                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2007

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Precedential or Non-Precedential: Precedential

Docket No. 05-4011




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                                                  PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                                No. 05-4011


                    SUN WEN CHEN, WEN HUI GAO,
                                        Petitioners

                                      v.

           ATTORNEY GENERAL OF THE UNITED STATES



                       Petition for Review of an Order
                    of the Board of Immigration Appeals
                     Nos. A78-203-050 & A72-019-011
                    Immigration Judge: Henry S. Dogin



                         Argued February 27, 2007

         Before: McKEE, ALDISERT, Circuit Judges, RESTANI*,
                              Judge


*
 Chief Judge, United States Court of International Trade, sitting by designation.
                   (Filed: June 20, 2007)



Gary J. Yerman
Yerman & Associates
401 Broadway, Suite 1210
New York, NY 10013

      Counsel for Petitioners

Peter D. Keisler
Richard M. Evans
David E. Dauenheimer
Patricia A. Smith
Brooke M. Maurer (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

      Counsel for Respondent




                OPINION OF THE COURT




                                2
ALDISERT, Circuit Judge.

       Sun Wen Chen and Wen Hui Gao, husband and wife,
petition for review of an order of the Board of Immigration
Appeals (“BIA”) that reversed the Immigration Judge’s (“IJ”)
grant of asylum and withholding of removal. Petitioners
contend that they qualify for asylum and withholding of
removal because they have a well-founded fear of persecution
under China’s one-child policy should they be returned to
China. This petition requires us to decide whether a husband
may qualify for asylum on the well-founded fear that his wife
may be persecuted under a coercive population control policy,
a question of first impression in this Court. We hold that the
husband may stand in his wife’s shoes to bring such a claim.
On the merits, we will grant the petition for review on
Petitioner Chen’s asylum claim.

                              I.

       Chen and his wife Gao are Chinese citizens from the
Fujian province. Both entered the United States without valid
entry documents—Chen in 1991 and Gao in 1997. Chen
applied for asylum within a month of his arrival, alleging that
he feared persecution because of his parents’ active support of
the students’ democratic movement. Gao applied for asylum
more than two years after her arrival. Both Chen and Gao’s
applications were denied, and their cases were referred to
immigration court.

       Chen and Gao married in the United States, and Gao
gave birth to their child, a boy, on May 3, 1999. Their claims

                               3
were consolidated, and the IJ held a merits hearing on July 24,
2000. Before the IJ, Chen contended that his prior application
for asylum had been prepared without his approval by an
organization he had asked to help him obtain work
authorization. He explained that, notwithstanding statements
on his application, he was not seeking asylum on the basis of
his parents’ activities. Rather, Chen requested asylum and
withholding of removal because of the possibility that his
wife would face a forced abortion or sterilization under
China’s coercive population control policy. Gao requested
asylum on the same grounds. Both Petitioners testified that
they hoped to have more children and were physically able to
do so.

         The IJ granted asylum and withholding of removal. He
found Gao’s application time-barred, denying her contention
that her case fell into the changed circumstances exception
given the birth of her child. See 8 U.S.C. § 1158(a)(2)(D).
Chen’s application was timely, however, and the IJ found that
he could stand in his wife’s shoes for purposes of his asylum
claim. The IJ found that the couple had “a well-founded fear
of future persecution” that was “less than a clear probability,
but . . . certainly more than speculative in view of the family
planning policy of limiting the number of children in
[Petitioners’ home region], especially males.” He granted
Chen asylum, and also granted Gao asylum derived from her
husband’s status. He found both entitled to withholding of
removal as well.

       The BIA reversed the IJ’s decision, concluding that
“the respondents failed to sustain the burden of proof.” The

                               4
Board stated that “respondents did not submit any evidence
specifically addressing the treatment of children born outside
of China,” and that “[t]he Department of State [Profile of
Asylum Claims and Country Conditions for 1998] mentions
the apparent absence of a national policy regarding children
born abroad . . . .” The BIA further commented that “[t]he
Department of State . . . indicates that the coercive population
control policies are not uniformly applied and may be
enforced using numerous non-persecutory methods, including
economic incentives and education . . . .” The BIA concluded
that “[i]n light of the variance of enforcement in China, the
possibility of non-persecutory methods of enforcement, and
the uncertainty about how a child born abroad is treated under
the policy, we find that the respondents did not sustain the
burden of proving eligibility for asylum or the more stringent
burden applicable to withholding of removal.”

       Chen and Gao’s petition was timely filed in the United
States Court of Appeals for the Second Circuit, and was
properly transferred to this Court on March 21, 2005. See 8
U.S.C. §§ 1252(b)(1) & (2).

                               II.

        To qualify for asylum, a petitioner must show that he is
a “refugee” as defined by the Immigration and Nationality
Act (“INA”). 8 U.S.C. § 1158(b)(1)(A). This requires a
showing that he has suffered past persecution because of
“race, religion, nationality, membership in a particular social
group, or public opinion,” or that he has a well-founded fear
of future persecution on these grounds. 8 U.S.C. §

                               5
1101(a)(42). Congress amended the definition of “refugee” in
1996 to include the following provision:

[A] person who has been forced to abort a pregnancy or to
undergo involuntary sterilization, or who has been persecuted
for failure or refusal to undergo such a procedure or for other
resistance to a coercive population control program, shall be
deemed to have been persecuted on account of political
opinion, and a person who has a well founded fear that he or
she will be forced to undergo such a procedure or subject to
persecution for such failure, refusal, or resistance shall be
deemed to have a well founded fear of persecution on account
of political opinion.

8 U.S.C. § 1101(a)(42)(B).

       A party seeking asylum bears the burden of proving
that he satisfies the definition of “refugee.” 8 U.S.C. §
1158(b)(1)(B)(I). He may do this by demonstrating a well-
founded fear of persecution on the basis of a privileged
ground. See 8 U.S.C. § 1101(a)(42). To establish a well-
founded fear of future persecution, an asylum-seeker must
show that he has a subjective fear and that his fear is
objectively reasonable. See Zubeda v. Ashcroft, 333 F.3d 463,
469 (3d Cir. 2003). The “[d]etermination of an objectively
reasonable possibility [of persecution] requires ascertaining
whether a reasonable person in the alien’s circumstances
would fear persecution if returned to the country in question.”
Id.




                               6
                               III.

        Before considering the details of Chen’s asylum claim,
we note that we are unable to review the IJ’s denial of Gao’s
application for asylum. We lack jurisdiction to review a
discretionary refusal to allow an asylum-seeker the benefit of
the “changed circumstances” exception to the one-year
timeliness requirement. See 8 U.S.C. § 1158(a)(3);
Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).
In this case, Petitioners argue that the BIA “did not fulfill its
obligation to determine whether Gao’s application was
timely,” and that therefore we have jurisdiction to reach the
issue. This argument is based on a faulty premise. As the BIA
points out in its opinion, Petitioners did not identify any errors
in the IJ’s finding; as a result, the BIA had no obligation to
review the IJ’s timeliness determination. It now stands
beyond our reach.

