Green Justice: The Environment and the Courts, Second Edition by Thomas M Hoban

Author:Thomas M Hoban [Hoban, Thomas M]
Language: eng
Format: epub
Tags: Political Science, General
ISBN: 9780429974830
Google: hi1NDwAAQBAJ
Goodreads: 38795368
Publisher: Routledge
Published: 2018-02-20T00:00:00+00:00

2. Regulatory History

Chang issued in May 1989. Almost a year earlier, the Department of Justice had issued policy guidelines to the INS designed to ensure that asylum could be granted to persons who could show well-founded fear of government persecution stemming from the PRC’s involuntary sterilization and abortion programs. INS did not implement these guidelines and the Board in Chang expressly stated it was not bound by the guidelines.

Soon after the May 1989 Chang decision, efforts were made in Congress to overturn it. These efforts culminated in the Armstrong-DeConcini Amendment to the Emergency Chinese Immigration Relief Act of 1989, H.R. 2712, which was drafted and offered for the express purpose of overruling Chang. Sponsors of the amendment expressed frustration that the Attorney General’s guidelines were not implemented by the INS. By November 1989, the Senate had unanimously passed the amendment and the House, by a substantial margin, had voted to concur in the amendment. While in agreement with the amendment, President Bush vetoed the Emergency Chinese Immigration Relief Act of 1989, citing concerns with other portions of the bill. See Memorandum of Disapproval for the Emergency Chinese Immigration Relief Act of 1989, Weekly Comp.Pres.Doc. 1853-54 (Nov. 30,1989). The House of Representatives voted to override the veto, but the Senate failed by five votes to do so. Several Senators voting to uphold the veto noted that they did so in reliance on the President’s assurances that administrative action would be taken to ensure that Chang was reversed. Faithful to his assurances and reflecting his agreement with the amendment, if not the entire bill, President Bush issued instructions to the Attorney General to take appropriate action.

Responding to this instruction, the then Attorney General, in January 1990, promulgated an interim rule amending the existing regulations governing asylum and withholding of deportation (hereinafter “January 1990 Interim Rule”). Specifically, the January 1990 Interim Rule amended then-existing C.F.R. §208.5 to provide that:

Aliens who have a well-founded fear that they will be required ... to be sterilized because of their country’s family planning policies may be granted asylum on the ground of persecution on account of political opinion.

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