                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-20-2004

Chen v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-3124




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PRECEDENTIAL                                   THEODORE N. COX
                                               JOSHUA BARDAVID (Argued)
     UNITED STATES COURT OF                    401 Broadway, Suite 701
             APPEALS                           New York, New York 10013
      FOR THE THIRD CIRCUIT
            __________                         Counsel for Petitioner

               No. 03-3124                     PETER D. KEISLER
              ____________                     DAVID V. BERNAL
                                               JOCELYN L. WRIGHT (Argued)
           CAI LUAN CHEN,                      Office of Immigration Litigation
                                               Civil Division
                Petitioner                     U.S. Department of Justice
                                               P.O. Box 878, Ben Franklin Station
                     v.                        Washington, DC 20044

  JOHN ASHCROFT, ATTORNEY                      Counsel for Respondent
GENERAL OF THE UNITED STATES,                         ____________________

             Respondent                              OPINION OF THE COURT
        ____________________                          ____________________

 ON PETITION FOR REVIEW OF AN
                                               ALITO, Circuit Judge:
    ORDER OF THE BOARD OF
     IMMIGRATION APPEALS                               Cai Luan Chen petitions for review
        (No. A73 631 654)                      of an order of the Board of Immigration
       __________________                      Appeals (BIA) affirming the denial of his
                                               application for asylum and withholding of
         Argued: June 18, 2004                 removal. Chen’s primary argument is that
                                               he is eligible for asylum based on his
Before: ALITO, SMITH, and WALLACE,             fiancee’s forced abortion at the hands of
Circuit Judges*                                Chinese government officials. In making
                                               this argument, Chen relies on a decision of
    (Opinion Filed August 20, 2004)            the Board of Immigration Appeals holding
                                               that the spouse of a person who was forced
                                               to undergo an abortion or sterilization is
                                               deemed under a 1996 amendment to 8
                                               U.S.C. § 1101(a)(42) to have suffered past
    *
     The Honorable J. Clifford Wallace,        persecution. Matter of C-Y-Z-, 21 I. & N.
Circuit Judge for the United States Court      Dec. 915 (BIA 1997) (en banc). Chen
of Appeals for the Ninth Circuit, sitting by   argues that, while he and his fiancee were
designation.                                   never married, they would have married
had it not been for China’s inflated                       Government officials soon became
minimum marriage age requirement, which            aware of the pregnancy and told Chen Gui
was instituted as part of the country’s            that the child would have to be aborted.
oppressive population control program.             Chen and Chen Gui delayed compliance
Chen contends China’s refusal to permit            with the order, and this prompted a group
him to marry constituted persecution and           of local officials to visit the home of
that therefore the BIA’s decision to limit         Chen’s parents. Chen Gui, having been
C-Y-Z- to married persons is irrational and        warned of the visit, was not there when the
arbitrary and must be rejected.                    officials arrived, and Ch en w as
                                                   accordingly asked to disclose Chen Gui’s
       We disagree. While limiting C-Y-
                                                   whereabouts. When Chen refused, the
Z- to married persons may produce
                                                   officials started hitting him with “sticks,”
undesirable results in some cases, the
                                                   and Chen fought back with a “plumbing
BIA’s interpretation, which contributes to
                                                   tool.” Finally, Chen’s parents intervened
efficient administration and avo ids
                                                   to end the scuffle. The officials left,
difficult and problematic factual inquiries,
                                                   warning Chen that he would be arrested if
is reasonable. We accordingly deny the
                                                   Chen Gui did not report for an abortion in
petition for review.
                                                   three days.
                     I.
                                                          Chen and Chen Gui went into
       Chen and his fiancee, Chen Gui, are         hiding, and Chen left the country shortly
both natives and citizens of the People’s          thereafter. He entered the United States in
Republic of China. Chen and Chen Gui               April 1996. About two months later, Chen
started living together at Chen’s parents’         contacted his family and was told that
house in July 1994. At the time, Chen was          Chen Gui had ultimately been found and
19 and Chen Gui was 18.                            had been forced to submit to an abortion in
       In September 1995, the couple
                                                   art. 6 (as amended April 28, 2001),
discovered that Chen Gui was pregnant,
                                                   available in LEXIS, Chinalawinfo Selected
and they then applied for a marriage
                                                   PRC Laws file at PRCLEG 1793. It is
license at the local government office
                                                   conceivable, however, that some local
without disclosing the pregnancy.
                                                   variation in these requirements may exist.
However, the office told them that their
                                                   See United States Department of State,
application could not be approved, since
                                                   China: Profile of Asylum Claims and
the legal age to marry was 25 for men and
                                                   Country Conditions (April 14, 1998) (“The
23 for women. 1
                                                   minimum age for marriage in China is 22
                                                   for males and 20 for females. In some
   1
     We note that officially the minimum           localities the ages are set higher.”). For
age for marriage in China appears to be 22         the purposes of this case, we assume the
for men and 20 for women. See Marriage             accuracy of Chen’s description of the age
Law of the People’s Republic of China,             requirement to which he was subject.

