigation.
5.
REFERENCE MATERIALS
The opinion in Greenberg, 983 F.2d 286 (D.C. cir.
1993), and the briefs filed therein and in the pending
Fifth Circuit action, address these issues.
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Divider Title:
A4 THURSDAY, MARCH 3, 1994
THE WASHINGTON POST
Specter in Role Reversal Before High Court
Customary Senate Questioner Is Grilled Himself on Military Base Closing Argument
By Joan Biskupic
alignment Act, written to try rid the process of
justices focused on how unfairness in the process
Washington Post Staff Writer
politics, dictates that the independent commission
would be redressed.
makes a list after taking recommendations from
Anthony M. Kennedy asked whether any com-
A Supreme Court hearing yesterday over mili-
the defense secretary and holding public hearings.
mission irregularities would be "so gross" that
tary base closings was, in one respect, a quintes-
The president then accepts or rejects the entire
they would warrant judicial review. Days said
gential inside-the-Beltway drama: a U.S. senator
list and Congress has 45 days to veto it.
none, but later added that members of Congress
arguing against the administration's top lawyer
Because neither Congress nor the president
have authority to oversee the work of the com-
while a Who's Who of past and present govern-
may remove an individual base from the list, it
mission and could hold hearings on its procedures.
ment officials looked on.
theoretically ensures that elected officials are not
Overall, Days stressed two points:
the
Sen. Arlen Specter (R-Pa.), who argued that
pressured to pick off and save a hometown base
1990 law, sensitive to the executive's authority
courts should be able to stop base closings, usual-
- "cherry-picking" as Solicitor General Drew S.
over military policy, gave the president the final
b gets to ask the questions and sit in judgment of
Days III explained to the justices.
word on base closings and, separately, that under
court nominees as a member of the Senate Judi-
While the government said the 1990 law set up
a 1992 Supreme Court ruling, courts are
ed
ciary Committee. In a turnabout, he was in the
a politically sensitive scheme that could not be re-
from reviewing agency determinations that are
hot seat with a skeptical audience.
viewed by the courts, Specter argued that courts
not "final." Because the commission prepared
At one point, Chief Justice William H. Rehn-
must be allowed to intervene to assure fairness in
"non-binding" recommendations that the p
quist told Specter his reliance on a prior court rul-
the process. Specter's underlying complaint is
dent may accept or reject, Days asserted, the
ing was "rather strained." Specter responded, "I
that Department of Defense officials concealed
commission's recommendations do not constitute
fespectfully disagree with you categorically."
Yet, for all the Washington players, yesterday's
compelling evidence for keeping the shipyard
final agency action.
open and that the commission held improperly
Specter told the justices he only was "asking
arguments over the validity of the base closing
law eventually will determine the fate of numer-
closed meetings in preparing its list.
that we have our day in court."
Some of the justices, clearly dubious of court in-
ous local economies far outside Washington. It al-
A federal district court dismissed the Specter
tervention, asked why the president could not
so will affect whether the federal government
case, saying the law forbids judicial review. But
pursue allegations of unfairness. Specter said the
continues its decade-long plan to phase out hun-
the 3rd U.S. Circuit Court of Appeals reinstated
president is not equipped to review the facts of al-
dreds of military facilities, saving billions of dol-
it, saying courts could review charges about pro-
legations, as judges are. He stressed the president
lars but eliminating more than 200,000 civilian
cedural fairness.
has about two weeks to make a decision on nu-
jobs.
In the government's appeal, Days told the jus-
merous bases: "There is a legal duty and there is a
Specifically at stake is the 192-year-old Phila-
tices, "All the bases either stand or fall together."
realistic process that he can follow."
delphia Naval Shipyard that Specter and other lo-
In response to questions, particularly from Justice
Specter emphasized the integrity of the recom-
cal officials are trying to keep open. An indepen-
David H. Souter, about the consequences of allow-
mendation process is at the core of the law. He al-
dent base-closing commission in 1991
ing a judge to review the plight of a particular
so distinguished his case from the 1992 court pre-
recommended the Philadelphia yard and 81 other
base, Days said, "This lawsuit represents one of
cedent on which Days relied, saying the
military bases be shut down. Congress and then-
potentially 82 other lawsuits," stemming from the
commission's recommendations were effectively
President George Bush endorsed the list.
1991 list.
final actions.
The question before the Supreme Court is
While Souter obviously was concerned about
The last time a U.S. senator argued at the high
whether local residents can challenge a closure in
the politics of closing bases - calling the law a
court was 1972. Specter was last at the court in
court. The 1990 Defense Base Closure and Re-
"modus vivendi between two branches" - other
1970 as Philadelphia district attorney.
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Divider Title:
FBI AIDS DISCRIMINATION CASE
DOE V. ATTORNEY GENERAL (9th cir.)
1. ISSUE STATEMENT
The FBI requires agents to receive mandatory physicals
from doctors that it designates. In 1988, it received
information that one such doctor in San Francisco had
been diagnosed with an AIDS-related disease. The FBI
pursued inquiries with the doctor and the facility at
which he worked. When the facility and the doctor
refused to confirm whether he had been diagnosed with
the disease and was otherwise conclusory in dealing
with the FBI's concerns, the FBI ceased sending agents
to the facility for mandatory physicals. Plaintiff
then brought this suit under the Rehabilitation Act
arguing that he had been discriminated against on the
basis of his handicap.
2. STATUS
The case was originally dismissed by the district court
on threshold issues of sovereign immunity. The Ninth
Circuit reversed this judgment, but affirmed the
dismissal of a damage action against individual FBI
agents. On remand, the district court held, on the
basis of trial testimony, that the FBI did not
discriminate against plaintiff on the basis of his
handicap. The court found that the Bureau's inquires
had been frustrated by the failure of the doctor and
the facility to respond to the Bureau's concerns.
Plaintiff's appeal from that decision was argued to the
Ninth Circuit on May 10, 1994.
3. CIVIL DIVISION'S POSITION
We defended the district court's decision on the narrow
ground that, given the state of knowledge in 1988, it
was lawful for the FBI to inquire as to whether
plaintiff had an AIDS-related disease and that the
hospital should have been more forthcoming in
explaining the risks posed by the disease, the
procedures used to limit that risk, and plaintiff's own
state of knowledge regarding those procedures. We take
no position as to the appropriate course of conduct at
present, and acknowledge that, if proper procedures are
followed, an AIDs-infected physician poses no risk to
patients during non-invasive procedures.
The Center for Disease Controls 1991 Guidelines state
that a physician infected with the AIDS virus presents
no risk to patients during non-invasive procedures so
long as recommended procedures are followed.
4. JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
It is not known whether any members of the Judiciary
Committee have particular interest in this litigation.
5. REFERENCE MATERIALS
The government's position is set forth in the brief it
filed in the Ninth Circuit.
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Divider Title:
NATIONAL ENDOWMENT FOR THE ARTS LITIGATION
FINLEY V. NEA (9th cir.).
1. ISSUE STATEMENT
Funding by the National Endowment for the Arts of
several controversial performance artists whose
work contains strong sexual or homosexual themes
provoked strong congressional reaction. Congress
was strongly divided on whether to enact content
restrictions upon the NEA's funding. The enacted
compromise requires the NEA to take into
consideration general standards of decency when
establishing regulations ensuring that grant
applications are judged by their artistic
excellence and artistic merit. However, the NEA
construed the statute as leaving much to its
discretion, and it decided to do no more in
implementing the statute than ensure that there was
diversity of membership on the panels that made
recommendations about funding, so that decency is
not a criterion by which grant applications are
judged.
The issue is whether the statute is, on its face,
violative of the First Amendment or void for
vagueness.
A sensitive area in this appeal is the relation of
the principles governing this case to those
announced in Rust V. Sullivan, 111 S. Ct. 1759
(1991), which held that the government could place
conditions on the use of federal funds by Title X
family planning projects so as to forbid them from
counseling clients about issues relating to
abortion.
2. STATUS
The case has been briefed and argued before the
court of appeals.
3. CIVIL DIVISION'S POSITION
We argue that a facial challenge to a statute
cannot succeed unless there are no constitutionally
acceptable ways in which the statute can be
implemented, and that there are several ways in
which the NEA can constitutionally implement this
statute. First, we argue that the NEA has
correctly construed this statute as not necessarily
requiring the NEA to make decency standards a part
of the grant awarding process. Rather, the statute
requires only that the NEA Chairperson take into
consideration the issue of decency in arts grants
and take appropriate action. In implementing the
statute, the NEA determined that increased
diversity in panels making recommendations would
satisfy decency concerns as long as the panels made
decisions based upon artistic merit and excellence.
Under this construction of the statute, no serious
constitutional issues are raised. Moreover, even
if the statute is construed to require the NEA to
introduce express decency standards into the grant
making process, we argue that standards can be
crafted that clearly meet constitutional
requirements. For example, the NEA could limit the
extent to which it supports grants that intend to
present indecent or obscene material to audiences
containing children under twelve years of age.
