Lin-Zheng v. Atty Gen USA

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

2-19-2009

Lin-Zheng v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 07-2135

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-2135

_____________

GUANG LIN-ZHENG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. 1:A98-355-391

Submitted on Initial Hearing En Banc

May 28, 2008

Before: Scirica, Chief Judge, Sloviter, McKee, Rendell,

Barry, Ambro, Fuentes, Smith, Fisher, Chagares, Jordan,

Hardiman, Weis and Garth, Circuit Judges

(Opinion filed: February 19, 2009)

David X. Feng, Esq.

The Feng & Associates

401 Broadway

Suite 1900

New York, NY 10013-0000

Attorney for Petitioner

Thomas H. Dupree, Jr., Esq.

United States Department of Justice

950 Pennsylvania Avenue, N.W.

601 D. Street, N.W.

Washington, D.C. 20530-0000

Richard M. Evans, Esq.

Paul Fiorino, Esq.

Sada Manickam, Esq.

Song E. Park, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, D.C. 20044-0000

Attorneys for Respondent

Nancy Winkelman, Esq.

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103-0000

Amicus Curiae

2

OPINION

McKee, Circuit Judge

Guang Lin-Zheng petitions for review of an order of the

Board of Immigration Appeals affirming the Immigration

Judge’s final order of removal. The Board rejected Lin-Zheng’s

claim that he was entitled to relief from removal because he

qualified as a “refugee” pursuant to 8 U.S.C. § 1101(a)(42).

That claim was based on Lin-Zheng’s assertion that his wife,

who remains in China, has been subjected to China’s coercive

family planning policies. In Sun Wen Chen v. Attorney General,

491 F.3d 100, 103 (3d Cir. 2007), a divided panel of this court

upheld the BIA’s decision in Matter of C-Y-Z-, 21 I. & N. Dec.

915 (B.I.A. 1997) (en banc), in holding that “a husband may

qualify for asylum [based] on the well-founded fear that his wife

may be persecuted under a coercive population control policy,”

pursuant to 8 U.S.C. § 1101(a)(42). Thereafter, the Court of

Appeals for the Second Circuit rejected the holding of C-Y-Z-,

3

in holding that the statute does not “extend automatic refugee

status to spouses or unmarried partners of individuals [who are

forcibly subjected to coercive family planning measures].” Lin

v. U.S. Dept. of Justice, 494 F.3d 296, 300 (2d Cir. 2007).

We granted en banc consideration of Lin-Zheng’s

petition for review to reconsider our decision in Sun Wen Chen.

For the reasons that follow, we now adopt the reasoning of the

Court of Appeals for the Second Circuit and overrule the

holding in Sun Wen Chen.

I. Factual Background.

Guang Lin-Zheng, a native and citizen of China, entered

the United States in 2004, and filed an application for asylum

two months after arriving. In that petition, he claimed he was

entitled to asylum based on China’s coercive birth control

policy. He stated that his wife had been forced to have an

intrauterine device (IUD) inserted, and that she had been forced

to undergo an abortion. According to Lin-Zheng, his wife’s

4

treatment in China allowed him to establish his own persecution,

thus allowing him to qualify for asylum under the broadened

definition of “refugee” contained in amendments to 8 U.S.C. §

1101(a)(42).

A. Lin-Zheng’s Asylum Petition.1

According to the allegations in Lin-Zheng’s asylum

petition, he and his wife were married in a traditional wedding

ceremony in China in 1990, before his wife reached the legal

1

Lin-Zheng filed for asylum, withholding of removal, and

relief under Article III of the Convention Against Torture and

Other Cruel Inhuman or Degrading Treatment or Punishment.

However, nothing on this record supports a claim that Lin-

Zheng was either tortured in China, or that he has a well-

founded fear of being tortured if he is returned to China. We

will therefore deny Lin-Zheng’s petition as to that claim

without discussion, and limit our inquiry to Lin-Zheng’s claim

that he is a refugee. See Amanfi v. Ashcroft, 328 F.3d 719,

725 (3d Cir. 2003) (“A petition for protection under the

Convention Against Torture differs significantly from

petitions for asylum or withholding of removal because the

alien need not demonstrate that he will be tortured on account

of a particular belief or immutable characteristic.”). In

addition, since Lin-Zheng must establish he is a “refugee,” to

qualify for either asylum or withholding of removal, we will

simplify by using “asylum” to refer to both claims unless

otherwise indicated.

5

age for marriage under Chinese law. Lin-Zheng’s petition also

stated that his wife had given birth to a son approximately a year

after their marriage. Problems purportedly started four months

after their son was born when family planning officials forced

his wife to have an IUD inserted and ordered her to undergo an

IUD inspection every four months.

In 1991, Lin-Zheng and his wife officially registered their

traditional marriage with government authorities. According to

Lin-Zheng, they had to pay a fine when they registered their

marriage because their child was born too soon after their

wedding to comply with China’s family planning policy.2

In 2003, the couple arranged for a private doctor to

2

According to the United States Department of State: “

[t]he minimum age for marriage in China is 22 for males and

20 for females. . . . Persons who marry before the stipulated

age generally are not allowed to register the marriage or

obtain a notarized certificate of marriage.” A.R. 162. In his

asylum petition, Lin-Zheng stated: “because we gave birth

before marriage and married and gave birth early, [my wife

and I] were fined 50RMB and 100RMB respectively when we

went to register our marriage.” A.R. 296.

6

remove the IUD. Thereafter, Lin-Zheng’s wife again became

pregnant, and went into hiding to avoid family planning

officials. Lin-Zheng claimed that family planning officials

eventually found his wife when she was approximately six

months pregnant. Those officials forced her to accompany them

to a “Birth Control Service Station” where labor was induced

and the fetus was aborted. After the abortion, Lin-Zheng

decided to leave China even though his wife’s health had

deteriorated after the abortion, and even though they wanted to

have more children. In a letter she submitted in support of Lin-

Zheng’s asylum petition, Lin-Zheng’s wife claimed that the

family intends to reunite and have more children (presumably in

the United States) if Lin-Zheng is granted relief.

B. The Asylum Hearing.

During his asylum hearing, Lin-Zheng testified about

incidents that he had not included in his asylum petition. For

example, on cross-examination, he testified that a second IUD

7

had been forcibly inserted into his wife in 2004, after the forced

abortion alleged in his petition. Lin-Zheng also testified during

cross-examination that he had been living at home until his

departure from China, but was frequently away in November

and December of 2004. His testimony was somewhat

contradictory, and it is not clear whether he was claiming to be

away from home because of his work or because he was in

hiding. In any event, he testified that his wife informed him that

birth control cadres were looking for him while he was away.

They purportedly threatened to arrest him and demanded that he

appear at their offices and promise not to have any more

“unauthorized children.” They also purportedly threatened to

forcibly sterilize him.

The IJ denied relief after concluding that Lin-Zheng’s

testimony was “implausible and overall unpersuasive.” The IJ

was particularly troubled by the fact that Lin-Zheng testified

extensively about the family planning cadres’ harassment and

8

threats after the second abortion, but those incidents were not

mentioned in his asylum petition, or in the letter that his wife

submitted in support of it. The IJ viewed that as a “serious

omission . . . central to [Lin-Zheng’s] claim.” The IJ reasoned

that, “[h]ad this event occurred it is extremely unrealistic that

[Lin-Zheng] would not have included such information in his

application and his wife would not have included such

information in her letter.”

The IJ was also troubled by the fact that Lin-Zheng’s

asylum application mentioned nothing about a second IUD

being inserted in 2004 after his wife underwent a forced

abortion, although he testified about that incident at the hearing.

The omission was all the more suspect because Lin-Zheng’s

wife also failed to mention it in her letter. The IJ reasoned:

The omission cannot be taken lightly in light of

the fact that she made reference to an IUD

insertion in 1991. It is inconceivable that she

would mention an IUD insertion in 1991 and

fail to mention the most recent insertion of an

IUD in 2004.

9

The IJ also characterized Lin-Zheng’s testimony on

cross-examination as “somewhat delirious” and “incoherent.”

Lin-Zheng “was not able to provide the specifics requested by

the Court and counsel for the government[,]” and the IJ

concluded that Lin-Zheng was “making up new stories” as he

went along. The IJ explained: “once [Lin-Zheng] was taken

outside the script [his] testimony was clearly disjointed and [he]

could not explain matters and rather than explaining he kept

adding, . . .unfortunately to his detriment.”

The IJ was also troubled by Lin-Zheng’s testimony about

the population control measures in his region because it was

inconsistent with background materials that said there was no

evidence of forced abortions in the region of China where he

and his wife lived.

C. The BIA’s Decision.

On appeal, the BIA was also troubled by discrepancies

between Lin-Zheng’s testimony before the IJ and assertions in

10

his asylum petition. The BIA noted that Lin-Zheng’s petition

made no mention of visits by birth control cadres in the months

following the abortion, or threats of arrest and forced

sterilization. In the BIA’s view:

the omission itself is so substantial that if it

were credible, it could form the basis of an

asylum application. See 8 U.S.C.

1101(a)(42) (providing the definition of a

refugee which includes persons who have a

well-founded fear that they will be forced to

undergo sterilization). In other words, the

omission is directly related to threats and

pursuits of persecution made against [Lin-

Zheng]. Hence, we cannot characterize the

omission as minor or, in this instance,

excusable. The respondent also changed his

testimony as to where he was residing in the

last months of 2004, at first saying he lived

at his own household [], but then saying he

was sometimes hiding elsewhere, after he

had testified to his own sterilization threat [].

Consequently, we do not find that the

Immigration Judge’s adverse credibility

finding is clearly erroneous and we agree

that the respondent did not meet his burden

of proof for asylum.

This petition for review followed.

II. Legal Background.

11

The Immigration and Nationality Act (“INA” or “Act”)

gives the Attorney General discretionary authority to grant

asylum to an alien who qualifies as a “refugee.” Originally, the

Act defined “refugee” as:

(A) any person who is outside any country of such

person’s nationality or, in the case of a person

having no nationality, is outside any country in

which such person last habitually resided, and

who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of

the protection of, that 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).

In 1996, Congress enacted the Illegal Immigration

Reform and Immigrant Responsibility Act (“IIRIRA”). Section

601(a) of IIRIRA added the following language at the end of 8

U.S.C. § 1101(a)(42):

For purposes of determinations under this chapter,

a person who has been forced to abort a

pregnancy or to undergo involuntary sterilization,

or who has been persecuted for failure or refusal

12

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).3

Congress enacted § 601(a) for the express purpose of

overturning the BIA’s decision in Matter of Chang, 20 I. & N.

Dec. 38 (B.I.A 1989). See H.R. Rep. No. 104-469 (I), at 173

(1996) (“The primary intent of [this section] is to overturn

several decisions of the [BIA], principally Matter of Chang and

Matter of G-.”). In Matter of Chang, the petitioner had

requested asylum based upon his fear that he would be forcibly

sterilized if returned to China. In affirming the IJ’s rejection of

his claim, the BIA explained:

We cannot find that implementation of the “one

3

Unless otherwise indicated, we will refer to this

amendment as “§ 601(a).”

13

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.” . . . To the extent . .

. that such a policy is solely tied to controlling

population, rather than as a guise for acting

against people for reasons protected by the Act,

we cannot find that persons who do not wish to

have the policy applied to them are victims of

persecution or have a well-founded fear of

persecution within the present scope of the Act.

20 I. & N. Dec. at 44.

The BIA had an opportunity to apply the newly expanded

definition of “refugee” in Matter of C-Y-Z-, 21 I. & N. Dec. 915

(BIA 1997) (en banc). There, an alien, whose wife and three

children had remained in China, petitioned for asylum arguing

that “he was persecuted in China on account of his opposition to

China’s birth control policies.” Id. at 916. According to the

petitioner, the persecution consisted of his wife being sterilized

against her will after the birth of their third child. The IJ

rejected the claim explaining: “‘(i)n effect, the applicant seeks

to ride on his wife’s coattails or claim asylum because of alleged

14

adverse factors to his wife, including forced sterilization. He,

himself, has never been persecuted and he cannot show either

past persecution or a reasonable fear of future persecution.’” Id.

at 916 (quoting the IJ’s decision) (alteration in C-Y-Z-).

On appeal, the BIA acknowledged that the IJ’s decision

was consistent with Matter of Chang. However, the Board

noted that “subsequent to the Immigration Judge’s decision, the

law was amended to specifically address coercive family

planning practices in the context of applications for asylum, and

Matter of Chang, has been superseded . . . .” The Immigration

and Naturalization Service (“INS”) 4 actually agreed with the

petitioner before the BIA and took the position that “past

4

On March 1, 2003, the functions of the INS were

transferred from the Department of Justice to three different

agencies (Immigration and Customs Enforcement, Customs

and Border Protection, and Citizenship and Immigration

Services) in the newly formed Department of Homeland

Security. See Homeland Security Act of 2002, Pub. L. No.

107-296, 116 Stat. 2135. The immigration courts and the BIA

remain within the Department of Justice under the direction of

the Attorney General.

15

persecution of one spouse can be established by coerced

abortion or sterilization of the other spouse.” 5 Id. at 917.

Accordingly, the Board held that “the applicant in this case has

established eligibility for asylum by virtue of his wife’s forced

sterilization.” Id. at 918.6 Given the lack of opposition to the

merits of the claim, the Board was able to reach that conclusion

without any explanation, examination of statutory text, or

inquiry into congressional intent. See id. at 919 (“In view of the

enactment of section 601(a) of the IIRIRA and the agreement of

the parties that forced sterilization of one spouse on account of

a ground protected under the Act is an act of persecution against

the other spouse, the applicant has established past

persecution.”).

5

The INS did oppose the C-Y-Z- petitioner’s asylum

application based on credibility and evidentiary concerns.

6

The Board rejected the INS’ “assertion that an alien who

has established past persecution” based on coercive family

planning procedures was subject to any additional burden,

such as proving that the procedure amounted to an “atrocious

form” of persecution. Id. at 919.

16

Thereafter, the Courts of Appeals that were called upon

to interpret § 601(a) initially accepted the holding in C-Y-Z-.

However, until recently the “C-Y-Z- rule” was not contested by

the government. See, e.g., Lin-Jian v. Gonzales, 489 F.3d 182,

188 (4th Cir. 2007) (“The BIA interprets this provision to cover

the spouse of a person subjected to a forced abortion or

sterilization, [], and the government does not challenge this

interpretation.”) (citing C-Y-Z-); Cao v.Gonzales, 442 F.3d 657,

660 (8th Cir. 2006) (“In a case where forced sterilization and/or

abortion is the basis of a male petitioner's claim, we allow him

to stand in the shoes of his wife in claiming persecution.”)

(citing C-Y-Z-); Zhang v. Gonzales, 434 F.3d 993, 1001 (7th Cir.

2006) (accepting the C-Y-Z- holding without discussion and

rejecting the government’s position that subsequent break-up of

the marriage nullifies spouse’s status based on wife’s

persecution); He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003)

(accepting the C-Y-Z- rule without discussion and then reversing

17

adverse credibility finding); see also Zhang v. I.N.S., 386 F.3d

66, 73 (2d Cir. 2004) (“However difficult the problems of

identifying legitimate spousal persecution claims, we are obliged

to defer to the BIA’s interpretation of § 1101(a)(42).”),

overruled by Lin, 494 F.3d 296.7

In 2006, in a case remanded from the Court of Appeals

for the Second Circuit, the BIA reaffirmed the rule of C-Y-Z-.8

Matter of S-L-L-, 24 I. & N. Dec. 1 (BIA 2006). By then,

7

As noted at the outset, we initially accepted the Board’s

interpretation of IIRIRA § 601(a) also. See Sun Wen Chen,

491 F.3d at 103; Cai Luan Chen v. Ashcroft, 381 F.3d 221,

227 (3d Cir. 2004) (“[I]f C-Y-Z-’s interpretation is permissible

(and we assume for the sake of argument that it is), the

distinction that the BIA has drawn between married and

unmarried couples satisfies step two of Chevron.”).

8

The matter was remanded to the BIA with a request that

the BIA explain its rationale for the C-Y-Z- rule. Lin v. U.S.

Dep’t of Justice, 416 F.3d 184, 192 (2d Cir. 2005)

(“[B]ecause the BIA has never adequately explained its

rationale for establishing spousal eligibility under IIRIRA §

601(a), we cannot reasonably determine the status of

boyfriend and fiancé eligibility under IIRIRA § 601(a).”)

(emphasis in original).

18

however, the Department of Homeland Security (“DHS”) had

reversed the prior position of the INS and “request[ed] that [the

Board] replace the spousal eligibility rule adopted in Matter of

C-Y-Z- . . . with a case-by-case approach grounded in the ‘other

resistance’ clause of section 101(a)(42) of the Act.” Id. at 3. In

response, the Board opined that “[t]here is no clear or obvious

answer to the scope of protections afforded by the [IIRIRA]

amendment to partners of persons forced to submit to an

abortion or sterilization.” Id. at 4. The Board then applied what

it described as: “general principles requiring nexus and level of

harm[,]” and concluded that “[w]hen the government intervenes

in the private affairs of a married couple to force an abortion or

sterilization, it persecutes the married couple as an entity.” Id.

at 5-6. However, the Board ultimately relied upon nothing more

than its own view of the impact of coercive family planning

measures on the marital relationship and affirmed the rule of C-

Y-Z-. Accordingly, the Board held that the broadened definition

19

of “refugee” set forth in § 601(a) “protect[s] both spouses.” Id.

at 6.

Soon thereafter, we decided Sun Wen Chen. A divided

panel of this court held that the Board’s “spousal eligibility” rule

(as articulated in C-Y-Z- and S-L-L-) was entitled to Chevron

deference because the majority perceived an ambiguity in §

601(a). 9 491 F 3d. at 107 (“[N]othing in the statute evince[s]

9

See Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). Under our familiar

Chevron analysis:

[I]n reviewing an agency’s construction of a

statute administered by the agency, the court

asks first if the statute is silent or ambiguous

with respect to the specific issue of law in the

case, using traditional tools of statutory

construction to determine whether Congress had

an intention on the precise question at issue. If

Congress’s intention is not evident, the court

moves to the second step, where the question

for the court is whether the agency’s answer is

based on a permissible construction of the

statute. When Congress has left a gap in a

statute, implicitly leaving the administering

agency responsible for filling that gap, a court

may not substitute its own construction of a

statutory provision for a reasonable

20

Congressional intent to establish a particular policy regarding

spousal eligibility.”). The majority then concluded that the

Board’s interpretation was a permissible construction of the

statute and thus entitled to deference. In the majority’s view, it

was not unreasonable for the Board to conclude that “the scope

of the harm resulting from the enforcement of a population-

control policy by forced abortion and involuntary sterilization

extends to both spouses.” Id. at 108.

The dissent argued that the majority had erred in applying

Chevron, because § 601(a) is not ambiguous. In the dissent’s

view, congressional intent could readily be determined from the

text of the statute, and therefore there was no need to defer to

the agency’s construction of the statute. Rather, in the dissent’s

interpretation made by the administrator of an

agency.

Augustin v. Attorney General, 520 F.3d 264 (3d Cir. 2008)

(citations and internal quotation marks omitted). Chevron is

discussed more thoroughly in Section III, below.

21

view, § 601(a) “unambiguously broaden[ed] the definition of

‘refugee’ to include ‘a person who has been forced to abort a

pregnancy or to undergo involuntary sterilization[.]” The dissent

argued that “the omission of any reference to a ‘spouse’ [was

not] accidental or insignificant.” Id. at 114 (McKee, J.

dissenting) (emphasis in original). Thus, the dissent concluded

that analysis should begin and end with the text of the statute

because there was no textual “gap” for an agency interpretation

to fill. Id. Moreover, even assuming the statute contained some

latent ambiguity, the dissent believed that the Board’s

interpretation of § 601(a) would still not be entitled to deference

because it was not a reasonable interpretation of the statute. Id.

at 114-19.

Not long after the panel decided Chen, the en banc Court

of Appeals for the Second Circuit reviewed the Board’s decision

in S-L-L- as well as that court’s own precedent. In Shi Liang Lin

v. United States Department of Justice, 494 F.3d 296 (2d Cir.

22

2007) (en banc), the en banc court rejected the Board’s

interpretation of § 601(a), agreeing instead with the dissent in

Chen. In denying Shi Liang’s petition for review, the Court of

Appeals for the Second Circuit held that § 601(a) clearly and

unambiguously states congressional intent to limit refugee status

to one who is actually subjected to the coercive family planning

procedure. Id. at 304.10 The court noted that the amendment

repeatedly refers to “a person” who has been victimized, and

concluded that, “[u]nder the language used by Congress, having

someone else, such as one’s spouse, undergo a forced procedure

does not suffice to qualify an individual for refugee status.” Id.

at 305-06. The court thus held that “the statutory scheme

unambiguously dictates that applicants can become candidates

for asylum relief only based on persecution that they themselves

10

As we shall explain, an alien who is not actually

subjected to coercive family planning policies can still

establish refugee status if he was actually persecuted for

opposing those policies or has a well-founded fear of being

subjected to such persecution.

23

have suffered or must suffer.” Id. at 308.

The Attorney General has recently released a new

opinion overruling the Board’s C-Y-Z-/S-L-L- interpretation.

See Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). Although

we note this development for the sake of thoroughness, it is not

relevant to our analysis. As explained below, given the

unambiguous text of § 601(a), our inquiry into congressional

intent must begin and end with the statutory text.

It is against this background that we granted en banc

consideration of Lin-Zheng’s petition for review.

III. Our Standard of Review.

The Board’s view of spousal asylum under § 601(a) is a

legal conclusion which we review de novo. See, e.g., Yusupov

v. Attorney General, 518 F.3d 185, 197 (3d Cir. 2008). Since

we are called upon to interpret a statute that is within the scope

of an agency’s rulemaking and lawmaking authority, our inquiry

implicates the principles set forth in Chevron U.S.A., Inc. v.

24

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

See I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999)

(“principles of Chevron deference” apply to the INA).

As noted earlier, under Chevron, we must first determine

“if the statute is silent or ambiguous with respect to the specific

issue of law in the case, using traditional tools of statutory

construction to determine whether Congress had an intention on

the precise question at issue.” Augustin, 520 F.3d at 268

(internal quotation marks omitted). If congressional intent is

clear, “the inquiry ends, as both the agency and the court must

give effect to the plain language of the statute.” Yusupov, 518

F.3d at 197. Where, however, a “statute is silent or ambiguous

with respect to the specific issue, the court proceeds to step two,

where it inquires whether the agency’s answer is based on a

permissible construction of the statute.” Id. at 198 (internal

quotation marks omitted).

We review factual findings of the Board under the

25

“substantial evidence” standard. See INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992); Guo v. Ashcroft, 386 F.3d 556, 561 (3d

Cir. 2004). A factual determination will be upheld if it is

“supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” Elias-Zacarias, 502 U.S. at

481 (citation omitted). “Adverse credibility determinations are

factual matters and are also reviewed under the substantial

evidence standard.” Guo, 386 F.3d at 561. The Board’s adverse

credibility determination must be upheld on review unless “‘any

reasonable adjudicator would be compelled to conclude to the

contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

IV. The Meaning of IIRIRA § 601(a).

As noted earlier, in enacting IIRIRA § 601(a), Congress

broadened the definition of “refugee” to include “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

26

population control program,” as well as “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.” 8 U.S.C. § 1101(a)(42). We must determine if

Congress intended to include spouses such as Lin-Zheng within

this broadened definition of “refugee.”

A basic tenet of statutory construction is that we “must

begin with . . . the assumption that the ordinary meaning of

[statutory] language accurately expresses the legislative

purpose.” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S.

189, 194 (1985); see also Flora v. United States, 357 U.S. 63,

65 (1958) (“In matters of statutory construction, the duty of this

Court is to give effect to the intent of Congress, and in doing so

our first reference is of course to the literal meaning of the

words employed.”) In ordinary usage, “person” is defined as

“an individual human being.” Webster’s Third New Int’l

Dictionary (1986); see also Black’s Law Dictionary (8th ed.

27

2004) (defining “person” as “a human being”). “Undergo”

means “to submit to” or “to go through.” Webster’s, supra.

Thus, there is no room for us to conclude that Congress intended

to extend refugee status to anyone other than the individual who

has either been forced to submit to an involuntary abortion or

sterilization, has been persecuted for failure or refusal to

undergo such a procedure, or has a well-founded fear of that

occurring in the future.11 Had Congress wished to extend

protection to that person’s spouse, it could easily have defined

“refugee” to include the person persecuted as well as his or her

spouse. See Sun Wen Chen, 491 F.3d at 113. (McKee, J.,

dissenting). (“Congress could have easily drafted this provision

11

In Cai Luan Chen, we noted in dicta that a contrary

interpretation “is not without difficulties.” 381 F.3d at 225.

There, we discussed the spousal eligibility rule of C-Y-Z-, and

possible justifications for it. However, we did not need to

interpret § 601(a). Rather, we simply noted that the Board’s

justification for the rule could be “the assumption that the

persecution of one spouse by means of a forced abortion or

sterilization causes the other spouse to experience intense

sympathetic suffering that rises to the level of persecution.”

Id.

28

to extend to ‘married couples who have been subjected to a

forced abortion or involuntary sterilization.’”). However,

Congress did not include anyone other than the “person” who is

actually subjected to coercive family planning policies, and

neither this court, nor the BIA, can amend the statute by

broadening the meaning of “refugee” beyond the parameters of

the statutory text. See id. at 107 (majority opinion) (“[A]

statute’s silence on a given issue does not confer gap-filling

power on an agency unless the question is in fact a gap - an

ambiguity tied up with the provisions of the statute.”). Yet,

since 1997, the C-Y-Z- spousal eligibility rule has resulted in

refugee status being conferred on persons who were never faced

with forced sterilization or abortion, and could not claim a well-

founded fear of being forcibly subjected to those procedures in

the future.

