*1 whether, Dong, Petitioner, Hua confidently predict Zhen these errors, and absent the IJ’s circumstances v. prior the BIA adhere to decision Department Justice; United States denying applications the petitioners’ Attorney Gonzales, General Uwais, asylum, we remand. Respondents; 1; Beskovic, 227; at 519 n. 467 F.3d at Zou, Petitioner, Xian analysis IJ’s Because the errors petitioners’ of the claim for bear on v. petitioners’ eligibility withholding Attorney Gonzales, General (or removal) deportation under the INA Respondent. CAT, and relief under the we remand See, 02-4611-ag, these latter claims e.g., as well. Docket Nos. 02- I.N.S., (2d 4629-ag, 03-40837-ag. Abankwah v. 185 F.3d Cir.1999). Appeals, United States Court of
Second Circuit. CONCLUSION Argued: March 2007. above, For all of the reasons discussed July Decided: petition for review is Granted. The decision of the BIA is and the Vacated,
case is Remanded proceedings further
consistent opinion. with this LIN, Petitioner,
SHI LIANG
UNITED STATES DEPARTMENT OF
JUSTICE; Attorney General
Gonzales, Respondents; persecution, particularly issue of future pendent investigation pattern into given applicable the IJ's failure to assess the petitioners allege events that past constitute proof. burden of The letter is no substitute persecution. See Letter at 2. letter in this considering for the IJ the full record of testi- case also contains certain factual misstate- case, mony and evidence in this Tian- cf. (claiming id. petitioner ments. See at 1 I.N.S., Yong Chen v. U.S. 359 F.3d "does not claim have been detained" (2d Cir.2004) (cautioning against excessive re- despite month-long the Manzurs’ claim Department country liance on reports), State confinement); (claiming id. that President Zia particularly solely when the letter relies father, husband, was the rather than analysis country conditions and the written Zia). Prime Minister Khaleda asylum application any and disclaims inde- *3 Bembi, Joseph Hempstead, NY,
Bruno for Liang Petitioners Shi Lin and Zhen Hua Dong. Christophe & Associ- Milch,
Aleksander ates, P.C., York, NY, New for Petitioner Xian Zou.
Kathy Marks, S. Assistant United States (Sara Attorney, L. Shudofsky, Assistant counsel) Attorney, United States for Garcia, Michael J. Attorney United States for York, the Southern District of New York, NY, New Respondents the Unit- Department ed States and Justice At- torney General Gonzales. JACOBS,
Before: Judge, Chief CALABRESI, CABRANES, STRAUB, POOLER, SACK, SOTOMAYOR, KATZMANN, PARKER, RAGGI, WESLEY, HALL, Judges. Circuit Judge B.D. PARKER delivered opinion Court, JACOBS, in which C.J., CABRANES, SACK, RAGGI, WESLEY, JJ., HALL, joined. say concurring reading filed a C-Y-Z- Judge KATZMANN POOLER, STRAUB, directly of those victimized in which opinion, SOTOMAYOR,JJ., family policies se joined. planning per they directly if eligible were concurring filed a Judge SOTOMAYOR clarify themselves and also to victimized POOLER, J., joined. opinion, which boyfriends and fiancés under the status filed an Judge opinion CALABRESI Dep’t statute. Lin v. U.S. part. dissenting concurring part (2d Cir.2005). Justice, 416 F.3d jurisdiction. Id. retained We JR., PARKER, Judge: Circuit B.D. Ap Immigration In 1997 the Board remand, its hold On reaffirmed *4 (“BIA”) 21 of C-Y-Z-, in Matter held
peals are spouses in C-Y-Z- that entitled to ing banc) (B.I.A.1997) (en N. 915 I. & Dec. 601(a) § eligibility under automatic but spouse has been an individual whose mar per eligibility legally limited this to se undergone pregnancy, to abort S-L-L-, 24 I. Dec. applicants. ried & N. sterilization, involuntary persecut or been Eschewing analysis, the a text-based pro population under a control ed coercive interpret BIA elected to forced abor asy automatically qualify for could gram clause of section tion and sterilization 601(a) § “refugee” lum as purpose of the light “in the overall Immi Reform and Illegal Immigration parties to to a amendment” include both (“IIRI- Act Responsibility of 1996 grant Id. The Board marriage. at 8. reaffirmed RA”) 1101(a)(42), § (amending 8 U.S.C. appeals of the petitioners the dismissal (“INA”) Act Immigration Nationality id., Lin, Dong, re Zhen Dong, In Hua S-L-L-, 101(a)(42)). 24 I. & § In re See (B.I.A. 27, 2006), and A77 293 661 Nov. No. banc) (“In (B.I.A.2006) (en N. Dec. 3 for a petition remanded Zou’s determina C-Y-Z-, that a held Matter we qualified tion of whether he forcibly wife was sterilized husband whose on the resistance to a coer based “other under this past persecution could establish program” clause in population cive control 101(a)(42) of the section amendment to 601(a), Zou, re No. 178 541 § In Xian A73 [INA].”). appeal whether This considers 2006). (B.I.A. Nov. BIA’s statute was interpretation it was correct. conclude not. We decision, we or- Following the BIA’s banc to two rehearing en consider dered Lin, Hua Liang Zhen Petitioners Shi 601(a)’s First, § provi- whether issues: are Dong, and Xian Zou citizens BIA’s ambiguous, so sions unmarried of China and People’s Republic warrants Chevron construction of them victimized allegedly of individuals partners second, deference; the BIA whether family poli- planning China’s coercive 601(a) to extend reasonably construed Each review of order of cies. seeks an asylum eligibility petitioner to a affirming denial of automatic summarily subject- spouse was based, legally on whose married part, application for involuntary abortion or steriliza- remand- ed to holding the BIA’s C-Y-Z-.1 We fiancé partner or afford it tion but not a domestic petitions these BIA to ed peti- claim derivative unless opportunity explain rationale whose its Lin, 25, 2002), (Immig. aff'g Ct. A77 293 661 Liang No. A70 895 1. See re Shi No. Zou, 12, 2000); A77 (B.I.A. 29, 2002), City In re No. aff'g Oct. Sept. A70 895 638 N.Y. No. 27, 2002), (B.I.A. 9, 2000); A77 Aug. aff'g No. May (Immig. City In re N.Y. Ct. 4, 2002). City (B.I.A. Apr. Sept. (Immig. Ct. N.Y. 7 293 Dong, Hua No. A Zhen engaged tioner in “other resistance” to a as petition dismissed moot.2 The Xian population policy. control Lin v. Zou jurisdiction.3 is dismissed for lack of Justice, 02-4611, Dep’t Nos. 02- U.S. We recognize this decision creates a (2d 13, 2006) 4629, 03-40837 Cir. Nov. split among the circuits.4 S-L-L-, (order) (“En order”). banc 1; 24 I. & N. Dec. Chevron Inc. v. U.S.A. I. BACKGROUND Council, Inc., 467 Natural Res. Def. (1984). Congress given Attorney Gener- 104 S.Ct. L.Ed.2d al discretionary authority grant We now conclude that the BIA erred in asylum an qualifies alien “ref- 1101(a)(42) interpretation of 8 U.S.C. ugee” because he or she “is or un- unable by failing acknowledge language willing avail himself herself 601(a), in the viewed context the stat- protection of or her country] [his native utory governing scheme entitlement because of or a well-founded asylum, unambiguous and that does fear race, on account of refugee not extend automatic status religion, nationality, membership par- in a partners unmarried individu- ticular group, social expressly protects. opinion.” als Accord- *5 1101(a)(42). 8 ingly, petition § of Zhen Hua U.S.C. A Dong showing past Liang denied. The petition persecution gives Shi Lin is pre- rise to a rebuttable Subsequent arguments, we to oral recently learned Third Circuit validated the BIA’s in- attorneys that Lin contact has had no with his 601(a) terpretation § vigorous over a dis- 2004,” "early attorney since and that his be- Gen., Att'y sent. Sun See Wen Chen v. U.S. lieves he has either returned to China or 100, (3d Cir.2007). 491 F.3d 108-9 ¶¶ (Aff. Poon, 3-5). Ling is deceased. of Yee already split The circuits are over whether Accordingly, Lin's case is moot. 8 C.F.R. § provides protection for individuals § 1208.8. marry who in traditional rec ceremonies not longer jurisdiction 3. We no have over Zou's ognized by government their and later seek petition because the BIA has remanded the based the forced abortion or sterili immigration case to court further for find- spouses.” zation of their law "common The Zou, ings. See In re Xian No. A77 322 295 Seventh and Ninth Circuits held (B.I.A. 21, 2006). Nov. statute covers from mar traditional ceremonies, 999; riage Zhang, see 434 4. A number of our sister circuits have de Gonzales, 316, (7th Zhu v. 465 F.3d 321 Cir. 601(a). interpretation § ferred See, BIA's 2006); 553, Ashcroft, Ma v. 361 F.3d 559-61 Gonzales, 993, e.g., Zhang v. 434 F.3d (9th Cir.2004). contrast, Circuit, In the Third (7th Cir.2006); Huang Ashcroft, 1001 v. 113 Chen, supra, held amendment does 695, (6th Cir.2004) Fed.Appx. (unpub 700 partners, cover unmarried when even 593, opinion); Ashcroft, lished v.He 328 F.3d they prevented have been marrying by (9th Cir.2003); Ashcroft, 604 Li v. 82 Fed. government's family their planning policy. 357, (5th Cir.2003) Appx. (unpublished 232-34; 381 F.3d at also see Chen v. Gon per opinion). curiam While the Third Circuit zales, (1st Cir.2005) (ac 418 F.3d questioned had reading plain the BIA's of the knowledging issue). split on circuit While amendment, language stating of the that "[i]t they have not reached issue of traditional some takes effort reconcile [the BIA’s] in ceremonies, marriage the Fifth and Eleventh terpretation language with the of the 1996 amendment, Circuits have declined extend IIRIRA phrase person since the ‘a who § boyfriends 601 to cover of individuals who pregnancy has been forced abort a or to undergo subjected have been to a forced involuntary abortion or sterilization' is most nat urally referring only person Zhang Ashcroft, read sterilization. See v. to a 395 F.3d (5th Cir.2004); personally undergone proce Wang Att’y one those v. U.S. dures,” Gen., Ashcroft, (11th Cir.2005) Chen Fed.Appx. 381 F.3d (3d Cir.2004) (Alito,J.), panel (unpublished a opinion). divided credible, Lin ing, future the IJ found but conclud fear of sumption of a well-founded 1208.13(b)(1). qualify that he did not based C.F.R. ed persecution. girlfriend’s on his forced abortion and de 1996, Congress passed IIRIRA petition. nied the BIA affirmed with 601(a), 8 U.S.C. amended Lin, re opinion. Liang See In Shi No. out 1101(a)(42) broadening its definition (B.I.A. 29, 2002), aff'g Sept. A70 895 638 lan- following adding “refugee,” A70 (Immig. City No. 895 638 Ct. N.Y. guage: 2000). 9,May been who has person [A] invol- pregnancy undergo Dong a or Petitioner attempted abort enter sterilization, or who has been untary United States October and was un- or refusal to persecuted for failure detained INS officials. When the INS other dergo procedure a such proceedings, Dong commenced removal re con- population removal, resistance to asylum, quested withholding of to have program, trol shall be deemed Against and relief under the Convention account of persecuted (“CAT”). asylum petition His was Torture person who has a well opinion, (who fiancée based on a claim his he or she will be China) founded fear that reside had been continued to undergo procedure forced to two undergo forced to abortions and that failure, subject for such jailed having he would be fined for left refusal, resistance shall be deemed illegally deported. were he to be China have a founded fear of well Dong’s finding petition, The IJ denied political opinion. on account of that, credible, he although he did 1101(a)(42). as a of a qualify refugee status fiancé U.S.C. *6 forced undergone woman who had abor “past BIA held that year, The next tions, and had established other of one can estab- spouse be for relief. The BIA affirmed the grounds lished coerced abortion sterilization Dong, In Hua IJ’s decision. See re Zhen spouse,” spouses of the other so (B.I.A. 25, 2002), Sept. No. A77 directly by coercive individuals victimized N.Y. aff'g (Immig. No. A77 293 661 Ct. per family policies eligible se planning 2000). City Oct. 1101(a)(42). § See pursuant for to C-Y-Z-, 21 I. & N. Dec Matter custody into Petitioner Zou was taken banc). (en (B.I.A.1997) BIA 917-18 he attempted when enter INS reading no for gave reasons statute in 2000. Af- September the United States compel this result. commenced, Zou proceedings ter removal law, Zou asylum. filed for Under Chinese Lin entered the United States
Petitioner girlfriend young his had too and been January application in filed an marry. claimed that she had He withholding of for removal had to have an abortion he forced application, to Lin’s According June 1993. protest- with arrest after been threatened governmental had sought required he An de- planning officials. IJ girlfriend ing family his permission marry her, found Zou’s application. but too nied the The IJ have children with she was testimony concerning threatened arrest girl his young under Chinese law. After his incredible, doubting Zou would be pregnant friend was forced became abortion, authorities and His able to evade the Chinese have an Lin left China. out- States with an remained in because she travel the United girlfriend China from the Chi- standing a hear warrant arrest Following was too weak to travel. government. nese Left with Zou’s lum law.” Brief DHS on Remand at S-L-L-, (B.I.A. girlfriend undergone claim his had In re 24 I. & Dec. 1 N. 2006) abortion, (en bane) (No. 638) (“DHS held forced the IJ that Zou did A70 895 1101(a)(42) qualify Carefully relief under brief”). considering text of BIA, 601(a), appealed on that Zou basis. the DHS concluded that a rule which affirmed the decision of the conferring per refugee IJ. spous se status on (B.I.A. Zou, Aug. re No. A77 322 es of persecuted individuals under coercive 27, 2002), aff'g (Immig. family No. A77 planning policies contradicted the 2002). City Apr. Ct. N.Y. The three unambiguous language of the amendment. petitioners sought Further, here review and the DHS stated that a rule cases heard in were tandem. at legislative was odds with the history of amendment, well as “a fundamental interpretations Three different precept refugee that, law application of “refugee” status to the facts qualify for protection, an applicant must proposed by these cases have been demonstrate that he will targeted parties throughout litigation. When protected his own belief or characteristic.” tandem, petitions we heard the De- 8-9, DHS 11. The DHS under brief partment argued of Justice stood required “case-by- statute of IIRIRA should be understood to confer application case” to individuals who have per refugee spouses se status on individ- not themselves been of a victims uals undergone who had forced abortions involuntary abortion or sterilization. Un sterilizations, involuntary but not approach, spouses, der this boyfriends, and boyfriends fiancés, covered, who were if fiancés would have to demonstrate their all, lan- “other resistance” qualification refugee status under the guage Second, amendment. “for other resistance to a coercive popula petitioners argued, before both this Court tion program” control provision BIA, and before the that the distinction 601(a). between partners and unmarried arbitrary and that the statute should remand, S-L-L-, On 24 I. & N. Dec be interpreted per refugee to extend se affirmed its earlier decision in status partners to the committed indi- *7 601(a) C-Y-Z- that applicant under an viduals undergo who have been forced to spouse whose undergo was forced to involuntarily or abortion sterilization. or abortion sterilization procedure is auto- matically asylum, entitled to while limiting third, The a interpretation, text-based interpretation its to individuals who were put was by forth before De the the opposed legal to their spouse’s abortion or partment Security (“DHS”), of Homeland sterilization. at 4. Id. The BIA reasoned “charged with the administration 601(a) provided “no clear obvious relating enforcement of ... laws answer to the scope protections of the ... the immigration and naturalization partners of persons forced to submit to aliens,” 1103(a)(1). 8 U.S.C brief its an abortion or sterilization.” Id. As a BIA, the DHS insisted that no perceived result ambiguity, the ma- support existed in the statute for the jority ground chose to interpretation BIA’s automatic extension “in the context of the history purposes spouses. Specifically, the DHS asserted whole,” Act as a finding that that the interpretation BIA’s was “at odds with the reading most natural stat spouse absent evidence did not ute and with principles asy established oppose an pro- abortion sterilization slate, on a clean I writing we
eedure,
[w]ere
the forced abortion
interpret
we
lately
posi-
adopt the
arrived at
clause of
section
sterilization
101(a)(42)
Act,
light
Department
tion of the
of Homeland
of the
amendment,
not
Security
that whether or
purpose of
overall
marriage.
spouse
forcibly
to a
of a
sterilized or aborted
parties
both
include
can
found to have been
individual
on “the
decision rested
at While the
Id.
case-by-case
on
persecuted depends
a
clause of
abortion and sterilization
forced
spouse
assessment of whether that
was
101(a)(42),”
noted that it
the Board
section
persecuted on account of “other resis-
regarding
“general principles
applying
was
population
a
control
tance” to
harm.”
at 5.
and level of
Id.
nexus
the Act
system,
language
because the
on a
majority
its conclusion
The
based
support extending refugee
not
sta-
does
factors, including
policy-based
number of
any person
tus
other than the one
and the
positions
litigants
taken
aborted,
from the
sterilized or
aside
C-Y-Z-,
a ten-year-old
deci-
fact that
ground.
resistance”
“other
sion,
long-standing precedent.
constituted
also influenced
The
B.M.,
(Pauley,
concurring).
at
Id.
couples
responsibility
shared
married
joined by
Filppu,
Member
Board
Board
family
regarding
planning decisions
Cole,
in the result but
Member
concurred
impact”
“profound
law and
Chinese
majority’s
reaffirmation
dissented
that a forced abortion
sterilization
the lan
They
of C-Y-Z-.
reasoned
parties
marriage.
