Yu v. U.S. Atty. Gen.

• Decision Date: 27 May 2009
• Docket Number: No. 08-16068 Non-Argument Calendar.,08-16068 Non-Argument Calendar.
• Citation: 568 F.3d 1328
• Parties: De Quan YU, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

568 F.3d 1328

De Quan YU, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 08-16068 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 27, 2009.

Theodore N. Cox, Law Office of Theodore N. Cox, New York City, for Yu.

Ana T. Zablah-Monroe, Ernesto H. Molina, Jr., Vanessa O. Lefort, Jennifer Paisner Williams, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

De Quan Yu petitions for review of the final order of the Board of Immigration Appeals ("BIA"), which affirmed the Immigration Judge's ("IJ's") denial of his claims for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., and relief under the United Nations Convention Against Torture ("CAT"). Yu, a native and citizen of China, asserts that he is entitled to per se refugee status based on the forced abortion and sterilization of his wife. We disagree and deny the petition.

I. BACKGROUND

In October 2003, Yu received a notice to appear charging him with entering the United States without a valid entry document, in violation of § 212(a)(7)(A)(i)(I) of the INA. Yu conceded removability and filed for asylum, withholding of removal, and CAT protection.

At the asylum hearing, Yu claimed that the Chinese government persecuted him by forcing his wife to insert an intrauterine device ("IUD"), abort a pregnancy, undergo sterilization, and pay a fine. Specifically, Yu testified that his wife was forced to have an IUD inserted following the birth of their first child, a daughter. Despite the IUD, his wife became pregnant again and was forced to undergo an abortion. When Yu's wife had a second daughter, authorities tried to arrest Yu. Yu and his wife went into hiding to avoid sterilization of Yu's wife. After Yu fled China alone, his wife gave birth a few months later to their third daughter. Yu's wife was then arrested and forcibly sterilized. She was also fined a registration fee for their third child. Yu's wife remains in China with her daughters. Yu believes that if he returns to China he will be imprisoned for leaving China illegally and be fined.

The IJ found that Yu did not testify credibly that his wife's IUD, abortion, and sterilization were involuntary. Accordingly, the IJ found that Yu was not persecuted and did not have a well-founded fear of future persecution. On appeal, the BIA found the IJ's adverse credibility finding was clearly erroneous, vacated the removal order, and remanded the case for further proceedings. Neither party submitted additional evidence on remand. The IJ again found that Yu was not credible and denied his claims for asylum, withholding of removal, and CAT relief.

The BIA dismissed the appeal. Regardless of the IJ's credibility finding, the BIA concluded that the case was governed by the Attorney General's intervening precedential decision in Matter of J-S-, 24 I. & N. Dec. 520, 523-24 (A.G.2008), which held that a spouse is not automatically eligible for refugee status based on the forced abortion or sterilization of his or her partner. The BIA noted that Matter of J-S- requires such a spouse to show that he himself suffered persecution or has a well-founded fear of suffering future persecution for failure or refusal to undergo such a procedure, or for other resistance to a coercive-population control program. The BIA found that Yu had not personally suffered any past persecution and he did not have a well-founded fear of future persecution based on his and his wife's violation of China's one-child policy. Accordingly, the BIA concluded that Yu was ineligible for asylum and withholding of removal. The BIA also concurred with the IJ that Yu had failed to meet his burden of proof for CAT protection.

In his petition, Yu claims the BIA's retroactive application of Matter of J-S- violated his due process rights because it renders him ineligible for asylum and withholding of removal.¹ Yu argues that previous BIA decisions entitled him to automatic refugee status based on his wife's forced abortion and sterilization.

II. DISCUSSION

We review only the BIA's decision, except to the extent the BIA expressly adopted the IJ's reasoning. See Lin v. U.S. Att'y Gen., 555 F.3d 1310, 1314 (11th Cir.2009). We review legal conclusions de novo. See id. Factual findings are reviewed under the substantial evidence test and are left undisturbed if "supported by reasonable, substantial, and probative evidence." Id. (quotation marks and citation omitted). We cannot reverse factual findings unless the record compels it; "the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings." Ruiz v. U.S. Att'y Gen., 440 F.3d 1247, 1255 (11th Cir.2006) (per curiam) (quotation marks and citation omitted). At issue is whether Yu qualifies as a "refugee" entitling him to asylum under the following INA 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). In interpreting this provision, the BIA agreed with the initial position of the Immigration and Naturalization Service ("INS") that "past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse." In re C-Y-Z-, 21 I. & N. Dec. 915, 917, 919 (BIA 1997) (en banc).² The BIA restricted spousal asylum under this provision to those who were legally married under Chinese law, not merely dating or engaged. See In re S-L-L, 24 I. & N. Dec. 1, 8-9 (BIA 2006).³

In 2008, the Attorney General overruled the BIA's interpretation of § 1101(a)(42)(B) in C-Y-Z- and S-L-L- to the extent those cases established automatic spousal eligibility. See Matter of J-S-, 24 I. & N. Dec. at 523. Based on the statute's text, structure, history, and purpose, the Attorney General concluded that "spouses are not entitled to the same per se refugee status that [§ 1101(a)(42)(B)] expressly accords persons who have physically undergone forced abortion or sterilization procedures." Id. at 523-24. Instead, in order for a spouse who has not physically undergone such a procedure to qualify as a refugee under § 1101(a)(42)(B), the Attorney General held that a spouse must show persecution or a well-founded fear of future persecution based on his or her "failure or refusal" to undergo such a procedure or "other resistance" to a coercive population control program. Id. at 537-38.

Consistent with Matter of J-S-, two of our sister circuits have published opinions holding that the plain language of § 1101(a)(42)(B) does not extend automatic refugee status to spouses of individuals who underwent forced abortions or sterilizations. See Lin-Zheng v. Att'y Gen., 557 F.3d 147, 156-57 (3d Cir.2009) (en banc); Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 314 (2d Cir.2007) (en banc) (denying automatic refugee status to spouses, fiancés, or boyfriends).

We have not yet published an opinion deciding whether § 1101(a)(42)(B) confers automatic refugee status on the spouse of a woman who has undergone a forced abortion or involuntary sterilization, or whether Matter of J-S- is 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). See Lin, 555 F.3d at 1315. Those issues were left unresolved in Lin because the applicant and his partner were not legally married. See id. (concluding only that "unmarried partners like Lin do not automatically qualify for protection under the forced abortion and sterilization provisions of the INA"). Yu's case squarely presents both issues, however, because Yu is lawfully married to the person who underwent the forced procedures. As these questions implicate an agency's interpretation of a statute it administers, we must apply Chevron's two-step inquiry. See Castillo-Arias v. U.S. Att'y Gen., 446 F.3d 1190, 1195 (11th Cir.2006).

Our first task under Chevron is to determine Congressional intent. See Scheerer v. U.S. Att'y Gen., 513 F.3d 1244, 1250 (11th Cir.2008). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. (quotation marks and citation omitted). Where the statute is silent or ambiguous, we proceed to the second step, which requires us to determine whether the agency's interpretation is a "permissible construction of the statute." Id. (quotation marks and citation omitted). The fact that the agency or even the court could have interpreted the statute differently is of no matter. See id. So long as an agency's interpretation is reasonable, it is controlling. See id. A reasonable interpretation is one that is not "arbitrary, capricious, or manifestly contrary to the statute." Id. (quotation marks and citation omitted). Moreover, our deference to an agency's interpretation is "especially great in the field of immigration." See Lin, 555 F.3d at 1315 n. 4 (quotation marks and citation omitted).

We begin by assessing whether § 1101(a)(42)(B) clearly reflects a Congressional intent to grant automatic refugee status to a spouse who has not physically undergone a forced abortion or sterilization. As usual, the statute's language is the starting point. See Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1167 (11th Cir.2003). We...