Y-T-L

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

In re Y-T-L-, Respondent

Decided May 22, 2003

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Where an alien has established past persecution based on the forced sterilization of his

spouse pursuant to a policy of coercive family planning, the fact that, owing to such

sterilization, the alien and his spouse face no further threat of forced sterilization or abortion

does not constitute a “fundamental change” in circumstances sufficient to meet the standards

for a discretionary denial under 8 C.F.R. § 1208.13(b)(1)(i)(A).

FOR RESPONDENT: Wai-Sim Cheung, Esquire, New York, New York

FOR THE IMMIGRATION AND NATURALIZATION SERVICE:1 John P. Marley,

Assistant District Counsel

BEFORE: Board En Banc: HOLMES, Acting Vice Chairman; HURWITZ, COLE,

GUENDELSBERGER, GRANT, MOSCATO, MILLER, BRENNAN, OSUNA,

and HESS, Board Members. Dissenting Opinions: FILPPU, Board Member,

joined by SCIALABBA, Chairman; PAULEY, Board Member.

GRANT, Board Member:

In a decision dated July 10, 2001, an Immigration Judge found the

respondent removable and denied his requests for asylum, withholding of

removal, and relief under Article 3 of the Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and

opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp.

No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,

1987; for the United States Apr. 18, 1988) (“Convention Against Torture”).

The respondent has appealed from that decision. The appeal will be

sustained.

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a native and citizen of the People’s Republic of China,

who entered the United States in 1993 without valid entry documents. He is

married and has three children. His family remains in China.

1

We note that the functions of the Immigration and Naturalization Service have been

transferred to the Department of Homeland Security pursuant to the Homeland Security Act

of 2002, Pub. L. No. 107-296, 116 Stat. 2135.

601

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

The respondent testified that the Chinese Government imposed a large fine

after the birth of his second child and that he was only able to pay the fine

with the assistance of his younger brother, who helped him borrow money.

He indicated that his wife was forced to have an intrauterine device (“IUD”)

inserted after the birth of their second child. However, she was

simultaneously informed that she soon would have to undergo sterilization.

In February 1985 they paid to have the IUD removed in secret, because they

wanted additional children. The respondent’s third child, a son, was born in

December 1985. His wife was taken for sterilization in March 1986, and a

substantial fine was imposed in April 1986.

Although the respondent and his wife were allowed to register their son in

the household registry after the payment of the fine, they were not allowed to

register him in school. He could attend school, but only with the payment of

very high tuition. Their two daughters were suspended from school for one

semester. The Government also confiscated land assigned to the family, from

which they earned their livelihood by farming. They survived by borrowing

money from friends and relatives to live and pay the fines, and eventually the

respondent was employed in a relative’s store.

According to the respondent, every time the Government had a birth control

campaign they asked him and his wife to attend the study class, and they

actually used his family as a “bad example” to educate other people. The

respondent made plans to leave China in 1986 and made two unsuccessful

attempts in the late 1980s to obtain governmental approval for a passport. He

eventually left in 1993 with the aid of a smuggler and his relatives, who

pooled their money to help him leave.

In his decision, the Immigration Judge accepted the respondent’s testimony

as credible, finding that he is married, that he and his wife have three children,

and that his wife was subjected to involuntary sterilization pursuant to a

coercive population control program. The Immigration Judge concluded that

these facts established past persecution under section 101(a)(42) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), and Matter

of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997).

The Immigration Judge noted, however, that the Immigration and

Naturalization Service (“Service,” now the Department of Homeland Security,

DHS) could rebut the presumption of a well-founded fear of future

persecution resulting from this showing of past persecution by establishing a

fundamental change in circumstances.2 In this regard he observed that the

2

In making this observation, the Immigration Judge apparently relied on 8 C.F.R.

§ 208.13(b)(1)(i)(A) (2001). As a result of the transfer of the functions of the Immigration and

Naturalization Service to the Department of Homeland Security, the regulations in chapter I

of the Code of Federal Regulations were transferred or duplicated to a new chapter V, and this

regulation is now codified at 8 C.F.R. § 1208.13(b)(1)(i)(A). See Aliens and Nationality;

(continued...)

602

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

respondent remained in China for more than 7 years after his wife was

sterilized, and he found no evidence that “anything significant has happened

to either the respondent or his family in China” subsequent to his wife’s

sterilization and the payment of fines in 1986. He concluded that “with the

passage of time and the lack of evidence of any further persecution,” the

Service met its burden of proving by a preponderance of the evidence that

there had been a fundamental change in circumstances such that the

respondent no longer has a well-founded fear of persecution. The

Immigration Judge therefore denied the respondent’s applications for asylum,

withholding of removal, and relief under the Convention Against Torture.

II. ISSUE

The sole issue on appeal is whether the Service has established a

fundamental change in circumstances under 8 C.F.R. § 1208.13(b)(1)(i)(A),

such that the respondent no longer has a well-founded fear of persecution in

China.

III. STATUTORY AND CASE LAW

Section 101(a)(42) of the Act was amended by section 601(a)(1) of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-689

(“IIRIRA”). Pursuant to that amendment, the definition of a “refugee”

specifically includes the following:

For purposes of determinations under this Act, 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.

Section 101(a)(42) of the Act (emphasis added).

We have held that this statutory amendment superseded prior

administrative interpretations holding that coerced abortions and sterilizations

do not constitute persecution on account of a protected ground. See Matter

of X-P-T-, 21 I&N Dec. 634 (BIA 1996) (holding that an alien who was

forced to undergo an abortion or sterilization procedure can establish

persecution on account of political opinion); see also Matter of C-Y-Z-, supra

2

(...continued)

Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824, 9834 (Feb. 28, 2003),

2003 WL 553495. References in this decision to the current version of the regulations will

therefore be cited according to their new designation.

603

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

(holding that the refugee definition can include an individual whose spouse

was forced to undergo such a procedure).