Id.
6-8.
both
unambiguous in
guage of the statute was
extending
majority stopped short of
“focus[ing]
person’
on ‘a
fian-
per
presumption
boyfriends,
se
pregnancy,
to abort a
”
cés,
It
partners.
and other unmarried
couple....
‘couple,’ let alone a married
comparable
were
they
concluded that
B.M., concurring and
(Filppu,
Id. at 16
sanctity
“the
because
mar-
husbands
Understanding
dissenting).
that “statuto
re-
riage
long
and the
term commitment
ry interpretation
begin
must
with refer
place
husband in a
by marriage
flected
language
ence to the
structure
from that of an
distinctly
position
different
express
statute,”
and “Congress
id.
Id.
The BIA
unmarried father.”
at 9.
it choos
through
language
es its intent
id.,
Lin,
appeals
dismissed
es,”
Cardoza-
at 19
INS v.
(quoting
id.
A77
Dong,
In re Zhen Hua
No.
Dong,
Fonseca,
n.
(B.I.A.
2006),
and remanded
Nov.
(1987)), the dissen
5. While equal perhaps to more plies with force petitioner a wife or to a male refer peti- undergo in which a female situation girlfriend who an uncommon has been forced Chevron, decision, BIA’s or- U.S. at Following the we statute.” rehearing to determine dered en banc S.Ct. 601(a) ambiguous, is whether whether petitioners in While the this case are interpretation “refugee” the BIA’s partners, spouses, unmarried and not deference, be accorded Chevron should subjected individuals who been “[wjhether reasonably the BIA con- abortions, forced we review the BIA’s in- strued IIRIRA 601’s definition of “refu- terpretation of as articulated (a) gee” petitioner to: include whose below, per pre- decision to extend a se subjected legally spouse married to an sumption to spouses, but ...; involuntary abortion sterilization partners, non-married of individuals (b) not a petitioner include whose involuntarily subjected who have been derivatively on any claim is based other an abortion or sterilization.6 It is exis- person relationship with who was sub- spousal peti- tence of that the policy
jected to procedure, peti- such a unless the argue arbitrary capri- tioners is an engaged tioner has ‘other resistance’ to interpretation cious If statute. population pro- control policy plain BIA’s is at with the odds gram. ...” En banc now order. We statute, language it makes little interpretation conclude that the BIA’s can sense consider whether it rea- correct. statute is not sonably couples be limited to are for- who
mally married. II. DISCUSSION we our Accordingly, start Chevron anal- reviewing When inter ysis by asking BIA’s whether Con- pretation administers, directly of statutes that it gress spoken question has apply principles. we the Chevron We first can past whether an individual establish Congress spoken. ask if has “If the intent solely spouse based his clear, Congress partner’s end of the forced abortion or sterilization. matter; court, agen 842-43, for the as well as the 467 U.S. at In S.Ct. 2778. S- L-L-, cy, give BIA, unambiguously must effect without elaboration or ex- Chevron, expressed Congress.” intent planation, observed that is no “[t]here 842-43, 2778; see S.Ct. clear or obvious answer to the scope Cardoza-Fonseca, also INS v. protections 480 U.S. afforded the amendment to 421, 447-48, 107 434 partners persons L.Ed.2d forced to submit (1987). Only if the statute is silent or abortion or sterilization.” I. N. Dec. & turn ambiguous inqui do we to the second at 4. We disagree. We conclude that Con- ry interpretation the BIA’s con gress spoken has issue —whether “a permissible stitutes construction of the done unambiguously. so order, spouse boyfriend male including tioner's express those now con- undergo why question. sterilization. fusion as to we reach the We particularly perplexed by position tak- colleagues Judge en our Katzmann and 6. We announced our intention to reach this Judge Sotomayor, question who contend we are in our over- order that this case be re- reaching by considering en heard banc. we whether the BIA's order instructed *9 parties per se interpretation step to address the BIA's rule survives review under Chevron one, assess, spouses proceed of 601 as it but related to both who then to valid, partners subjected non-married of individuals declare same rule under Chevron 324, involuntary step Judge to an or Op. Op. abortion sterilization. two. Katzmann joined All en panel Judge Sotomayor members of this banc at 327-28 & n. 1.
305 1101(a)(42). language The following 8 U.S.C. Court, when this past, In the person to “a clause, refers first C-Y-Z-, has deferred holding the BIA’s a pregnancy to abort has forced who been per without interpretation BIA’s to the sterilization,” involuntary undergo or to analysis Chevron a threshold forming to reference more clear not be could v. In Yuan the statute. ambiguity of couple,” “a who rather than person,” “a stat Justice, example, for we Dep’t U.S. or a abortion subjected to forced has been that, plain “[b]y its § 601 IIRIRA ed of interpreta- This involuntary sterilization. to extend seem the law language, first that rules: two cardinal tion follows actual victims only to status refugee begin must “[statutory construction who a woman example, persecution —for Congress and employed language but pregnancy,’ a to abort was ‘forced meaning ordinary assumption (2d 192, 196 Cir. 416 F.3d her husband.” accurately expresses language of that of the 2005). recognition Despite v. Fly, Inc. Park 'N legislative purpose,” we went language, plain amendment’s 189, 194, Inc., 469 U.S. Fly,& Dollar Park BIA, interpretation defer to (1985); and, 582 L.Ed.2d 105 S.Ct. that, have held “we stating the under- second, begin with “we un subject persecution to actually people says in a statute Congress standing policies family planning der in statute what and means a it means what so, doing asylum.... eligible for per se Ins. there,” Underwriters says Hartford Rather, why. however, explain we did N.A., Bank, Planters v. Union Co. Id. at BIA.” lead followed we L.Ed.2d 6, 120 S.Ct. omitted); also (internal see citation 196-97 omitted). (internal (2000) marks quotation (2d Cir. I.N.S., F.3d Zhang v. written, who person “a the statute Ashcroft, As 2004); Qiu pregnancy” a abort Cir.2003). defer forced to has been (2d To the extent who has to a to woman unambiguously read refers can be these cases implicit ence a forced abor subjected to due, physically over they are been say that deference been forced who has tion, person “a ruled. involuntary sterilization” undergo to physically who has provides: individual amendment means proce involuntary medical undergone to (1) been forced who has person a [ ] infertility. Had intended result dure invol- undergo or to pregnancy a abort ato to refer this clause intended Congress [(2)] has sterilization, or who untary who of someone partner spouse for failure refusal persecuted been pro to a subjected physically been (3) ] or [ procedure undergo such Id. said so.” simply have cedure, “it could population to a coercive resistance other 7, 120 deemed shall be program, control clause the second Similarly, po- account persecuted been “has who person” to “a refers (4) amendment person a] opinion, [ litical or refusal failure persecuted or she that he fear a well founded sterili- involuntary undergo abortion [an proce- such undergo be forced will 1101(a)(42). Like U.S.C. zation.]” (5) subject or [ ] dure clause, refers language preceding refusal, resistance failure, ] or [ or refused failed who have individuals founded have a well deemed shall to”) af- procedure (i.e., “submit undergo politi- on account of fear lan- bodies. Under own fecting their opinion. cal *10 guage used Congress, having someone her reaction to a threat of “undergoing]” else, such as spouse, one’s undergo a an abortion or sterilization to his or her forced procedure does not quali- suffice to own body. section, This like previous fy an refugee individual for status. categories three discussed, cannot be read
A parallel analysis governs reasonably to catego- cover an individual’s fears 601(a) §of ries relating to the arising establish- from a procedure per- ment of a well-founded per- fear future formed someone else.7 secution. The fourth category covers “a S-L-L-, the BIA noted that it was person who has a well founded fear that he applying “general principles regarding or she will be forced to undergo [an abor- nexus and harm,” level of 24 &I. N. Dec. tion or involuntary sterilization].” This principles derived from general category 5— plainly excludes individual refugee definition subsection who does not fear that she will be herself 1101(a)(42) § reach its holding. subjected We —to to a forced abortion or steriliza- believe this approach was tion. Not correct. does refer to “a person,” general definition indicate that of “refugee” person will “under- 1101(a)(42) § go” procedure permits herself, “any his- person” or the use who pronouns experiences “persecution “he” and “she” or a reinforces well-founded the intention Congress fear of persecution to limit ap- race, on account of plication of the clause to religion, individuals who nationality, membership in a par- are themselves physically forced to under- ticular social group, opinion” to go an abortion or sterilization. obtain asylum. 8 1101(a)(42). U.S.C. Nothing in general
Finally, the fifth
definition of
category of
refu-
individuals
gee would permit
refers to
person
“a
“any person”
who
has well
founded
fear that
personally experienced
he or
she will be ... subject to
for such
well-founded
failure
fear of
[or] refusal
future persecution
[to
undergo an
on a protected
abortion or
ground
involuntary sterili-
asylum,
to obtain
as
zation].” Like the
language
per
BIA’s
previ-
se
rule would permit.
In-
clauses,
ous
phrase
this
deed,
is unambiguous in
an examination of the overall statu-
its reference to “a person” who
tory
fears that
scheme
that,
reassures us
pursuant to
“he or she” will
persecuted
Chevron,
his or
we must conclude
Congress
7. No member of the en
disputes
("The
banc Court
at 106
C-Y-Z- rule ...
fleshes out an
reading
601(a). Instead,
of IIRIRA
our
germane
issue
to the application
601(a)
[§of
]
colleagues assert
language
other
in 8
that was not
addressed
Congress, and so
U.S.C.
1101(a)(42) language
predating
poses no
step
—
Chevron
problem.”).
one
But
adoption of
(in
might
Chen,
see
amendment —
Sun Wen
(McKee,
307 1160, 122 L.Ed.2d 163, 168, 113 S.Ct. to U.S. spoken unambiguously clearly has (1993).8 517 & v. Brown FDA hand. See issue Corp., 529 U.S. Tobacco Williamson 601(a) nothing § does of language The 1291, 146 L.Ed.2d 132-33, 120 S.Ct. “po- definition pre-IIRIRA to alter Congress (“In determining whether (2000) 1101(a)(42), §in opinion” litical the question addressed specifically exclusivity further demonstrates one], a review- step Chevron [under issue se asylum per entitled persons group to exam- itself confine not should ing 601(a). court have an- Congress could § statutory provision ining particular opinion” “political the term nounced that interpret must A court in violation isolation.... act reproductive any included and coherent symmetrical as a control program, population the statute of a (citation internal specific to create scheme.” it chose regulatory but instead omitted)). statutory require- general exception marks quotation claiming refugee status a person ment that Congress that when to us apparent It is burden persecution past based in Matter view the BIA’s rejected con- particular demonstrating (B.I.A.1989), of I. & N. Dec. Chang, the level rose to by experienced him duct anas nations in other policies control birth had and the clear did so in asylum, it avenue See 8 nexus. impermissible specified those It identified language. unmistakable 1158(b)(l)(B)(i) (stating that § U.S.C. granted be asylum could to whom applicant on the proof is burden “[t]he personal direct the need reaffirmed is a refu- applicant that the to establish designa- specific Congress’s persecution. 601(a) cer- states IIRIRA gee”). fear, (i.e., those persons of some tion popu- by coercive affected tain individuals pro- medical resist, undergo particular or be “shall deemed” programs lation control cedures) view with the incompatible opinion. political by reason of persecuted also be context,9 spouses) should (e.g., their in this others word “deem” using In birth 601(a) se because who bene- asylum per those clear that granted makes of some enti- inclusion be amendment policies. fit from the control asylum relief opinion of others. political exclusion per in the obviously results tled se words, 19, 28, Andrews, other amendment. absent Inc. v. TRW jure rather (2001); de opinion exists their L.Ed.2d 339 122 fact on a matter of Narcotics than County Tarrant Leatherman For proof. the burden Unit, applicant bears and Coordination Intelligence have,” or, alter- in the it doesn't qualities that have em- that we Judge Katzmann contends consider, think, judge.” native, statutory ”[t]o canon ployed this well-known ed.2004). (8th IIRIRA Dictionary to conclude construction Black’s Law restricts, expands, the 601(a) rather than Dictionary notes that further Black’s Law Judge Op. of availability asylum relief. traditionally considered "has word deem is mis- This contention at 318-19. Katzmann necessary to word when it to be a useful acknowledge IIRIRA placed. We positively legal either fiction establish a asylum, availability of expands what it is not something 'deeming' only to it so significant that does but find something to be ‘deeming’ negatively categories of specifically-enumerated word of the uses All other it is.... what do not include applications categories — (quoting G.C. Thorn- Id. be avoided.” should per rule. BIA’s se the beneficiaries 1996)). (4th ton, Drafting ed. Legislative (something) as if treat "[t]o "deem” is 9. To else, (2) it has something really it were *12 applicant who does not fall with- Indeed, the critical defect in the in this limited exception, the policy burden re- BIA’s of according per se refugee mains on applicant status to spouses the opportu- explicitly individuals —and nity protected 601(a) by § open remains demonstrate, creation of an —to irrebuttable light presumption particular refugee case, facts of status for a new persons. (i) class that policy he has This a well-founded fear of per- effectively absolves large asy numbers of (ii) sonal persecution based on political lum applicants of the statutory burden to opinion or some other impermissible prove (i) they have a well-founded ground. fear persecution (ii) based on an imper This is consistent with what we know: missible nexus. Such a presumption is plain While it is that suffering contrary a forced text of 8 U.S.C. medical procedure can persecution be a 1158(b)(1)(B), if which specifies that “[t]he is on proof account a burden of protected is on ground, the applicant,” “the conception applicant of a must establish child is no po more an expres litical opinion was or political sion of will be at least opinion than one birth, death, central reason for persecuting the sleep, appli or the taking of nourishment. If the cant,” and that an applicant’s testimony language 601(a) §of indicates that may be sufficient to meet this only burden woman who is subjugated to the outrage of if it “refers specific facts sufficient to a forced abortion has not herself been demonstrate that the applicant is a refu persecuted for “political opinion” of gee.” The law is clear that “an agency is conceiving child pre-IIRIRA to ignore free statutory language by § 1101(a)(42), then so much less the man creating a presumption grounds poli who has impregnated her; but unlike his cy to avoid necessity for finding that wife or partner, he is not “deemed” under which the legislature requires to be 601(a) political hold a opinion and he found.” United Scenic NLRB, Artists v. prove must the existence of a political 762 1027, F.2d (D.C.Cir.1985). opinion or other protected ground under creation of such presumption “is beyond § 1158(b)(l)(B)(i). Accordingly, we con the [agency’s] statutory authority.” Id. at clude that the statutory scheme unambigu 1035; see also INS, Cerrillo-Perez v. ously dictates applicants can become (9th Cir.1987) 1426-27 (holding candidates for relief based on that the “BIA cannot adopt a general pre they themselves have suf sumption” unfavorable to applicant but in fered or must suffer. See Chen, Sun Wen stead “must consider specific facts and 491 F.3d at (McKee, J., dissenting) ease”). circumstances each Thus, the (“Congress could easily drafted BIA lacks authority to adopt a policy that [§ ] to extend to ‘married couples presumes that every person spouse whose who have been subjected to a forced subjected abor was ato forced abortion or steri tion or involuntary sterilization.’ lization So draft has himself experienced persecu ed, an actual victim of tion political based on under a opinion. coercive population program, control Our concurring colleagues Judge Katz-
well as
spouse,
his/her
would qualify for mann and Judge Sotomayor suggest that
relief under the statute. However, Con
nexus
prong
this presump-
gress did not draft the statute in this way,
is,
tion
fact,
inherent in Congress’s 1996
and we can not rewrite the statute’s explic
amendments. Op. of Judge Katzmann at
it text to
result.”).
