Shi Liang Lin v. United States Department of Justice

SOTOMAYOR, Circuit Judge,

with whom Judge POOLER joins, concurring in the judgment:

Today’s decision marks an extraordinary and unwarranted departure from our longstanding principles of deference and judicial restraint. Instead of answering the limited question before us — whether the BIA’s denial of asylum to the unmarried partners of women forced to undergo abortions or sterilization was unreasonable— the majority has chosen to go far beyond it to address an issue that is unbriefed, unargued, and unnecessary to resolve this appeal. Indeed, the cases before us, which involve only unmarried petitioners, are inappropriate vehicles through which to opine on the merits of the BIA’s position with respect to spouses under 8 U.S.C. § 1101 (a)(42). 1 See Carducci v. Regan, *328 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, J.) (“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”); see also Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 224 , 117 S.Ct. 1174 , 137 L.Edüd 369 (1997) (declining to reach question which received little or no attention from the parties and noting “prudence dictates that we not decide this question based on such scant argumentation”). Moreover, as Judge Katzmann’s concurrence, in which I fully join, cogently notes, today’s holding simply ignores the context animating § 601’s enactment and further upends congressional intent by reading the statute too narrowly. Section 601 was, after all, expressly enacted to expand, not contract, the availability of asylum under § 1101(a)(42) in the context of coercive population control programs.

I will not reiterate what Judge Katz-mann has already ably stated. I write separately to highlight the potentially ill-considered breadth of the majority opinion, which appears to east doubt on our own circuit’s caselaw, as well as to create further circuit conflicts when such outcomes are easily avoided. Most importantly, however, I write because the majority’s zeal in reaching a question not before us requires the unprecedented step of constricting the BIA’s congressionally delegated powers — a decision whose ramifications we are ill-prepared, given the procedural posture of this case, to understand or appreciate fully.

The majority analyzes § 601 within the broader framework of the INA and concludes that “[njothing in the general definition of refugee would permit ‘any person’ who has not personally experienced persecution or a well-founded fear of future persecution ... to obtain asylum.” Maj. Op. at 306-07. Again, I agree fully with Judge Katzmann’s discussion of the fatal flaws in this analysis, and I seek only to emphasize the majority’s apparent failure to appreciate that this deceptively simple proposition may unduly and inappropriately limit the BIA not merely in cases under § 601 but in others as well.

In coming to its conclusion, the majority endorses the view that “persecution” can only be direct and personal, by which it appears to mean that the granting of asylum can never be based on, in whole or in part, harm to others, no matter how closely related the harm or the person harmed is to the applicant or whether harm to another is directed in whole or in part toward the applicant. 2 The majority tries to anchor this limiting principle to the text of the statute, but such a reading is unwarranted and unsupportable. It is pellucidly clear from the text of § 1101(a)(42) that Congress did not define nor intend to define “persecution” to exclude harms “not personally” suffered by an applicant. The statute instead reads that “any person” who “because of persecution or a well- *329 founded fear of persecution” is “unable or unwilling” to return to his or her country is entitled to asylum. There is no indication whatsoever of how personal or direct the harm or injury must be, only that persecution to an individual can merit asylum protection. 3 We should, moreover, eschew the limiting construction of § 601 and § 1101(a)(42) urged in today’s opinion because such a construction could lead to absurd results. United States v. Dauray, 215 F.3d 257, 264 (2d Cir.2000) (“A statute should be interpreted in a way that avoids absurd results.”). If government officials shot and killed an asylum applicant’s child to force him or her to convert to another religion, would that harm, which the majority would ostensibly label “not personal,” be insufficient in itself to demonstrate persecution of that applicant? Or what if the parent of an adult applicant was kidnapped and tortured to force the applicant to renounce an opposition political party or endorse a government candidate? In the end, I see no unambiguous language in the text of § 1101(a)(42) that compels the limiting construction of the INA that the majority now divines.