       Only Chen’s claim, then, is rightly before us. Chen’s
petition for asylum, however, is based on the threat to his
wife. He contends that his wife has a well-founded fear of
involuntary sterilization or forced abortion, and that her fear
may be imputed to him. We must determine whether such a
petition may succeed.

                               A.

       The spouse of an asylee may obtain derivative asylum
status under 8 U.S.C. § 1158(b)(3), but the provision for
derivative asylum does not allow one spouse to stand in the
shoes of the other and to independently obtain asylum based

                                7
    on a threat to the other spouse. The BIA, however, has
    allowed a husband to obtain asylum when his wife has been
    persecuted under China’s one-child policy, even though the
    wife remained in China. Matter of C-Y-Z-, 21 I. & N. Dec.
    915, 920 (BIA 1997). In C-Y-Z-, the BIA, sitting en banc,
    held that “forced sterilization of one spouse . . . is an act of
    persecution against the other spouse.” Id. at 919. This Court
    has never determined the permissibility of the BIA’s
    interpretation in C-Y-Z-. Although we discussed the C-Y-Z-
    ruling in Cai Luan Chen v. Ashcroft, 381 F.3d 221, 227 (3d
    Cir. 2004), we found it unnecessary to decide whether the
    Board’s view was permissible because the petitioners in Cai
    Luan Chen were not married and therefore, we held, fell
    outside the scope of the BIA’s ruling.1 The viability of the
    BIA’s determination that one spouse’s qualification for
    asylum may be imputed to the other spouse is squarely before
    us now.2

           We accord Chevron deference to “an agency’s


1
    In Cai Luan Chen, in the course of affirming the BIA’s limitation of C-Y-Z-
    to married couples, we repeatedly mentioned the 1,000-person limit on asylum
    grants, which created an intense pressure to limit asylum to the most worthy
    claims. Cai Luan Chen, 381 F.3d at 225, 229, 232, 233, 234. The limit was
    removed in 2005. 8 U.S.C. § 1157(a)(5) (repealed 2005).
2

      The government does not take issue with the BIA’s
    interpretation in C-Y-Z-, but we must ascertain the
    permissibility of the BIA’s rule before accepting it as the law of
    this Circuit.

                                    8
construction of the statute which it administers.” Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842 (1984); United States v. Mead Corp., 533 U.S. 218, 227
(2001) (stating that Chevron deference is appropriate “when it
appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that the
agency interpretation claiming deference was promulgated in
the exercise of that authority”). The INA provides that the
“determination and ruling by the Attorney General with
respect to all questions of law shall be controlling.” 8 U.S.C.
§ 1103(a)(1). This power extends to provisions of Title 8,
Chapter 12 (“Immigration and Nationality”) “and all other
laws relating to the immigration and naturalization of aliens.”
Id. The Attorney General, in turn, has “vested the BIA with
power to exercise the discretion and authority conferred upon
the Attorney General by law in the course of considering and
determining cases before it.” INS v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (citation omitted). The BIA’s
interpretations of the INA made in the course of case-by-case
adjudication therefore are entitled to Chevron deference. Id.

        Following the familiar Chevron two-step, we ask first
“if the statute is silent or ambiguous with respect to the
specific issue” of law in the case before us. Chevron, 467 U.S.
at 843. In assessing this, we “emplo[y] traditional tools of
statutory construction” to determine whether “Congress had
an intention on the precise question at issue.” Id. at 843 n.9. If
Congress’ intent on the precise question is not evident, we
move to the second step, where “the question for the court is
whether the agency’s answer is based on a permissible
construction of the statute.” Id. When Congress has left a gap

                                9
    in a statute, implicitly leaving the administering agency
    responsible for filling that gap, “a court may not substitute its
    own construction of a statutory provision for a reasonable
    interpretation made by the administrator of an agency.” Id. at
    844. Chevron deference embodies the judgment that agencies,
    rather than courts, ought to serve as gap-fillers in situations of
    statutory silence. See Arendt v. Shalala, 70 F.3d 610, 619
    (D.C. Cir. 1995) (Wald, J., concurring).

                                   B.

            Turning to the case at bar, we consider the BIA’s
    interpretation in C-Y-Z-, 21 I. & N. Dec. at 918, in which it
    agreed with the parties before it that “the husband of a
    sterilized wife can essentially stand in her shoes and make a
    bona fide and non-frivolous application for asylum based on
    problems impacting more intimately on her than on him.” As
    we pointed out in Cai Luan Chen, 381 F.3d at 225, the BIA
    “did not explain the basis for this conclusion,” instead
    observing that the “position [was] not in dispute” because of a
    concession by the government. C-Y-Z-, 21 I. & N. Dec. at
    918. In a subsequent case, the Court of Appeals for the
    Second Circuit concluded that this absence of rationale made
    it impossible to determine the permissibility of the BIA’s
    interpretation in C-Y-Z- and so remanded to the BIA, holding
    off evaluating C-Y-Z-’s rule “[u]ntil the BIA has clarified
    why it established spousal eligibility . . . .” Lin v. Department
    of Justice, 416 F.3d 184, 192 (2d Cir. 2005).3 The BIA

3

    The principal issue in Lin was not spousal eligibility but rather

                                   10
    responded to the Second Circuit’s exhortations in In re S-L-L-
    , 24 I. & N. Dec. 1, 3 (BIA 2006), in which it reaffirmed its
    holding in C-Y-Z- and provided an extensive defense and
    explanation of its determination that “a husband whose wife
    was forcibly sterilized could establish past persecution” under
    8 U.S.C. § 1101(a)(42).4

            Under Chevron’s step one, we must determine whether
    8 U.S.C. § 1101(a)(42)(B) is “silent or ambiguous” as to the
    status of asylum-seekers whose spouses undergo forced
    abortion or sterilization. As the BIA notes, this section of the
    INA contains no explicit reference to spouses. S-L-L-, 24 I. &
    N. Dec. at 5. Silence on a particular matter germane to the
    provisions of a statute suggests a gap of the sort that the
    administering agency may fill. Notwithstanding our
    suggestion in Cai Luan Chen, 381 F.3d at 226, that §
    1101(a)(42)(B)’s expression “other resistance to a coercive
    population control program” could apply to resistance by
    spouses, we see nothing in the statute evincing Congressional
    intent to establish a particular policy regarding spousal
    eligibility. We also do not believe that the existence of
    derivative asylum status under a statute implies that Congress


    the BIA’s refusal to extend eligibility to boyfriends and fiances.
    It was the failure of the BIA to explain its reasons for allowing
    spousal eligibility, however, that the Second Circuit found
    necessitated remand. Lin, 416 F.3d at 192.
4

     The BIA’s decision in S-L-L- currently is under en banc review
    in the Second Circuit.

                                   11
intended to foreclose additional pathways to asylum specific
to spouses.

       Of course, a statute’s silence on a given issue does not
confer gap-filling power on an agency unless the open
question is in fact a gap—an ambiguity tied up with the
provisions of the statute. An agency cannot read a statute
discussing topic X to confer a power over unrelated topic Y
just because the statute fails to mention topic Y. But that is
not the situation here. Section 1101(a)(42)(B) establishes that
forced abortion and sterilization constitute persecution. In C-
Y-Z-, as explained by S-L-L-, the BIA interprets the scope of
that persecution, holding that it extends to the other spouse as
well. The C-Y-Z- rule thus fleshes out an issue germane to the
application of § 1101(a)(42)(B) that was not addressed by
Congress, and so poses no Chevron step one problem.

                              C.

        The BIA’s interpretation also is permissible under
Chevron’s step two, according to which we must leave the
Board’s rule intact if it constitutes a “reasonable
interpretation” of the relevant statutory provisions. Chevron,
467 U.S. at 844. In assessing the permissibility of the BIA’s
interpretation, we first note that the Board’s rule was not
based on § 1101(a)(42)(B)’s provision allowing relief for an
individual who exercises “other resistance to a coercive
population control program”—although the BIA suggested
that non-spouse partners might obtain relief under that portion
of the statute. S-L-L-, 24 I. & N. Dec. at 6. The BIA also does
not suggest that the word “person” as used in §

                              12
    1101(a)(42)(B) can be read to include a marital “entity.”
    Instead, as the Board explains in S-L-L-, it recognizes that §
    1101(a)(42)(B) does not address spouses, but, based on its
    notion of the marital relationship and its knowledge of
    China’s one-child policy, it concludes that the scope of this
    particular type of persecution extends to both spouses. S-L-L-,
    24 I. & N. Dec. at 7.

            The BIA’s interpretation stems from its conclusion
    that, when one spouse is subjected to forced abortion or
    sterilization, it “naturally and predictably has a profound
    impact on both parties to the marriage.” Id. The Board offers
    three principal explanations for this conclusion: First, that the
    forced abortion and sterilization “depriv[e] a couple of the
    natural fruits of conjugal life, and the society and comfort of
    the child or children that might eventually have been born to
    them.” Id. (quoting Matter of Y-T-L-, 23 I. & N. Dec. 601,
    607 (BIA 2003)). Second, that the husband “suffers emotional
    and sympathetic harm arising from his spouse’s mistreatment
    and the infringement on their shared reproductive rights.” Id.
    (citing our opinion in Cai Luan Chen, 381 F.3d at 225-226).
    And third, that in China, “such Government action is
    explicitly directed against both husband and wife for violation
    of the Government-imposed family planning law and amounts
    to persecution of both parties to the marriage.”5 Id. As the
    BIA makes clear in S-L-L-, the C-Y-Z- rule would not apply
    in the hypothetical case where the spouse does not oppose the

5

     We note that the third portion of this rationale is specific to
    China and might not apply with equal vigor in other contexts.

                                   13
    forced abortion or involuntary sterilization of his wife.6 Id. at
    8. Where the C-Y-Z- rule does apply, it allows the forced
    abortion or involuntary sterilization of one spouse to be
    imputed to the other spouse.

             We conclude that the BIA has exercised its delegated
    gap-filling authority reasonably. In a great many cases, forced
    abortion or involuntary sterilization of one spouse will
    directly affect the reproductive opportunities of the other
    spouse, and so the BIA is not unreasonable in considering the
    loss to the second spouse of the “natural fruits of conjugal
    life, and the society and comfort of the child or children that
    might eventually have been born to [him].” S-L-L-, 24 I. & N.
    Dec. at 7. And persecution of one spouse can be one of the
    most potent and cruel ways of hurting the other spouse—so
    the BIA’s emphasis of “sympathetic harm” is not misplaced.
    Id. It also is not unreasonable for the BIA to consider
    evidence that China conceives its punishments for violations
    of its one-child policy as directed against married couples
    rather than just the party subject to forced abortion or
    sterilization.7 The BIA was not unreasonable in holding,


6

     The C-Y-Z- rule therefore is not one of per se spousal
    eligibility, as the Second Circuit had suggested in Lin. 416 F.3d
    at 188.
           7
           As further evidence that its C-Y-Z- rule was not an
    impermissible construction of the INA, the BIA observes that
    Congress has not acted to reverse it. The BIA notes that
    Congress has made changes to one relevant provision of the Act,

                                    14
based on these rationales, that the scope of the harm resulting
from the enforcement of a population-control policy by forced
abortion and involuntary sterilization extends to both spouses.


                               D.

        The legislative history does not run counter to our
decision. In passing Amendment 601(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act
(IIRIRA) of 1996, which added to 8 U.S.C. § 1101(a)(42)(B)
text specifically allowing for relief in cases of forced abortion
or sterilization, Congress acted to reverse the BIA’s holding
in Matter of Chang, 20 I. & N. Dec. 38 (BIA 1989); see H.R.
Rep. No. 104-469(I), at 173 (1996) (“The primary intent of
[the relevant section of the IIRIRA] is to overturn several
decisions of the Board of Immigration Appeals, principally
Matter of Chang and Matter of G-.”). In Chang, the BIA had


lifting the 1,000-person annual cap on asylees, but
notwithstanding this revisitation of the INA, Congress did not
change the C-Y-Z- rule. S-L-L-, 24 I. & N. Dec. at 4-5. This is
flimsy evidence of congressional endorsement and does not
convince us that Congress considered the possibility of
reversing the C-Y-Z- rule and rejected it. Additionally, the
BIA’s observation that the Attorney General has elected not to
reverse the C-Y-Z- rule is of no consequence; Congressional
intent defines the limits of Chevron deference and so is our
lodestar here. S-L-L-, 24 I. & N. Dec. at 4.