achieve that
324; op. of Judge Sotomayor at 331. How-
matter,”
and we
end of
is the
with
irreconcilable
ever,
contention
deferring to
refrain from
required
Con-
601(a), which
§of
language
interpretation.
contradictory
agency’s
specifi-
presumption
created
gress
see,
2778;
e.g.,
842-43, 104 S.Ct.
were
persons
identified
cally
—those
Inc.,
Co.,
Sigmon
Coal
Barnhart
threatened
subjected to
themselves
L.Ed.2d
122 S.Ct.
To the U.S.
or sterilization.
abortion
forcible
*13
Tobacco
(2002);
& Williamson
Brown
908
overruled
amendments
the
that
extent
1291;
160-61, 120 S.Ct.
at
U.S.
Corp., 529
rejection of
categorical
Chang’s,
Matter of
Nat.
First
v.
Admin.
Union
Credit
38,
Nat’l
Dec.
N.
nexus,
I. &
20
a
such
479, 500, 118
Co.,
U.S.
522
& Trust
Bank
long-
is no
applicant
an
that
means
(1998);
Tele
MCI
1
927, 140 L.Ed.2d
aof
S.Ct.
on evidence
relying
from
foreclosed
er
&Tel.
American
v.
Corp.
communications
or sterilization —whether
abortion
forced
226-28, 114 S.Ct.
218,
Co., 512 U.S.
Tel.
to
attempting
spousal
or
personal
—in
(1994); Cardoza-
2223,
L.Ed.2d
political
on
based
demonstrate
447-48, 107 S.Ct.
Fonseca,
480 U.S.
that
remains
However,
fact
opinion.
language
of
choices
Congress’s
who 1207.
persons
only
has relieved
Congress
has been
who
person
“a
phrases,
threatened
or are
experienced,
actually
undergo
toor
pregnancy
to abort a
forced
sterilization
abortion or
with, a forcible
who
sterilization,”
person]
“[a
involuntary
nex-
a
proving
burden
or refusal
failure
for
persecuted
has been
cases.
particular
in their
us
per
and “a
procedure,”
a
such
undergo
to
whose
an
deny
individual
that
not
doWe
or
he
that
fear
a
founded
well
who has
son
with, a
isor
threatened
undergoes,
spouse
proce
a
such
undergo
to
forced
will be
she
involuntary sterilization
abortion
forced
such
for
to
subject
dure
as a
loss
emotional
a
may
profound
suffer
unambig
uniformly
refusal,” is
[or]
failure
a
such
But
parent.
potential
a
partner
who
individual
an
reference
in its
uous
that
requirement
change
not
loss does
with, an
to, or threatened
subjected
is
meaning” of
“ordinary
follow
must
we
affect
or sterilization
involuntary abortion
accord-
by Congress,
chosen
language
statutory
body,
her own
his or
ing
auto-
does not
individual
ing which
1101(a)(42) only reinforces
§of
scheme
“refugee” status
matically qualify
conclusion.
performed
procedure
a coercive
account
United
Moskal
result,
else.
conclude
someone
we
aAs
111 S.Ct.
States,
spouse—
provide
does
statute
the im-
(stressing
or fiancé—of
L.Ed.2d
boyfriend
fortiori,
their
used’
undergo,
‘words
“giving
portance
who
someone
Cardoza-Fonseca,
”);
meaning.’
steri
‘ordinary
with,
an abortion
or is threatened
(“Where
“refu
automatically eligible
480 U.S.
lization is
clear,
arewe
is
refu
law[
Instead,
[a]
]
language
qualify
gee” status.
an unenacted
amendment,
it with
replace
such
free
gee status
intent.”).10
remaining
the two
legislative
turn
must
individual
pro
provide
601(a), which
§of
categories
Chevron,
apparent
it is
once
Under
demonstrate
petitioners
tection
inquiry
our
unambiguous,
is
statute
population
to a
clear,
“other resistance
is
Congress
“If
intent
stops.
601(a)
response to
adopted IIRIRA
Con-
with
inconsistent
If
conclusion
N.
I. &
Chang, 20
in Matter
chooses,
BIA’s decision
can,
intentions,
it so
if
gress's
(B.I.A.1989).
Dec. 38
statute,
when it
course,
as it did
amend
States,
61, 70,
or “a well
fear
program”
control
founded
United
328 U.S.
66 S.Ct.
(1946).
subject
he or
will
...
earlier determining meaning decisions the report The examples mentions as of vic- of statutes.” Monell v. Dep’t Social family tims of coercive planning policies Servs., 436 U.S. 98 S.Ct. subjected women who have been to invol- (1978). L.Ed.2d 611 We should not do so untary abortions, men and women who either. fact The that we have failed to sterilized, forcibly “couples with unau- plain language follow the of a law of Con subjected thorized children [who are] gress years require ten does not fines,” excessive but not of individ- we do so indefinitely. That “place subjected uals who have been to forced on the Congress shoulders of the burden abortions or sterilizations. Id. While Con- of the Court’s own v. gress error.” Girouard disapproved family plan- coercive party argues laws) While no enforcing immigration before us the one, rule in step S-L-L- fails under Chevron rule S-L-L- survives review under Chevron BIA, argue point DHS did step before support one if rule finds no in the rejected the BIA argument statutory considered and Accordingly, text. we assume that persuasive by over dissent two members appropriate Solicitor General will take event, any the Board. we cannot defer to action to recommend or assure that the views Department argument (op- of Justice's represented of DHS and this Court will be DHS, posed agency charged any below proceedings. future Moreover, “empha- Congress’s friend.” whole, amendment aas policies ning that “the burden indi- on intention si[s]” protection provide meant demon applicant” on remains subjected proof were who viduals other subsection report goes that no As strates themselves. 1101(a)(42) in the BIA’s support could state: Sun the statute.12 emphasizes terpretation Committee The J., (McKee, appli- Chen, on the remains proof Wen burden case, (“The establish ex cant, every Report other House dissenting) he or she to restrict credible evidence intent congressional presses subject undergoes ‘person’ —in or steriliza- case, abortion coercive clearly as the just as procedure coercive has a tion —or statute.”). fear well-founded text of the is aware Committee treatment further of the statute reading This based asylum claims pro- Supreme Court’s by the supported by entire made are often family planning “refugee” what means. nouncement about aliens, suggest- thus smuggled groups Elias-Zacarias, Supreme In INS v. claims, if some of ing that least language plain held that Court “coached.” have been majority, subsec- refugee definition *15 general of the [601(a) to pro- is not intended ] Section “ ac- 1101(a)(42), on ‘persecution § tion of actually been have not who persons tect in opinion’ political count specif- measures to coercive subjected 1101(a)(42) account on persecution is] [§ measures with such threatened ically U.S. opinion,” political victim’s 812, L.Ed.2d 38 112 S.Ct. added). is There 174 (emphasis Id. at persecu- not original), in (emphasis history that leads legislative nothing in the held opinion of a on account tion presumption strong “the question us to a Similarly, spouse else. by someone through intent expresses Congress that is a he himself that has demonstrated not it Cardoza-Fonse language chooses.” to be entitled cannot victim 1207. n. 107 S.Ct. ca, at 432 of the statute. section under asylum in employed Congress Here, language oth- conclude be unreasonable It would 601(a) it wanted that § demonstrates 601(a), § or under erwise, under whether couple,” “a not not person,” “a cover 1101(a)(42) a whole.13 § as an “intimate and not “significant other” by the amend- protected explicitly not Congress, those that Judge asserts Katzmann 12. Judge Katz- precarious is 601(a) Even more ment. § adopted IIRIRA when messages he the various reliance goal mann’s as accomplish the same intended silence. Congressional in the sounds hears Attorney Barr General order of former at 323. Judge Op. of Katzmann by reviewed enacted and never never was that explicitly any order would court. That Judge concurring opinion, Sotoma- her family spouses of asylum to granted holding casts today’s doubt suggests yor Judge Katz- Op. policy victims. planning (2d Gonzales, F.3d 146 Jorge-Tzoc v. is Judge assertion Katzmann’s at 320. mann BIA on Cir.2006) (remanding asylum claim to language of by plain squarely contradicted of circum- a "combination Attorney determination 601(a), § which—unlike IIRIRA in Gua- by applicant experienced stances” grant asylum not Barr's order —does General including dependent victims, aas as temala as well child— spouses of above, family members —"could of close massacre history legislative by recounted persecution” of [past] 601(a) constitute § well emphasizes IIRIRA be- child). this concern We do not address asylum available make intended to Our conclusion Congress in- never The BIA’s interpretation of the statute 1101(a)(42) § § tended 601—or in S-L-L- apply cuts a different —to direction since it automatically perverse by effect of creating reinforced incentives for the fact husbands Congress to leave provides their already wives. As hundreds cases family courts members elsewhere in the statute illustrate, policy allows a married man by authorizing asylum derivative status to “capitalize on the persecution of his wife spouses and children individuals who asylum obtain even he though left qualify “refugees.” 8 U.S.C. his wife behind and she might join never 1158(b)(3)(A). § Specifically, him and might he intend that she do § 1158(b)(3)(A), an individual whose so,” Chen v. Ashcroft, 376 F.3d 223 n. spouse parent has been granted asylum (3d Cir.2004). It highly unlikely— on the having basis of undergone or been indeed, inconceivable—that Congress threatened with the prospect of a forced approve of, much less intended, any abortion or sterilization is automatically of this. These counterintuitive re- results eligible for asylum: derivative spouse “[a] inforce our conclusion or child ... of an alien granted who is Congress intended to grant asy- automatic asylum under this subsection may, if not lum to an individual directly victimized otherwise eligible under this a coercive birth control policy, and that no section, be granted the same status as the part 1101(a)(42) §of extends this automat- alien if accompanying, following join, ic spouses. Congress not, did such alien.” the same time it adopted 601(a), intend to gut or to undermine 1158(b)(3)(A), Congress What did providing in which already contained synchronous, 1158(b)(3)(A) for automatic asylum for way sensible of addressing the compelling *16 spouses of individuals who have been problems faced spouses and of children granted “refugee” status as a of result direct victims. having been forced to undergo an abortion Although we conclude that Congress has or involuntary sterilization reflects a policy spoken unambiguously to whether asy- an decision to encourage preservation applicant lum is per se eligible for asylum families. 1158(b)(3)(A) Under the bene- if his spouse partner or has suffered as a fits of are extended first to the result of a coercive population control pro- person Congress understood to be most gram, phrase “other resistance” is am- deserving protection direct victim. —the biguous and leaves room for the BIA’s Once the gains victim asylum, so does the reasonable interpretation where the appli- spouse, and so do their children. This cant relies on something beyond his structure encourages couples to remain to- spouse’s or partner’s persecution.14 See gether, or, in circumstances where this is Yang v. Gen., U.S. Att’y 418 F.3d not possible, facilitates reunion. (11th Cir.2005) (“There is very little today's cause preclude decision does not (9th Cir.2004) (en 1159-61 banc) (ana- BIA from considering totality of circum- lyzing meaning of the "other resistance” any particular stances in case to determine if clause and holding applies that it to a woman applicant has carried statutory his who announced opposition her government burden. population policies control and was thereafter subjected to a forced gynecological exam and analysis For an of what might 14. "resistance” abortion, threatened with future sterilization mean when someone has not forcibly been boyfriend, arrest). of her himself, sterilized Ashcroft, see v.Li 356 F.3d the BIA choos- interpretation Whatever ‘other resistance’ analyzing law case “resistance,” it meaning to the Additionally, give toes asylum statute. in the clause an individual’s fact that that the history behind clear is the legislative a review have an abortion any forced to has been spouse not reveal does Amendment does involuntary sterilization scope undergo on the Congress or intent clear ”). own, resistance constitute not, clause.’ resistance ‘other policies. family planning coercive decision, held that the BIA In its (“[Mjerely impreg- at 532 F.3d Zhang, 395 for “other persecution claiming applicant an act alone girlfriend nating one’s (1) “resis must demonstrate resistance” ”). the resis- could Nor of ‘resistance.’ policy, family planning to a tance” partner spouse or of an individual’s tance range of circum a wide “cover[ ] can policy family planning general expressions —whether stances, including undergo procedure, refusal failure or en to interfere attempts opposition, constitute, on its “other or for particu resistance” — policy government forcement imple- regulations under own, “resistance” resis overt forms cases, and other lar Instead, 1101(a)(42). as the family menting requirements tance applicant argued, “where DHS has applicant law”; planning family [coercive resisted has not himself amounting persecu harm “suffered has to demon- need he would policies], control S-L- that resistance.” on account tion or circum- direct strate, persuasive though An individual at 10. L-, N. Dec. 24 I. & fiancee’s, wife’s, evidence, that his stantial subject been partner or spouse whose will has been resistance girlfriend’s involuntary ster abortion a forced toed at 17 DHS to him.” imputed “refugee” qualify brief can therefore ilization INS, Singh (citing in if that interpretation status Cir.1998)). that someone’s (9th The fact or a past prove can dividual to a forced subjected spouse for “resistance” future fear be irrel- would not or sterilization abortion her own his or directly related could simply analysis, it such an evant to family planning to a coercive opposition per se.15 asylum status provide policy. expressed intent unambiguously tent with the our hold- asserts first Judge Calabresi *17 Cardoza-Fonseca, See, 480 e.g., Congress. actuality, "spir- then in in ing conflicts—if 447-48, 107 S.Ct. it,” at 337—with U.S. at Judge Op. Calabresi v. INS in decisions Supreme Court’s recent Second, ample opportunity had the BIA 353, 12, Ventura, S.Ct. 123 537 U.S. Orlando ques interpretation statutory to consider curiam), (2002) and (per 272 154 L.Ed.2d per rule that se instance. the first tion in Thomas, S.Ct. 126 547 U.S. v. Gonzales by the announced was invalidate first we now curiam), (2006) (per 358 L.Ed.2d 164 C-Y-Z-, 1. &21 opinion in in BIA in particular a rush to reach that we second and 2005, we remanded at 915. N. Dec. asser- both of these disagree with We result. opportunity give the BIA case to First, and Thomas Ventura Orlando tions. could in C-Y-Z- the rule whether reconsider ordinarily reviewing should court that a held 601(a). § See language of support in the find is pass upon a matter than rather remand remand, ex DHS Lin, at 187. On 416 discre- to the BIA's (1) primarily committed per rule se that its argued to the BIA plicitly tion, yet been considered has not language plain by foreclosed Ventura, at 16- 537 U.S. Orlando the BIA. See majori A statutory 601(a) scheme. § and the Thomas, 353; at 1615. S.Ct. 126 123 rejected this BIA considered ty present in is these conditions Neither forceful, persuasive, argument over BIA, We, primary have than rather case. See S- minority Board. of the objections of wheth- to determine authority under Chevron B.M., (Filppu, L-L-, 15-21 Dec. at I. & N. consis- interpretation is agency particular er a turning dispositions changed arising circumstances in the coun Before claims, petitioners’ prac try nationality we address some in country or af implications ordered”), tical of our decision. We deportation which see Azanor (9th firm the of the BIA’s decision in S- Ashcroft, result 364 F.3d Cir. boy L-L- denying per refugee 2004), se status to change interpretation the BIA’s or fiancés of friends individuals of section as a result of our decision persecuted directly been under coercive should not be seen as a “fundamental family planning policies. necessary A change relating circumstances predicate this result is our for conclusion original claim” 8 C.F.R. asy does not confer automatic 208.24(b)(1) so as allow the termi spouses, legal eligibility lum whether an asylum already nation of claim that has spouses spouses from a traditional mar S-L-L-, granted. been I. & N. riage, but on individuals who them B.M., Dec. at n. 2 (Filppu, concurring undergone selves have or been threatened (‘We dissenting) are not con now procedures. with coercive birth control cases.”). past reopening cerned with Thus, although petitioners none of the be married, legally fore us is we understand III. PETITIONERS’ CLAIMS reading our statute would nec agree We with the that none essarily directly exclude those petitioners qualify can for automatic refu- per asylum
victimized from se eligibility as gee status as a result of the treatment of well. Instead, girlfriends their or fiancées. each emphasize holding We that our to petitioner must demonstrate “other resis- day presage should not be read to tance to a coercive population pro- control reopening of cases of al aliens who have “a gram” or well founded fear that he ... ready granted asylum based on the subject be ... will §of interpretation BIA’s in C-Y-Z-. 1101(a)(42). ... resistance....” 8 U.S.C. 1158(c)(2)(A), Under U.S.C. the DHS Dong’s application Petitioner permitted to seek the termination of upon was based his fiancée’s two longer qualifies when alien no “because, refugee family abortions threats from owing status planning they officials that change fundamental would fine and circumstances re claim, Dong sterilize if his lating original preg life fiancée became alien’s longer again. Dong freedom no nant But would be threatened failed to demon race, religion, nationality, account strate that he acted in a manner that could particular in a membership group, social constitute or opposition “resistance” to a political opinion country family program. control Nor can deportation or removal Dong was withheld.” we find that has a fear of future *18 208.24(b)(1) added). § (emphasis C.F.R. persecution as a result of the threat change Just as a in United States government Chinese would sterilize law qualify does not as “change again. a cir him if his fiancée became pregnant reopen asylum Dong cumstances” sufficient to immigra submitted evidence to the 1003-2(c)(3)(ii) case under 8 C.F.R. (per tion court that his fiancée had moved to mitting reopen motion to on “based Taiwan to be with her father. The IJ thus concurring dissenting). opportunities We no see rea- to reconsider a rule that has no yet again—ping pong style— son remand statutory basis in text. -years
when BIA has had ten and several or rules of law which cannot Dong unlikely principles return found China, sterilization was affect the matter issue the case be- and his fear of Blackburn, notes, [us],”’ Moreover, as v. conjectural. fore United States (2d China, Cir.2006) (quoting fiancée to return to Dong’s 461 F.3d were Green, 651, 653, now meet the Dong and his fiancée would Mills (alterations In re marriage. for See age requirements L.Ed. (B.I.A. 2006). Nov. 27, Dong, A. III original)), 77 293-661 we would run afoul Article addition, immigration judge correct In decide the claim. Given that were we to Dong jurisdiction not demon did not retain over Lin’s ly determined we do likely than that he would “more not” if strate claim he returned to China and withholding grounds as for a persecuted explanation be no to overcome provided removal, subjected presumption application he would that his meaning abandoned, of the Con to torture within has been see 8 C.F.R. 1208.8, deceased, Against Torture. See id. Accord peti- vention if he is Lin’s deny Dong’s ingly, petition we tion as moot. is dismissed review. petition has Petitioner Zou’s asy
Petitioner Lin’s claim immigration remanded the BIA the girlfriend lum that he and his were findings court to review its of adverse a permission marry or have refused credibility and whether Zou determine wedlock, girlfriend was child out of and his refugee for “resistance” to a qualifies as an abortion. Lin did undergo forced to family policy. In re planning coercive court, immigration not claim before the (B.I.A. Zou, No. A77 Nov. Xian BIA, he or this Court that had “otherwise 2006). longer no Accordingly, we family planning resisted” China’s See 8 jurisdiction petition. over Zou’s had, he agree Even if we policies. 1252(a)(1) ap (giving courts U.S.C. through appro request, the BIA that jurisdiction final or peals review channels, for legal permission priate removal). ders of child, the subse have a combined with his performed girlfriend, abortion quent CONCLUSION does not constitute “resistance to coer reasons, the for re- petition For these program.” population cive control S-L- L-, Dong Denied. of Zhen Hua However, view I. N. 10-12. we do 24 & at Lin and Liang for review of Shi petitions jurisdiction petition Lin’s not have over jurisdic- for lack of Xian Zou are Dismissed review, petition find that his is moot. we tion. attorney Court Lin’s has informed this any had with the
that he has never contact KATZMANN, Judge, Circuit with whom attorney Lin’s petitioner, prior and that STRAUB, POOLER, and Judges approximately him in spoken has not concurring in the join, SOTOMAYOR addition, an years. individual three judgment: told the village in China has Lin’s deny- villag majority’s emphasis attorney that “he heard from other With legal spouses under ing asylum and had relief to terminally that Lin was ill ers 101(a)(42) and Na- ago Immigration long returned to China not too (the ¶ “INA”), easy it is to lose tionality Act Ling Aff. of Yee Poon 5. When *19 died.” disposition central sight of one fact relief is “so remote possibility of petitioners these Not one of any on the merits cases: speculative decision married. consolidated cases was of] amount to a these would ‘declaration case, In each it was the plaintiffs girl- distinguishing “between married un- friend, wife, not his who was forced to married couples”). Instead, majority abort her pregnancy. It is thus unneces- gone out of way create circuit sary for us to resolve whether the BIA can split where exist, none need Maj. see Op. legally extend relief legal spous- n. thereby frustrating the BIA’s es; indeed, so, in doing we are addressing uniform enforcement of a national immi- not only an issue not presently us, before gration policy.2 Finding in textual silence but also one that the parties in these cases an expression of unambiguous congression- do even dispute. In their briefs intent, before al the majority rejected us, petitioners both the and the Govern- BIA’s determination 101(a)(42) ment agree that the statute is ambiguous.1 ambiguous. question The parties dispute, and the When a governmental body with sub- only one that these require cases us to experience stantial in interpreting a com- answer, is whether the BIA’s interpreta- plex statutory scheme concludes that a tion of the statute as applied boyfriends statute is ambiguous, that determination and fiancés is Every reasonable. judge on give should us pause. Here, the fact that this Court who reaches this agrees issue the BIA concluded that the INA is ambig- that it is. uous with respect to question we are Thus, this case could have been resolved upon called to answer suggests that we simply nearly unanimously by assum- do probe well to further, to consider ing the reasonableness of the BIA’s con- whether seemingly plain language be- struction of the statute applied as legal lies a more complicated meaning. sug- It spouses and then holding that was also gests that we should consider carefully not as applied reasonable to boyfriends and only the text of statute, but also the fiancés. See Cai Luan Chen Ashcroft, context—both the events that gave rise to (3d Cir.2004) J.) (Alito, that text and the various agency judi- (assuming “for the sake of argument” that cial responses to it. Text without context “C-Y-Z-’s interpretation permissible” can lead to confusion and misunderstand- applied as to legal spouses and then deter- ing. The majority’s analysis is testament mining whether the BIA was reasonable in to proposition.3 Department 1.The Security Homeland Solicitor General will take proceed- in future (“DHS”) advanced a different view before the ings, that effort is inappropriate. BIA. majority The “assume[s] that the Solici- tor General appropriate will take action to context, In a related 2. we remanded to the recommend or assure that the views of DHS BIA to proper address the scope term and this represented Court will be any "refugee” instance, in the first noting that "it future proceedings.” Maj. Op. at 310 n. 11. would be unsound for each of the several doing, so majority ignores the historic Appeals Courts of a potentially elaborate independence of the Office of the Solicitor body nonuniform of law” and describing uni- in determining General the executive formity branch's “especially as desirable in cases such position before the Supreme Court. When as BIA, these.” Jian Hui Shao v. 465 F.3d agencies of the executive (2d branch have Cir.2006). taken positions, inconsistent here, they Solicitor may General among choose those my finds decision engage positions, may or it adopt any other available analysis "perplexing]” given my belief litigation position. The Solicitor General has that we need not—and should not—answer obligation no preferred endorse the legal today question that this case does not re- theory of the court To below. quire extent the us to answer proper and the resolution majority attempts to position influence the parties which the dispute. do not Although
317
“
to
answer
obvious
or
‘[tjhere
clear
is no
questions
the
of
first
the
answering
In
by
afforded
protections
the
of
scope
the
Natural
U.S.A.,
v.
Inc.
Chevron,
out in
set
persons
of
partners
to
837,
amendment
the
Council,
U.S.
467
Resources Defense
or steriliza-
an abortion
to
submit
(1984),
to
that
forced
L.Ed.2d
2778, 81
S.Ct.
”
Reasoning that
304.4
Maj. Op. at
ambig-
tion.’
silent
is
statute
“the
is, whether
in
spouses
to
... a reference”
of
issue,”
the “lack
id.
specific
the
respect to
uous
necessarily
not
“does
amendment
the
to
the
look
2778, must
we
S.Ct.
at
demonstrating
from
applicant
preclude
text
That
INA.
101(a)(42)
the
of
§of
text
inflicted
harm
on
based
refugee
past
that
part,
pertinent
provides,
harmed
spouses
both
when
spouse
aon
is
aby
cou-
motivated
acts
government
country of
any
outside
iswho
any person
characteristic,” the
protected
shared
ple’s
iswho
and
nationality ...
person’s
principles
“general
to the
looked
Board
...
to
unwilling to return
unable
of harm”
and level
nexus
regarding
on
...
of
country because
Dec.
N.
S-L-L-,
I. &24
re
guidance.
For
opinion....
political
of ...
account
5 n.
id.
see also
(B.I.A.2006);
1, 5
determinations
of
purposes
frame-
regulatory
general
to the
(citing
been
a person
chapter,
may
applicant
when
that defines
work
undergo in-
toor
pregnancy
abort
(considering
at 6
refugee); id.
aas
qualify
be
shall
...
sterilization
voluntary
regarding
principles
“well-established
the
on ac-
persecuted
to have
deemed
persecu-
past
harmof
level
and
nexus
opinion....
of
count
tion”).
majority fo-
1101(a)(42). The
§
8 U.S.C.
great
places
majority
Thus, although the
sen-
final
the
on
analysis
its textual
cuses
“language
the
its view
601(a)
emphasis
is, §
provision,
tence
... does
and
unambiguous
...
is
§
Immi-
Reform
Immigration
Illegal
the
status
refugee
automatic
not extend
(“IIRI-
ofAct
Responsibility
gration
individu-
partners
unmarried
BIA’s decision
that the
concluding
RA”),
Maj. Op.
protects,”
601(a) expressly
§als
sentence,
on” that
“rested
amendment
focus
I find
U.S.C.
in 8
“refugee”
definition
general
instead
look
we must
I believe
misplaced.
Yet,
at 302-03.
Op.
1101(a)(42). Maj.
1101(a)(42)to
8 U.S.C.
entirety of
found
notes,
BIA
as
v.
See INS
in Lin.
of our remand
pendent
decision
our
limited
we should
I believe
Aguirre-Aguirre,
the ma-
boyfriends,
treatment
the BIA’s
Attorney
("The
143 L.Ed.2d
address
chosen
nonetheless
jority has
power
BIA with
Iif
vested the
be remiss
I
...
General
of husbands.
treatment
authority
majori-
con-
why believe
I
discretion
both
exercise
discuss
did
unnecessary
law
Attorney
General
issue
upon
of this
discussion
ferred
ty’s
determining
wrong.
considering
why I believe it
also
the course
allocation
on this
it. Based
before
cases
"more
BIA to
Although we remanded
...
recognized
authority,
[have]
we
construing
rationale
explain its
precisely
deference
Chevron
accorded
BIA should
Shi
spouses,
601(a)”
protect
IIRIRA
concrete
statutory terms
ambiguous
gives
it
Justice, 416 F.3d
Dep't
v. U.S.
Liang Lin
case-by-case
process
through a
meaning
Cir.2005),
deci-
nothing in that
(2d
184, 187
and cita-
(quotation marks
...."
adjudication
looking to the
BIA
precluded
sion
Reno, 266
omitted));
Kuhali
see also
tion
deter-
the statute
language in
general
more
Cir.2001)
"Chevron
(granting
(2d
93, 102
spouses.
relief
to extend
mining whether
construction
Board’s
deference
interpret
authority to
Indeed,
had
administers]”).
