Shi Liang Lin v. United States Department of Justice

KATZMANN, Circuit Judge,

with whom Judges STRAUB, POOLER, and SOTOMAYOR join, concurring in the judgment:

With the majority’s emphasis on denying asylum relief to legal spouses under § 101(a)(42) of the Immigration and Nationality Act (the “INA”), it is easy to lose sight of one fact central to the disposition of these cases: Not one of the petitioners in these consolidated cases was married. *316 In each case, it was the plaintiffs girlfriend, not his wife, who was forced to abort her pregnancy. It is thus unnecessary for us to resolve whether the BIA can legally extend asylum relief to legal spouses; indeed, in doing so, we are addressing not only an issue not presently before us, but also one that the parties in these cases do not even dispute. In their briefs before us, both the petitioners and the Government agree that the statute is ambiguous. 1 The question the parties dispute, and the only one that these cases require us to answer, is whether the BIA’s interpretation of the statute as applied to boyfriends and fiancés is reasonable. Every judge on this Court who reaches this issue agrees that it is.

Thus, this case could have been resolved simply and nearly unanimously by assuming the reasonableness of the BIA’s construction of the statute as applied to legal spouses and then holding that it was also reasonable as applied to boyfriends and fiancés. See Cai Luan Chen v. Ashcroft, 381 F.3d 221, 227 (3d Cir.2004) (Alito, J.) (assuming “for the sake of argument” that “C-Y-Z-’s interpretation is permissible” as applied to legal spouses and then determining whether the BIA was reasonable in distinguishing “between married and unmarried couples”). Instead, the majority has gone out of its way to create a circuit split where none need exist, see Maj. Op. at 300 n. 4, thereby frustrating the BIA’s uniform enforcement of a national immigration policy. 2 Finding in textual silence an expression of unambiguous congressional intent, the majority has rejected the BIA’s determination that § 101(a)(42) is ambiguous.

When a governmental body with substantial experience in interpreting a complex statutory scheme concludes that a statute is ambiguous, that determination should give us pause. Here, the fact that the BIA concluded that the INA is ambiguous with respect to the question we are called upon to answer suggests that we would do well to probe further, to consider whether the seemingly plain language belies a more complicated meaning. It suggests that we should consider carefully not only the text of the statute, but also the context — both the events that gave rise to that text and the various agency and judicial responses to it. Text without context can lead to confusion and misunderstanding. The majority’s analysis is testament to that proposition. 3

*317 In answering the first of the questions set out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), that is, whether “the statute is silent or ambiguous with respect to the specific issue,” id. at 843 , 104 S.Ct. 2778 , we must look to the text of § 101(a)(42) of the INA. That text provides, in pertinent part, that a refugee is

any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to ... that country because of persecution ... on account of ... political opinion.... For purposes of determinations under this chapter, 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....

8 U.S.C. § 1101 (a)(42). The majority focuses its textual analysis on the final sentence of that provision, that is, § 601(a) of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRI-RA”), concluding that the BIA’s decision “rested on” that sentence, and not the general definition of “refugee” in 8 U.S.C. § 1101 (a)(42). Maj. Op. at 302-03. Yet, as the majority notes, the BIA found that “ ‘[tjhere is no clear or obvious answer to the scope of the protections afforded by the amendment to partners of persons forced to submit to an abortion or sterilization.’ ” Maj. Op. at 304. 4 Reasoning that the “lack of ... a reference” to spouses in the 1996 amendment “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,” the Board looked to the “general principles regarding nexus and level of harm” for guidance. In re S-L-L-, 24 I. & N. Dec. 1, 5 (B.I.A.2006); see also id. at 5 n. 5 (citing to the general regulatory framework that defines when an applicant may qualify as a refugee); id. at 6 (considering the “well-established principles regarding nexus and level of harm for past persecution”).

Thus, although the majority places great emphasis on its view that the “language in § 601(a) ... is unambiguous and ... does not extend automatic refugee status to spouses or unmarried partners of individuals § 601(a) expressly protects,” Maj. Op. at 300, I find the focus on the amendment misplaced. I believe we must look instead to the entirety of 8 U.S.C. § 1101 (a)(42) to *318 determine whether the statute is ambiguous. See SEC v. Chenery Corp., 332 U.S. 194, 196 , 67 S.Ct. 1575 91 L.Ed. 1995 (1947) (“[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”). 5 That section provides that a “refugee” is any individual who cannot return to his or her home country because of “persecution ... on account of ... political opinion.” None of these terms is defined in any way, and none explicitly addresses whether the spouses of those who have been forced to undergo an abortion or sterilization are entitled to asylum relief. 6 Hence, the statute, on its face, does not “directly address! ] the precise question at issue.” Chevron, 467 U.S. at 843 , 104 S.Ct. 2778 ; cf. Sun Wen Chen v. U.S. Att’y Gen., 491 F.3d 100, 106 (3d Cir.2007) (“[T]he C-Y-Z- rule thus fleshes out an issue germane to the application of § 1101(a)(42)(B) that was not addressed by Congress, and so poses no Chevron step one problem.”).