Requiring an applicant’s eligibility for asylum to rest only on instances where he or she suffers persecution “personally” merely begs the question of what personal harm is and how to define it. As with any ambiguous statutory term, it is for the BIA to determine within its expertise what exactly constitutes “persecution” so long as its interpretation is reasonable. 4 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984). From its decision in In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A. 2006), the BIA clearly construed “persecution” as not only entailing the spouse forced to undergo the procedure but also including the other spouse who, while physically unharmed, was nevertheless also targeted by the government for punishment and persecution. The BIA reached this conclusion by utilizing its traditional tests of nexus and level of harm, id. at 5 , that is, by examining how the procedure affected each spouse’s respective health and emotional well-being as well as the couple’s interest in procreation and child-rearing. Perhaps most importantly of all, the BIA also considered to whom the government’s actions were directed.

It is this last factor that is crucial. The majority concedes that both spouses suffer a “profound emotional loss” as a result of a forced abortion or sterilization, but it never sufficiently explains why the harm of sterilization or abortion constitutes persecution only for the person who is forced to undergo such a procedure and not for that person’s spouse as well. Maj. Op. at 308-09. This conclusion rests on two principal conclusions, both equally flawed. First, the majority clings to the notion that the persecution suffered is physically visited upon only one spouse, but this simply ignores the question of whom exactly the government was seeking to persecute when it acted. On this point, the harm is *330 clearly directed at the couple who dared to continue an unauthorized pregnancy in hopes of enlarging the family unit. Indeed, the majority’s conclusion disregards the immutable fact that a desired pregnancy in a country with a coercive population control program necessarily requires both spouses to occur, and that the state’s interference with this fundamental right “may have subtle, far reaching and devastating effects” for both husband and wife. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942). The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child. Similarly, as to sterilization, the Ninth Circuit has aptly observed that:

In addition to the physical and psychological trauma that is common to many forms of persecution, sterilization involves drastic and emotionally painful consequences that are unending: The couple is forever denied a pro-creative life together. As the BIA explained,

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.

Qili Qu v. Gonzales, 399 F.3d 1195, 1202 (9th Cir.2005) (quoting In re Y-T-L-, 23 I. & N. Dec. 601, 607 (B.I.A.2003)). Viewed in this light, the harm here is directed as much at the husband as at the wife. By its action, after all, the state is preventing both members of the couple from procreating as a.unit, and as the BIA found in In re Y-T-L-, such harm is not limited in time to the moment of sterilization, but is an ongoing harm that affects a married couple indefinitely. 23 I. & N. Dec. at 607 . As the Third Circuit recently observed in Sun Wen Chen v. Attorney General of the United States, 491 F.3d 100, 107 (3d Cir.2007), the “persecution of one spouse can be one of the most potent and cruel ways of hurting the other spouse.” 5 In the end, I fail to understand how the majority can claim that the harm caused by a spouse’s forced abortion or sterilization is not a personal harm to both spouses — either or both of whom can be sterilized for violations of the population control programs— especially given the unique biological nature of pregnancy and special reverence every civilization has accorded to child- *331 rearing and parenthood in marriage. I similarly fail to understand how the majority justifies limiting the BIA’s ability to take this special and egregious harm into consideration and to determine within its expertise that such acts constitute persecution against both a wife and husband. 6

Second, the majority argues that the BIA has impermissibly created an irre-buttable presumption that relieves applicants from the statutory burden of proving that they have a well-founded fear of persecution based on an impermissible nexus. As Judge Katzmann correctly observes, however, the presumption argument is merely a red herring. In enacting § 601, Congress was not creating a presumption but merely expanding the BIA’s unduly restrictive definition in Matter of Chang of the terms “persecution” and “political opinion.” Thus, § 601 defined “persecution” and “political opinion” to include an individual’s forced abortion or sterilization under a restrictive population control policy. No presumption was created, however, as the applicant still bears the burden of establishing that he or she was subject to the conduct that qualifies under this expanded definition Of persecution. And, while the majority places great weight On the fact that § 601 supposedly creates a presumption that “relieved only persons who actually experienced a forcible abortion or sterilization from the burden of proving a political nexus,” and not those married to such persons, Maj. Op. at 309, his conclusion ignores the clear congressional intent of § 601, expressed in the legislative history, that

[njothing in [§ 601] is intended to lower the evidentiary burden of proof for any alien, no matter how serious the nature of the claim. The Committee emphasizes that the burden of proof remains on the applicant, as in every other case, 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.

