Lin v. U.S. Dept. of Justice

02-4611-ag, 02-4629-ag, 03-40837-ag
Lin et. al. v. U.S. Dept. of Justice
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2006
4 (Argued: March 7, 2007 Decided: July 16, 2007)
5
6 Docket Nos. 02-4611-ag, 02-4629-ag, 03-40837-ag
7 _____________________
8 SHI LIANG LIN ,
9
10 Petitioner,
11
12 v.
13
14 UNITED STATES DEPARTMENT OF JUSTICE ; ATTORNEY GENERAL GONZALES,
15
16 Respondents;
17 _____________________
18
19 ZHEN HUA DONG ,
20
21 Petitioner,
22
23 v.
24
25 UNITED STATES DEPARTMENT OF JUSTICE ; ATTORNEY GENERAL GONZALES
26
27 Respondents;
28 _____________________
29
30 XIAN ZOU ,
31
32 Petitioner,
33
34 v.
35
36 ATTORNEY GENERAL GONZALES,
1
1 Respondent.
2 _____________________
3 Before: JACOBS , Chief Judge, CALABRESI, CABRANES, STRAUB , POOLER , SACK , SOTOMAYOR ,
4 KATZMANN , PARKER , RAGGI, WESLEY , and HALL , Circuit Judges.
5 Petitions for review of orders of the Board of Immigration Appeals denying applications
6 for asylum, withholding of removal, and relief under the Convention Against Torture. The
7 petition for review of Zhen Hua Dong is DENIED. Xian Zou’s and Shi Liang Lin’s petitions are
8 DISMISSED for lack of jurisdiction.
9
10 Judge PARKER delivered the opinion of the Court, in which JACOBS , C.J., and CABRANES,
11 SACK , RAGGI, WESLEY , and HALL , JJ., joined.
12
13 Judge KATZMANN filed a concurring opinion, in which STRAUB , POOLER , and
14 SOTOMAYOR , JJ., joined.
15
16 Judge SOTOMAYOR filed a concurring opinion, in which POOLER , J., joined.
17
18 Judge CALABRESI filed an opinion concurring in part and dissenting in part.
19
20
21 BRUNO JOSEPH BEMBI, Hempstead, NY, for Petitioners Shi
22 Liang Lin and Zhen Hua Dong.
23
24 ALEKSANDER MILCH , Christophe & Associates, P.C., New
25 York, NY, for Petitioner Xian Zou.
26
27 KATHY S. MARKS, Assistant United States Attorney, (Sara
28 L. Shudofsky, Assistant United States Attorney, of counsel)
29 for Michael J. Garcia, United States Attorney for the
30 Southern District of New York, New York, NY, for
31 Respondents the United States Department of Justice and
32 Attorney General Gonzales.
33
34 BARRINGTON D. PARKER , Circuit Judge:
35
36 In 1997 the Board of Immigration Appeals (“BIA”) held in Matter of C-Y-Z-, 21 I. & N.
37 Dec. 915 (B.I.A. 1997) (en banc) that an individual whose spouse has been forced to abort a
38 pregnancy, undergone involuntary sterilization, or been persecuted under a coercive population
2
1 control program could automatically qualify for asylum as a “refugee” under § 601(a) of the
2 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) (amending 8
3 U.S.C. § 1101(a)(42), Immigration and Nationality Act (“INA”) § 101(a)(42)). See In re S-L-L-,
4 24 I. & N. Dec. 1, 3 (B.I.A. 2006) (en banc) (“In Matter of C-Y-Z-, . . . we held that a husband
5 whose wife was forcibly sterilized could establish past persecution under this amendment to
6 section 101(a)(42) of the [INA].”). This appeal considers whether the BIA’s interpretation of the
7 statute was correct. We conclude it was not.
8 Petitioners Shi Liang Lin, Zhen Hua Dong, and Xian Zou are citizens of the People’s
9 Republic of China and unmarried partners of individuals allegedly victimized by China’s
10 coercive family planning policies. Each seeks review of an order of the BIA summarily
11 affirming the denial of an application for asylum based, in part, on the BIA’s holding in C-Y-Z.1
12 We remanded these petitions to the BIA to afford it the opportunity to explain its rationale in C-
13 Y-Z- for reading § 601(a) to say that the spouses of those directly victimized by coercive family
14 planning policies are per se eligible for asylum as if they were directly victimized themselves
15 and also to clarify the status of boyfriends and fiancés under that statute. See Lin v. U.S. Dep’t of
16 Justice, 416 F.3d 184, 187 (2d Cir. 2005). We retained jurisdiction. Id.17 On remand, the BIA reaffirmed its holding in C-Y-Z- that spouses are entitled to
18 automatic eligibility under § 601(a) but limited this per se eligibility to legally married
19 applicants. S-L-L-, 24 I. & N. Dec. 1. Eschewing a text-based analysis, the BIA elected to
1
See In re Shi Liang Lin, No. A70 895 638 (B.I.A. Sept. 29, 2002), aff’g No. A70 895
638 (Immig. Ct. N.Y. City May 9, 2000); In re Zhen Hua Dong, No. A 7 293 661 (B.I.A. Sept.
25, 2002), aff’g No. A77 293 661 (Immig. Ct. N.Y. City Oct. 12, 2000); In re Zou, No. A77 322
595 (B.I.A. Aug. 27, 2002), aff’g No. A77 322 595 (Immig. Ct. N.Y. City Apr. 4, 2002).
3
1 interpret the forced abortion and sterilization clause of the section “in light of the overall purpose
2 of the amendment” to include both parties to a marriage. Id. at 8. The Board reaffirmed the
3 dismissal of the appeals of petitioners Lin, id., and Dong, In re Zhen Hua Dong, No. A77 293
4 661 (B.I.A. Nov. 27, 2006), and remanded Zou’s petition for a determination of whether he
5 qualified for asylum based on the “other resistance to a coercive population control program”
6 clause in § 601(a), In re Xian Zou, No. A73 178 541 (B.I.A. Nov. 21, 2006).
7 Following the BIA’s decision, we ordered rehearing en banc to consider two issues:
8 First, whether § 601(a)’s provisions are ambiguous, so that the BIA’s construction of them
9 warrants Chevron deference; and second, whether the BIA reasonably construed § 601(a) to
10 extend automatic asylum eligibility to a petitioner whose legally married spouse was subjected to
11 an involuntary abortion or sterilization but not to a domestic partner or fiancé whose claim is
12 derivative unless the petitioner engaged in “other resistance” to a coercive population control
13 policy. Lin v. U.S. Dep’t of Justice, Nos. 02-4611, 02-4629, 03-40837 (2d Cir. Nov. 13, 2006)
14 (order) (“En banc order”). See S-L-L-, 24 I. & N. Dec. 1; Chevron U.S.A. Inc. v. Natural Res.
15 Def. Council, Inc., 467 U.S. 837 (1984).
16 We now conclude that the BIA erred in its interpretation of 8 U.S.C. § 1101(a)(42) by
17 failing to acknowledge language in § 601(a), viewed in the context of the statutory scheme
18 governing entitlement to asylum, that is unambiguous and that does not extend automatic refugee
19 status to spouses or unmarried partners of individuals § 601(a) expressly protects. Accordingly,
20 the petition of Zhen Hua Dong is denied. The petition of Shi Liang Lin is dismissed as moot.2
2
Subsequent to oral arguments, we learned that Lin has had no contact with his attorneys
since “early 2004,” and that his attorney believes that he has either returned to China or is
deceased. (Aff. of Yee Ling Poon, ¶¶ 3-5). Accordingly, Lin’s case is moot. See 8 C.F.R. §
4
1 The petition of Xian Zou is dismissed for lack of jurisdiction.3 We recognize that this decision
2 creates a split among the circuits.4
3 I. BACKGROUND
4 Congress has given the Attorney General the discretionary authority to grant asylum to
5 an alien who qualifies as a “refugee” because he or she “is unable or unwilling to avail himself
1208.8.
We no longer have jurisdiction over Zou’s petition because the BIA has remanded the
3
case to the immigration court for further findings. See In re Xian Zou, No. A77 322 295 (B.I.A.
Nov. 21, 2006).
4
A number of our sister circuits have deferred to the BIA’s interpretation of § 601(a).
See, e.g., Zhang v. Gonzales, 434 F.3d 993, 1001 (7th Cir. 2006); Huang v. Ashcroft, 113 Fed.
App’x 695, 700 (6th Cir. 2004) (unpublished opinion); He v. Ashcroft, 328 F.3d 593, 604 (9th
Cir. 2003); Li v. Ashcroft, 82 Fed. App’x 357, 358 (5th Cir. 2003) (unpublished per curiam
opinion). While the Third Circuit had questioned the BIA’s reading of the plain language of the
amendment, stating that “[i]t takes some effort to reconcile [the BIA’s] interpretation with the
language of the 1996 amendment, since the phrase ‘a person who has been forced to abort a
pregnancy or to undergo involuntary sterilization’ is most naturally read as referring only to a
person who has personally undergone one of those procedures,” Chen v. Ashcroft, 381 F.3d 221,
226 (3d Cir. 2004) (Alito, J.), a divided panel of the Third Circuit recently validated the BIA’s
interpretation of § 601(a) over a vigorous dissent. See Sun Wen Chen v. U.S. Att’y Gen., – F.3d
–, 2007 WL 1760658, at *4-*6 (3d Cir. June 20, 2007).
The circuits are already split over whether § 601(a) provides protection for individuals
who marry in traditional ceremonies not recognized by their government and later seek asylum
based on the forced abortion or sterilization of their “common law spouses.” The Seventh and
Ninth Circuits have held that the statute covers spouses from traditional marriage ceremonies,
see Zhang, 434 F.3d at 999; Zhu v. Gonzales, 465 F.3d 316, 321 (7th Cir. 2006); Ma v. Ashcroft,
361 F.3d 553, 559-61 (9th Cir. 2004). In contrast, the Third Circuit, in Chen, supra, held that the
amendment does not cover unmarried partners, even when they have been prevented from
marrying by their government’s family planning policy. 381 F.3d at 232-34; see also Chen v.
Gonzales, 418 F.3d 110, 111 (1st Cir. 2005) (acknowledging circuit split on the issue). While
they have not reached the issue of traditional marriage ceremonies, the Fifth and Eleventh
Circuits have declined to extend IIRIRA § 601 to cover boyfriends of individuals who have been
subjected to a forced abortion or sterilization. See Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir.
2004); Wang v. U.S. Att’y Gen., 152 Fed. App’x 761, 767 (11th Cir. 2005) (unpublished
opinion).
5
1 or herself of the protection of [his or her native country] because of persecution or a well-
2 founded fear of persecution on account of race, religion, nationality, membership in a particular
3 social group, or political opinion.” 8 U.S.C. § 1101(a)(42). A showing of past persecution gives
4 rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. §
5 1208.13(b)(1).
6 In 1996, Congress passed IIRIRA § 601(a), which amended 8 U.S.C. § 1101(a)(42) by
7 broadening its definition of “refugee,” adding the following language:
8 [A] person who has been forced to abort a pregnancy or to undergo involuntary
9 sterilization, or who has been persecuted for failure or refusal to undergo such a
10 procedure or for other resistance to a coercive population control program, shall
11 be deemed to have been persecuted on account of political opinion, and a person
12 who has a well founded fear that he or she will be forced to undergo such a
13 procedure or subject to persecution for such failure, refusal, or resistance shall be
14 deemed to have a well founded fear of persecution on account of political
15 opinion.
16
17 8 U.S.C. § 1101(a)(42).
18 The next year, the BIA held that “past persecution of one spouse can be established by
19 coerced abortion or sterilization of the other spouse,” so that spouses of individuals directly
20 victimized by coercive family planning policies are per se eligible for asylum pursuant to §
21 1101(a)(42). See Matter of C-Y-Z-, 21 I. & N. Dec 915, 917-18 (B.I.A. 1997) (en banc). The
22 BIA gave no reasons for reading the statute to compel this result.
23 Petitioner Lin entered the United States in January 1991 and filed an application for
24 asylum and withholding of removal in June 1993. According to Lin’s application, he had sought
25 the required governmental permission to marry his girlfriend and have children with her, but she
26 was too young under Chinese law. After his girlfriend became pregnant and was forced to have
6
1 an abortion, Lin left China. His girlfriend remained in China because she was too weak to travel.
2 Following a hearing, the IJ found Lin credible, but concluded that he did not qualify for asylum
3 based on his girlfriend’s forced abortion and denied the petition. The BIA affirmed without
4 opinion. See In re Shi Liang Lin, No. A70 895 638 (B.I.A. Sept. 29, 2002), aff’g No. A70 895
5 638 (Immig. Ct. N.Y. City May 9, 2000).
6 Petitioner Dong attempted to enter the United States in October 1999, and was detained
7 by INS officials. When the INS commenced removal proceedings, Dong requested asylum,
8 withholding of removal, and relief under the Convention Against Torture (“CAT”). His asylum
9 petition was based on a claim that his fiancée (who continued to reside in China) had been forced
10 to undergo two abortions and that he would be jailed and fined for having left China illegally
11 were he to be deported. The IJ denied Dong’s petition, finding that, although he was credible, he
12 did not qualify for refugee status as a fiancé of a woman who had undergone forced abortions,
13 and had not established other grounds for relief. The BIA affirmed the IJ’s decision. See In re
14 Zhen Hua Dong, No. A77 293 661 (B.I.A. Sept. 25, 2002), aff’g No. A77 293 661 (Immig. Ct.
15 N.Y. City Oct. 12, 2000).
16 Petitioner Zou was taken into custody by the INS when he attempted to enter the United
17 States in September 2000. After removal proceedings commenced, Zou filed for asylum. Under
18 Chinese law, Zou and his girlfriend had been too young to marry. He claimed that she had been
19 forced to have an abortion and he had been threatened with arrest after protesting to family
20 planning officials. An IJ denied the application. The IJ found Zou’s testimony concerning his
21 threatened arrest incredible, doubting that Zou would be able to evade the Chinese authorities
22 and travel to the United States with an outstanding warrant of arrest from the Chinese
7
1 government. Left only with Zou’s claim that his girlfriend had undergone a forced abortion, the
2 IJ held that Zou did not qualify for relief under § 1101(a)(42) on that basis. Zou appealed to the
3 BIA, which affirmed the decision of the IJ. See In re Zou, No. A77 322 595 (B.I.A. Aug. 27,
4 2002), aff’g No. A77 322 595 (Immig. Ct. N.Y. City Apr. 4, 2002). The three petitioners sought
5 review here and the cases were heard in tandem.
6 Three different interpretations of the application of “refugee” status to the facts in these
7 cases have been proposed by the parties throughout the litigation. When we heard the petitions
8 in tandem, the Department of Justice argued that § 601(a) of IIRIRA should be understood to
9 confer per se refugee status on spouses of individuals who had undergone forced abortions or
10 involuntary sterilizations, but not to boyfriends or fiancés, who were covered, if at all, under the
11 “other resistance” language of the amendment. Second, the petitioners argued, both before this
12 Court and before the BIA, that the distinction between spouses and unmarried partners was
13 arbitrary and that the statute should be interpreted to extend per se refugee status to the
14 committed partners of individuals who have been forced to undergo an abortion or involuntarily
15 sterilization.
16 The third, a text-based interpretation, was put forth before the BIA by the Department of
17 Homeland Security (“DHS”), which is “charged with the administration and enforcement of . . .
18 laws relating to the immigration and naturalization of aliens,” 8 U.S.C § 1103(a)(1). In its brief
19 to the BIA, the DHS insisted that no support existed in the statute for the BIA’s automatic
20 extension of § 601(a) to spouses. Specifically, the DHS asserted that the BIA’s interpretation
21 was “at odds with the most natural reading of the statute and with established principles of
22 asylum law.” Brief of DHS on Remand at 5, In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A. 2006) (en
8
1 banc) (No. A 70 895 638) (“DHS brief”). Carefully considering the text of § 601(a), the DHS
2 concluded that a rule conferring per se refugee status on spouses of individuals persecuted under
3 coercive family planning policies contradicted the unambiguous language of the amendment.
4 Further, the DHS stated that such a rule was at odds with the legislative history of the
5 amendment, as well as “a fundamental precept of U.S. refugee law . . . that, to qualify for
6 protection, an applicant must demonstrate that he will be targeted for his own protected belief or
7 characteristic.” DHS brief at 8-9, 11. The DHS understood that the statute required a “case-by-
8 case” application to individuals who have not themselves been victims of a forced abortion or
9 involuntary sterilization. Under this approach, spouses, boyfriends, and fiancés would have to
10 demonstrate their qualification for refugee status under the “for other resistance to a coercive
11 population control program” provision of § 601(a).
12 On remand, in S-L-L-, 24 I. & N. Dec 1, the BIA affirmed its earlier decision in C-Y-Z
13 that under § 601(a) an applicant whose spouse was forced to undergo an abortion or sterilization
14 procedure is automatically entitled to asylum, while limiting its interpretation to individuals who
15 were opposed to their legal spouse’s abortion or sterilization. Id. at 4. The BIA reasoned that §
16 601(a) provided “no clear or obvious answer to the scope of the protections . . . to partners of
17 persons forced to submit to an abortion or sterilization.” Id. As a result of this perceived
18 ambiguity, the majority chose to ground its interpretation “in the context of the history and
19 purposes of the Act as a whole,” finding that
20 absent evidence that the spouse did not oppose an abortion or sterilization
21 procedure, we interpret the forced abortion and sterilization clause of section
22 101(a)(42) of the Act, in light of the overall purpose of the amendment, to include
23 both parties to a marriage.
24
9
1 Id. at 8. While the decision rested on “the forced abortion and sterilization clause of section
2 101(a)(42),” the Board noted that it was applying “general principles regarding nexus and level
3 of harm.” Id. at 5.
4 The majority based its conclusion on a number of policy-based factors, including the
5 positions taken by the litigants and the fact that C-Y-Z-, as a ten-year-old decision, constituted
6 long-standing precedent. The majority was also influenced by the shared responsibility of
7 married couples regarding family planning decisions under Chinese law and the “profound
8 impact” that a forced abortion or sterilization has on both parties to a marriage. Id. at 6-8.
9 The majority stopped short of extending a per se presumption to boyfriends, fiancés, and
10 other unmarried partners. It concluded that they were not comparable to husbands because “the
11 sanctity of marriage and the long term commitment reflected by marriage place the husband in a
12 distinctly different position from that of an unmarried father.” Id. at 9. The BIA dismissed the
13 appeals of Lin, id., and Dong, In re Zhen Hua Dong, No. A77 293 661 (B.I.A. Nov. 27, 2006),
14 and remanded Zou’s case to the immigration court “for further evidence on the issues of
15 resistance and harm” based on the “other resistance” clause of § 1101(a)(42), In re Xian Zou,
16 No. A73 178 541 (B.I.A. Nov. 21, 2006).
17 Board Member Pauley concurred. While deferring to the BIA’s prior decision in C-Y-Z
18 as long-standing and widely accepted precedent, he conceded that:
19 [w]ere we writing on a clean slate, I would adopt the lately arrived at position of
20 the Department of Homeland Security . . . that whether or not the spouse of a
21 forcibly sterilized or aborted individual can be found to have been persecuted
22 depends on a case-by-case assessment of whether that spouse was persecuted on
23 account of “other resistance” to a coercive population control system, because the
24 language of the Act does not support extending refugee status to any person other
25 than the one sterilized or aborted, aside from the “other resistance” ground.
