Dong v. Holder

• Decision Date: 03 October 2012
• Docket Number: No. 12–1091.,12–1091.
• Citation: 696 F.3d 121
• Parties: XIAN TONG DONG, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

696 F.3d 121

XIAN TONG DONG, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–1091.

United States Court of Appeals,First Circuit.

Submitted Sept. 5, 2012.

Decided Oct. 3, 2012.

Nathan Weill and Law Office of Nathan Weill on brief for petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, and Shahrzad Baghai, Trial Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.

Before THOMPSON, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

This case requires us to decide, for the first time, whether 8 U.S.C. § 1101(a)(42)(B), a statute enacted to pave the way for asylum for victims of China's coercive population control policies, extends automatically to a spouse of a person forced to undergo an abortion. We join several of our sister circuits in holding that it does not.

The issue arises in connection with the asylum application of Xian Tong Dong, a Chinese national, who seeks to remain in the United States because of, among other things, his wife's forced abortion. Before us, he solicits judicial review of a final order of the Board of Immigration Appeals (BIA) denying him asylum and decreeing his removal to his homeland. After careful consideration, we reject his petition.

The record reflects that the petitioner entered the United States without inspection in March of 2006. The Chinese government previously had forced his wife to undergo an abortion, and he hoped to send for her and their son after gaining permission to remain.

The petitioner applied for asylum on October 10, 2006. Federal authorities responded by instituting removal proceedings and referring his case to the immigration court. The case was heard on the merits by an immigration judge (IJ) on December 2, 2009. In the interim, the petitioner became involved with the Chinese Evangelical Church in Boston, Massachusetts. He was baptized there in April of 2009. He expanded the grounds on which he sought asylum to include a fear of religious persecution.

In the immigration court, the petitioner testified that, consonant with the Chinese government's repressive population control policies, his wife was fitted with an intrauterine device (IUD) after the birth of their first child.¹ Flouting government policy, she had the IUD removed by a privately retained physician. The couple thereafter conceived a second child. When Chinese authorities became aware of the pregnancy, they subjected the petitioner's wife to a forced abortion in 2005. This event, according to the petitioner, prompted him to leave China and come to the United States.

The Attorney General has discretion to grant asylum to any alien who establishes that he is a refugee. 8 U.S.C. § 1158(b)(1). At the end of the petitioner's hearing, he argued that he was entitled to per se refugee status under 8 U.S.C. § 1101(a)(42)(B) as “a person who has been forced to abort a pregnancy.” The IJ rejected this argument, holding that the spouse of a person who has been physically subjected to a forced abortion is not entitled to refugee status per se.

Alternatively, the petitioner argued that he was entitled to asylum on a different ground; he posited that repatriation would subject him to persecution because his new found Evangelical Christian beliefs would compel him to attend an unsanctioned church (which, in turn, would leave him open to arrest). The IJ rejected this argument as well. She concluded that the evidence in the record indicated that the Chinese government's handling of unsanctioned churches varied widely in different regions of the country, and that the petitioner had not introduced evidence sufficient to show that he was likely to be targeted by the government. Thus, the petitioner had failed to carry his burden of showing a well-founded fear of persecution on account of his religion. See Jiang v. Gonzales, 474 F.3d 25, 30 (1st Cir.2007).

After the IJ denied the petitioner's application for asylum and ordered his removal, the petitioner appealed. The BIA affirmed. This timely petition for judicial review followed.

In the ordinary course, judicial review in immigration matters focuses on the final order of the BIA. See Amouri v. Holder, 572 F.3d 29, 33 (1st Cir.2009). But where, as here, the BIA accepts the IJ's findings and reasoning yet adds its own gloss, we review the two decisions as a unit. See Gilca v. Holder, 680 F.3d 109, 114 (1st Cir.2012).

The main event in this case is the petitioner's claim for per se refugee status under 8 U.S.C. § 1101(a)(42)(B). Because this claim raises a question of statutory interpretation, it engenders de novo review, “albeit with some deference to the [agency's] reasonable interpretation of the statutes and regulations that fall within its purview.” Carvalho–Frois v. Holder, 667 F.3d 69, 72 (1st Cir.2012).