We have argued that the issue of how this case
relates to Rust is premature, and we have taken no
position on what if any conditions the government
may impose on NEA-grant recipients.
4. JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
It is not known whether any members of the
Judiciary Committee have particular interest in
this litigation.
5. REFERENCE MATERIALS
The briefs filed by the government in the court of
appeals address the issues on the appeal.
Religious Groups Fight
U.S. in Bankruptcy Case
By Laurie Goodstein
furor among religious organizations
Washington Post Sulf Writer
because the Justice Department has
sided with the creditors.
A dispute between the Justice De-
Baptists, Catholics, Mormons, Lu-
partment and numerous religious or-
therans and evangelical groups ar-
ganizations has broken out over the
gue fiercely against the creditors in
right of creditors and the courts to
briefs prepared for filing today in the
seize money donated to a church by
U.S. Court of Appeals in St. Paul.
a bankrupt couple in Minnesota.
The groups insist that the Religious
The couple. Bruce and Nancy
Freedom Restoration Act (RFRA).
Young. faithfully tithed-contribut-
which President Clinton signed with
ing 10 percent of their income to
much fanfare last November, pro-
their church-even as their electri-
tects churches from government in-
cal contracting business slipped into
terference.
bankruptcy. Now, their evangelical
But in the first test of the new
church is under court order to turn
law, the Clinton administration has
over the Youngs' $13,450 in dona-
supported the creditors in a move
tions to their creditors, creating a
the government relegates [the act]
See RELIGION, A8, CoL 1
to window dressing, a political exer-
that has prompted cries of betrayal
cise to placate rather than protect
from religious groups. To the gov-
the religious community."
erament, the issue is a "straight ap-
Bruce end Nancy Young have
plication of the bankruptcy code."
said White House spokesman Arthur
been members of Crystal Evangeli-
cal for nearly two decades. The cou-
Jones. "Because the code applies to
both religious and nonreligious orga-
ple, in their fifties, are "chagrined
nizations, we don't think there's an
and weary" from the church's fight
implication for the RFRA."
and refuse all requests for inter
The bankruptcy code says it is not
views, their pastor said. They had
illegal for debtors to spend their
been tithing to the church for eight
money as long as they get something
years, be added, and they continued
of "value" for it, but creditors can
tithing as they slid toward bankrupt-
seize any money that debtors have
cy, selling their home and household
given away.
goods to stay afloat.
The court is declaring there is no
"Tithing," said J. Brent Walker,
value in ministry to the soul," said
general counsel for the Baptist Joint
the Rev. Stephen Goold, senior pas-
Committee, "is not simply a financial
tor of the Crystal Evangelical Free
transaction or a way to keep the
Church, where the Youngs are mem-
lights in the church house on, but it
bers. "Where is our country when
runs to the very core of what reli-
the court can declare that that which
gious worship is about. For the gov-
is of most value has no value?"
ernment to reach back and try to un-
Crystal Evangelical, a congrega-
do that act of worship is the most-
tion of 2,200 active members in the
egregious violation of religious liber-
Minneapolis suburb of New Hope,
ty."
The groups joining the Christian
Legal Society's brief scheduled to be
The court is
filed in support of Crystal Evangeli-
cal represent Baptists, Catholics,
declaring there is no
Mormons, Lutherans and the Na-
tional Association of Evangelicals.
value in ministry to
Douglas Laycock, a constitutional
scholar at the University of Texas
the soul. "
whose scholarship often is cited by
the Supreme Court in church-state
- the Rev. Stephen Goold,
cases, is writing the brief.
Crystal Evangelical Free Church
Sen. Orrin G. Hatch (R-Utah),
who sponsored the RFRA with Sen.
Edward M. Kennedy (D-Mass.), took
has spent more than $150,000 in le-
to the Senate floor May 3 to ask
gall fees to retain the Youngs'
Clinton to direct the Justice Depart-
$13,450 donation, Goold said. "The
ment to "back off
and allow the
church cannot sit idly by" while
Religious Freedom Restoration Act
courts violate "a biblical injunction
to have the widespread, broad cov-
to put God first in the area of
erage that we intended here in Con-
one's finances," he said.
The Religious Freedom Restora-
gress in the first place."
tion Act was designed to protect re-
Hatch represents a state where
ligious activity by requiring the gov-
many Mormons tithe to their
ernment to show that it has a
church. He plans to file a friend of
"compelling state, interest," such as
the court brief today, said Victor Ca-
public health or safety, before inter-
bral, counsel to Hatch on the Senate
fering with religious practices.
Judiciary Committee. Kennedy typi-
The Senate approved the bill 97
cally waits to take positions until
to 3, and the House passed it by
such cases reach the Supreme
voice vote. Clinton signed it into law
Court, a Kennedy staff member said.
in a celebratory Rose Garden cere-
Not all groups that supported the
mony attended by leaders of many of
RFRA see reason for outrage in the
the 68 groups spanning the religious
Justice Department's move. "I don't
and political spectrum that had
think it's the kind of case that spells
pushed for the act.
either gloom or doom for RFRA,"
At that ceremony six months ago,
said Elliot Mincberg, legal director
Clinton said, "we can never, never
of People for the American Way, a
be too vigilant in this work" of pre-
liberal advocacy group. The govern-
serving the free exercise of religion.
ment is acting within the confines of
"We all went out of there thinking
the act by arguing that it does have a
we've got an administration that's
compelling interest, he said.
going to take this legislation serious-
Said David Saperstein, of the Reli-
ly." said Steven T. McFarland, direc-
gious Action Center for Reform Ju-
tor of the Center for Law and Reli-
daism, "It's not an absolutely clear
gious Freedom. the advocacy arm of
call, but we would hope that this ad-
the Christian Legal Society. "Then
ministration would err on the side of
the president's highest legal arm in
protecting religious freedom."
Clinton Presidential Records
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23
Divider Title:
CHRISTIANS V. CRYSTAL EVANGELICAL FREE CHURCH (8th cir.).
1. ISSUE STATEMENT
Bruce and Nancy Young filed a Chapter 7 bankruptcy petition on
February 3, 1992. In the preceding year, during which time
they were insolvent, the Youngs contributed $13, 500 to Crystal
Evangelical Church. The Youngs made the gifts out of their
own sincere religious conscience and in accordance with the
Church's teachings, which are that people should make regular
financial contributions to the Church.
The bankruptcy trustee assigned to the Youngs' Chapter 7
petition filed this proceeding to recover the $13,500
contribution under Section 548 (a) (2) of the Bankruptcy Code,
11 U.S.C. 548 (a) (2). That Section authorizes the trustee to
avoid (or, recover) any transfer of an interest of the debtor
that was made or incurred within one year of when the Chapter
7 petition was filed if the debtor "received less than a
reasonably equivalent value in exchange for such transfer" and
"was insolvent on the date that such transfer was made * * *
or became insolvent as a result of such transfer." 11 U.S.C.
548 (a) (2) (A), (B) (i).
The United States Bankruptcy Court for the District of
Minnesota granted summary judgment for the trustee. It held
that Section 548 (a) (2) authorized recoupment of the Youngs'
gifts because the religious services, theological programs,
and access to the premises that the Church provided to the
Youngs were not "property" under that Section and were not
provided "in exchange for" the transfer. On appeal, the
United States District Court for the District of Minnesota
affirmed. It held that the Bankruptcy Court correctly
interpreted the Code and that Section 548 does not violate the
Free Exercise, Establishment, or Free Speech Clauses as
applied to the Church.
2. STATUS
The Church appealed to the Eighth Circuit. On February 9,
1994, the Eighth Circuit certified to the Attorney General
that the case draws into question the constitutionality of an
Act of Congress (Section 548) affecting the public interest,
and notified the Attorney General that the United States would
be permitted to intervene. The United States filed its brief
as intervenor on April 22, 1994. Any responding briefs to the
United States' brief would be due May 31, 1994. Assuming no
extensions of time, briefing would then be completed and the
case could be restored to the oral argument calendar.
3.
CIVIL DIVISION'S POSITION
For the reasons stated in the opinions below, we argue that
the Bankruptcy Court and the District Court correctly ruled
that Section 548 (a) (2) of the Code authorizes the trustee to
recoup the $13,500 the Youngs gave the Church at a time when
they were insolvent and during the year before they filed
their Chapter 7 petition. We also argue that those courts
were right to hold that applying Section 548 (a) (2) to the
Church does not violate the Constitution. Section 548 (a) (2)
does not violate the Free Exercise Clause because it is a law
of general applicability that does not single out religion or
religious groups for adverse treatment. Thus, if the Youngs
had given the $13,500 to the Red Cross or any other secular
group, the trustee would have had to recoup the money as well.