INA,
1101(a)(42) inde-
meaning
8 U.S.C.
*21
determine whether the statute is ambigu-
gee” individuals
ordered,
“who
incited, as-
ous. See SEC v. Chenery Corp., 332 U.S.
sisted, or otherwise participated in the
194, 196,
believe the BIA held that the provision entire er the BIA already exercised that discre- ambiguous, it is necessary to deter- tion. but opinion,” account enactment. *22 its to led that activity tive Matter terms. those not define does of enacting IIRIRA in intent Congress’s (B.I.A.1989),the Dec. 38 N. contrary to I. that, Chang, 20 & clarify 601(a) towas “persecution” else of whatever imposition that the held rulings, BIA prior the BIA’s any encompass mean, not family planning it did might China’s of aspects some vi- who on the individuals upon persecution visited constitute retribution can policy poli- certain child” one couple, opinion, “one political of olated China’s basis to [not] entitled “is are policy ruled that the BIA of that cy. The victims Noth- laws. “per- asylum our does perseeutive” protection its face that Con- suggests citizen- amendment Chinese the ing in any portion secute] the prevent to enu- intended the reasons of gress of one ry on account those than other to victims extending 101(a)(42)(A) relief of in section merated amendment. in identified explicitly 43, 44. at Act.” Id. (“We at 109 Chen, 491 F.3d Wen See Sun a took branch in executive Others ex- in Congress, convinced Depart- year, next view. The different reproduc- more include asylum to panding rules “interpretative issued Justice of ment define claims, intended rights-based tive for estab- policy of cases.”). statements general in such relief of limits the outer or asylum statutory eligibility lishing majority’s irony in some is thus There of basis on the deportation withholding to con- shrift giving short By approach: express who aliens avail- opinion limit the political intent text, it infers policies more control relief; population looked had it asylum fear ability Status, With- recognized Refugee context, have homeland.” would their at closely Bur- expand Asylum; only to Deportation intent was holding of Congress’s (Jan. text what Fed.Reg. clear Proof, makes Context relief.7 den Bush H.W. convey. George 1990).8 fails President alone support Administration’s his reaffirmed to indi- relief asylum provides INA promulgation with rule interim “persecut[ed] have who viduals regula- amendments These ex- recognition that majority's 7. The possibility contemplate the appear tions does asylum relief availability panded the be available relief language, which why explain nothing to subject to forced who were of those relief, also should expands terms Status, Refugee See or sterilization. abortion preexisting BIA’s limited be read to (to at 8 C.F.R. codified be Fed.Reg. at 2805 Although the expand it. authority to further establishes (“An 208.5(b)(2)) applicant who "messages [I] rely on suggests that I spouse) (or applicant's applicant that the si- Congressional sounds hear[] steri- to be pregnancy or to abort refused I all n. lence,” Maj. at 311 Op. plan- family country’s aof violation lized silence, given especially actually find fear well-founded and who ning policy, Chevron, 467 U.S. context, ambiguity. to abort required be she will or that he turn to we (noting that at or otherwise sterilized to be pregnancy is silent statute step "if the two returned were applicant Chevron if persecuted is- specific respect asylum.”); see granted ambiguous may country Chen, C.F.R. (to sue”); Wen also Sun be codified see id. also withholding of judg- 242.17(c)) ("Chevron ("Eligibility embodies deference opinion is courts, ought account of deportation than agencies, rather ment establishes who statutory respondent by the situations established gap-fillers in to serve bewill spouse) (or respondent's or she appears that he majority that silence.”). It is steri- to be pregnancy abort a required to Congress's clear evidence in silence find ...”). lized. intent. Executive 12,711, Order which provided published due to the change in presidential for “enhanced consideration under the im- administrations. Xin-Chang Zhang, 55 migration laws for individuals from any F.3d at 741. In February, additional regu country express a fear lations pertaining to asylum publish were upon return to their country related ed, but these made no mention of the that country’s policy of forced abortion or January rule. Id. coerced sterilization.” Exec. Order No. *23 Against the background of these con- 12,711,55 Fed.Reg. 13,897,13,897 (Apr. 11, flicting BIA decisions and administrative 1990). regulations, we were asked to determine
Although
INS,
in July 1990, set whether asylum relief was available to vic-
forth a final rule that did not address this
tims of China’s family planning policy.
issue, see Aliens and Nationality; Asylum We held that such relief was not available,
and Withholding of Deportation Proce
explaining that “[e]ven were we to accept
dures,
30,674
55 Fed.Reg.
(July 27, 1990),
[the] view that the ‘administrative cacopho-
the Office of the General Counsel of the
ny’ surrounding the
justified
issue
dimin-
INS subsequently sent a letter to Regional
ished deference to Chang, our result would
and District Counsel stating that “Depart
not change. It is difficult to frame a result
ment of Justice and INS ‘policy with re
different from the holding of Chang that
spect to aliens claiming asylum or with would be ‘reasonable’ under both Elias-
holding of deportation
upon
based
coercive Zacarias
and the existing immigration
family planning policies is that
applica
laws.” Id.
752;
at
see also INS v. Elias-
tion of such coercive policies does consti Zacarias, 502
478,
812,
tute
on account of political
(1992).
L.Ed.2d 38
We did not stop there,
”
opinion.’ Xin-Chang Zhang v. Slattery,
however.
Instead, we
upon
called
Con-
(2d
F.3d
Cir.1995), superseded
gress and the President
to determine
by 8
§ 1101(a)(42)
U.S.C.
(quoting INS whether relief should be available to the
letter to Regional and
Counsel).
District
victims of China’s family planning policy:
doubt,
“No
January
President and the
Attorney
Con-
General Wil
gress acting together
liam P. Barr signed
power
have
final rule
create
that would
an exception
made
existing
this view
immigration
law.
provided,
It
for
laws
pertinent
PRC citizens....”
part,
Id.
(and
“[a]n applicant
applicant’s
spouse, if
also
applicant)
The
year,
next
Congress enacted IIRI-
shall be
found
abe
refugee on the
601(a).
basis
§RA
The House Committee Re
of past persecution on account
political
of
port explained that Congress’s “primary
opinion if the applicant
that,
establishes
intent” in amending the definition of refu
pursuant
to the implementation ... of a
gee was “to overturn several decisions of
family planning policy ...
the applicant
[BIA],
principally Matter Chang and
of
has been forced to
abort pregnancy or to
G-,”
Matter
H.R.Rep. No. 104-469(1),
of
undergo sterilization or has been persecut
(emphasis added)).
(a)(42),
"deemed” in
least,
at
very
the
ambiguous.
Indeed, Congress has repeatedly used the
term "deem” in the INA itself to mean "con-
11. Although "[gjeneral language of
sider,
a statuto-
think,
See,
or judge.”
e.g., 8 U.S.C.
ry provision ... will not be held to apply
to a
1101(a)(27)(J)(i) (defining the
"special
term
matter specifically dealt with in
part
another
immigrant” to include "an immigrant who is
enactment,”
the same
Ginsberg
D.
&
present
Sons
in the United States ... who has been
v. Popkin,
204, 208,
285 U.S.
52 S.Ct.
dependent
declared
juvenile
on a
court locat-
(1932),
L.Ed. 704
that rule has no applicabili-
ed in the United States or whom such a court
ty here where
specific
the
provision does not
legally
has
to,
committed
or placed under the
address
whether
should be
of,
entitled to
custody
an agency or department of a
relief.
In
amendment,
the 1996
Congress
State and who has been deemed eligible by
particular
identified a
category of individuals
that court
long-term
foster care due to
relief,
entitled to
but left to the BIA
abuse,
the task of
neglect, or abandonment” (emphasis
determining whether to expand upon that
added));
re-
1103(a)(3)
§id.
(providing that the
lief, just as the BIA routinely defines what
Secretary of Homeland Security may "per-
individuals are entitled
asylum
to
relief
ain
form such other acts as he deems necessary
myriad of other contexts.
for carrying out his authority under
provi-
the
sions of
chapter”
(emphasis added)).
Indeed,
A
there is
language
some
legis-
the
"normal rule of statutory
pro-
construction”
lative history which suggests
Congress
that
vides that "identical words used in
may
different
have considered the possibility that indi-
Con-
that
fact
2005).
While
(May
his-
language
nothing in
as
Just
attention
its active
course
in the
gress,
a con-
indicates
amendment
tory
has
legislation,
and
issues
immigration
exten-
to
foreclose
to
intent
gressional
1101(a)(42) in
8 U.S.C.
amended
Congress
not
spouses,
relief
sion
giv-
it
interpretation
intent
light
indicate
nothing to
done
does
courts
enact-
BIA
amendment’s
en
since
years
intended
Congress
inter-
that
BIA
definitively
mean
that
notwithstanding
ment,
at the
suggest,
spouses a
it does
cover
spouses,
1101(a)(42)
protect
preted
in-
ap-
Congress’s
courts
it was
least, that
numerous
very
ago
decade
as
interpretation
relief.
upheld
foreclose
have
tent
peals
at
Yuan,
F.3d
See, e.g.,
reasonable.
it
holds
nonetheless
The
999;
F.3d
Zhang,
197; Junshao
construe
for the
correct”
“not
(“The BIA
Ma, Rong
Kui
allow
“refugee” to
definition
general
uniformly applied
have
courts
“the
relief because
of this
provision
whose
husbands
protections
statute’s
dictates
unambiguously
statutory scheme
or sterili-
abortions
undergone
have
wives
candidates
become
can
applicants
wives
toas
well
procedures,
zation
based
relief
C-Y-Z-,
I. & N.
themselves.”);
re
suffered
have
banc).
themselves
(en
they
(B.I.A.1997)
915, 918-19
Dec.
agree
I
atOp.
307-08.
Maj.
suffer.”
policy,
public
must
areas
obscure
There
personally
must
individual
attention
public
hidden
largely
entitled
sense
little
experienced
makes
concern, which
begs the
con-
statement
relief,
but
absence
meaning to
ascribe
persecution.
constitutes
to administrative
of what
response
question
gressional
Im-
statute.
of a
interpretations
judicial
the 1996
not, in either
does
statute
*26
areas.
those
of
one
hardly
is
migration
of
definition
general
inor
amendment
is-
the
immigration
contrary,
the
To
—and
exactly how
prescribe
“refugee,”
term
the
of
scope
appropriate
the
of
sue
indi-
an
harmof
kind
what
or
harm
much
Con-
on
consistently been
relief—have
“per-
been
have
to
experience
must
vidual
frequently
is
Immigration
radar.
gress’s
statute.
the
of
meaning
the
within
secuted”
repeatedly
Congress
news, and
the
Justice,
Dep’t
Ivanishvili
of
See
Indeed,
recent-
as
area.
in this
legislated
Cir.2006) (noting
(2d
332, 340
very
revisited
2005, Congress
as
ly
“not defined
is
“persecution”
the term
cap on
annual
removed
provision
Act”);
Nationality
Immigration
by the
ad-
could
who
asylees
of
number
Dec.
N.
Acosta,
&19 I.
Matter
see also
of
ID Act
REAL
it.
mitted
other
overruled
(B.I.A.1985),
211, 222
B,
109-13, Div.
No.
2005, Pub.L.
&19 I.
Mogharrabi,
by Matter
grounds
305-06
Stat.
(h)(5), 119
101(g)(2),
§§
judg-
making
capable of
judges
forced
had
those
than
other
viduals
104-469(1),
WL
19.96
H.R.Rep. No.
might
ments.”
or sterilization
abortion
undergo
subjected
only those
If
*174.
Committee
House
asylum. The
qualify
relief, im-
claim
could
procedures
"[dieter-
noted
amendment
Report on
never
BIA
judges
migration
threatened
or
actual
mining
whether
appli-
whether
consider
needed
have
is a
level
rises
harm
persecution,
level
rises
harm
cant’s
task,
inso
more
no
but
complex
difficult
provides
explicitly
amendment
given that
family
based
of claims
case
does
sterilization
abortion
a forced
factual
on other
based
in cases
than
planning
level.
to this
rise
immigration
Asylum officers
situations.
N.
(B.I.A.1987)
Dec. 439
(defining persecu-
is regarded by the state
disloy-
tion as “either a threat to the life
alty.”
or free-
January
Rule,
at 8.
of,
dom
or the
suffering or
infliction of
Thus, I do not think
unam
harm upon,
those who differ in a way biguously defines the term persecution,
regarded as
(emphasis
offensive”
added));
and the majority
pointed
to nothing in
see
Ivanishvili,
also
(ac-
secution” as “the infliction of
when
suffering
spouse
one’s
is forced to undergo an
harm upon those who differ on
abortion
basis of
sterilization is not severe
a protected statutory ground.”).
enough to
persecution.
constitute
Nor
does anything
amendment states
that when
one is
statute preclude
BIA
undergo an
considering
abortion or
the effect
sterilization,
that Chi
na’s family
harm
planning
thereby
policies
experienced
may have
aon
sufficient to
couple’s
right
shared
qualify for
asylum,
reproduce and
but it hardly makes
raise children. Because Congress
that level
did
harm necessary.
specifically address these issues, the stat
The majority may view the 1996
ute
amend
is ambiguous.
It therefore falls to the
ment as providing that only
individuals
to determine whether the harm an
who have undergone a forced
experiences
individual
abortion or
when his or her
sterilization
experienced
spouse
subjected
“persecu
to a forced abortion or
tion.”
so,
If
we again
sterilization is
differ on
sufficient
our
inter
constitute per
pretation
See,
secution.
e.g.,
the significance
Kuhali,
266 F.3d
the 1996
102 (granting
amendment.
I
“Chevron
believe
deference
Congress
enacted
Board’s construction
INA,
amendment not
which it
primarily to de
... administer[s]”);
fine the
Sun
Chen,
Wen
term “persecution,”
cf.
but to clarify
the burden
opinion,”
political
based
persecution
strate
meet
can
applicant
er, it determined
added),
to see
I fail
(emphasis
at 309
Maj. Op.
persecu
proof establishing
burden
this
whose
applicant
evidence
additional
what
planning
family
a coercive
pursuant
tion
abortion
a forced
subjected
spouse
agreement
majority’s
Given
policy.
carry his
to show
sterilization
on evidence
"rely[ ]
may
applicant
any
nexus.
proving
burden
or sterilization—whether
abortion
of a
arbitrary, capricious, or manifestly con- der
right
set of circumstances, a find-
trary to the
Chevron,
statute.”
467 U.S.
ing
past
persecution might rest on a
844, 104 S.Ct.
Here,
2778.
in de-
showing of psychological harm” (quotation
termining whether to extend asylum relief marks omitted)); Mashiri v. Ashcroft, 383
spouses,
the BIA reasonably considered
F.3d
(9th
Cir.2004) (“Persecu-
general
principles underlying the defi-
tion may be emotional or psychological, as
nition of persecution and concluded that a well as physical.”); Abay v. Ashcroft, 368
husband
persecuted
“when
govern-
(6th
Cir.2004)
(holding that
ment forces an abortion on a married cou-
the applicant was entitled to asylum
ple.” In
S-L-L-,
re
24 I. & N.
6;
Dec. at
“based on her fear that her daughter will
(“When
see also id.
the government inter-
be forced to undergo
genital
female
muti-
venes in the private affairs of a married
lation” because her “fear of ... being
couple to force an abortion or sterilization,
forced to witness
pain
and suffering of
it persecutes the married couple as an
her daughter is well-founded”).
entity.”).
I see no reason why the BIA
The BIA also determined that
there
could not reasonably conclude that one has were not “convincing reasons to extend the
suffered harm or injury sufficiently severe
nexus and level of harm attributed to a
constitute
when one’s husband who was opposed to his wife’s
spouse is forced to undergo an abortion or
forced abortion to a boyfriend or fiancé.”
sterilization.
Indeed,
this determination
S-L-L-,
In re
24 I. & N. Dec. at 9.13
finds support in the decisions of a number Recognizing that “marriage placets] the
of courts that have explicitly recognized
husband in a distinctly
position
different
that non-physical harm may support a
from that of an
father,”
unmarried
id., the
finding of past persecution in at least some BIA noted that unmarried fathers do not
circumstances. See Junshao Zhang, 434 bear the same legal and societal responsi
F.3d at 1001 (rejecting explicitly the “no- bility for violations of family planning poli
tion that [a husband] suffers no persecu-
Indeed,
cies.
because their relationships
tion independent of
wife,
his
as the result with
partners
their
are not registered with
of the forcible abortion of his child” and the government and may not even be
holding that “[although his wife was cer-
known within the community, the govern
tainly a very direct victim of
popu-
China’s
ment may often be unaware of their identi
lation control measures, Zhang was a vic-
ties. See id. at 9-10. The BIA
pre
thus
tim as well. The forcible abortion has
sumed that
the family planning officials
deprived him of his
child,
unborn
target
legal spouses
to a
ability to realize
family
that his wife greater extent than boyfriends and fiancés.
and he
desired,
had
and forever deprived See id. Furthermore,
“[p]roof
pre
him of the ability to become a parent
sumption of paternity ... may be consid
that unborn son or daughter with his
erably more difficult when a boyfriend
wife”); see also Ouk v. Gonzales, 464 F.3d
claims to have fathered a child who was
(1st
Cir.2006) (noting that “[u]n-
forcibly aborted by government officials.”
petitioner
Because
Dong,
only petition-
participated in such a ceremony. Compare
er whose claim we address on
appeal,
Zhang,
Junshao
Section In all, coming after conclusion, expressly enact- the majority ed to expand, not contract, endorses the view that availability “persecution” can of asylum 1101(a)(42) only be in the direct personal, con- by which it text of coercive population appears pro- control to mean that the granting asy- grams. lum can never on, be based in whole or in part, harm others, I will not no reiterate matter what how Judge close- Katz- ly mann related already harm or ably the person stated. I harmed write separately to highlight applicant or whether potentially ill- harm to considered another breadth directed in majority opin- whole or in part ion, which appears toward the applicant.2 east doubt on our majority tries own caselaw, circuit’s as well anchor limiting create principle to the text further circuit statute, conflicts when such but such out- a reading is unwar- comes easily avoided. ranted Most impor- unsupportable. It is pellucidly tantly, however, I write because clear from the ma- the text of 1101(a)(42) jority’s zeal in reaching a question Congress not did not define nor intend to de- before requires us unprecedented fine “persecution” step to exclude harms “not of constricting the BIA’s congressionally personally” suffered by an applicant. The delegated powers decision whose —a rami- statute instead reads that “any person” fications we are ill-prepared, given the who of persecution “because or a well- order, banc but rather the majority's tory unneces- scheme unambiguously dictates ap- sary but apparently pressing need to decide a plicants can become candidates question which the petitioners’ facts of ap- relief based they peals simply do present. Judge Like themselves have suffered or must suffer.” Katzmann, I engage question the majority Maj. Op. at By 307-08. pronouncement, answers because I would be remiss in not opinion suggests that harm others can- voicing my profound disagreement with the part form a of the rationale for granting majority's conclusions. asylum. portion another of the majority opinion, the Court states “we conclude that the statu-
329 843-44, 104 S.Ct. Inc., 467 or “unable is persecution” fear founded decision (1984). From its 694 country 81 L.Ed.2d her his or to return to unwilling” (B.I.A. S-L-L-, N. Dec. &24 I. re indica- in In no is There asylum. to is entitled “persecu construed clearly BIA 2006), direct the or personal of how whatsoever tion spouse the entailing only that be, only as tion” must injury harm or the but also procedure asy- the undergo merit can to forced individual to an persecution who, while moreover, spouse es- should, other the including We protection.3 lum unharmed, nevertheless was construction limiting physically the chew pun for opinion today’s in government 1101(a)(42) the urged targeted also and to BIA lead The could persecution. a construction and such ishment because Dauray, v. its tra utilizing States United conclusion results. this absurd reached (“A Cir.2000) harm, statute (2d level and nexus 215 F.3d tests ditional avoids way that the a how examining interpreted is, by be should that id. officials results.”). government respec If spouse’s absurd each affected procedure child applicant’s well-being as killed an shot emotional health tive another to convert to her or him force in procreation interest couple’s as the well the ma- harm, which that would impor religion, most Perhaps child-rearing. person- “not ostensibly label jority considered also all, BIA the tantly of demonstrate itself al,” insufficient di were actions government’s the whom if what Or applicant? persecution rected. kid- was applicant an adult parent the is crucial. factor this last applicant is It to force tortured napped suffer that both concedes majority party opposition to renounce aof result as a loss” emotional “profound candidate? government endorse sterilization, it nev- but language abortion unambiguous end, no I see harm why the sufficiently explains the lim- compels 1101(a)(42)that er §of text perse- constitutes the ma- or abortion INA sterilization iting construction is forced person only for cution now divines. jority and not procedure such undergo eligibility applicant’s Requiring 308- Op. at Maj. well. as spouse person’s he where instances only on to rest principal on two rests conclusion This 09. “personally” suffers or she First, flawed. equally conclusions, both personal of what question begs the merely notion clings any As it. to define how is harm visited physically is suffered term, it statutory ambiguous ig- simply this but spouse, one upon what expertise its within determine BIA to exactly whom question nores as long so “persecution” exactly constitutes persecute seeking Chevron, government is reasonable.4 interpretation harm point, acted. On Council, when Res. U.S.A., v. Natural Inc. Def. con economic in the means” 'persecution' anal- Judge Katzmann's agree with I further 3. 945, 947 F.3d Ashcroft, 384 text); v. Corado reliance misplaced majority’s ysis of ("The curiam) is enti Cir.2004) (per here. (8th its conclusion support U.S.C. ambiguous interpreting deference tled circuits and other I note "); 'persecution.' cf. statutory terms ambiguous term anbe "persecution” found (9th Cir. INS, F.3d Singh See, Mirzoyan v. e.g., asylum cases. in other not define "does INA 1998) (noting that Cir.2006) (2d 217, 220 Gonzales, constitute acts specify what ‘persecution’ does INA curiam) (finding that (per persecution”). word what explain[] “unambiguously *32 clearly directed at the couple who dared to deprived a couple of the natural fruits continue an unauthorized pregnancy in of conjugal life, and the society and hopes of enlarging the family unit. In- comfort of the child or children that deed, majority’s the conclusion disregards might eventually have been born to the immutable fact that a desired pregnan- them. cy in a country with a coercive population Qili Qu v. Gonzales, 399 1195, F.3d control 1202 program necessarily requires both (9th Cir.2005) (quoting In Y-T-L-, re spouses occur, to 23 I. and that the state’s inter- & N. Dec. (B.I.A.2003)). 607 ference with this Viewed fundamental right “may light, the harm subtle, here far is reaching directed as devastating much at the husband effects” for at both as the wife. husband By and wife. See action, its all, after Skinner v. Oklahoma state ex rel. is Williamson, preventing both 535, 541, members of couple procreat 86 L.Ed. (1942). ing a.unit, The and as the BIA termination of a wanted found In Y-T-L-, re pregnancy under a such harm is population not limited in program control time can to the only be moment of sterilization, devastating to but is any akin, couple, doubt, ongoing no harm killing of affects married a child. Similarly, couple as to sterilization, indefinitely. 23 I. & N. Dec. at 607. Ninth Circuit has As aptly observed that: Third Circuit recently observed in In addition to Sun Wen physical Chen v. and psycho- Attorney General
logical trauma States, that is United common (3d F.3d many Cir. forms of persecution, 2007), the “persecution sterilization in- of one spouse can volves drastic and be one emotionally painful potent most ways cruel consequences that are unending: hurting the The spouse.”5 other end, couple is forever denied a I pro-creative fail to understand how the majority can together. life As the BIA explained, claim that the harm caused by a spouse’s The act of forced sterilization abortion should or sterilization is not a not be viewed as a personal discrete onetime harm to both spouses —either act, comparable to a in prison, term both of whom can be sterilized for viola an incident of severe beating or tions even of the population control programs— torture. Coerced sterilization is especially bet- given the unique biological na ter viewed aas permanent and con- ture of pregnancy and special reverence tinuing act of persecution that has every civilization has accorded to child- The incorrectly asserts that sterilization persecution,” constitute id., it is Third analysis Circuit’s in Sun Wen Chen is entirely within the BIA's authority to “inter- incongruent my analysis own because prete] scope persecution,” id., in- the court there 601(a) held that contains an cluding its applicability spouses. my It is ambiguity. Maj. Op. n. 7. The Third contention that we should defer to the BIA's Circuit 601(a) found that is ambivalent on interpretation regarding the scope broader treatment of and that the exis- 1101(a)(42) and not im- tence of derivative "intended pose, as the does, majority here an unfounded foreclose additional pathways requirement specific spouses.” Chen, direct and Sun Wen personal and that another, harm (emphasis added); even if see also id. ("[W]e nothing see directed at the applicant, in statute evincing never sufficient Congressional intent to particular purposes § 1101(a)(42). establish a These policy regarding spousal analyses eligibility.”). are not incongruent they because Third Circuit then reasoned that both because center on the deference we owe to the "establishes that forced abortion and BIA defining persecution. Maj. Op. persons, such married I marriage. parenthood rearing congres- clear ignores conclusion his major- how the understand similarly fail in the 601, expressed §of intent sional ability to BIA’s limiting justifies ity history, that legislative into harm egregious special take this lower intended 601] [njothing [§ within to determine consideration any proof burden evidentiary perse- constitute acts expertise *33 nature the serious alien, matter how no husband.6 and a wife both against cution empha- Committee The claim. the of the that argues majority Second, the remains proof of burden the that sizes irre- an created impermissibly has BIA case, every other inas applicant, the on appli- relieves that presumption buttable that he evidence credible to establish proving burden statutory the from cants persecution-in subject has she or per- fear a well-founded they have that or sterili- abortion case, to coercive this nexus. impermissible an on based secution such fear well-founded has a zation-or observes, correctly Judge Katzmann As treatment. is argument however, presumption the 104-469(1), 1996 WL H.R.Rep. No. enacting § herring. merely a red no there simply, (1996). Quite *174 creating presumption a not was Congress the presumption the in read way to unduly BIA’s the expanding merely but the on discusses, a limitation nor majority Chang Matter in definition restrictive spouses. reach § 601’s extending in BIA “political “persecution” terms the it did or occurred the Either “persecu- Thus, defined § 601 opinion.” the burden retains applicant not, the include opinion” “political tion” The circumstances. proving or sterilization abortion forced individual’s am- interpreting in not err accordingly did poli- control population restrictive under to determine INA in the terms biguous created, howev- was presumption No cy. refugee aas may qualify spouse either that burden the bears still er, applicant as undergone fact in of them one where subject was she he establishing that or sterilization. abortion qualifies that conduct limit- majority’s adopted, if Finally, And, persecution. definition Of expanded significant, have may ing construction On weight great places while than broader consequences, a unintended creates supposedly fact claim- By acknowledges. today the Court only persons “relieved presumption cannot applicant categorically ing abor- forcible actually experienced in others on inflicted harm rely on burden or sterilization tion relat- closely how matter cases—no § 601 those nexus,” and proving en- must programs, control population ive corrects its decision majority notes 6. simply We flee. attempting to gage before creating incentives effect "perverse to conclude which no foundation have in the inherent wives” their leave husbands resources financial couples have S-L-L-, all I. &24 In re in determination BIA’s govern- time, and as escape at same I Maj. Op. (B.I.A.2006). 1Dec. N. uncom- it is argument, at oral stated ment us before petitioners one first note separate and couples to alone; for Chinese mon he fact, to flee not, attempting was to amass in order go abroad spouse one togeth- China leave planned fiancée his other bring over necessary resources caught before unfortunately she but er opining majority here believe spouse. I howev- importantly, escape. More could she signifi- potentially subject aon is based here —imbued er, assertion majority’s differences—with cultural cant decision- speculation nothing but empirical evidence. expertise no by coer- persecuted couples, making in which ed the harm or the person harmed is to persecuted in past in China.” Id. at the applicant or whether the harm is di- 21. Similarly, H-, in In re 21 I. & N. Dec. rected in whole or part towards the 337, 345 (B.I.A.1996), where an applicant applicant establish —to enti- had testified about the severe physical asylum, tlement suggests Court beatings he had suffered as the member of that the precluded BIA is from ever con- a subclan Somalia, the BIA based its sidering harm to others as evidence of finding of past persecution part on the persecution to the applicant. While I applicant’s testimony that his father and agree that there are certainly limits as to brother, also members of the same sub- when harm to another may perse- inform clan, were beaten and killed. In examin cution or a well-founded fear of persecu- ing the allegations concerning the deaths tion an applicant, I cannot endorse the his father brother, the BIA specifi *34 majority’s apparent per se conclusion. As cally noted that “evidence of treatment of above, noted this is a question of statutory persons similarly situated is persuasive of construction properly by answered an applicant’s political claim of persecu BIA, which, in its expertise, administrative tion.” Id. at 345 (quoting Matter Mo may interpret the ambiguity inherent in gharrabi, 19 I. & N. Dec. 439 (B.I.A.1987)); “persecution” to determine when a harm is see In also re N-M-A-, 22 I. & N. Dec. or personal direct enough to be considered (B.I.A.1998) (finding the con persecution of applicant. And, in cer- text of humanitarian asylum that appli tain limited contexts pertinent to this ap- cant had suffered past persecution part peal, the BIA has done precisely this, ex- because of “the disappearance and likely amining the harm to family members in father”). death of his The BIA has thus determining whether an asylum applicant specific identified situations in which the has in fact past suffered persecution, par- harm to close family members could be ticularly where an family immediate mem- central to the finding persecution and ber has subjected been significant and the granting of refugee status. The ma enduring mistreatment. In Matter of jority’s misguided exercise in statutory in Chen, 20 I. & (B.I.A. N. Dec. 19-21 terpretation, however, undermines this 1989), the seminal BIA decision recogniz- agency determination and suggests that ing the availability of asylum humanitarian because the years-long harassment and victims of severe past persecution, the egregious mistreatment of Chen’s parents BIA recited a litany of horrific acts visited or the deaths of H-’s brother and father suffered