Indeed, the majority points to no language in the statute that explicitly denies asylum relief to these spouses, or that precludes the BIA from extending it to them. Cf. 8 U.S.C. § 1101 (a)(42) (explicitly precluding from the definition of “refugee” individuals “who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion”). Rather, the majority takes the position that “Congress’s specific designation of some persons (i.e., those who fear, resist, or undergo particular medical procedures) is incompatible with the view that others (e.g., their spouses) should also be granted asylum per se because of birth control policies. The inclusion of some obviously results in the exclusion of others.” Maj. Op. at 306-07. But where the majority reads the language of the 1996 amendment and sees it as a limitation on the availability of asylum relief, I see it, in the context in which it was enacted, as an expansion of that relief.

I believe one question is fundamental: What was Congress’s purpose in enacting the 1996 amendment? Cf. Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 197 (2d Cir.2005) (noting the “canon of statutory construction that requires us to reconcile a statute’s plain language with its purpose”). In answering that question, we should not limit our inquiry to the language of the amendment; instead, we must look at the statutory scheme of which that amendment is a part and the legisla *319 tive activity that led to its enactment. Congress’s intent in enacting IIRIRA § 601(a) was to clarify that, contrary to the BIA’s prior rulings, the imposition of some aspects of China’s family planning policy can constitute persecution on the basis of political opinion, and that certain victims of that persecution are entitled to protection under our asylum laws. Nothing in the amendment suggests that Congress intended to prevent the BIA from extending relief to victims other than those explicitly identified in the amendment. See Sun Wen Chen, 491 F.3d at 109 (“We are not convinced that Congress, in expanding asylum to include more reproductive rights-based claims, intended to define the outer limits of relief in such cases.”). There is thus some irony in the majority’s approach: By giving short shrift to context, it infers an intent to limit the availability of asylum relief; had it looked more closely at context, it would have recognized Congress’s intent was only to expand that relief. 7 Context makes clear what text alone fails to convey.

The INA provides asylum relief to individuals who have been “persecut[ed] ... on account of ... political opinion,” but does not define those terms. In Matter of Chang, 20 I. & N. Dec. 38 (B.I.A.1989), the BIA held that whatever else “persecution” might mean, it did not encompass any retribution visited upon individuals who violated China’s “one couple, one child” policy. The BIA ruled that the policy “is [not] on its face perseeutive” and does not “persecute] any portion of the Chinese citizenry on account of one of the reasons enumerated in section 101(a)(42)(A) of the Act.” Id. at 43, 44 .

Others in the executive branch took a different view. The next year, the Department of Justice issued “interpretative rules and general statements of policy for establishing statutory eligibility for asylum or withholding of deportation on the basis of political opinion for aliens who express a fear of coercive population control policies in their homeland.” Refugee Status, Withholding of Deportation and Asylum; Burden of Proof, 55 Fed.Reg. 2803, 2804 (Jan. 29, 1990). 8 President George H.W. Bush reaffirmed his Administration’s support of the interim rule with the promulgation of *320 Executive Order 12,711, which provided for “enhanced consideration under the immigration laws for individuals from any country who express a fear of persecution upon return to their country related to that country’s policy of forced abortion or coerced sterilization.” Exec. Order No. 12,711, 55 Fed.Reg. 13,897,13,897 (Apr. 11, 1990).

Although the INS, in July 1990, set forth a final rule that did not address this issue, see Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed.Reg. 30,674 (July 27, 1990), the Office of the General Counsel of the INS subsequently sent a letter to Regional and District Counsel stating that “Department of Justice and INS ‘policy with respect to aliens claiming asylum or withholding of deportation based upon coercive family planning policies is that the application of such coercive policies does constitute persecution on account of political opinion.’ ” Xin-Chang Zhang v. Slattery, 55 F.3d 732, 740 (2d Cir.1995), superseded by 8 U.S.C. § 1101 (a)(42) (quoting INS letter to Regional and District Counsel).

In January 1993, Attorney General William P. Barr signed a final rule that would have made this view law. It provided, in pertinent part, that “[a]n applicant (and the applicant’s spouse, if also an applicant) shall be found to be a refugee on the basis of past persecution on account of political opinion if the applicant establishes that, pursuant to the implementation ... of a family planning policy ... the applicant has been forced to abort a pregnancy or to undergo sterilization or has been persecuted for failure or refusal to do so.” AG Order No. 1659-93, at 14 (Jan. 15, 1993) (to be codified at 8 C.F.R. 208) (“January 1993 Rule”). Although this rule was sent to the Federal Register, where it was made available for public inspection and scheduled for publication, it was never published due to the change in presidential administrations. Xin-Chang Zhang, 55 F.3d at 741 . In February, additional regulations pertaining to asylum were published, but these made no mention of the January rule. Id.

Against the background of these conflicting BIA decisions and administrative regulations, we were asked to determine whether asylum relief was available to victims of China’s family planning policy. We held that such relief was not available, explaining that “[e]ven were we to accept [the] view that the ‘administrative cacophony’ surrounding the issue justified diminished deference to Chang, our result would not change. It is difficult to frame a result different from the holding of Chang that would be ‘reasonable’ under both Elias-Zacarias and the existing immigration laws.” Id. at 752 ; see also INS v. Elias-Zacarias, 502 U.S. 478 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992). We did not stop there, however. Instead, we called upon Congress and the President to determine whether relief should be available to the victims of China’s family planning policy: “No doubt, the President and the Congress acting together have power to create an exception to the existing immigration laws for PRC citizens....” Id.

The next year, Congress enacted IIRI-RA § 601(a). The House Committee Report explained that Congress’s “primary intent” in amending the definition of refugee was “to overturn several decisions of the [BIA], principally Matter of Chang and Matter of G-,” H.R.Rep. No. 104-469(1), 1996 WL 168955 , at *173 (1996), in which the BIA had held that “the Chinese Government’s implementation of its family planning policies is not on its face persecutive and does not by itself create a well-founded fear of persecution on account of one of the five grounds delineated in the Act, even to the extent that involuntary *321 sterilization may occur,” Matter of G-, 20 I. & N. Dec. 764, 778 (B.I.A.1993); Matter of Chang, 20 I. & N. Dec. at 43-44; see also Junshao Zhang v. Gonzales, 434 F.3d 993, 995 (7th Cir.2006) (“The impact of that amendment was to overrule Chang, and allow for the granting of asylum applications in cases in which the claim of persecution stemmed from the enforcement of China’s coercive population control policies.”); H.R.Rep. No. 104-469(1), 1996 WL 168955 , at *174 (criticizing the BIA decisions for “effectively precluding] from protection persons who have been submitted to undeniable and grotesque violations of fundamental human rights”); id. (noting that “the BIA’s rationale for these opinions — that policies of coercive family planning are ‘laws of general application’ motivated by concerns over population growth, and thus are not ‘persecutory’ — is unduly restrictive”). 9

When Congress stated that “[f]or purposes of determinations under this [Act], 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,” 8 U.S.C. § 1101 (a)(42)(a), it was not providing an exhaustive list of those who could claim asylum relief because they were victimized by China’s family planning policy. Rather, it was expressing a congressional determination that, contrary to the BIA’s prior rulings, China’s “one couple, one child” policy is on its face persecutory, and vietims of that policy who experienced persecution should be able to qualify for asylum relief without making an additional showing of their own political opinion.

The majority takes the position that § 601(a) does not “alter the pre-IIRIRA definition of ‘political opinion’ in § 1101(a)(42)” and that, for the individuals identified in § 601(a), “their political opinion exists de jure rather than as a matter of fact on which the applicant bears the burden of proof.” Maj. Op. at 307, 308. It notes, in this regard, that the amendment provides that those who have been subjected to forced procedures “ ‘shall be deemed’ persecuted by reason of political opinion,” Maj. Op. at 307, and that “[t]o ‘deem’ is ‘[t]o treat (something) as if (1) it were really something else, or (2) it has qualities that it doesn’t have,’ ” Maj. Op. at 307 n. 9 (quoting Black’s Law Dictionary 446 (8th ed.2004)). But, as the majority acknowledges, there is more than one definition of the word “deem”; it may also mean “[t]o consider, think, or judge.” Black’s Law Dictionary 446 (8th ed.2004). Thus, in this context, Congress’s use of the word “deemed” may mean that these individuals should be “judged” as having been persecuted on account of political opinion, just as the proposed 1993 rule provided that these applicants “shall be found to be ... refugee[s] on the basis of past persecution on account of political opinion.” January 1993 Rule, at 14. 10 Indeed, the legislative *322 history suggests that Congress was not attempting to create an exception to Matter of Chang , but to overrule it; and if Congress were attempting to carve out an exception to the normal requirement that applicants must establish that they have faced persecution on account of one of the protected grounds, it could have done so in much plainer language. In any event, the statute is, at a minimum, ambiguous, and it is the BIA, not the courts, that is charged with construing the statute in the face of that ambiguity.

Other circuits to have considered this issue have held that when Congress enacted the 1996 amendment it intended to protect both members of couples that are targeted under China’s family planning policy. See, e.g., Junshao Zhang, 434 F.3d at 999 (“Congress passed § 601(a)(1) of the IIRIRA to ensure that families who are victims of forced abortion and sterilization under China’s population control policy would receive asylum .... ” (emphasis added)); Kui Rong Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir.2004) (identifying “Congress’s goal in passing the amendments — to provide relief for ‘couples ’ persecuted on account of an ‘unauthorized’ pregnancy and to keep families together” (emphasis added)). We need not go as far as these courts to affirm the BIA’s decision here. Even if Congress did not specifically intend to protect “couples,” there is nothing in the text of the amendment, or the context that gave rise to it, that indicates that it intended to preclude the BIA from extending asylum relief to both members of a couple. See Sun Wen Chen, at 109 (granting Chevron deference to the BIA’s interpretation in In re S-L-L-). 11

*323 Just as nothing in the language or history of the amendment indicates a congressional intent to foreclose the extension of relief to spouses, Congress has done nothing to indicate such an intent in the years since the amendment’s enactment, notwithstanding that the BIA interpreted § 1101(a)(42) to cover spouses a decade ago and numerous courts of appeals have upheld this interpretation as reasonable. See, e.g., Yuan, 416 F.3d at 197 ; Junshao Zhang, 434 F.3d at 999 ; Kui Rong Ma, 361 F.3d at 559 (“The BIA and the courts have uniformly applied the statute’s protections to husbands whose wives have undergone abortions or sterilization procedures, as well as to the wives themselves.”); In re C-Y-Z-, 21 I. & N. Dec. 915, 918-19 (B.I.A.1997) (en banc). There are obscure areas of public policy, largely hidden from public attention and concern, in which it makes little sense to ascribe meaning to the absence of congressional response to administrative and judicial interpretations of a statute. Immigration is hardly one of those areas. To the contrary, immigration — and the issue of the appropriate scope of asylum relief — have consistently been on Congress’s radar. Immigration is frequently in the news, and Congress has repeatedly legislated in this area. Indeed, as recently as 2005, Congress revisited this very provision and removed the annual cap on the number of asylees who could be admitted under it. See REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, §§ 101(g)(2), (h)(5), 119 Stat. 231 , 305-06 (May 11, 2005). While the fact that Congress, in the course of its active attention to immigration issues and legislation, has not amended 8 U.S.C. § 1101 (a)(42) in light of the interpretation it has been given by the BIA and the courts does not definitively mean that Congress intended to protect spouses, it does suggest, at the very least, that it was not Congress’s intent to foreclose that relief.

The majority nonetheless holds that it was “not correct” for the BIA to construe the general definition of “refugee” to allow for the provision of this relief because “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.” Maj. Op. at 307-08. I agree that an individual must have personally experienced persecution to be entitled to asylum relief, but that statement begs the question of what constitutes persecution.

The statute does not, in either the 1996 amendment or in its general definition of the term “refugee,” prescribe exactly how much harm or what kind of harm an individual must experience to have been “persecuted” within the meaning of the statute. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340 (2d Cir.2006) (noting that the term “persecution” is “not defined by the Immigration and Nationality Act”); see also Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A.1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & *324 N. Dec. 439 (B.I.A.1987) (defining persecution as “either a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive” (emphasis added)); see also Ivanishvili, 433 F.3d at 341 (acknowledging the BIA’s definition of “persecution” as “the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground.”). The 1996 amendment states that when one is forced to undergo an abortion or sterilization, the harm thereby experienced is sufficient to qualify for asylum, but it hardly makes that level of harm necessary.

The majority may view the 1996 amendment as providing that only individuals who have undergone a forced abortion or sterilization have experienced “persecution.” If so, we again differ on our interpretation of the significance of the 1996 amendment. I believe Congress enacted the 1996 amendment not primarily to define the term “persecution,” but to clarify what it means to be persecuted “on account of political opinion.” As noted above, Congress sought to make clear, contrary to the BIA’s earlier decision in Matter of Chang , that the imposition of penalties through the implementation of China’s family planning policy can constitute persecution “on account of political opinion” by effectively adopting the position taken in the commentary to the 1993 rule that, “[a]lthough ... prosecution and punishment under a law of general applicability will not ordinarily constitute persecution ‘on account of one of the statutory grounds, ... [persecution on account of political opinion encompasses persecution of people whose violation of laws may not be motivated by their political opinions but is regarded by the state as political disloyalty.” January 1993 Rule, at 8.

