Li v. Carroll

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LI ZHI GUAN,
Petitioner-Appellant,
v.
WILLIAM J. CARROLL, in his official
capacity as the District Director of
the United States Immigration and
Naturalization Service, Washington
No. 94-1759
District; ANTHONY MOSCATO,
Director of the Executive Office of
Immigration Review; MARY
MAGUIRE DUNNE, Acting Chairman
of the Board of Immigration
Appeals,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-94-410)
Argued: December 4, 1995
Decided: January 23, 1996
Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Evan Anne O'Neill, STEPTOE & JOHNSON, Washing-
ton, D.C., for Appellant. David Michael McConnell, Office of Immi-
gration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON
BRIEF: Hank Hockeimer, STEPTOE & JOHNSON, Washington,
D.C., for Appellant. Frank W. Hunger, Assistant Attorney General,
Lauri Steven Filppu, Kristin A. Cabral, Office of Immigration Litiga-
tion, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In this immigration case, a Chinese national appeals the district
court's denial of his petition for writ of habeas corpus and the deci-
sion of the Board of Immigration Appeals ("Board") to deny his claim
for asylum and withholding of deportation. On July 7, 1995, we
issued a per curiam opinion upholding the Board's denial of asylum
and affirming the district court's denial of a petition for writ of habeas
corpus. Petitioner moved for rehearing and we granted the motion.
We now affirm.
I.
The Immigration and Naturalization Service ("INS") instituted
exclusion proceedings against petitioner, Li Zhi Guan ("Li"), after he
was caught attempting to enter the United States illegally in June
1993 aboard the Golden Venture, a cargo freighter that had run
aground off the coast of New York. Li admitted to the charges of
excludability but requested asylum and voluntary withholding of
deportation, arguing that his opposition to China's forced sterilization
policy constituted a political opinion for which he had suffered and
continued to fear persecution.
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The Immigration Judge found that Li was not credible and that his
claim lacked merit in light of Matter of Chang , Interim Decision 3107
(BIA 1989). Matter of Chang held that China's "one couple-one
child" family planning policy is not persecutive on its face even when
forced sterilization is involved. The Board affirmed, concluding that
Li had not met the eligibility standards for asylum. The district court
agreed, denying Li's habeas petition. Both the Board and the district
court also based their decisions on Matter of Chang.
In July of 1995, in an unpublished per curiam opinion, we
reviewed de novo the Board's and district court's decisions and
affirmed. Li Zhi Guan v. Carroll, 60 F.3d 823 (4th Cir. 1995) (unpub-
lished opinion). Shortly after we issued our opinion, Li petitioned this
court for rehearing, arguing that a bill overruling Matter of Chang had
been passed in the United States House of Representatives and was
under consideration in the United States Senate. We granted his peti-
tion for rehearing in recognition of the possible injustice in deporting
Li back to the People's Republic of China if new and contrary legisla-
tion was imminent. However, in the absence of any new develop-
ments in the law and because we are unwilling to delay a final
decision indefinitely in anticipation of Congressional action, we now
uphold our earlier decision sustaining the application of Matter of
Chang, supra, and Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir.
1995), as dispositive of this appeal.*
II.
Li's principal argument is that it would be manifestly unjust to
deport him to China if new legislation were enacted that recognized
opposition to coercive family planning policies as a political opinion
justifying eligibility for asylum. When we granted Li's motion for
reconsideration, it appeared that such an amendment to the Immigra-
tion and Nationality Act was imminent. The United States House of
Representatives had already passed a bill amending Section
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*We need not here conduct the unnecessary exercise of re-evaluating
the merits of Li's case, as a close consideration of the factual and legal
issues is set forth in our earlier decision. See Li Zhi Guan v. Carroll, 60
F.3d 823 (4th Cir. 1995) (unpublished opinion).
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101(a)(42) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(42). That bill provided:
[A] person who has been forced to undergo involuntary ster-
ilization, or who has been persecuted for failure or refusal
to undergo such a procedure or for other resistance to a
coercive population control program, shall be deemed to
have been persecuted on account of political opinion, and a
person who has a well founded fear that he or she will be
forced to undergo such a procedure or subjected to persecu-
tion for such failure, refusal, or resistance shall be deemed
to have a well founded fear of persecution on account of
political opinion.