Chen’s parents during were “not personally experienced” Revolution, Cultural and such evi- applicants, neither Chen nor dence—when Hcould coupled base with the Chinese their asylum applications government’s on such treatment harm petitioner after today’s decision.7 supported the BIA’s conclusion himself— that “the respondent has clearly estab- The holding today also calls into ques- lished that he and his family were severely tion our own well caselaw—as that of other regulations The governing the claims under tion supports further position perse- Against Convention explicitly Torture rec- cution is not limited to direct physical ognize that torture encompasses upon harm an individual but can encompass physical harm to the individual but also harm inflicted See, others as well. e.g., pain "mental or suffering” that results from Gonzales, Yan Chen v. (2d F.3d the threat of infliction physical pain or Cir.2005) ("Certainly ... torture can consti- suffering on person. another See 8 C.F.R. tute persecution....”). § 1208.18(a)(4)(iv). By analogy, regula- this di will spouse one untary sterilization panels appellate circuits—in opportunities reproductive rectly upon one affect inflicted harm recognized And help to, spouse.... least or at the other rise may give individual potent most in certain one of of another can establish, spouse one v. Gon other hurting the Jorge-Tzoc ways cruel circumstances. Cir.2006) cu (per (2d Abay zales, ”). F.3d Circuit Sixth The spouse.... pe acknowledging Court, (6th ), Cir. riam Ashcroft, directly” “victimized had titioner applicant 2004), determined her his sister boy, young aas when fled had she because entitled activi their killed family were to pro daughter teenage her Ethiopia case remanded ties, nevertheless undergoing teenager tect determine proceedings further specif court Abay mutilation. genital harm with the coupled age, his whether that derivative ically noted establish members, helped to family his she Abay not available 1158 was —as (internal quo at 150 Id. persecution.8 past aof a child nor spouse was neither decision omitted). While marks tation her granted individual—but persecuted age, petitioner’s on the part great rested IJ oral that several observing asylum, category another illustrates decision *35 princi governing “suggest BIA decisions appropri might be where asylum cases in cases status refugee in favor ple deter in to others harm consider to ate with is faced protector parent where other Similarly, persecution.9 past mining risk clear the to child her exposing where situations have confronted circuits prac will to her against subjected being or whole in relying they found torture physical cir is a form in certain tice others on harm part in Id. harm.” Chen, Third permanent the grave causing Wen Sun In cumstances. very BIA S-L-L-, the re 642. upheld Circuit down majority strikes the determination law weighed carefully Having acknowledging part in
today, I must appeal, in presented arguments is neverthe spouse to one’s harm physical reasons judgment in concur family in both harm less Katzmann. Judge ably by stated already (“In a 100,107 F.3d context. planning Judge Katzmann particular in agree I invol- abortion cases, forced many great today's decision nothing in claims Mel in a footnote in passing statement 8. The considering the BIA ”preclude[s] n. Reno, F.3d v. de Torres gar any particular applicant’s totality of circumstances 1999), death (2d that the Cir. applicant if an determine constitute case did uncle Maj. Op. contrary. As noted statutory burden.” of her is his carried Melgar de Torres ex- petitioner Yet, majority Jorge-Tzoc, fails n. 13. 311-12 objective evi no offered may adult "was totality circumstances why the plain politically killing was uncle's her dence cou- of married context applied in not be the extent To at 150. F.3d motivated.” population who suffer ples furthermore, suggested, Torres Melgar de consider could If the programs. control established had petitioner if the even family mem- Jorge-Tzoc's harm the direct politi killing and his uncle’s her between link him- Jorge-Tzoc determining whether bers not be then activities, killing could cal able it should persecuted, self had persecution, past of her part considered suggestion effect targeting of consider clearly dicta. spouse or her his when individual on the opinion no professes sterilization. abortion undergo an Jorge-Tzoc holding in vitality our continued that the Third Circuit in Cai Luan Chen if wrong, may be simply overturned. But (3d Ashcroft, Cir.2004) (Alito, petitioners those who fled a draconian J.), did what we should have done here. population program control because their case, In that then-Judge Alito found no spouses had been forced to undergo an need to reach question of whether abortion sterilization, the majority’s ca- 1101(a)(42) 601 or ambiguous were be veat must be cold comfort indeed. Chen, cause who was not married to his fiancée on whom the forced abortion was CALABRESI, Circuit Judge, concurring
performed, prevail could only if the BIA’s in part and dissenting in part: distinction between married and unmar ried couples was unreasonable.10 Id. at What is remarkable about this case is 227. Judge Alito ultimately ruled that the that essentially everyone on this court distinction was reasonable and denied the agrees that IIRIRA 601(a), at 8 codified petition. Id. at 235. This analysis should U.S.C. l(a)(42)(B), cannot be read to control our own very similar cases here.11 grant per se asylum to spouses. This is
Given the above, the majority should remarkable because it is in direct conflict never have reached question it has with every circuit, other BIA, and ten upon taken itself resolve, particularly in years of rulings. Maj. Op. at 300 & n. the immigration context where the Su- 4. Yet we all agree. And we are correct. preme Court long recognized “that Moreover, it that, follows § 601(a) because judicial deference to the Executive Branch grant does not that kind is especially appropriate ... offi- where spouses, it also cannot be read as granting cials ‘exercise especially sensitive political asylum to non-spouses petition- —like functions that implicate questions of for- *36 ers in this case. This part of majori- the ” eign relations.’ INS v. Aguirre-Aguirre, ty’s analysis is admirable, and I join it. 526 415, 425, U.S. 119 S.Ct. 143 L.Ed.2d § 590 Because 601(a), (quoting Abudu, in INS v. unambiguous terms, grants per se “refugee” L.Ed.2d status only (1988)). to reaching “person the this question, who the has been forced to has, majority fear, I abort a started a pregnancy domino or ef- to undergo involun fect that may significant tary sterilization,” and unfore- the panel in this case— seen repercussions. Finally, consisting the of majority, the author of the majority in noting that “[i]f opinion, conclusion is incon- the principal concurrence, and sistent with Congress’s intentions, [Con- me—sent the case back to BIA, the to gress] can, if it so chooses, course, of allow the agency to reexamine its decision amend the statute,” Maj. Op. at 309 n. in In re C-Y-Z-(C-Y-Z-), 21 I. & N. Dec. seems to take comfort that its conclusion, (B.I.A.1997) (en banc) (construing 10. While I ultimately agree with Third Cir- would adopt approach the as outlined by cuit's pronouncement recent then-Judge in Sun Wen Alito in Cai Luan Chen. Chen that the properly BIA interpreted an my Unlike colleague esteemed Judge Cala- ambiguity §in 1101(a)(42) 601 and § to ex- bresi, I do not find that the BIA limited its tend protection spouses to of individu- analysis § S-L-L-, to 601 in In re but rather als forced to pregnancies abort undergo or grounding was interpretation its in both the sterilization, Sun Wen Chen ques- involves a specific language §of and the gen- more tion we need not reach here the because eral definition of "refugee” § 1101(a)(42). petitioner here is not married. Had the ma- Because the ambiguous, statute is I would jority dealt with the question presented, I defer to the interpretation BIA's here. forcibly not themselves are who ners status “refugee” per granting se. sterilized. involuntarily decision, aborted to stuck BIA The spouses). to some (“The inclusion at 307 Op. Maj. Dec. N. 24 I. & S-L-L-(S-L-L-), In re see of oth- exclusion the results obviously not con- banc), (en but (B.IA..2006) and spouses Chang, And, ers.”). be can rule that C-Y-Z-s us vinced refugee se per to entitled are 601(a), partners §of text plain with squared status. say appropriately now so we and opin- not an Chang is wrong. but enough, was
BIA
Fair
aof
Court,
even
Supreme
ion
and
majority
both
Unfortunately,
interpretation
is an
Appeals;
Court
stop with
willing
are
concurrences
As
the BIA.
statutory law
underlying
us
clearly before
issue
was
that, which
free
perfectly
such,
agency
For rea-
BIA.
by the
considered
fully
and
is not
change
as the
long
change it—so
understandable, but
quite
sons
underlying law.
inconsistent
re-
terms
wrong
nonetheless
—both
could
BIA
Thus, any suggestion
Supreme
what
in terms
and
sults
se
per
grant
now
Chang,
not,
because
relationship
our
about
said
Court
pursuant
spouses
status
concur-
majority
BIA—the
plain
sequitur,
1101(a)(42)(A) is a non
in different
They do so
further.
go
rences
simple.
me, simply
is, to
fact
directions,
further
going
evidence
additional
B
inappropriate.
what
consequences
Second,
logical
appear
saying
to be
I
seems
majority
BIA
Suppose
untenable.
be
me to
were
if the
says that
interpretation
issue
were
“refu-
definition
general
construe
said, categorically,
1101(a)(42)(A) that
1101(a)(42)(A)as
8 U.S.C.
found
gee”
tor-
parents
his
sees
any child
certain
status
refugee
se
per
granting
totali-
by a
him
before
murdered
tured
non-
people
e.g.,
categories
—
Nazis—is
government
say,
tarian
—
impermissible
spouses—that
asy-
eligible
therefore
persecuted,
*37
seems
This
1101(a)(42)(A).
§
reading of
under
invalid
ruling be
a
such
Would
lum.
counts.
several
on
mistaken
to be
me
of refu-
definition
1101(a)(42)(A)’sbroad
§
say-
is
majority
what
is
If that
gee?
A
manifestly ab-
is, my judgment,
-it
ing,
that
the fact
relies
majority
First, the
language
nothing
is
There
surd.
Matter
overturn
601(a)
enacted
was
§
suggests
1101(a)(42)(A) that
history of
(B.I.A.1989)
38, 44
Dec.
N.
I. &
Chang, 20
se rule.
per
a
adopt such
could
a coer-
victims
the rule
(adopting
kind
adopt
could
But,
the BIA
if
claim
could
regime
planning
family
cive
I be-
above—and
I described
se rule
per
demon-
the victims
only if
status
refugee
agree
would
court
our
majority of
lieve
had
policy
family-planning
strated
indeed
a rule
such
me
with
to them
applied”
“selectively
premature
improperly
it is
Op. proper
Maj.
ground).
protected
—then
basis
opinion
governing
today’s
say
posits
majority
—as
at 306-07.
adopt
could
agency
does—that
than
do more
not intended
indi-
respect
rule
se
per
analogous
is there-
Chang
Chang, and
overturn
petitioners
situation
viduals
part-
as to
in place
left
fore
this case.
It may be that if the BIA did
Gonzales,
Gomez v.
163,
168-70
adopt
a per
rule,
se
I
(2d
would ultimate
Cir.2006). Yet, despite the “obvious
ly agree with the
that,
in the
importance” of
ordinary
remand rule
context of
family
planning laws,
in the immigration context, the majority
such an interpretation
§ 1101(a)(42)(A)
insists on precluding the BIA from inter-
“unreasonable”
Chevron’s Step Two.1
1101(a)(42)(A)’s
preting
general provi-
But once it is
admitted
some categori
sions in the first instance.
my view,
cal per se asylum rules—like the one in
this aspect of
majority’s
holding is
volving my hypothetical
might
dangerously in tension with
children —
Ventura’s
be valid
1101(a)(42)(A)
(i.e., would command.
get by
One)
Chevron Step
is, I believe,
—it
In Ventura —much as in the case before
impermissible to say that an equivalent per
us—the Ninth Circuit
reversed
holding
se interpretation
dealing with spouses
BIA,
and then “went on to consider
would necessarily be invalid if it were
argument
alternative
that the Govern-
adopted
is in effect what the ma
—which
ment had made before the Immigration
jority’s holding amounts to.
It
imper
Judge,” but which “the BIA itself had not
missible given the Supreme Court’s unani
”
considered....
U.S. at
123 S.Ct.
mous decisions in INS v.
Ventura,
Orlando
353. Specifically, the Ninth Circuit re-
12, 123
U.S.
358, 154
S.Ct.
L.Ed.2d 272
versed the BIA’s holding that
petition-
(2002) (per curiam), and Gonzales v.
er was not persecuted “on account of’ a
Thomas, 547
S.Ct.
“political opinion,”
then,
but
rather
than
L.Ed.2d
curiam).
(per
remanding to the BIA for further proceed-
ings, the court evaluated
itself,
rejected,
government’s
alternative ar-
In Ventura,
the Supreme Court held
gument that
petitioner
to qualify
failed
that, “[generally speaking, a court of ap-
for asylum because of changed country
peals should remand a case to an agency conditions in Guatemala.
Id. In reversing
decision
a matter that
place
statutes
the Ninth Circuit’s judgment, the Supreme
primarily in agency hands.” 537 U.S. at Court found that the
court
appeals
16,
337
by
interpretation
a particularized
instance’
family
‘a
principle
BIA, “that
the
omitted).
(emphasis
Id.
pur
the agency.”
the
group
social
a
constitute
may
statutes,’
...
[and]
refugee
the
of
poses
matter,
approach
the
formal
purely
As a
fell
...
issue
at
family
particular
the
that
perhaps
is
today
majority
the
taken
statutory term
the
scope of
the
within
and Thomas.
Ventura
with
reconcilable
”
1614
at
126 S.Ct.
group.’
social
‘particular
with
incompatible
fundamentally
is
But it
Gonzales,
F.3d
Thomas
(quoting
the
if
Even
those cases.
spirit
the
banc))
(en
Cir.2005)
(9th
rule
that C-Y-Z-'s
convinced
is
majority
added).
Ventura — and
Quoting
(emphasis
construction
an unreasonable
be
would
v. Chen
of SEC
principle
basic
the
echoing
approach
correct
1101(a)(42)(A), the
80, 63
I),
U.S.
(Chenery
Corp.
ery
a
to make
agency
the
to allow
“an
(1943), that
L.Ed.
In
first.
matter
that
on
determination
the
upon
intrude
cannot
court
appellate
real
opinion perhaps
stead,
majority
the
en
exclusively
—
Congress
which
domain
time, authori
not,
at
it could
izing that
at
id.
agency,”
administrative
to an
trusted
's
of C-Y-Z-
question
speak
tatively
reiter
Court
Thomas
454 — the
63 S.Ct.
construction
as
a
gener
is not
reasonableness
appeals
court
“[a]
ated
strike
inqui
(Jp2)(A) by
preemptive
a
novo
a de
to conduct
empowered
—
ally
to consider
capacity
its
reviewed
being
the BIA
strips
matter
ry into
1101(a)(42)(A).
In so
on such
based
conclusions
own
the issue
its
reach
at
Thomas,
126 S.Ct.
precludes
majority
inquiry.”
doing,
16, 123 S.Ct.
Ventura,
“highly
at
537 U.S.
thoroughly
examining
(quoting
omitted)).
Ventura,
marks
(internal
matter,”
quotation
sensitive
complex
“inde
353, and
17, 123 S.Ct.
this court
Ucelo-Gomez,
U.S.
panel
a
legal
far-reaching
es-
create[s]
and Ventura
pendently
Thomas
concluded
here)
BIA the
(as
giving
without
....
“where
precedent
the rule
tablish
in the
group,
the matter
whether
to address
yet
opportunity
decide
agency
expertise.”
within
falls
its own
light
situation
aor
instance
thing,
first
term,
proper
Thomas
statutory
aof
Ventura
Significantly,
ambit
Id.
re-
reviewing
pre
court
judicial
just
prevent
course
designed
in accor-
agency
the matter
when
even
mand
positions,
BIAof
emption
ordinary remand
well-worn
arguably
with
dance
what
reaches
preemption
(in-
at 169
Ucelo-Gomez,
rule.”
result.
correct
omitted). More-
marks
quotation
ternal
were
Moreover,
if the
even
asserted
in Ucelo-Gomez
over,
panel
remand
it was—to
I believe
required
required
interpretation
—as
agency
“the
BIA,2 it
case
Dong’s
Hua
Zhen
first
is ‘in
and Ventura
Thomas
circumstances,
is to
course, except
rare
whether,
a matter
question
investiga
additional
agency
review,
remand
Step
"reasonableness”
Two
Chevron
Ventura, 537
(quoting
explanation.”
tion
decision
C-Y-Z-
could base
the BIA
353) (internal quotation
16, 123 S.Ct.
pure
arguably neither
1101(a)(42)(A), is
remand,
(requiring
omitted))
id.
marks
interpreta
statutory
fact,
nor
question
requires de
matter
observing
“[t]he
such mixed
*39
extent
And the
tion.
deciding
whether
termining the facts
Ap
by Court of
a
may be resolved
questions
term”);
statutory
within
fall
as found
facts
agency
remanding
first
without
peals,
153,
Gonzales,
157-58
F.3d
v.
clearly
Hussain
consideration,
not
for its
factual
Cir.2007) (distinguishing between
(4th
Compare
Court.
Supreme
by the
settled
BIA,
statuto
by the
considered
not
issues
("[T]he proper
Thomas,
at 1615
should have remanded his case
aas matter
tions for this court’s immigration law dock
of wise discretion.
et;
Jian Hui
v.
estimate,
Shao
one
“70-80 percent
Cf.
of the
Bd.
Immigration Appeals,
[petitioners
465 F.3d
in our court] are
Chinese seek
(2d Cir.2006)
ing asylum escape
(concluding that “the
their homeland’s fam
ily
BIA is better
planning policies.”
situated than
we are
Appeals
Re
main High
decide the
in 2nd
statutory
Circuits,
and 9th
interpretation ques
The
Third
tion
Branch:
in the first
Newsletter of
instance,”
Fed. Cts.
noting that
(Admin. Office of the U.S. Cts.