Thus, I do not think that § 601(a) unambiguously defines the term persecution, and the majority has pointed to nothing in the statute that suggests that the emotional and psychological harm one suffers when one’s spouse is forced to undergo an abortion or sterilization is not severe enough to constitute persecution. Nor does anything in the statute preclude the BIA from considering the effect that China’s family planning policies may have on a couple’s shared right to reproduce and raise children. Because Congress did not specifically address these issues, the statute is ambiguous. It therefore falls to the BIA to determine whether the harm an individual experiences when his or her spouse is subjected to a forced abortion or sterilization is sufficient to constitute persecution. See, e.g., Kuhali, 266 F.3d at 102 (granting “Chevron deference to the Board’s construction of the INA, which it ... administer[s]”); cf. Sun Wen Chen, 491 F.3d at 107 (noting that the BIA “exercised its delegated gap-filling authority reasonably” when it recognized the harms an individual experiences as a result of the forced abortion or sterilization of his spouse). By holding that persecution cannot encompass such individuals, the majority, as Judge Sotomayor cogently explains, usurps the BIA’s task of giving meaning to ambiguous statutory terms. Further, by suggesting that the BIA is creating a presumption which allows individuals to be granted asylum without proving that they were “persecuted ... on account of political opinion,” the majority errs. The BIA here created no presumption; rather, fulfilling a basic responsibility, it simply discerned the meaning of those ambiguous terms. 12

*325 Finally, the majority finds support for its reading of the statute in its perception that there is some tension between this rule and the provision of derivative asylum status for spouses of individuals who qualify as “refugees.” Maj. Op. at 312-15. But in adopting this rule, the BIA provided a basis by which individuals could claim asylum relief in their own right for harm they suffered as a result of their spouses’ forced abortion or sterilization. There is no apparent tension in providing derivative asylum status to spouses who have not themselves suffered any harm and providing an additional basis of relief to those spouses who have, that is, those who have themselves suffered harm when their partners were subjected to a forced abortion or sterilization. See 8 U.S.C. § 1158 (b)(3)(A) (providing derivative asylum to spouses who are “not otherwise eligible for asylum under this section”); cf. Junshao Zhang, 434 F.3d at 1001 (noting that “it would be particularly perverse for courts to treat a subsequent break-up of the marriage as somehow lessening the impact of [the pri- or] persecution [of the husband]”). Because there is no tension in providing these two separate, distinct forms of relief, it does not seem to me that the availability of derivative asylum relief unambiguously precludes the BIA from providing an additional basis of relief to those whose spouses have been subjected to a forced abortion or sterilization. See Sun Wen Chen, at 105 (“We ... do not believe that the existence of derivative asylum status under a statute implies that Congress intended to foreclose additional pathways to asylum specific to spouses.”).

At bottom, the majority seems to be motivated by a concern that the BIA’s rule will “gut or ... undermine” the availability of derivative asylum relief or have “the perverse effect > of creating incentives for husbands to leave their wives.” Maj. Op. at 312. But nothing in the BIA’s rule denies relief of any kind to husbands who come to this country with their wives; moreover I think it very likely that husbands will find it advantageous to come with their wives -when possible because doing so will buttress the credibility' of their claims. In the end, however, my views of the policy consequences of the BIA rule are immaterial; so, too, are those of the majority. Once we determine that the statute is ambiguous, we must defer to the BIA’s interpretation of the statute if it is reasonable, whatever our own personal policy preferences. See, e.g., Udall v. Tollman, 380 U.S. 1, 16 , 85 S.Ct. 792 , 13 L.Ed.2d 616 (1965) (“To sustain the Commission’s application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.” (quotation marks omitted)).

In considering the reasonableness of the BIA’s interpretation under step two of Chevron , our charge is not to determine whether the BIA’s interpretation of the statute is the one we would have adopted in the first instance. Instead, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute”; we must defer to “legislative regulations ... unless they are *326 arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843, 844 , 104 S.Ct. 2778 . Here, in determining whether to extend asylum relief to spouses, the BIA reasonably considered the general principles underlying the definition of persecution and concluded that a husband is persecuted “when the government forces an abortion on a married couple.” In re S-L-L-, 24 I. & N. Dec. at 6 ; see also id. (“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.”). I see no reason why the BIA could not reasonably conclude that one has suffered harm or injury sufficiently severe to constitute persecution when one’s spouse is forced to undergo an abortion or sterilization. Indeed, this determination finds support in the decisions of a number of courts that have explicitly recognized that non-physical harm may support a finding of past persecution in at least some circumstances. See Junshao Zhang, 434 F.3d at 1001 (rejecting explicitly the “notion that [a husband] suffers no persecution independent of his wife, as the result of the forcible abortion of his child” and holding that “[although his wife was certainly a very direct victim of China’s population control measures, Zhang was a victim as well. The forcible abortion has deprived him of his unborn child, of the ability to realize the family that his wife and he had desired, and forever deprived him of the ability to become a parent to that unborn son or daughter with his wife”); see also Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir.2006) (noting that “[u]n-der the right set of circumstances, a finding of past persecution might rest on a showing of psychological harm” (quotation marks omitted)); Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir.2004) (“Persecution may be emotional or psychological, as well as physical.”); Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir.2004) (holding that the applicant was entitled to asylum “based on her fear that her daughter will be forced to undergo female genital mutilation” because her “fear of ... being forced to witness the pain and suffering of her daughter is well-founded”).

The BIA also determined that there were not “convincing reasons to extend the nexus and level of harm attributed to a husband who was opposed to his wife’s forced abortion to a boyfriend or fiancé.” In re S-L-L-, 24 I. & N. Dec. at 9 . 13 Recognizing that “marriage placets] the husband in a distinctly different position from that of an unmarried father,” id., the BIA noted that unmarried fathers do not bear the same legal and societal responsibility for violations of family planning policies. Indeed, because their relationships with their partners are not registered with the government and may not even be known within the community, the government may often be unaware of their identities. See id. at 9-10 . The BIA thus presumed that the family planning officials target legal spouses for persecution to a greater extent than boyfriends and fiancés. See id. Furthermore, “[p]roof or presumption of paternity ... may be considerably more difficult when a boyfriend claims to have fathered a child who was forcibly aborted by government officials.” *327 Id. at 10 . Although, as the BIA itself acknowledges, “drawing the line at marriage is not” perfect, id. at 9 , and reasonable policymakers could differ as to how to draw the line, I cannot say that, under the deferential standard which guides us, the BIA’s reading is not based on a permissible construction of the statute. See Chevron, 467 U.S. at 843 , 104 S.Ct. 2778 . 14 If Congress disagrees with the BIA’s interpretation, it can overturn the decision. 15

This case presents difficult and challenging questions at the heart of our immigration laws. How we respond will affect the hopes and dreams of human beings seeking to live in freedom. In enacting the INA, Congress established a framework for determining when asylum relief should be provided to such individuals, and in doing so, it delegated considerable authority to the BIA to fill in statutory gaps and define the broad language used in the INA. It is in situations such as these that we should be particularly mindful of the views of the agency charged by Congress with administering the statute, views that will reflect the agency’s considerable experience and expertise. We should recognize that in such circumstances what is advanced as the obvious answer may not be the right one. Here, the meaning of the text becomes much less clear when one examines context, and the BIA, recognizing that ambiguity, has offered a reasonable interpretation of the statute. I would defer to that interpretation.

.The Department of Homeland Security (“DHS”) advanced a different view before the BIA. The majority “assume[s] that the Solicitor General will take appropriate action to recommend or assure that the views of DHS and this Court will be represented in any future proceedings.” Maj. Op. at 310 n. 11. In so doing, the majority ignores the historic independence of the Office of the Solicitor General in determining the executive branch's position before the Supreme Court. When agencies of the executive branch have taken inconsistent positions, as they have here, the Solicitor General may choose among those positions, or it may adopt any other available litigation position. The Solicitor General has no obligation to endorse the preferred legal theory of the court below. To the extent the majority attempts to influence the position the Solicitor General will take in future proceedings, that effort is inappropriate.

. In a related context, we remanded to the BIA to address the proper scope of the term "refugee” in the first instance, noting that "it would be unsound for each of the several Courts of Appeals to elaborate a potentially nonuniform body of law” and describing uniformity as “especially desirable in cases such as these.” Jian Hui Shao v. BIA, 465 F.3d 497, 502 (2d Cir.2006).

. The majority finds my decision to engage in this analysis "perplexing]” given my belief that we need not — and should not — answer today a question that this case does not require us to answer and the proper resolution of which the parties do not dispute. Although *317 I believe we should have limited our decision to the BIA’s treatment of boyfriends, the majority has nonetheless chosen to address its treatment of husbands. I would be remiss if I did not discuss both why I believe the majority’s discussion of this issue is unnecessary and also why I believe it is wrong.

. Although we remanded to the BIA to "more precisely explain its rationale for construing IIRIRA § 601(a)” to protect spouses, Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184 , 187 (2d Cir.2005), nothing in that decision precluded the BIA from looking to the more general language in the statute in determining whether to extend relief to spouses. Indeed, the BIA had the authority to interpret the meaning of 8 U.S.C. § 1101 (a)(42) independent of our remand in Lin. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 , 119 S.Ct. 1439 , 143 L.Ed.2d 590 (1999) ("The Attorney General ... has vested the BIA with power to exercise the discretion and authority conferred upon the Attorney General by law in the course of considering and determining cases before it. Based on this allocation of authority, we [have] recognized ... that the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication ...." (quotation marks and citation omitted)); see also Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir.2001) (granting "Chevron deference to the Board’s construction of the INA, which it ... administers]”).

. Even if the BIA construed only the 1996 amendment, it would still be necessary to consider the text of the entire statute and the context against which that amendment was enacted to determine whether the 1996 amendment is itself ambiguous within the meaning of Chevron. See Natural Res. Def. Council v. Abraham, 355 F.3d 179 , 198 (2d Cir.2004) ("In interpreting the plain language of the statute, we must look to the particular statutory language at issue, as well as the language and design of the statute as a whole, and, where appropriate, its legislative history.” (quotation marks omitted)). Because I believe the BIA held that the entire provision was ambiguous, it is not necessary to determine here whether the 1996 amendment alone is ambiguous. Thus, contrary to Judge Calabresi’s suggestion, Judge Calabresi Op. at 343 n. 6, I do not necessarily agree that the BIA could not have relied on § 601(a) to provide asylum relief to spouses.

. I agree with Judge Calabresi that this "general language” in 8 U.S.C. § 1101 (a)(42) means that the BIA, with its expertise in this area, is particularly well-suited to exercise its discretion and decide how that language should be interpreted. Judge Calabresi Op. at 338. Judge Calabresi and I differ as to whether the BIA has already exercised that discretion.

. The majority's recognition that § 601(a) expanded the availability of asylum relief does nothing to explain why this language, which by its terms only expands relief, should also be read to have limited the BIA’s preexisting authority to further expand it. Although the majority suggests that I rely on "messages [I] hear[] in the sounds of Congressional silence,” Maj. Op. at 311 n. 12, all that I actually find in silence, especially given the context, is ambiguity. See Chevron, 467 U.S. at 843 , 104 S.Ct. 2778 (noting that we turn to Chevron step two "if the statute is silent or ambiguous with respect to the specific issue”); see also Sun Wen Chen, 491 F.3d at 105 ("Chevron deference embodies the judgment that agencies, rather than courts, ought to serve as gap-fillers in situations of statutory silence.”). It is the majority that appears to find in silence clear evidence of Congress's intent.

. These amendments to the asylum regulations appear to contemplate the possibility that asylum relief would be available to the spouses of those who were subject to forced abortion or sterilization. See Refugee Status, 55 Fed.Reg. at 2805 (to be codified at 8 C.F.R. § 208.5 (b)(2)) (“An applicant who establishes that the applicant (or applicant's spouse) has refused to abort a pregnancy or to be sterilized in violation of a country’s family planning policy, and who has a well-founded fear that he or she will be required to abort the pregnancy or to be sterilized or otherwise persecuted if the applicant were returned to such country may be granted asylum.”); see also id. (to be codified at 8 C.F.R. § 242.17 (c)) ("Eligibility for withholding of deportation on account of political opinion is established by the respondent who establishes that he or she (or respondent's spouse) will be required to abort a pregnancy or to be sterilized. ...”).

. As previously noted, Attorney General Barr had attempted to “supersede the [BIA] decision in Matter of Chang," January 1993 Rule, at 4-5, but his efforts fell victim to a change in presidential administrations. See Xin-Chang Zhang, 55 F.3d at 741 . Noting that the next administration had thus far failed to take action, Congress stepped in to accomplish the same goal through legislation. See H.R.Rep. No. 104-469(1), 1996 WL 168955 , at *174 (“[T]he Administration, which has the authority to overrule the BIA decisions through regulation or through decision of the Attorney General, has not done so. Nor has it offered adequate relief to persons who have undergone such coercion.”).

. That two definitions of the term exist suggests, at the very least, that there is ambiguity in Congress’s use of the term, and the fact that Black’s Law Dictionary may favor one definition is hardly sufficient to dispel that ambiguity. Indeed, although Black's Law Dictionary may describe the majority’s preferred usage as the .more “traditionalf]” one *322 and may discourage other uses, the word "deem” has long been used to mean "consider, think, or judge.” See, e.g., U.S. Const, art. V ("The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution ....” (emphasis added)); 15 U.S.C. § 80b-3(j) (“The Commission is authorized to adopt rules, regulations, and orders ... as it deems appropriate to implement this subsection.” (emphasis added)).

Indeed, Congress has repeatedly used the term "deem” in the INA itself to mean "consider, think, or judge.” See, e.g., 8 U.S.C. § 1101 (a)(27)(J)(i) (defining the term "special immigrant” to include "an immigrant who is present in the United States ... who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed eligible by that court for long-term foster care due to abuse, neglect, or abandonment” (emphasis added)); id. § 1103(a)(3) (providing that the Secretary of Homeland Security may "perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter” (emphasis added)). A "normal rule of statutory construction” provides that "identical words used in different parts of the same act are intended to have the same meaning.” Beharry v. Ashcroft, 329 F.3d 51, 61 (2d Cir.2003) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 570 , 115 S.Ct. 1061 , 131 L.Ed.2d 1 (1995) (quotation marks omitted)). Even if this rule does not conclusively resolve any ambiguity created by the existence of the two definitions, Congress's use of the allegedly disfavored definition elsewhere in the INA renders the meaning of "deemed” in § 1101 (a)(42), at the very least, ambiguous.

. Although "[gjeneral language of a statutory provision ... will not be held to apply to a matter specifically dealt with in another part of the same enactment,” D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 , 52 S.Ct. 322 , 76 L.Ed. 704 (1932), that rule has no applicability here where the specific provision does not address whether spouses should be entitled to relief. In the 1996 amendment, Congress identified a particular category of individuals entitled to relief, but left to the BIA the task of determining whether to expand upon that relief, just as the BIA routinely defines what individuals are entitled to asylum relief in a myriad of other contexts.

Indeed, there is some language in the legislative history which suggests that Congress may have considered the possibility that indi *323 viduals other than those who had been forced to undergo an abortion or sterilization might qualify for asylum. The House Committee Report on the amendment noted that "[dieter-mining ... whether the actual or threatened harm rises to the level of persecution is a difficult and complex task, but no more so in the case of claims based on coercive family planning than in cases based on other factual situations. Asylum officers and immigration judges are capable of making such judgments.” H.R.Rep. No. 104-469(1), 19. 96 WL 168955 , at *174. If only those subjected to the procedures could claim asylum relief, immigration judges and the BIA would never have needed to consider whether an applicant’s harm rises to the level of persecution, given that the amendment explicitly provides that a forced abortion or sterilization does rise to this level.

. The majority’s assertion that § 601 "relieve[s] ... persons who actually experienced a forcible abortion or sterilization from the burden of proving a political nexus” is similarly problematic. Maj. Op. at 308-09. In my view, Congress did not relieve anyone of *325 the burden of proving political nexus. Rather, it determined that an applicant can meet this burden by establishing proof of persecution pursuant to a coercive family planning policy. Given the majority’s agreement that any asylum applicant may "rely[ ] on evidence of a forced abortion or sterilization — whether personal or spousal — in attempting to demonstrate persecution based on political opinion,” Maj. Op. at 309 (emphasis added), I fail to see what additional evidence an applicant whose spouse was subjected to a forced abortion or sterilization would have to show to carry his burden of proving political nexus.

. Because petitioner Dong, the only petitioner whose claim we address on this appeal, had not participated in a traditional marriage ceremony, I need not determine now whether the BIA's rule would also be reasonable as applied to individuals who were not old enough to marry under Chinese law and who participated in such a ceremony. Compare Junshao Zhang, 434 F.3d at 999 (holding that the BIA rule is unreasonable in this context), and Kui Rong Ma, 361 F.3d at 560 (same), with Cai Luan Chen, 381 F.3d at 231 (holding that the BIA rule is reasonable).

. Because petitioner Dong was not married and has not otherwise established his eligibility for asylum relief, I agree with the majority that his petition for review should be denied. I also agree that the petitions of Lin and Zou should be dismissed.

. The BIA, too, remains free to revisit its decision. Although Judge Calabresi suggests that my approach "preclude[sj the agency from thinking deeply and fully about the matter,” Judge Calabresi Op. at 343, I do not understand why this would be so. Unlike the majority, I do not purport to offer an authoritative constructive of 8 U.S.C. § 1101 (a)(42); I would hold only that the statute is ambiguous and that the BIA’s interpretation is reasonable. As Judge Calabresi elsewhere acknowledges, id. at 335 , the BIA may always change its own interpretation of statutory law, so long as the change is not inconsistent with that law. See, e.g., Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 , 125 S.Ct. 2688 , 162 L.Ed.2d 820 (2005) ("For if the agency adequately explains the reasons for a reversal of policy, change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.” (quotation marks omitted)).