H.R. 1561, 104th Cong., 1st Sess. (1995).
A bill with virtually identical language began making its way
through the United States Senate, see S. 908, 104th Cong., 1st Sess.
(1995), and on August 1, 1995 was calendared for full consideration.
To date, however, no action has been taken on the Senate bill. After
we granted Li's petition for rehearing, the House and Senate began
considering another amendment with language similar to that quoted
above as part of a bill to curb illegal immigration. See H.R. 2202,
104th Cong., 1st Sess. (1995); S. 1394, 104th Cong., 1st Sess. (1995).
This amendment has not yet been voted on by either congressional
house.
Because none of the proposed legislation cited by Li has become
law, we decline his invitation to consider that legislation in our deci-
sion. It is axiomatic that a court must apply the law in existence at the
time it renders its decision. As the Supreme Court explained in
Bradley v. Richmond School Board, "[t]he court must decide accord-
ing to existing law, and if it be necessary to set aside a judgment,
rightful when rendered, but which cannot be affirmed but in violation
of law, the judgment must be set aside." 416 U.S. 696, 711 (1974)
(citation omitted). The present case does not involve a situation where
a judgment, initially correct, must be set aside because of an interven-
ing change in the law. There has been no change in the law since our
decision was issued in this case. Although the possibility remains that
the law may change in favor of asylum-seekers who oppose coercive
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family planning practices in their native countries, there has been no
actual change as of yet and Matter of Chang remains controlling pre-
cedent.
Moreover, we reject Li's argument that a contrary result would
work a manifest injustice in his case. We are well aware that as a gen-
eral rule, "a change in the law is to be given effect in a pending case
unless there is some indication to the contrary in the statute or its leg-
islative history or unless some manifest injustice would result."
Farish v. Courion Indus., Inc., 754 F.2d 1111, 1120 (4th Cir. 1985).
See also Bradley, 416 U.S. at 711. However, Li has provided no
authority to suggest that the doctrine of manifest injustice has been or
should be extended to cases where new legislation is merely pending.
See Gonzales v. Fairfax-Brewster Sch. Inc., 569 F.2d 1294, 1296 (4th
Cir. 1978) (declining to apply new legislation or find manifest injus-
tice when new legislation was not enacted until after final judgment
was entered). As the government noted at oral argument, not only has
the law affecting this case remained unchanged but there is no guar-
antee that the proposed legislation will be enacted in the near future,
particularly when similar proposals have failed in the past.
Furthermore, even if new legislation had been enacted to aid asy-
lum applicants claiming persecution based on their opposition to
forced sterilization, it is not clear that such a statutory change would
be applied retroactively to benefit Li. Statutory changes apply only
prospectively absent clear intent by the legislature to the contrary. See
Rivers v. Roadway Express, Inc., ___ U.S. ___, 114 S.Ct. 1510, 1519
(1994) ("statutes operate only prospectively, while judicial decisions
operate retrospectively") (citation omitted); Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208 (1988) ("congressional enactments
and administrative rules will not be construed to have retroactive
effect unless their language requires this result"). Although the lan-
guage of the proposed legislation may undergo numerous changes
prior to enactment, currently there is no indication that Congress
intends for it to be applied retroactively to petitioners like Li whose
case has already been heard before four separate tribunals--each
coming to the conclusion that he does not meet the statutory defini-
tion of refugee under the Immigration and Nationality Act.
Finally, assuming arguendo that the statutory standard for asylum
eligibility had changed and that it were applicable to Li, he would
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have to overcome the factual determination of the immigration judge
that his fear of persecution was neither credible nor country-wide.
The Board, the district court, and this court have each deferred to the
immigration judge's factual findings, as we must, absent a showing
by petitioner that the evidence not only supports a contrary conclu-
sion, but indeed compels it. See INS v. Elias-Zacarias, 502 U.S. 478,
481 & n.1 (1992); Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th
Cir. 1992). No such showing has been made in this case.
For the reasons stated herein, we affirm the Board's denial of asy-
lum and withholding of deportation and the district court's denial of
Li's petition for writ of habeas corpus.
AFFIRMED
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