IV. REGULATORY PRESUMPTION AND CONDITIONS

FOR REBUTTAL

In Matter of C-Y-Z-, supra, we found that the applicant had suffered past

persecution because his wife was forced to undergo an involuntary

sterilization, and we noted the resulting regulatory presumption that the

applicant had a well-founded fear of future persecution. The regulation at

issue in Matter of C-Y-Z- provided in relevant part:

If it is determined that the applicant has established past persecution, he shall be

presumed also to have a well-founded fear of persecution unless a preponderance of the

evidence establishes that since the time the persecution occurred conditions in the

applicant’s country of nationality or last habitual residence have changed to such an extent

that the applicant no longer has a well-founded fear of being persecuted if he were to

return.

8 C.F.R. § 208.13(b)(1)(i) (1997).

Based on this language, we determined that the regulatory presumption

could be rebutted only by a showing that conditions in the applicant’s country

had changed to such an extent that the applicant no longer had a well-founded

fear of persecution if returned to his home country. Matter of C-Y-Z-, supra,

at 919. We noted that the Service had not presented any evidence of such

changed conditions. We also rejected the Service’s argument that a spouse

who has established past persecution in this manner bears the further burden

of “demonstrating that the involuntary sterilization was carried out in such a

way as to amount to an ‘atrocious form’ of persecution.” Id.3

The regulation at issue in Matter of C-Y-Z-, supra, however, along with the

regulation governing the effect of past persecution on an application for

withholding of removal, was amended through the publication of a final rule,

which became effective on January 5, 2001. See Asylum Procedures,

65 Fed. Reg. 76,121, 76,133 (Dec. 6, 2000), 2000 WL 1780075. The final

rule amended 8 C.F.R. § 208.13(b)(1) to provide, in pertinent part, as

follows:

An applicant who has been found to have established such past persecution shall also be

presumed to have a well-founded fear of persecution on the basis of the original claim.

That presumption may be rebutted if an asylum officer or immigration judge makes one of

the [following] findings . . . .

3

This argument was based on a memorandum from the Service General Counsel asserting

that the “atrocious” standard must be met if the applicant “does not have a well-founded fear

of future persecution.” Matter of C-Y-Z-, supra, at 918. The Service argument in C-Y-Z-,

therefore, implied that a respondent in the position presented in this case does not have a well-

founded fear. Since the Service offered no evidence of changed country conditions, see id.

at 919, its position in C-Y-Z- appears to be consistent with its position here: that the act of

sterilization obviates the possibility of future persecution along these lines.

604

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

(i) Discretionary referral or denial. [A]n immigration judge, in the exercise of his or

her discretion, shall deny the asylum application of an alien found to be a refugee on the

basis of past persecution if any of the following is found by a preponderance of the

evidence:

(A) There has been a fundamental change in circumstances such that the applicant no

longer has a well-founded fear of persecution in the applicant’s country of nationality, or

if stateless, in the applicant’s country of last habitual residence, on account of race, religion,

nationality, membership in a particular social group, or political opinion . . . .

(ii) Burden of proof. In cases in which an applicant has demonstrated past persecution

under paragraph (b)(1) of this section, the Service shall bear the burden of establishing by

a preponderance of the evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this

section.

The supplementary information that accompanied the publication of the

amendments to the regulations describes the intended meaning of the new

regulatory language. It provides as follows:

In §§ 208.13(b)(1)(i)(A) and 208.16(b)(1)(i)(A), the regulatory language for overcoming the

presumption of a well-founded fear of persecution and a threat to the applicant’s life or

freedom because of past persecution is changed to state that the Service must show a

“fundamental change in circumstances” in order to overcome the presumption. . . . By

adopting that language rather than that requiring a showing of changed country conditions

to overcome the presumption, other changes in the circumstances surrounding the asylum

claim, including a fundamental change in personal circumstances, may be considered,

so long as those changes are fundamental in nature and go to the basis of the fear of

persecution.

65 Fed. Reg. at 76,127 (emphasis added).

V. ANALYSIS

We disagree with the Immigration Judge that the passage of time since the

forced sterilization of the respondent’s wife, coupled with the lack of

enforcement of coercive family planning measures during that period,

constitutes a “fundamental change” in the respondent’s personal

circumstances which, when considered in light of the 1996 amendments to

section 101(a)(42) of the Act, is sufficient to meet the Service’s burden under

8 C.F.R. § 1208.13(b)(1)(ii). The Immigration Judge’s conclusion fails to

take into account the continuing nature of the persecution inflicted on the

respondent and his wife. Moreover, the principal reason that the respondent

and his wife no longer fear a coerced sterilization or abortion, or future fines

for “over-birth,” is the fact that they have been rendered incapable of having

children. Thus, the Immigration Judge’s rationale could lead to the

anomalous result that the act of persecution itself would also constitute the

change in circumstances that would result in the denial of asylum to persons

such as the respondent. It is highly unlikely that Congress contemplated such

an interpretation when it deemed forced involuntary sterilization to be

persecution on account of political opinion.

We recognize that the Immigration Judge premised his finding of changed

circumstances primarily on the passage of time, and not on the act of

sterilization itself. The logic of his analysis, which is amplified by the

605

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

dissenting opinion of Board Member Filppu, is that persecution in this context

must be addressed in a prospective fashion. As noted by the dissent, this

prospective view is not only unobjectionable, but is a bedrock principle of

refugee law, codified in the redrafted provisions of 8 C.F.R. § 1208.13(b)(1).

In this particular context, however, a purely prospective view, focusing on a

well-founded fear of persecution in the future, would appear to limit relief

under the amended refugee definition to those cases where involuntary

sterilization has been threatened, but not carried out. While the dissent

suggests that the finding of “changed circumstances” might not occur in cases

where the involuntary sterilization has been carried out more recently, the fact

remains that a completed sterilization removes any reasonable, objective

basis on which to fear a future act of coerced abortion or sterilization. Fines

for family planning violations could still be imposed, but our decisions in this

area suggest that such fines rarely rise to the level of persecution.

To some extent, therefore, this case presents a dilemma. The respondent

has, without question, sustained past persecution, which makes him eligible

for asylum under the amended statute and our decisions in Matter of X-P-T-,

supra, and Matter of C-Y-Z-, supra. On the other hand, the respondent has

no reasonable basis to fear this form of persecution in the future, based on the

very fact that he has already been persecuted. The keys to resolving this

dilemma are to recognize the special nature of the persecution at issue here,

and to give full force to the intent of Congress in extending asylum to those

who have sustained such persecution. We consider these issues in reverse

order.

First, our application of 8 C.F.R. § 1208.13(b)(1)(i)(A) must take into

account the mandates of Congress with regard to this specific factual

scenario. It is manifestly clear that Congress intended to make eligible for

asylum those who were victims of China’s coercive family planning policy,

not simply those who could be victims if returned to China. See, e.g.,

142 Cong. Rec. H2629, H2633 (daily ed. Mar. 21, 1996) (statement of Rep.

Christopher Smith). Our administrative decisions, and those of the various

Immigration Courts, have granted asylum to significant numbers of persons

who themselves, or whose spouses, have suffered involuntary sterilization

within the meaning of the Act.

It is equally clear that our treatment of claims of this type, both before and

after the enactment of the 1996 amendments, has been a well-recognized issue

of asylum law. At the time 8 C.F.R. § 208.13(b)(1)(i) was amended in 2000,

the amendment made to the Act by section 601(a) of the IIRIRA was well in

place, and hundreds if not thousands of applicants, including many in a

position comparable to this respondent, had been granted relief under its

provisions. Were it the intention of the Attorney General to compel a

different paradigm for deciding such cases, based on the theory that past

sterilization constituted a “fundamental change in circumstances” that could

preclude the granting of asylum, we expect that the regulation, or the

supplementary information accompanying it, would have so stated. However,

nowhere in these materials is there any discussion of, or expression of

606

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

dissatisfaction with, the adjudication of such claims in the Immigration Courts

or before this Board.

Second, in light of Congress’s specific intent regarding the eligibility for

asylum of past victims of coercive family planning practices, we cannot

conclude that such an act of persecution can constitute a “change in

circumstances” for purposes of the regulation. The act of forced sterilization

should not be viewed as a discrete, onetime act, comparable to a term in

prison, or an incident of severe beating or even torture. Coerced sterilization

is better viewed as a permanent and continuing act of persecution that has

deprived a couple of the natural fruits of conjugal life, and the society and

comfort of the child or children that might eventually have been born to them.

In the long course of administrative rulings, Presidential directives, proposed

regulations, and congressional action that has marked the consideration of

asylum claims based on coerced sterilization, the profound and permanent

nature of such harm has rarely, if ever, been called into question. 4 The

principal issue of contention, rather, was whether such harm was on account

of a ground protected under the Act. See Matter of G-, 20 I&N Dec. 764

(BIA 1993); Matter of Chang, 20 I&N Dec. 38 (BIA 1989). Congress has

definitively answered that question and done so in such a way that, in our

view, precludes the result urged by the Service.

Finally, while this issue is not before us, it is fair to assume that if the

respondent’s spouse was subjected to a forced abortion, as opposed to a

forced sterilization, the possibility of the spouse becoming pregnant and being

subject to another forced abortion would preclude the argument that the

forced abortion constitutes a “fundamental change” in circumstances for

purposes of the regulation. We do not believe that it would be consistent

with the intent of Congress for us to grant asylum to those subjected to a

forced abortion, while denying relief to those subjected to a forced

sterilization, simply because only the former act of persecution is one capable

of repetition.

VI. CONCLUSION

In view of the foregoing, we find that the respondent has established

statutory eligibility for asylum on account of past persecution and that the

4

See IIRIRA § 601(a)(1), 110 Stat. at 3009-689 (amending the definition of a “refugee”);

Matter of G-, 20 I&N Dec. 764 (BIA 1993); Matter of Chang, 20 I&N Dec. 38 (BIA 1989);

Exec. Order No. 12,711, 55 Fed. Reg. 13,897-98 (Apr. 13, 1990), 1990 WL 385033 (issued

on April 11, 1990, directing the Secretary of State and the Attorney General to give enhanced

consideration to the asylum and withholding claims of individuals who express a fear of

persecution related to a policy of forced abortion or coerced sterilization); 8 C.F.R.

§ 208.13(b)(1)(i)(1997); Refugee Status, Withholding of Deportation, and Asylum; Burden of

Proof, 55 Fed. Reg. 2803 (Jan. 29, 1990), 1990 WL 343903 (interim regulations promulgated

by the Attorney General, which were never finalized); Continued Viability of the Doctrine of

Imputed Political Opinion, 93 Op. Gen. Counsel 1 (Jan. 19, 1993) (legal opinion of the General

Counsel of the Service, essentially finalizing the January 1990 interim rules that had previously

been superseded).

607

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

regulatory presumption of a well-founded fear of persecution arising from

such past persecution has not been rebutted. Moreover, the facts cited are

sufficient to support a conditional grant of asylum in the exercise of

discretion. We further find that the respondent is eligible for withholding

of removal. Because of our favorable disposition of the respondent’s claims

for asylum and withholding of removal, we need not address his eligibility for

relief under the Convention Against Torture. Accordingly, the appeal will be

sustained and the respondent’s request for asylum and withholding of removal

will be granted.

ORDER: The appeal is sustained. The respondent’s request for asylum

is granted, conditioned upon an administrative determination by the Service

that a number is available for such a grant under section 207(a)(5) of the Act,

8 U.S.C. § 1157(a)(5) (2000).

FURTHER ORDER: The respondent’s request for withholding of

removal to the People’s Republic of China is granted.

DISSENTING OPINION: Lauri Steven Filppu, Board Member, in which

Lori L. Scialabba, Chairman, joined.

I. INTRODUCTION

I respectfully dissent because I believe the majority misreads both the

scope of the statute and the import of the regulation at issue here. The

majority fails to recognize that this is a case of past harm, where an alien’s

eligibility for relief is governed by specific regulatory provisions focusing

exclusively on either the “severity of the past persecution” or the “reasonable

possibility” that the alien may suffer “other serious harm upon removal” that

does not technically qualify as persecution. Aliens and Nationality;

Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824, 9834

(Feb. 28, 2003), 2003 WL 533495 (codified at 8 C.F.R. § 1208.13(b)(1)(iii));

Matter of Y-T-L-, 23 I&N Dec. 601, 602 n.2 (BIA 2003); see also Matter of

Chen, 20 I&N Dec. 16 (BIA 1989) (granting relief because of the severity of

past persecution).

Instead of following the regulatory tests governing relief when a

well-founded fear of future persecution is absent, the majority construes the

statute to preclude a denial of relief to the respondent. The majority,

however, never actually focuses on the language of the statute in ruling that

changed circumstances cannot exist for the spouse of a sterilization victim.

Instead, it simply announces a new theory treating the respondent’s past harm

as a “permanent and continuing act of persecution.” Matter of Y-T-L-, supra,

at 607. The majority’s new perpetual persecution doctrine is not supported

by our past case law, and it certainly is not reflected in the regulatory

structure controlling asylum determinations.

The majority’s ruling has the effect of preventing adjudicators from

considering particular facts bearing on traditional refugee determinations,

specifically, the effect of past sterilization on the risk of future harm or the

608

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

severity of past harm. Not only is that ruling at odds with the existing

regulatory structure, but it is inconsistent with basic precepts of refugee law.

Those precepts involve protecting persons from future persecution and

providing humanitarian relief to select individuals with severe past harm, even

absent a risk of future persecution. The statute does not foreclose an

application of the regulation in this case, and the majority’s rationale turns our

traditional asylum law on its head.

II. BACKGROUND

The respondent and his wife had three children in China, a daughter born

in February of 1983, a second daughter born in November of 1984, and a son

born in December of 1985. The latter two children were in violation of

China’s population control program, leading to significant fines, employment

difficulties, occasional public embarrassment, school tuition payments for the

son, and the forced sterilization of the respondent’s wife in 1986. I agree with

both the Immigration Judge and the majority that the respondent has shown

past persecution within the meaning of the coercive population control

amendment to the definition of a “refugee” in the Immigration and Nationality

Act, as construed in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997).

As a result of this persecution, the respondent formed an intention to leave

China in 1986 and succeeded in leaving in 1993, which was 7 years after his

wife’s sterilization and the imposition of the last fine. By that time, the fines

had been paid and the relatives who loaned funds to pay the fines were

evidently also repaid or had forgiven the debt. The respondent had found

new employment and was able to make the tuition payments for his son. His

wife had recovered from the infections she experienced after the sterilization.

Further, at the time of the respondent’s 2001 removal hearing, his family was

continuing to live in China in the family home and his children were in school.

His continuing concerns pertained to the tuition payments for his son and his

son’s ability to pursue a high school and college education.

The Immigration Judge found that there was “no evidence that since the

sterilization and the payment of fines in 1986 that anything significant has

happened to either the respondent or his family in China.” The Immigration

Judge also found that there had been no showing that the respondent was

economically “worse off” by virtue of working at a relative’s store in China

in comparison to his prior employment as a farmer. Importantly, the

Immigration Judge determined that the respondent had not been “persecuted”

subsequent to his wife’s 1986 sterilization, that there was no evidence that

China would be inclined to harm the respondent or his wife today, and that the

Immigration and Naturalization Service (the “Service,” now the Department

of Homeland Security, DHS) had met its burden under the amended asylum

regulations to show that there had been a “fundamental change in

circumstances” such that the respondent currently lacked a well-founded fear

of persecution in China. Finally, the Immigration Judge found that the

respondent would not suffer any other serious harm upon return to China and

609

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

that he lacked compelling reasons for not returning, even in the absence of a

threat of any future serious harm, particularly when his wife and children had

remained in China “without incident” for 15 years following the sterilization.

Neither the respondent on appeal nor the majority seriously disputes any

of the Immigration Judge’s factual determinations. Neither makes any

attempt to show how the respondent might actually experience any meaningful

harm beyond that which has already occurred to him and his wife, and the

majority acknowledges that “the respondent has no reasonable basis to fear

. . . persecution in the future.” Matter of Y-T-L-, supra, at 606.

III. THE MAJORITY’S DECISION

The majority does not attack, as a matter of fact, the Immigration Judge’s

determination that there has been a “fundamental change in circumstances”

within the meaning of 8 C.F.R. § 1208.13(b)(1)(i)(A). Instead, the majority

rules that such a finding cannot be made as a matter of law.

The majority reaches this conclusion for several reasons. It is concerned

that a forced sterilization might never qualify an alien for relief and “could

lead to the anomalous result that the act of persecution itself would also

constitute the change in circumstances” eliminating the fear of future

persecution. Matter of Y-T-L-, supra, at 605. It believes the regulatory

history would be more specific if a change in our ruling in Matter of C-Y-Z-

had been intended, and that persons suffering forced sterilizations should be

treated the same as persons only suffering forced abortions. Perhaps most

significantly, the majority finds sterilization to be a “permanent and continuing

act of persecution” that deprives a couple of future children, such that the

statute itself actually “precludes the result urged by the Service.” Id. at 607.

There is, no doubt, some uneasiness in accepting the notion that an act of

persecution, here the sterilization of the respondent’s wife, can be the primary

basis for denying relief on grounds that future acts of persecution will not

take place. But, except for its “continuing persecution” theory, neither the

majority nor the respondent points to any meaningful new harm that might

befall the respondent on return to China. So, as unsettling as the notion might

seem initially, it is borne out to be factually accurate on this record.

But the evidence supporting a fundamental change in circumstances is not

confined to the act of sterilization. After that sterilization and the

contemporaneous fine, the respondent remained in China for 7 years, paying

only tuition for his son and occasionally being pointed to as an example of

past “bad” behavior. The same is true for the rest of his family, except that

they have remained in China and have been free from harm constituting

persecution for over 15 years.

We would not likely find a fundamental change in circumstances, despite

the sterilization, had China periodically imposed meaningful imprisonment on

the respondent for his past population control violations, instead of merely

pointing to him as an example for others not to follow. The sterilization is

610

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

obviously significant, but the case and the Immigration Judge’s ruling are

about much more than that one persecutory act.

Further, unless there is a bar to their consideration, the sterilization, the

payment of all fines, and the subsequent treatment of the respondent and his

family fit the literal “fundamental change in circumstances” language of the

regulation. Under the governing regulations, this fundamental change, coupled

with the absence of any reasonable fear of future persecution, means that we

should assess the respondent’s eligibility for relief on the strength of past

persecution alone. See Matter of Chen, supra; 8 C.F.R. § 1208.13(b)(1)(iii)

(requiring “compelling reasons” arising from the severity of past persecution

or a reasonable possibility of other serious harm for a grant of relief where

only past persecution exists). The majority does not claim that the

respondent’s harm is sufficient for a grant of relief on this basis alone.

IV. THE STATUTE

I agree with the majority that the statutory language reflects an intention to

accord benefits to some persons who have been sterilized. As such, it would

be inconsistent with the population control amendment to the definition of a

“refugee” to construe the revised regulation in such a way as to categorically

deny relief to everyone who has been forcibly sterilized. But that is not what

the Immigration Judge held.

The statute is intended to accord refugee status each year to 1,000 victims

of certain coercive population control practices, including “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.” Section

101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)

(2000) (defining “refugee”); see also section 207(a)(5) of the Act, 8 U.S.C.

§ 1157(a)(5) (2000) (limiting asylum grants and refugee admissions based on

coercive population control methods to 1,000 each fiscal year).

Persons who have themselves been forcibly sterilized fall directly under the

terms of the statute. As to those actual victims of forced sterilization, I

understand the statute to treat their level of persecution as sufficiently severe

to be considered for inclusion among the 1,000 who may get asylum, even if

based on that past harm alone. Thus “a person who has been forced . . . to

undergo involuntary sterilization” qualifies as a “refugee” and may well

warrant, by virtue of the very nature of that past harm, one of the 1,000

refugee numbers, if available. Section 101(a)(42) of the Act.

The majority’s concern that the regulation might lead to “anomalous

result[s]” is easily dispelled by recognizing that the actual victims of forced

sterilizations may qualify for relief on the strength of their past persecution,

particularly when they flee soon thereafter or continue to experience

611

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

additional serious sanctions.1 Matter of Y-T-L-, supra, at 605. This, also,

should dispel the majority’s concern about the treatment of victims of forced

abortions and sterilizations. Both fall within the statute, but that does not

mean all the asylum considerations are identical for both groups. Recognizing

that sterilization victims may mainly be able to point to past persecution does

not dictate a denial of relief.

Relief, however, should not be automatic, even for the actual victims of

forced sterilizations. Traditional asylum considerations are appropriate.

There are differences between a person who departs immediately after a

forced sterilization, while perhaps still facing significant unpaid fines, and one

who remains for many years leading an otherwise normal life and whose

eventual departure is motivated mainly by economic or family reunification

concerns. Victims of other forms of severe persecution, who face little

likelihood of future harm, are not guaranteed asylum when they have

remained for decades in the country of persecution and have been able to

enjoy generally normal lives after the events leading to the past persecution.

Under the regulations governing all cases of past persecution, the Service

bears the burden to show that the alien does not currently have a well-founded

fear of future persecution by virtue of changed circumstances or that internal

relocation is reasonable. I am unwilling to assume that the Service will

invariably be able to meet this burden in cases where there has been a forced

sterilization. Even recognizing that a forced sterilization may frequently

greatly aid the Service in meeting this burden, relief is still warranted if the

applicant can show compelling reasons arising from the severity of the past

persecution or sufficiently qualifying “other serious harm.” 8 C.F.R.

§ 1208.13(b)(1)(iii). And this would be true even for an alien such as the

respondent, who was not sterilized, but who may suffer because of the

sterilization of his spouse.

The statute, thus, does not present a legal obstacle to recognizing the fact

that changed circumstances virtually have eliminated this particular

respondent’s fear of future persecution for population control reasons.

Recognizing that a spouse’s sterilization severely reduces or eliminates the

risk of future “population control” persecution for the person who was not

sterilized simply does not render the statute without meaning or lead to

anomalous results when the claim for relief is based on a forced sterilization. 2

1

In this respect, the majority simply misunderstands this dissent as advocating a “purely

prospective view, focusing on a well-founded fear of persecution in the future,” or implying

that a sterilization victim could never qualify for relief on the basis of past persecution alone.

Matter of Y-T-L-, supra, at 606. But I do acknowledge that the spouse of a victim may often

not qualify for relief when the actual victim remains in the country of persecution, when

circumstances reflect a “fundamental change,” and when many years have passed since either

the victim or the spouse have experienced anything approaching what we would deem to be

“persecution.”

2

A person who has not been sterilized does not qualify literally as “a person who has been

forced . . . to undergo involuntary sterilization.” Section 101(a)(42) of the Act. The

respondent suffered fines, the loss of his agricultural plot, the sterilization of his wife, and other

(continued...)

612

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

The majority is correct that the statute equates persecution arising from a

coercive population control program as being persecution “on account of

political opinion.” The statute, however, does not direct that persons

suffering such persecution be exempt from the normal rules that apply to all

persons who have suffered past persecution on account of political opinion

but who lack a reasonable fear of future persecution. Instead, it is the

majority that concocts a new theory of perpetual persecution to justify that

exemption.

V. THE MAJORITY’S NEW THEORY

The majority’s deviation from long-standing principles of asylum law, and

from the analysis directed by the regulations, is most pronounced in its

declaration that forced sterilization “is better viewed as a permanent and

continuing act of persecution.” Matter of Y-T-L-, supra, at 607. The

majority’s perpetual persecution analysis is simply not consistent with either

the case law or basic precepts of asylum law.

For example, in Matter of Chen, supra, at 20, we accepted the alien’s

account that, because of his past experiences in China, he was “physically

debilitated, must wear a hearing aid due to his head injury, [was] always

anxious and fearful, and [was] often suicidal.” We nonetheless found that

Chen lacked a well-founded fear of future persecution, but granted relief

because of the severity of the past persecution. Importantly, in doing so, we

did not declare that Chen’s ongoing physical disabilities and continuing

psychological trauma amounted to “a permanent and continuing act of

persecution,” although the daily manifestations of his past persecution could

easily have been so described.

I am also not aware that we find perpetual persecution from the death of

a family member who was killed to inflict harm on the asylum applicant or

even from permanent physical injuries to the applicant himself, such as loss

of sight or loss of a limb. Certainly, severe injuries from persecution can

give rise to relief for past persecution. The majority’s perpetual persecution

approach, however, would confine our traditional past persecution analysis

to cases where the past injury had no lingering effect, or the majority will

need to explain why a deprivation of the ability to procreate is to be given

special treatment in comparison to other permanent injuries that can arise

from acts of persecution.

Indeed, the majority’s continuing or perpetual persecution concept would

seem to override even the type of change in country conditions (such as an

abandonment of population control measures by China) that we recognized as

sufficient to meet the prior regulatory test that we found to govern our ruling

2

(...continued)

lesser problems. It is far easier to treat the respondent as someone “who has been persecuted

. . . for other resistance to a coercive population control program” as a result of the steps he

and his wife took to continue to have children despite the various enforcement efforts of, and

the sanctions leveled by, Chinese authorities.

613

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

in Matter of C-Y-Z-. Furthermore, this new theory means there can be no

country of refuge for the respondent. He will experience his “permanent and

continuing persecution” in the United States, in China, or anywhere he may

go. Yet the majority simply fails to grapple with the anomaly it creates from

the standpoint of traditional asylum law.

This anomaly is also apparent in the majority’s grant of withholding of

removal to the respondent. As is relevant to this case, the regulations

governing withholding of removal parallel those applicable to asylum. Taken

to its logical, but I would submit absurd, conclusion, the majority’s continuing

persecution theory would seem to require us to grant withholding of removal

to countries other than China. For example, if the respondent had been a

landed immigrant in Canada before coming to the United States, he would

likely be denied asylum because he had “firmly resettled.” See section

208(b)(2)(A)(vi) of the Act, 8 U.S.C. § 1158(b)(2)(A)(vi) (2000); 68 Fed.

Reg. at 9834 (codified at 8 C.F.R. § 1208.15). Under the majority’s theory,

however, Canada is unable to prevent China’s “continuing” persecution of the

respondent, and neither firm resettlement nor discretionary considerations

form a basis for denying withholding of removal when persecution continues

for the victim.

Asylum law is primarily about protecting people from future harm and, in

select cases, providing humanitarian relief for severe past harm by itself. The

goal of protection is not served by providing protection to someone who is

not actually in need of protection. The goal of providing humanitarian relief

in select cases is not served if the individual is not actually deserving of

humanitarian relief.

As serious as forced sterilization is, the majority offers no sound reason

to give it special treatment among the range of atrocities having permanent

and ongoing consequences that victims of persecution may be forced to

endure their entire lives. The continuing nature of past harm is certainly

appropriate to weigh as a factor in a traditional Chen, past persecution

assessment. The continuing nature of past harm, however, is not a basis for

circumventing the regulations requiring a past persecution assessment when

there is little or no likelihood of future persecution as a matter of fact.

VI. THE REGULATION

This brings us to the heart of what this case is really about, specifically, the

proper interpretation of the current regulation. The respondent has suffered

past persecution on account of a protected ground. The respondent therefore

benefits from a presumption of future persecution pursuant to 8 C.F.R.

§ 1208.13(b)(1). This presumption, however, is rebuttable. In Matter of

C-Y-Z-, supra, we found that the presumption was not rebutted under the test

then contained in the regulations. The regulation at issue in Matter of C-Y-Z-,

supra, 8 C.F.R. § 208.13(b)(1)(i) (1997), provided in relevant part:

If it is determined that the applicant has established past persecution, he shall be presumed

also to have a well-founded fear of persecution unless a preponderance of the evidence

614

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

establishes that since the time the persecution occurred conditions in the applicant’s country

of nationality or last habitual residence have changed to such an extent that the applicant

no longer has a well-founded fear of being persecuted if he were to return.

Based on this language, we determined that the regulatory presumption

could be rebutted only by a showing that overall conditions in the applicant’s

country had changed. Matter of C-Y-Z-, supra, at 919. Our ruling would not

permit the presumption to be rebutted through a showing of changes in the

personal circumstances of the applicant. Id.

The regulation at issue in Matter of C-Y-Z-, supra, however, and the

regulation governing the effect of past persecution on an application for

withholding of removal, were amended through the publication of a final rule

on December 6, 2000, which became effective on January 5, 2001. See

Asylum Procedures, 65 Fed. Reg. 76,121, 76,133 (Dec. 6, 2000), 2000

WL 1780075. The regulatory history of the current provision supports use

of any and all evidence in assessing the risk of future persecution and points

to the need for a “past persecution” focus in cases such as that of the

respondent.

The majority is correct that the actual outcome in Matter of C-Y-Z-, supra,

was not specifically disavowed during the rule-making process. But its

rationale was discussed and criticized in the supplementary information

accompanying the notice of proposed rule making.

The proposed rule would have required a discretionary denial of asylum

if the Immigration Judge found by a preponderance of the evidence simply

that “the applicant does not face a reasonable possibility of future persecution

in the applicant’s country” because of a qualifying ground. Executive Office

for Immigration Review; New Rules Regarding Procedures for Asylum and

Withholding of Removal, 63 Fed. Reg. 31,945, 31,949 (proposed June 11,

1998), 1998 WL 302672. The supplementary information in the proposed

regulatory package explained:

This rule also makes clear that, in determining whether there is a reasonable possibility

of future persecution, the asylum officer or immigration judge may rely on any evidence

relating to the possibility of future persecution against the applicant. This is an important

change in light of the recent Board decision in Matter of C-Y-Z[-], [Interim] Decision

#3319 (BIA 1997), which raises questions about how the existing regulation should be

interpreted. In that decision, the Board addressed the case of an applicant who had

suffered past persecution and was therefore entitled under the existing regulation to the

presumption of a well-founded fear of future persecution. [T]he Board interpreted 8 CFR

208.13(b)(1)(i) to preclude the consideration of any factors other than changed country

conditions in determining whether the presumption of a well-founded fear was rebutted.

In Matter of Chen, however, which the existing regulatory provisions were intended to

codify, the Board stated that, in cases where an applicant establishes past persecution,

asylum may be denied as a matter of discretion if there is little likelihood of future

persecution. To avoid any uncertainty about whether there is tension among the existing

regulation, Matter of Chen, and Matter of C-Y-Z[-], we are changing the regulation so that

it clearly allows consideration of any evidence, or lack thereof, bearing on future

persecution in such cases.

63 Fed. Reg. 31,946-47 (notice of proposed rule making).

615

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

The proposed change in the regulations and the accompanying explanation

were not aimed particularly at population control cases, such as the one now

before us. Rather, both the proposed rule and the final rule are aimed at all

asylum cases, regardless of the type of past persecution experienced by the

victim. The need for a regulatory revision covering all cases of past

persecution arose because Matter of C-Y-Z- construed the former regulation

to narrowly focus a “changed circumstances” assessment exclusively on

changed country conditions, and thus was seen as not being in keeping with

Matter of Chen, supra. Under the regulatory interpretation followed in

Matter of C-Y-Z-, for example, an alien’s switch in political parties which

resulted in his no longer being persecuted could not be taken into account in

determining whether the past persecution presumption had been rebutted.

The final rule did not adopt the precise regulatory language of the proposed

rule in relation to the regulation at issue here. But nothing in the final

rule-making package reflects a retreat from the explanation accompanying the

proposed rule as to the reasons why a change was generally needed. The

majority, in my view, seriously misstates the history of this regulatory change

in its assertion that the Attorney General did not intend a “different paradigm

for deciding” cases of the sort we now confront. Matter of Y-T-L-, supra, at

606.

Rather, a different, or at least a modified paradigm was intended for all

cases. Nowhere in that regulatory history is there a suggestion that “forced

sterilization” cases are exempt from the new rules.

The final rule amended 8 C.F.R. § 208.13(b)(1)(i) (2001) to provide, in

pertinent part, that

an immigration judge . . . shall deny the asylum application of an alien found to be a refugee

on the basis of past persecution if any of the following is found by a preponderance of the

evidence:

(A) There has been a fundamental change in circumstances such that the applicant no

longer has a well-founded fear of persecution . . . on account of race, religion, nationality,

membership in a particular social group, or political opinion . . . .

The supplementary information, as the majority acknowledges, explains in

part:

[T]he regulatory language for overcoming the presumption of a well-founded fear of

persecution and a threat to the applicant’s life or freedom because of past persecution is

changed to state that the Service must show a “fundamental change in circumstances” in

order to overcome the presumption. . . . By adopting that language rather than that

requiring a showing of changed country conditions to overcome the presumption, other

changes in the circumstances surrounding the asylum claim, including a fundamental

change in personal circumstances, may be considered, so long as those changes are

fundamental in nature and go to the basis of the fear of persecution.

65 Fed. Reg. at 76,127 (emphasis added). The respondent’s change in

circumstances has significantly affected his prospects for being persecuted

in the future in China. Taking account of that change, thus, is consistent both

with the stated purpose behind the proposed change of allowing the

consideration of “any evidence,” 63 Fed. Reg. at 31,947, and with the final

616

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

rule’s specific explanation that changes in personal circumstances may be

considered.

Nevertheless, there is a difference in language between the proposed rule

and the final rule. And, the regulatory history does not explain the import of

that change specifically in relation to coercive population control cases

involving sterilizations. The proposed rule had focused simply on whether

the applicant would currently face “a reasonable possibility of future

persecution” and did not require that there be any change in circumstances

since the past persecution. 63 Fed. Reg. at 31,946. The language of the final

rule, however, was adopted to ensure that it “complies with our international

obligations” and to track one aspect of the statutory language respecting

termination of asylum. 65 Fed. Reg. at 76,127; see also section 208(c)(2)(A)

of the Act, 8 U.S.C. § 1158(c)(2)(A) (2000) (providing for termination of

asylum to an alien who was no longer a refugee “owing to a fundamental

change in circumstances”).

The significance of this change appears to lie in its preservation of asylum

eligibility for persons who themselves have experienced actual past

persecution, even when most members of their affected group, such as their

religious denomination, may not be able to show a “reasonable possibility of

future persecution” by virtue of long-standing and unchanged conditions in

their homeland. See, e.g., Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA

1998) (granting asylum to Jewish victims of past persecution in the Ukraine

where country condition evidence showed no change in circumstances, but

may not have independently supported a “reasonable possibility of future

persecution” generally for Jewish residents of the Ukraine).

The change between the proposed and final rule was not undertaken with

the announced purpose of affecting the result in coercive population control

cases or any other case where an act of past persecution may be relevant to

a changed circumstances assessment. Rather, as with the proposed rule itself,

which was not limited to population control cases, the change in language

contained in the final rule was intended to apply to all cases of past

persecution. The stated goal of the regulatory change, as set forth in the

notice of proposed rule making, of “allow[ing] consideration of any evidence,

or lack thereof, bearing on future persecution,” was not retracted or even

called into question. 63 Fed. Reg. at 31,947.

The majority’s ruling effectively precludes consideration of important

evidence respecting the likelihood of future persecution. The language of the

current regulation, however, was not adopted to preclude the consideration of

some evidence bearing on the possibility of future persecution. It was not

adopted to achieve a purpose contrary to, or despite, the traditional

“protection” and “humanitarian” goals of asylum law.