10
1 Id. at 13 (Pauley, B.M., concurring).
2 Board Member Filppu, joined by Board Member Cole, concurred in the result but
3 dissented from the majority’s reaffirmation of C-Y-Z. They reasoned that the language of the
4 statute was unambiguous in “focus[ing] on ‘a person’ who has been forced to abort a pregnancy,
5 not on a ‘couple,’ let alone a married couple . . . .” Id. at 16 (Filppu, B.M., concurring and
6 dissenting). Understanding that “statutory interpretation must begin with reference to the
7 language and structure of the statute,” id. at 15, and “Congress expresses its intent through the
8 language it chooses,” id. at 19 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12
9 (1987)), the dissenters concluded that an individual who has not been subjected to a forcible
10 abortion or sterilization procedure can qualify for refugee status in relation to a coercive family
11 planning policy only if he proves that he was persecuted or has a well-founded fear of future
12 persecution “for other resistance to a coercive population control program.” Id.5
13 Following the BIA’s decision, we ordered an en banc rehearing to determine whether §
14 601(a) is ambiguous, whether the BIA’s interpretation of “refugee” should be accorded Chevron
15 deference, and “[w]hether the BIA reasonably construed IIRIRA § 601’s definition of “refugee”
16 to: (a) include a petitioner whose legally married spouse was subjected to an involuntary
17 abortion or sterilization . . . ; and (b) not include a petitioner whose claim is derivatively based
18 on any other relationship with a person who was subjected to such a procedure, unless the
19 petitioner has engaged in ‘other resistance’ to a coercive population control program . . . .” See
5
While here, as throughout the opinion, we refer to a male petitioner with a wife or
girlfriend who has been forced to undergo an abortion or sterilization, our reasoning applies with
equal force to the perhaps more uncommon situation in which a female petitioner’s male spouse
or boyfriend has been forced to undergo sterilization.
11
1 En banc order. We now conclude that the BIA’s interpretation of the statute is not correct.
2 II. DISCUSSION
3 When reviewing the BIA’s interpretation of statutes that it administers, we apply the
4 Chevron principles. We first ask if Congress has spoken. “If the intent of Congress is clear, that
5 is the end of the matter; for the court, as well as the agency, must give effect to the
6 unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43; see also INS v.
7 Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987). Only if the statute is silent or ambiguous do we
8 turn to the second inquiry – whether the BIA’s interpretation constitutes “a permissible
9 construction of the statute.” Chevron, 467 U.S. at 843.
10 While the petitioners in this case are unmarried partners, and not spouses, of individuals
11 who have been subjected to forced abortions, we review the BIA’s interpretation of § 601, as
12 articulated in its decision below, to extend a per se presumption of persecution to spouses, but
13 not to non-married partners, of individuals who have been involuntarily subjected to an abortion
14 or sterilization.6 It is the existence of this spousal policy that the petitioners argue is an arbitrary
15 and capricious interpretation of the statute. If the BIA’s policy is at odds with the plain language
16 of the statute, it makes little sense to consider only whether it can reasonably be limited to
17 couples who are formally married.
6
We announced our intention to reach this question in our order that this case be reheard
en banc. In that order we instructed the parties to address the BIA’s interpretation of § 601 as it
related to both spouses and non-married partners of individuals subjected to an involuntary
abortion or sterilization. All members of this en banc panel joined the order, including those
who now express confusion as to why we reach the question. We are particularly perplexed by
the position taken by our colleagues Judge Katzmann and Judge Sotomayor, who contend we are
overreaching by considering whether the BIA’s per se rule survives review under Chevron step
one, but who then proceed to assess, and declare valid, the same rule under Chevron step two.
Op. of Judge Katzmann at 16, Op. of Judge Sotomayor at 1 & n.1.
12
1 Accordingly, we start our Chevron analysis of § 601(a) by asking whether Congress has
2 spoken directly to the question of whether an individual can establish past persecution based
3 solely on his spouse or partner’s forced abortion or sterilization. 467 U.S. at 842-43. In S-L-L-,
4 the BIA, without elaboration or explanation, observed that “[t]here is no clear or obvious answer
5 to the scope of the protections afforded by the amendment to partners of persons forced to
6 submit to an abortion or sterilization.” 24 I. & N. Dec. at 4. We disagree. We conclude that
7 Congress has spoken to this issue and that it has done so unambiguously.
8 In the past, this Court, when following the BIA’s holding in C-Y-Z-, has deferred to the
9 BIA’s interpretation without performing a threshold Chevron analysis of the ambiguity of the
10 statute. In Yuan v. U.S. Dep’t of Justice, for example, we stated of IIRIRA § 601 that, “[b]y its
11 plain language, the law would seem to extend refugee status only to actual victims of persecution
12 – for example, a woman who was ‘forced to abort a pregnancy,’ but not her husband.” 416 F.3d
13 192, 196 (2d Cir. 2005). Despite this recognition of the amendment’s plain language, we went
14 on to defer to the interpretation of the BIA, stating that, “we have held that spouses of people
15 actually subject to persecution under coercive family planning policies are per se eligible for
16 asylum. . . . In doing so, however, we did not explain why. Rather, we followed the lead of the
17 BIA.” Id. at 196-97 (internal citation omitted); see also Zhang v. I.N.S., 386 F.3d 66, 73 (2d Cir.
18 2004); Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003). To the extent that deference implicit
19 in these cases can be read to say that deference is due, they are overruled.
20 The amendment provides:
21 [(1)] a person who has been forced to abort a pregnancy or to undergo involuntary
22 sterilization, or [(2)] who has been persecuted for failure or refusal to undergo
23 such a procedure or [(3)] for other resistance to a coercive population control
13
1 program, shall be deemed to have been persecuted on account of political opinion,
2 and [(4)] a person who has a well founded fear that he or she will be forced to
3 undergo such a procedure or [(5)] subject to persecution for such failure, refusal,
4 or [(6)] resistance shall be deemed to have a well founded fear of persecution on
5 account of political opinion.
6
7 8 U.S.C. § 1101(a)(42). The language of the first clause, which refers to “a person who has been
8 forced to abort a pregnancy or to undergo involuntary sterilization,” could not be more clear in
9 its reference to “a person,” rather than “a couple,” who has been subjected to a forced abortion or
10 involuntary sterilization. This interpretation follows two cardinal rules: first that “[s]tatutory
11 construction must begin with the language employed by Congress and the assumption that the
12 ordinary meaning of that language accurately expresses the legislative purpose,” Park ‘N Fly,
13 Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985); and, second, that “we begin with the
14 understanding that Congress says in a statute what it means and means in a statute what it says
15 there,” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)
16 (internal quotation marks omitted).
17 As the statute is written, “a person who has been forced to abort a pregnancy”
18 unambiguously refers to a woman who has been physically subjected to a forced abortion, and “a
19 person who has been forced . . . to undergo involuntary sterilization” means an individual who
20 has physically undergone an involuntary medical procedure intended to result in infertility. Had
21 Congress intended this clause to refer to a spouse or partner of someone who has been physically
22 subjected to a forced procedure, “it could simply have said so.” Id. at 7.
23 Similarly, the second clause of the amendment refers to “a person” who “has been
24 persecuted for failure or refusal to undergo [an abortion or involuntary sterilization.]” 8 U.S.C. §
141 1101(a)(42). Like the preceding clause, this language refers to individuals who have failed or
2 refused to undergo (i.e., “submit to”) a procedure affecting their own bodies. Under the
3 language used by Congress, having someone else, such as one’s spouse, undergo a forced
4 procedure does not suffice to qualify an individual for refugee status.
5 A parallel analysis governs the categories of § 601(a) relating to the establishment of a
6 well-founded fear of future persecution. The fourth category covers “a person who has a well
7 founded fear that he or she will be forced to undergo [an abortion or involuntary sterilization].”
8 This category plainly excludes an individual who does not fear that she herself will be subjected
9 to a forced abortion or sterilization. Not only does it refer to “a person,” and indicate that that
10 person will “undergo” the procedure his- or herself, the use of the pronouns “he” and “she”
11 reinforces the intention of Congress to limit the application of the clause to individuals who are
12 themselves physically forced to undergo an abortion or sterilization.
13 Finally, the fifth category of individuals refers to “a person who has a well founded fear
14 that he or she will be . . . subject to persecution for such failure [or] refusal [to undergo an
15 abortion or involuntary sterilization].” Like the language of the previous clauses, this phrase is
16 unambiguous in its reference to “a person” who fears that “he or she” will be persecuted for his
17 or her reaction to a threat of “undergo[ing]” an abortion or sterilization to his or her own body.
18 This section, like the previous three categories discussed, cannot be read reasonably to cover an
19 individual’s fears arising from a coercive procedure performed on someone else.7
7
No member of the en banc Court disputes this reading of IIRIRA § 601(a). Instead, our
colleagues assert that other language in 8 U.S.C. § 1101(a)(42) – language predating adoption of
the amendment – might (in the case of our colleague, Judge Calabresi) or does (in the case of our
colleagues Judge Katzmann and Judge Sotomayor) somehow support the BIA’s per se rule.
15
1 In S-L-L-, the BIA noted that it was applying “general principles regarding nexus and
2 level of harm,” 24 I. & N. Dec. at 5 – principles derived from the general refugee definition
3 subsection of § 1101(a)(42) – to reach its holding. We believe that this approach was not
4 correct. The general definition of a “refugee” under § 1101(a)(42) permits “any person” who
5 experiences “persecution or a well-founded fear of persecution on account of race, religion,
6 nationality, membership in a particular social group, or political opinion” to obtain asylum. 8
7 U.S.C. § 1101(a)(42). Nothing in the general definition of refugee would permit “any person”
8 who has not personally experienced persecution or a well-founded fear of future persecution on a
9 protected ground to obtain asylum, as the BIA’s per se rule would permit. Indeed, an
10 examination of the overall statutory scheme reassures us that, pursuant to Chevron, we must
11 conclude that Congress has clearly and unambiguously spoken to the issue at hand. See FDA v.
12 Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000) (“In determining whether
13 Congress has specifically addressed the question at issue [under Chevron step one], a reviewing
14 court should not confine itself to examining a particular statutory provision in isolation. . . . A
These assertions are incorrect, we believe, for reasons discussed infra.
By contrast, the Third Circuit’s recent decision in Sun Wen Chen, which our concurring
colleagues Judge Katzmann and Judge Sotomayor cite extensively even though they apparently
disagree with its analysis, asserts that § 601(a) contains an ambiguity that the BIA is empowered
to fill. See Sun Wen Chen, 2007 WL 1760658, at *4 (“The C-Y-Z- rule . . . fleshes out an issue
germane to the application of [§ 601(a)] that was not addressed by Congress, and so poses no
Chevron step one problem.”). But see Sun Wen Chen, 2007 WL 1760658, at *10 (McKee, J.,
dissenting) (“Rather than accept the language [of § 601(a)] as drafted, the majority concludes
that the absence of ‘spouse’ in the statute creates a vacuum that the Attorney General may rush
in and fill, even though this results in amending the statute.”); id. at *11 (McKee, J., dissenting)
(“Our analysis should therefore begin and end with the language of [§ 601(a)]. There is no room
here for a step two inquiry under Chevron. . . . I believe Congress meant what it said, and I do
not assume that the omission of any reference to a ‘spouse’ is accidental or insignificant.”).
16
1 court must . . . interpret the statute as a symmetrical and coherent regulatory scheme.” (citation
2 and internal quotation marks omitted)).
3 It is apparent to us that when Congress rejected the BIA’s view in Matter of Chang, 20 I.
4 & N. Dec. 38 (B.I.A. 1989), of birth control policies in other nations as an avenue for asylum, it
5 did so in clear and unmistakable language. It identified those to whom asylum could be granted
6 and reaffirmed the need for direct personal persecution. Congress’s specific designation of some
7 persons (i.e., those who fear, resist, or undergo particular medical procedures) is incompatible
8 with the view that others (e.g., their spouses) should also be granted asylum per se because of
9 birth control policies. The inclusion of some obviously results in the exclusion of others. See
10 TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001); Leatherman v. Tarrant County Narcotics
11 Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993).8
12 The language of § 601(a) does nothing to alter the pre-IIRIRA definition of “political
13 opinion” in § 1101(a)(42), and this further demonstrates the exclusivity of the group of persons
14 entitled to asylum per se under § 601(a). Congress could have announced that the term “political
15 opinion” included any reproductive act in violation of a coercive population control program, but
16 instead it chose to create a specific exception to the general statutory requirement that a person
17 claiming refugee status based on past persecution has the burden of demonstrating that the
18 particular conduct experienced by him rose to the level of persecution and the persecution had a
8
Judge Katzmann contends that we have employed this well-known canon of statutory
construction to conclude that IIRIRA § 601(a) restricts, rather than expands, the availability of
asylum relief. Op. of Judge Katzmann at 5. This contention is misplaced. We acknowledge that
IIRIRA § 601(a) expands the availability of asylum, but find it significant that it does so only to
specifically-enumerated categories of asylum applications – categories that do not include the
beneficiaries of the BIA’s per se rule.
17
1 specified impermissible nexus. See 8 U.S.C. § 1158(b)(1)(B)(i) (stating that “[t]he burden of
2 proof is on the applicant to establish that the applicant is a refugee”). IIRIRA § 601(a) states that
3 certain individuals affected by coercive population control programs “shall be deemed”
4 persecuted by reason of political opinion. In using the word “deem” in this context,9 § 601(a)
5 makes clear that those who benefit from the amendment would not be entitled to per se political
6 opinion asylum relief absent the amendment. In other words, their political opinion exists de
7 jure rather than as a matter of fact on which the applicant bears the burden of proof. For an
8 asylum applicant who does not fall within this limited exception, the burden remains on the
9 applicant – and the opportunity remains open – to demonstrate, in light of the particular facts of
10 the case, that he has (i) a well-founded fear of personal persecution (ii) based on political opinion
11 or some other impermissible ground.
12 This is consistent with what we know: While it is plain that suffering a forced medical
13 procedure can be a persecution if it is on account of a protected ground, the conception of a child
14 is no more an expression of political opinion than birth, death, sleep, or the taking of
15 nourishment. If the language of § 601(a) indicates that the woman who is subjugated to the
16 outrage of a forced abortion has not herself been persecuted for the “political opinion” of
17 conceiving a child under pre-IIRIRA § 1101(a)(42), then so much less the man who has
9
To “deem” is “[t]o treat (something) as if (1) it were really something else, or (2) it has
qualities that it doesn’t have,” or, in the alternative, “[t]o consider, think, or judge.” Black’s Law
Dictionary 446 (8th ed. 2004). Black’s Law Dictionary further notes that the word deem “has
been traditionally considered to be a useful word when it is necessary to establish a legal fiction
either positively by 'deeming' something to be what it is not or negatively by 'deeming'
something not to be what it is. . . . All other uses of the word should be avoided.” Id. (quoting
G.C. Thornton, Legislative Drafting 99 (4th ed. 1996)).
18
1 impregnated her; but unlike his wife or partner, he is not “deemed” under § 601(a) to hold a
2 political opinion and he must prove the existence of a political opinion or other protected ground
3 under § 1158(b)(1)(B)(i). Accordingly, we conclude that the statutory scheme unambiguously
4 dictates that applicants can become candidates for asylum relief only based on persecution that
5 they themselves have suffered or must suffer. See Sun Wen Chen, 2007 WL 1760658, at *11
6 (McKee, J., dissenting) (“Congress could have easily drafted [§ 601(a)] to extend to ‘married
7 couples who have been subjected to a forced abortion or involuntary sterilization.’ So drafted,
8 an actual victim of persecution under a coercive population control program, as well as his/her
9 spouse, would qualify for relief under the statute. However, Congress did not draft the statute in
10 this way, and we can not rewrite the statute's explicit text to achieve that result.”).
11 Indeed, the critical defect in the BIA’s policy of according per se refugee status to
12 spouses of individuals explicitly protected by § 601(a) is its creation of an irrebuttable
13 presumption of refugee status for a new class of persons. This policy effectively absolves large
14 numbers of asylum applicants of the statutory burden to prove that they have (i) a well-founded
15 fear of persecution (ii) based on an impermissible nexus. Such a presumption is contrary to the
16 text of 8 U.S.C. § 1158(b)(1)(B), which specifies that “[t]he burden of proof is on the applicant,”
17 that “the applicant must establish that . . . political opinion was or will be at least one central
18 reason for persecuting the applicant,” and that an applicant’s testimony may be sufficient to meet
19 this burden only if it “refers to specific facts sufficient to demonstrate that the applicant is a
20 refugee.” The law is clear that “an agency is not free to ignore statutory language by creating a
21 presumption on grounds of policy to avoid the necessity for finding that which the legislature
19
1 requires to be found.” United Scenic Artists v. NLRB, 762 F.2d 1027, 1034 (D.C. Cir. 1985).
2 The creation of such a presumption “is beyond the [agency’s] statutory authority.” Id. at 1035;
3 see also Cerrillo-Perez v. INS, 809 F.2d 1419, 1426-27 (9th Cir. 1987) (holding that the “BIA
4 cannot adopt a general presumption” unfavorable to applicant but instead “must consider the
5 specific facts and circumstances of each case”). Thus, the BIA lacks authority to adopt a policy
6 that presumes that every person whose spouse was subjected to a forced abortion or sterilization
7 has himself experienced persecution based on political opinion.
8 Our concurring colleagues Judge Katzmann and Judge Sotomayor suggest that the
9 political nexus prong of this presumption is, in fact, inherent in Congress’s 1996 amendments.
10 Op. of Judge Katzmann at 15; op. of Judge Sotomayor at 7. However, this contention is
11 irreconcilable with the language of § 601(a), in which Congress created this presumption for
12 specifically identified persons – those who were themselves subjected to or threatened with a
13 forcible abortion or sterilization. To the extent that the amendments overruled Matter of
14 Chang’s categorical rejection of such a nexus, 20 I. & N. Dec. 38, this means that an asylum
15 applicant is no longer foreclosed from relying on evidence of a forced abortion or sterilization –
16 whether personal or spousal – in attempting to demonstrate persecution based on political
17 opinion. However, the fact remains that Congress has relieved only persons who actually
18 experienced, or are threatened with, a forcible abortion or sterilization from the burden of
19 proving a political nexus in their particular cases.
20 We do not deny that an individual whose spouse undergoes, or is threatened with, a
21 forced abortion or involuntary sterilization may suffer a profound emotional loss as a partner and
20
1 a potential parent. But such a loss does not change the requirement that we must follow the
2 “ordinary meaning” of the language chosen by Congress, according to which an individual does
3 not automatically qualify for “refugee” status on account of a coercive procedure performed on
4 someone else. See Moskal v. United States, 498 U.S. 103, 108 (1990) (stressing the importance
5 of “giving the ‘words used’ their ‘ordinary meaning.’”); Cardoza-Fonseca, 480 U.S. at 453
6 (“Where the language of [a] law[] is clear, we are not free to replace it with an unenacted
7 legislative intent.”).10
8 Under Chevron, once it is apparent that the statute is unambiguous, our inquiry stops. “If
9 the intent of Congress is clear, that is the end of the matter,” and we are required to refrain from
10 deferring to an agency’s contradictory interpretation. 467 U.S. at 842-43; see, e.g., Barnhart v.
11 Sigmon Coal Co., Inc., 534 U.S. 438, 462 (2002); Brown & Williamson Tobacco Corp., 529 U.S.
12 at 160-61; Nat’l Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 500 (1998);
13 MCI Telecommunications Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 226-28 (1994);
14 Cardoza-Fonseca, 480 U.S. at 447-48. Congress’s choices of language in the phrases, “a person
15 who has been forced to abort a pregnancy or to undergo involuntary sterilization,” “[a person]
16 who has been persecuted for failure or refusal to undergo such a procedure,” and “a person who
17 has a well founded fear that he or she will be forced to undergo such a procedure or subject to
18 persecution for such failure [or] refusal,” is uniformly unambiguous in its reference to an
19 individual who is subjected to, or threatened with, an involuntary abortion or sterilization
If this conclusion is inconsistent with Congress’s intentions, it can, if it so chooses, of
10
course, amend the statute, as it did when it adopted IIRIRA § 601(a) in response to the BIA’s
decision in Matter of Chang, 20 I. & N. Dec. 38 (B.I.A. 1989).
21
1 affecting his or her own body, and the statutory scheme of § 1101(a)(42) only reinforces that
2 conclusion.
3 As a result, we conclude that the statute does not provide that a spouse – and a fortiori, a
4 boyfriend or fiancé – of someone who has been forced to undergo, or is threatened with, an
5 abortion or sterilization is automatically eligible for “refugee” status. Instead, to qualify for
6 refugee status under the amendment, such an individual must turn to the two remaining
7 categories of § 601(a), which provide protection to petitioners who demonstrate “other resistance
8 to a coercive population control program” or “a well founded fear that he or she will be . . .
9 subject to persecution for such . . . resistance . . . .” 8 U.S.C. § 1101(a)(42).11
10 In S-L-L, the BIA was influenced by the fact that C-Y-Z- “is a precedent of long standing
11 at this point . . . and numerous court decisions have deferred to the holding.” S-L-L-, 24 I. & N.
12 Dec. at 4; see also id. at 14 (Pauley, B.M., concurring) (“[N]otwithstanding my belief that Matter
13 of C-Y-Z-, . . . was wrongly decided, I would not overrule it now, clearly a decade later and in the
14 aftermath of thousands of decisions applying it . . . .”). However, the Supreme Court has made
15 clear that “[s]tare decisis is not an inexorable command; rather, it is a principle of policy and not
16 a mechanical formula of adherence to the latest decision.” Payne v. Tennessee, 501 U.S. 808,
17 828 (1991) (internal quotation marks omitted).
While no party before us argues that the rule in S-L-L- fails under Chevron step one,
11
DHS did argue this point before the BIA, and the BIA considered and rejected the argument over
a persuasive dissent by two members of the Board. In any event, we cannot defer to the
Department of Justice’s argument (opposed below by DHS, the agency charged with enforcing
immigration laws) that the rule in S-L-L- survives review under Chevron step one if the rule
finds no support in the statutory text. Accordingly, we assume that the Solicitor General will
take appropriate action to recommend or assure that the views of DHS and this Court will be
represented in any future proceedings.
22
1 While stare decisis is undoubtedly of considerable importance to questions of statutory
2 interpretation, the Supreme Court “ha[s] never applied stare decisis mechanically to prohibit
3 overruling . . . earlier decisions determining the meaning of statutes.” Monell v. Dep’t of Social
4 Servs., 436 U.S. 658, 695 (1978). We should not do so either. The fact that we have failed to
5 follow the plain language of a law of Congress for ten years does not require that we do so
6 indefinitely. That would “place on the shoulders of Congress the burden of the Court's own
7 error.” Girouard v. United States, 328 U.S. 61, 70 (1946).
8 Given the clarity of the statute, there is no need to resort to legislative history, which is a
9 tool of construction that we employ only if the statutory text at issue in the context of the statute
10 as a whole is ambiguous. However, were we to examine the statute’s legislative history, we
11 would find that our interpretation of § 601(a) comports with Congress’s stated purpose in
12 passing the amendment. The House Report accompanying the passage of the amendment states
13 that its
14 primary intent . . . is to overturn several decisions of the Board of Immigration
15 Appeals, principally Matter of Chang and Matter of G- . . . which . . . hold that a
16 person who has been compelled to undergo an abortion or sterilization, or has
17 been severely punished for refusal to submit to such a procedure, cannot be
18 eligible on that basis for refugee or asylee status unless the alien was singled out
19 for such treatment on account of factors such as religious belief or political
20 opinion.
21
22 H.R. Rep. 104-469(I) at 173-74 (1996) (emphasis added).
23 The report mentions as examples of victims of coercive family planning policies women
24 who have been subjected to involuntary abortions, men and women who are forcibly sterilized,
25 and “couples with unauthorized children [who are] subjected to excessive fines,” but not spouses
23
1 of individuals who have been subjected to forced abortions or sterilizations. Id. While Congress
2 disapproved of coercive family planning policies as a whole, the amendment was meant to
3 provide protection for individuals who were subjected to persecution themselves. As the report
4 goes on to state:
5 The Committee emphasizes that the burden of proof remains on the
6 applicant, as in every other case, to establish by credible evidence that he
7 or she has been subject to persecution - in this case, to coercive abortion or
8 sterilization - or has a well-founded fear of such treatment. The Committee
9 is aware that asylum claims based on coercive family planning are often
10 made by entire groups of smuggled aliens, thus suggesting that at least
11 some of the claims, if not the majority, have been "coached." Section
12 [601(a)] is not intended to protect persons who have not actually been
13 subjected to coercive measures or specifically threatened with such
14 measures . . . .
15
16 Id. at 174 (emphasis added). There is nothing in the legislative history that leads us to question
17 “the strong presumption that Congress expresses its intent through the language it chooses.”
18 Cardoza-Fonesca, 480 U.S. at 432 n.12. Here, the language Congress employed in § 601(a)
19 demonstrates that it wanted to cover “a person,” not “a couple,” not a “significant other” and not
20 an “intimate friend.” Moreover, Congress’s “emphasi[s]” on its intention that “the burden of
21 proof remains on the applicant” demonstrates that no other subsection of § 1101(a)(42) could
22 support the BIA’s interpretation of the statute.12 See Sun Wen Chen, 2007 WL 1760658, at *16
12
Judge Katzmann asserts that Congress, when it adopted IIRIRA § 601(a) in 1996,
intended to accomplish the same goal as a 1993 order of former Attorney General Barr that was
never enacted and never reviewed by any court. That order would have explicitly granted
asylum to spouses of coercive family planning policy victims. Op. of Judge Katzmann at 8-9.
Judge Katzmann’s assertion is squarely contradicted by the plain language of IIRIRA § 601(a),
which – unlike Attorney General Barr’s order – does not grant asylum to spouses of persecution
victims, as well as by the legislative history recounted above, which emphasizes that IIRIRA §
601(a) was not intended to make asylum available to those not explicitly protected by the
amendment. Even more precarious is Judge Katzmann’s reliance on the various messages he
24
1 (McKee, J., dissenting) (“The House Report . . . expresses a congressional intent to restrict
2 asylum to the ‘person’ who undergoes the coercive procedure just as clearly as the text of the
3 statute.”).
4 This reading of the statute is further supported by the Supreme Court’s pronouncement
5 about what “refugee” means. In INS v. Elias-Zacharias, the Supreme Court held that under the
6 plain language of the general refugee definition subsection of § 1101(a)(42), “‘persecution on
7 account of . . . political opinion’ in [§ 1101(a)(42)] is persecution on account of the victim’s
8 political opinion,” 502 U.S. 478, 482 (1992) (emphasis in original), not persecution on account
9 of a political opinion held by someone else. Similarly, a spouse who has not demonstrated that
10 he himself is a victim of persecution cannot be entitled to asylum under this section of the
11 statute. It would be unreasonable to conclude otherwise, whether under § 601(a), or under §
12 1101(a)(42) as a whole.13
13 Our conclusion that Congress never intended § 601 – or § 1101(a)(42) – to apply
14 automatically to spouses is reinforced by the fact that Congress already provides for family
15 members elsewhere in the statute by authorizing derivative asylum status for spouses and
16 children of individuals who qualify as “refugees.” 8 U.S.C. § 1158(b)(3)(A). Specifically, under
hears in the sounds of Congressional silence. Op. of Judge Katzmann at 13.
13
In her concurring opinion, Judge Sotomayor suggests that today’s holding casts doubt
on Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006) (remanding asylum claim to BIA on
determination that a “combination of circumstances” experienced by applicant in Guatemala as a
dependent child – including the massacre of close family members – “could well constitute
[past] persecution” of the child). We do not address this concern because today’s decision does
not preclude the BIA from considering the totality of circumstances in any particular case to
determine if an asylum applicant has carried his statutory burden.
25
1 § 1158(b)(3)(A), an individual whose spouse or parent has been granted asylum on the basis of
2 having undergone or been threatened with the prospect of a forced abortion or sterilization is
3 automatically eligible for derivative asylum: “[a] spouse or child . . . of an alien who is granted
4 asylum under this subsection may, if not otherwise eligible for asylum under this section, be
5 granted the same status as the alien if accompanying, or following to join, such alien.”
6 What Congress did by providing in § 1158(b)(3)(A) for automatic asylum for spouses of
7 individuals who have been granted “refugee” status as a result of having been forced to undergo
8 an abortion or involuntary sterilization reflects a policy decision to encourage the preservation of
9 families. Under § 1158(b)(3)(A) the benefits of asylum are extended first to the person Congress
10 understood to be most deserving of protection – the direct victim. Once the victim gains asylum,
11 so does the spouse, and so do their children. This structure encourages couples to remain
12 together, or, in circumstances where this is not possible, facilitates reunion.
13 The BIA’s interpretation of the statute in S-L-L cuts in a different direction since it has
14 the perverse effect of creating incentives for husbands to leave their wives. As hundreds of
15 cases in the courts illustrate, the policy allows a married man to “capitalize on the persecution of
16 his wife to obtain asylum even though he has left his wife behind and she might never join him
17 and he might intend that she not do so,” Chen v. Ashcroft, 376 F.3d 215, 223 n.2 (3d Cir. 2004).
18 It is highly unlikely – indeed, inconceivable – that Congress would approve of, much less
19 intended, any of this. These counterintuitive results reinforce our conclusion that in § 601(a)
20 Congress intended to grant automatic asylum to an individual directly victimized by a coercive
21 birth control policy, and that no part of § 1101(a)(42) extends this automatic asylum to spouses.
26
1 Congress did not, at the same time it adopted § 601(a), intend to gut or to undermine §
2 1158(b)(3)(A), which already contained a synchronous, sensible way of addressing the
3 compelling problems faced by spouses and children of direct victims.
4 Although we conclude that Congress has spoken unambiguously to whether an asylum
5 applicant is per se eligible for asylum if his spouse or partner has suffered as a result of a
6 coercive population control program, the phrase “other resistance” is ambiguous and leaves
7 room for the BIA’s reasonable interpretation where the applicant relies on something beyond his
8 spouse’s or partner’s persecution.14 See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1203 (11th Cir.
9 2005) (“There is very little case law analyzing the ‘other resistance’ clause in the asylum statute.
10 Additionally, a review of the legislative history behind the 1996 Amendment does not reveal any
11 clear intent from Congress on the scope of the ‘other resistance clause.’”).
12 In its decision, the BIA held that an applicant claiming persecution for “other resistance”
13 must demonstrate (1) “resistance” to a coercive family planning policy, which can “cover[] a
14 wide range of circumstances, including expressions of general opposition, attempts to interfere
15 with enforcement of government policy in particular cases, and other overt forms of resistance to
16 the requirements of the family planning law”; and (2) that the applicant has “suffered harm
17 amounting to persecution on account of that resistance.” S-L-L-, 24 I. & N. Dec. at 10. An
18 individual whose spouse or partner has been subjected to a forced abortion or involuntary
14
For an analysis of what “resistance” might mean when someone has not been forcibly
sterilized himself, see Li v. Ashcroft, 356 F.3d 1153, 1159-61 (9th Cir. 2004) (en banc)
(analyzing the meaning of the “other resistance” clause and holding that it applies to a woman
who announced her opposition to government population control policies and was thereafter
subjected to a forced gynecological exam and threatened with future abortion, sterilization of her
boyfriend, and arrest).
27
1 sterilization can therefore qualify for “refugee” status under this interpretation if that individual
2 can prove past persecution or a fear of future persecution for “resistance” that is directly related
3 to his or her own opposition to a coercive family planning policy.
4 Whatever interpretation the BIA chooses to give to the meaning of “resistance,” it is clear
5 that the fact that an individual’s spouse has been forced to have an abortion or undergo
6 involuntary sterilization does not, on its own, constitute resistance to coercive family planning
7 policies. See Zhang, 395 F.3d at 532 (“[M]erely impregnating one's girlfriend is not alone an act
8 of ‘resistance.’”). Nor could the resistance of an individual’s spouse or partner to a family
9 planning policy – whether by failure or refusal to undergo a procedure, or for “other resistance”
10 – constitute, on its own, “resistance” under regulations implementing § 1101(a)(42). Instead, as
11 the DHS has argued, “where the applicant himself has not resisted [coercive family control
12 policies], he would need to demonstrate, though persuasive direct or circumstantial evidence,
13 that his wife’s, fiancee’s, or girlfriend’s resistance has been or will be imputed to him.” DHS
14 brief at 17 (citing Singh v. INS, 134 F.3d 962, 970 (9th Cir. 1998)). The fact that someone’s
15 spouse has been subjected to a forced abortion or sterilization would not be irrelevant to such an
16 analysis, it simply could not provide for asylum status per se.15
15
Judge Calabresi asserts first that our holding conflicts—if not in actuality, then in
“spirit,” Op. of Judge Calabresi at 6 —with the Supreme Court’s recent decisions in INS v.
Orlando Ventura, 537 U.S. 12 (2002) (per curiam), and Gonzales v. Thomas, 547 U.S. 183, 126
S. Ct. 1613 (2006) (per curiam), and second that we rush to reach a particular result. We
disagree with both of these assertions. First, Orlando Ventura and Thomas held that a reviewing
court should ordinarily remand rather than pass upon a matter that is (1) primarily committed to
the BIA’s discretion, and (2) has not yet been considered by the BIA. See Orlando Ventura, 537
U.S. at 16-17; Thomas, 126 S. Ct. at 1615. Neither of these conditions is present in this case.
We, rather than the BIA, have primary authority under Chevron to determine whether a
particular agency interpretation is consistent with the unambiguously expressed intent of
28
1 Before turning to the dispositions of the petitioners’ claims, we address some practical
2 implications of our decision. We affirm the result of the BIA’s decision in S-L-L- denying per
3 se refugee status to boyfriends or fiancés of individuals who have been persecuted directly under
4 coercive family planning policies. A necessary predicate for this result is our conclusion that §
5 601 does not confer automatic asylum eligibility on spouses, whether legal spouses or spouses
6 from a traditional marriage, but only on individuals who themselves have undergone or been
7 threatened with coercive birth control procedures. Thus, although none of the petitioners before
8 us is legally married, we understand that our reading of the statute would necessarily exclude
9 spouses of those directly victimized from per se asylum eligibility as well.
10 We emphasize that our holding today should not be read to presage the reopening of
11 cases of aliens who have already been granted asylum based on the BIA’s interpretation of § 601
12 in C-Y-Z-. Under 8 U.S.C. § 1158(c)(2)(A), the DHS is permitted to seek the termination of
13 asylum when an alien no longer qualifies for refugee status “because, owing to a fundamental
14 change in circumstances relating to the original claim, the alien's life or freedom no longer would
15 be threatened on account of race, religion, nationality, membership in a particular social group,
Congress. See, e.g., Cardoza-Fonseca, 480 U.S. at 447-48.
Second, the BIA has had ample opportunity to consider the statutory interpretation
question in the first instance. The per se rule that we now invalidate was first announced by the
BIA in 1997, in its opinion in C-Y-Z-, 21 I. & N. Dec. at 915. In 2005, we remanded this case to
the BIA to give it the opportunity to reconsider whether the rule in C-Y-Z- could find support in
the language of § 601(a). See Lin, 416 F.3d at 187. On remand, DHS explicitly argued to the
BIA that its per se rule was foreclosed by the plain language of § 601(a) and the statutory
scheme. A majority of the BIA considered and rejected this argument over the forceful, and
persuasive, objections of a minority of the Board. See S-L-L-, 24 I. & N. Dec. at 15-21 (Filppu,
B.M., concurring and dissenting). We see no reason to remand yet again – ping pong style –
when the BIA has had ten years and several opportunities to reconsider a rule that has no basis in
statutory text.
29
1 or political opinion in the country from which deportation or removal was withheld.” 8 C.F.R. §
2 208.24(b)(1) (emphasis added). Just as a change in United States asylum law does not qualify as
3 a “change in circumstances” sufficient to reopen an asylum case under 8 C.F.R. §
4 1003.2(c)(3)(ii) (permitting motion to reopen “based on changed circumstances arising in the
5 country of nationality or in the country to which deportation is ordered”), see Azanor v. Ashcroft,
6 364 F.3d 1013, 1022 (9th Cir. 2004), a change in the BIA’s interpretation of section 601(a) as a
7 result of our decision should not be seen as a “fundamental change in circumstances relating to
8 the original claim” under 8 C.F.R. § 208.24(b)(1) so as to allow the termination of an asylum
9 claim that has already been granted. See S-L-L-, 24 I. & N. Dec. at 21 n.2 (Filppu, B.M.,
10 concurring and dissenting) (“We are not now concerned with reopening past cases.”).
11 III. PETITIONERS’ CLAIMS
12 We agree with the BIA that none of the petitioners can qualify for automatic refugee
13 status as a result of the treatment of their girlfriends or fiancées. Instead, each petitioner must
14 demonstrate “other resistance to a coercive population control program” or “a well founded fear
15 that he . . . will be . . . subject to persecution for such . . . resistance . . . .” 8 U.S.C. §
16 1101(a)(42).
17 Petitioner Dong’s application for asylum was based upon his fiancée’s two forced
18 abortions and threats from family planning officials that they would fine and sterilize Dong if his
19 fiancée became pregnant again. But Dong failed to demonstrate that he acted in a manner that
20 could constitute “resistance” or opposition to a coercive family control program. Nor can we
21 find that Dong has a fear of future persecution as a result of the threat that the Chinese
30
1 government would sterilize him if his fiancée became pregnant again. Dong submitted evidence
2 to the immigration court that his fiancée had moved to Taiwan to be with her father. The IJ thus
3 found that Dong was unlikely to return to China, and his fear of sterilization was conjectural.
4 Moreover, as the BIA notes, were Dong’s fiancée to return to China, Dong and his fiancée would
5 now meet the age requirements for marriage. See In re Dong, A. 77 293 661 (B.I.A. Nov. 27,
6 2006). In addition, the immigration judge correctly determined that Dong did not demonstrate
7 that he would “more likely than not” be persecuted as grounds for a withholding of removal, or
8 that he would be subjected to torture within the meaning of the Convention Against Torture. See
9 id. Accordingly, we deny Dong’s petition for review.
10 Petitioner Lin’s claim for asylum is that he and his girlfriend were refused permission to
11 marry or have a child out of wedlock, and his girlfriend was forced to undergo an abortion. Lin
12 did not claim before the immigration court, the BIA, or this Court that he had “otherwise
13 resisted” China’s coercive family planning policies. Even if he had, we agree with the BIA that
14 a request, through the appropriate legal channels, for permission to have a child, combined with
15 the subsequent abortion performed on his girlfriend, does not constitute “resistance to a coercive
16 population control program.” S-L-L-, 24 I. & N. at 10-12. However, we do not have jurisdiction
17 over Lin’s petition for review, as we find that his petition is moot. Lin’s attorney has informed
18 this Court that he has never had any contact with the petitioner, and that Lin’s prior attorney has
19 not spoken to him in approximately three years. In addition, an individual from Lin’s village in
20 China has told the attorney that “he heard from other villagers that Lin was terminally ill and had
21 returned to China not too long ago and died.” Aff. of Yee Ling Poon ¶ 5. When the possibility
31
1 of relief is “so remote and speculative that any decision on the merits . . . would amount to a
2 ‘declar[ation of] principles or rules of law which cannot affect the matter in issue in the case
3 before [us],’” United States v. Blackburn, 461 F.3d 259, 262 (2d Cir. 2006) (quoting Mills v.
4 Green, 159 U.S. 651, 653 (1895) (alterations in original)), we would run afoul of Article III were
5 we to decide the claim. Given that we do not retain jurisdiction over Lin’s claim if he has
6 returned to China and has provided no explanation to overcome the presumption that his asylum
7 application has been abandoned, see 8 C.F.R. § 1208.8, or if he is deceased, Lin’s petition is
8 dismissed as moot.
9 Petitioner Zou’s petition has been remanded by the BIA to the immigration court to
10 review its findings of adverse credibility and determine whether Zou qualifies as a refugee for
11 “resistance” to a coercive family planning policy. See In re Xian Zou, No. A77 322 295 (B.I.A.
12 Nov. 21, 2006). Accordingly, we no longer have jurisdiction over Zou’s petition. See 8 U.S.C.
13 § 1252(a)(1) (giving courts of appeals jurisdiction to review only final orders of removal).
14 CONCLUSION
15 For these reasons, the petition for review of Zhen Hua Dong is DENIED. The petitions
16 for review of Shi Liang Lin and Xian Zou are DISMISSED for lack of jurisdiction.
17
18
19
20
21
32
1
2
3
4
5
6
7
8
9
10
11
12
33
1 KATZMANN , Circuit Judge, with whom Judges Straub, Pooler, and Sotomayor join, concurring in
2 the judgment:
3 With the majority’s emphasis on denying asylum relief to legal spouses under
4 § 101(a)(42) of the Immigration and Nationality Act (the “INA”), it is easy to lose sight of one
5 fact central to the disposition of these cases: Not one of the petitioners in these consolidated
6 cases was married. In each case, it was the plaintiff’s girlfriend, not his wife, who was forced to
7 abort her pregnancy. It is thus unnecessary for us to resolve whether the BIA can legally extend
8 asylum relief to legal spouses; indeed, in doing so, we are addressing not only an issue not
9 presently before us, but also one that the parties in these cases do not even dispute. In their
10 briefs before us, both the petitioners and the Government agree that the statute is ambiguous.1
11 The question the parties dispute, and the only one that these cases require us to answer, is
12 whether the BIA’s interpretation of the statute as applied to boyfriends and fiancés is reasonable.
13 Every judge on this Court who reaches this issue agrees that it is.
14 Thus, this case could have been resolved simply and nearly unanimously by assuming the
15 reasonableness of the BIA’s construction of the statute as applied to legal spouses and then
16 holding that it was also reasonable as applied to boyfriends and fiancés. See Cai Luan Chen v.
1
The Department of Homeland Security (“DHS”) advanced a different view before the
BIA. The majority “assume[s] that the Solicitor General will take appropriate action to
recommend or assure that the views of DHS and this Court will be represented in any future
proceedings.” Maj. Op. at 23 n.11. In so doing, the majority ignores the historic independence
of the Office of the Solicitor General in determining the executive branch’s position before the
Supreme Court. When agencies of the executive branch have taken inconsistent positions, as
they have here, the Solicitor General may choose among those positions, or it may adopt any
other available litigation position. The Solicitor General has no obligation to endorse the
preferred legal theory of the court below. To the extent the majority attempts to influence the
position the Solicitor General will take in future proceedings, that effort is inappropriate.
34
1 Ashcroft, 381 F.3d 221, 227 (3d Cir. 2004) (Alito, J.) (assuming “for the sake of argument” that
2 “C–Y–Z–’s interpretation is permissible” as applied to legal spouses and then determining
3 whether the BIA was reasonable in distinguishing “between married and unmarried couples”).
4 Instead, the majority has gone out of its way to create a circuit split where none need exist, see
5 Maj. Op. at 5 n.4, thereby frustrating the BIA’s uniform enforcement of a national immigration
6 policy.2 Finding in textual silence an expression of unambiguous congressional intent, the
7 majority has rejected the BIA’s determination that § 101(a)(42) is ambiguous.
8 When a governmental body with substantial experience in interpreting a complex
9 statutory scheme concludes that a statute is ambiguous, that determination should give us pause.
10 Here, the fact that the BIA concluded that the INA is ambiguous with respect to the question we
11 are called upon to answer suggests that we would do well to probe further, to consider whether
12 the seemingly plain language belies a more complicated meaning. It suggests that we should
13 consider carefully not only the text of the statute, but also the context—both the events that gave
14 rise to that text and the various agency and judicial responses to it. Text without context can
15 lead to confusion and misunderstanding. The majority’s analysis is testament to that
16 proposition.3
2
In a related context, we remanded to the BIA to address the proper scope of the term
“refugee” in the first instance, noting that “it would be unsound for each of the several Courts of
Appeals to elaborate a potentially nonuniform body of law” and describing uniformity as
“especially desirable in cases such as these.” Jian Hui Shao v. BIA, 465 F.3d 497, 502 (2d Cir.
2006).
3
The majority finds my decision to engage in this analysis “perplex[ing]” given my belief
that we need not—and should not—answer today a question that this case does not require us to
answer and the proper resolution of which the parties do not dispute. Although I believe we
should have limited our decision to the BIA’s treatment of boyfriends, the majority has
35
1 In answering the first of the questions set out in Chevron, U.S.A., Inc. v. Natural
2 Resources Defense Council, 467 U.S. 837 (1984), that is, whether “the statute is silent or
3 ambiguous with respect to the specific issue,” id. at 843, we must look to the text of § 101(a)(42)
4 of the INA. That text provides, in pertinent part, that a refugee is
5 any person who is outside any country of such person’s nationality
6 . . . and who is unable or unwilling to return to . . . that country
7 because of persecution . . . on account of . . . political opinion . . . .
8 For purposes of determinations under this chapter, a person who has
9 been forced to abort a pregnancy or to undergo involuntary
10 sterilization . . . shall be deemed to have been persecuted on account
11 of political opinion . . . .
12
13 8 U.S.C. § 1101(a)(42). The majority focuses its textual analysis on the final sentence of that
14 provision, that is, § 601(a) of the Illegal Immigration Reform and Immigration Responsibility
15 Act of 1996 (“IIRIRA”), concluding that the BIA’s decision “rested on” that sentence, and not
16 the general definition of “refugee” in 8 U.S.C. § 1101(a)(42). Maj. Op. at 10. Yet, as the
17 majority notes, the BIA found that “‘[t]here is no clear or obvious answer to the scope of the
18 protections afforded by the amendment to partners of persons forced to submit to an abortion or
19 sterilization.’” Maj. Op. at 13.4 Reasoning that the “lack of . . . a reference” to spouses in the
nonetheless chosen to address its treatment of husbands. I would be remiss if I did not discuss
both why I believe the majority’s discussion of this issue is unnecessary and also why I believe it
is wrong.
4
Although we remanded to the BIA to “more precisely explain its rationale for
construing IIRIRA § 601(a)” to protect spouses, Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d
184, 187 (2d Cir. 2005), nothing in that decision precluded the BIA from looking to the more
general language in the statute in determining whether to extend relief to spouses. Indeed, the
BIA had the authority to interpret the meaning of 8 U.S.C. § 1101(a)(42) independent of our
remand in Lin. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“The Attorney General . .
. has vested the BIA with power to exercise the discretion and authority conferred upon the
Attorney General by law in the course of considering and determining cases before it. Based on
36
1 1996 amendment “does not necessarily preclude an applicant from demonstrating past
2 persecution based on harm inflicted on a spouse when both spouses are harmed by government
3 acts motivated by a couple’s shared protected characteristic,” the Board looked to the “general
4 principles regarding nexus and level of harm” for guidance. In re S–L–L–, 24 I. & N. Dec. 1, 5
5 (B.I.A. 2006); see also id. at 5 n.5 (citing to the general regulatory framework that defines when
6 an applicant may qualify as a refugee); id. at 6 (considering the “well-established principles
7 regarding nexus and level of harm for past persecution”).
8 Thus, although the majority places great emphasis on its view that the “language in §
9 601(a) . . . is unambiguous and . . . does not extend automatic refugee status to spouses or
10 unmarried partners of individuals § 601(a) expressly protects,” Maj. Op. at 4, I find the focus on
11 the amendment misplaced. I believe we must look instead to the entirety of 8 U.S.C.
12 § 1101(a)(42) to determine whether the statute is ambiguous. See SEC v. Chenery Corp., 332
13 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a determination or judgment which
14 an administrative agency alone is authorized to make, must judge the propriety of such action
15 solely by the grounds invoked by the agency.”).5 That section provides that a “refugee” is any
this allocation of authority, we [have] recognized . . . that the BIA should be accorded Chevron
deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-
case adjudication . . . .” (quotation marks and citation omitted)); see also Kuhali v. Reno, 266
F.3d 93, 102 (2d Cir. 2001) (granting “Chevron deference to the Board’s construction of the
INA, which it . . . administer[s]”).
5
Even if the BIA construed only the 1996 amendment, it would still be necessary to
consider the text of the entire statute and the context against which that amendment was enacted
to determine whether the 1996 amendment is itself ambiguous within the meaning of Chevron.
See Natural Res. Def. Council v. Abraham, 355 F.3d 179, 198 (2d Cir. 2004) (“In interpreting
the plain language of the statute, we must look to the particular statutory language at issue, as
well as the language and design of the statute as a whole, and, where appropriate, its legislative
37
1 individual who cannot return to his or her home country because of “persecution . . . on account
2 of . . . political opinion.” None of these terms is defined in any way, and none explicitly
3 addresses whether the spouses of those who have been forced to undergo an abortion or
4 sterilization are entitled to asylum relief.6 Hence, the statute, on its face, does not “directly
5 address[] the precise question at issue.” Chevron, 467 U.S. at 843; cf. Sun Wen Chen v. U.S.
6 Att’y Gen., No. 05-4011, 2007 WL 1760658, at *4 (3d Cir. June 20, 2007) (“[T]he C–Y–Z– rule
7 thus fleshes out an issue germane to the application of § 1101(a)(42)(B) that was not addressed
8 by Congress, and so poses no Chevron step one problem.”).
9 Indeed, the majority points to no language in the statute that explicitly denies asylum
10 relief to these spouses, or that precludes the BIA from extending it to them. Cf. 8 U.S.C. §
11 1101(a)(42) (explicitly precluding from the definition of “refugee” individuals “who ordered,
12 incited, assisted, or otherwise participated in the persecution of any person on account of race,
13 religion, nationality, membership in a particular social group, or political opinion”). Rather, the
14 majority takes the position that “Congress’s specific designation of some persons (i.e., those who
15 fear, resist, or undergo particular medical procedures) is incompatible with the view that others
16 (e.g., their spouses) should also be granted asylum per se because of birth control policies. The
history.” (quotation marks omitted)). Because I believe the BIA held that the entire provision
was ambiguous, it is not necessary to determine here whether the 1996 amendment alone is
ambiguous. Thus, contrary to Judge Calabresi’s suggestion, Judge Calabresi Op. at 16 n.6, I do
not necessarily agree that the BIA could not have relied on § 601(a) to provide asylum relief to
spouses.
6
I agree with Judge Calabresi that this “general language” in 8 U.S.C. § 1101(a)(42)
means that the BIA, with its expertise in this area, is particularly well-suited to exercise its
discretion and decide how that language should be interpreted. Judge Calabresi Op. at 8. Judge
Calabresi and I differ as to whether the BIA has already exercised that discretion.
38
1 inclusion of some obviously results in the exclusion of others.” Maj. Op. at 17-18. But where
2 the majority reads the language of the 1996 amendment and sees it as a limitation on the
3 availability of asylum relief, I see it, in the context in which it was enacted, as an expansion of
4 that relief.
5 I believe one question is fundamental: What was Congress’s purpose in enacting the 1996
6 amendment? Cf. Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 197 (2d Cir. 2005) (noting
7 the “canon of statutory construction that requires us to reconcile a statute’s plain language with
8 its purpose”). In answering that question, we should not limit our inquiry to the language of the
9 amendment; instead, we must look at the statutory scheme of which that amendment is a part and
10 the legislative activity that led to its enactment. Congress’s intent in enacting IIRIRA § 601(a)
11 was to clarify that, contrary to the BIA’s prior rulings, the imposition of some aspects of China’s
12 family planning policy can constitute persecution on the basis of political opinion, and that
13 certain victims of that persecution are entitled to protection under our asylum laws. Nothing in
14 the amendment suggests that Congress intended to prevent the BIA from extending relief to
15 victims other than those explicitly identified in the amendment. See Sun Wen Chen, 2007 WL
16 1760658, at *6 (“We are not convinced that Congress, in expanding asylum to include more
17 reproductive rights-based claims, intended to define the outer limits of relief in such cases.”).
18 There is thus some irony in the majority’s approach: By giving short shrift to context, it infers an
19 intent to limit the availability of asylum relief; had it looked more closely at context, it would
20 have recognized Congress’s intent was only to expand that relief.7 Context makes clear what
The majority’s recognition that § 601(a) expanded the availability of asylum relief does
7
nothing to explain why this language, which by its terms only expands relief, should also be read
39
1 text alone fails to convey.
2 The INA provides asylum relief to individuals who have been “persecut[ed] . . . on
3 account of . . . political opinion,” but does not define those terms. In Matter of Chang, 20 I. &
4 N. Dec. 38 (B.I.A. 1989), the BIA held that whatever else “persecution” might mean, it did not
5 encompass any retribution visited upon individuals who violated China’s “one couple, one child”
6 policy. The BIA ruled that the policy “is [not] on its face persecutive” and does not “persecut[e]
7 any portion of the Chinese citizenry on account of one of the reasons enumerated in section
8 101(a)(42)(A) of the Act.” Id. at 43, 44.
9 Others in the executive branch took a different view. The next year, the Department of
10 Justice issued “interpretative rules and general statements of policy for establishing statutory
11 eligibility for asylum or withholding of deportation on the basis of political opinion for aliens
12 who express a fear of coercive population control policies in their homeland.” Refugee Status,
13 Withholding of Deportation and Asylum; Burden of Proof, 55 Fed. Reg. 2803, 2804 (Jan. 29,
14 1990).8 President George H.W. Bush reaffirmed his Administration’s support of the interim rule
to have limited the BIA’s preexisting authority to further expand it. Although the majority
suggests that I rely on “messages [I] hear[] in the sounds of Congressional silence,” Maj. Op. at
26 n.12, all that I actually find in silence, especially given the context, is ambiguity. See
Chevron, 467 U.S. at 843 (noting that we turn to Chevron step two “if the statute is silent or
ambiguous with respect to the specific issue”); see also Sun Wen Chen, 2007 WL 1760658, at *3
(“Chevron deference embodies the judgment that agencies, rather than courts, ought to serve as
gap-fillers in situations of statutory silence.”). It is the majority that appears to find in silence
clear evidence of Congress’s intent.
8
These amendments to the asylum regulations appear to contemplate the possibility that
asylum relief would be available to the spouses of those who were subject to forced abortion or
sterilization. See Refugee Status, 55 Fed. Reg. at 2805 (to be codified at C.F.R. § 208.5(b)(2))
(“An applicant who establishes that the applicant (or applicant’s spouse) has refused to abort a
pregnancy or to be sterilized in violation of a country’s family planning policy, and who has a
40
1 with the promulgation of Executive Order 12,711, which provided for “enhanced consideration
2 under the immigration laws for individuals from any country who express a fear of persecution
3 upon return to their country related to that country’s policy of forced abortion or coerced
4 sterilization.” Exec. Order No. 12,711, 55 Fed. Reg. 13,897, 13,897 (Apr. 11, 1990).
5 Although the INS, in July 1990, set forth a final rule that did not address this issue, see
6 Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed. Reg.
7 30,674 (July 27, 1990), the Office of the General Counsel of the INS subsequently sent a letter to
8 Regional and District Counsel stating that “Department of Justice and INS ‘policy with respect
9 to aliens claiming asylum or withholding of deportation based upon coercive family planning
10 policies is that the application of such coercive policies does constitute persecution on account of
11 political opinion.’” Xin-Chang Zhang v. Slattery, 55 F.3d 732, 740 (2d Cir. 1995), superseded
12 by 8 U.S.C. § 1101(a)(42) (quoting INS letter to Regional and District Counsel).
13 In January 1993, Attorney General William P. Barr signed a final rule that would have
14 made this view law. It provided, in pertinent part, that “[a]n applicant (and the applicant’s
15 spouse, if also an applicant) shall be found to be a refugee on the basis of past persecution on
16 account of political opinion if the applicant establishes that, pursuant to the implementation . . .
17 of a family planning policy . . . the applicant has been forced to abort a pregnancy or to undergo
18 sterilization or has been persecuted for failure or refusal to do so.” AG Order No. 1659-93, at 14
well-founded fear that he or she will be required to abort the pregnancy or to be sterilized or
otherwise persecuted if the applicant were returned to such country may be granted asylum.”);
see also id. (to be codified at C.F.R. § 242.17(c)) (“Eligibility for withholding of deportation on
account of political opinion is established by the respondent who establishes that he or she (or
respondent’s spouse) will be required to abort a pregnancy or to be
sterilized . . . .”).
41
1 (Jan. 15, 1993) (to be codified at 8 C.F.R. 208) (“January 1993 Rule”). Although this rule was
2 sent to the Federal Register, where it was made available for public inspection and scheduled for
3 publication, it was never published due to the change in presidential administrations. Xin-Chang
4 Zhang, 55 F.3d at 741. In February, additional regulations pertaining to asylum were published,
5 but these made no mention of the January rule. Id.6 Against the background of these conflicting BIA decisions and administrative
7 regulations,
8 we were asked to determine whether asylum relief was available to victims of China’s family
9 planning policy. We held that such relief was not available, explaining that “[e]ven were we to
10 accept [the] view that the ‘administrative cacophony’ surrounding the issue justified diminished
11 deference to Chang, our result would not change. It is difficult to frame a result different from
12 the holding of Chang that would be ‘reasonable’ under both Elias-Zacarias and the existing
13 immigration laws.” Id. at 752; see also INS v. Elias-Zacarias, 502 U.S. 478 (1992). We did not
14 stop there, however. Instead, we called upon Congress and the President to determine whether
15 relief should be available to the victims of China’s family planning policy: “No doubt, the
16 President and the Congress acting together have power to create an exception to the existing
17 immigration laws for PRC citizens . . . .” Id.18 The next year, Congress enacted IIRIRA § 601(a). The House Committee Report
19 explained that Congress’s “primary intent” in amending the definition of refugee was “to
20 overturn several decisions of the [BIA], principally Matter of Chang and Matter of G–,” H.R.
21 Rep. No. 104-469(I), 1996 WL 168955, at *173 (1996), in which the BIA had held that “the
42
1 Chinese Government’s implementation of its family planning policies is not on its face
2 persecutive and does not by itself create a well-founded fear of persecution on account of one of
3 the five grounds delineated in the Act, even to the extent that involuntary sterilization may
4 occur,” Matter of G-, 20 I. & N. Dec. 764, 778 (B.I.A. 1993); Matter of Chang, 20 I. & N. Dec.
5 at 43-44; see also Junshao Zhang v. Gonzales, 434 F.3d 993, 995 (7th Cir. 2006) (“The impact
6 of that amendment was to overrule Chang, and allow for the granting of asylum applications in
7 cases in which the claim of persecution stemmed from the enforcement of China’s coercive
8 population control policies.”); H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174 (criticizing
9 the BIA decisions for “effectively preclud[ing] from protection persons who have been
10 submitted to undeniable and grotesque violations of fundamental human rights”); id. (noting that
11 “the BIA’s rationale for these opinions—that policies of coercive family planning are ‘laws of
12 general application’ motivated by concerns over population growth, and thus are not
13 ‘persecutory’—is unduly restrictive”).9
14 When Congress stated that “[f]or purposes of determinations under this [Act], a person
15 who has been forced to abort a pregnancy or to undergo involuntary sterilization . . . shall be
16 deemed to have been persecuted on account of political opinion,” 8 U.S.C. § 1101(a)(42)(a), it
17 was not providing an exhaustive list of those who could claim asylum relief because they were
9
As previously noted, Attorney General Barr had attempted to “supersede the [BIA]
decision in Matter of Chang,” January 1993 Rule, at 4-5, but his efforts fell victim to a change in
presidential administrations. See Xin-Chang Zhang, 55 F.3d at 741. Noting that the next
administration had thus far failed to take action, Congress stepped in to accomplish the same
goal through legislation. See H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174 (“[T]he
Administration, which has the authority to overrule the BIA decisions through regulation or
through decision of the Attorney General, has not done so. Nor has it offered adequate relief to
persons who have undergone such coercion.”).
43
1 victimized by China’s family planning policy. Rather, it was expressing a congressional
2 determination that, contrary to the BIA’s prior rulings, China’s “one couple, one child” policy is
3 on its face persecutory, and victims of that policy who experienced persecution should be able to
4 qualify for asylum relief without making an additional showing of their own political opinion.
5 The majority takes the position that § 601(a) does not “alter the pre-IIRIRA definition of
6 ‘political opinion’ in § 1101(a)(42)” and that, for the individuals identified in § 601(a), “their
7 political opinion exists de jure rather than as a matter of fact on which the applicant bears the
8 burden of proof.” Maj. Op. at 18, 19. It notes, in this regard, that the amendment provides that
9 those who have been subjected to forced procedures “‘shall be deemed’ persecuted by reason of
10 political opinion,” Maj. Op. at 18-19, and that “[t]o ‘deem’ is ‘[t]o treat (something) as if (1) it
11 were really something else, or (2) it has qualities that it doesn’t have,’” Maj. Op. at 18-19 n.9
12 (quoting Black’s Law Dictionary 446 (8th ed. 2004)). But, as the majority acknowledges, there
13 is more than one definition of the word “deem”; it may also mean “[t]o consider, think, or
14 judge.” Black’s Law Dictionary 446 (8th ed. 2004). Thus, in this context, Congress’s use of the
15 word “deemed” may mean that these individuals should be “judged” as having been persecuted
16 on account of political opinion, just as the proposed 1993 rule provided that these applicants
17 “shall be found to be . . . refugee[s] on the basis of past persecution on account of political
18 opinion.” January 1993 Rule, at 14.10 Indeed, the legislative history suggests that Congress was
10
That two definitions of the term exist suggests, at the very least, that there is ambiguity
in Congress’s use of the term, and the fact that Black’s Law Dictionary may favor one definition
is hardly sufficient to dispel that ambiguity. Indeed, although Black’s Law Dictionary may
describe the majority’s preferred usage as the more “traditional[]” one and may discourage other
uses, the word “deem” has long been used to mean “consider, think, or judge.” See, e.g., U.S.
Const. art. V (“The Congress, whenever two thirds of both Houses shall deem it necessary, shall
44
1 not attempting to create an exception to Matter of Chang, but to overrule it; and if Congress were
2 attempting to carve out an exception to the normal requirement that applicants must establish
3 that they have faced persecution on account of one of the protected grounds, it could have done
4 so in much plainer language. In any event, the statute is, at a minimum, ambiguous, and it is the
5 BIA, not the courts, that is charged with construing the statute in the face of that ambiguity.
6 Other circuits to have considered this issue have held that when Congress enacted the
7 1996 amendment it intended to protect both members of couples that are targeted under China’s
8 family planning policy. See, e.g., Junshao Zhang, 434 F.3d at 999 (“Congress passed §
9 601(a)(1) of the IIRIRA to ensure that families who are victims of forced abortion and
10 sterilization under China’s population control policy would receive asylum . . . .” (emphasis
11 added)); Kui Rong Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir. 2004) (identifying “Congress’s
12 goal in passing the amendments—to provide relief for ‘couples’ persecuted on account of an
propose Amendments to this Constitution . . . .” (emphasis added)); 15 U.S.C. § 80b-3(j) (“The
Commission is authorized to adopt rules, regulations, and orders . . . as it deems appropriate to
implement this subsection.” (emphasis added)).
Indeed, Congress has repeatedly used the term “deem” in the INA itself to mean
“consider, think, or judge.” See, e.g., 8 U.S.C. § 1101(a)(27)(J)(i) (defining the term “special
immigrant” to include “an immigrant who is present in the United States . . . who has been
declared dependent on a juvenile court located in the United States or whom such a court has
legally committed to, or placed under the custody of, an agency or department of a State and who
has been deemed eligible by that court for long-term foster care due to abuse, neglect, or
abandonment” (emphasis added)); id. § 1103(a)(3) (providing that the Secretary of Homeland
Security may “perform such other acts as he deems necessary for carrying out his authority under
the provisions of this chapter” (emphasis added)). A “normal rule of statutory construction”
provides that “identical words used in different parts of the same act are intended to have the
same meaning.” Beharry v. Ashcroft, 329 F.3d 51, 61 (2d Cir. 2003) (quoting Gustafson v.
Alloyd Co., 513 U.S. 561, 570 (1995) (quotation marks omitted)). Even if this rule does not
conclusively resolve any ambiguity created by the existence of the two definitions, Congress’s
use of the allegedly disfavored definition elsewhere in the INA renders the meaning of “deemed”
in § 1101(a)(42), at the very least, ambiguous.
45
1 ‘unauthorized’ pregnancy and to keep families together” (emphasis added)). We need not go as
2 far as these courts to affirm the BIA’s decision here. Even if Congress did not specifically
3 intend to protect “couples,” there is nothing in the text of the amendment, or the context that
4 gave rise to it, that indicates that it intended to preclude the BIA from extending asylum relief to
5 both members of a couple. See Sun Wen Chen, 2007 WL 1760658, at *5 (granting Chevron
6 deference to the BIA’s interpretation in In re S–L–L–).11
7 Just as nothing in the language or history of the amendment indicates a congressional
8 intent to foreclose the extension of relief to spouses, Congress has done nothing to indicate such
9 an intent in the years since the amendment’s enactment, notwithstanding that the BIA interpreted
10 § 1101(a)(42) to cover spouses a decade ago and numerous courts of appeals have upheld this
11 interpretation as reasonable. See, e.g., Yuan, 416 F.3d at 197; Junshao Zhang, 434 F.3d at 999;
12 Kui Rong Ma, 361 F.3d at 559 (“The BIA and the courts have uniformly applied the statute’s
11
Although “[g]eneral language of a statutory provision . . . will not be held to apply to a
matter specifically dealt with in another part of the same enactment,” D. Ginsberg & Sons, Inc. v.
Popkin, 285 U.S. 204, 208 (1932), that rule has no applicability here where the specific provision
does not address whether spouses should be entitled to relief. In the 1996 amendment, Congress
identified a particular category of individuals entitled to relief, but left to the BIA the task of
determining whether to expand upon that relief, just as the BIA routinely defines what
individuals are entitled to asylum relief in a myriad of other contexts.
Indeed, there is some language in the legislative history which suggests that Congress
may have considered the possibility that individuals other than those who had been forced to
undergo an abortion or sterilization might qualify for asylum. The House Committee Report on
the amendment noted that “[d]etermining . . . whether the actual or threatened harm rises to the
level of persecution is a difficult and complex task, but no more so in the case of claims based on
coercive family planning than in cases based on other factual situations. Asylum officers and
immigration judges are capable of making such judgments.” H.R. Rep. No. 104-469(I), 1996
WL 168955, at *174. If only those subjected to the procedures could claim asylum relief,
immigration judges and the BIA would never have needed to consider whether an applicant’s
harm rises to the level of persecution, given that the amendment explicitly provides that a forced
abortion or sterilization does rise to this level.
46
1 protections to husbands whose wives have undergone abortions or sterilization procedures, as
2 well as to the wives themselves.”); In re C–Y–Z–, 21 I. & N. Dec. 915, 918-19 (B.I.A. 1997) (en
3 banc). There are obscure areas of public policy, largely hidden from public attention and
4 concern, in which it makes little sense to ascribe meaning to the absence of congressional
5 response to administrative and judicial interpretations of a statute. Immigration is hardly one of
6 those areas. To the contrary, immigration—and the issue of the appropriate scope of asylum
7 relief—have consistently been on Congress’s radar. Immigration is frequently in the news, and
8 Congress has repeatedly legislated in this area. Indeed, as recently as 2005, Congress revisited
9 this very provision and removed the annual cap on the number of asylees who could be admitted
10 under it. See REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, §§ 101(g)(2), (h)(5), 119 Stat.
11 231, 305-06 (May 11, 2005). While the fact that Congress, in the course of its active attention to
12 immigration issues and legislation, has not amended 8 U.S.C. § 1101(a)(42) in light of the
13 interpretation it has been given by the BIA and the courts does not definitively mean that
14 Congress intended to protect spouses, it does suggest, at the very least, that it was not Congress’s
15 intent to foreclose that relief.
16 The majority nonetheless holds that it was “not correct” for the BIA to construe the
17 general definition of “refugee” to allow for the provision of this relief because “the statutory
18 scheme unambiguously dictates that applicants can become candidates for asylum relief only
19 based on persecution that they themselves have suffered or must suffer.” Maj. Op. at 19. I agree
20 that an individual must have personally experienced persecution to be entitled to asylum relief,
21 but that statement begs the question of what constitutes persecution.
47
1 The statute does not, in either the 1996 amendment or in its general definition of the term
2 “refugee,” prescribe exactly how much harm or what kind of harm an individual must experience
3 to have been “persecuted” within the meaning of the statute. See Ivanishvili v. U.S. Dep’t of
4 Justice, 433 F.3d 332, 340 (2d Cir. 2006) (noting that the term “persecution” is “not defined by
5 the Immigration and Nationality Act”); see also Matter of Acosta, 19 I. & N. Dec. 211, 222
6 (B.I.A. 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A.
7 1987) (defining persecution as “either a threat to the life or freedom of, or the infliction of
8 suffering or harm upon, those who differ in a way regarded as offensive” (emphasis added)); see
9 also Ivanishvili, 433 F.3d at 341 (acknowledging the BIA’s definition of “persecution” as “the
10 infliction of suffering or harm upon those who differ on the basis of a protected statutory
11 ground.”). The 1996 amendment states that when one is forced to undergo an abortion or
12 sterilization, the harm thereby experienced is sufficient to qualify for asylum, but it hardly makes
13 that level of harm necessary.
14 The majority may view the 1996 amendment as providing that only individuals who have
15 undergone a forced abortion or sterilization have experienced “persecution.” If so, we again
16 differ on our interpretation of the significance of the 1996 amendment. I believe Congress
17 enacted the 1996 amendment not primarily to define the term “persecution,” but to clarify what it
18 means to be persecuted “on account of political opinion.” As noted above, Congress sought to
19 make clear, contrary to the BIA’s earlier decision in Matter of Chang, that the imposition of
20 penalties through the implementation of China’s family planning policy can constitute
21 persecution “on account of political opinion” by effectively adopting the position taken in the
48
1 commentary to the 1993 rule that, “[a]lthough . . . prosecution and punishment under a law of
2 general applicability will not ordinarily constitute persecution ‘on account of’ one of the
3 statutory grounds, . . . [p]ersecution on account of political opinion encompasses persecution of
4 people whose violation of laws may not be motivated by their political opinions but is regarded
5 by the state as political disloyalty.” January 1993 Rule, at 8.
6 Thus, I do not think that § 601(a) unambiguously defines the term persecution, and the
7 majority has pointed to nothing in the statute that suggests that the emotional and psychological
8 harm one suffers when one’s spouse is forced to undergo an abortion or sterilization is not severe
9 enough to constitute persecution. Nor does anything in the statute preclude the BIA from
10 considering the effect that China’s family planning policies may have on a couple’s shared right
11 to reproduce and raise children. Because Congress did not specifically address these issues, the
12 statute is ambiguous. It therefore falls to the BIA to determine whether the harm an individual
13 experiences when his or her spouse is subjected to a forced abortion or sterilization is sufficient
14 to constitute persecution. See, e.g., Kuhali, 266 F.3d at 102 (granting “Chevron deference to the
15 Board’s construction of the INA, which it . . . administer[s]”); cf. Sun Wen Chen, 2007 WL
16 1760658, at *5 (noting that the BIA “exercised its delegated gap-filling authority reasonably”
17 when it recognized the harms an individual experiences as a result of the forced abortion or
18 sterilization of his spouse). By holding that persecution cannot encompass such individuals, the
19 majority, as Judge Sotomayor cogently explains, usurps the BIA’s task of giving meaning to
20 ambiguous statutory terms. Further, by suggesting that the BIA is creating a presumption which
21 allows individuals to be granted asylum without proving that they were “persecuted . . . on
49
1 account of political opinion,” the majority errs. The BIA here created no presumption; rather,
2 fulfilling a basic responsibility, it simply discerned the meaning of those ambiguous terms.12
3 Finally, the majority finds support for its reading of the statute in its perception that there
4 is some tension between this rule and the provision of derivative asylum status for spouses of
5 individuals who qualify as “refugees.” Maj. Op. at 26-28. But in adopting this rule, the BIA
6 provided a basis by which individuals could claim asylum relief in their own right for harm they
7 suffered as a result of their spouses’ forced abortion or sterilization. There is no apparent tension
8 in providing derivative asylum status to spouses who have not themselves suffered any harm and
9 providing an additional basis of relief to those spouses who have, that is, those who have
10 themselves suffered harm when their partners were subjected to a forced abortion or sterilization.
11 See 8 U.S.C. § 1158(b)(3)(A) (providing derivative asylum to spouses who are “not otherwise
12 eligible for asylum under this section”); cf. Junshao Zhang, 434 F.3d at 1001 (noting that “it
13 would be particularly perverse for courts to treat a subsequent break-up of the marriage as
14 somehow lessening the impact of [the prior] persecution [of the husband]”). Because there is no
15 tension in providing these two separate, distinct forms of relief, it does not seem to me that the
16 availability of derivative asylum relief unambiguously precludes the BIA from providing an
12
The majority’s assertion that § 601 “relieve[s] . . . persons who actually experienced a
forcible abortion or sterilization from the burden of proving a political nexus” is similarly
problematic. Maj. Op. at 21. In my view, Congress did not relieve anyone of the burden of
proving political nexus. Rather, it determined that an applicant can meet this burden by
establishing proof of persecution pursuant to a coercive family planning policy. Given the
majority’s agreement that any asylum applicant may “rely[] on evidence of a forced abortion or
sterilization—whether personal or spousal—in attempting to demonstrate persecution based on
political opinion,” Maj. Op. at 21 (emphasis added), I fail to see what additional evidence an
applicant whose spouse was subjected to a forced abortion or sterilization would have to show to
carry his burden of proving political nexus.
50
1 additional basis of relief to those whose spouses have been subjected to a forced abortion or
2 sterilization. See Sun Wen Chen, 2007 WL 1760658, at *4 (“We . . . do not believe that the
3 existence of derivative asylum status under a statute implies that Congress intended to foreclose
4 additional pathways to asylum specific to spouses.”).
5 At bottom, the majority seems to be motivated by a concern that the BIA’s rule will “gut
6 or . . . undermine” the availability of derivative asylum relief or have “the perverse effect of
7 creating incentives for husbands to leave their wives.” Maj. Op. at 28, 27. But nothing in the
8 BIA’s rule denies relief of any kind to husbands who come to this country with their wives;
9 moreover I think it very likely that husbands will find it advantageous to come with their wives
10 when possible because doing so will buttress the credibility of their claims. In the end, however,
11 my views of the policy consequences of the BIA rule are immaterial; so, too, are those of the
12 majority. Once we determine that the statute is ambiguous, we must defer to the BIA’s
13 interpretation of the statute if it is reasonable, whatever our own personal policy preferences.
14 See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965) (“To sustain the Commission’s application of
15 this statutory term, we need not find that its construction is the only reasonable one, or even that
16 it is the result we would have reached had the question arisen in the first instance in judicial
17 proceedings.” (quotation marks omitted)).
18 In considering the reasonableness of the BIA’s interpretation under step two of Chevron,
19 our charge is not to determine whether the BIA’s interpretation of the statute is the one we would
20 have adopted in the first instance. Instead, “the question for the court is whether the agency’s
21 answer is based on a permissible construction of the statute”; we must defer to “legislative
51
1 regulations . . . unless they are arbitrary, capricious, or manifestly contrary to the statute.”
2 Chevron, 467 U.S. at 843, 844. Here, in determining whether to extend asylum relief to spouses,
3 the BIA reasonably considered the general principles underlying the definition of persecution
4 and concluded that a husband is persecuted “when the government forces an abortion on a
5 married couple.” In re S–L–L–, 24 I. & N. Dec. at 6; see also id. (“When the government
6 intervenes in the private affairs of a married couple to force an abortion or sterilization, it
7 persecutes the married couple as an entity.”). I see no reason why the BIA could not reasonably
8 conclude that one has suffered harm or injury sufficiently severe to constitute persecution when
9 one’s spouse is forced to undergo an abortion or sterilization. Indeed, this determination finds
10 support in the decisions of a number of courts that have explicitly recognized that non-physical
11 harm may support a finding of past persecution in at least some circumstances. See Junshao
12 Zhang, 434 F.3d at 1001 (rejecting explicitly the “notion that [a husband] suffers no persecution
13 independent of his wife, as the result of the forcible abortion of his child” and holding that
14 “[a]lthough his wife was certainly a very direct victim of China’s population control measures,
15 Zhang was a victim as well. The forcible abortion has deprived him of his unborn child, of the
16 ability to realize the family that his wife and he had desired, and forever deprived him of the
17 ability to become a parent to that unborn son or daughter with his wife”); see also Ouk v.