                                               2
the eighth month of the pregnancy. Chen              ask (at what is customarily called step one)
was also informed that Chen Gui was                  “whether Congress has directly spoken to
continuing to live with his parents.                 the precise question at issue.” Chevron,
                                                     467 U.S. at 842. “If so, courts, as well as
         T h e I N S initiated removal
                                                     the agency, ‘must give effect to the
p r o c ee d i n g s a g ai ns t C h e n, wh o
                                                     unambiguously expressed intent of
subsequently sought asylum under the
                                                     Congress.’” Household Credit Servs, Inc.
reasoning of the BIA’s decision in C-Y-Z-.
                                                     v. Pfennig, 124 S. Ct. 1741, 1747 (2004)
The IJ concluded that, although Chen and
                                                     (quoting Chevron, 467 U.S. at 842-43).
Chen Gui had never formally married, the
                                                     “However, whenever Congress has
case did “fall by analogy within C-Y-Z-, if
                                                     ‘explicitly left a gap for the agency to
not by the letter.” App. II at 116.
                                                     fill,’” a court must proceed to step two,
However, the BIA reversed on appeal,
                                                     and “the agency’s [interpretation] is ‘given
noting summarily that the decision in C-Y-
                                                     controlling weight unless [it is] arbitrary,
Z- had “not been extended to include
                                                     capricious, or manifestly contrary to the
unmarried partners,” App. I at 3, and that
                                                     statute.’” Id. (second brackets in original)
Chen’s “own experiences with the
                                                     (quoting Chevron, 467 U.S. at 843-44).
authorities in China [did] not rise to the
                                                     The Court has described this test as one of
level of past persecution.” Id. Chen then
                                                     reasonableness. See Chevron, 467 U.S. at
filed this petition for review.
                                                     845, 865, 866.
                     II.                                     Here, there is no dispute that “the
        The respondent in this case                  BIA should be accorded Chevron
(hereinafter “the government”) contends              deference for its interpretations of the
that the BIA’s interpretation of 8 U.S.C.            immigration laws,” Tineo v. Ashcroft, 350
§ 1101(a)(42) as covering the spouses but            F.3d 382, 396 (3d Cir. 2003) (citing INS v.
not the unmarried partners of persons who            Aguirre-Aguirre, 526 U.S. 415, 424
have been forced to undergo abortions or             (1999)), and Chen does not contend that 8
sterilization is entitled to deference under         U.S.C. § 1101(a)(42) unambiguously
Chevron U.S.A., Inc. v. Natural Resources            covers the unmarried partners of persons
Defense Council, Inc., 467 U.S. 837, 843-            who have undergone forced abortions or
44 (1984), and should be sustained.                  sterilization. Instead, Chen focuses on
Chevron applies when “it appears that                step two of the Chevron analysis and
Congress delegated authority to the agency           argues that the BIA’s interpretation of 8
generally to make rules carrying the force           U.S.C. § § 1101(a)(42) is arbitrary,
of law, and that the agency interpretation           capricious, and irrational.
claiming deference was promulgated in the                                III.
exercise of that authority.” United States
                                                           Before we can address Chen’s
v. Mead Corp., 533 U.S. 218, 226-27
                                                     argument regarding the limited scope that
(2001). If Chevron applies, a court must
                                                     the BIA has given to its decision in C-Y-

                                                 3
Z- , it is helpful to review that decision and       Responsibility Act of 1996, Pub. L. No.
the statute on which it is based.                    104-208, 110 Stat. 3009-546 (“IIRIRA”).
                     A.                              Section 601 of the IIRIRA amended
                                                     § 1101(a)(42) by adding the following
       Under 8 U.S.C. § 1158(b)(1), the              language:
Attorney General may grant asylum to an
alien who is a “refugee” within the                         [A] person who has been
meaning of 8 U.S.C. § 1101(a)(42). In                       forced to abort a pregnancy
order to establish refugee status under the                 or to undergo involuntary
latter provision, an applicant must                         sterilization, or who has
generally show that he or she “is unable or                 been persecuted for failure
unwilling to return to, and is unable or                    or refusal to undergo such a
unwilling to avail himself or herself of the                procedure or for other
protection of [the country of such person’s                 resistance to a coercive
nationality or in which such person last                    population control program,
habitually resided] because of persecution                  shall be deemed to have
or a well-founded fear of persecution on                    been persecuted on account
account of race, religion, nationality,                     of political opinion, and a
membership in a particular social group, or                 person who has a well
political opinion.” 8 U.S.C. § 1101(a)(42).                 founded fear that he or she
By regu lation , see 8 C .F.R .                             will be forced to undergo
§ 1208.13(b)(1), “[a] showing of past                       such a procedure or subject
persecution gives rise to a rebuttable                      to persecution for such
presumption of a well-founded fear of                       failure, refusal, or resistance
future persecution.” Mulanga v. Ashcroft,                   shall be deemed to have a
349 F.3d 123, 132 (3d Cir. 2003).                           we ll founded fear of
                                                            persecution on account of
        The BIA initially rejected the                      political opinion.
argument that “implementation of
[China’s] ‘one couple, one child’ policy in          Id. § 601, 110 Stat. at 3009-689; see also
and of itself, even to the extent that               Matter of X-P-T-, 21 I. & N. Dec. 634
involuntary sterilizations may occur, is             (BIA 1996) (en banc). (For convenience,
persecution or creates a well-founded fear           we will refer to this new provision as “the
of persecution on account of race, religion,         1996 amendment to § 1101(a)(42)” or
nationality, membership in a particular              simply “the 1996 amendment.”)
social group, or political opinion.” Matter                The IIRIRA also imposed a cap of
of Chang, 20 I. & N. Dec. 38, 44 (BIA                1,000 persons per fiscal year on the
1989) (internal quotation marks and                  number of aliens who may be granted
citation omitted). This holding, however,            asylum under the 1996 amendment. 8
was superceded several years later by the
Illegal Immigration Reform and Immigrant