H.R.Rep. No. 104-469(1), 1996 WL 168955 , at *174 (1996). Quite simply, there is no way to read in § 601 the presumption the majority discusses, nor a limitation on the BIA in extending § 601’s reach to spouses. Either the persecution occurred or it did not, and the applicant retains the burden of proving such circumstances. The BIA accordingly did not err in interpreting ambiguous terms in the INA to determine that either spouse may qualify as a refugee where one of them has in fact undergone forced abortion or sterilization.

Finally, if adopted, the majority’s limiting construction may have significant, unintended consequences, broader than the Court today acknowledges. By claiming categorically that an applicant cannot rely on the harm inflicted on others in § 601 cases — no matter how closely relat *332 ed the harm or the person harmed is to the applicant or whether the harm is directed in whole or in part towards the applicant — to establish persecution or entitlement to asylum, this Court suggests that the BIA is precluded from ever considering harm to others as evidence of persecution to the applicant. While I agree that there are certainly limits as to when harm to another may inform persecution or a well-founded fear of persecution of an applicant, I cannot endorse the majority’s apparent per se conclusion. As noted above, this is a question of statutory construction properly answered by the BIA, which, in its administrative expertise, may interpret the ambiguity inherent in “persecution” to determine when a harm is direct or personal enough to be considered persecution of an applicant. And, in certain limited contexts pertinent to this appeal, the BIA has done precisely this, examining the harm to family members in determining whether an asylum applicant has in fact suffered past persecution, particularly where an immediate family member has been subjected to significant and enduring mistreatment. In Matter of Chen, 20 I. & N. Dec. 16, 19-21 (B.I.A. 1989), the seminal BIA decision recognizing the availability of humanitarian asylum for victims of severe past persecution, the BIA recited a litany of horrific acts visited on and suffered by Chen’s parents during the Cultural Revolution, and such evidence — when coupled with the Chinese government’s treatment of the petitioner himself — supported the BIA’s conclusion that “the respondent has clearly established that he and his family were severely persecuted in the past in China.” Id. at 21 . Similarly, in In re H-, 21 I. & N. Dec. 337, 345 (B.I.A.1996), where an applicant had testified about the severe physical beatings he had suffered as the member of a subclan in Somalia, the BIA based its finding of past persecution in part on the applicant’s testimony that his father and brother, also members of the same sub-clan, were beaten and killed. In examining the allegations concerning the deaths of his father and brother, the BIA specifically noted that “evidence of treatment of persons similarly situated is persuasive of an applicant’s claim of political persecution.” Id. at 345 (quoting Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A.1987)); see also In re N-M-A-, 22 I. & N. Dec. 312, 326 (B.I.A.1998) (finding in the context of humanitarian asylum that the applicant had suffered past persecution in part because of “the disappearance and likely death of his father”). The BIA has thus identified specific situations in which the harm to close family members could be central to the finding of persecution and the granting of refugee status. The majority’s misguided exercise in statutory interpretation, however, undermines this agency determination and suggests that because the years-long harassment and egregious mistreatment of Chen’s parents or the deaths of H-’s brother and father were “not personally experienced” by the applicants, neither Chen nor Hcould base their asylum applications on such harm after today’s decision. 7

The holding today also calls into question our own caselaw — as well that of other *333 circuits — in which appellate panels have recognized that harm inflicted upon one individual may give rise to, or at least help establish, persecution of another in certain circumstances. In Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir.2006) (per curiam ), this Court, acknowledging that petitioner had not been “victimized directly” when as a young boy, his sister and her family were killed for their political activities, nevertheless remanded the case to the BIA for further proceedings to determine whether his age, coupled with the harm to his family members, helped to establish past persecution. 8 Id. at 150 (internal quotation marks omitted). While the decision rested in great part on the petitioner’s age, this decision illustrates another category of asylum cases where it might be appropriate to consider harm to others in determining past persecution. 9 Similarly, other circuits have confronted situations where they found persecution relying in whole or in part on harm to others in certain circumstances. In Sun Wen Chen , the Third Circuit upheld In re S-L-L-, the very BIA determination the majority strikes down today, in part by acknowledging that the physical harm to one’s spouse is nevertheless harm to both spouses in the family planning context. 491 F.3d 100,107 (“In a great many cases, forced abortion or involuntary sterilization of one spouse will directly affect the reproductive opportunities of the other spouse.... And persecution of one spouse can be one of the most potent and cruel ways of hurting the other spouse.... ”). The Sixth Circuit in Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir.2004), determined that an applicant was entitled to asylum because she had fled Ethiopia with her teenage daughter to protect the teenager from undergoing forced genital mutilation. The Abay court specifically noted that derivative asylum under § 1158 was not available to Abay — as she was neither a spouse nor a child of a persecuted individual — but granted her asylum, observing that several oral IJ and BIA decisions “suggest a governing principle in favor of refugee status in cases where a parent and protector is faced with exposing her child to the clear risk of being subjected against her will to a practice that is a form of physical torture causing grave and permanent harm.” Id. at 642.