“[o]ur decision to
Office of
remand
question
Affairs,
Pub.
D.C.),
Feb.
law
available
to the BIA
for resolution in the first
http://www.uscourts.gov/ttb/feb05ttb/bia/
instance is supported by recent decisions
index.html (citing statement of Elizabeth
Supreme
Court of the United States
Cronin).
this,
Given all
our court should
and our Court” (emphases added)); Yuan
have approached the question of C-Y-Z- 's
liang Liu v.
Dep’t
Justice, 455 F.3d
permissibility
as it was or with
—either
(2d Cir.2006) (“Because
we con
nuanced
haste,
modifications—not with
but
clude,
aas
discretion,
matter of
it
with trepidation. For the truth is that we
prudent and useful for us to remand the
cannot foretell how the BIA would have
issue of frivolousness, we need not address
interpreted
general
definition of
the more complicated question of when
§ 1101(a)(42)(A),had it been asked to fo
remands to the BIA are required by ele
cus on that language.
mentary
principles
administrative
By trying to decide something that
law”).
yet
us,
before
the majority bars the
I believe that
the majority’s haste in BIA from bringing its expertise to bear on
narrowly
construing
1101(a)(42)(A)—
this sensitive issue.
process,
and, therefore,
in cabining the BIA’s dis majority does not only preclude the BIA
cretion—is particularly troubling given the
from reenacting the per se rule of C-Y-
circumstances of this
At
ease.
stake
ais
Z — a
which,
rule
at the proper time, I
rule of the BIA that has been in place, and might well have concluded was “unreason
relied upon, for over ten years. See S-L-
able” at
Two,
Chevron Step
for all of the
L-, 24 I. &
(Board
N.
Dec.
Member
reasons the majority recites.
majori
Pauley, concurring)
(“[Notwithstanding
ty
prevents
also
the agency from interpret
my belief that Matter
C-Y-Z- ... was
ing
general
language
wrongly decided, I would not overrule it
§ 1101(a)(42)(A) in ways which might have
now, nearly a decade later and in the
suffered from none of the problems the
aftermath of thousands of decisions apply majority properly associates with the cur
ing it to grant asylum on a derivative
per
rent
se
ways, incidentally, which
rule —
basis.”). In addition, the invalidation of C- might truly
promoted
congressional
Y-Z-’s rule will have sweeping ramifica- policy goals.3 In
respect,
the majority
issues,
ry
and reasoning that
mez,
Ventura and
("[I]f
339 agency the to allow again, back sent were doing what from agency the keeps opinion pro- se per to extend namely, whether best, to consider do agencies administrative 1101(a)(42)(A), possi- it is § general tection to convert expertise their using with agreed have reflect BIA would the that best that ble rules specific into statutes protection no that majority intent.4 the legislative underlying might the BIA Or adopted. be should Under rule. more sensible adopted have never we will approach, majority’s because precisely the it was Ironically, in Shi panel the that reasons know. the above mentioned I as comprised,
Liang Lin — partially, respectfully, I Accordingly, opin- majority the earlier, author the opinion. the from dissent concurrence, and me— ion, principal the majori- if the Yet originally. back sent it II would valid, there then reasoning were ty’s ei- the concurrences join I cannot But so. to do panel the for reason no have been it BIA, because if the act They ther. then, the and Nonetheless, it back we sent rul- amade passing, “nexus” mentioned se refu- per as to whether BIA ruled 1101(a)(42)(A). didn’t. It § ing under directly under granted be could gee status the interpret yet agency the Since case II.B. If Part § 601. infra 281, Inc., U.S. Sys., 419 Freight 601(a)'s Arkansas-Best § automat- on relied not the BIA had (1974); see 438, 447 286, 42 L.Ed.2d 95 S.Ct. rule, focused but instead ic Farm v. State Ass’n Vehicle Motor also agency Mfrs. "persecution,” general notion 29, 43, Co., 103 S.Ct. U.S. 463 Ins. Mut. Auto. 1101(a)(42)(A) as § interpreted might have (same). (1983) 2856, 77 L.Ed.2d had tried (1) who partners providing so, doing but cases, prevented were marry, and these But, of whether regardless eligible for jointly remand, are together, stayed un- necessity to limit which (a) pro- both (which Chenery conclusion "exceptions” be derstood keeping fam- policy congressional merely requirements, mote Ventura-Thomas and eligibility (b) extend together, and formulaic deeper ilies truth that a reflection already covered judg- not sound for to individuals substitute cannot statements le- (2) who are 601(a)); cases, husbands v. Lin Hua but see Li particular ment (2d of a wife's Justice, time at the F.3d gally married Dep’t U.S. Cir.2006), wives their abortion, to leave side who choose which but clear remains it simply We not. falls. good, are before us behind case the line and, majority and because do not know— impossi- it almost Court make Supreme concurring opinions mindful I am lan- general exper and consider the role the BIA to respect ble cautioned instance, 1101(a)(42)(A) we first "require guage of not agencies does tise directly partners into agency action in relation review judicial convert likely to therefore, we are not that, persons, remand victimized game,” ping-pong interpreted BIA would an idle be learn —how it “would required when is not so. to do asked 1101(a)(42)(A) it been had Wyman-Gordon v. formality.” NLRB useless path, agency’s which a case not Co., n. This "reasonably clear, be can v. perfectly Zu Guan (1969); Li while discerned”; also see L.Ed.2d a case in (dis is it Cir.2006) nor (2d INS, 135-38 F.3d be can Gonzales, a remand response to likely standards); agency’s v. Alam futility cussing Rather, ais Cir.2006) confidence. (per predicted cu (2d 184, 187-88 438 riam) (same). spo- yet (1) BIA has Moreover, in which case relatedly, clearly all, certainly not reviewing —on ken—at clarified Court has Supreme area, and in this 1101(a)(42)(A)’s breadth than of less a decision "uphold must court has, unfortunately, chosen court our may path reason agency’s if the clarity ideal impossible. inquiry further make Transp., Inc. Bowman ably discerned.” *41 340
broad language
section,
of that
it is wrong
a court to be compelled to guess at the
for us to say
the concurrers do—that
theory underlying
agency’s
—-as
action; nor
the agency expressed views to which we
can a court
expected
be
chisel
owe
so,
deference. And this is
regardless which must
precise
be
from what
agen-
of whether such a ruling,
had
cy
has left vague and indecisive.” Id. at
made, would
passed
requirements
196-97,
own policy judgments under the guise of
A
“review.”
In SEC v. Chenery Corp.
I),
(Chenery
Our court has repeatedly recognized and
80,
318 U.S.
63
454,
The Chenery decisions also recognized
preme Court has made clear that ‘[i]t will
“an important corollary of the foregoing
not do for a court to be compelled
guess
rule”: “If the administrative action is to be
the theory underlying
particular]
[a
tested
the basis upon which it purports
agency’s action; nor can a court
expect-
be
rest,
that basis must
set
forth with
ed to chisel that which must be precise
such clarity as to be understandable.”
from what the agency has
vague
left
II,
Chenery
U.S. at
Thus, remanding, BIA’s rul- that the assumed plainly panel a construction in C-Y-Z- was based ing decision BIA’s of the basis precise requested 601(a), accordingly, §of But but clear. anything in C-Y-Z- 601(a) might § how explain BIA past in the this court BIA and a manner. Con- in such be read plausibly aon construction based that it was stated instructions, BIA’s these sistent with Lin, Liang 601(a). Shi See § scope focused on in S-L-L- response C-Y-Z-, BIA “the that, in (noting at 188 S-L-L-, I. & N. Dec. 601(a). §of 601(a), § IIRIRA that, under held Appeals (“The Court States United of one or abortion sterilization forced has remanded Circuit for the Second against act of is an spouse explain that we further request case with ” added)); see (emphasis .... spouse other C-Y-Z-, ‘for in Matter our rationale at C-Y-Z- (“[A] look id. fresh also 601(a) provide § IIRIRA construing ex adequately BIA never that the reveals spouse of one sterilization the “forced instance, first why, in the how or plained under protected a ground account 601(a) permit IIRIRA construed against act of Act by co victimized directly those (internal citation ....”’ spouse” other to become policies family planning ercive (“[W]e our reaffirm id. omitted)); at 4 (emphasis themselves.” eligible for ”). C-Y-Z-.... Matter holding in S-L-L-, at 3 I. & N. Dec. added)); see C-Y-Z-, held supra, we (“In Matter of 601(a)’stext had sensing Perhaps forcibly wife was husband whose however, decision the BIA’s offer, little past persecution establish could sterilized of that analysis little S-L-L-provided [i.e., IIRIRA this amendment asserted, conclu- Instead, the BIA text. added)). 601(a) (emphasis ]” “re- in C-Y-Z- sorily, that its decision inherent tensions significant flects the Lin, panel Liang In Shi IIRIRA amendment”5 and that cution in assessing a claim under the IIR- “[t]here is no clear or obvious answer to IRA amendment.” added). Id. (emphasis the scope protections It permissible afforded to read in this the amendment to partners way, persons argued, “[although because submit the wife is obviously abortion steriliza- subject- individual *43 S-L-L-, tion.” I. ed the & N. abortion procedure, Dec. at 4. The Congress BIA did not hint at concerned not what with these the “tensions” offensive be, upon assault might plausibly woman, the why the but plain also lan- with the 601(a) obtrusive guage government §of should not be interference into a taken as married couple’s establishing the decisions proper regarding chil- scope of “the IIRI- dren and family.” RA at Therefore, Id. Instead, amendment.” the the BIA “reaf- “[wjhen concludes, BIA government the holding firm[ed][its] C-Y-Z-,” in Matter intervenes in id., private largely on affairs of a mar- basis stare decisis and couple ried to force an Congress’s abortion or sterili- supposed acquiescence. zation, it persecutes the married couple as It is the BIA’s reticence to engage with entity.” added). Id. (emphasis It 601(a)’s § text —and the resulting ambigui seems to patent me that the BIA reached ty in the BIA’s opinion in S-L-L-that this § conclusion 601(a), under and not the concurring opinions now seek to con 1101(a)(42)(A). § vert into an argument that S-L-L- was based, 601(a), § not on but on general definition “refugee” found view, In my then, the BIA’s decisions in 1101(a)(42)(A). § It that, is true at one C-Y-Z- and S-L-L- grounded were in a point in S-L-L-, the BIA obscurely re (mistaken) that, belief based on an “entity marked that “[a]lthough there is specif no theory” of persecution, spouses of those ic reference in the statutory definition aof directly victimized by family plan- refugee to a husband’s claim based on ning policies could themselves di- become harm upon inflicted wife, his general rectly eligible 601(a). § under principles regarding nexus and level of And it is not enough for the concurring apply harm in determining such a claim.” opinions to cast doubt on my conclusion; S-L-L-, 24 I. & N. Dec. at 5. Chenery II’s “clarity corollary” requires But phrase cannot, believe, I estab- agency make clear its decision to lish—as the concurring opinions would rest upon a purported ground. Thus, to have it—-that the BIA’s decision S-L-L- restate my problem with the concurring was based general on the “persecu- terms opinions: They use would the fact that the tion” “political opinion” found in BIA refused to engage clearly with the § 1101(a)(42)(A). And, even if did, it it 601(a) § text of as a basis for concluding would (as not do so clearly required by that the BIA was relying on something II). Chenery Indeed, one say, can as to else. But the incompatibility of ap- that: manifestly not. proach with Chenery II is apparent. Notably, in its very breath, next after (at Moreover, best) ambiguousness using the phrase nexus relied of the BIA’s decision in S-L-L- results in concurrers, the BIA in S-L-L- stated that precisely problems adverted it was applying “general principles requir- Chenery II. For it is far that, from clear ing nexus and level of harm past perse- had the BIA focused on the general defini- te) 5. The refers, course, "IIRIRA amendment” 601(a). § properly Today, we clearly. sodo ly didn’t 1101(a)(42)(A), agency would §of tion interpreting ruling BIA’s reject cur- in its rule C-Y-Z-s preserved have 601(a). spirit in the But coverage of been is, BIA had the That form. rent Thomas, and our own tradition Ventura, 601(a)’s automat- examine, asked first BIA sending things back more rule, instead but ic-eligibility the BIA some- now ask reading, we should quite it is “refugee,” definition general by any asked never thing that up come would the BIA possible you do would What court: rule, perhaps se per a different does 1101(a)(IS,)(A), given have avoided one that even you what authority to do you give C-Y-Z- in its inherent problems many S-L-L-?6 did C-Y-Z- at 8-9. supra approach. answer not know what We do *44 ap- concurring opinions’s the Under for the sim- question to that give would For, by unlikely to know. we are proach, has never agency The reasons. plest of deciding as opinion agency’s reading the should And we asked. specifically been certainly decide—and not did that which it assume not, properly, indeed cannot concurring clearly decide not did —the way or say response- in it would what —one agency effect, the preclude opinions, a reasonable be either another —would the fully about deeply thinking the stat- interpretation of an unreasonable thing very the that is And matter. that such Moreover, possible it is ute. since II is Chenery clarity requirement Zhen covered might have interpretation agency do. to make meant the ma- with concur I Dong, Hua cannot case is his concurrences jority and Ill hopeless. now beginning, end, at the as rush to that, in their thing is The sad fact asked: we in ask—what us to read gets of who terms a result in reach based could be rule C-Y-Z-s whether majority and not, both does and who so, its 601(a)’s text, what and if § upon law bad bad sanction the concurrers could, under agency The were. reasons relationship to our respect with practices broadly remand, more have turned our they do this BIA. The with didn’t, reason and it certain- It § 1101(a)(42)(A). The con- question on its own. my address answer attempting to majority, 6. The nevertheless, currers, BIA had as if the remanding act at footnote opinion, says, validly given be and had question BIA would Dong’s addressed case Hua Zhen great With under pong.” persecutee status “ping per useless se engaging, spouses simply that footnote holds that majority respect, 1101(a)(42)(A). § separate quite two question, its conflation repeats were consider the BIA even if the BIA-has certainly true that things. It al. spouses et validly say that it could consider occasions multiple had majority and Both se. per covered were 601(a), under "spousal” question overstep, and me to seem the concurrers per agree) that (incorrectly, we all answered in Ventura indicated reasons precisely the is available status persecutee se appellate proper for It is not and Thomas. never it has But section. under decide and to the BIA speak for courts people spouses or of what the status asked agency “speech,” before validity of that Dong Hua like Zhen situated opportunity and focused a full has had 1101(a)(42)(A), if §of general terms 1101(a)(42)(A), §On position clear. make And, view 601(a) spouses. cover did not opportunity. yet had agency incorrect, today we consistent —but of its player has only one pong when ping It is not apply to did rulings that hold— table. to the relevant been invited any reason had BIA never spouses, the certainly understandable. But it is all un-
necessary. just It’s being hurry. in a
ifc * * % reasons,
For all these I while concur opinion (1) the majority insofar as it petition
dismisses the of Xian Zou for lack (2) jurisdiction; petition denies the Liang moot;
Shi Lin as persuasive-
ly interprets 1158(c)(2)(A) 8 U.S.C.
being limited to a “fundamental change” in conditions,
country I respectfully must dis-
sent from premature denial of Zhen
Hua Dong’s petition. *45 ZELLNER,
John Robert
Plaintiff-Appellant, SUMMERLIN,
Robert G. Trooper, and
Major Weber, Defendants-
Appellees,
State York, of New New York State Department,
Police and John 1-10,
Does Defendants.
No. 05-6309-cv.
United Court Appeals, States
Second Circuit.
Argued: Feb. 2007. July
Decided: