494 F.3d 296 (2nd Cir. 2007), 02-4611, Shi Liang Lin v. United States Dept. of Justice

Docket Nº:02-4611-ag, 02-4629-ag, 03-40837-ag.
Citation:494 F.3d 296
Party Name:SHI LIANG LIN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE; Attorney General Gonzales, Respondents; Zhen Hua Dong, Petitioner, v. United States Department of Justice; Attorney General Gonzales, Respondents; Xian Zou, Petitioner, v. Attorney General Gonzales, Respondent.
Case Date:July 16, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 296

494 F.3d 296 (2nd Cir. 2007)

SHI LIANG LIN, Petitioner,

v.

UNITED STATES DEPARTMENT OF JUSTICE; Attorney General Gonzales, Respondents;

Zhen Hua Dong, Petitioner,

v.

United States Department of Justice; Attorney General Gonzales, Respondents;

Xian Zou, Petitioner,

v.

Attorney General Gonzales, Respondent.

Nos. 02-4611-ag, 02-4629-ag, 03-40837-ag.

United States Court of Appeals, Second Circuit.

July 16, 2007

Argued: March 7, 2007.

Petitions for review of orders of the Board of Immigration Appeals denying applications for asylum, withholding of removal, and relief under the Convention Against Torture. The petition for review of Zhen Hua Dong is DENIED. Xian Zou's and Shi Liang Lin's petitions are DISMISSED for lack of jurisdiction.

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

Aleksander Milch, Christophe & Associates, P.C., New York, NY, for Petitioner Xian Zou.

Kathy S. Marks, Assistant United States Attorney, (Sara L. Shudofsky, Assistant United States Attorney, of counsel) for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Respondents the United States Department of Justice and Attorney General Gonzales.

Before: JACOBS, Chief Judge, CALABRESI, CABRANES, STRAUB, POOLER, SACK, SOTOMAYOR, KATZMANN, PARKER, RAGGI, WESLEY, and HALL, Circuit Judges.

Judge B.D. PARKER delivered the opinion of the Court, in which JACOBS, C.J., and CABRANES, SACK, RAGGI, WESLEY, and HALL, JJ., joined.

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Judge KATZMANN filed a concurring opinion, in which STRAUB, POOLER, and SOTOMAYOR, JJ., joined.

Judge SOTOMAYOR filed a concurring opinion, in which POOLER, J., joined.

Judge CALABRESI filed an opinion concurring in part and dissenting in part.

B.D. PARKER, JR., Circuit Judge:

In 1997 the Board of Immigration Appeals ("BIA") held in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (B.I.A. 1997) (en banc) that an individual whose spouse has been forced to abort a pregnancy, undergone involuntary sterilization, or been persecuted under a coercive population control program could automatically qualify for asylum as a "refugee" under § 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") (amending 8 U.S.C. § 1101(a)(42), Immigration and Nationality Act ("INA") § 101(a)(42)). See In re S-L-L-, 24 I. & N. December 1, 2003 (B.I.A. 2006) (en banc) ("In Matter of C-Y-Z-, . . . we held that a husband whose wife was forcibly sterilized could establish past persecution under this amendment to section 101(a)(42) of the [INA]."). This appeal considers whether the BIA's interpretation of the statute was correct. We conclude it was not.

Petitioners Shi Liang Lin, Zhen Hua Dong, and Xian Zou are citizens of the People's Republic of China and unmarried partners of individuals allegedly victimized by China's coercive family planning policies. Each seeks review of an order of the BIA summarily affirming the denial of an application for asylum based, in part, on the BIA's holding in C-Y-Z.1We remanded these petitions to the BIA to afford it the opportunity to explain its rationale in C-Y-Z- for reading § 601(a) to say that the spouses of those directly victimized by coercive family planning policies are per se eligible for asylum as if they were directly victimized themselves and also to clarify the status of boyfriends and fiancés under that statute. See Lin v. U.S. Dep't of Justice, 416 F.3d 184, 187 (2d Cir. 2005). We retained jurisdiction. Id.