Section 548 (a) (2) does not violate the Establishment Clause
because it's primary purpose and effect -- to return to the
Youngs' estate money that should be used to pay the debts they
owe their creditors -- is secular and because the Section does
not impermissibly entangle government with religion. Section
548 (a) (2) does not violate the Free Speech Clause because the
Section operates, at most, as a marginal restriction on the
Youngs' free speech rights and because the Section is designed
to achieve a compelling government interest (returning to the
Youngs' creditors money that should be used to pay the Youngs'
debts). Finally, we argue that applying Section 548 (a) (2) to
the Church does not violate the Religious Freedom Restoration
Act ("RFRA"). 42 U.S.C. 2000bb (1993). RFRA provides that
'[g] overnment may not substantially burden a person's exercise
of religion even if the burden results from a rule of general
applicability" unless the government shows that application of
the burden to the person "is in furtherance of a compelling
governmental interest" and "is the least restrictive means of
furthering that compelling governmental interest." We argue
that recouping the Youngs' contributions to their Church does
not "substantially burden" their religion because they have no
First Amendment right to give away money that the law deems as
rightfully owned by another (i.e., their creditors). We also
argue that the trustee has a compelling interest in protecting
the property rights of those to whom the Youngs owned money.
4.
JUDICIARY COMMITTEE MEMBERS INTEREST/POSITIONS
On May 3, 1994, Senator Hatch criticized the Department's
Brief in statements on the Senate floor. Cong. Rec. S5014-
5015. Senator Hatch expressed the view that the government's
interest in protecting the property rights of the Youngs'
creditors is not a "compelling governmental interest" under
the RFRA.
5.
REFERENCE MATERIALS
The Department's brief addresses the issues in the appeal.
2
Clinton Presidential Records
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marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
24
Divider Title:
CHINESE ASYLUM SEEKERS LITIGATION
1. ISSUE STATEMENT
Under 8 U.S.C. $208, an alien is entitled to asylum only if he
has a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion. Chinese, some of whom were smuggled to this
country by criminal syndicates, have claimed asylum based upon
China's birth control practices; many claim that they or their
spouse have been threatened with forced sterilization or abortion.
In 1989, the Board of Immigration Appeals ruled in Matter of Chang
that the application of China's birth control practices did not
constitute persecution on account of one of the five bases for
asylum, unless birth control policies were discriminatorily applied
based on the person's religion or political opinion, for example.
Thereafter, in 1990, President Bush issued an Executive Order
directing that the Attorney General provide for "enhanced
consideration" of such claims, and confusion arose concerning the
state of the law.
Last year, the BIA certified two Chinese cases to the Attorney
General to clear up the confusion. In December, the Attorney
General declined to rule on the cases, finding that they were
controlled by the fact that the aliens did not present credible
testimony. Afterwards, the BIA ruled that the Executive Order did
not overrule Matter of Chang, and the BIA has continued to deny
Chinese birth control asylum claims. In turn, Chinese aliens have
filed habeas petitions in various District Courts to challenge
these decisions.
In order to deal with the problem of criminal syndicates
smuggling aliens into the U.S., in the summer of 1993 an
interagency group made a policy decision that immigration hearings
of aliens smuggled by criminal syndicates (including Golden Venture
passengers) would be expedited, while preserving the due process
rights of the Chinese aliens. In the Middle District of
Pennsylvania, lawyers for Chinese aliens are claiming that there
was improper Department of Justice and White House influence in
Chinese asylum hearings. In discovery, it has been established
that an NSC staffer, Eric Schwartz, called an EOIR (the DOJ segment
that includes the BIA) staff member to request that the hearings be
expedited; however, depositions also establish that EOIR did
nothing in response to the call and that the hearings were already
being expedited pursuant to the interagency decision. There is no
evidence that anyone attempted to influence Immigration Judges in
their asylum determinations.
2. STATUS.
Four District Court decisions have addressed the merits of
Chinese asylum claims, all in the Eastern District of Virginia.
Two District Judges have upheld Matter of Chang and rejected asylum
claims. One District Judge has refused to follow Matter of Chang
and has held that the general application of Chinese birth control
practices can form the basis for asylum; in another case, the same
District Judge rejected an asylum claim because the claimant was
fleeing possible criminal prosecution arising out of a fight with
a birth control official.
In the Middle District of Pennsylvania, the District Court
denied a nationwide class action, and the Third Circuit affirmed
that decision. Discovery is continuing into the petitioners' claim
of improper Executive Branch influence, and the petitioners'
attorneys are making inflamatory statements in the press, based in
part on the Eric Schwartz phone call.
3. DEPARTMENT POSITION
The Department, as it normally does, is defending the BIA's
decisions in the various habeas actions and thus is defending
Matter of Chang as a reasonable interpretation of the asylum law
statute. The one adverse decision from the Eastern District of
Virginia is on appeal to the Fourth Circuit. We are also defending
the discovery in the Pennsylvania litigation into alleged improper
Executive Branch influence.
Meanwhile, there is pending interagency policy consideration
of the appropriate administrative response to Chinese with claims
of birth control persecution. For example, it is possible to
provide administratively that certain categories of credible
Chinese claimants not be deported, outside the context of asylum.
No final policy decision has been made, however.
4. JUDICIARY COMMITTEE MEMBERS INTEREST
Sens. Kennedy and Simpson take a leading role in immigration
matters. Earlier this session, when Sen. Helms introduced an
amendment to grant Chinese birth control claimants asylum, Sen.
Simpson (or his staff) helped convince Sen. Helms to delete
references to asylum and convert his amendment to a withholding of
deportation provision. Ultimately, the provision was dropped in
conference with the House. At one time, Sen. Feinstein wrote the
Department opposing asylum for Chinese birth control claimants.
Sen. Specter is from Pennsylvania, and members of the Pennsylvania
Bar have been representing Chinese claimants pro bono.
5. REFERENCE MATERIALS
Attached is Matter of Chang; a more recent BIA decision
addressing the Executive Order; and a decision from the Eastern
District of Virginia upholding the BIA's position.
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, 8 U.S.C. § 1101 (a) (42) (A)
(1982), even to the extent that involuntary sterilizations 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.
1
Interim Decision #3107
(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:
Order: Act of 1952 - Sec. 241 (a) (2) [8 U.S.C. § 1251 (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
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, 8 U.S.C. §§ 1158 (a) and 1253(h) (1982), the
respondent, 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
2
Interim Decision #3107
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
he 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 due 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
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
3
Interim Decision #3107
connection with another matter. 1/ 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 is 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
1/ 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.
4
Interim Decision #3107
compliance. 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 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
"[r]eported 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 Government'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 coeroed significant numbers of women
into having abortions. In 1987 the Chinese Government stressed
repeatedly that it does not condone forced abortions or sterili-
zations. 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
5
Interim Decision #3107
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/ 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
(Cont'd)
5,
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
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 ideal a norm of one
child per family, backed by a massive, grassroots
institutional effort involving education, contracep-
tive 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.
(Cont'd)
7
Interim Decision #3107
in a particular social group, or political opinion. See sections
101 (a) (42) (A), 208(a) of the Act, 8 U.S.C. §§ 1101 (a) (42) (A),
1158 (a) (1982); INS V. Cardoza-Fonseca, 480 U.S. 421 (1987);
Carcamo-Flores V. INS, 805 F.2d 60 (2d Cir. 1986); Guevara Flores
V. INS, 786 F.2d 1242 (5th Cir. 1986), cert. denied, 480 U.S. 930
(1987); Matter of Vigil, Interim Decision 3050 (BIA 1988); Matter
of Mogharrabi, Interim Decision 3028 (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. 8 C.F.R. §§ 208.5,
242.17 (e) (1988); Rebollo-Jovel V. INS, 794 F.2d 441 (9th Cir.
1986); Matter of Maldonado-Cruz, Interim Decision 3041 (BIA
1988); Matter of Acosta, Interim Decision 2986 (BIA 1985),
modified on other grounds, Matter of Mogharrabi, supra; see also
Young V. United States Dept. of Justice, INS, 759 F.2d 450 (5th
Cir.), cert. denied, 474 U.S. 996 (1985). We recognize, as have
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 programs. 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).
8
Interim Decision #3107
the courts, the difficulties faced by many aliens 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, 830 F.2d 1039 (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 immigration judges and this Board. See 8 C.F.R. §§ 2.1,
3.1, 236.1, 236.3, 242.2(d), 242.8(a) (1988); United States ex
rel. Accardi V. Shaughnessy, 347 U.S. 260 (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.
9
Interim Decision #3107
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 propaganda. 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
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 (a) (42) (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
dilemma. 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
10
Interim Decision #3107
well-founded fear of persecution "on account of raœ, 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 applica-
tion 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 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, whenoe he came, or that forced
11
Interim Decision #3107
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
application 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
12
Interim Decision #3107
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 beliefs conflicted with them. See, e.g.,
United States V. Lee, 455 U.S. 252 (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, 794 F.2d 950, 954-57 (5th Cir. 1986), cert.
denied, 480 U.S. 946 (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 101 (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
13
Interim Decision #3107
country's policy does not mean that Congress has found that the
policy involves "persecution on account of race, religion,
nationality, membership 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 development funds in countries which engage in a
consistent pattern of gross violations of internationally
recognized human rights. However, even if involuntary steriliza-
tion 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.
3/ The respondent also states that on July 11, 1985, the House
of Representatives "passed legislation" accusing China of
coercive sterilization 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., 1st Sess. 101, 105, 118, reprinted in 1985
U.S. Code Cong. & Ad. News 210, 214, 227.
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." Pub. L. No.
100-204, Title I, § 127(1), 101 Stat. 1342 (1987).
14
Interim Decision #3107
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
persecution 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. Cardoza-Fonseca, supra; 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
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
15
Interim Decision #3107
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 referenced. 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
deportation will be reinstated and executed.
16
DEPT. OF JUSTICE
MAIN LIBRARY
Interim Decision #3215
MATTER OF G-
In Exclusion Proceedings
A-72761974
Decided by Board December 8, 1993
(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, 2-, Interim Decision
3208 (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, 8 U.S.C. § 1101 (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 inspection at
the nearest inspection point; and (3) freedom from official
restraint. Matter of 2, Interim Decision 3208 (BIA 1993),
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.
1
Interim Decision #3215
(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.
(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, Interim Decision 3107 (BIA 1988), as
precedent in all proceedings involving the same issues.
(11) 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."
2
Interim Decision #3215
EXCLUDABLE: Act of 1952 - Sec. 212 (a) (7) (A) (i) (I) [8
U.S.C.
§ 1182 (a) (7) (A) (i) (I) - No valid
immigrant visa
Sec. 212 (a) (7) (B) (i) (I) [8 U.S.C.
§ 1182 (a) (7) (B) (i) (I) - Nonimmigrant
without valid passport
Sec. 212 (a) (7) (B) (i) (II) [8 U.S.C.
§ 1182 (a) (7) (B) (i) (II) - No valid
nonimmigrant visa or border crossing
card
ON BEHALF OF APPLICANT:
ON BEHALF OF SERVICE:
Timothy J. Shultis, Esquire
Jack Penca
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. 8 C.F.R.
§ 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, 8 U.S.C.
§§ 1182 (a) (7) (A) (i) (I), (B) (i) (I), and (B) (i) (II) (Supp. IV 1992)
3
Interim Decision #3215
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, 8 U.S.C. § 1101 (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 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, 8 U.S.C. § 1226 (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 (a) (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, 8 U.S.C. § 1252 (b) (Supp. IV 1992). 1/
1/ Deportation and exclusion proceedings are mutually exclusive
methods of removing an alien from the United States.
Sections 236 and 242 (b) of the Act; Leng May Ma V. Barber,
357 U.S. 185, 187 (1958). However, the question of whether
an alien has effected an entry is appropriately litigated in
exclusion proceedings. Landon V. Plasencia, 459 U.S. 21, 31
(1982)
4
Interim Decision #3215
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 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.
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.
5
Interim Decision #3215
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
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.
6
Interim Decision #3215
26 other men near a shopping center in the town of Huntington
Beach after receiving an 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/
4/ According to newspaper accounts, the Golden Venture sailed
from Thailand with its cargo of illegal Chinese 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.
7
Interim Decision #3215
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, Interim Decision 3157 (BIA 1991), and cases
cited therein; see also Correa V. Thornburgh, 901 F.2d 1166, 1171
(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 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,
209 F.2d 195, 197 (3d Cir. 1954) ; United States V, Lazarescu,
104 F. Supp. 771, 777 (D. Md. 1952), aff'd, 199 F.2d 898, 900
(4th Cir. 1952) ; In re Dubbiosi, 191 F. Supp. 65, 66 (E.D. Va.
1961).
8
Interim Decision #3215
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. Martin-Plasencia, 532 F.2d 1316 (9th Cir.)
cert. denied, 429 U.S. 894 (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, INS, 534
F.2d 1018, 1019 (2d Cir. 1976) ; Matter of 2-, Interim Decision
3208 (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. Thornburgh, supra, at 1172 (defining "freedom from
official restraint" as freedom from constraint emanating from the
government that would otherwise prevent the alien from physically
9
Interim Decision #3215
passing on) ; Matter of Pierre, 14 I&N Dec. 467, 469 (BIA 1973)
(quoting Ex parte Chow Chok, 161 F. 627, 629-30, 632
(C.C.N.D.N.Y.), aff'd, 163 F. 1021 (C.C.A. 2 1908) ) ; Edmond V.
Nelson, 575 F. Supp. 532, 535 (E.D. La. 1983) ; Matter of Yam,
16 I&N Dec. 535, 536-37 (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,
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, 684 F.2d 204 (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.
10
Interim Decision #3215
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 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, 8 U.S.C. § 1361; Matter of 2-, supra, at 4; Matter of
Matelot, 18 I&N Dec. 334, 335 (BIA 1982) ; Matter of De La Nues,
18 I&N Dec. 140, 144 (BIA 1981) ; Matter of Healy and Goodchild,
17 I&N Dec. 22, 26 (BIA 1979) ; Matter of Pierre, supra, at 468. I/
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 alien
should be deprived of that status. Matter of Z-, supra, at
4; Matter of Salazar, 17 I&N Dec. 167, 169 (BIA 1979) ; Matter
of Kane, 15 I&N Dec. 258, 264 (BIA 1975).
7/ In In re Phelisna, 551 F. Supp. 960 (E.D.N.Y. 1982), appeal
dismissed, 729 F.2d 1444 (2d Cir. 1983), 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
(Cont'd)
11
Interim Decision #3215
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 not
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.
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. Dept.
of Medical Assistance V. Bowen, 846 F.2d 708, 710 (11th Cir.
1988) ; Starbuck V. City & Cty. of San Francisco, 556 F.2d
450, 457 (9th Cir. 1977) ; Matter of K-S-, Interim Decision
3209 (BIA 1993) ; Matter of Cerna, Interim Decision 3161 (BIA
1991).
8/ This 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.
12
Interim Decision #3215
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 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, 12 I&N Dec. 191, 194 (BIA 1967) (finding
evasion where aliens arriving at other than a designated port
proceed 10 miles inland with intention of presenting themselves
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.
13
Interim Decision #3215
for inspection at other than the nearest inspection point); see
also United States ex rel. Giacone V. Corsi, 64 F.2d 18 (2d Cir.
1933). See generally Thack V. Zurbrick, 51 F.2d 634, 635-36 (6th
Cir. 1931) ; but cf. Pierre V. Rivkind, 643 F. Supp. 669 (S.D.
Fla. 1986), rev'd on other grounds, 825 F.2d 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) 10/
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 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 (a) (13) of the Act; Matter of 2-, 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
10/ In Matter of 2-, supra, at 5, 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.
14
Interim Decision #3215
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. 11/
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.
11/ Counsel for the applicant represents in his appeal brief that
an ongoing human salvage operation was underway both 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 I&N 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.
Thornburgh, supra, at 1172; Edmond V. Nelson, supra, at 535;
Matter of Yam, supra, at 536-67 (BIA 1978) (involving alien
found at border and taken under guard by local police to a
medical facility).
15
Interim Decision #3215
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 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
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.
16
Interim Decision #3215
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. 13/
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. 14/
As required by 8 C.F.R. § 208.11 (1993), a copy of the
applicant's Request for Asylum in the United States (Form I-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, Interim Decision 3107 (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.
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 8 C.F.R. § 287.6 (1993). See Matter of
Bader, 17 I&N Dec. 525, 526 (BIA 1980).
14/ 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.
17
Interim Decision #3215
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,
55 Fed. Reg. 13,897-98 (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,
U.S.
,
112 S. Ct. 812 (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 self-determination 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 of Medina, 19 I&N Dec.
734 (BIA 1988).
18
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 9; see also United States
ex rel. Accardi V. Shaughnessy, 347 U.S. 260 (1954) ; 8 C.F.R.
§§ 2.1, 3.1, 3.10, 208.2(b), 236.1, 236.3, 242.8(a) (1993). 16/
Second, the interim regulations cited by the applicant were
never finalized. 55 Fed. Reg. 2804 (1990). 17/ 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. 18/
16/ 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 8 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 55 Fed. Reg. 2804, 2805 (1990).
18/ 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.
19
Interim Decision #3215
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). 19/ 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, Interim Decision 3106 (BIA 1989) ; Matter of
Anselmo, Interim Decision 3105 (BIA 1989).
Lastly, we note that in his November 7, 1991, memorandum, the
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. 20/ This 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-Zacarias, supra,
at 816-17 (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
19/ President George Bush issued Executive Order No. 12, 711 on
April 11, 1990.
20/ 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 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 sterilization were not required to demonstrate that
the coercive measures were tied to a governmental purpose
other than to control the population.
20
Interim Decision #3215
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, 685 F.2d 343
(9th Cir. 1982) ; Matter of Chang, supra, at 9; Matter of M/V Saru
Meru, Interim Decision 3190 (BIA 1992) ; Matter of Salim, 18 I&N
Dec. 311, 315 (BIA 1982) ; Matter of Cavazos, 17 I&N Dec. 215 (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 C.F.R. § 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
8 C.F.R. § 3.1 (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, 8 U.S.C. §§ 1101 (a) (42) (A) and 1158 (a) (1988) ; INS V.
Cardoza-Fonseça, 480 U.S. 421 (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, 947 F.2d 46, 47 (3d Cir. 1991) ;
Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987) (finding
that an applicant for asylum has established a well-founded fear
if a reasonable person in his circumstances would fear
persecution on account of one of the grounds enumerated in
section 101 (a) (42) of the Act) ; Matter of Chen, Interim Decision
3104 (BIA 1989) (stating that an 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; 8 C.F.R. $ 208.13 (1993).
21
Interim Decision #3215
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 10, 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 11.
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. Ilchert, 840 F.2d
723 (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.
22
Interim Decision #3215
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 motivation on their part to penalize the
applicant apart from his failure to observe that country's birth
control policies. 21/
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,
21/ In 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-Zacarias,
supra, 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 or 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.
Elias-Zacarias, supra.
23
Interim Decision #3215
accordingly, has failed to satisfy the more rigorous "clear
probability" standard of eligibility required for withholding of
deportation. See INS V. Elias-Zacarias, supra, at 816-17; Matter
of Chang, supra; section 243 (h) of the Act, 8 U.S.C. § 1253 (h)
(1988 & Supp. IV 1992) ; INS V. Stevic, 467 U.S. 407, 429-30
(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 8 C.F.R. § 208.16 (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 Janusiak V, United
States INS, supra; Blazina V. Bouchard, 286 F.2d 507 (3d Cir.),
cert. denied, 366 U.S. 950 (1961) ; Coriolan V. INS, 559 F.2d 993,
1000 (5th Cir. 1977) ; Matter of Sibrun, 18 I&N Dec. 354 (BIA
1983) ; Matter of Matelot, supra, at 337; Matter of Nagy, 11 I&N
Dec. 888 (BIA 1966) ; see also Rodriguez-Rivera V. INS, 848 F.2d
998, 1005 (9th Cir. 1988) ; Zupicich V. Esperdy, 319 F.2d 773 (2d
Cir. 1963), cert. denied, 376 U.S. 933 (1964).
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.
24
Interim Decision #3215
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, 342 U.S.
580 (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
22/ In 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.
25
Interim Decision #3215
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, 604 F.2d 1236, 1238-39 (9th Cir. 1979),
cert. denied, 449 U.S. 828 (1980) ; Matter of Santos, 19 I&N Dec.
105 (BIA 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, 18 I&N Dec. 303 (BIA 1982) ; Matter of
Bader, 17 I&N Dec. 525, 527 (BIA 1980) ; Matter of Carrillo, 17
I&N Dec. 30 (BIA 1979) ; Matter of Lennon, 15 I&N Dec. 9 (BIA
1974) ; Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966), aff'd, 370
F.2d 305 (7th Cir. 1966) ; Matter of Bufalino, 11 I&N Dec. 351
(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.
26
Interim Decision #3215
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, 749 F.2d 1354 (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.
27
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PAGE 02
RECEIVED
SWAY-9 PH 12:42
U.S. THEY'S OFFICE-
ALEXA BRIAVIRGINIA
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
MAY - 1
CHEN ZHOU CHAI,
1
CLEAN
)
Petitioner,
)
1
V.
)
CIVIL ACTION NO. 94-0037-A
)
WILLIAM J. CARROLL, District
)
Director, Immigration and
)
Naturalization Service
)
(Washington District), and
)
DAVID L. MILHOLLEN, Director
)
of the Executive Office of
)
Immigration Review and
)
Chairman of the Board of
)
Immigration Appeals,
)
)
Respondents.
)
Memorandum Opinion
This matter came before the Court on Petitioner's petition
for a Writ of llabeas Corpus. retitioner Chen Zhou Chai seeks a
reversal of the asylum ruling of the Board of Immigration Appeals
("Board") in his case by attacking a precedent decision of the
Board concerning asylum claims based on the family planning
policies of the Peoples Republic of China ("PRC"). Petitioner
contends that he suffered past persecution and harbors a a well-
founded fear of perscoution "on account of" political opinion, as
defined in the Immigration and Nationality Act ("INA"), 8 U.S.C. §§
2101 et sed. and asserts that the Board's decision in Matter of
Chang, Int. Dec. 3107 (BIA 1989), has been either superseded by
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PAGE 03
subsequent case law or certain interim regulations on the iscue. 1
The Board has ruled that the PRC'S family planning policies do
not constitute percecution "on account of" political opinion under
the circumstances of petitioner's case. The Board found that
persecution "on account OE" political opinion requires more than a
generalized political motive, and a petitioner must show that
government officials were motivated to persecute him because of
political opinion. INS V. Elias-Zacarias, 112 S. CL. 812, 816-17
(1992)
Petitioner is a native and citizen of PRC. on June 6, 1993,
he arrived in the United States by paying to be smuggled aboard a
vessel called the "Golden Venture," which ran aground in New York.
1 An interim rule was published in January 1990. The interim
rule "clarifie(d) the burden of proof for applicants of refugee
status, withholding of deportation and asylum by establishing that
an alien fleeing coerced population control policies of forced
abortions or sterilization may be considered to have a clear
probability (for withholding of deportation) or well-founded fear
(for asylum) of persecution on account of political opinion." 55
F.ed Reg. 2804 (January 29, 1990). This interim rule was to amend
the regulations for withholding of deportation, 8 C.F.R. § 242, and
for asylum, 8 C.F.R. § 208. However, a comprehensive revision of
these regulations published in July 1990 superseded the language of
the interim rule. 55 Fed. Reg. 30674.
on January 15, 1993, the out-going Attorney General signed a
"Cinal rule," which would have amonded 8 C.F.R. 55 208 13 and
208.16 (1992) to specifically address asylum claims based upon
coercive population control policies. However, the January 1993
rule was never published in the Federal Register. Rather, the
Director of the Office of Management and Budget, on January 22,
1993, directed agencies to withdraw from the Federal Register for
approval all regulations not yet published in the Federal Register.
58 Fad. Reg. 6074 (January 25. 1993). Tn accordance with this
directive, the Acting Assistant Attorney General of the Office of
Legal Counsel Instructed the office of the Foderal Register, on
January 22, 1993, not to publish the January 1993 rule.
Accordingly, the rule was not published, and it did not take
effect.
2
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PAGE 04
On June 7, 1993, the Immigration and Naturalization service ("INS")
charged petitioner with excludability for failing to possess a
valid entry document under Sections 212 (a) (7) (x) (i) and
212 (a) (7) (B) (1) (I & II) of the INA, 8 U.S.C. 54 1182 (a) (7) (A) (1)
and 1182 (a) (7) (B) (1) (I & II). Petitioner sought relief by applying
for asylum pursuant. to Section 208 of the INA, 8 U.S.C. § 1158, and
for withholding of deportation pursuant to Section 243 (h) of the
Act, 8 U.S.C. § 1253 (h). At a hearing on June 24, 1993, the
Immigration Judge ("IJ") found petitioner subject to exclusion and
deportation for attempting to enter the United States without a
valid visa.
On July 22r 1993, petitioner's applications for asylum and
withholding of deportation were heard at an evidentiary hearing
before the Immigration Judge ("IJ"). At that hearing, petitioner
testified that he is 42 years old and that, until he came to the
United States, he worked at a government food distribution
cooperative or commune near the city of Fouzou. Petitioner
testified that in January 1992, after he had disagreed with the
head of the commune's decision to fine him a nominal amount of 5
yuan for missing two mcctings of the Commune, government population
control officials took his wife to the regional hospital and
coorced her to undergo an abortion against her will. Also,
previously in 1988 or 1989, the head of the commune asked Chen to
become a member of the Communist Party, but Chen testified that he
did not want to become a member.
Petitioner testified that his persecution by the head of the
3
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commune continued thoreafter when he was coerced by government
officials to undergo surgical sterilization. Petitioner also
testified that, after his coarced sterilization, the head of the
government's commune required petitioner to pay for five years
between two and LIIREE times petitioner's annual ealary as 2 fine
for having a second child who is now 12 years old, and against whom
the government had not taken any prior action under population
control policy. After the operation, in October 1992, the head of
the commune told petitioner that he would have to pay the 20,000
yuan fine off in five years or else his wife would be sterilized.
As Chen continued to disobey commune orders that he pay 5 yuan for
missing cooperative meetings or 20,000 yuan for his second child,
he testified that he was ultimately barrod from working and fled to
the United States.
On August 31, 1993, the IJ issued his decision denying
petitioner agylum and withholding or deportation relief. The IJ
based his decision on the grounds that petitioner's opposition and
disagreement with coercive population control policies applied to
him by the PRC is excluded from the scope of political opinion
protected hy the INA, citing Matter of Chang. The IJ first found
that petitioner did not make an entry into the United States
because he was not free from official restraint. Escentially, the
IJ found that Chen was not credible in claiming that political
nonconformity was the motive for the family planning enforcement
against his family. The IJ pointed out that the limitation on
children is applicable to all inhabitants of the PRC. Moreover,
4
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PAGE. 06
the IJ found no evidence that family planning policies are used as
a means to punish political dissent. Finally, the IJ held that the
"most incongruous aspect" of petitioner's testimony was his claim
that ho ic a "recaluitrant political dissident." and that hc
suffered no punishment by the government until his wife became
pregnant in 1992.
AS for his asylum claim, the IJ found that Chen failed to
establish by a preponderance of credible evidence that the
proximate cause of his alleged persecution in the PRC was his
political dissidence rather than his failure to comply with the
birth control policy. The IN emphasized that the sequence of
events belied potitioner's claim that political dissidence caused
his problems. In 1988 or 1989, he refused to join the Communist
Party, and no action was taken for more than three years
thereafter. only after his wift become pregnant for the third time
vac petitioner subject to forced sterilization and a fine.
Therefore, the T.T held that the proximate cause of these events was
h1s violation of the birth control policy and not his alleged
political dissidence.
In looking to the motivation of the alleged persecutor as
required, the IJ found that the evidence showed that the PRC
government applies its family planning policies to the entire
population. He also held Wial Chese was no ovidence or an
invidious application of the policies toward petitioner and his
wife, and the record failed to show that the birth control policies
were a manifestation of communist political doctrine or used to
5
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PAGE. 07
enforce political conformity. Ultimately, the IJ held that
petitioner had failed to demonstrate that he possessed an immutable
trait or belief that was of adverse interest to a potential
persecutor in the PRC and, therefore, failed to meet the definition
of a "refugee" under the INA.
Petitioner filed a timely notice of appeal to the Board on
September 13, 1993. on January 3, 1993, the Board adopted and
affirmed the IJ's decision. In answering petitioner's appeal
issues, the Board found that he failed to provide evidence
establishing a factual nexus between his failure to attend commune
meetings and the enforcement of the PRC's family planning policies
against him and his wife.
Contrary to Chen's contentions, this Court has jurisdiction
under section 106(b) of the INA, 8 U.S.C. § 1105a(b), because
petitioner has not effected an "entry" into the United States and,
as required by the INA, petitioner's case properly continues in
exclusion proceedings. Petitioner argues that the Board "violates"
the INA by requiring that an alien by free of official restraint
before he enters the United States. The INA provides that an
"'entry' means any coming of an alien into the United States, from
a foreign port or place from an outlying possession, whether
voluntary or otherwise
"
Section 101 (a) (13) of the INA, 8
U.S.C. § 1101 (a) (13). Congress has required that those seeking
admission to the united slales are subject to exclusion procoodings
to determine whether they be allowed to enter or shall be excluded.
Here, although he came voluntarily, petitioner never "entered"
6
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raac.00
the United States because he failed to prove that he was free from
official restraint. It is well-established that an alien is
required to be detained at the border pending formal disposition of
his request for admission, Kanlan V. Tod. 267 U.S. 228 (1925), and
that there is no formal "entry" until the alien has been freed from
this official restraint. See Lazarescu V. United States, 199 F.2d
898, 900 (4th cir. 1952). As a result, physical presence in the
United States alone is not enough to effectuate an "entry". 2 See
Leng May Ma V- INS, 357 U.S. 185, 188 (1958). Petitioner has
failed to show that he was ever free from official restraint,
despite being physically present in the United States. Therefore,
this Court has jurisdiction because petitioner never effectuated an
"entry" as required by the INA. Thus, his case properly proceeds
as one of exclusion. 3
Under section 208 (a) of the INA, the Attorney General, in her
discretion, may grant asylum to an alien if it is determined that
the alien is a "refugee" within the meaning of section
2 Petitioner's argument that the "plain language" of the INA
permits an "entry" into the United States by mere physical
presence, is undermined by the clear and unambiguous language and
structure of the INA itself. The United States Constitution,
embodying the sovereign state's inherent right to exclude aliens,
commits enforcement of this right to Congress which, in turn, may
authorize officers of the Executive Branch to exercise it. Palma
V. Verdeyen, 676 F.2d 100, 103 (4th cir. 1982). Therefore,
Congress intended the INA to require, that for admission to the
United States, an alien must be stopped at the border for an
inspection and a determination of admission. 8 U.S.C. § 1225(a).
3 This Court. whose jurisdiction for review in this exclusion
proceeding arises under 8 U.S.C. § 1105a (b), is limited ta a review
of the record Kessler V. Strecker. 307 U.S. 22. 34 (1939).
7
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PAGE. 09
101 (a) (A). INS V. Cardoza-Fonesca, 480 U.S. 421, 428 n.5
(1987). Section 101 (a) (42(A) defines a "refugoc" as a person who
is unable to return to his or her country "because of persecution
or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. NS 8 U.S.C. $ 1101 (a) (42) (A) ; see also Figeroa V. INS, 886
F.2d 76, 79 (4th Cir- 1989).
An applicant for asylum has the burden of showing entitlement
to the relief requested. 8 C.F.R. §§ 208.5 & 242.17 (c).
Eligibility for asylum is based, cooontially, upon a "reasonable
person" test. M.A. V. INS, 899 F.2d 304, 311 (4th Cir. 1990) (en
banc). Under this test, determinations of whether an individual
possesses a "well-founded fear of persecution" require both a
subjective inquiry into the individual's actual feelings and an
objective assessment of the specific facts on which his fear is
based. Huaman-Cornelio V.INS, 979 F.2d 995, 999 (4th Cir. 1992).
The Board's factual determinations, on which it bases it
conclusions regarding an alien's eligibility for asylum or
withholding of deportation, are reviewed under the substantial
evidence standard. Id. Moreover, under this standard, a reviewing
court may not reverse the Board's factual determinations unless the
Decause the ultimate grant or asylum is discretionary, an
asylum determination involves two stages: (1) a determination of
statutory eligibility based on the "well-foundad fear of
persecution" standard, and (2) if statutory eligibility is
established, a determination whether to exercise discretion in
favor of the grant of asylum. See 2amora-Morel V, INS. 905 F.2d
833, 837 (5th Cir. 1990): Ipina V. INS, 868 F.2d 511, 513 (1st Cir.
1989).
8
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court finds the evidence not only supports a contrary conclusion,
but compels it. Elias-Zacarias, 112 S. Ct. at 815 & n.1; Huaman-
Cornelio, 979 F.2d at 999. The Supreme Court has held that the
Board's determination that an alien is not eligible for asylum must
be upheld unless the alien shows that the evidence he or she
presented "was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution." Elias-Zacarias,
112 S. Ct. at 817. In addition, although the Court reviews the
Board's legal conclusions de novo, the Court employs a deferential
standard of review in which the legal determinations of the Board
in interpreting the INA are entitled to great deference. Nwolise
V. INS, 4 F.3d 306, 309 (4th Cir. 1993), cert. denied, 114 S. ct.
888 (1994)
In adopting the IJ's decision, the Board did not find the
petitioner credible in claiming that the motive behind the
enforcement of the family planning policies was his political
nonconformity with the leadership of the commune. Instead, the IJ
and the Board found that the enforcement of the family planning
policies against the Chen family was because of general family
planning enforcement and not because of his alleged political
dissidence. The objective evidence in this case does not support
Chen's claims. Chen testified to a sequence of events occurring
over a period of four to five years. He stated that he declined to
join the communict Party in 1088 or 1989. However, only when
petitioner's wife was discovered pregnant for a third time were the
ramily planning policies enforced against his family. Petitioner,
9
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PAGE 11
therefore, has failed to satisfy his burden of providing credible
and persuasive evidence in support of his claim that his alleged
political nonconformity was the motive for the family planning
policy enforcement against his family.
The Board's decision is supported by Matter of Chang, which is
a reasonable interpretation of the laws governing asylum in the
United states, and which is controlling in this case. In Matter of
Chang, the Board held that disagreement with the PRC's coercive
population control policy is not political opinion for purposee of
determining exclusion under 8 U.S.C. § 1158(a), or for withholding
of deportation under 8 U.S.C. § 1253 (h) (1). The Board issued its
ruling in Matter of Chang in 1989, and it has adherod to its
initial construction of the statute ever since, despite the
unsuccessful regulatory efforts reflecting a different statutory
interpretation. The Board remains entitlod to deference in its
construction of the statutory provisions at issue here. See
Cheyron U.S.A., Inc. V. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-15 (1984) ().