                               15
held “that implementation of the Chinese Government’s ‘one
couple, one child’ policy did not constitute persecution on
account of one of the five reasons enumerated in [8 U.S.C. §
1101(a)(42)] of the Immigration and Nationality Act.” S-L-L-,
24 I. & N. Dec. at 2. In response, Congress “amended the
statutory definition of ‘refugee’ to broaden the number of
individuals eligible for asylum in connection with coercive
family-planning policies such as China’s.” Lin, 416 F.3d at
187. According to the House Report, Congress did not intend
“to protect persons who have not actually been subjected to
coercive measures or specifically threatened with such
measures, but merely speculate that they will be so mistreated
in the future.” H.R. Rep. No. 104-459(I), at 174. This did not
stop Congress, however, from providing relief for individuals
with a well-founded fear of future forced sterilization or
abortion. 8 U.S.C. § 1101(a)(42)(B). C-Y-Z- did nothing to
alter the point on the spectrum of decreasing probability at
which a well-founded fear dissipates into mere speculation.
Instead, C-Y-Z- broadened the scope of persecution
recognized when a well-founded fear of forced abortion or
sterilization exists—or when either has occurred in the past.
We are not convinced that Congress, in expanding asylum to
include more reproductive rights-based claims, intended to
define the outer limits of relief in such cases. We also note
that the recent repeal of the 1,000-person per year cap on
grants of asylum suggests a desire on the part of Congress to
make asylum a less exclusive form of relief.

                             E.

      A final issue remains before we move on to the text of

                             16
the BIA’s opinion in the case at bar. C-Y-Z- and S-L-L- both
involved allegations of past persecution, rather than a well-
founded fear of future persecution, and some of the text in
each of those opinions is specific to situations of past
persecution. In the case before us, the petitioners contend that
they have a well-founded fear of future persecution, but do
not allege past persecution. We consider the rule of C-Y-Z- to
be no less applicable to claims based on future persecution.
As S-L-L- explains, the C-Y-Z- rule is based on the BIA’s
conclusion that the harm of a forced abortion or involuntary
sterilization is directed at and falls on both spouses. This is no
less true when the persecution lies exclusively in the future.

                               IV.

        Having established that a petitioner may qualify for
asylum on the basis of a well-founded fear that his spouse
may face forced abortion or sterilization, we now turn to the
text of the BIA decision before us. We review the BIA’s
findings of fact under the deferential substantial evidence
standard. Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004).
Under this standard, its “findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B).

       Different standards apply to our review of the BIA’s
legal determinations. As discussed above, Chevron deference
guides our review of BIA constructions of the INA. On the
other hand, when we review “the BIA’s application of legal
principles to undisputed facts, rather than its underlying
determination of those facts or its interpretation of its

                               17
governing statutes, our review is de novo.” Yi Long Yang v.
Gonzales, 478 F.3d 133, 141 (2d Cir. 2007). As Judge
Calabresi of the United States Court of Appeals for the
Second Circuit has put it, “BIA errors of law are not excused
by the fact that a hypothetical adjudicator, applying the law
correctly, might also have denied the petition for asylum, nor
can factual findings supporting such a denial be assumed on
the basis of record evidence not relied on by the BIA.” Jin
Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003).

        In the event that we grant a petition for review, the
remedy depends upon the precise type of review we exercise.
If we grant a petition for review on the grounds that the BIA’s
decision was not supported by substantial evidence, we
reverse the BIA decision—remanding with the understanding
“that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992). On the other hand, if the BIA’s
error is a legal one subject to de novo review, “we will vacate
BIA conclusions.” Qiu, 329 F.3d at 149. Thus, “insofar as the
BIA either has not applied the law correctly, or has not
supported its findings with record evidence,” we may grant a
petition for review even though “a perfectly reasonable
fact-finder could have settled upon” the same ultimate
decision as was reached by the BIA. Id.

                               A.

        In the case before us, we review de novo the BIA’s
application of the legal standard of § 1101(a)(42) to the facts
as it found them. The BIA based its decision on three factual

                               18
findings, as it makes evident in the sentence summarizing its
rationale: “In light of the variance of enforcement in China,
the possibility of non-persecutory methods of enforcement,
and the uncertainty about how a child born abroad is treated
under the policy, we find that the respondents did not sustain
the burden of proving eligibility for asylum.” We find that
these three factual findings, even if absolutely true, would not
support the Board’s decision to deny asylum in this case.
Therefore we find it unnecessary to determine whether the
record supports the BIA’s factual findings.

        Chen seeks asylum based on future persecution, and so
must demonstrate both a subjective fear of persecution and
that his fear is objectively reasonable. 8 U.S.C. §
1158(b)(1)(B). Given that the IJ found Chen’s testimony
credible and the BIA has not questioned that finding, we will
accept that Chen demonstrated a subjective fear that his wife
would be persecuted if she returned to China. Our analysis
therefore focuses on whether Chen has demonstrated that his
fear is objectively reasonable.

        To satisfy his overall burden, Chen is not required to
demonstrate anything close to certainty that he will be
persecuted, or that persecution is more likely than not. On the
contrary, a one in ten chance of persecution would frighten a
reasonable person. See INS v. Cardoza-Fonseca, 480 U.S.
421, 431 (1987) (endorsing the statement that if “it is known
that in the applicant’s country of origin every tenth adult male
person is either put to death or sent to some remote labor
camp,” then “it would be only too apparent that anyone who
has managed to escape from the country in question will have

                               19
    well-founded fear of being persecuted upon his eventual
    return” (citation omitted)). Indeed, “fear is objectively
    reasonable even if there is only a slight, though discernible,
    chance of persecution.” Yang, 478 F.3d at 141 (citation
    omitted).

                                   B.

           The BIA erred in concluding that Chen did not meet
    his burden of proof based only on the findings that
    enforcement of China’s one-child policy is “not uniformly
    applied,” that “not all methods of enforcement involved
    forced abortion, sterilization, or other forms of persecution,”
    and that the treatment of children born outside China is
    uncertain. The BIA’s conclusion was legal error. The BIA’s
    findings, summed together, amount to a determination that
    persecution is not an assured fact. The BIA must address the
    degree of uncertainty that Chen may face persecution; it is not
    enough to find that some uncertainty exists. The overall
    observation that future persecution is uncertain verges on a
    truism; it does not impugn Petitioner’s claim.8

8

     The government urges us to go beyond the record to consider
    up-to-date evidence about conditions in China. Although
    acknowledging that we may not look to State Department
    reports beyond the Profile included in the record, the
    government attempts to get newer reports in the back door,
    asking us to consider a BIA decision that quotes more recent
    State Department Reports and hinting that we might remand the
    case for consideration in light of more recent country reports.

                                   20
                                    V.

             At oral argument, the government suggested that denial
     of asylum was the only viable outcome in this case because
     Petitioners presently have only one child, even though they
     testified that they can and hope to have more. This argument
     was not discussed in the briefs or by the BIA, and so we do
     not reach this issue.9 Furthermore, we will not discuss
     withholding of removal at this juncture. The BIA did not
     analyze withholding of removal in its opinion, having
     previously determined that Chen did not meet his burden of
     proving entitlement to asylum.10

                                *****



            For the foregoing reasons, the petition for review will



     We will decide this case on record evidence in accordance with
     8 U.S.C. § 1252(b)(4)(A).
9

      In its brief, the government refers to Petitioners’ fears as
     “speculative,” but nowhere argues that it is unlikely Petitioners
     will have additional children.
10
     Although we lack jurisdiction to review the IJ’s determination
     that Petitioner Gao’s application for asylum was time-barred,
     she may be eligible for derivative asylum status under 8 U.S.C.
     § 1158(b)(3)(A).

                                    21
be GRANTED as to Petitioner Chen’s asylum claim. This
matter will be remanded to the BIA for further proceedings
consistent with the discussion set forth in this opinion.



McKee, Circuit Judge, concurring in part and dissenting in
part.

        I agree with the majority’s jurisdictional rejection of
Gao’s asylum claim and much of the analysis in parts IV. A.
& B. I disagree with the analysis in part III insofar as my
colleagues conclude that Chen is entitled to claim refugee
status because his wife’s “fear may be imputed to him.” Maj.
Op. at 7. I concede that the majority’s conclusion has a great
deal to commend it. In addition to its humanistic appeal, my
colleagues’ analysis recognizes the petitioners’ apparently
sincere desire to raise a family without the intrusive and
coercive interference of a governmental policy that would
dictate the number of children they could have if they are
forced to return to China. Nevertheless, although I applaud
that result, I can not agree with the majority’s analysis.

                               I.

       The Attorney General may grant asylum to an alien “if
the Attorney General determines that such alien is a refugee
within the meaning of section 1101(a)(42)(A).” 8 U.S.C. §
1158(b)(1). Section 1101(a)(42)(A) initially defined
“refugee” as:



                              22
      a person who is outside any country of such
      person’s nationality or, in the case of a person
      having no nationality, is outside any country in
      which such person last habitually resided, and
      who is unable or unwilling to return to, and is
      unable or unwilling to avail himself or herself of
      the protection of, that country because of
      persecution or a well-founded fear of
      persecution on account of race, religion,
      nationality, membership in a particular social
      group, or political opinion . . . .



8 U.S.C. § 1101(a)(42)(A). As my colleagues explain, in
1996, Congress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat.
3009 (Sept. 30, 1996) (“IIRIRA”). Section 601 of the IIRIRA
added the following language to the original definition of
“refugee”:

      For purposes of determinations under this
      chapter, a person who has been forced to abort a
      pregnancy or to undergo involuntary
      sterilization, or who has been persecuted for
      failure or refusal to undergo such a procedure or
      for other resistance to a coercive population
      control program, shall be deemed to have been
      persecuted on account of political opinion, and a
      person who has a well founded fear that he or
      she will be forced to undergo such a procedure

                             23
      or subject to persecution for such failure,
      refusal, or resistance shall be deemed to have a
      well founded fear of persecution on account of
      political opinion.

8 U.S.C. § 1101(a)(42)(B).

       Here, the Board of Immigration Appeals (“BIA” or
“Board”) reversed the Immigration Judge’s grant of asylum
and withholding of removal because neither Chen nor his wife
“submit[ted] any evidence specifically addressing the
treatment of children born outside of China” and because the
State Department Country Report did not provide sufficient
proof that China’s family planning policy would be applied to
Chen. See Maj. Op. at 4. The majority does not rest its
holding on whether China’s coercive population control
policy applies to a child who is born outside of China.
Rather, my colleagues focus on “whether a husband may
qualify for asylum based on the well-founded fear that his
wife might be persecuted under a coercive population control
policy.” Maj. Op. at 2. The majority’s affirmative answer is
largely guided by Matter of C-Y-Z-, 21 I. & N. Dec. 920 (BIA
1997), and my colleagues afford that ruling deference under
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984).




                             24
                               II.

                    A. Chevron Step One

       “Chevron applies when ‘it appears that Congress
delegated authority to the agency generally to make rules
carrying the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that
authority.’” Cai Luan Chen v. Ashcroft, 381 F.3d 221, 224 (3d
Cir. 2004) (quoting United States v. Mead Corp., 533 U.S. 218,
226-27 (2001)). Chevron governs our analysis here because
Congress has delegated authority to the Attorney General to
make rules and decide questions of law under the Immigration
and Nationality Act (“INA”). See 8 U.S.C. § 1103(a)(1). When
“Chevron applies, a court must ask (at what is customarily
called step one) ‘whether Congress has directly spoken to the
precise question at issue.’” Cai Luan Chen, 381 F.3d at 224
(quoting Chevron, 467 U.S. at 842).

       If congressional intent is clear, “that is the end of the
matter; for the court . . . must give effect to the unambiguously
expressed intent of Congress.” Id. at 843. The Supreme Court
has summarized the doctrine as follows: Chevron established a
familiar two-step procedure for evaluating whether an agency’s
interpretation of a statute is lawful. At the first step, we ask
whether the statute’s plain terms directly address the precise
question at issue. If the statute is ambiguous on the point, we
defer at step two to the agency’s interpretation so long as the
construction is a reasonable policy choice for the agency to
make.


                               25
       Nat’l Cable & Telecomm. Ass’n v. Brand X Internet
Services, 545 U.S. 967, 986 (2005) (citations and internal
quotations omitted). For an agency’s policy choice to be
“reasonable,” it must be one that is permissible within the
confines of the statute. Thus, “[e]ven for an agency able to
claim all the authority possible under Chevron, deference to its
statutory interpretation is called for only when the devices of
judicial construction have been tried and found to yield no clear
sense of congressional intent.” Gen. Dynamics Land Sys., Inc.
v. Cline, 540 U.S. 581, 600 (2004).

       The majority concludes that an alien is eligible for
asylum solely because his/her spouse was subjected to (or has a
well-founded fear of being subjected to) a coercive population
control policy. As the majority correctly notes, the pertinent
“section of the INA contains no explicit reference to spouses.”
Maj. Op. at 10 (citing In re S-L-L-, 24 I. & N. Dec. 1, 3 (B.I.A.
2006)). Rather than accept the language as drafted, the majority
concludes that the absence of “spouse” in the statute creates a
vacuum that the Attorney General may rush in and fill, even
though this results in amending the statute.

        One need look only to the words Congress used in the
statute to conclude that § 1101(a)(42)(B) applies to “a person
who”: (1) “has been forced to abort a pregnancy”; or (2) “has
been forced . . . to undergo involuntary sterilization”; or (3)
“who has been persecuted for failure or refusal to undergo such
a procedure”; or (4) “who has been persecuted . . . for other
resistance to a coercive population control program”; or (5) “has
a well founded fear that he or she will be forced to undergo such
a procedure”; or (6) “has a well founded fear that he or she will

                               26
be . . . subject to persecution for such failure, refusal, or
resistance.” 8 U.S.C. § 1101(a)(42)(B).