As the court concluded in Lin, the statute “could not be

more clear in its reference to ‘a person,’ rather than ‘a couple’”

29

and “cannot be read reasonably to cover an individual’s fears

arising from a coercive procedure performed on someone else.”

494 F.3d at 305-06; see also id. at 308 (“[W]e conclude that the

statutory scheme unambiguously dictates that applicants can

become candidates for asylum relief only based on persecution

that they themselves have suffered or must suffer.”); Sun Wen

Chen, 419 F.3d at 113 (McKee, J., dissenting) (“[o]ne need look

only to the words Congress used in the statute to conclude that

§ 1101(a)(42) . . . applies to ‘a person who’ [meets the criteria

outlined in the provision]”). Moreover, as also noted in Lin, the

use of the pronouns “‘he’ and ‘she’ reinforces the intention of

Congress to limit the application of the clause to individuals

who are themselves physically forced to undergo an abortion or

sterilization.” 494 F.3d at 306.

When the BIA established the spousal eligibility rule of

C-Y-Z-, the agency noted that § 601(a) does not mention

spouses. However, the BIA concluded that the omission was

30

not dispositive. See S-L-L-, 24 I. & N. Dec at 5. The Board

reasoned:

The lack of such a reference, . . . does not

necessarily preclude an applicant from

demonstrating past persecution based on harm

inflicted on a spouse when both spouses are

harmed by government acts motivated by a

couple's shared protected characteristic. For

example, putting aside the amendment for a

moment, if a government, as part of a campaign

of persecution against members of a particular

religious group, subjected married couples within

that religious group to a policy of mandatory

sterilization, the government's sterilization of

either party to the marriage harms both

individuals and is on account of the religion of

both.

Id. (Emphasis added) Thus, while interpreting § 601(a), the

BIA “put aside” the very statutory text that should have

controlled its inquiry into congressional intent.

We conclude that § 601(a) is clear and unambiguous. We

must therefore “give effect to the plain language of the statute.”

Yusupov, 518 F.3d at 197. Accordingly, we now overrule the

holding in Sun Wen Chen, and instead adopt the analysis of the

31

Court of Appeals for the Second Circuit in Lin.

Before concluding our discussion, we think it important

to emphasize that spouses of individuals subjected to coercive

family planning obviously remain eligible for derivative asylum

under 8 U.S.C. § 1158(b)(3)(A). That provision of the Act

generally confers eligibility for asylum on “[a] spouse or child

of an alien who is granted asylum under this subsection” where

the spouse or child is “ accompanying, or following to join, [the

alien with the primary asylum claim].” 8 U.S.C. §

1158(b)(3)(A).

Spouses also remain eligible for relief in their own right

under the specific language of § 1101(a)(42), provided they

qualify as a refugee based upon their own “persecution.” For

example, the “other resistance” clause of § 1101(a)(42) confers

refugee status on “[a] person . . . who has been persecuted . . .

for other resistance to a coercive population control program .

. . [or] has a well-founded fear that he or she will be . . . subject

32

to persecution for such . . . resistance.” Thus, an applicant can

claim refugee status if he/she can demonstrate actual persecution

for resisting a country’s coercive family planning policy, or a

well-founded fear of future persecution for doing so.

V. Conclusion

For the reasons set forth above, we will deny Lin-

Zheng’s petition for review to the extent it is based on

allegations of his wife’s forced abortion and/or the forced

insertion of an IUD. That testimony fails as a matter of law

because, even if credible, it does not establish eligibility for

asylum under § 1101(a)(42), as amended by § 601(a) of IIRIRA.

We realize that Lin-Zheng also testified about his own

harassment by family planning authorities. That testimony

could, under some circumstances, form the basis of an

independent asylum claim. Here, however, there is substantial

evidence on the record to support the Board’s adverse credibility

determination with regard to this portion of Lin-Zheng’s

33

testimony. Cao v. Attorney General, 407 F.3d 146, 152 (3d Cir.

2005). Accordingly, we find it unnecessary to remand this

matter for any further proceedings to consider that basis for

relief.

34