                                                 4
U.S.C. § 1157(a)(5).2 Accordingly, aliens          /cpc.htm.
found eligible for asylum under this                                     B.
provision are approved only conditionally,
subject to an administrative determination                 In C-Y-Z-, the BIA, sitting en banc,
that a final grant of asylum would not push        considered the asylum petition of a man
the annual total above the statutory cap.          who claimed that his wife had been
See X-P-T-, 21 I. & N. Dec. at 637.                forcibly sterilized.       The government
Because the number of conditional grants           conceded that the man was a victim of past
issued per year has exceeded 1,000 for             persecution as defined by the 1996
some time, the waiting list now includes           amendment to § 1101(a)(42), asserting that
more than 7,000 applicants. See News               “past persecution of one spouse can be
Release, U.S. Department of Justice, EOIR          established by coerced abortion or
Notifies Persons Eligible for Full Asylum          sterilization of the other spouse.” C-Y-Z-,
Benefits for Fiscal Year 2003 Based on             21 I. & N. Dec. at 917; see also id. at 919
Coercive Population Control Policies               (noting agreement on the proposition that
( S e p t .      3 0 ,     2 0 0 3 ),    a t       “forced sterilization of one spouse . . . is
http://www.usdoj.gov/eoir/press/03/CPC             an act of persecution against the other
AsylumRelease0903.pdf. This means that             spouse”).       The BIA accepted this
applicants awarded conditional asylum              proposition, but unfortunately, it did not
today face a waiting period of at least            explain the basis for this conclusion.
seven years before becoming eligible for           However, two rationales seem possible.
the full benefits of asylum, including the                 The first would proceed on the
ability to apply for lawful permanent              assumption that the persecution of one
resident status and to obtain the admission        spouse by means of a forced abortion or
to the United States of family members not         sterilization causes the other spouse to
included in the original asylum                    experience intense sympathetic suffering
application. See id.; U.S. Citizenship and         that rises to the level of persecution. Cf.
Immigration Services, Resistance To                Abay v. Ashcroft, 368 F.3d 634, 642 (6th
Coercive Population Control (CPC)                  Cir. 2004) (suggesting that “mental
P ro g ra m s (O ct. 30 , 200 3), at               suffering” resulting from “being forced to
http://uscis.gov/graphics/services/asylum          witness the pain and suffering of [a]
                                                   daughter” constitutes persecution) (citing
    2                                              Matter of Dibba, No. A73 541 857 (BIA
     The statute provides: “For any fiscal
                                                   Nov. 23, 2001)). There is some evidence
year, not more than a total of 1,000
                                                   that this rationale may represent the BIA’s
refugees may be . . . granted asylum . . .
                                                   thinking in C-Y-Z-.         Board Member
pursuant to a determination under the third
                                                   Rosenberg explained:
sentence of section 101(a)(42) (relating to
persecution for resistance to coercive                    It is not . . . unusual . . . that
population control methods).” 8 U.S.C.                    the applicant should be
§ 1157(a)(5).                                             granted asylum although the

                                               5
       harm experienced was not                    clear why every spouse of a person who
       by him, but by a family                     undergoes a forced abortion or sterilization
       member. . . . It . . .                      should be deemed to have “resist[ed]” the
       constitutes persecution for                 “coercive population control program.”
       the asylum applicant to                     What if the spouse who did not personally
       witness or experience the                   undergo the procedure sided with the
       p e r secution of family                    government and favored the abortion or
       members . . . .                             sterilization?
C-Y-Z-, 21 I. & N. Dec. at 926                             The second possible rationale for
(Rosenberg, Board Member, concurring).3            the C-Y-Z- decision is that performing a
This interpretation would presumably look          forced abortion or sterilization procedure
to the language in the 1996 amendment              on one spouse constitutes persecution of
that refers to persons who are “persecuted         the other spouse because of the impact on
for . . . other resistance to a coercive           the latter’s ability to reproduce and raise
population control program.” See id. at            children. The Ninth Circuit has suggested
928 (Filppu, Board Member, concurring in           this interpretation, stating in Lin v.
part and dissenting in part) (explicitly           Ashcroft, 356 F.3d 1027, 1041 (9th Cir.
noting the possibility that the majority           2004), that the forced sterilization of a
holding rested on the “persecuted for              wife could be “imputed” to her husband,
. . . other resistance” clause).        The        “whose reproductive opportunities the law
suffering felt by the spouse who did not           considers to be bound up with those of his
personally undergo the procedure would             wife.” See also C-Y-Z-, 21 I. & N. Dec. at
constitute the “persecut[ion]” to which this       918 (“[T]he husband of a sterilized wife
language refers, and the other spouse              can essentially stand in her shoes and
would be deemed to have “resist[ed]” the           make a bona fide and non-frivolous
“coercive population control program,”             application for asylum based on problems
presumably on the assumption that he or            impacting more intimately on her than on
she opposed the procedure.                         him.”); see also id. at 921 n.2 (Rosenberg,
      This interpretation, however, is not         Board Member, concurring) (citing
without difficulties. For example, it is not       international law regarding “right to
                                                   procreate” and “right to . . . found a
                                                   family”); Matter of Y-T-L-, 23 I. & N.
   3
    The Sixth Circuit in Abay appeared to          Dec. 601 (BIA 2003) (en banc) (Pauley,
agree that the implication of Board                Board Member, dissenting) (“I understand
Member Rosenberg’s concurring opinion              our ruling in Matter of C-Y-Z- to be based
in C-Y-Z- was that a “family member may            on the theory that the persecution of one
be eligible for asylum based upon the              spouse by forced sterilization is imputed to
physical harm inflicted upon another               the other”). It takes some effort to
family member.” See Abay, 368 F.3d at              reconcile this interpretation with the
641.                                               language of the 1996 amendment, since