In sum, the point of a change in the old regulation was to shift away from

the approach we had taken in Matter of C-Y-Z- when the core of any claim is

in actuality based on past persecution. Instead of a limited focus on

“changed country conditions,” the revised regulation directs that the

examination extend to the full range of considerations and the use of any

617

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

evidence bearing on whether there has been a fundamental change and

whether there currently exists a well-founded fear of future persecution.

Importantly, the regulatory history does not reflect an intention to prohibit

consideration of any particular fact that may bear on these questions.

VII. CONCLUSION

The statute does not foreclose application of the regulations in cases of

forced sterilizations, and the regulations themselves reflect that they were

intended to apply to all cases, without exemption. As I agree with the

Immigration Judge’s rulings, I would dismiss the appeal.

DISSENTING OPINION: Roger A. Pauley, Board Member

The majority hold that, under Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA

1997), the forced sterilization of one’s spouse cannot constitute a

“fundamental change in circumstances” under 8 C.F.R. § 1208.13(b)(1)(i)(A).

See Aliens and Nationality; Homeland Security; Reorganization of

Regulations, 68 Fed. Reg. 9824, 9834 (Feb. 28, 2003), 2003 WL 553495;

Matter of Y-T-L-, 23 I&N Dec. 601, 602 n.2 (BIA 2003). On the dual

assumptions that Matter of C-Y-Z- was correctly decided and that, if so and

properly applied, it extends to this respondent, I join the dissenting opinion of

Board Member Filppu, which convincingly exposes and explains the flaws in

the majority’s reasoning and result.

However, I dissent, as well, on other grounds. I would not reach the narrow

issue of the meaning of the above regulation without first seeking additional

briefing and/or oral argument from the parties on the threshold questions of

the continued viability of Matter of C-Y-Z- and its scope.1 As is well known,

Matter of C-Y-Z- was certified to the Attorney General in 1998, but no

decision has yet been rendered at that level.

The continued viability of Matter of C-Y-Z-, and its rationale, are

inextricably involved in the outcome of this case. I understand our ruling in

Matter of C-Y-Z- to be based on the theory that the persecution of one spouse

by forced sterilization is imputed to the other. I would ask the parties to

address the question whether this rationale is consistent with the statute and,

if not, bearing in mind considerations of stare decisis, whether that decision

should be overruled.

In briefly adumbrating some of the issues on the merits on which I would

expect further briefing, I note a pivotal, but heretofore insufficiently

appreciated, fact that Congress, in adding the coercive population control

1

I recognize that the Immigration and Naturalization Service (the “Service,” now the

Department of Homeland Security, DHS) chose not to raise these questions. But, as an

appellate adjudicatory body, the Board has discretion not to accept the case in the strategic

litigative posture presented to it, in an apparent attempt to isolate a particular question for

resolution, and instead to raise, and seek enlightenment from the parties on, other threshold

and potentially dispositive issues.

618

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

provisions to section 101(a)(42) of the Immigration and Nationality Act,

8 U.S.C. § 1101(a)(42) (Supp. II 1996), elected not to create a new protected

ground. Instead, it provided that a “person who has been forced to abort a

pregnancy or to undergo involuntary sterilization . . . shall be deemed to have

been persecuted on account of political opinion.” Id. That statutory choice

would seem a strong indication that Congress anticipated and intended that

such coercive population control claims would be adjudicated on the same

basic principles that apply to other “political opinion” claims. Yet Matter of

C-Y-Z- is (at least arguably) at odds with such notions of equivalent treatment

and analysis.

For example, suppose a political “odd couple” who are legally married in

China; the wife is a rabid anticommunist, while the husband is a staunch

supporter of communism and the regime. Suppose further that the wife one

day makes a widely disseminated anticommunist speech, is tried and

convicted therefor, and sentenced to imprisonment for 30 years. But the

husband’s loyalty is not questioned and he is not personally harmed. If the

husband later, while on a business trip to this country, decides to seek asylum

on the basis of his wife’s persecution, we would not find “past persecution”

or grant his claim. It is fundamental that, unless persecution of another on

account of political opinion is directed at an asylum applicant, which is not

the situation in my example, such persecution must be personal to the

applicant, although the harm to the persecuted individual may also result in

grievous harm to the applicant, in my hypothetical the loss of consortium of

his spouse (including the opportunity to have children) for 30 years. I would

ask the parties to explain why they believe or don’t believe that Congress

intended that Chinese population control claims should constitute an

exception to this principle.

Assuming that Matter of C-Y-Z- would survive such reconsideration, I

would also seek further briefing and/or oral argument on the scope of that

ruling as it affects this respondent’s eligibility for asylum. The salient facts

in this case show that the respondent and his spouse entered into a traditional

marriage in 1981, and then had three children, the last being born in 1985.

Thereafter, the respondent registered his marriage in 1991. In order to find

that, on these facts, Matter of C-Y-Z- applies to enable the respondent to

assert past persecution successfully, that case must be construed as extending

either (1) to persons whose marriages are evidenced only by a traditional

ceremony in China (without a requirement that such marriages be legally

recognized by that country) or, if not, (2) to persons who ultimately registered

their marriage with the forcibly sterilized spouse, but who were not legally

married at the time that persecutive act occurred. I regard both of these

important issues as unresolved2 and have seen plausibly reasoned decisions

of Immigration Judges taking opposite positions with respect to each.

2

Our opinion in Matter of C-Y-Z- did not make clear whether the alien’s registration of his

marriage occurred before or after his wife’s forced sterilization. See Matter of C-Y-Z-, supra,

at 915-16. Whatever the record in that case might show, it is clear that we never focused on

the issue and cannot be deemed to have resolved it.

619

Cite as 23 I&N Dec. 601 (BIA 2003) Interim Decision #3492

Accordingly, I would not grant asylum in this case without resolving the

underlying question whether the respondent is eligible to assert past

persecution under Matter of C-Y-Z-.

I therefore respectfully dissent.

620