Here, there are no "compelling indications" that the Board's
construction of the statute was wrong. Campos-Guardago V, INS, 809
F.20 285, 289 (5th cir. 1989). The language of the statute itself
does not specifically address whether asylum eligibility can be
establishod based upon coercive population control policies that
are applied to a. country's populace in general. In this situation,
the Board's decision is entitled to this Court's deference. Sec
10
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PAGE 12
-
Chevron, 467 U.S. at 843, 844 (explaining that where there is no
"unambiguously expressed intent of Congress," a court "may not
substitute its own construction of a statutory provision for that
of the agency.").
Not only is the Board's decision in Matter of Chang legally
correct, it is consistent with the Supreme Court's decision in INS
V. Elias-Zacarias, 112 S. Ct. 812 (1992). In Ellas-Zacarias, the
Supreme Court addressed whether attempts by guerrillas to force a
person into its military "necessarily constitutes 'persecution on
account of
political opinion' under section 101(a) (42) of the
Immigration and Nationality Act
E
112 S. ct. at 814. The
Court answered) this question negatively and, in 30 doing,
established several important principles in asylum law.
First, the Court hold that in order to reverse a finding by
the Board that an alien Called to establish a well-founded fear of
persecution, the record must compel the conclusion that the
applicant has expressed a political opinion, and in must compel the
further conclusion that the "persecutor" would persocute the
applicant specifically because of that political opinion. Elias-
zacarias, 112 S. Ct. at 815-16 & n.1. Second, the Court held that
the mere existence of a general political motive underlying the
persecutor's actions is insufficient to establish asylum
eligibility because the focus of the statute is upon the victim's
political opinion, not the persecutor's. Id, at 816. Third, the
Court emphasized that since the statute makes motive critical, the
applicant must provide some evidence that the persecutor's motive
11
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PAGE. 13
is to harm the applicant specifically because or his or her
political opinion. Id, at 817-18. Thus, the Court held that
because El1as-Zacarias had failed to show that he would be
persecuted by the querrillas on account or nis political opinion,
rather than simply for his refucal to fight with them, he failed to
show that he was eligible for asylum, even if his refusal to fight
could be considered a political opinion. Id. at. 816.
Given that Chen fails to establish a nexus between the motives
of a commune official and nis alleged political opinions, the Board
in this case reasonably followed the Supreme Court's holding in
Elias-Zacarias. It is difficult to dicocrn exactly what political
opinion chen claims is the basis of his persecution. He argues
that he is an anti-Communist and because of this belief, he refused
to attend commune meetings and, thus, wac supposedly persecuted.
However. he testified that he has lived in the commune all his life
and that, despite the actions taken against him. he continued to
live and work in the commune. He also stated that the discussions
at the commune meetings were not political but, rathor, about the
market of food sales. Furthermore, he testified that, to this day,
his wife and children continue to live in their commune house.
on the other hand, he claims that his political opinion at
issue is hic opposition of the family planning policies themsel von.
Yet, the record provides no evidence that the family planning
policies are enforced invidiously against those imposing them or
that Chen ever made his opposition known to Jian or another
authority prior to the policies' enforcement. Petitioner has
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PHGE. 14
failed to meet his burden of proof in showing that he was
persecuted on account of his political opinion. He provides no
credible evidence that the enforcement of the family planning
policies against him was a pretext for punishing him for allegedly
anti-Communist views or for any previously existing opposition to
those policies. Rather, petitioner went about his life
uninterrupted for a full four to five years after his refusal to
join the Communist Party. With respect to petitioner's refusal to
pay a nominal fine, it is well settled that government reaction to
refusal to pay a nominal fine does not constitute persecution under
the INA. See Kubon V, INS, 913 F.24 386, 388 (7th cir. 1990).
According to petitioner's own testimony, it was not until the
third pregnancy that Jian sent him a notice of sterilization. Tn
addition, it was only after the third pregnancy came to Jian's
attention that petitioner was fined for having a second child. The
objective evidence in this case does not support petitioner's
claims of persecution based on his political opinions. Petitioner
simply fails to establish a nexus between his alleged anti-
Communist or anti-family planning views and Jian's actions against
him.
It is well settled that "an alien who has failed to raise
claims during an appeal to the BIA has waived his right to raise
those claims before a federal court on appeal of the BIA's
decision." Farrokhi V. INS, 900 F.2d 697, 700 (4th Cir. 1990).
Therefore, this court need not consider petitioner's argument about
allegedly valid regulations premulgated by the Attorney General in
13
1
015
05/09/94 16:01 202 208 7035
MHY y 'Y4 14:33 US HILY EDVH RICH
PAGE. 15
January 1990 and in January 1993 as binding upon the Board, because
he never raised this claim before the Board. only before this
Court, for the first time, does Chen raise the argument that the
January 1990 and January 1993 rules are independently binding.
Because he failed to exhaust his administrative remedies, the Court
need not address these claims.
An appropriate order shall issue.
Maria ≥,,, Hisson
UNITED STATES DISTRICT JUDGE
Alexandria, Virginia
May 4, 1994
14
016
05/09/94 16:01
202 208 7035
MAY 9 '94 14:33 US ATTY EDUA RICH
PAGE. 16
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
CHEN ZHOU CHAI,
)
)
Petitioner,
)
1
V.
)
CIVIL ACTION NO. 94-0037-A
)
WILLIAM J. CARROLL, District
)
Director, Immigration and
)
Naturalization Service
)
(washington District), and
)
DAVID L. MILNOLLEN, Director
)
of the Executive office of
)
Immigration Review and
)
Chairman of the Board of
)
Immigration Appeals,
)
)
Respondents.
)
ORDER
This matter came before the Court on Petitioner's petition for
a Writ of Habeas Corpus. For reasons stated in the accompanying
Memorandum Opinion, it is hereby
ORDERED that petitioner's petition for a Writ of Habeas Corpus
is DENIED.
Claude not Thellin
UNITED STATES DISTRICT JUDGE
Alexandria, Virginia
May 4, 1994
15
** TOTAL PAGE. 16 **
Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
25
Divider Title:
LEGALIZATION SETTLEMENT NEGOTIATIONS
1. ISSUE STATEMENT
In the 1986 Immigration Reform and Control Act, Congress
created employer sanctions to discourage future illegal immigration
and a one-time, one year (1987-1988) amnesty period to permit long-
time resident illegal aliens to legalize their status. Congress
included restrictions (such as length of residency) on the
categories of illegal aliens entitled to amnesty, and, in turn, INS
adopted regulations interpreting these limitations.
In general, INS regulations were restrictive. Suits were
brought across the country challenging the regulations. In some
instances, the suits were successful, and the Department decided
not to appeal; in others, INS continues to fight the challenges to
its regulations or policies. In all cases, INS argued that
District Courts lack jurisdiction to hear the challenges or to
extend the one-year amnesty period for aliens who claimed they were
discouraged from filing by the challenged regulations. In the
cases where the INS lost in the District Court, District Courts set
up filing periods for undocumented aliens who allege they were
discouraged by the challenged regulations; to date, some 325,000
have filed under those programs.
As a rule, INS lost the jurisdictional argument until a 1993
decision of the Supreme Court, CSS V. Reno. In general, the
Supreme Court held that aliens who had not filed during the amnesty
period lacked ripe claims and that the District Courts could not
hear them. However, the Court qualified its opinion in two
important ways. First, there was evidence in the record that INS
employees may have turned away some applicants at the front desk,
by refusing their applications due to ineligibility. These front-
deskers may bring suit and may force the INS to accept and
adjudicate their legalization applications. In a footnote, the
Court also left open the "unlikely" possibility that there may be
other undocumented aliens for whom the invalid regulations were a
"substantial" cause of their failure to apply. They might have
ripe claims, but the Court did not say whether they would be
entitled to a remedy (that is, a legalization adjudication).
Last fall, the cases were remanded back to the lower courts
for further proceedings in light of this confusing opinion.
Settlement negotiations began in September and are still
continuing. Associate Attorney General Hubbell authorized
settlement negotiations based on a settlement class including
front-desked and constructively front-desked applicants. There
remain complicated issues of filing requirements, employment
authorization, judicial and administrative review, and fraud
prevention, just to name a few.
Meanwhile, several legal developments have strengthened INS'
hand. Justice O'Connor issued a stay when a District Judge in the
Western District of Washington attempted to create another
nationwide filing program, based on the alleged standing of
organizations. The Ayuda case in the District of Columbia was
dismissed by the Court of Appeals on remand, when the Court found
no plaintiffs who could establish they were front-desked or
constructively front-desked. A panel of the 9th Circuit referred
to the constructive front-desking CSS footnote as dictum. Finally,
the Criminal Division obtained indictments of a number of people,
including the national President of one of the plaintiff
organizations, for organized immigration fraud in connection with
the District Court filing programs.
2. STATUS
Negotiations are about to reach a critical juncture, where the
plaintiffs will have identified four major points of disagreement.
In a few weeks, we will be determining whether to continue with
this signficant litigation or make important concessions in the
negotiations. In one case in the Second Circuit (Perales), the
plaintiffs have opted to continue with litigation, and oral
argument will take place later this month.
3. DEPARTMENT POSITION
The Department has explored settlement and believes it makes
sense to settle these cases, which continue to litigate a program
that should have ended 6 years ago. At the same time, the
Department has been negotiating for a settlement that will contain
meaningful precautions against fraud, which has plagued the court-
ordered filing programs, and that is consistent with existing law.
We do not know whether negotiations will succeed.
4. JUDICIARY COMMITTE MEMBERS INTEREST
Many of the affected undocumented aliens are in California,
Sen. Feinstein's state. Sen. Kennedy and Sen. Simpson are leaders
on immigration issues; Sen. Simpson and his staff, in the past,
have been generally aware of the pending litigation.
5. REFERENCE MATERIALS
Attached is an April 1, 1994, memo to Assistant Attorney
General Hunger explaining the background and the case status in
more detail.
U.S. Department of Justice
Civil Division
Deputy Assistant Attorney General
Washington, D.C. 20530
MEMORANDUM
April 1, 1994
To:
Frank Hunger
Assistant Attorney General
From:
Frank Holleman FSH
Deputy Assistant Attorney General
Re:
Settlement of Legalization Cases
(CSS V. Reno and related cases)
You asked for a memo describing the status of the settlement
negotiations. For your information, attached is a February 17
memorandum to the Associate Attorney General which outlines where
we stood at that time.
1. The Cases. The negotiations involve six cases: CSS,
LULAC, Perales, Zambrano, LEAP/IAP, and Ayuda. The principal
cases are CSS and LULAC. In each, the plaintiffs have challenged
INS regulations defining requirements for undocumented aliens to
obtain legalized status under the 1986 IRCA amnesty program. In
some instances, the plaintiffs were successful in their
challenges on the merits; in all instances, the INS challenged
the jurisdiction of the District Courts. In CSS, LULAC, and
Zambrano, the District Courts issued rulings that extended the
one-year amnesty period (May 5, 1987 to May 4, 1988) to permit
undocumented aliens affected by the challenged regulations to
file applications for class membership and legalization and to
obtain work authorization. In CSS, the Court did not require a
filing fee. Some 325,000 aliens have filed under the programs
established by the District Courts, and approximately 100,000
have been granted work authorization by the INS.
Eventually, CSS and LULAC reached the Supreme Court. The
Court decided that, in general, the plaintiffs' claims were not
ripe and that the District Courts thus could not exercise
jurisdiction over them. However, the Court expressly recognized
one exception and left open the possibility of a second. In some
cases, INS employees at the front desk refused to accept-
applications of aliens covered by challenged regulations;- those
"front-desked" aliens do have ripe claims, and the INS can be
1
ordered to adjudicate their applications. Further, in a
footnote, the Court described another possible, ill-defined
exception: while the Court thought it "unlikely," there may be
aliens who were not front-desked but who can show that front-
desking was "a substantital cause of their failure not to apply,"
and who may thus have ripe claims. Th Court did not say whether
such aliens would be entitled to a remedy.
In the wake of this decision, the Court vacated and remanded
all the legalization cases for reconsideration in light of its
decision. With two exceptions described below, the cases are
back before the District Courts.
2. Concerns. In settlement discussions and in litigation,
these are our principal concerns:
(a) Class Definition. Our negotations are based on a
class definition that includes front-desked aliens, who are
entitled to relief under CSS, and constructively front-desked
aliens, who may or may not be. This class definition is legally
defensible under CSS and offers the plaintiffs a reasonable
compromise.
(b) Fraud. Investigators in the Criminal Division and
INS believe that there was widespread fraud in the District Court
filing programs, and, as explained below, there is significant
evidence to support that belief. We would like the procedures
for seeking class membership to include as many protections
against fraud as possible. We have to recognize, however, that
any filing program will have a degree of fraud in it and that the
risk increases when constructive front-deskers are included in a
filing program.
(c) Work Authorization. It is believed that the
District Courts' programs encouraged fraud due to the apparent
easy availability of work authorization upon only a prima facie
review of the class membership application. We are attempting to
require that an alien obtain work authorization only after his
class membership and legalization applications are approved.
(d) Control of the Border. We want to do all that we
can to ensure that a filing program does not hinder the ability
of the INS to control the border.
(e) Resolution of the Dispute. This litigation has
been continuing for 6 years over a program that should have ended
in 1988. We want to bring an end to the litigation and its
attendant costs, relieve INS of the administrative burden of the
program after a defined time period, and provide the benefits of
legalization to aliens who are entitled to them.
2
3. Legal Developments. While the negotiations have been
continuing, there have been several legal developments that
strengthen the Government's position and raise questions about
the District Courts' filing programs.
a) The Criminal Division has succeeded in obtaining
plea agreements from several immigration consultants and related
persons for fraud in connection with filings made in the programs
set up by the District Courts in CSS and LULAC. Disturbingly, in
the plea agreements, the defendants state that immigration fraud
was instigated, planned, and coordinated by Jose Velez, then the
head of the LULAC Nevada office and subsequently the national
president of LULAC (we understand that he still is). One of the
accusatory plea agreements is that of Mr. Velez' son, Peter. He
states that Velez and associates filed some 5,000 fraudulent
CSS/LULAC applications and received approximately $5 million from
the enterprise.
(b) On remand in Ayuda, a panel of the D.C. Circuit
concluded that there were no ripe claims in the litigation and
dismissed the case. The D.C. Circuit denied rehearing. The
plaintiffs' time for petitioning for certiorari has not expired.
(c) In LEAP/IAP, the District Court set up a filing
program very similar to the ones set up in CSS and LULAC. The
District Court and the Ninth Circuit denied a stay of the
District Court's order. However, in a strong opinion, Justice
'Connor stayed the District Court's order pending appeal in the
Ninth Circuit, finding that the District Court could not base
jurisdiction on a theory of organizational standing of the groups
that brought suit in LEAP/IAP.
(d) In an unrelated decision in the Ninth Circuit, the
Court rejected an attempt by an individual alien who sought to
apply late for legalization. The Court held that an alien was
not front-desked and did not have a ripe claim if he only alleges
that he did not apply because be believed he was ineligible- under
a challenged INS policy which was subsequently changed. Since
the alien did not claim he was constructively front-desked, the
Court did not reach that issue, but it referred to the Supreme
Court's footnote as "dictum."
(e) In Perales, the plaintiffs, at least for now, have
rejected our limitation on the class definition and insist that
the INS permit late filing by aliens who did not file simply
because they thought they were ineligible under the challenged
regulations and policies. Both the plaintiffs and the Government
asked the Second Circuit to reconsider its remand of the case to
the District Court and to decide the application of CSS to
Perales based on the existing record. The Second Circuit agreed,
and the parties are in the process of preparing briefs.
3
4. Status of Negotiations. On February 11, representatives
of the Civil Division and INS met with negotiators for the
plaintiffs. Earlier, the Department had approved a settlement
approach based on the class definition described above; prior to
the meeting, we sent the plaintiffs a letter setting forth the
general dimensions of the Department's prop sed settlement. At
the meeting, we gave the plaintiffs a proposed settlement
outline, which could form the basis of a settlement agreement.
The discussions lasted most of the day, and I believe it is fair
to say that we thought we had made progress.
On March 14, we received a formal response from the
plaintiffs. It is a 45-page settlement document, consisting of
137 paragraphs, and it raises a whole host of difficult
questions, some of which are new to the negotiations. Civil and
INS are reviewing it, and we have begun preparing a proposed
settlement agreement, based on our earlier outline, that
incorporates the portions of the plaintiffs' agreement to which
we can agree.
Acting Associate Attorney General Bryson has expressed an
interest in the negotiations, and I have sent him a package of
materials and briefed him on the negotiations. After reviewing
the plaintiffs' proposal, he has suggested that settling this
case with plaintiffs' counsel may be extremely difficult. He
raised for consideration the possibility that JNS should issue a
regulation that embodies what the Department thinks is the right
approach, and present it to the District Courts. He has asked
for a meeting on Tuesday, April 5, with INS and Civil to discuss
the settlement negotiations.
For now, we are continuing to put together a responsive
settlement document for transmittal to the plaintiffs. This is
not an easy task. If the plaintiffs raise significant objections
to that proposal, we may be at the point of having to decide
whether settlement negotiations are at a standstill. It is also
possible that if we make our proposal and stick to it, the
plaintiffs may question whether continued litigation makes sense
for them.
Once we reach tentative agreement on all these issues, we
will still have to face the issue of attorneys' fees.
of course, any settlement agreement accepted by the
negotiators would be subject to the usual Departmental approval
process.
5. Conclusion. If you need anything further, please let me
know.
4