Lin v. U.S. Dept. of Justice, Docket No. 02-4611.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtKatzmann
Citation416 F.3d 184
Decision Date29 July 2005
Docket NumberDocket No. 03-40837.,Docket No. 02-4611.,Docket No. 02-4629.
PartiesShi 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.
416 F.3d 184
Shi Liang LIN, Petitioner,
v.
UNITED STATES DEPARTMENT OF JUSTICE and Attorney General Gonzales,* Respondents.

Page 185

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.

Page 186

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

Page 187

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

Page 188

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.

Page 189

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...

To continue reading

Request your trial
50 practice notes
  • Shi Liang Lin v. U.S. Dept. of Justice, Docket No. 02-4611-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 16, 2007
    ...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. On remand, the BIA reaffirmed its holding in C-Y-Z- that spouses are entitled to automatic eligibil......
  • Dulal-Whiteway v. U.S. Department of Homeland Security, Docket No. 05-3098-ag.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 19, 2007
    ...construction of the INA set forth in a summarily affirmed IJ opinion," like the one in this case. Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184, 191 (2d Cir.2005). We also do not extend Chevron deference to the BIA's or an IJ's construction of federal criminal laws. Michel v. INS, 20......
  • Castañeda v. Souza, No. 13-1994
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 23, 2015
    ...of the statute and not the outcome that follows from that interpretation that deserves our deference. See Lin v. U.S. Dep't of Justice, 416 F.3d 184, 191-92 (2d Cir. 2005) (declining to defer to BIA's summary affirmance of an immigration judge decision because summary affirmance indicates a......
  • Damko v. I.N.S., Docket No. 02-4830.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 30, 2005
    ...for asylum. Our deference to the BIA's Acosta decision does not run afoul of out recent decision in Shi Liang Lin v. United States DOJ, 416 F.3d 184 (2d Cir.2005), where we declined to accord Chevron deference to an IJ's construction of the INA when that construction had been summarily affi......
  • Request a trial to view additional results
50 cases
  • Shi Liang Lin v. U.S. Dept. of Justice, Docket No. 02-4611-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 16, 2007
    ...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. On remand, the BIA reaffirmed its holding in C-Y-Z- that spouses are entitled to automatic eligibil......
  • Dulal-Whiteway v. U.S. Department of Homeland Security, Docket No. 05-3098-ag.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 19, 2007
    ...construction of the INA set forth in a summarily affirmed IJ opinion," like the one in this case. Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184, 191 (2d Cir.2005). We also do not extend Chevron deference to the BIA's or an IJ's construction of federal criminal laws. Michel v. INS, 20......
  • Castañeda v. Souza, No. 13-1994
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 23, 2015
    ...of the statute and not the outcome that follows from that interpretation that deserves our deference. See Lin v. U.S. Dep't of Justice, 416 F.3d 184, 191-92 (2d Cir. 2005) (declining to defer to BIA's summary affirmance of an immigration judge decision because summary affirmance indicates a......
  • Damko v. I.N.S., Docket No. 02-4830.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 30, 2005
    ...for asylum. Our deference to the BIA's Acosta decision does not run afoul of out recent decision in Shi Liang Lin v. United States DOJ, 416 F.3d 184 (2d Cir.2005), where we declined to accord Chevron deference to an IJ's construction of the INA when that construction had been summarily affi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT