Sun Wen Chen v. Attorney Gen. of U.S.

• Decision Date: 20 June 2007
• Docket Number: No. 05-4011.,05-4011.
• Citation: 491 F.3d 100
• Parties: SUN WEN CHEN, Wen Hui Gao, Petitioners v. ATTORNEY GENERAL OF the UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

491 F.3d 100 SUN WEN CHEN, Wen Hui Gao, Petitioners
v.
ATTORNEY GENERAL OF the UNITED STATES. No. 05-4011. United States Court of Appeals, Third Circuit. Argued February 27, 2007. Filed: June 20, 2007.

[491 F.3d 103]

Gary J. Yerman, Yerman & Associates, New York, NY, for Petitioners.

Peter D. Keisler, Richard M. Evans, David E. Dauenheimer, Patricia A. Smith, Brooke M. Maurer (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before: McKEE, ALDISERT, Circuit Judges, RESTANI^*, Judge.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Sun Wen Chen and Wen Hui Gao, husband and wife, petition for review of an order of the Board of Immigration Appeals ("BIA") that reversed the Immigration Judge's ("IJ") grant of asylum and withholding of removal. Petitioners contend that they qualify for asylum and withholding of removal because they have a well-founded fear of persecution under China's one-child policy should they be returned to China. This petition requires us to decide whether a husband may qualify for asylum on the well-founded fear that his wife may be persecuted under a coercive population control policy, a question of first impression in this Court. We hold that the husband may stand in his wife's shoes to bring such a claim. On the merits, we will grant the petition for review on Petitioner Chen's asylum claim.

I.

Chen and his wife Gao are Chinese citizens from the Fujian province. Both entered the United States without valid entry documents — Chen in 1991 and Gao in 1997. Chen applied for asylum within a month of his arrival, alleging that he feared persecution because of his parents' active support of the students' democratic movement. Gao applied for asylum more than two years after her arrival. Both Chen and Gao's applications were denied, and their cases were referred to immigration court.

Chen and Gao married in the United States, and Gao gave birth to their child, a boy, on May 3, 1999. Their claims were consolidated, and the IJ held a merits hearing on July 24, 2000. Before the IJ, Chen contended that his prior application for asylum had been prepared without his approval by an organization he had asked to help him obtain work authorization. He explained that, notwithstanding statements on his application, he was not seeking asylum on the basis of his parents' activities. Rather, Chen requested asylum and withholding of removal because of the possibility that his wife would face a forced abortion

491 F.3d 104

or sterilization under China's coercive population control policy. Gao requested asylum on the same grounds. Both Petitioners testified that they hoped to have more children and were physically able to do so.

The IJ granted asylum and withholding of removal. He found Gao's application time-barred, denying her contention that her case fell into the changed circumstances exception given the birth of her child. See 8 U.S.C. § 1158(a)(2)(D). Chen's application was timely, however, and the IJ found that he could stand in his wife's shoes for purposes of his asylum claim. The IJ found that the couple had "a well-founded fear of future persecution" that was "less than a clear probability, but ... certainly more than speculative in view of the family planning policy of limiting the number of children in [Petitioners' home region], especially males." He granted Chen asylum, and also granted Gao asylum derived from her husband's status. He found both entitled to withholding of removal as well.

The BIA reversed the IJ's decision, concluding that "the respondents failed to sustain the burden of proof." The Board stated that "respondents did not submit any evidence specifically addressing the treatment of children born outside of China," and that "[t]he Department of State [Profile of Asylum Claims and Country Conditions for 1998] mentions the apparent absence of a national policy regarding children born abroad...." The BIA further commented that "[t]he Department of State ... indicates that the coercive population control policies are not uniformly applied and may be enforced using numerous non-persecutory methods, including economic incentives and education...." The BIA concluded that "[i]n light of the variance of enforcement in China, the possibility of non-persecutory methods of enforcement, and the uncertainty about how a child born abroad is treated under the policy, we find that the respondents did not sustain the burden of proving eligibility for asylum or the more stringent burden applicable to withholding of removal."

Chen and Gao's petition was timely filed in the United States Court of Appeals for the Second Circuit, and was properly transferred to this Court on March 21, 2005. See 8 U.S.C. §§ 1252(b)(1) & (2).

II.

To qualify for asylum, a petitioner must show that he is a "refugee" as defined by the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1158(b)(1)(A). This requires a showing that he has suffered past persecution because of "race, religion, nationality, membership in a particular social group, or public opinion," or that he has a well-founded fear of future persecution on these grounds. 8 U.S.C. § 1101(a)(42). Congress amended the definition of "refugee" in 1996 to include the following provision:

[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)(B).

A party seeking asylum bears the burden of proving that he satisfies the definition of "refugee." 8 U.S.C.

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§ 1158(b)(1)(B)(I). He may do this by demonstrating a well-founded fear of persecution on the basis of a privileged ground. See 8 U.S.C. § 1101(a)(42). To establish a well-founded fear of future persecution, an asylum-seeker must show that he has a subjective fear and that his fear is objectively reasonable. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). The "[d]etermination of an objectively reasonable possibility [of persecution] requires ascertaining whether a reasonable person in the alien's circumstances would fear persecution if returned to the country in question." Id.

III.

Before considering the details of Chen's asylum claim, we note that we are unable to review the IJ's denial of Gao's application for asylum. We lack jurisdiction to review a discretionary refusal to allow an asylum-seeker the benefit of the "changed circumstances" exception to the one-year timeliness requirement. See 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006). In this case, Petitioners argue that the BIA "did not fulfill its obligation to determine whether Gao's application was timely," and that therefore we have jurisdiction to reach the issue. This argument is based on a faulty premise. As the BIA points out in its opinion, Petitioners did not identify any errors in the IJ's finding; as a result, the BIA had no obligation to review the IJ's timeliness determination. It now stands beyond our reach.

Only Chen's claim, then, is rightly before us. Chen's petition for asylum, however, is based on the threat to his wife. He contends that his wife has a well-founded fear of involuntary sterilization or forced abortion, and that her fear may be imputed to him. We must determine whether such a petition may succeed.

A.

The spouse of an asylee may obtain derivative asylum status under 8 U.S.C. § 1158(b)(3), but the provision for derivative asylum does not allow one spouse to stand in the shoes of the other and to independently obtain asylum based on a threat to the other spouse. The BIA, however, has allowed a husband to obtain asylum when his wife has been persecuted under China's one-child policy, even though the wife remained in China. Matter of C-Y-Z-, 21 I. & N. Dec. 915, 920 (BIA 1997). In C-Y-Z-, the BIA, sitting en banc, held that "forced sterilization of one spouse ... is an act of persecution against the other spouse." Id. at 919. This Court has never determined the permissibility of the BIA's interpretation in C-Y-Z-. Although we discussed the C-Y-Z- ruling in Cai Luan Chen v. Ashcroft, 381 F.3d 221, 227 (3d Cir.2004), we found it unnecessary to decide whether the Board's view was permissible because the petitioners in Cai Luan Chen were not married and therefore, we held, fell outside the scope of the BIA's ruling.¹ The viability of the BIA's determination that one spouse's qualification for asylum may be imputed to the other spouse is squarely before us now.²

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We accord Chevron deference to "an agency's construction of the statute which it administers." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); United States v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (stating that Chevron deference is appropriate "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"). The INA provides that the "determination and ruling by the Attorney General with respect to all questions of law shall be controlling." 8 U.S.C. § 1103(a)(1). This power extends to provisions of Title 8, Chapter 12 ("Immigration and Nationality") "and all other laws relating to the immigration and naturalization of aliens." Id. The Attorney General, in turn, has "vested the BIA with power to exercise the discretion and authority conferred upon...