Lin v. U.S. Dept. of Justice

• Decision Date: 29 July 2005
• Docket Number: Docket No. 03-40837.,Docket No. 02-4611.,Docket No. 02-4629.
• Citation: 416 F.3d 184
• Parties: Shi Liang LIN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE and Attorney General Gonzales,<SMALL><SUP>*</SUP></SMALL> Respondents. Zhen Hua Dong, Petitioner, v. United States Department of Justice and Attorney General Gonzales, Respondents. Xian Zou, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

416 F.3d 184

Shi Liang LIN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE and Attorney General Gonzales,^* Respondents.

Zhen Hua Dong, Petitioner, v. United States Department of Justice and Attorney General Gonzales, Respondents.

Xian Zou, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent.

Docket No. 02-4611.

Docket No. 02-4629.

Docket No. 03-40837.

United States Court of Appeals, Second Circuit.

Argued: May 27, 2005.

Decided: July 29, 2005.

Bruno J. Bembi, Hempstead, NY, for Zhen Hua Dong and Shi Liang Lin.

Aleksander Milch (Michael Lehach, on the brief), Christophe & Associates, P.C., New York, NY, for Petitioner Xian Zou.

David S. Rubenstein, Assistant United States Attorney (Sara L. Shudofsky, Assistant United States Attorney, of counsel) for David N. Kelley, United States Attorney for the Southern District of New York, New York, NY, Appearing for Respondents.

Before: CALABRESI, KATZMANN, B.D. PARKER, Circuit Judges.

KATZMANN, Circuit Judge.

In 1997, the Board of Immigration Appeals construed § 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") to provide that the forced sterilization or abortion of one spouse is an act of persecution against the other spouse and that, as a result, the spouses of those directly victimized by coercive family planning policies are per se as eligible for asylum as those directly victimized themselves. See In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc). The BIA did not, however, identify the specific statutory language pursuant to which it deemed spouses eligible for asylum under IIRIRA § 601(a), nor did the BIA endeavor to explain the reasoning motivating its chosen construction. Yet it was at least partially on the basis of the BIA's decision in C-Y-Z- that immigration judges ("IJs") — in decisions summarily affirmed by the BIA — denied the asylum applications of the petitioners whose claims we consider here, two of whom (Lin and Zou) are boyfriends of those directly victimized by China's coercive family planning policies, the other of whom (Dong) is the fiancé of a woman directly victimized by such policies.

Because we hold that an immigration judge's construction of the Immigration and Naturalization Act is not entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and because the BIA failed, in C-Y-Z-, to articulate a reasoned basis for making spouses eligible for asylum under IIRIRA § 601(a) in the first place, we REMAND the instant petitions to the BIA so that the BIA can: (a) more precisely explain its rationale for construing IIRIRA § 601(a) to provide that the "forced sterilization of one spouse on account of a ground protected under the Act is an act of persecution against the other spouse" and that, as a result, the spouses of those directly victimized by coercive family planning policies are per se as eligible for asylum as those directly victimized themselves, C-Y-Z-, 21 I. & N. Dec. at 919; and (b) clarify whether, when, and why boyfriends and fiancés may or may not similarly qualify as refugees under IIRIRA § 601(a). We retain jurisdiction to rule on the instant petitions after disposition of the remand.

I. BACKGROUND

The Immigration and Naturalization Act ("INA" or "Act") vests the Attorney General with the discretionary authority to grant asylum to any alien who is a "refugee," that is, a person unable or unwilling to return to his or her native 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).

Prior to 1996, the BIA construed the Act to permit victims of China's coercive family-planning policy to claim "refugee" status only if the victims demonstrated that China's family-planning policy had been or would be "selectively applied" to them on the basis of a protected ground. See In re Chang, 20 I. & N. Dec. 38, 44 (BIA 1989). But in 1996, 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. To wit, Congress provided, in § 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), that:

[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.

