Sun Wen Chen, Wen Hui Gao v. Attorney General of the United States

McKEE, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority’s jurisdictional rejection of Gao’s asylum claim and much of the analysis in parts IY. A. & B. I disagree with the analysis in part III insofar as my colleagues conclude that Chen is entitled to claim refugee status because his wife’s “fear may be imputed to him.” Maj. Op. at 105. I concede that the majority’s conclusion has a great deal to commend it. In addition to its humanistic appeal, my colleagues’ analysis recognizes the petitioners’ apparently sincere desire to raise a family without the intrusive and coercive interference of a governmental policy that would dictate the number of children they could have if they are forced to return to China. Nevertheless, although I applaud that result, I can not agree with the majority’s analysis.

I.

The Attorney General may grant asylum to an alien “if the Attorney General deter *112 mines that such alien is a refugee within the meaning of section 1101(a)(42)(A).” 8 U.S.C. § 1158 (b)(1). Section 1101(a)(42)(A) initially defined “refugee” as:

a 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)(A). As my colleagues explain, in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (“IIRI-RA”). Section 601 of the IIRIRA added the following language to the original definition of “refugee”:

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 to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

8 U.S.C. § 1101 (a)(42)(B).

Here, the Board of Immigration Appeals (“BIA” or “Board”) reversed the Immigration Judge’s grant of asylum and withholding of removal because neither Chen nor his wife “submit[ted] any evidence specifically addressing the treatment of children born outside of China” and because the State Department Country Report did not provide sufficient proof that China’s family planning policy would be applied to Chen. See Maj. Op. at 104. The majority does not rest its holding on whether China’s coercive population control policy applies to a child who is born outside of China. Rather, my colleagues focus on “whether a husband may qualify for asylum based on the well-founded fear that his wife might be persecuted under a coercive population control policy.” Maj. Op. at 103. The majority’s affirmative answer is largely guided by Matter of C-Y-Z-, 21 I. & N. Dec. 915, 920 (BIA 1997), and my colleagues afford that ruling deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984).

II.

A. Chevron Step One

“Chevron applies when ‘it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’ ” Cai Luan Chen v. Ashcroft, 381 F.3d 221, 224 (3d Cir.2004) (quoting United, States v. Mead Corp., 533 U.S. 218, 226-27 , 121 S.Ct. 2164 , 150 L.Ed.2d 292 (2001)). Chevron governs our analysis here because Congress has delegated authority to the Attorney General to make rules and decide questions of law under the Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1103 (a)(1). When “Chevron applies, a court must ask (at what is customarily called step one) ‘whether Congress has directly spoken to the precise question at issue.’ ” Cai Luan Chen, 381 F.3d at 224 *113 (quoting Chevron, 467 U.S. at 842 , 104 S.Ct. 2778 ).

If congressional intent is clear, “that is the end of the matter; for the court ... must give effect to the unambiguously expressed intent of Congress.” Id. at 843 , 104 S.Ct. 2778 . The Supreme Court has summarized the doctrine as follows: Chevron established a familiar two-step procedure for evaluating whether an agency’s interpretation of a statute is lawful. At the first step, we ask whether the statute’s plain terms directly address the precise question at issue. If the statute is ambiguous on the point, we defer at step two to the agency’s interpretation so long as the construction is a reasonable policy choice for the agency to make.

Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967, 986 , 125 S.Ct. 2688 , 162 L.Ed.2d 820 (2005) (citations and internal quotations omitted). For an agency’s policy choice to be “reasonable,” it must be one that is permissible within the confines of the statute. Thus, “[e]ven for an agency able to claim all the authority possible under Chevron , deference to its statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 , 124 S.Ct. 1236 , 157 L.Ed.2d 1094 (2004).

The majority concludes that an alien is eligible for asylum solely because his/her spouse was subjected to (or has a well-founded fear of being subjected to) a coercive population control policy. As the majority correctly notes, the pertinent “section of the INA contains no explicit reference to spouses.” Maj. Op. at 107 (citing In re S-L-L-, 24 I. & N. Dec. 1, 3 (B.I.A.2006)). Rather than accept the language as drafted, the majority concludes that the absence of “spouse” in the statute creates a vacuum that the Attorney General may rush in and fill, even though this results in amending the statute.

One need look only to the words Congress used in the statute to conclude that § 1101(a)(42)(B) applies to “a person who”: (1) “has been forced to abort a pregnancy”; or (2) “has been forced ... to undergo involuntary sterilization”; or (3) “who has been persecuted for failure or refusal to undergo such a procedure”; or (4) “who has been persecuted ... for other resistance to a coercive population control program”; or (5) “has a well founded fear that he or she will be forced to undergo such a procedure”; or (6) “has a well founded fear that he or she will be ... subject to persecution for such failure, refusal, or resistance.” 8 U.S.C. § 1101 (a)(42)(B).

“Persecution” has a well-understood and specific meaning in the law of asylum.

It includes “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” but it “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993).

In enacting 8 U.S.C. § 1101 (a)(42)(B), Congress declared that being “forced to abort a pregnancy or to undergo involuntary sterilization,” is “persecution” that entitles the victim to refugee status. Congress could have easily drafted this provision to extend to “married couples who have been subjected to a forced abortion or involuntary sterilization.” So drafted, an actual victim of persecution under a coercive population control program, as well as his/her spouse, would qualify for relief under the statute. However, Congress did not draft the statute in this way, and we can not rewrite the statute’s explicit text to achieve that result. See *114 Dodd v. United States, 545 U.S. 358 , 359, 125 S.Ct. 2478 , 162 L.Ed.2d 343 (2005).

Our analysis should therefore begin and end with the language of § 110 l(a)(42)(B). There is no room here for a step two inquiry under Chevron.= Struggle as I might, I can find no “ambiguity tied up with the provisions of [this] statute” left for the agency to construe. Maj. Op. at 107. I believe Congress meant what it said, and I do not assume that the omission of any reference to a “spouse” is accidental or insignificant.

Section 1101(a)(42)(B) unambiguously broadens the definition of “refugee” to include “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization” (emphasis added). There is no gap for this court or the BIA to stuff that person’s spouse into. Accordingly, we should conclude our analysis at step one of the Chevron inquiry, and deny refugee status to the spouse of “a person threatened with abortion or forced sterilization” when that is the spouse’s only basis for seeking refugee status. However, even if we could get to step two, we should still reject the BIA’s reasoning because of its irreconcilable tension with the statutory text.

B. Chevron Step Two

The Supreme Court has “made [it] quite clear that administrative constructions which are contrary to clear congressional intent must be rejected.” Zuni Pub. Seh. Dist. No. 89 v. Dep’t of Educ., — U.S. -, 127 S.Ct. 1534, 1549 , 167 L.Ed.2d 449 (2007). As I noted above, my colleagues defer to the BIA’s analysis in C-Y-Z-. There, the BIA had to decide whether an asylum applicant could establish past political persecution where his wife was forced to obtain an intrauterine device after she gave birth to the couple’s first child and was forcibly sterilized after she gave birth to their third child. 21 I. & N. Dec. at 917 .

Significantly, the government agreed with the position taken by the petitioner. The BIA explained: “[t]he position of the Immigration and Naturalization Service is that past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse.” 11 Id. Accordingly, the BIA never addressed that issue. Instead, given the litigation posture of the parties, the BIA decided the appeal without any analysis or discussion. The Board simply proclaimed: “We find that the applicant in this case has established eligibility for asylum by virtue of his wife’s forced sterilization. This position is not in dispute ....” Id. at 918 .

Thereafter, in Lin v. Dep’t. of Justice, 416 F.3d 184 (2d Cir.2005), the Court of Appeals for the Second Circuit had to decide if an alien was entitled to refugee status because his girlfriend was subject to China’s coercive population control measures. 12 The court then remanded the petitions to the BIA “because the BIA failed, in C-Y-Z-, to articulate a reasoned basis for making spouses eligible for asylum ....” Id.

As the majority explains here, the BIA responded to the Lin mandate in In re S-L-L-, 24 I. & N. Dec. 1 . Therefore, any deference owed to the BIA’s interpretation of § 1101(a)(42)(B) must be based on the *115 analysis in that case. Unfortunately, S-LL- is devoid of any real analysis. The Board’s conclusions are not grounded on statutory text, legislative history, or Board precedent. Rather, much like the decision in C-Y-Z-, that it purported to explain, SL-L- is little more than an essay on the virtues of the sanctity of procreation and marriage.

The Board begins its analysis by explaining: “Given the agreement of the parties [in C-Y-Z-], we did not provide the sort of detailed statutory analysis that would have been required had the issue been in dispute.” Id. at 3. The Board then explains why it will not extend the holding in C-Y-Z- to couples who are not married. Inasmuch as that issue is not before us, I will limit my discussion to the Board’s analysis of whether a married spouse can claim asylum protection because the other spouse was forced to undergo abortion or sterilization.

The crux of the BIA’s entire analysis of this question is contained in the following paragraph:

When considered in light of the reasons Congress expanded the refugee protections to include persecution based on coercive family planning, and the well-established principles regarding nexus and level of harm for past persecution, we understand the husband, as well as the wife, to have been subjected to the coercive family planning policy when the government forces an abortion on a married couple. Although the wife is obviously the individual subjected to the abortion procedure, Congress was concerned not only with the offensive assault upon the woman, but also with the obtrusive government interference into a married couple’s decisions regarding children and family. When 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. We therefore find that Congress intended section 101(a)(42) to protect both spouses when the government has forced a married couple opposed to an abortion to submit to such a procedure.

24 I. & N. Dec. at 6 . Although the Board mentions the “reasons” Congress amended the definition of “refugee,” it does not explain what those reasons are, nor where they are to be found. The text of the statute is neither mentioned nor cited, and we are left to assume that the “nexus” between procreation and marriage requires, or at least justifies, extending the asylum statute to the other spouse. That is a policy choice which, though it is certainly defensible, both originates someplace other than the language the Board purports to interpret and conflicts with it. 13

The Board’s essay on the relationship between marriage and procreation continues with its observation that “[a] forced abortion imposed on a married couple naturally and predictably has a profound impact on both parties to the marriage.” Id. at 7 . Based upon that analytical fulcrum, the Board hoists a rather astonishing proclamation into its analysis: “We find that such Government action is explicitly directed against both husband and wife ... and amounts to persecution of both parties to the marriage.” Id.

This edict is unsupported by anything other than the Board’s visceral reaction to China’s coercive population control policy. The BIA’s “finding” in S-L-L- that the *116 policy is “explicitly directed against both husband and wife” is baseless. I readily concede that commonsense is all that is needed to realize that a coercive population control policy may impact both spouses. I also concede that it is fair to conclude that such impact can be severe and profound. However, that does not mean that the limitation to “a person who” in § 1101(a)(42)(B) either reflects a congressional intent to extend refugee status to that person’s spouse or leaves an ambiguity under Chevron .

One could just as readily conclude that any mistreatment that is sufficiently severe to qualify as “persecution” that is inflicted on one spouse will probably have a profound and lasting impact on the other spouse. Given the Board’s logic, the status of “refugee” could therefore extend to the spouse of a woman who is beaten, tortured or raped. This is particularly true if the mistreatment jeopardizes her ability to ever have children. 14

My colleagues apparently recognize this problem. They hasten to state: “The BIA ... does not suggest that the word ‘person’ as used in § 1101(a)(42)(B) can be read to include a marital ‘entity.’ ” Maj. Op. at 107. I must respectfully conclude that my colleagues doth protest too much. Indeed, this is not what the BIA “suggests”; it is what the BIA explicitly says. As I have just noted, in S-L-L- , the Board stated: “When 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.” S-L-L- 24 I. & N. Dec. at 6 (emphasis added).

The majority does not see this as including the “marital entity.” My colleagues expound: “as the Board explains in S-L L-, it recognizes that § 1101(a)(42)(B) does not address spouses, but, based on its notion of the marital relationship and its knowledge of China’s one-child policy, it concludes that the scope of this particular type of persecution extends to both spouses.” Maj. Op. at 107 (citing S-L-L- , 24 I & N. Dec. at 7). I see no distinction between the “marital relationship,” and the “marital entity.” Moreover, although I agree that the distinction the Board purports to draw is based upon “its notion of the marital relationship,” the Board has no more expertise in marital relationships than it does in parenting, matters of religion, or the proper temperature for cooking leg of lamb. I see no reason to defer to the Board’s views of marriage and procreation. There is more ethnocentrism than statutory interpretation in its discussion of the marital relationship.

In S-L-L- , the Board also explains that “[t]he impact of forced abortions or sterilizations on ... a shared right to reproduce and raise children is such that the forced sterilization of a wife could be imputed to her husband, whose reproductive opportunities the law considers to be bound up with those of his wife.” 24 I. & N. Dec. at 7 (internal quotations omitted). Yet again, the BIA here fails even to attempt to reconcile that broad statement with the language of the statute it purports to construe. Moreover, the Board’s analysis ignores those situations where one spouse may not want children and, therefore, supports the other spouse’s abortion or sterilization.

My colleagues attempt to parry this by stating: “As the BIA makes clear in S-LL-, the C-Y-Z- rule would not apply in the hypothetical case where the spouse *117 does not oppose the forced abortion or involuntary sterilization of his wife.” Maj. Op. at 108. But, why wouldn’t it? The Board’s explanation of this problem is merely that “a husband who participated in attempts to persuade his wife to submit to an abortion, or who favored the abortion, could not, in good faith, claim to have been persecuted as a result of the abortion.” Id. at 8 . I agree, but only because Congress limited the relief to “a person who has been forced to abort ... or to undergo involuntary sterilization,” as I argue above. The difficulty in the BIA’s attempt to read a spouse into that language is evident from its attempt to limit the scope of its holding to situations where the husband wants children. The Board explains:

We do not require proof in the individual case that ... Government officials involved were confronted by the husband or otherwise made aware of the husband’s opposition. Rather, absent evidence that the spouse did not oppose an abortion or sterilization procedure, we interpret the forced abortion and sterilization clause of section 101(a)(42) of the Act, in light of the overall purpose of the amendment, to include both parties to a marriage.

S-L-L-, 24 I. & N. Dec. at 8 (emphasis added). But, I again note that the “overall purpose of the amendment” is an unsupported assumption the Board makes based upon its view of the marital relationship. In addition, how can the government ever produce “evidence that the spouse did not oppose an abortion or sterilization procedure”? The petitioner is certainly not likely to disclose this, nor is the spouse— assuming she is even present at the hearing before the IJ. In addition, the Chinese government is not likely to offer an affidavit in opposition to the asylum claim stating that the husband/petitioner really wants no (more) children. We are left with an evidentiary convenience that the Board has to construct to support its attempt to narrow its rule to situations that coincide with its rationale. However, the evidentiary construct is so unworkable that it collapses under its own weight. Thus, although my colleagues insist that the rule of C-Y-Z-, “is not one of per se spousal eligibility, as the Second Circuit suggested in Lin,” maj. op. at 108 n. 6 (citing 416 F.3d at 188), I fail to see how the rule can operate as anything but that.

Although Congress could clearly legislate to address the broader category of all married couples based upon the assumption that a husband would usually oppose his wife’s forced abortion or sterilization, there must be something in the statute or legislative history to support the conclusion that Congress intended to protect the broader category in the first place. The majority’s effort to limit the BIA’s rationale to situations where the husband opposes the forced population control program also ignores the skepticism we expressed about that result in Cai Luan Chen . Significantly, the Board cites Cai Luan Chen to support its analysis in CY-Z-, stating: “[a]s recognized in [Cai Luan\ Chen ..., the ruling in Matter of C-Y-Z- is plausibly based on ‘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.’” S-L-L, 24 I. & N. Dec. at 7 (quoting Cai Luan Chen, 381 F.3d at 225 ). Its use of our precedent is not persuasive.

In Cai Luan Chen , we recognized two possible analytical underpinnings of the BIA’s decision in C-Y-Z-. Id. The first rationale, we explained, may have been “the assumption” that persecution of one spouse resulted in “suffering” in the other spouse “that rises to the level of persecu *118 tion.” Id. But, as we further explained, this interpretation of § 1101(a)(42)(B) only makes sense under the section’s “other resistance to” clause. See id. at 226. Accordingly, we surmised that under this construction “suffering felt by the spouse who did not personally undergo the procedure would constitute the ‘persecution’ to which the [‘other resistance to’ clause] refers, and the other spouse would be deemed to have ‘resisted’ the ‘coercive population control program,’ presumably on the assumption that he or she opposed the procedure.” Id. However, we immediately cautioned that “[t]his interpretation ... is not without difficulties. For example ... [w]hat if the spouse who did not personally undergo the procedure sided with the government and favored the abortion or sterilization?” Id.

Additionally, we recognized that the decision in C-Y-Z- may have rested upon the rationale “that performing a forced abortion or sterilization ... on one spouse constitutes persecution of the other ... because of the impact on the latter’s ability to reproduce and raise children.” Id. However, we also cast a skeptical eye on this reasoning, stating: “[i]t takes some effort to reconcile this interpretation with the language of the 1996 amendment, since the phrase ‘a person who has been forced to [undergo the procedure]’ is most naturally read as referring only to a person who has personally undergone [abortion or sterilization].” Id. Again, we acknowledged that “it could be argued that the loss of opportunity to have and raise children also constitutes persecution for other resistance to a coercive population control program.” Id. Nevertheless, as this dicta in Cai Luan Chen suggests, both theories leading to the result in C-Y-Z- create significant tension with the language of the statute. Yet, my colleagues ignore the doubts we expressed as they outline “the three principal explanations” for the Board’s analysis. Maj. Op. at 108.

C.

Although the unambiguous text of § 1101 (a) (42) (B) makes examination of legislative history unnecessary, I think it significant that the majority’s willingness to defer to the BIA’s interpretation of this statute ignores the legislative history. 15 My colleagues conclude that the statute’s pedigree “does not run counter to [its] decision.” Maj. Op. at 108. I can not agree. In amending the definition of “refugee” to apply to coercive population control policies, Congress intended “to overturn several decisions of the Board of Immigration Appeals, principally Matter of Chang and Matter of G-.” H.R.Rep. No. 104-469(1), at 173 (1996). As the House Report explains, those cases held

that a person who has been compelled to undergo an abortion or sterilization, or has been severely punished for refusal to submit to such a procedure, cannot be eligible on that basis for refugee or as-lyee status unless the alien was singled out for such treatment on account of factors such as religious belief or political opinion.

Id. at 173-74. Obviously, Congress did not authorize refugee status for any violation of “fundamental human rights,” but limited it to violations that are “on account of’ membership in a social group, his/her political opinion, etc. As noted at the outset, the definition of “refugee” is limited to “persecution” based upon one of those specific factors.

*119 Congress believed that the BIA’s holdings in these cases were “unduly restrictive” because they denied asylum protection to “persons who have been submitted to undeniable and grotesque violations of fundamental human rights.” Id. The House Report explains that amending the definition of “refugee” to include persons subjected to coercive family planning policies did not alter the burden of proof for asylum applicants. Rather, “the burden of proof remains on the applicant ... to establish by credible evidence that he or she has been subject to persecution — in this case, to coercive abortion or sterilization— or has a well-founded fear of such treatment.” Id. (emphasis added). The House Report therefore expresses a congressional intent to restrict asylum to the “person” who undergoes the coercive procedure just as clearly as the text of the statute.

I also note that the House Report clearly states that the amended definition of “refugee” “is not intended to protect persons who have not actually been subjected to coercive measures or specifically threatened with such measures, but merely speculate that they will be so mistreated at some point in the future.” Id. (emphasis added). This specifically addresses claims based upon fears that the petitioner may be forced to comply with certain coercive population control measures in the future. However, it is nevertheless consistent with limiting refugee status to the direct victim of forced population control measures. It requires a gigantic leap to read that person’s spouse into the language of the House Report.

My colleagues minimize this language by noting that, although it is backward-looking, it “did not stop Congress ... from providing relief for individuals with a well-founded fear of future forced sterilization or abortion.” Maj. Op. at 109. I agree, but that does not advance our inquiry. We are concerned with whether there is any gap in this statute for agency expertise to fill, and, if so, whether the agency’s interpretation of the statute is permissible. The House Report states that Congress did not intend the amended definition of “refugee” to apply to a person who has not “actually been subjected to coercive measures” or “specifically threatened by such measures.”

The majority believes that Congress did not intend “to define the outer limits of relief’ for asylum claims based on coercive family planning policy. Maj. Op. at 109. I can find no justification for that assumption of congressional intent in the statute or legislative history. Rather, both the statutory text and legislative history make clear that Congress intended to extend asylum only to “a person who” has been subjected to (or has a well-founded fear of being subjected to) coercive family planning policy. Moreover, assuming, arguen-do, that the outer limit was intentionally left fluid, the boundaries still can not be defined in a manner that overflows the confines of § 1101(a)(42)(B).

III.

I began this discussion by expressing regret at not being able to join my colleagues’ analysis. I finish where I began. Although the result the majority achieves has much to commend it, for reasons I have explained, I can not reconcile that result with the language of the statute we must construe. Accordingly, I respectfully dissent. 16

. In 2003, the Immigration and Naturalization Service was abolished and its functions were transferred to the Department of Homeland Security. See Homeland Security Act, 116 Stat. 2135 , Pub.L. 107-296 (2002).

. In Lin, two unrelated cases raising the same issue were consolidated for review. In both cases, an IJ had refused to extend the rule of C-Y-Z- to unmarried couples. The BIA summarily affirmed, and the aliens petitioned the court of appeals for review.

. As I noted earlier, Congress could have extended refugee status to the married couple by amending “refugee” to include "married couples affected by coercive population control policies,” rather than limiting the protection to "a person who has been forced to abort ... or to undergo involuntary sterilization. ...”

. Given the horrors of such sexually-based persecution as "ethnic cleansing,” this is not merely a hypothetical consideration.

. “[I]t is ultimately the provisions of outlaws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998).

. Given all of the problems with the BIA's analysis, I see no need to address the BIA’s *120 attempt to rely on the fact that Congress removed the 1000-person cap that it originally imposed on the number of persons who could obtain asylum under § 1101(a)(42)(B) without reversing the decision in C-Y-Z-. See H.R.Rep. No. 104-589(1), at 174. I agree with my colleagues' assessment that this is “flimsy evidence of congressional- endorsement ...“. Maj. Op. at 108 n. 7. The Board's resort to arguing the significance of the removal of the numerical cap is, however, indicative of the quality of the analysis that we today find “reasonable’’ and entitled to deference under Chevron .