Having carefully weighed the law and arguments presented in this appeal, I must concur in the judgment for the reasons already stated ably by Judge Katzmann. I agree in particular with Judge Katzmann *334 that the Third Circuit in Cai Luan Chen v. Ashcroft, 381 F.3d 221 (3d Cir.2004) (Alito, J.), did what we should have done here. In that case, then-Judge Alito found no need to reach the question of whether § 601 or § 1101(a)(42) were ambiguous because Chen, who was not married to his fiancée on whom the forced abortion was performed, could prevail only if the BIA’s distinction between married and unmarried couples was unreasonable. 10 Id. at 227. Judge Alito ultimately ruled that the distinction was reasonable and denied the petition. Id. at 235. This analysis should control our own very similar cases here. 11

Given the above, the majority should never have reached the question it has taken upon itself to resolve, particularly in the immigration context where the Supreme Court has long recognized “that judicial deference to the Executive Branch is especially appropriate ... where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’ ” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 , 119 S.Ct. 1439 , 143 L.Ed.2d 590 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110 , 108 S.Ct. 904 , 99 L.Ed.2d 90 (1988)). In reaching this question, the majority has, I fear, started a domino effect that may have significant and unforeseen repercussions. Finally, the majority, in noting that “[i]f this conclusion is inconsistent with Congress’s intentions, [Congress] can, if it so chooses, of course, amend the statute,” Maj. Op. at 309 n. 10, seems to take comfort that its conclusion, if wrong, may be simply overturned. But for those petitioners who fled a draconian population control program because their spouses had been forced to undergo an abortion or sterilization, the majority’s caveat must be cold comfort indeed.

. The majority claims to be perplexed by my concern that today’s decision reaches a question it need not, particularly because, the majority reasons, all judges — including myself— who agreed to hear these cases en banc joined an order instructing "the parties to address the BIA’s interpretation of § 601 as it related to both spouses and non-married partners.” Maj. Op. at 304 n. 6. My concern, however, is not a quibble over the semantics of the era *328 banc order, but rather the majority's unnecessary but apparently pressing need to decide a question which the facts of petitioners’ appeals simply do not present. Like Judge Katzmann, I engage the question the majority answers because I would be remiss in not voicing my profound disagreement with the majority's conclusions.

. In another portion of the majority opinion, the Court states “we conclude that the statutory scheme unambiguously dictates that applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer.” Maj. Op. at 307-08. By this pronouncement, the opinion suggests that harm to others cannot form a part of the rationale for granting asylum.

. I further agree with Judge Katzmann's analysis of the majority’s misplaced reliance on 8 U.S.C. § 1158 to support its conclusion here.

. I note that this and other circuits have found "persecution” to be an ambiguous term in other asylum cases. See, e.g., Mirzoyan v. Gonzales, 457 F.3d 217, 220 (2d Cir.2006) (per curiam) (finding that the INA does not “unambiguously explain[] what the word 'persecution' means” in the economic context); Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir.2004) (per curiam) ("The BIA is entitled to deference in interpreting ambiguous statutory terms such as 'persecution.' "); cf. Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998) (noting that the INA "does not define ‘persecution’ or specify what acts constitute persecution”).

. The majority incorrectly asserts that the Third Circuit’s analysis in Sun Wen Chen is incongruent with my own analysis because the court there held that § 601(a) contains an ambiguity. Maj. Op. at 306 n. 7. The Third Circuit found that § 601(a) is ambivalent on the treatment of spouses and that the existence of derivative asylum was not "intended to foreclose additional pathways to asylum specific to spouses.” Sun Wen Chen, 491 F.3d 100, 105 (emphasis added); see also id. ("[W]e see nothing in the statute evincing Congressional intent to establish a particular policy regarding spousal eligibility.”). The Third Circuit then reasoned that because § 601(a) "establishes that forced abortion and sterilization constitute persecution,” id., it is entirely within the BIA's authority to “inter-prete] the scope of that persecution,” id., including its applicability to spouses. It is my contention that we should defer to the BIA's interpretation regarding the broader scope of persecution under § 1101(a)(42) and not impose, as the majority here does, an unfounded requirement that persecution be direct and personal and that harm to another, even if directed at the applicant, is never sufficient for the purposes of § 1101(a)(42). These analyses are not incongruent because they both center on the deference we owe to the BIA on defining persecution.

. The majority notes that its decision corrects the "perverse effect of creating incentives for husbands to leave their wives” inherent in the BIA’s determination in In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A.2006). Maj. Op. at 312. I note first that one of the petitioners before us was not, in fact, attempting to flee alone; he and his fiancée planned to leave China together but she was unfortunately caught before she could escape. More importantly, however, the majority’s assertion here is based on nothing but speculation as to the decision-making in which couples, persecuted by coerive population control programs, must engage before attempting to flee. We simply have no foundation on which to conclude that all couples have the financial resources to escape at the same time, and as the government stated at oral argument, it is not uncommon for Chinese couples to separate and have one spouse go abroad in order to amass the necessary resources to bring over the other spouse. I believe the majority here is opining on a subject — imbued with potentially significant cultural differences — with which it has no expertise or empirical evidence.

. The regulations governing the claims under the Convention Against Torture explicitly recognize that torture encompasses not only physical harm to the individual but also "mental pain or suffering” that results from the threat of infliction of physical pain or suffering on another person. See 8 C.F.R. § 1208.18 (a)(4)(iv). By analogy, this regulation further supports the position that persecution is not limited to direct and physical harm upon an individual but can encompass harm inflicted on others as well. See, e.g., Yan Chen v. Gonzales, 417 F.3d 268, 275 (2d Cir.2005) ("Certainly ... torture can constitute persecution....”).

. The passing statement in a footnote in Melgar de Torres v. Reno, 191 F.3d 307 , 313 n. 2 (2d Cir.1999), that the death of the applicant’s uncle did not constitute political persecution of her is not to the contrary. As noted in Jorge-Tzoc , the petitioner in Melgar de Torres "was an adult who offered no objective evidence that her uncle's killing was politically motivated.” 435 F.3d at 150 . To the extent that Melgar de Torres suggested, furthermore, that even if the petitioner had established the link between her uncle’s killing and his political activities, such killing could then not be considered part of her past persecution, this suggestion was clearly dicta.

. The majority professes no opinion on the continued vitality of our holding in Jorge-Tzoc and claims that nothing in today's decision ”preclude[s] the BIA from considering the totality of circumstances in any particular case to determine if an asylum applicant has carried his statutory burden.” Maj. Op. at 311-12 n. 13. Yet, the majority fails to explain why the totality of circumstances may not be applied in the context of married couples who suffer under coercive population control programs. If the BIA could consider the direct harm to Jorge-Tzoc's family members in determining whether Jorge-Tzoc himself had been persecuted, it should be able to consider the targeting of and effect on an individual when his or her spouse is forced to undergo an abortion or sterilization.

. While I ultimately agree with Third Circuit's recent pronouncement in Sun Wen Chen that the BIA properly interpreted an ambiguity in § 601 and § 1101(a)(42) to extend asylum protection to spouses of individuals forced to abort pregnancies or undergo sterilization, Sun Wen Chen involves a question we need not reach here because the petitioner here is not married. Had the majority dealt only with the question presented, I would adopt the approach as outlined by then-Judge Alito in Cai Luan Chen .

. Unlike my esteemed colleague Judge Cala-bresi, I do not find that the BIA limited its analysis to § 601 in In re S-L-L-, but rather was grounding its interpretation in both the specific language of § 601 and the more general definition of "refugee” in § 1101(a)(42). Because the statute is ambiguous, I would defer to the BIA's interpretation here.