18 Gonzales, 464 F.3d 108, 111 (1st Cir. 2006) (noting that “[u]nder the right set of circumstances,
19 a finding of past persecution might rest on a showing of psychological harm” (quotation marks
20 omitted)); Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) (“Persecution may be
21 emotional or psychological, as well as physical.”); Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir.
52
1 2004) (holding that the applicant was entitled to asylum “based on her fear that her daughter will
2 be forced to undergo female genital mutilation” because her “fear of . . . being forced to witness
3 the pain and suffering of her daughter is well-founded”).
4 The BIA also determined that there were not “convincing reasons to extend the nexus and
5 level of harm attributed to a husband who was opposed to his wife’s forced abortion to a
6 boyfriend or fiancé.” In re S–L–L–, 24 I. & N. Dec. at 9.13 Recognizing that “marriage place[s]
7 the husband in a distinctly different position from that of an unmarried father,” id., the BIA noted
8 that unmarried fathers do not bear the same legal and societal responsibility for violations of
9 family planning policies. Indeed, because their relationships with their partners are not
10 registered with the government and may not even be known within the community, the
11 government may often be unaware of their identities. See id. at 9-10. The BIA thus presumed
12 that the family planning officials target legal spouses for persecution to a greater extent than
13 boyfriends and fiancés. See id. Furthermore, “[p]roof or presumption of paternity . . . may be
14 considerably more difficult when a boyfriend claims to have fathered a child who was forcibly
15 aborted by government officials.” Id. at 10. Although, as the BIA itself acknowledges,
16 “drawing the line at marriage is not” perfect, id. at 9, and reasonable policymakers could differ
17 as to how to draw the line, I cannot say that, under the deferential standard which guides us, the
13
Because petitioner Dong, the only petitioner whose claim we address on this appeal,
had not participated in a traditional marriage ceremony, I need not determine now whether the
BIA’s rule would also be reasonable as applied to individuals who were not old enough to marry
under Chinese law and who participated in such a ceremony. Compare Junshao Zhang, 434
F.3d at 999 (holding that the BIA rule is unreasonable in this context), and Kui Rong Ma, 361
F.3d at 560 (same), with Cai Luan Chen, 381 F.3d at 231 (holding that the BIA rule is
reasonable).
53
1 BIA’s reading is not based on a permissible construction of the statute. See Chevron, 467 U.S. at
2 843.14 If Congress disagrees with the BIA’s interpretation, it can overturn the decision.15
3 This case presents difficult and challenging questions at the heart of our immigration
4 laws. How we respond will affect the hopes and dreams of human beings seeking to live in
5 freedom. In enacting the INA, Congress established a framework for determining when asylum
6 relief should be provided to such individuals, and in doing so, it delegated considerable authority
7 to the BIA to fill in statutory gaps and define the broad language used in the INA. It is in
8 situations such as these that we should be particularly mindful of the views of the agency
9 charged by Congress with administering the statute, views that will reflect the agency’s
10 considerable experience and expertise. We should recognize that in such circumstances what is
11 advanced as the obvious answer may not be the right one. Here, the meaning of the text
12 becomes much less clear when one examines context, and the BIA, recognizing that ambiguity,
13 has offered a reasonable interpretation of the statute. I would defer to that interpretation.
14
Because petitioner Dong was not married and has not otherwise established his
eligibility for asylum relief, I agree with the majority that his petition for review should be
denied. I also agree that the petitions of Lin and Zou should be dismissed.
15
The BIA, too, remains free to revisit its decision. Although Judge Calabresi suggests
that my approach “preclude[s] the agency from thinking deeply and fully about the matter,”
Judge Calabresi Op. at 16, I do not understand why this would be so. Unlike the majority, I do
not purport to offer an authoritative constructive of 8 U.S.C. § 1101(a)(42); I would hold only
that the statute is ambiguous and that the BIA’s interpretation is reasonable. As Judge Calabresi
elsewhere acknowledges, id. at 2, the BIA may always change its own interpretation of statutory
law, so long as the change is not inconsistent with that law. See, e.g., Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005) (“For if the agency adequately
explains the reasons for a reversal of policy, change is not invalidating, since the whole point of
Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing
agency.” (quotation marks omitted)).
54
1 SOTOMAYOR, Circuit Judge, with whom Judge POOLER joins, concurring in the judgment:
2 Today’s decision marks an extraordinary and unwarranted departure from our
3 longstanding principles of deference and judicial restraint. Instead of answering the limited
4 question before us – whether the BIA’s denial of asylum to the unmarried partners of women
5 forced to undergo abortions or sterilization was unreasonable – the majority has chosen to go far
6 beyond it to address an issue that is unbriefed, unargued, and unnecessary to resolve this appeal.
7 Indeed, the cases before us, which involve only unmarried petitioners, are inappropriate vehicles
8 through which to opine on the merits of the BIA’s position with respect to spouses under
9 8 U.S.C. § 1101(a)(42).1 See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)
10 (“The premise of our adversarial system is that appellate courts do not sit as self-directed boards
11 of legal inquiry and research, but essentially as arbiters of legal questions presented and argued
12 by the parties before them.”); see also Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 224 (1997)
13 (declining to reach question which received little or no attention from the parties and noting
14 “prudence dictates that we not decide this question based on such scant argumentation”).
15 Moreover, as Judge Katzmann’s concurrence, in which I fully join, cogently notes, today’s
16 holding simply ignores the context animating § 601’s enactment and further upends
1
The majority claims to be perplexed by my concern that today’s decision reaches a
question it need not, particularly because, the majority reasons, all judges – including myself –
who agreed to hear these cases en banc joined an order instructing “the parties to address the
BIA’s interpretation of § 601 as it related to both spouses and non-married partners.” Maj. Op.
at 13 n.6. My concern, however, is not a quibble over the semantics of the en banc order, but
rather the majority’s unnecessary but apparently pressing need to decide a question which the
facts of petitioners’ appeals simply do not present. Like Judge Katzmann, I engage the question
the majority answers because I would be remiss in not voicing my profound disagreement with
the majority’s conclusions.
55
1 congressional intent by reading the statute too narrowly. Section 601 was, after all, expressly
2 enacted to expand, not contract, the availability of asylum under § 1101(a)(42) in the context of
3 coercive population control programs.
4 I will not reiterate what Judge Katzmann has already ably stated. I write separately to
5 highlight the potentially ill-considered breadth of the majority opinion, which appears to cast
6 doubt on our own circuit’s caselaw, as well as to create further circuit conflicts when such
7 outcomes are easily avoided. Most importantly, however, I write because the majority’s zeal in
8 reaching a question not before us requires the unprecedented step of constricting the BIA’s
9 congressionally delegated powers – a decision whose ramifications we are ill-prepared, given the
10 procedural posture of this case, to understand or appreciate fully.
11 The majority analyzes § 601 within the broader framework of the INA and concludes that
12 “[n]othing in the general definition of refugee would permit ‘any person’ who has not personally
13 experienced persecution or a well-founded fear of future persecution . . . to obtain asylum.” Maj.
14 Op. at 17. Again, I agree fully with Judge Katzmann’s discussion of the fatal flaws in this
15 analysis, and I seek only to emphasize the majority’s apparent failure to appreciate that this
16 deceptively simple proposition may unduly and inappropriately limit the BIA not merely in cases
17 under § 601 but in others as well.
18 In coming to its conclusion, the majority endorses the view that “persecution” can only
19 be direct and personal, by which it appears to mean that the granting of asylum can never be
20 based on, in whole or in part, harm to others, no matter how closely related the harm or the
21 person harmed is to the applicant or whether harm to another is directed in whole or in part
56
1 toward the applicant.2 The majority tries to anchor this limiting principle to the text of the
2 statute, but such a reading is unwarranted and unsupportable. It is pellucidly clear from the text
3 of § 1101(a)(42) that Congress did not define nor intend to define “persecution” to exclude
4 harms “not personally” suffered by an applicant. The statute instead reads that “any person”
5 who “because of persecution or a well-founded fear of persecution” is “unable or unwilling” to
6 return to his or her country is entitled to asylum. There is no indication whatsoever of how
7 personal or direct the harm or injury must be, only that persecution to an individual can merit
8 asylum protection.3 We should, moreover, eschew the limiting construction of § 601 and
9 § 1101(a)(42) urged in today’s opinion because such a construction could lead to absurd results.
10 United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000) (“A statute should be interpreted in a
11 way that avoids absurd results.”). If government officials shot and killed an asylum applicant’s
12 child to force him or her to convert to another religion, would that harm, which the majority
13 would ostensibly label “not personal,” be insufficient in itself to demonstrate persecution of that
14 applicant? Or what if the parent of an adult applicant was kidnapped and tortured to force the
15 applicant to renounce an opposition political party or endorse a government candidate? In the
16 end, I see no unambiguous language in the text of § 1101(a)(42) that compels the limiting
17 construction of the INA that the majority now divines.
2
In another portion of the majority opinion, the Court states “we conclude that the statutory
scheme unambiguously dictates that applicants can become candidates for asylum relief only
based on persecution that they themselves have suffered or must suffer.” Maj. Op. at 19. By this
pronouncement, the opinion suggests that harm to others cannot form a part of the rationale for
granting asylum.
3
I further agree with Judge Katzmann’s analysis of the majority’s misplaced reliance on 8
U.S.C. § 1158 to support its conclusion here.
57
1 Requiring an applicant’s eligibility for asylum to rest only on instances where he or she
2 suffers persecution “personally” merely begs the question of what personal harm is and how to
3 define it. As with any ambiguous statutory term, it is for the BIA to determine within its
4 expertise what exactly constitutes “persecution” so long as its interpretation is reasonable.4
5 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). From its
6 decision in In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A. 2006), the BIA clearly construed
7 “persecution” as not only entailing the spouse forced to undergo the procedure but also including
8 the other spouse who, while physically unharmed, was nevertheless also targeted by the
9 government for punishment and persecution. The BIA reached this conclusion by utilizing its
10 traditional tests of nexus and level of harm, id. at 5, that is, by examining how the procedure
11 affected each spouse’s respective health and emotional well-being as well as the couple’s interest
12 in procreation and child-rearing. Perhaps most importantly of all, the BIA also considered to
13 whom the government’s actions were directed.
14 It is this last factor that is crucial. The majority concedes that both spouses suffer a
15 “profound emotional loss” as a result of a forced abortion or sterilization, but it never sufficiently
16 explains why the harm of sterilization or abortion constitutes persecution only for the person
17 who is forced to undergo such a procedure and not for that person’s spouse as well. Maj. Op. at
18 21. This conclusion rests on two principal conclusions, both equally flawed. First, the majority
4
I note that this and other circuits have found “persecution” to be an ambiguous term in other
asylum cases. See, e.g., Mirzoyan v. Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (per curiam)
(finding that the INA does not “unambiguously explain[] what the word ‘persecution’ means” in
the economic context); Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir. 2004) (per curiam)
(“The BIA is entitled to deference in interpreting ambiguous statutory terms such as
‘persecution.’”); cf. Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (noting that the INA “does
not define ‘persecution’ or specify what acts constitute persecution”).
58
1 clings to the notion that the persecution suffered is physically visited upon only one spouse, but
2 this simply ignores the question of whom exactly the government was seeking to persecute when
3 it acted. On this point, the harm is clearly directed at the couple who dared to continue an
4 unauthorized pregnancy in hopes of enlarging the family unit. Indeed, the majority’s conclusion
5 disregards the immutable fact that a desired pregnancy in a country with a coercive population
6 control program necessarily requires both spouses to occur, and that the state’s interference with
7 this fundamental right “may have subtle, farreaching and devastating effects” for both husband
8 and wife. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). The
9 termination of a wanted pregnancy under a coercive population control program can only be
10 devastating to any couple, akin, no doubt, to the killing of a child. Similarly, as to sterilization,
11 the Ninth Circuit has aptly observed that:
12 In addition to the physical and psychological trauma that is common to many
13 forms of persecution, sterilization involves drastic and emotionally painful
14 consequences that are unending: The couple is forever denied a pro-creative life
15 together. As the BIA explained,
16
17 The act of forced sterilization should not be viewed as a discrete onetime
18 act, comparable to a term in prison, or an incident of severe beating or
19 even torture. Coerced sterilization is better viewed as a permanent and
20 continuing act of persecution that has deprived a couple of the natural
21 fruits of conjugal life, and the society and comfort of the child or children
22 that might eventually have been born to them.
23
24 Qili Qu v. Gonzales, 399 F.3d 1195, 1202 (9th Cir. 2005) (quoting In re Y-T-L-, 23 I. & N. Dec.
25 601, 607 (B.I.A. 2003)). Viewed in this light, the harm here is directed as much at the husband
26 as at the wife. By its action, after all, the state is preventing both members of the couple from
27 procreating as a unit, and as the BIA found in In re Y-T-L-, such harm is not limited in time to
59
1 the moment of sterilization, but is an ongoing harm that affects a married couple indefinitely. 23
2 I. & N. Dec. at 607. As the Third Circuit recently observed in Sun Wen Chen v. Attorney
3 General of the United States, --- F.3d ---, 2007 WL 1760658, at *5 (3d Cir. June 20, 2007), the
4 “persecution of one spouse can be one of the most potent and cruel ways of hurting the other
5 spouse.”5 In the end, I fail to understand how the majority can claim that the harm caused by a
6 spouse’s forced abortion or sterilization is not a personal harm to both spouses – either or both of
7 whom can be sterilized for violations of the population control programs – especially given the
8 unique biological nature of pregnancy and special reverence every civilization has accorded to
9 child-rearing and parenthood in marriage. I similarly fail to understand how the majority
10 justifies limiting the BIA’s ability to take this special and egregious harm into consideration and
11 to determine within its expertise that such acts constitute persecution against both a wife and
12 husband.6
5
The majority incorrectly asserts that the Third Circuit’s analysis in Sun Wen Chen is
incongruent with my own analysis because the court there held that § 601(a) contains an
ambiguity. Maj. Op. at 16 n.7. The Third Circuit found that § 601(a) is ambivalent on the
treatment of spouses and that the existence of derivative asylum was not “intended to foreclose
additional pathways to asylum specific to spouses.” Sun Wen Chen, --- F.3d ---, 2007 WL
1760658, at *4 (emphasis added); see also id. (“[W]e see nothing in the statute evincing
Congressional intent to establish a particular policy regarding spousal eligibility.”). The Third
Circuit then reasoned that because § 601(a) “establishes that forced abortion and sterilization
constitute persecution,” id., it is entirely within the BIA’s authority to “interpret[] the scope of
that persecution,” id., including its applicability to spouses. It is my contention that we should
defer to the BIA’s interpretation regarding the broader scope of persecution under § 1101(a)(42)
and not impose, as the majority here does, an unfounded requirement that persecution be direct
and personal and that harm to another, even if directed at the applicant, is never sufficient for the
purposes of § 1101(a)(42). These analyses are not incongruent because they both center on the
deference we owe to the BIA on defining persecution.
6
The majority notes that its decision corrects the “perverse effect of creating incentives for
husbands to leave their wives” inherent in the BIA’s determination in In re S-L-L-, 24 I. & N.
Dec. 1 (B.I.A. 2006). Maj. Op. at 27. I note first that one of the petitioners before us was not, in
60
1 Second, the majority argues that the BIA has impermissibly created an irrebuttable
2 presumption that relieves applicants from the statutory burden of proving that they have a well-
3 founded fear of persecution based on an impermissible nexus. As Judge Katzmann correctly
4 observes, however, the presumption argument is merely a red herring. In enacting § 601,
5 Congress was not creating a presumption but merely expanding the BIA’s unduly restrictive
6 definition in Matter of Chang of the terms “persecution” and “political opinion.” Thus, § 601
7 defined “persecution” and “political opinion” to include an individual’s forced abortion or
8 sterilization under a restrictive population control policy. No presumption was created, however,
9 as the applicant still bears the burden of establishing that he or she was subject to the conduct
10 that qualifies under this expanded definition of persecution. And, while the majority places great
11 weight on the fact that § 601 supposedly creates a presumption that “relieved only persons who
12 actually experienced a forcible abortion or sterilization from the burden of proving a political
13 nexus,” and not those married to such persons, Maj. Op. at 21, his conclusion ignores the clear
14 congressional intent of § 601, expressed in the legislative history, that
15 [n]othing in [§ 601] is intended to lower the evidentiary burden of proof for any
16 alien, no matter how serious the nature of the claim. The Committee emphasizes
17 that the burden of proof remains on the applicant, as in every other case, to
18 establish by credible evidence that he or she has been subject to persecution-in
fact, attempting to flee alone; he and his fiancée planned to leave China together but she was
unfortunately caught before she could escape. More importantly, however, the majority’s
assertion here is based on nothing but speculation as to the decisionmaking in which couples,
persecuted by coercive population control programs, must engage before attempting to flee. We
simply have no foundation on which to conclude that all couples have the financial resources to
escape at the same time, and as the government stated at oral argument, it is not uncommon for
Chinese couples to separate and have one spouse go abroad in order to amass the necessary
resources to bring over the other spouse. I believe the majority here is opining on a subject –
imbued with potentially significant cultural differences – with which it has no expertise or
empirical evidence.
61
1 this case, to coercive abortion or sterilization-or has a well-founded fear of such
2 treatment.
3
4 H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174 (1996). Quite simply, there is no way to
5 read in § 601 the presumption the majority discusses, nor a limitation on the BIA in extending
6 § 601’s reach to spouses. Either the persecution occurred or it did not, and the applicant retains
7 the burden of proving such circumstances. The BIA accordingly did not err in interpreting
8 ambiguous terms in the INA to determine that either spouse may qualify as a refugee where one
9 of them has in fact undergone forced abortion or sterilization.
10 Finally, if adopted, the majority’s limiting construction may have significant, unintended
11 consequences, broader than the Court today acknowledges. By claiming categorically that an
12 applicant cannot rely on the harm inflicted on others in § 601 cases – no matter how closely
13 related the harm or the person harmed is to the applicant or whether the harm is directed in
14 whole or in part towards the applicant – to establish persecution or entitlement to asylum, this
15 Court suggests that the BIA is precluded from ever considering harm to others as evidence of
16 persecution to the applicant. While I agree that there are certainly limits as to when harm to
17 another may inform persecution or a well-founded fear of persecution of an applicant, I cannot
18 endorse the majority’s apparent per se conclusion. As noted above, this is a question of statutory
19 construction properly answered by the BIA, which, in its administrative expertise, may interpret
20 the ambiguity inherent in “persecution” to determine when a harm is direct or personal enough to
21 be considered persecution of an applicant. And, in certain limited contexts pertinent to this
22 appeal, the BIA has done precisely this, examining the harm to family members in determining
23 whether an asylum applicant has in fact suffered past persecution, particularly where an
62
1 immediate family member has been subjected to significant and enduring mistreatment. In
2 Matter of Chen, 20 I. & N. Dec. 16, 19-21 (B.I.A. 1989), the seminal BIA decision recognizing
3 the availability of humanitarian asylum for victims of severe past persecution, the BIA recited a
4 litany of horrific acts visited on and suffered by Chen’s parents during the Cultural Revolution,
5 and such evidence – when coupled with the Chinese government’s treatment of the petitioner
6 himself – supported the BIA’s conclusion that “the respondent has clearly established that he and
7 his family were severely persecuted in the past in China.” Id. at 21. Similarly, in In re H-, 21 I.