      “Persecution” has a well-understood and specific
meaning in the law of asylum.

It includes “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or
freedom,” but it “does not encompass all treatment that our
society regards as unfair, unjust, or even unlawful or
unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
1993).

        In enacting 8 U.S.C. § 1101(a)(42)(B), Congress declared
that being “forced to abort a pregnancy or to undergo
involuntary sterilization,” is “persecution” that entitles the
victim to refugee status. Congress could have easily drafted this
provision to extend to “married couples who have been
subjected to a forced abortion or involuntary sterilization.” So
drafted, an actual victim of persecution under a coercive
population control program, as well as his/her spouse, would
qualify for relief under the statute. However, Congress did not
draft the statute in this way, and we can not rewrite the statute’s
explicit text to achieve that result. See Dodd v. United States,
545 U.S. 353, 359 (2005).

       Our analysis should therefore begin and end with the
language of § 1101(a)(42)(B). There is no room here for a step
two inquiry under Chevron. Struggle as I might, I can find no
“ambiguity tied up with the provisions of [this] statute” left for
the agency to construe. Maj. Op. at 11. I believe Congress

                                27
meant what it said, and I do not assume that the omission of any
reference to a “spouse” is accidental or insignificant.

        Section 1101(a)(42)(B) unambiguously broadens the
definition of “refugee” to include “a person who has been
forced to abort a pregnancy or to undergo involuntary
sterilization” (emphasis added). There is no gap for this court
or the BIA to stuff that person’s spouse into. Accordingly, we
should conclude our analysis at step one of the Chevron inquiry,
and deny refugee status to the spouse of “a person threatened
with abortion or forced sterilization” when that is the spouse’s
only basis for seeking refugee status. However, even if we
could get to step two, we should still reject the BIA’s reasoning
because of its irreconcilable tension with the statutory text.

                     B. Chevron Step Two

        The Supreme Court has “made [it] quite clear that
administrative constructions which are contrary to clear
congressional intent must be rejected.” Zuni Pub. Sch. Dist. No.
89 v. Dep’t of Educ., 127 S. Ct. 1534, 1549, __ U.S. __ (2007).
As I noted above, my colleagues defer to the BIA’s analysis in
C-Y-Z-. There, the BIA had to decide whether an asylum
applicant could establish past political persecution where his
wife was forced to obtain an intrauterine device after she gave
birth to the couple’s first child and was forcibly sterilized after
she gave birth to their third child. 21 I. & N. Dec. at 917.

       Significantly, the government agreed with the position
taken by the petitioner. The BIA explained: “[t]he position of
the Immigration and Naturalization Service is that past

                                28
     persecution of one spouse can be established by coerced
     abortion or sterilization of the other spouse.”11 Id. Accordingly,
     the BIA never addressed that issue. Instead, given the litigation
     posture of the parties, the BIA decided the appeal without any
     analysis or discussion. The Board simply proclaimed: “We find
     that the applicant in this case has established eligibility for
     asylum by virtue of his wife’s forced sterilization. This position
     is not in dispute . . . .” Id. at 918.

             Thereafter, in Lin v. Dep’t. of Justice, 416 F.3d 184 (2d
     Cir. 2005), the Court of Appeals for the Second Circuit had to
     decide if an alien was entitled to refugee status because his
     girlfriend was subject to China’s coercive population control
     measures.12 The court then remanded the petitions to the BIA
     “because the BIA failed, in C-Y-Z-, to articulate a reasoned basis
     for making spouses eligible for asylum . . . .” Id.

           As the majority explains here, the BIA responded to the
     Lin mandate in In re S-L-L-, 24 I. & N. Dec. 1. Therefore, any

11

     In 2003, the Immigration and Naturalization Service was
     abolished and its functions were transferred to the Department
     of Homeland Security. See Homeland Security Act, 116 Stat.
     2135, Pub.L. 107-296 (2002).
12

     In Lin, two unrelated cases raising the same issue were
     consolidated for review. In both cases, an IJ had refused to
     extend the rule of C-Y-Z- to unmarried couples. The BIA
     summarily affirmed, and the aliens petitioned the court of
     appeals for review.

                                    29
deference owed to the BIA’s interpretation of § 1101(a)(42)(B)
must be based on the analysis in that case. Unfortunately, S-L-
L- is devoid of any real analysis. The Board’s conclusions are
not grounded on statutory text, legislative history, or Board
precedent. Rather, much like the decision in C-Y-Z-, that it
purported to explain, S-L-L- is little more than an essay on the
virtues of the sanctity of procreation and marriage.

       The Board begins its analysis by explaining: “Given the
agreement of the parties [in C-Y-Z-], we did not provide the sort
of detailed statutory analysis that would have been required had
the issue been in dispute.” Id. at 3. The Board then explains
why it will not extend the holding in C-Y-Z- to couples who are
not married. Inasmuch as that issue is not before us, I will limit
my discussion to the Board’s analysis of whether a married
spouse can claim asylum protection because the other spouse
was forced to undergo abortion or sterilization.

       The crux of the BIA’s entire analysis of this question is
contained in the following paragraph:

       When considered in light of the reasons Congress
       expanded the refugee protections to include
       persecution based on coercive family planning,
       and the well-established principles regarding
       nexus and level of harm for past persecution, we
       understand the husband, as well as the wife, to
       have been subjected to the coercive family
       planning policy when the government forces an
       abortion on a married couple. Although the wife
       is obviously the individual subjected to the

                               30
            abortion procedure, Congress was concerned not
            only with the offensive assault upon the woman,
            but also with the obtrusive government
            interference into a married couple’s decisions
            regarding children and family. When the
            government intervenes in the private affairs of a
            married couple to force an abortion or
            sterilization, it persecutes the married couple as
            an entity. We therefore find that Congress
            intended section 101(a)(42) to protect both
            spouses when the government has forced a
            married couple opposed to an abortion to submit
            to such a procedure.



     24 I. & N. Dec. at 6. Although the Board mentions the
     “reasons” Congress amended the definition of “refugee,” it does
     not explain what those reasons are, nor where they are to be
     found. The text of the statute is neither mentioned nor cited, and
     we are left to assume that the “nexus” between procreation and
     marriage requires, or at least justifies, extending the asylum
     statute to the other spouse. That is a policy choice which,
     though it is certainly defensible, both originates someplace other
     than the language the Board purports to interpret and conflicts
     with it.13

13

     As I noted earlier, Congress could have extended refugee status
     to the married couple by amending “refugee” to include
     “married couples affected by coercive population control

                                    31
       The Board’s essay on the relationship between marriage
and procreation continues with its observation that “[a] forced
abortion imposed on a married couple naturally and predictably
has a profound impact on both parties to the marriage.” Id. at 7.
Based upon that analytical fulcrum, the Board hoists a rather
astonishing proclamation into its analysis: “We find that such
Government action is explicitly directed against both husband
and wife . . . and amounts to persecution of both parties to the
marriage.” Id.