                                               6
the phrase “a person who has been forced             Petitioner Br. at 16-17 (quoting Zhao v.
to abort a pregnancy or to undergo                   United States DOJ, 265 F.3d 83, 95 (2d
involuntary sterilization” is most naturally         Cir. 2001)).5
read as referring only to a person who has                                A.
personally undergone one of those
procedures. But perhaps it could be                          As we understand it, C-Y-Z- uses
argued that the loss of opportunity to have          marital status as a rough way of identifying
and raise children also constitutes                  a class of persons whose opportunities for
“persecut[ion] for . . . other resistence to a       reproduction and child-rearing were
coercive population control program.” 4              seriously impaired or who suffered serious
                                                     emotional injury as the result of the
        In this case, however, it is not             performance of a forced abortion or
necessary for us to decide whether C-Y-Z-            sterilization on another person. Of course,
’s interpretation of the 1996 amendment is           this use of marital status as a proxy is
permissible. If it is not and the 1996               undoubtedly both over- and under-
amendment applies only to persons on                 inclusive to some extent, but neither over-
whom a forced abortion or sterilization              nor under-inclusiveness is alone sufficient
procedure has actually been performed,               to render the use of a metric like marital
Chen obviously cannot prevail. On the                status irrational. See Heller v. Doe, 509
other hand, if C-Y-Z-’s interpretation is            U.S. 312, 321 (1993) (citation omitted)
permissible (and we assume for the sake of           (“A classification does not fail
argument that it is), the distinction that the       rational-basis review because it ‘is not
BIA has drawn between married and                    made with mathematical nicety or because
unmarried couples satisfies step two of              in practice it results in some inequality.’”);
Chevron.                                             Dandridge v. Williams, 397 U.S. 471, 485
                     IV.                             (1970); Lofton v. Sec’y of the Dep’t of
       With the possible bases of the C-Y-           Children & Family Servs., 358 F.3d 804,
Z- decision in mind, we turn to Chen’s               822-23 (11th Cir. 2004) (“The Supreme
argument that the BIA’s interpretation of            Court repeatedly has instructed that neither
the 1996 amendment, by drawing a                     the fact that a classification may be
distinction between married and unmarried            overinclusive or underinclusive nor the
couples, “evinces such a lack of rationality
as to be arbitrary and capricious.”                        5
                                                            While this argument bears some
                                                     similarity to a rational-basis Equal
      4
       In the case of a forced abortion,             Protection Clause argument, it is clear that
conception in violation of the program               Chen is not attempting to make a
could constitute the “resistance,” and since         constitutional argument here. Nor does
involuntary sterilization often follows              Chen contend that any standard of review
prohibited conception, this same theory              more stringent than “rationality” ought to
might work in that context as well.                  apply.

                                                 7
fact that a generalization underlying a             distinction could be viewed as serving two
classification is subject to exceptions             purposes: (1) providing a convenient way
renders the classification irrational.”).6          to weed out cases in which “close family
       This principle is well illustrated by        ties” were lacking and (2) avoiding
cases involving immigration laws that               “problems of proof and the potential for
attempt “to provide some – but not all –            fraudulent visa applications.” Id. at 798,
fam ilies with relief from various                  799 n.8; see also Nguyen v. INS, 533 U.S.
immigration restrictions that would                 53, 62 (2001) (finding need for reliable
otherwise hinder reunification of the               evidentiary verification “that a biological
family in this country.” Fiallo v. Bell, 430        parent-child relationship exists” to be an
U.S. 787, 797 (1977). For example, in               important government interest justifying
Fiallo, the Supreme Court upheld the                disparate treatment of illegitimate children
constitutionality of provisions that                born to citizen mothers and those born to
excluded illegitimate children and their            citizen fathers). Likewise, a law requiring
fathers (but not illegitmate children and           aliens who married United States citizens
their mothers) from special preference              while in removal proceedings to wait
imm igration status.            The Court           outside the country for two years before
acknowledged that these provisions could            qualifying as I-130 “immediate relatives”
have the effect of “deny[ing] preferential          has been found to be rational as a method
status to parents and children who share            of deterring sham marriages. Almario v.
strong ties,” id. at 798, and the Court noted       INS, 872 F.2d 147, 152 (6th Cir. 1989);
the argument that “the statutory distinction        Anetekhai v. INS, 876 F.2d 1218, 1222
[was] based on an overbroad and outdated            (5th Cir. 1989) (“Congress logically could
stereotype concerning the relationship of           have concluded that aliens who are
unwed fathers and their illegitimate                engaged in deportation proceedings are
children,” id. at 799 n.9. Nevertheless, the        more likely than aliens not so situated to
Court concluded that the statutory                  enter into fraudulent marriages as a means
                                                    of avoiding expulsion from the United
  6
                                                    States.”).7
    Indeed, the marriage relation is used in
so many areas of the law (income tax,
                                                      7
welfare benefits, property, inheritance,               The Supreme Court has reversed at
testimonial privilege, etc.) that it would          least one prior attempt by this Circuit to
seem absurd to characterize reliance on             engage in more searching review of line-
marital status in C-Y-Z- as arbitrary and           drawing exercises by the political
capricious. Cf. Montgomery v. Carr, 101             branches of government in the area of
F.3d 1117 (6th Cir. 1996) (deeming                  immigration law. In INS v. Hector, 479
rational the enforcement of a school anti-          U.S. 85 (1986) (per curiam), the
nepotism policy against married couples             Supreme Court rejected a holding
but not cohabitants).                               allowing for the possibility of treating
                                                    nieces as “children” in a hardship

                                                8
        Similarly, we may say that the BIA          forced abor tions an d steriliza tion
“logically could have concluded that aliens         procedures tend to have a more severe
who are [married] are more likely than              impact on spouses than on unmarried
aliens not so situated” to be severely              partners. The BIA might also have been
injured in the ways noted above when their          concerned that unmarried asylum-seekers
partners are forced to endure forced                would falsely claim to have had an
abortions or sterilization. Indeed, in light        intimate relationship with a person who
of the “crushing caseload” faced by the             suffered a forced abortion or sterilization,8
BIA in recent years, see Dia v. Ashcroft,           and the BIA might have felt that it would
353 F.3d 228, 235 (3d Cir. 2003) (en                be too difficult to distinguish between
banc), it was entirely rational for the Board       those unmarried persons who had a truly
to adopt a position requiring marriage,             close relationship with the person who
which can often be proven easily and                underwent the medical procedure and
reliably through objective documentary              those unmarried asylum seekers who did
evidence such as marriage certificates or           not. 9 Chen does not explain why the BIA
“household registration booklets.” See,
e.g., Zhao, 265 F.3d at 87; C-Y-Z-, 21 I. &
                                                       8
N. Dec. at 916. By contrast, a rule                      An analogy may be drawn here to the
extending C-Y-Z- to non-spouses would               tort of negligent infliction of emotional
create numerous practical difficulties that         harm.      As explained in Restatement
the BIA might reasonably have chosen to             (Second) of Torts § 436, recovery under
avoid. For example, in cases in which a             this tort may be available when members
male applicant claims to have fathered an           of the immediate family of a victim witness
illegitimate child who was forcibly aborted         the infliction of harm. Id. § 436(3)
by government officials, the problem of             (emphasis added). “However, where a
proving paternity would be even more                stranger is involved . . . there may be
acute than those presented in Fiallo and            sufficient uncertainty as to the genuineness
Nguyen.      Moreover, the BIA might                or seriousness of the emotional disturbance
reasonably have decided that, in general,           to justify, as a matter of administrative
                                                    policy, a denial of liability.” Id. cmt. h.
                                                    Here, the BIA may have concluded that,
analysis if it could be shown that a
                                                    given the difficulty of determining the
“parental-type relationship” existed. See
                                                    “genuineness” of emotional harm felt by
id. at 87. Whether any unfairness to the
                                                    one upon hearing of harm to his fiancee,
nieces in such “parental-type
                                                    the strict limitation of C-Y-Z- to married
relationship[s]” may have resulted did
                                                    couples was justified “as a matter of
not enter into the Court’s calculus; all
                                                    administrative policy.”
that mattered was that Congress, in
                                                              9
defining “children,” had not seen fit to                     That some applicants could
include nieces raised as effective                  conceivably be able to present such
adoptees. See id. at 90-91.                         convincing evidence is beside the point.

                                                9
was irrational in deciding on a bright-line                              B.
rule for this class of cases, rather than                     Chen argues, however, that even if
submitting each individual claim to a                it is rational not to extend C-Y-Z- to cover
detailed (and probably inconclusive)                 all unmarried partners, it is irrational to
psychological analysis concerning the                exclude him and other unmarried persons
nature of a claimed relationship.                    who wanted and indeed tried to get
        For these reasons, we conclude that          married but were prevented from doing so
the BIA’s decision not to extend C-Y-Z- to           by a law that is
unmarried partners satisfies step two of             an integral part of a program of
Chevron. The BIA’s interest in promoting             persecution. This argument must be
administrability and verifiability is                rejected for reasons similar to those
sufficient to clear the low hurdle presented         already discussed. Chen’s situation simply
by the step two standard, especially in light        shows that C-Y-Z- is underinclusive with
of the limited number of spots allowed by            respect to a narrow but sympathetic class,
Congress for asylum claims based on the              and as noted, a rule is not irrational just
1996 amendment. 10                                   because it is underinclusive to some

We note that Fiallo did not require any
                                                     asylee’s status.” Respondent Br. at 19.
special exception to be carved out for
                                                     Because “the existence of a valid, legal
fathers who could prove actual paternity of
                                                     marriage is required before an immigrant
illegitimate children when they had not
                                                     visa may be issued,” the government
adopted or legitimated them. Nor did
                                                     concludes that the disparate treatment of
Almario and Anetekhai provide those who
                                                     married and unmarried applicants is
married during removal proceedings an
                                                     “consistent with the statutory design and
opportunity to present evidence showing
                                                     the family unification policies underlying
that their marriages were not shams. Such
                                                     the issuance of immigration visas.” Id.
rules, like the one adopted by the BIA
                                                     This argument is not without some merit.
here, represent pragmatic approaches that
                                                     However, given the current length of the
make it possible for an overburdened
                                                     conditional asylee waiting list, spouses
agency to do the work with which it is
                                                     granted conditional status under C-Y-Z-
charged.
                                                     today must wait at least seven years before
   10
     The government offers an alternative            they can even apply for such a visa on
explanation for the BIA’s distinction                behalf of their spouses. Accordingly, we
between married and unmarried asylum                 doubt as a practical matter that the
applicants, noting that “[a] grant of asylum         potential eligibilty for preferential visas
to an applicant present in the United States         actually operates to hasten the admittance
enables the asylee to have his or her                to the United States of spouses directly
spouse and children admitted to the United           persecuted under coercive population
States as derivative beneficiaries of the            control programs.

                                                10
extent.                                             significantly interfere with decisions to
       Of course, if the Chinese                    enter into the marital relationship may
authorities’ refusal to permit Chen and             legitimately be imposed.”); cf. Zablocki,
Chen Gui to marry was itself an act of              434 U.S. at 392 (Stewart, J., concurring)
persecution, then Chen suffered past                (“A State may not only ‘significantly
persecution.    But although minimum                interfere with decisions to enter into the
marriage ages of 23 and 25 are contrary to          marital relationship,’ but may in many
our traditions and international practice,          circumstances absolutely prohibit it.”)
we cannot go so far as to say that                  (footnote and citation omitted). Laws
enforcement of these laws necessarily               setting reasonable minimum marriage ages
amounts to persecution.                             are also recognized as legitimate and
                                                    desirable under international human rights
            American constitutional law             law.12
recognizes marriage as a fundamental
right, see Loving v. Virginia, 388 U.S. 1                  It is certainly true that marriage
(1967), but all states impose minimum               laws in this country set the minimum age
marriage age requirements,11 and we                 for marriage considerably below 23 or 25.
assume that these laws are constitutional.          Almost all states set 18 as the minimum
See Moe v. Dinkins, 669 F.2d 67, 68 (2d             age to marry without parental consent. 13
Cir. 1982) (per curiam) (law requiring              Where parental consent is provided, as it
parental consent for marriage of                    apparently was in the case now before us,
individua ls under 18 deemed                        most states permit marriage at the age of
constitutional, as a rational means for
helping “prevent[] unstable marriages                      12
                                                             See Convention on Consent to
among those lacking the capacity to act in          Marriage, Minimum Age for Marriage and
their own best interests”); Maynard v. Hill,        Registration of M arriages, Dec. 9, 1964,
125 U.S. 190, 205 (1888) (state legislature         art. 2, 521 U.N.T.S. 231, 234, at
may prescribe “the age at which parties             http://untreaty.un.org/English/access.asp
may contract to marry”); see also Zablocki          (“States parties to the present Convention
v. Redhail, 434 U.S. 374, 386 (1978)                shall take legislative action to specify a
(“[R]easonable regulations that do not              minimum age for marriage.”). We note,
                                                    however, that the apparent purpose of the
      11
                                                    Convention’s minimum age requirement
        See Legal Information Institute,
                                                    (as stated in the preamble) is not
Cornell Law School, Marriage Laws of the
                                                    population control, but rather the
Fifty States, District of Columbia and
                                                    elimination of child marriages and the
P u e r t o         R i c o ,       a t
                                                    “betrothal of young girls before the age of
http://www.law.cornell.edu/topics/Table
                                                    puberty.” Id. pmbl., 521 U.N.T.S. at 232.
_Marriage.htm (citing age requirements
                                                      13
and pertinent statutes) (hereinafter                    See Marriage Laws of the Fifty States,
Marriage Laws of the Fifty States).                 supra note 11.

                                               11
16.14 It is also true that the marriage laws        number of children they want. . . . People
of other countries generally set the                can . . . still have 2, or 3, or 10 children, if
minimum marriage age at 18 years or less,           their individual biology and preferences
and it appears probable that no other               lead them to do so and the government
country sets the minimum as high as does            does not forcibly abort their children or
China.15                                            sterilize them.”). It is perhaps worth
        A law or practice, however, does            noting that the median ages of first
not necessarily rise to the level of                marriages for men and women in this
“persecution” simply because it does not            country now exceed the minimum age
satisfy American constitutional standards           requirements that Chen contends amount
or diverges from the pattern followed by            to persecution.16 Although defining the
other countries. As we have noted,                  outer boundaries of the concept of
persecution is an “extreme” concept that            “persecution” is hard, we cannot say that
“does not encompass all treatment that our          requiring a person to wait until reaching
society regards as unfair, unjust, or even          the age of 23 or 25 is so far outside the
unlawful or unconstitutional.” Fatin v.             accepted realm of human decency as to
INS, 12 F.3d 1233, 1240 & n.10 (3d Cir.             constitute persecution.
1993).                                                                    C.
       Here, we cannot say that the BIA                    We acknowledge that our reasoning
was bound to conclude that minimums of              may appear to be in tension with that of
23 and 25 amounted to persecution. Chen             Ma v. Ashcroft, 361 F.3d 553 (9th Cir.
and Chen Gui were not permanently barred            2004). In that case, the petitioner Ma and
from marrying, and marriage at the                  his partner were married in a “traditional”
minimum ages in question would not have             Chinese ceremony in their village.
precluded them from having a long life              Because Ma was underage, the marriage
together or from raising children. See Li           could not be officially registered with the
v. Ashcroft, 356 F.3d 1153, 1164 (9th Cir.          Chinese government.         Ma’s partner
2004) (en banc) (Kleinfeld, J., dissenting)         conceived two months later and went into
(“[T]he higher marriage age does not                hiding to avoid detection by the
necessarily restrain people from having the         authorities. Ultimately, however, she was
                                                    found and forced to undergo an abortion,
   14
        Id.                                         and the couple was fined for “early”
              15
          Angela Melchiorre, Right to
                                                         16
Education Project, At what age? 15-21 (2d                  See United States Census Bureau,
ed. 2004) (listing marriage age                     Statistical Abstract of the United States 60
requirements 156 countries). A few                  (123d ed. 2003) (noting that 85.4% of
countries, including Algeria, Cambodia,             males and 74.0% of females under the age
India, Indonesia, Togo, and Vietnam, set            of 25 in the United States have never been
age requirements above 18 years. Id.                married).

                                               12
pregnancy and marriage. Ma subsequently             married”). Because Ma’s express holding
fled to the United States. When he                  applies only to putative husbands and not
attempted to apply for asylum under C-Y-            unmarried partners, it is inapposite here.17
Z-, the BIA rejected his claim on the                       Nevertheless, we acknowledge that
ground that he was not legally married              Ma’s reasoning could be applied to
under Chinese law. By this time, however,           someone in Chen’s shoes. The Ma court
Ma had actually reached the legal age to            reasoned that it is “absurd and wholly
marry in China. He therefore applied for            unacceptable” to deny asylum to a person
and obtained a certificate from the Chinese         based solely on a consequence of a
government indicating that his marriage             population control policy expressly
was considered valid, and he submitted              “deemed by Congress to be oppressive and
this certificate to the BIA with a motion to        persecutory.” Ma, 361 F.3d at 559.
reconsider, which the BIA ultimately                According to Ma, this would “contravene[]
denied. Ma petitioned for review, and the           the purpose and policies of the [IIRIRA]
Ninth Circuit reversed, holding that C-Y-           statutory amendment.” Id. at 560. In other
Z-’s interpretation of § 1101(a)(42) could          words, the Ma Court concluded that the
not rationally be limited to exclude                BIA’s interpretation of § 1101(a)(42)
“husbands whose marriages would be                  failed step two of Chevron because it was
legally recognized, but for China’s                 clearly contrary to Congress’s intent, or, as
coercive family planning policies.” Ma,             the Ma Court put it, Congress’s “purpose
361 F.3d at 561 (emphasis added).                   and policies.” Id. We must disagree with
       Because Ma’s marriage had been               this analysis because we see no basis for
recognized by the Chinese government by             concluding that Congress’s intent in
the time of the BIA’s decision, it was
unnecessary for the Ninth Circuit to reach
the question whether the BIA can                       17
                                                         See, e.g., Ma, 361 F.3d at 559 (“The
reasonably refuse to extend C-Y-Z- to               question presented here is whether
cases involving persons whom the Chinese            husbands, whose marriages are denied
authorities refuse to recognize as married.         recognition by virtue of the population
But assuming that the holding in Ma                 control program that Congress has
reaches all persons married in traditional          condemned, may be deprived of eligibility
ceremonies that the Chinese government              for asylum on the basis of that denial.”)
does not sanction, Chen would still not             (emphasis added); id. at 560 (“BIA’s
qualify, since he does not claim that he and        decision to limit asylum eligibility so as to
Chen G ui ever formalized their                     exclude husbands . . . contravenes the
relationship in that way. Indeed, Chen has          purpose and policies of the statutory
never argued that he is actually married in         amendment.”) (emphasis added); id. at 561
any sense, and in fact he affirmed precisely        (“Application of the BIA’s rule would
the opposite in his asylum application. See         result in the separation of a husband and
App. II at 265 (checking box labeled “not           wife . . . .”) (emphasis added).

                                               13
amending § 1101(a)(42) was to afford                 imposition of a yearly cap clearly reveals
relief to every person who is a victim of            an intent to carefully limit the scope of
any rule or practice that forms a part of the        relief made available by the amendment.
Chinese population control program.                          Against this background, it is hard
        “The starting point in discerning            to see how Ma could have concluded that
congressional intent is the existing                 a rule limiting C-Y-Z- to married couples
statutory text . . . .” Lamie v. United              was contrary to Congress’s intent. If Ma
States Tr., 124 S. Ct. 1023, 1033 (2004).            meant to say that individuals who suffer
The language of the 1996 amendment to                under a coercive population program may
§ 1101(a)(42) has several indications of             be eligible for asylum even if their
intent that we think are unmistakable. The           suffering (or feared suffering) is not
first is that proof of “persecution” or              proved or presumed to rise to the level of
“well-founded fear of persecution” is                persecution, we emphatically disagree.19
absolutely required to make a successful             As we have explained, the asylum statute
claim for asylum, just as was the case prior         plainly limits relief to cases involving
to the amendment. The second point is                “persecution.” That scheme necessarily
that, with the exception of forced abortions         excludes cases involving lesser harms,
and sterilizations, the concept of                   even when those harms implicate to some
“persecution” is left completely undefined.          degree the humanitarian interests that
We infer from Congress’s use of this                 animated passage of the asylum statute.20
ambiguous term an intent to delegate
interpretive authority to the agency,
including the ability to decide, within a            Aguirre-Aguirre, 526 U.S. at 425.
reasonable range, the precise contours of               19
                                                             We note that the opinion in Ma never
its meaning. FDA v. Brown & Williamson
                                                     explicitly finds or assumes that the
Tobacco Corp., 529 U.S. 120, 159 (2000)
                                                     p e t i ti o n e r ha d a ctu all y s uffere d
(“Deference under Chevron to an agency’s
                                                     persecution.
construction of a statute that it administers
is premised on the theory that a statute’s             20
                                                          For example, the statute extends relief
ambiguity constitutes an implicit                    to those who are persecuted “on account of
delegation from Congress to the agency to            race.” 8 U.S.C. § 1101(42). The primary
fill in the statutory gaps.”).18 Third, the          purpose of that provision is no doubt to
                                                     extend aid to certain individuals who
                                                     suffer the effects of gross racial inequality
  18
    There is no question that Congress has           in their countries of origin. Yet courts
delegated authority to the BIA generally to          routinely deny relief to those who suffer
“make rules carrying the force of law,” cf.          racial discrimination that falls short of
Mead, 533 U.S. at 226-27, and that its               “persecution,” see, e.g., Nagoulko v. INS,
interpretations of ambiguous statutory               333 F.3d 1012, 1016-17 (9th Cir. 2003),
terms are entitled to Chevron deference.             even though it might be said that such

                                                14
          Alternatively, it may be that Ma’s        legislators who considered the amendment
position was that the BIA’s interpretation          to § 1101(a)(42) thought that persons such
of the term “persecution” fell outside the          as Chen would qualify thereunder.21 To
acceptable range of meanings within                 the contrary, it seems that some legislators
which Congress authorized the agency to             had reservations about the ease with which
choose. However, there is no indication             “young Chinese single-unmarried-males ”
that Congress intended to put limits on the         might falsely claim eligibility for asylum
meaning of the term “persecution” beyond            under the proposed amendment, resulting
t h o s e i m po s ed b y t he n or m al            in a flood of meritless applications. 142
understanding of the word. Matter of                Cong. Rec. S4593 (daily ed. May 2, 1996)
Acosta, 19 I. & N. Dec. 211, at 223 (BIA            (statement of Sen. Simpson). Statements
1985). (“Congress chose not to define the           from others suggest that the reference to
word ‘persecution’ . . . because the                “persecut[ion]” in the amendment was
meaning of the word was understood to be            simply intended to include actions such as
well established by administrative and              “torture” and “sexual abuse” that would
court precedents.”). Of course, with the            qualify as persecution under the prevailing
1996 amendment, Congress did add the                definition of the term. See 142 Cong. Rec.
constraint that “persecution” could not be          H2634 (daily ed. Mar. 21, 2996)
interpreted in a way that would exclude             (statement of Rep. Smith).22
involuntary sterilizations or abortions. But               At a more general level, we note
this merely shows that Congress knew how            that some members of Congress have in
to be very specific regarding what                  the past actu ally considered—and
constituted persecution when it wanted to.
Furthermore, we find it highly unlikely
                                                       21
that Congress could have intended to                     There is at least one statement in the
dramatically broaden the notion of                  Congressional Record which speaks
“persecution” with respect to persons               disparagingly of China’s “marriage bans,”
suffering under coercive population                 but that statement is made in reference to
programs while contemporaneously                    permanent restrictions on marriage
i m p o s i n g a yearly cap s trictly              motivated by a desire to “avoid new births
circumscribing the relief available to them.        of inferior quality,” and not the sort of age-
                                                    based restrictions at issue in this case. See
       An examination of the relevant
                                                    140 Cong. Rec. S327-28 (daily ed. Jan. 28,
legislative history only confirms our
                                                    1994) (statement of Sen. Helms).
understanding of Congress’s intent. We
cannot locate any evidence that the                    22
                                                         In such cases, the amendment would
                                                    serve to clarify that such actions, if taken
                                                    in response to resistance to a coercive
denials disserve Congress’s broader policy          population control program, should be
of providing relief to victims of racial            deemed inflicted “on account of political
injustice.                                          opinion.”

                                               15
rejected—the possibility of providing an             However, the 1996 amendment to
explicit definition for “persecution” in             § 1101(a)(42) is limited in scope. Under
connection with another portion of the               that amendment, the worst effects of the
INA. It was reasoned that                            Chinese program – forced abortions and
       any such definition would                     involuntary sterilization – are deemed to
       necessarily limit application                 cons titute “persecuti on,” b ut the
       o f t h e p r o v is i o n t o                amendment does not provide similar
       particular, presently                         treatment for other adverse effects of the
       f o r eseea ble s i tu a t i o n s.           program, such as, to take one example,
       Persecution, however, has                     dismissal from employment for failure to
       and will continue to take                     abide by the one-child policy.23 Even
       many forms and it is the                      though a person who is fired for violating
       intention of the committee                    the policy is a victim of the objectionable
       in recom m ending this                        Chinese program, such a person cannot
       legislation to allow the                      prove past persecution simply by
       maximum amoun t of                            establishing the occurrence of and the
       flexibility possible in its                   reason for the dismissal. 24 It is apparent,
       adm inistration.             The
       inclusion of a necessarily                           23
                                                            See United States Dep’t of State,
       limited and rigid definition
                                                     Country Report on Human Rights
       would be inconsistent with
                                                     Practices—2002: China (2003) (noting
       such an intent.
                                                     China’s r e l ia n c e o n “ e duc a tio n,
H.R. Rep. 95-1452, at 6-7 (1978),                    propaganda, and economic incentives, as
reprinted in 1978 U.S.C.C.A.N. 4700,                 well as on more coercive measures such as
4705-06; cf. INS v. Cardoza-Fonseca, 480             the threat of job loss or demotion and
U.S. 421, 449 (1987) (“In enacting the               social compensation fees”).
Refugee Act of 1980 Congress sought to
                                                       24
give the United States sufficient flexibility            Under the 1996 amendment the reason
to respond to situations involving political         for the dismissal (failure to comply with
or religious dissidents and detainees                the one-child policy) might well qualify as
throughout the world.”) (internal quotation          “resistance to a coercive population
omitted).                                            control program,” but the person who was
                                                     fired would still have to show that
       To be sure, we assume that the
                                                     dismissal was severe enough to amount to
members of Congress who voted in favor
                                                     persecution. While we express no opinion
of the 1996 amendment to § 1101(a)(42)
                                                     on this point, we re iterate that
considered the Chinese population control
                                                     “persecution” is an extreme concept that
program as a whole to be objectionable
                                                     “does not encompass all treatment that our
and that they found fault with many
                                                     society regards as unfair, unjust, or even
specific features of the program.
                                                     unlawful or unconstitutional.” Fatin, 12

                                                16
therefore, that it was not Congress’s intent                 Chen further argues that, even if he
to provide relief for every victim of any            did not suffer persecution in the past, he
feature of the Chinese program. Rather,              still has a well-founded fear that he would
Congress obviously had the more modest               suffer future persecution if he returned to
purpose of providing relief for a much               China. He points to several cases and
more limited class. Especially in light of           secondary sources generally describing
the rather low yearly cap on the number of           incidents of harsh treatment that Chinese
asylum applications that may be granted              prison officials have inflicted upon
under the 1996 amendment, the BIA’s                  political prisoners, including refugees
refusal to extend C-Y-Z- may be viewed as            returned to China. See Petitioner Br. at
furthering this congressional goal.                  20-22.       This generalized evidence
                     V.                              presented by Chen, however, by no means
                                                     compels the conclusion that the BIA erred
        A few remaining issues must be               in determining that he had not “established
addressed. First, Chen suggests that the             a well-founded fear of persecution.” App.
beatings he suffered at the hands of                 I at 3; 8 U.S.C. § 1252(b)(4)(B).
government officials combine with the
forced abortion and the marriage license                    Finally, Chen does not appear to
denial in such a way as to constitute past           have challenged the rejection of his claim
persecution. They do not. Chen’s scuffle             for withholding of removal in the brief
with the local officials does not appear to          accompanying his petition for review.
have been serious. For example, the                  Accordingly, the claim has been waived.
government points out that Chen has never            See FDIC v. Deglau, 207 F.3d 153, 169-70
alleged that this altercation resulted in any        (3d Cir. 2000); Ma, 361 F.3d at 557 n.5;
injuries that required medical treatment.            Qin v. Ashcroft, 360 F.3d 302, 305 n.5 (1st
Respondent Br. at 24. Physical abuse                 Cir. 2004).
similar to this has been held to not                                     VI.
constitute persecution. See, e.g., Prasad v.                 In sum, assuming that C-Y-Z-
INS, 47 F.3d 336, 339 (9th Cir. 1995) (no            permissibly applied the 1996 amendment
past persecution where petitioner was                to spouses, we hold that the BIA’s
arrested, hit, kicked, and detained for four         decision not to extend C-Y-Z- to
to six hours). The BIA found that Chen’s             unmarried partners is reasonable and
experiences with the authorities in China            therefore, under step two of Chevron, is
did not rise to the level of persecution, and        entitled to controlling weight. We defer
we cannot say that “any reasonable                   to this interpretation and deny the petition
adjudicator would be compelled to                    for review.
conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B).


F.3d at 1240 & n.10.

                                                17
