Chen v. Ashcroft
Decision Date | 20 August 2004 |
Docket Number | No. 03-3124.,03-3124. |
Citation | 381 F.3d 221 |
Parties | Cai Luan CHEN, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent. |
Court | U.S. Court of Appeals — Third Circuit |
Theodore N. Cox, Joshua Bardavid (Argued), New York, NY, for Petitioner.
Peter D. Keisler, David V. Bernal, Jocelyn L. Wright (Argued), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington D.C., for Respondent.
Before ALITO, SMITH, and WALLACE, Circuit Judges.*
Cai Luan Chen petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the denial of his application for asylum and withholding of removal. Chen's primary argument is that he is eligible for asylum based on his fiancee's forced abortion at the hands of Chinese government officials. In making this argument, Chen relies on a decision of the Board of Immigration Appeals holding that the spouse of a person who was forced to undergo an abortion or sterilization is deemed under a 1996 amendment to 8 U.S.C. § 1101(a)(42) to have suffered past persecution. Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc). Chen argues that, while he and his fiancee were never married, they would have married had it not been for China's inflated minimum marriage age requirement, which was instituted as part of the country's oppressive population control program. Chen contends China's refusal to permit him to marry constituted persecution and that therefore the BIA's decision to limit C-Y-Z- to married persons is irrational and arbitrary and must be rejected.
We disagree. While limiting C-Y-Z- to married persons may produce undesirable results in some cases, the BIA's interpretation, which contributes to efficient administration and avoids difficult and problematic factual inquiries, is reasonable. We accordingly deny the petition for review.
Chen and his fiancee, Chen Gui, are both natives and citizens of the People's Republic of China. Chen and Chen Gui started living together at Chen's parents' house in July 1994. At the time, Chen was 19 and Chen Gui was 18.
In September 1995, the couple discovered that Chen Gui was pregnant, and they then applied for a marriage license at the local government office without disclosing the pregnancy. However, the office told them that their application could not be approved, since the legal age to marry was 25 for men and 23 for women.1
Government officials soon became aware of the pregnancy and told Chen Gui that the child would have to be aborted. Chen and Chen Gui delayed compliance with the order, and this prompted a group of local officials to visit the home of Chen's parents. Chen Gui, having been warned of the visit, was not there when the officials arrived, and Chen was accordingly asked to disclose Chen Gui's whereabouts. When Chen refused, the officials started hitting him with "sticks," and Chen fought back with a "plumbing tool." Finally, Chen's parents intervened to end the scuffle. The officials left, warning Chen that he would be arrested if Chen Gui did not report for an abortion in three days.
Chen and Chen Gui went into hiding, and Chen left the country shortly thereafter. He entered the United States in April 1996. About two months later, Chen contacted his family and was told that Chen Gui had ultimately been found and had been forced to submit to an abortion in the eighth month of the pregnancy. Chen was also informed that Chen Gui was continuing to live with his parents.
The INS initiated removal proceedings against Chen, who subsequently sought asylum under the reasoning of the BIA's decision in C-Y-Z-. The IJ concluded that, although Chen and Chen Gui had never formally married, the case did "fall by analogy within C-Y-Z-, if not by the letter." App. II at 116. However, the BIA reversed on appeal, noting summarily that the decision in C-Y-Z- had "not been extended to include unmarried partners," App. I at 3, and that Chen's "own experiences with the authorities in China [did] not rise to the level of past persecution." Id. Chen then filed this petition for review.
The respondent in this case (hereinafter "the government") contends that the BIA's interpretation of 8 U.S.C. § 1101(a)(42) as covering the spouses but not the unmarried partners of persons who have been forced to undergo abortions or sterilization is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and should be sustained. 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." United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). If Chevron applies, a court must ask (at what is customarily called step one) "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. "If so, courts, as well as the agency, `must give effect to the unambiguously expressed intent of Congress.'" Household Credit Servs. Inc. v. Pfennig, ___ U.S. ___, ___, 124 S.Ct. 1741, 1747, 158 L.Ed.2d 450 (2004) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). "However, whenever Congress has `explicitly left a gap for the agency to fill,'" a court must proceed to step two, and "the agency's [interpretation] is `given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute.'" Id. ( )(quoting Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778). The Court has described this test as one of reasonableness. See Chevron, 467 U.S. at 845, 865, 866, 104 S.Ct. 2778.
Here, there is no dispute that "the BIA should be accorded Chevron deference for its interpretations of the immigration laws," Tineo v. Ashcroft, 350 F.3d 382, 396 (3d Cir.2003) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)), and Chen does not contend that 8 U.S.C. § 1101(a)(42) unambiguously covers the unmarried partners of persons who have undergone forced abortions or sterilization. Instead, Chen focuses on step two of the Chevron analysis and argues that the BIA's interpretation of 8 U.S.C. § § 1101(a)(42) is arbitrary, capricious, and irrational.
Before we can address Chen's argument regarding the limited scope that the BIA has given to its decision in C-Y-Z, it is helpful to review that decision and the statute on which it is based.
Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant asylum to an alien who is a "refugee" within the meaning of 8 U.S.C. § 1101(a)(42). In order to establish refugee status under the latter provision, an applicant must generally show that he or she "is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of [the country of such person's nationality or in which such person last habitually resided] 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). By regulation, see 8 C.F.R. § 1208.13(b)(1), "[a] showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution." Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003).
The BIA initially rejected the argument that "implementation of [China's] `one couple, one child' policy in and of itself, even to the extent that involuntary sterilizations may occur, is persecution or creates a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Matter of Chang, 20 I. & N. Dec. 38, 44 (BIA 1989) (internal quotation marks and citation omitted). This holding, however, was superceded several years later by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). Section 601 of the IIRIRA amended § 1101(a)(42) by 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.
Id. § 601, 110 Stat. at 3009-689; see also Matter of X-P-T-, 21 I. & N. Dec. 634 (BIA 1996) (en banc). (For convenience, we will refer to this new provision as "the 1996 amendment to § 1101(a)(42)" or simply "the 1996 amendment.")
The IIRIRA also imposed a cap of 1,000 persons per fiscal year on the number of aliens who may be granted asylum under the 1996 amendment. 8 U.S.C. § 1157(a)(5).2 Accordingly, aliens found eligible for asylum under this provision are approved only conditionally, subject to an administrative determination that a final grant of asylum would not push the annual total above the statutory cap. See X-P-T-, 21 I. & N. Dec. at 637. Because the number of conditional grants issued per year has exceeded 1,000 for some time, the waiting list now includes more than 7,000 applicants. See News Release, U.S. Department of Justice, EOIR Notifies Persons Eligible for Full Asylum Benefits for Fiscal Year 2003 Based on Coercive Population Control Policies (Sept. 30, 2003), at http://www.usdoj.gov/eoir/press/03/CPCA-sylumRelease0903.pdf. This means that applicants awarded conditional asylum today face a waiting period of at least seven years before becoming...
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