On remand, the BIA reaffirmed its holding in C-Y-Z- that spouses are entitled to automatic eligibility under § 601(a) but limited this per se eligibility to legally married applicants. S-L-L-, 24 I. & N. Dec. 1. Eschewing a text-based analysis, the BIA elected to interpret the forced abortion and sterilization clause of the section "in light of the overall purpose of the amendment" to include both parties to a marriage. Id. at 8. The Board reaffirmed the dismissal of the appeals of petitioners Lin , id., and Dong, In re Zhen Hua Dong, No. A77 293 661 (B.I.A. November 27, 2006), and remanded Zou's petition for a determination of whether he qualified for asylum based on the "other resistance to a coercive population control program" clause in § 601(a), In re Xian Zou, No. A73 178 541 (B.I.A. November 21, 2006).

Following the BIA's decision, we ordered rehearing en banc to consider two issues: First, whether § 601(a)'s provisions are ambiguous, so that the BIA's construction of them warrants Chevron deference; and second, whether the BIA reasonably construed § 601(a) to extend automatic asylum eligibility to a petitioner whose legally married spouse was subjected to an involuntary abortion or sterilization but not to a domestic partner or fiancé whose claim is derivative unless the petitioner

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engaged in "other resistance" to a coercive population control policy. Lin v. U.S. Dep't of Justice, Nos. 02-4611, 02-4629, 03-40837 (2d Cir. Nov. 13, 2006) (order) ("En banc order ").

See S-L-L-, 24 I. & N. Dec. 1; Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

We now conclude that the BIA erred in its interpretation of 8 U.S.C.§ 1101(a)(42) by failing to acknowledge language in § 601(a), viewed in the context of the statutory scheme governing entitlement to asylum, that is unambiguous and that does not extend automatic refugee status to spouses or unmarried partners of individuals § 601(a) expressly protects. Accordingly, the petition of Zhen Hua Dong is denied. The petition of Shi Liang Lin is dismissed as moot.2 The petition of Xian Zou is dismissed for lack of jurisdiction. 3 We recognize that this decision creates a split among the circuits.4

I. BACKGROUND

Congress has given the Attorney General the discretionary authority to grant asylum to an alien who qualifies as a "refugee" because he or she "is unable or unwilling to avail himself or herself of the protection of [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). A showing of past persecution gives rise to a rebuttable presumption

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of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1).

In 1996, Congress passed IIRIRA § 601(a), which amended 8 U.S.C. § 1101(a)(42) by broadening its definition of "refugee," adding the following language:

[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).

The next year, the BIA held that "past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse," so that spouses of individuals directly victimized by coercive family planning policies are per se eligible for asylum pursuant to § 1101(a)(42). See Matter of C-Y-Z-, 21 I. & N. Dec 915, 917-18 (B.I.A.1997) (en banc). The BIA gave no reasons for reading the statute to compel this result.

Petitioner Lin entered the United States in January 1991 and filed an application for asylum and withholding of removal in June 1993. According to Lin's application, he had sought the required governmental permission to marry his girlfriend and have children with her, but she was too young under Chinese law. After his girlfriend became pregnant and was forced to have an abortion, Lin left China. His girlfriend remained in China because she was too weak to travel. Following a hearing, the IJ found Lin credible, but concluded that he did not qualify for asylum based on his girlfriend's forced abortion and denied the petition. The BIA affirmed without opinion. See In re Shi Liang Lin, No. A70 895 638 (B.I.A. September 29, 2002), aff'g No. A70 895 638 (Immig. Ct. N.Y. City May 9, 2000).

Petitioner Dong attempted to enter the United States in October 1999, and was detained by INS officials. When the INS commenced removal proceedings, Dong requested asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). His asylum petition was based on a claim that his fiancée (who continued to reside in China) had been forced to undergo two abortions and that he would be jailed and fined for having left China illegally were he to be deported. The IJ denied Dong's petition, finding that, although he was credible, he did not qualify for refugee status as a fiancé of a woman who had undergone forced abortions, and had not established other grounds for relief. The BIA affirmed the IJ's decision. See In re Zhen Hua Dong, No. A77 293 661 (B.I.A. Sept. 25, 2002), aff'g No. A77 293 661 (Immig. Ct. N.Y. City Oct. 12, 2000).

Petitioner Zou was taken into custody by the INS when he attempted to enter the United States in September 2000. After removal proceedings commenced, Zou filed for asylum. Under Chinese law, Zou and his girlfriend had been too young to marry. He claimed that she had been forced to have an abortion and he had been threatened with arrest after protesting to family planning officials. An IJ denied the application. The IJ found Zou's testimony concerning his...

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