8 & N. Dec. 337, 345 (B.I.A. 1996), where an applicant had testified about the severe physical
9 beatings he had suffered as the member of a subclan in Somalia, the BIA based its finding of past
10 persecution in part on the applicant’s testimony that his father and brother, also members of the
11 same subclan, were beaten and killed. In examining the allegations concerning the deaths of his
12 father and brother, the BIA specifically noted that “evidence of treatment of persons similarly
13 situated is persuasive of an applicant’s claim of political persecution.” Id. at 345 (quoting Matter
14 of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987)); see also In re N-M-A-, 22 I. & N. 312, 326
15 (B.I.A. 1998) (finding in the context of humanitarian asylum that the applicant had suffered past
16 persecution in part because of “the disappearance and likely death of his father”). The BIA has
17 thus identified specific situations in which the harm to close family members could be central to
18 the finding of persecution and the granting of refugee status. The majority’s misguided exercise
19 in statutory interpretation, however, undermines this agency determination and suggests that
20 because the years-long harassment and egregious mistreatment of Chen’s parents or the deaths of
63
1 H-’s brother and father were “not personally experienced” by the applicants, neither Chen nor H-
2 could base their asylum applications on such harm after today’s decision.7
3 The holding today also calls into question our own caselaw – as well that of other circuits
4 – in which appellate panels have recognized that harm inflicted upon one individual may give
5 rise to, or at least help establish, persecution of another in certain circumstances. In Jorge-Tzoc
6 v. Gonzales, 435 F.3d 146 (2d Cir. 2006) (per curiam), this Court, acknowledging that petitioner
7 had not been “victimized directly” when as a young boy, his sister and her family were killed for
8 their political activities, nevertheless remanded the case to the BIA for further proceedings to
9 determine whether his age, coupled with the harm to his family members, helped to establish
10 past persecution.8 Id. at 150 (internal quotation marks omitted). While the decision rested in
11 great part on the petitioner’s age, this decision illustrates another category of asylum cases where
12 it might be appropriate to consider harm to others in determining past persecution.9 Similarly,
7
The regulations governing the claims under the Convention Against Torture explicitly
recognize that torture encompasses not only physical harm to the individual but also “mental
pain or suffering” that results from the threat of infliction of physical pain or suffering on
another person. See 8 C.F.R. § 1208.18(a)(4)(iv). By analogy, this regulation further supports
the position that persecution is not limited to direct and physical harm upon an individual but can
encompass harm inflicted on others as well. See, e.g., Yan Chen v. Gonzales, 417 F.3d 268, 275
(2d Cir. 2005) (“Certainly . . . torture can constitute persecution . . . .”).
8
The passing statement in a footnote in Melgar de Torres v. Reno, 191 F.3d 307, 313 n.2 (2d
Cir. 1999), that the death of the applicant’s uncle did not constitute political persecution of her is
not to the contrary. As noted in Jorge-Tzoc, the petitioner in Melgar de Torres “was an adult
who offered no objective evidence that her uncle’s killing was politically motivated.” 435 F.3d at
150. To the extent that Melgar de Torres suggested, furthermore, that even if the petitioner had
established the link between her uncle’s killing and his political activities, such killing could
then not be considered part of her past persecution, this suggestion was clearly dicta.
9
The majority professes no opinion on the continued vitality of our holding in Jorge-Tzoc
and claims that nothing in today’s decision “preclude[s] the BIA from considering the totality of
circumstances in any particular case to determine if an asylum applicant has carried his statutory
64
1 other circuits have confronted situations where they found persecution relying in whole or in part
2 on harm to others in certain circumstances. In Sun Wen Chen, the Third Circuit upheld In re S-
3 L-L-, the very BIA determination the majority strikes down today, in part by acknowledging that
4 the physical harm to one’s spouse is nevertheless harm to both spouses in the family planning
5 context. --- F.3d ---, 2007 WL 1760658, at *5 (“In a great many cases, forced abortion or
6 involuntary sterilization of one spouse will directly affect the reproductive opportunities of the
7 other spouse . . . . And persecution of one spouse can be one of the most potent and cruel ways of
8 hurting the other spouse . . . .”). The Sixth Circuit in Abay v. Ashcroft, 368 F.3d 634, 642 (6th
9 Cir. 2004), determined that an applicant was entitled to asylum because she had fled Ethiopia
10 with her teenage daughter to protect the teenager from undergoing forced genital mutilation.
11 The Abay court specifically noted that derivative asylum under § 1158 was not available to Abay
12 – as she was neither a spouse nor a child of a persecuted individual – but granted her asylum,
13 observing that several oral IJ and BIA decisions “suggest a governing principle in favor of
14 refugee status in cases where a parent and protector is faced with exposing her child to the clear
15 risk of being subjected against her will to a practice that is a form of physical torture causing
16 grave and permanent harm.” Id. at 642.
17 Having carefully weighed the law and arguments presented in this appeal, I must concur
18 in the judgment for the reasons already stated ably by Judge Katzmann. I agree in particular
burden.” Maj. Op. at 26 n.13. Yet, the majority fails to explain why the totality of
circumstances may not be applied in the context of married couples who suffer under coercive
population control programs. If the BIA could consider the direct harm to Jorge-Tzoc’s family
members in determining whether Jorge-Tzoc himself had been persecuted, it should be able to
consider the targeting of and effect on an individual when his or her spouse is forced to undergo
an abortion or sterilization.
65
1 with Judge Katzmann that the Third Circuit in Cai Luan Chen v. Ashcroft, 381 F.3d 221 (3d Cir.
2 2004) (Alito, J.), did what we should have done here. In that case, then-Judge Alito found no
3 need to reach the question of whether § 601 or § 1101(a)(42) were ambiguous because Chen,
4 who was not married to his fiancée on whom the forced abortion was performed, could prevail
5 only if the BIA’s distinction between married and unmarried couples was unreasonable.10 Id. at
6 227. Judge Alito ultimately ruled that the distinction was reasonable and denied the petition. Id.
7 at 235. This analysis should control our own very similar cases here.11
Given the above, the majority should never have reached the question it has taken upon
itself to resolve, particularly in the immigration context where the Supreme Court has long
recognized “that judicial deference to the Executive Branch is especially appropriate . . . where
officials ‘exercise especially sensitive political functions that implicate questions of foreign
relations.’” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S.
94, 110 (1988)). In reaching this question, the majority has, I fear, started a domino effect that
may have significant and unforeseen repercussions. Finally, the majority, in noting that “[i]f this
conclusion is inconsistent with Congress’s intentions, [Congress] can, if it so chooses, of course,
amend the statute,” Maj. Op. at 22 n.10, seems to take comfort that its conclusion, if wrong, may
10
While I ultimately agree with Third Circuit’s recent pronouncement in Sun Wen Chen
that the BIA properly interpreted an ambiguity in § 601 and § 1101(a)(42) to extend asylum
protection to spouses of individuals forced to abort pregnancies or undergo sterilization, Sun
Wen Chen involves a question we need not reach here because the petitioner here is not married.
Had the majority dealt only with the question presented, I would adopt the approach as outlined
by then-Judge Alito in Cai Luan Chen.
11
Unlike my esteemed colleague Judge Calabresi, I do not find that the BIA limited its analysis
to § 601 in In re S-L-L-, but rather was grounding its interpretation in both the specific language
of § 601 and the more general definition of “refugee” in § 1101(a)(42). Because the statute is
ambiguous, I would defer to the BIA’s interpretation here.
66
be simply overturned. But for those petitioners who fled a draconian population control program
because their spouses had been forced to undergo an abortion or sterilization, the majority’s
caveat must be cold comfort indeed.
67
CALABRESI, Circuit Judge, concurring in part and dissenting in part:
What is remarkable about this case is that essentially everyone on this court
agrees that IIRIRA § 601(a), codified at 8 U.S.C. § 1101(a)(42)(B), cannot be read to grant per
se asylum to spouses. This is remarkable because it is in direct conflict with every other circuit,
the BIA, and ten years of rulings. See Maj. Op. at 5 & n.4. Yet we all agree. And we are
correct. Moreover, it follows that, because § 601(a) does not grant that kind of asylum to
spouses, it also cannot be read as granting asylum to non-spouses — like the petitioners in this
case. This part of the majority’s analysis is admirable, and I join it.
Because § 601(a), in unambiguous terms, grants per se “refugee” status only to the
“person who has been forced to abort a pregnancy or to undergo involuntary sterilization,” the
panel in this case — consisting of the author of the majority opinion, the principal concurrence,
and me — sent the case back to the BIA, to allow the agency to reexamine its decision in In re
C-Y-Z- (C-Y-Z-), 21 I. & N. Dec. 915 (B.I.A. 1997) (en banc) (construing § 601 as granting per
se “refugee” status to spouses). The BIA stuck to its decision, see In re S-L-L- (S-L-L-), 24 I. &
N. Dec. 1 (B.I.A. 2006) (en banc), but has not convinced us that C-Y-Z-’s rule can be squared
with the plain text of § 601(a), and so we now appropriately say that the BIA was wrong.
Unfortunately, both the majority and concurrences are not willing to stop with that,
which was the issue clearly before us and fully considered by the BIA. For reasons that are quite
understandable, but nonetheless wrong — both in terms of results and in terms of what the
Supreme Court has said about our relationship to the BIA — the majority and the concurrences
68
go further. They do so in different directions, and that fact is, to me, simply additional evidence
that going further was inappropriate.
I
The majority says that if the BIA were to construe the general definition of “refugee”
found in 8 U.S.C. § 1101(a)(42)(A) as granting per se refugee status to certain categories of
people — e.g., spouses or non-spouses — that would be an impermissible reading of §
1101(a)(42)(A). This seems to me to be mistaken on several counts.
A
First, the majority relies on the fact that § 601(a) was enacted to overturn Matter of
Chang, 20 I. & N. Dec. 38, 44 (B.I.A. 1989) (adopting the rule that victims of a coercive family
planning regime could claim refugee status only if the victims demonstrated that the family-
planning policy had been “selectively applied” to them on the basis of a protected ground). See
Maj. Op. at 17. The majority posits that § 601(a) was not intended to do more than overturn
Chang, and that Chang is therefore left in place as to spouses and partners who are not
themselves forcibly aborted or involuntarily sterilized. See Maj. Op. at 18 (“The inclusion of
some obviously results in the exclusion of others.”). And, under Chang, spouses and partners
are not entitled to per se refugee status.
Fair enough, but Chang is not an opinion of the Supreme Court, or even of a Court of
Appeals; it is an interpretation of underlying statutory law by the BIA. As such, the agency is
perfectly free to change it — so long as the change is not inconsistent with the underlying law.
69
Thus, any suggestion that the BIA could not, because of Chang, now grant per se status to
spouses pursuant to § 1101(a)(42)(A) is a non sequitur, plain and simple.
B
Second, the logical consequences of what the majority seems to be saying appear to me
to be untenable. Suppose the BIA were to issue an interpretation of § 1101(a)(42)(A) that said,
categorically, that any child who sees his parents tortured and murdered before him by a
totalitarian government — say, the Nazis — is persecuted, and therefore eligible for asylum.
Would such a ruling be invalid under § 1101(a)(42)(A)’s broad definition of refugee? If that is
what the majority is saying, it is, in my judgment, manifestly absurd. There is nothing in the
language or history of § 1101(a)(42)(A) that suggests the BIA could not adopt such a per se rule.
But, if the BIA could adopt the kind of per se rule I described above — and I believe a
majority of our court would agree with me that such a rule would indeed be proper — then it is
improperly premature to say — as today’s governing opinion does — that the agency could not
adopt an analogous per se rule with respect to individuals in the situation of the petitioners in
this case. It may be that if the BIA did adopt such a per se rule, I would ultimately agree with
the majority that, in the context of coercive family planning laws, such an interpretation of §
1101(a)(42)(A) is “unreasonable” at Chevron’s Step Two.1 But once it is admitted that some
categorical per se asylum rules — like the one involving my hypothetical children — might be
valid under § 1101(a)(42)(A) (i.e., would get by Chevron Step One) — it is, I believe,
impermissible to say that an equivalent per se interpretation dealing with spouses would
necessarily be invalid if it were adopted — which is in effect what the majority’s holding
1
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
70
amounts to. It is impermissible given the Supreme Court’s unanimous decisions in INS v.
Orlando Ventura, 537 U.S. 12 (2002) (per curiam), and Gonzales v. Thomas, 547 U.S. 183, 126
S. Ct. 1613 (2006) (per curiam).
1
In Ventura, the Supreme Court held that, “[g]enerally speaking, a court of appeals should
remand a case to an agency for decision of a matter that statutes place primarily in agency
hands.” 537 U.S. at 16. “This principle,” the Court explained, “has obvious importance in the
immigration context,” id. at 16-17, because “[w]ithin broad limits the law entrusts the agency to
make the basic asylum eligibility decision here in question.” Id. at 16. Subsequent case law has
only strengthened Ventura’s reasoning. The “ordinary remand rule” was recently reaffirmed by
a unanimous Supreme Court in Thomas, 126 S. Ct. 1613, and has been followed by our court in a
series of cases, most notably in Ucelo-Gomez v. Gonzales, 464 F.3d 163, 168-70 (2d Cir. 2006).
Yet, despite the “obvious importance” of the ordinary remand rule in the immigration context,
the majority insists on precluding the BIA from interpreting § 1101(a)(42)(A)’s general
provisions in the first instance. In my view, this aspect of the majority’s holding is dangerously
in tension with Ventura’s command.
In Ventura — much as in the case before us — the Ninth Circuit reversed a holding of
the BIA, and then “went on to consider an alternative argument that the Government had made
before the Immigration Judge,” but which “the BIA itself had not considered . . . .” 537 U.S. at
13. Specifically, the Ninth Circuit reversed the BIA’s holding that the petitioner was not
persecuted “on account of” a “political opinion,” but then, rather than remanding to the BIA for
71
further proceedings, the court evaluated for itself, and rejected, the government’s alternative
argument that the petitioner failed to qualify for asylum because of changed country conditions
in Guatemala. Id. In reversing the Ninth Circuit’s judgment, the Supreme Court found that the
court of appeals
seriously disregarded the agency’s legally-mandated role. Instead, it
independently created potentially far-reaching legal precedent about . . . a highly
complex and sensitive matter. And it did so without giving the BIA the
opportunity to address the matter in the first instance in light of its own expertise.
Id. at 17.
More recently, the Court in Thomas reversed a Ninth Circuit decision which had
decided, without first remanding the issue to the BIA, “that in principle ‘a family may constitute
a social group for the purposes of the refugee statutes,’ . . . [and] that the particular family at
issue . . . fell within the scope of the statutory term ‘particular social group.’” 126 S. Ct. at 1614(quoting Thomas v. Gonzales, 409 F.3d 1177, 1187, 1189 (9th Cir. 2005) (en banc)) (emphasis
added). Quoting Ventura — and echoing the basic principle of SEC v. Chenery Corp. (Chenery
I), 318 U.S. 80 (1943), that “an appellate court cannot intrude upon the domain which Congress
has exclusively entrusted to an administrative agency,” id. at 88 — the Thomas Court reiterated
that “[a] court of appeals is not generally empowered to conduct a de novo inquiry into the
matter being reviewed and to reach its own conclusions based on such an inquiry.” Thomas, 126
S. Ct. at 1615 (quoting Ventura, 537 U.S. at 16 (internal quotation marks omitted)).
72
In Ucelo-Gomez, a panel of this court concluded that Thomas and Ventura establish the
rule that “where (as here) the agency has yet to decide whether a group, a thing, or a situation
falls within the ambit of a statutory term, the proper course is for the reviewing court to remand
the matter to the agency in accordance with the well-worn ordinary remand rule.” Ucelo-Gomez,
464 F.3d at 169 (internal quotation marks omitted). Moreover, the panel in Ucelo-Gomez
asserted that “the agency interpretation required by Thomas and Ventura is ‘in the first instance’
a particularized interpretation by the agency.” Id. (emphasis omitted).
As a purely formal matter, the approach taken by the majority today is perhaps
reconcilable with Ventura and Thomas. But it is fundamentally incompatible with the spirit of
those cases. Even if the majority is convinced that C-Y-Z-’s rule would be an unreasonable
construction of § 1101(a)(42)(A), the correct approach would be to allow the agency to make a
determination on that matter first. Instead, the majority opinion — perhaps realizing that it could
not, at this time, authoritatively speak on the question of C-Y-Z-’s reasonableness as a
construction of § 1101(a)(42)(A) — by a preemptive strike strips the BIA of its capacity to
consider the issue under § 1101(a)(42)(A). In so doing, the majority precludes the BIA from
examining thoroughly this “highly complex and sensitive matter,” Ventura, 537 U.S. at 17, and
“independently create[s] . . . far-reaching legal precedent . . . . without giving the BIA the
opportunity to address the matter in the first instance in light of its own expertise.” Id.Significantly, Ventura and Thomas are designed to prevent just such judicial preemption of BIA
positions, even when that preemption reaches what is arguably the correct result.
2
73
Moreover, even if the majority were not required — as I believe it was — to remand
Zhen Hua Dong’s case to the BIA,2 it should have remanded his case as a matter of wise
discretion. Cf. Jian Hui Shao v. Bd. of Immigration Appeals, 465 F.3d 497, 501, 503 (2d Cir.
2006) (concluding that “the BIA is better situated than we are to decide the statutory
interpretation question in the first instance,” and noting that “[o]ur decision to remand this
question of law to the BIA for resolution in the first instance is supported by recent decisions of
the Supreme Court of the United States and our Court” (emphases added)); Yuanliang Liu v. U.S.
Dep’t of Justice, 455 F.3d 106, 116 (2d Cir. 2006) (“Because we conclude, as a matter of
discretion, that it is prudent and useful for us to remand the issue of frviolousness, we need not
address the more complicated question of when remands to the BIA are required by elementary
principles of administrative law.”).
2
The question of whether, as a matter of Chevron Step Two “reasonableness” review, the
BIA could base its C-Y-Z- decision on § 1101(a)(42)(A), is arguably neither a pure question of
fact, nor of statutory interpretation. And the extent to which such mixed questions may be
resolved by a Court of Appeals, without first remanding to the agency for its consideration, has
not been clearly settled by the Supreme Court. Compare Thomas, 126 S. Ct. at 1615 (“[T]he
proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.” (quoting Ventura, 537 U.S. at 16) (internal quotation marks
omitted)) with id. (requiring remand, and observing that “[t]he matter requires determining the
facts and deciding whether the facts as found fall within a statutory term”); Hussain v. Gonzales,
477 F.3d 153, 157-58 (4th Cir. 2007) (distinguishing between factual issues not considered by
the BIA, and statutory issues, and reasoning that Ventura and Thomas were directed only toward
factual issues); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132-35 (9th Cir. 2006)
(considering a variety of factors — including the fact that the issue being decided would,
following a remand to the BIA, have been reviewed by the court de novo anyway — in
concluding that the Thomas-Ventura remand rule did not apply to the particular issue in
question); Ucelo-Gomez, 464 F.3d at 170 (“[I]f a reviewing court can state with assured
confidence (absent agency guidance as to its protectability under the INA) that a group would or
would not under any reasonable scenario qualify as a ‘particular social group,’ it need not
remand, and may rule on the issue in the first instance.”).
74
I believe that the majority’s haste in narrowly construing § 1101(a)(42)(A) — and,
therefore, in cabining the BIA’s discretion — is particularly troubling given the circumstances of
this case. At stake is a rule of the BIA that has been in place, and relied upon, for over ten years.
See S-L-L-, 24 I. & N. Dec. at 14 (Board Member Pauley, concurring) (“[N]otwithstanding my
belief that Matter of C-Y-Z- . . . was wrongly decided, I would not overrule it now, nearly a
decade later and in the aftermath of thousands of decisions applying it to grant asylum on a
derivative basis.”). In addition, the invalidation of C-Y-Z-’s rule will have sweeping
ramifications for this court’s immigration law docket; by one estimate, “70-80 percent of the
[petitioners in our court] are Chinese seeking asylum to escape their homeland’s family planning
policies.” BIA Appeals Remain High in 2nd and 9th Circuits, The Third Branch: Newsletter of
the Fed. Cts. (Admin. Office of the U.S. Cts. Office of Pub. Affairs, D.C.), Feb. 2005, available
at http://www.uscourts.gov/ttb/feb05ttb/bia/index.html (citing statement of Elizabeth Cronin).
Given all this, our court should have approached the question of C-Y-Z-’s permissibility — either
as it was or with nuanced modifications — not with haste, but with trepidation. For the truth is
that we cannot foretell how the BIA would have interpreted the general definition of §
1101(a)(42)(A), had it been asked to focus on that language.
By trying to decide something that is not yet before us, the majority bars the BIA from
bringing its expertise to bear on this sensitive issue. In the process, the majority does not only
preclude the BIA from reenacting the per se rule of C-Y-Z- — a rule which, at the proper time, I
might well have concluded was “unreasonable” at Chevron Step Two, for all of the reasons the
majority recites. The majority also prevents the agency from interpreting the general language
75
of § 1101(a)(42)(A) in ways which might have suffered from none of the problems the majority
properly associates with the current per se rule — ways, incidentally, which might truly have
promoted congressional policy goals.3 In this respect, the majority opinion keeps the agency
from doing what administrative agencies do best, namely, using their expertise to convert
general statutes into specific rules that best reflect an underlying legislative intent.4
****
3
To cite just one of the many possibilities which the majority prematurely forecloses: had
the BIA not relied on § 601(a)’s automatic persecution rule, but instead focused on the general
notion of “persecution,” the agency might have interpreted § 1101(a)(42)(A) as providing (1)
that partners who had tried to marry, and were prevented from doing so, but who stayed together,
are jointly eligible for asylum (which conclusion would both (a) promote the congressional
policy of keeping families together, and (b) extend asylum eligibility to individuals not already
covered by § 601(a)); but (2) that husbands who are legally married at the time of a wife’s forced
abortion, but who choose to leave their wives behind for good, are not.
4
I am mindful that the Supreme Court has cautioned that respect for the role and
expertise of agencies does not “require that we convert judicial review of agency action into a
ping-pong game,” and that, therefore, remand is not required when it “would be an idle and
useless formality.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969); see also Li Zu
Guan v. INS, 453 F.3d 129, 135-38 (2d Cir. 2006) (discussing futility standards); Alam v.
Gonzales, 438 F.3d 184, 187-88 (2d Cir. 2006) (per curiam) (same). Moreover, and relatedly,
the Supreme Court has clarified that a reviewing court must “uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-
Best Freight Sys., Inc., 419 U.S. 281, 286 (1974); see also Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (same).
But, regardless of whether these cases, which limit the necessity to remand, are
understood to be “exceptions” to the Chenery and Ventura-Thomas requirements, or merely a
reflection of the deeper truth that formulaic statements cannot substitute for sound judgment in
particular cases, see Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 112 (2d Cir. 2006), it
remains clear on which side of the line the case before us falls. We simply do not know — and,
because the majority and concurring opinions make it almost impossible for the BIA to consider
the general language of § 1101(a)(42)(A) in the first instance, in relation to spouses and partners
of directly victimized persons, we are not likely to learn — how the BIA would have interpreted
§ 1101(a)(42)(A) had it been asked to do so. This is not a case in which the agency’s path, while
not perfectly clear, can “reasonably be discerned”; nor is it a case in which the agency’s likely
response to a remand can be predicted with confidence. Rather, it is a case in which (1) the BIA
has not yet spoken — at all, and certainly not clearly — on § 1101(a)(42)(A)’s breadth in this
area, and (2) our court has, unfortunately, chosen to make further inquiry impossible.
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Ironically, it was precisely because of the above reasons that the panel in Shi Liang Lin
— comprised, as I mentioned earlier, of the author of the majority opinion, the principal
concurrence, and me — sent it back originally. Yet if the majority’s reasoning were valid, then
there would have been no reason for the panel to do so. Nonetheless, we sent it back then, and
the BIA ruled only as to whether per se refugee status could be granted directly under § 601. See
infra Part II.B. If the case were sent back again, to allow the agency to consider whether to
extend per se protection under § 1101(a)(42)(A), it is possible that the BIA would have agreed
with the majority that no such protection should be adopted. Or the BIA might have adopted a
more sensible rule. Under the majority’s approach, we will never know.
Accordingly, I respectfully, partially, dissent from the majority opinion.
II
But I cannot join the concurrences either. They act as if the BIA, because it mentioned
“nexus” in passing, made a ruling under § 1101(a)(42)(A). It didn’t. Since the agency has yet to
interpret the broad language of that section, it is wrong for us to say — as the concurrers do —
that the agency expressed views to which we owe deference. And this is so, regardless of
whether such a ruling, had it been made, would have passed the requirements of Chevron Step
Two.
A
In SEC v. Chenery Corp. (Chenery I), 318 U.S. 80 (1943), and SEC v. Chenery Corp.
(Chenery II), 332 U.S. 194 (1947), the Supreme Court articulated, and then reaffirmed, “a simple
but fundamental rule of administrative law”: “[A] reviewing court, in dealing with a
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determination or judgment which an administrative agency alone is authorized to make, must
judge the propriety of such action solely by the grounds invoked by the agency.” Chenery II,
332 U.S. at 196. And “[i]f those grounds are inadequate or improper, the court is powerless to
affirm the administrative action by substituting what it considers to be a more adequate or proper
basis.” Id. The reason for this rule is obvious: “If an order is valid only as a determination of
policy or judgment which the agency alone is authorized to make and which it has not made, a
judicial judgment cannot be made to do service for an administrative judgment,” because “an
appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an
administrative agency.” Chenery I, 318 U.S. at 88.
The Chenery decisions also recognized “an important corollary of the foregoing rule”: “If
the administrative action is to be tested by the basis upon which it purports to rest, that basis
must be set forth with such clarity as to be understandable.” Chenery II, 332 U.S. at 196. As the
Court explained, “[i]t will not do for a court to be compelled to guess at the theory underlying
the agency’s action; nor can a court be expected to chisel that which must be precise from what
the agency has left vague and indecisive.” Id. at 196-97. If it were otherwise, an appellate court
could impose its own policy judgments under the guise of “review.”
Our court has repeatedly recognized and applied these fundamental rules of
administrative law: (1) we may only review that which an agency itself has stated; and (2) the
agency must make those statements in clear terms. See, e.g., Riverkeeper, Inc. v. EPA, 475 F.3d
83, 105 (2d Cir. 2007) (“We cannot opine on this subject, because we must consider only those
justifications that the [agency] offered at the time of the rulemaking.”); Singh v. U.S. Dep’t of
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Justice, 461 F.3d 290, 294 n.3 (2d Cir. 2006) (“[W]e cannot, on appeal, substitute an argument
— even one the BIA made in another context — for those that the BIA actually gave to support
the conclusion . . . dispute[d] on appeal.”); Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,
400 (2d Cir. 2005) (“[W]e will limit our review of the [agency’s] decision to the reasons [it]
actually articulates . . . . To assume a hypothetical basis for the [agency’s] determination, even
one based in the record, would usurp [the agency’s] role.”); Shi Liang Lin v. U.S. Dep’t of
Justice, 416 F.3d 184, 192 (2d Cir. 2005) (“The government suggests that we may simply supply
our own rationale for the BIA’s decision in C-Y-Z- and then act accordingly. But the Supreme
Court has made clear that ‘[i]t will not do for a court to be compelled to guess at the theory
underlying [a particular] agency’s action; nor can a court be expected to chisel that which must
be precise from what the agency has left vague and indecisive.’ It is not difficult to understand
why. Were courts obliged to create and assess ex-post justifications for inadequately reasoned
agency decisions, courts would, in effect, be conscripted into making policy.” (quoting Chenery
II, 332 U.S. at 196-97)).
B
I recite these well-known tenets of administrative law because I believe that they
preclude us from taking the route advocated by the concurring opinions. Because the BIA’s
opinion in S-L-L- is lacking in clarity, it is certainly possible, with some creativity, to construe
the decision as having been based on rationales which the BIA itself did not invoke. But we are
not empowered to invoke those reasons. The BIA is required to speak for itself.
1
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The precise basis of the BIA’s decision in C-Y-Z- was anything but clear. But the BIA
and this court have in the past stated that it was based on a construction of § 601(a). See Shi
Liang Lin, 416 F.3d at 188 (noting that, in C-Y-Z-, “the BIA held that, under IIRIRA § 601(a),
the forced sterilization or abortion of one spouse is an act of persecution against the other spouse
. . . .” (emphasis added)); see also id. at 191 (“[A] fresh look at C-Y-Z- reveals that the BIA
never adequately explained how or why, in the first instance, it construed IIRIRA § 601(a) to
permit spouses of those directly victimized by coercive family planning policies to become
eligible for asylum themselves.” (emphasis added)); see S-L-L-, 24 I. & N. Dec. at 3 (“In Matter
of C-Y-Z-, supra, we held that a husband whose wife was forcibly sterilized could establish past
persecution under this amendment [i.e., IIRIRA § 601(a)]” (emphasis added)).
In Shi Liang Lin, the panel
remand[ed] the instant petitions to the BIA so that the BIA [could]: (a) more
precisely explain its rationale for construing IIRIRA § 601(a) to provide that the
‘forced sterilization of one spouse on account of a ground protected under the Act
is an act of persecution against the other spouse’ and that, as a result, the spouses
of those directly victimized by coercive family planning policies are per se as
eligible for asylum as those directly victimized themselves; and (b) clarify
whether, when, and why boyfriends and fiancés may or may not similarly qualify
as refugees pursuant to IIRIRA § 601(a).
Shi Liang Lin, 416 F.3d at 192 (emphases added).
Thus, in remanding, the Shi Liang Lin panel plainly assumed that the BIA’s ruling
in C-Y-Z- was based on a construction of § 601(a), and accordingly, requested that the BIA
explain how § 601(a) might plausibly be read in such a manner. Consistent with these
instructions, the BIA’s response in S-L-L- focused on the scope of § 601(a). See S-L-L-, 24 I. &
N. Dec. at 1 (“The United States Court of Appeals for the Second Circuit has remanded this case
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with a request that we further explain our rationale in Matter of C-Y-Z-, ‘for construing IIRIRA §
601(a) to provide that the “forced sterilization of one spouse on account of a ground protected
under the Act is an act of persecution against the other spouse” . . . .’” (internal citation
omitted)); id. at 4 (“[W]e reaffirm our holding in Matter of C-Y-Z- . . . .”).
Perhaps sensing that § 601(a)’s text had little to offer, however, the BIA’s
decision in S-L-L- provided little analysis of that text. Instead, the BIA asserted, conclusorily,
that its decision in C-Y-Z- “reflects the significant tensions inherent in the IIRIRA amendment”5
and that “[t]here is no clear or obvious answer to the scope of the protections afforded by the
amendment to partners of persons forced to submit to an abortion or sterilization.” S-L-L-, 24 I.
& N. Dec. at 4. The BIA did not hint at what these “tensions” might plausibly be, or why the
plain language of § 601(a) should not be taken as establishing the proper scope of “the IIRIRA
amendment.” Instead, the BIA “reaffirm[ed] [its] holding in Matter of C-Y-Z-,” id., largely on
the basis of stare decisis and Congress’s supposed acquiescence.
It is the BIA’s reticence to engage with § 601(a)’s text — and the resulting
ambiguity in the BIA’s opinion in S-L-L- — that the concurring opinions now seek to convert
into an argument that S-L-L- was based, not on § 601(a), but on the general definition of
“refugee” found in § 1101(a)(42)(A). It is true that, at one point in S-L-L-, the BIA obscurely
remarked that “[a]lthough there is no specific reference in the statutory definition of a refugee to
a husband’s claim based on harm inflicted upon his wife, the general principles regarding nexus
and level of harm apply in determining such a claim.” S-L-L-, 24 I. & N. Dec. at 5.
5
The “IIRIRA amendment” refers, of course, to § 601(a).
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But this phrase cannot, I believe, establish — as the concurring opinions would
have it — that the BIA’s decision in S-L-L- was based on the general terms “persecution” and
“political opinion” found in § 1101(a)(42)(A). And, even if it did, it would not do so clearly (as
required by Chenery II). Indeed, one can say, as to that: manifestly not.
Notably, in its very next breath, after using the nexus phrase relied on by the
concurrers, the BIA in S-L-L- stated that it was applying “general principles requiring nexus and
level of harm for past persecution in assessing a claim under the IIRIRA amendment.” Id.
(emphasis added). It is permissible to read § 601(a) in this way, the BIA argued, because
“[a]lthough the wife is obviously the individual subjected to the abortion procedure, Congress
was concerned not only with the offensive assault upon the woman, but also with the obtrusive
government interference into a married couple’s decisions regarding children and family.” Id. at
6. Therefore, the BIA concludes, “[w]hen the government intervenes in the private affairs of a
married couple to force an abortion or sterilization, it persecutes the married couple as an
entity.” Id. (emphasis added). It seems to me patent that the BIA reached this conclusion under
§ 601(a), and not § 1101(a)(42)(A).
2
In my view, then, the BIA’s decisions in C-Y-Z- and S-L-L- were grounded in a
(mistaken) belief that, based on an “entity theory” of persecution, spouses of those directly
victimized by coercive family planning policies could themselves become directly eligible for
asylum under § 601(a). And it is not enough for the concurring opinions to cast doubt on my
conclusion; Chenery II’s “clarity corollary” requires that the agency make clear its decision to
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rest upon a purported ground. Thus, to restate my problem with the concurring opinions: They
would use the fact that the BIA refused to engage clearly with the text of § 601(a) as a basis for
concluding that the BIA was relying on something else. But the incompatibility of this approach
with Chenery II is apparent.
Moreover, the (at best) ambiguousness of the BIA’s decision in S-L-L- results in
precisely the problems adverted to in Chenery II. For it is far from clear that, had the BIA
focused on the general definition of § 1101(a)(42)(A), the agency would have preserved C-Y-Z-
’s rule in its current form. That is, had the BIA been asked to examine, not § 601(a)’s automatic-
eligibility rule, but instead the more general definition of “refugee,” it is quite possible that the
BIA would have come up with a different per se rule, and perhaps even one that would have
avoided the many problems inherent in its C-Y-Z- approach. See supra at 8-9.
Under the concurring opinions’s approach, we are unlikely to know. For, by
reading the agency’s opinion as deciding that which it did not decide — and certainly did not
decide clearly — the concurring opinions, in effect, preclude the agency from thinking deeply
and fully about the matter. And that is the very thing which the clarity requirement of Chenery
II is meant to make the agency do.
III
In the end, as at the beginning, the BIA read us to ask — what we in fact asked:
whether C-Y-Z-’s rule could be based upon § 601(a)’s text, and if so, what its reasons were. The
agency could, under our remand, have turned more broadly to § 1101(a)(42)(A). It didn’t, and it
certainly didn’t do so clearly. Today, we properly reject the BIA’s ruling interpreting the
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coverage of § 601(a). But in the spirit of Ventura, Thomas, and our own tradition of sending
things back to the BIA for a first reading, we should now ask the BIA something that it has never
been asked by any court: What would you do under § 1101(a)(42)(A), given that § 601(a) does
not give you the authority to do what you did in C-Y-Z- and S-L-L-?6
We do not know what answer the BIA would give to that question for the simplest
of reasons. The agency has never been specifically asked. And we should not, indeed cannot
properly, assume that what it would say in response — one way or another — would be either a
reasonable or an unreasonable interpretation of the statute. Moreover, since it is possible that
such interpretation might have covered Zhen Hua Dong, I cannot concur with the majority and
concurrences that his case is now hopeless.
The sad thing is that, in their rush to reach a result in terms of who gets asylum
and who does not, both the majority and the concurrers sanction bad law and bad practices with
6
The majority, attempting to answer my opinion, says, at footnote 15, that remanding
Zhen Hua Dong’s case to the BIA would be engaging in useless “ping pong.” With great
respect, the majority in that footnote simply repeats its conflation of two quite separate things. It
is certainly true that the BIA has had multiple occasions to consider the “spousal” question under
§ 601(a), and has answered (incorrectly, we all agree) that per se persecutee status is available to
spouses under that section. But it has never been asked what the status of spouses or of people
situated like Zhen Hua Dong would be under the general terms of § 1101(a)(42)(A), if § 601(a)
did not cover spouses. And, in view of its consistent – but incorrect, we today hold – rulings that
§ 601(a) did apply to spouses, the BIA never had any reason to address that question on its own.
The concurrers, nevertheless, act as if the BIA had addressed the question and had validly given
spouses per se persecutee status under § 1101(a)(42)(A). The majority holds that even if the BIA
were to consider the question, it could not validly say that spouses et al. were covered per se.
Both the majority and the concurrers seem to me to overstep, and for precisely the reasons
indicated in Ventura and Thomas. It is not proper for appellate courts to speak for the BIA and
to decide the validity of that “speech,” before the agency has had a full and focused opportunity
to make its position clear. On § 1101(a)(42)(A), the agency has not yet had that opportunity. It
is not ping pong when only one player has been invited to the relevant table.
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respect to our relationship with the BIA. The reason they do this is certainly understandable.
But it is all unnecessary. It’s just being in a hurry.
****
For all these reasons, while I concur with the majority opinion insofar as it (1)
dismisses the petition of Xian Zou for lack of jurisdiction; (2) denies the petition of Shi Liang
Lin as moot; and (3) persuasively interprets 8 U.S.C. § 1158(c)(2)(A) as being limited to a
“fundamental change” in country conditions, I must respectfully dissent from the premature
denial of Zhen Hua Dong’s petition.
85