Section 1101(a)(42)(B) states in pertinent part that the term “refugee” shall include “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization.” The petitioner argues that a man whose wife is forced to abort a child loses the child in the same way as the mother and, thus, has been forced to abort a pregnancy. Based on this reasoning, the petitioner asserts that the plain language of the statute encompasses a person—like himself—whose spouse experienced a forced abortion at the hands of the government.

The petitioner's assertion has a certain superficial appeal. But in rebuffing this assertion, both the BIA and the IJ relied on the Attorney General's contrary interpretation of the statute. See Matter of J–S–, 24 I. & N. Dec. 520, 536 (BIA 2008) (opinion of Attorney General). We turn, therefore, to this quandary.

The relevant statute speaks only of “a person who has been forced to abort a pregnancy,” 8 U.S.C. § 1101(a)(42)(B). Under a natural reading, the focus is on persons targeted for a procedure, not upon the results of the procedure. Put another way, the statutory language appears unambiguously to refer only to the person who actually undergoes the procedure, not to the spouse of that person. Two courts of appeals have unreservedly embraced this plain-language construction. See Lin–Zheng v. Att'y Gen., 557 F.3d 147, 157 (3d Cir.2009); Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 309 (2d Cir.2007). Two others have agreed with the plain-language interpretation, but in an abundance of caution have gone on to discuss the Attorney General's interpretation. See Yi Ni v. Holder, 613 F.3d 415, 425–26 (4th Cir.2010); Yu v. U.S. Att'y Gen., 568 F.3d 1328, 1332–33 (11th Cir.2009).

We too hold that the plain language of the statute defeats the petitioner's claim. But even if we assume—favorably to the petitioner—that the statutory text, read charitably, might admit of some conceivable ambiguity, the Attorney General's interpretation would demand the same result.

To begin, 8 C.F.R. § 1003.1(h)(1)(i) authorizes the Attorney General to direct the BIA to refer specific cases to him for review and determination. Given this unfettered grant of authority to usurp the BIA—an authority that the Attorney General exercised in Matter of J–S–—the Attorney General's interpretation of the statute is entitled to Chevron deference. See INS v. Aguirre–Aguirre, 526 U.S. 415, 424–25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Naeem v. Gonzales, 469 F.3d 33, 36 (1st Cir.2006) (explaining that judicial review of the Attorney General's formal interpretation of an immigration statute is entitled to Chevron deference). This means, in effect, that if the statute in question is ambiguous, an inquiring court must defer to the Attorney General's reasonable construction of it. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778;Naeem, 469 F.3d at 36.

In Matter of J–S–, the Attorney General, relying heavily on a textual analysis of section 1101(a)(42)(B), rejected an expansive interpretation of the statute that would have dictated spousal eligibility. Matter of J–S–, 24 I. & N. Dec. at 528. The Attorney General's interpretation hewed to the letter of the statute. To cinch matters, he fortified this plain-language construction with convincing comparisons to other provisions of the Immigration and Nationality Act. One such provision limns particular circumstances under which a spouse may be eligible for asylum. Id. at 529–30 (citing 8 U.S.C. § 1158(b)(3)). Another requires every applicant for asylum establish “ his or her own eligibility.” Id. at 530 (emphasis in original) (citing 8 U.S.C. § 1158(b)(1)(B)).

Four of our sister circuits (including two that held the plain language of the statute to be controlling) have addressed the Chevron question that faces us today. They have, without exception, concluded that the Attorney General's interpretation of section 1101(a)(42)(B) is both reasonable and worthy of deference. See Yi Ni, 613 F.3d at 425;Nai Yuan Jiang v. Holder, 611 F.3d 1086, 1097 (9th Cir.2010); Shou Wei Jin v. Holder, 572 F.3d 392, 397 (7th Cir.2009); Yu, 568 F.3d at 1332–33. No court has either rejected the Attorney General's interpretation of the statute or thereafter given its imprimatur to the strained reading that the petitioner espouses.

To be sure, the Attorney General took great care to make certain that his interpretation of section 1101(a)(42)(B) “does not explicitly exclude spouses from its purview.” Matter of J–S–, 24 I. & N. Dec. at 530. But a spouse must show some special circumstance—that is, something more than his relationship to the recipient of a forced abortion—in order to avail himself of this caveat. Here, however, the petitioner has made no such showing. Indeed, the agency in this case considered (and found inapplicable) other provisions of section 1101(a)(42)(B) that might have allowed the petitioner to qualify as a per se refugee. Along these lines, the...