        This edict is unsupported by anything other than the
Board’s visceral reaction to China’s coercive population control
policy. The BIA’s “finding” in S-L-L- that the policy is
“explicitly directed against both husband and wife” is baseless.
I readily concede that commonsense is all that is needed to
realize that a coercive population control policy may impact
both spouses. I also concede that it is fair to conclude that such
impact can be severe and profound. However, that does not
mean that the limitation to “a person who” in § 1101(a)(42)(B)
either reflects a congressional intent to extend refugee status to
that person’s spouse or leaves an ambiguity under Chevron.

        One could just as readily conclude that any mistreatment
that is sufficiently severe to qualify as “persecution” that is
inflicted on one spouse will probably have a profound and
lasting impact on the other spouse. Given the Board’s logic, the
status of “refugee” could therefore extend to the spouse of a


policies,” rather than limiting the protection to “a person who
has been forced to abort . . . or to undergo involuntary
sterilization . . . .”

                               32
     woman who is beaten, tortured or raped. This is particularly
     true if the mistreatment jeopardizes her ability to ever have
     children.14

            My colleagues apparently recognize this problem. They
     hasten to state: “The BIA . . . does not suggest that the word
     ‘person’ as used in § 1101(a)(42)(B) can be read to include a
     marital ‘entity.’” Maj. Op. at 12. I must respectfully conclude
     that my colleagues doth protest too much. Indeed, this is not
     what the BIA “suggests”; it is what the BIA explicitly says. As
     I have just noted, in S-L-L-, the Board stated: “When the
     government intervenes in the private affairs of a married couple
     to force an abortion or sterilization, it persecutes the married
     couple as an entity.” S-L-L-, 24 I. & N. Dec. at 6 (emphasis
     added).

              The majority does not see this as including the “marital
     entity.” My colleagues expound: “as the Board explains in S-L-
     L-, it recognizes that § 1101(a)(42)(B) does not address spouses,
     but, based on its notion of the marital relationship and its
     knowledge of China’s one-child policy, it concludes that the
     scope of this particular type of persecution extends to both
     spouses.” Maj. Op. at 12 (citing S-L-L-, 24 I & N. Dec. at 7).
     I see no distinction between the “marital relationship,” and the
     “marital entity.” Moreover, although I agree that the distinction
     the Board purports to draw is based upon “its notion of the
     marital relationship,” the Board has no more expertise in marital

14

     Given the horrors of such sexually-based persecution as “ethnic
     cleansing,” this is not merely a hypothetical consideration.

                                    33
relationships than it does in parenting, matters of religion, or the
proper temperature for cooking leg of lamb. I see no reason to
defer to the Board’s views of marriage and procreation. There
is more ethnocentrism than statutory interpretation in its
discussion of the marital relationship.

        In S-L-L-, the Board also explains that “[t]he impact of
forced abortions or sterilizations on . . . a shared right to
reproduce and raise children is such that the forced sterilization
of a wife could be imputed to her husband, whose reproductive
opportunities the law considers to be bound up with those of his
wife.” 24 I. & N. Dec. at 7 (internal quotations omitted). Yet
again, the BIA here fails even to attempt to reconcile that broad
statement with the language of the statute it purports to construe.
Moreover, the Board’s analysis ignores those situations where
one spouse may not want children and, therefore, supports the
other spouse’s abortion or sterilization.

        My colleagues attempt to parry this by stating: “As the
BIA makes clear in S-L-L-, the C-Y-Z- rule would not apply in
the hypothetical case where the spouse does not oppose the
forced abortion or involuntary sterilization of his wife.” Maj.
Op. at 12-13. But, why wouldn’t it? The Board’s explanation
of this problem is merely that “a husband who participated in
attempts to persuade his wife to submit to an abortion, or who
favored the abortion, could not, in good faith, claim to have
been persecuted as a result of the abortion.” Id. at 8. I agree,
but only because Congress limited the relief to “a person who
has been forced to abort . . . or to undergo involuntary
sterilization,” as I argue above. The difficulty in the BIA’s
attempt to read a spouse into that language is evident from its

                                34
attempt to limit the scope of its holding to situations where the
husband wants children. The Board explains:

       We do not require proof in the individual case that
       . . . Government officials involved were
       confronted by the husband or otherwise made
       aware of the husband’s opposition. Rather,
       absent evidence that the spouse did not oppose an
       abortion or sterilization procedure, we interpret
       the forced abortion and sterilization clause of
       section 101(a)(42) of the Act, in light of the
       overall purpose of the amendment, to include both
       parties to a marriage.



S-L-L-, 24 I. & N. Dec. at 8 (emphasis added). But, I again note
that the “overall purpose of the amendment” is an unsupported
assumption the Board makes based upon its view of the marital
relationship. In addition, how can the government ever produce
“evidence that the spouse did not oppose an abortion or
sterilization procedure”? The petitioner is certainly not likely to
disclose this, nor is the spouse—assuming she is even present at
the hearing before the IJ. In addition, the Chinese government
is not likely to offer an affidavit in opposition to the asylum
claim stating that the husband/petitioner really wants no (more)
children. We are left with an evidentiary convenience that the
Board has to construct to support its attempt to narrow its rule
to situations that coincide with its rationale. However, the
evidentiary construct is so unworkable that it collapses under its
own weight. Thus, although my colleagues insist that the rule

                                35
of C-Y-Z-, “is not one of per se spousal eligibility, as the Second
Circuit suggested in Lin,” maj. op. at 13 n.7 (citing 416 F.3d at
188), I fail to see how the rule can operate as anything but that.

        Although Congress could clearly legislate to address the
broader category of all married couples based upon the
assumption that a husband would usually oppose his wife’s
forced abortion or sterilization, there must be something in the
statute or legislative history to support the conclusion that
Congress intended to protect the broader category in the first
place. The majority’s effort to limit the BIA’s rationale to
situations where the husband opposes the forced population
control program also ignores the skepticism we expressed about
that result in Cai Luan Chen. Significantly, the Board cites Cai
Luan Chen to support its analysis in C-Y-Z-, stating: “[a]s
recognized in [Cai Luan] Chen . . ., the ruling in Matter of C-Y-
Z- is plausibly based on ‘the assumption that the persecution of
one spouse by means of a forced abortion or sterilization causes
the other spouse to experience intense sympathetic suffering that
rises to the level of persecution.’” S-L-L, 24 I. & N. Dec. at 7
(quoting Cai Luan Chen, 381 F.3d 225). Its use of our
precedent is not persuasive.

       In Cai Luan Chen, we recognized two possible analytical
underpinnings of the BIA’s decision in C-Y-Z-. Id. The first
rationale, we explained, may have been “the assumption” that
persecution of one spouse resulted in “suffering” in the other
spouse “that rises to the level of persecution.” Id. But, as we
further explained, this interpretation of § 1101(a)(42)(B) only
makes sense under the section’s “other resistance to” clause.
See id. at 226. Accordingly, we surmised that under this

                                36
construction “suffering felt by the spouse who did not personally
undergo the procedure would constitute the ‘persecution’ to
which the [“other resistance to” clause] refers, and the other
spouse would be deemed to have ‘resisted’ the ‘coercive
population control program,’ presumably on the assumption that
he or she opposed the procedure.” Id. However, we
immediately cautioned that “[t]his interpretation . . . is not
without difficulties. For example . . . [w]hat if the spouse who
did not personally undergo the procedure sided with the
government and favored the abortion or sterilization?” Id.

        Additionally, we recognized that the decision in C-Y-Z-
may have rested upon the rationale “that performing a forced
abortion or sterilization . . . on one spouse constitutes
persecution of the other. . . because of the impact on the latter’s
ability to reproduce and raise children.” Id. However, we also
cast a skeptical eye on this reasoning, stating: “[i]t takes some
effort to reconcile this interpretation with the language of the
1996 amendment, since the phrase ‘a person who has been
forced to [undergo the procedure]’ is most naturally read as
referring only to a person who has personally undergone
[abortion or sterilization].” Id. Again, we acknowledged that “it
could be argued that the loss of opportunity to have and raise
children also constitutes persecution for other resistance to a
coercive population control program.” Id. Nevertheless, as this
dicta in Cai Luan Chen suggests, both theories leading to the
result in C-Y-Z- create significant tension with the language of
the statute. Yet, my colleagues ignore the doubts we expressed
as they outline “the three principal explanations” for the Board’s
analysis. Maj. Op. at 12.



                                37
                                     C.

            Although the unambiguous text of § 1101(a)(42)(B)
     makes examination of legislative history unnecessary, I think it
     significant that the majority’s willingness to defer to the BIA’s
     interpretation of this statute ignores the legislative history.15 My
     colleagues conclude that the statute’s pedigree “does not run
     counter to [its] decision.” Maj. Op. at 14. I can not agree. In
     amending the definition of “refugee” to apply to coercive
     population control policies, Congress intended “to overturn
     several decisions of the Board of Immigration Appeals,
     principally Matter of Chang and Matter of G—.” H.R. Rep. No.
     104-469 (I), at 173 (1996). As the House Report explains, those
     cases held

            that a person who has been compelled to undergo
            an abortion or sterilization, or has been severely
            punished for refusal to submit to such a
            procedure, cannot be eligible on that basis for
            refugee or aslyee status unless the alien was
            singled out for such treatment on account of
            factors such as religious belief or political
            opinion.




15

     “[I]t is ultimately the provisions of our laws rather than the
     principal concerns of our legislators by which we are governed.”
      Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79
     (1998).

                                     38
Id. at 173-74. Obviously, Congress did not authorize refugee
status for any violation of “fundamental human rights,” but
limited it to violations that are “on account of” membership in
a social group, his/her political opinion, etc. As noted at the
outset, the definition of “refugee” is limited to “persecution”
based upon one of those specific factors.

        Congress believed that the BIA’s holdings in these cases
were “unduly restrictive” because they denied asylum protection
to “persons who have been submitted to undeniable and
grotesque violations of fundamental human rights.” Id. The
House Report explains that amending the definition of “refugee”
to include persons subjected to coercive family planning policies
did not alter the burden of proof for asylum applicants. Rather,
“the burden of proof remains on the applicant . . . to establish by
credible evidence that he or she has been subject to
persecution—in this case, to coercive abortion or
sterilization—or has a well-founded fear of such treatment.” Id.
(emphasis added). The House Report therefore expresses a
congressional intent to restrict asylum to the “person” who
undergoes the coercive procedure just as clearly as the text of
the statute.

       I also note that the House Report clearly states that the
amended definition of “refugee” “is not intended to protect
persons who have not actually been subjected to coercive
measures or specifically threatened with such measures, but
merely speculate that they will be so mistreated at some point in
the future.” Id. (emphasis added). This specifically addresses
claims based upon fears that the petitioner may be forced to
comply with certain coercive population control measures in the

                                39
future. However, it is nevertheless consistent with limiting
refugee status to the direct victim of forced population control
measures. It requires a gigantic leap to read that person’s
spouse into the language of the House Report.

        My colleagues minimize this language by noting that,
although it is backward-looking, it “did not stop Congress . . .
from providing relief for individuals with a well-founded fear of
future forced sterilization or abortion.” Maj. Op. at 15. I agree,
but that does not advance our inquiry. We are concerned with
whether there is any gap in this statute for agency expertise to
fill, and, if so, whether the agency’s interpretation of the statute
is permissible. The House Report states that Congress did not
intend the amended definition of “refugee” to apply to a person
who has not “actually been subjected to coercive measures” or
“specifically threatened by such measures.”

        The majority believes that Congress did not intend “to
define the outer limits of relief” for asylum claims based on
coercive family planning policy. Maj. Op. at 15. I can find no
justification for that assumption of congressional intent in the
statute or legislative history. Rather, both the statutory text and
legislative history make clear that Congress intended to extend
asylum only to “a person who” has been subjected to (or has a
well-founded fear of being subjected to) coercive family
planning policy. Moreover, assuming, arguendo, that the outer
limit was intentionally left fluid, the boundaries still can not be
defined in a manner that overflows the confines of §
1101(a)(42)(B).




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                                    III.

              I began this discussion by expressing regret at not being
     able to join my colleagues’ analysis. I finish where I began.
     Although the result the majority achieves has much to commend
     it, for reasons I have explained, I can not reconcile that result
     with the language of the statute we must construe. Accordingly,
     I respectfully dissent.16




16

     Given all of the problems with the BIA’s analysis, I see no need
     to address the BIA’s attempt to rely on the fact that Congress
     removed the 1000-person cap that it originally imposed on the
     number of persons who could obtain asylum under §
      1101(a)(42)(B) without reversing the decision in C-Y-Z-. See
     H.R. Rep. No. 104-589(I), at 174. I agree with my colleagues’
     assessment that this is “flimsy evidence of congressional
     endorsement . . .”. Maj. Op. at 13 n.8. The Board’s resort to
     arguing the significance of the removal of the numerical cap is,
     however, indicative of the quality of the analysis that we today
     find “reasonable” and entitled to deference under Chevron.

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