See Pub.L. No. 104-208, § 601(a), Title VI-A, 110 Stat. 3009-546, 3009-689 codified at 8 U.S.C. § 1101(a)(42).

Not long thereafter, the BIA held that, under IIRIRA § 601(a), the forced sterilization or abortion of one spouse is an act of persecution against the other spouse and that, as a result, the spouses of those directly victimized by coercive family planning policies are per se as eligible for asylum as those directly victimized themselves. In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc). Unfortunately, as the Third Circuit has noted and as we will discuss in greater detail below, the BIA "did not explain the basis for this conclusion," Cai Luan Chen v. Ashcroft, 381 F.3d 221, 225 (3d Cir.2004), nor did the BIA clarify or supplement its analysis in any subsequent opinion.

Yet it was at least partially on the basis of the BIA's decision in C-Y-Z- that IJs denied the asylum applications of the petitioners whose claims we consider here:

Shi Liang Lin claims that he suffered persecution in China when his girlfriend — whom he could not then legally marry because of her young age — was forced to have an abortion. However, the IJ denied Lin's application on the ground that it would not be "appropriate to expand . . . Matter of C-Y-Z- to include unmarried couples." The IJ reasoned that such an expansion would be inappropriate because, inter alia, Congress had imposed a 1,000 person-per-year cap on the number of persons eligible for asylum under IIRIRA § 601(A) and, given this cap, opening the immigration floodgates to non-spouses could jeopardize the ability of those individuals more directly harmed by coercive family-planning policies to secure immigration relief.¹

Another IJ similarly rejected petitioner Xian Zou's claim that he suffered past persecution when his girlfriend was forced to have an abortion.² In Zou's case, the IJ cited C-Y-Z-, but argued — without providing any meaningful analysis — that there was "absolutely no way that Section 101(a)(42) of the Immigration and Nationality Act and supporting case law apply [to Zou]" because Zou had not married his girlfriend in either a traditional or legal ceremony.

Finally, an IJ denied the application of petitioner Zhen Hua Dong, who sought asylum in connection with the persecution of his fiancée, unlike petitioners Lin and Zou who sought asylum in connection with the persecution of their respective girlfriends. Dong claims that his fiancée discovered that she was pregnant during a routine exam in August 1998 and was forced to have an abortion that same day. Dong further claimed that he, himself, was warned by family planning officials that he would be fined and sterilized if his fiancée became pregnant again. Finally, Dong claimed that his fiancée became pregnant for a second time in the summer of 1999 and that although he was able to flee, she ultimately was subjected to a second forced abortion in November 1999. Although all of Dong's allegations were deemed credible (pursuant to a stipulation of the parties), the IJ held that Dong failed to establish eligibility for asylum. The IJ argued that although the BIA held, in C-Y-Z-, that "the spouse of a person who was forced to undergo an abortion or sterilization pursuant to a coercive population control program is . . . a refugee under [IIRIRA § 601(a)]," the BIA has not "further extended the protections of this amended definition of refugee to fiancées or girlfriends or boyfriends of people who have been forced to undergo an involuntary abortion or sterilization." Accordingly, the IJ held that Dong could not establish eligibility for asylum in connection with his fiancée's forced abortions.

The BIA summarily affirmed the IJ's decision in each of these three cases pursuant to the BIA's streamlining regulations — that is to say, in each of these three cases, a single Board member affirmed, without opinion, the results of the IJ's decision below. See 8 C.F.R. § 1003.1(e)(4).

II. DISCUSSION

It is well-settled that when the BIA summarily affirms an IJ's decision, we review the decision of the IJ directly. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Yet we have never before discussed whether an IJ's construction of the INA is entitled to review under the deferential standards set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), where, as here, an IJ has engaged in statutory construction and the BIA has summarily affirmed. Accordingly, we address this question at the threshold.

This Circuit has previously recognized that "[a]n agency interpretation qualifies for Chevron deference 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." Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 130 (2d Cir.2004) (quoting United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct....