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Interim Decision #3611

Matter of J-S-, Respondent

Decided by Attorney General May 15, 2008

U.S. Department of Justice

Office of the Attorney General

(1) The spouse of a person who has been physically subjected to a forced abortion or

sterilization procedure is not per se entitled to refugee status under section 601(a) of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C

of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-689, codified at section 101(a)(42) of

the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000). The holdings to the

contrary in Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006); Matter of C-Y-Z-, 21 I&N Dec.

915 (BIA 1997), overruled.

(2) Persons who have not physically undergone a forced abortion or sterilization procedure

may still qualify as a refugee on account of a well-founded fear of persecution of being

forced to undergo such a procedure, or on account of persecution or a well-founded fear

of persecution for failure or refusal to undergo such a procedure or for other resistance to

a coercive population control program, or on other grounds enumerated in the Immigration

and Nationality Act.

FOR RESPONDENT: Jianhua Zhong, Esquire, Flushing, New York; Samuel Estreicher,

Esquire, New York, New York

AMICI CURIAE: Charles A. Rothfeld, Esquire, Washington, D.C.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Gus P. Coldebella, Acting

General Counsel

BEFORE THE ATTORNEY GENERAL

(May 15, 2008)

On September 4, 2007, pursuant to his authority under 8 C.F.R.

§ 1003.1(h)(1)(i) (2006), Attorney General Gonzales directed the Board of

Immigration Appeals to refer to him for review its decision in Matter of J-S(BIA 2006). The Board’s decision was then stayed pending a decision by the

Attorney General. For the reasons set forth in the accompanying opinion, I

overrule the Board’s decisions in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA

1997) (en banc), and Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006) (en banc),

to the extent those decisions hold that the spouse of a person who has been

physically subjected to a forced abortion or sterilization procedure is per se

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entitled to refugee status under section 601(a) of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.

104-208, 110 Stat. 3009-546, 3009-689, codified at section 101(a)(42) of the

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

this change in the applicable legal framework, I vacate the Board and

Immigration Judge decisions denying respondent’s claims for relief and

remand this case for further proceedings consistent with this opinion.

OPINION

On September 4, 2007, Attorney General Gonzales directed the Board of

Immigration Appeals, pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2006), to refer

to him for review the Board’s decision in this matter. This case was certified

for Attorney General review in order to provide a final administrative ruling

on a statutory question that has divided the Federal courts of appeals. As

explained below, that question is whether section 601(a) of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C

of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-689 (“IIRIRA”), codified

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

§ 1101(a)(42) (2000) (“the Act”), can be read to confer automatic or

presumptive (hereinafter “per se”) refugee status on the spouses of persons

who have physically been subjected to a forced abortion or sterilization

procedure pursuant to a foreign government’s coercive population control

program, such as China’s “One Couple, One Child” program. The Board held

that the provision could be read to confer such status in decisions from 1997,

Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) (en banc) (“C-Y-Z-”), and

2006, Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006) (en banc) (“S-L-L-”), but

that determination has not been addressed in an opinion by the Attorney

General.

After considering the text, structure, history, and purpose of the Immigration

and Nationality Act as amended by IIRIRA, as well as the relevant

administrative and judicial decisions and the briefs submitted, I conclude that

the Department of Justice should not adhere to the Board’s decisions in C-Y-Zand S-L-L-. I therefore overrule the Board’s decisions in C-Y-Z- and S-L-L- to

the extent those cases hold that the spouse of a person who has been physically

subjected to a forced abortion or sterilization procedure is per se entitled to

refugee status under section 601(a) of IIRIRA. Furthermore, for the reasons

stated below, I vacate the Immigration Judge’s decision in this case and

remand for reconsideration consistent with this opinion.

Section 601(a) of IIRIRA defines the circumstances in which the

enforcement against a person of a coercive population control program

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constitutes “persecution on account of political opinion” and thus qualifies that

person for political asylum under the Act. Section 601(a) amended the Act to

state:

For purposes of determinations under this Act, a person who has been forced to abort

a pregnancy or to undergo involuntary sterilization, or who has been persecuted for

failure or refusal to undergo such a procedure or for other resistance to a coercive

population control program, shall be deemed to have been persecuted on account of

political opinion, and a person who has a well founded fear that he or she will be

forced to undergo such a procedure or subject to persecution for such failure, refusal,

or resistance shall be deemed to have a well founded fear of persecution on account

of political opinion.

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

The year after section 601(a) was enacted, the former Immigration and

Naturalization Service (“INS”) stipulated, and the Board held, that section

601(a) provides per se refugee status not only to persons who have physically

undergone forced abortion or sterilization procedures, but also to the spouses

of such persons. See Matter of C-Y-Z-, supra. This determination later was

questioned by the INS and by some courts, see, e.g., Cai Luan Chen

v. Ashcroft, 381 F.3d 221, 226 (3d Cir. 2004) (Alito, J.), and in 2005 the

United States Court of Appeals for the Second Circuit directed the Board to

explain the basis for its decision in C-Y-Z-, see Shi Liang Lin v. U.S. Dep’t of

Justice, 416 F.3d 184, 191-92 (2d Cir. 2005) (“Lin I”).

In 2006, a divided Board reaffirmed the interpretation it adopted in C-Y-Zon the grounds that (i) section 601(a) is ambiguous and (ii) interpreting the

provision to confer per se refugee status to the spouses of persons who

physically undergo forced abortion or sterilization procedures best accords

with congressional intent. See Matter of S-L-L-, supra. Sitting en banc, the

Second Circuit reversed S-L-L-, holding that section 601(a) “is unambiguous

and . . . does not extend automatic refugee status to spouses or unmarried

partners of individuals § 601 expressly protects.” Shi Liang Lin v. U.S. Dep’t

of Justice, 494 F.3d 296, 300 (2d Cir. 2007) (en banc) (“Lin II”). The Second

Circuit’s ruling created a circuit split because it conflicted with decisions of

other courts of appeals that had deferred to the Board’s interpretation of

section 601(a) in C-Y-Z- as reasonable. Id.; see infra note 3.

In this case, respondent is a married Chinese national whose wife remains

in China. He seeks political asylum in the United States under section 601(a)

because his wife allegedly was forced to undergo an “involuntary sterilization”

procedure. Section 101(a)(42) of the Act. Applying C-Y-Z- and S-L-L-, the

Immigration Judge agreed with respondent that section 601(a) provides

refugee status to men whose spouses are forced to undergo abortion or

involuntary sterilization procedures, but denied his application on the ground

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that the procedure performed on his wife (forced insertion and monitoring of

an intrauterine device (“IUD”)) was not a “sterilization” procedure covered by

the statute. Respondent appealed this decision to the Third Circuit, which,

upon learning of the Second Circuit’s decision in Lin II, sua sponte ordered en

banc consideration and asked the Department to brief whether it adheres to the

Board’s interpretation of section 601(a) or whether it joins the Second Circuit

in rejecting the Board’s construction of section 601(a).

After receiving the Third Circuit’s request for supplemental briefing,

Attorney General Gonzales directed the Board, pursuant to 8 C.F.R.

§ 1003.1(h)(1)(i) (2006), to refer to him for review the Board’s decision in this

matter.1 The Attorney General’s order certifying this case for review directed

the parties to submit briefs addressing

all relevant statutory questions, including, but not limited to, whether IIRIRA § 601(a)

. . . is ambiguous or silent on the availability of refugee status for spouses or partners

of individuals who have been subjected to forced abortion or sterilization, and

whether the BIA interpretation of section 601(a) in Matter of C-Y-Z-, 21 I&N Dec.

915 (BIA 1997) and In re S-L-L-, 24 I&N Dec. 1 (BIA 2006) is correct.

In addition to the briefs I received from the parties, I received two amicus

briefs in support of respondent.2

Respondent’s reliance on section 601(a) presents the key question in this

case: whether the Department of Justice should adhere to the Board’s

interpretation of that provision as conferring per se refugee status on the

spouses of persons who have physically been subjected to a forced abortion or

sterilization procedure. After considering the text, structure, history, and

purpose of the Act as amended by IIRIRA, as well as the relevant

administrative and judicial decisions and the briefs submitted, I conclude, as

stated above, that it should not. I therefore overrule the Board’s decisions in

C-Y-Z- and S-L-L- to the extent those cases hold that the spouse of a person

who has been physically subjected to a forced abortion or sterilization

procedure is per se entitled to refugee status under section 601(a) of IIRIRA.

It is important to emphasize that this decision does not prevent the spouse of

a person who has physically undergone a forced abortion or sterilization

procedure from qualifying for political asylum under section 601(a)’s

1

The Third Circuit entered a final order dismissing respondent’s appeal after the court

received notice of Attorney General Gonzales’s decision to conduct further administrative

review of this case.

2

Brief of Amici Representative Chris Smith and Former Representative Henry Hyde,

Sponsors and Drafters of Section 601 of the Illegal Immigration Reform and Immigrant

Responsibility Act; Brief of Amici the United States Conference of Catholic Bishops,

Advocates International, the Jubilee Campaign, and the National Advocacy Center of the

Sisters of the Good Shepherd.

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“failure,” “refusal,” “other resistance,” or “well founded fear” provisions set

forth above, or from obtaining asylum under other provisions of the Act, if that

person satisfies the relevant statutory criteria. My decision holds only that

spouses are not entitled to the same per se refugee status that section 601(a)

expressly accords persons who have physically undergone forced abortion or

sterilization procedures.

Accordingly, and for the reasons stated below, I vacate as no longer

necessary to the determination of respondent’s claims the Immigration Judge’s

decision that the procedures performed on respondent’s wife are not

“sterilization” procedures that support per se asylum under section 601(a), and

remand respondent’s claims for reconsideration consistent with this opinion.

I.

Respondent was placed in removal proceedings after entering the country

without being admitted or paroled. He conceded removability but applied for

political asylum, withholding of removal to China, and relief under the United

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,

G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States

Apr. 18, 1988) (hereinafter “Convention Against Torture” or “CAT”). At

respondent’s 2004 hearing before the Immigration Judge, he testified that

Chinese officials prevented him and his wife from having more than one child

by forcing his wife to submit to medical insertion of an IUD and to report for

periodic medical visits to confirm the IUD’s continued presence and

effectiveness. Respondent said he was at home when the officials forcibly

removed his wife in order to insert the IUD, but that he “didn’t want to

interfere” because he did not want to further jeopardize his wife. After the

IUD was inserted in 1993, respondent on three separate occasions requested

permission from the Chinese family planning officials to have another child,

but his requests were denied each time. After the last denial in 1995,

respondent “gave up hope” and used false documents to enter the United States

in 2001.

On November 8, 2004, the Immigration Judge denied respondent’s request

for asylum and withholding of removal. Respondent’s evidence of past

persecution and a well-founded fear of future persecution consisted of

documents and testimony, which the Immigration Judge found “credible,” that

he and his wife were fined for marrying below the age prescribed by China’s

coercive population control program; that his wife was forced to submit to the

insertion and monitoring of an IUD shortly after their son was born; that

family planning officials warned him that, if he and his wife tried to have

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another child, they would abort the pregnancy and permanently sterilize

respondent or his wife as they had allegedly sterilized respondent’s sister and

mother; and that respondent expected to be “fined” and/or “incarcerated” if

returned to China because he could not prove that he left the country legally.

In her oral decision, the Immigration Judge emphasized respondent’s

testimony that he came to the United States partly “for financial reasons,” as

well as his admissions that he (i) “did not violate [China’s] birth control

planning policies” and (ii) “waited some eight years after the events in

question before . . . coming to the United States.” The Immigration Judge

stated further that respondent had provided no evidence that, “during the eight

years that he remained in the People’s Republic of China . . . he was the victim

of any persecution or repercussions,” such as arrest, “that would establish any

past persecution on account of any enumerated ground” in the Act or IIRIRA.

The Immigration Judge explained:

In this particular case, the only one reality appears to be that [respondent’s] wife was

forced to undergo insertion of an intrauterine device. And, it’s clear that this, in and

of itself, cannot be the basis to establish a claim for asylum based on past persecution.

The forcible insertion of an intrauterine device is not tantamount to sterilization nor

to abortion. . . . While the concept of [respondent’s] wife being forced to undergo an

insertion of an intrauterine device may be repugnant, offensive, even unlawful, or

unfair, and may be viewed as such by some individuals, this, in and of itself, does not

constitute persecution per se, and does not meet the definition of refugee.

Accordingly, the Immigration Judge denied respondent’s application for

asylum and ordered him removed to the People’s Republic of China.

On February 24, 2006, the Board affirmed the Immigration Judge’s

decision without opinion and respondent appealed to the Third Circuit.

Respondent’s appeal was fully briefed and scheduled for submission to a panel

when, in July 2007, the Second Circuit issued its en banc decision rejecting

C-Y-Z-’s and S-L-L-’s per se rule of spousal eligibility and departing from the

decisions of several courts of appeals that had deferred to the Board’s

interpretation of section 601(a) in C-Y-Z-.3 See Lin II, 494 F.3d at 300.

The Second Circuit in Lin II reversed the Board’s interpretation of section

601(a) in C-Y-Z-and S-L-L-, concluding, as other circuits had not, that the text

of section 601(a) is neither silent nor ambiguous on the question of spousal

eligibility. Accordingly, the Second Circuit did not focus on whether the

3

See, e.g., Chen Lin-Jian v. Gonzales, 489 F.3d 182, 188 (4th Cir. 2007); Junshao Zhang

v. Gonzales, 434 F.3d 993, 1001 (7th Cir. 2006); Wang He v. Ashcroft, 328 F.3d 593, 604

(9th Cir. 2003); Guang Hua Huang v. Ashcroft, 113 Fed. Appx. 695, 700 (6th Cir. 2004)

(unpublished opinion); Gong Fu Li v. Ashcroft, 82 Fed. Appx. 357, 358 (5th Cir. 2003)

(unpublished per curiam opinion).

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Board’s per se rule was “a permissible construction” of the statute under step

two of the interpretive framework in Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Instead, Lin II

concluded that section 601(a)’s forced abortion and sterilization provisions

unambiguously foreclose an interpretation that accords per se refugee status

to the spouses of persons who physically undergo such procedures. See Lin II,

494 F.3d at 305, 309. Having reached this conclusion based on section

601(a)’s text, the court declined to defer to the Board’s interpretation, although

the court did observe in dictum that the legislative history and policy on which

the Board relied also did not support the Board’s reading of the statute. See id.

at 312-13.

After ordering en banc consideration of respondent’s appeal, the Third

Circuit directed the parties to brief whether that circuit should “adopt any or

all of the reasoning announced in” Lin II. See J-S- v. Att’y Gen. of the

United States, No. 06-1952 (3d Cir. July 27, 2007). Respondent urged the

Third Circuit to defer to the Board’s interpretation of section 601(a) in C-Y-Zand S-L-L- and reject the Second Circuit’s reasoning in Lin II. The

Government did not file a response because the Third Circuit dismissed

respondent’s appeal following receipt of Attorney General Gonzales’s

certification order.

II.

Respondent appeals the Immigration Judge and Board decisions denying

his application for asylum solely under section 601(a) of IIRIRA.4 The key

question in this case is whether the Department of Justice should adhere to the

Board’s interpretation of section 601(a) in C-Y-Z- and S-L-L- as conferring

per se refugee status on the spouses of persons who have physically been

subjected to a forced abortion or sterilization procedure. For the reasons stated

in this opinion, I conclude it should not.

4

The only alternative claim respondent raised below was a claim under the Convention

Against Torture. In order to qualify for protection from removal under the CAT, an

applicant must establish that “it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2) (2008). The

Immigration Judge concluded that respondent did not satisfy this standard, and respondent

does not challenge this determination in his current brief.

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A.

An alien seeking political asylum in the United States must establish that

he or she is a refugee. Section 208(b)(1)(A) of the Act, 8 U.S.C.

§ 1158(b)(1)(A) (2000). Section 101(a)(42) of the Act defines a “refugee” as

any person who is outside any country of such person’s nationality . . . 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.

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

As noted, section 601(a) of IIRIRA amended section 101(a)(42) of the Act

to specify the circumstances in which victims of coercive population control

programs could qualify for political asylum:

For purposes of determinations under this Act, a person who has been forced to abort

a pregnancy or to undergo involuntary sterilization, or who has been persecuted for

failure or refusal to undergo such a procedure or for other resistance to a coercive

population control program, shall be deemed to have been persecuted on account of

political opinion, and a person who has a well founded fear that he or she will be

forced to undergo such a procedure or subject to persecution for such failure, refusal,

or resistance shall be deemed to have a well founded fear of persecution on account

of political opinion.

Id. (emphasis added). Section 601(a) thus created four new and specific

classes of refugees:

1. “person[s] who ha[ve] been forced to abort a pregnancy”;

2. “person[s] who ha[ve] been forced . . . to undergo involuntary sterilization”;

3. “person[s] . . . who ha[ve] been persecuted for failure or refusal to undergo such

a procedure or for other resistance to a coercive population control program”; and

4. “person[s] who ha[ve] . . . a well founded fear that [they] will be forced to undergo

such a procedure or subject to persecution for such failure, refusal, or resistance.”

The third and fourth categories above specifically accord refugee status to

persons who have not physically undergone forced abortion or sterilization

procedures if such persons can prove (i) past persecution for “fail[ing] or

refus[ing]” to “undergo” a forced abortion or sterilization procedure; (ii) past

persecution for some “other resistance” to a coercive population control

program; or (iii) a “well founded fear” that they will be forced to undergo an

abortion or involuntary sterilization procedure, or will be persecuted for failing

or refusing to undergo such a procedure or for otherwise “resisting” a coercive

population control program. Persons such as respondent thus may be able to

qualify for asylum under these categories upon an appropriate factual showing.

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The question remains, however, whether persons such as respondent—i.e.,

persons who have not physically undergone a forced abortion or sterilization

procedure—can also qualify for asylum under the first and second categories

above. Respondent argues that they can, and that he personally qualifies for

asylum under category two (“forced . . . to undergo involuntary sterilization”),

pursuant to the per se rule of spousal eligibility set forth in C-Y-Z- and S-L-L-.

That rule begins with the uncontroversial proposition that categories one and

two accord per se refugee status to any individual who has physically

undergone a forced abortion or sterilization procedure because all such

persons should be presumed to have been persecuted for resisting a coercive

population control program. However, the rule goes on to encompass the

much more doubtful proposition, which respondent invokes here, that the

spouse of any individual who physically undergoes one of the referenced

procedures is also entitled to per se refugee status. Respondent defends this

position on the ground that section 601(a)’s text is silent on the question of

spousal eligibility, and accordingly should be construed to permit his claim of

past persecution under the “joint spousal persecution” theory underlying the

Board’s per se rule.5 The Department of Homeland Security (“DHS”)

contends that I should adopt the Second Circuit’s reasoning in Lin II and

conclude that the text of the relevant provision unambiguously forecloses

respondent’s claim and compels reversal of the interpretation set forth in the

Board decisions in C-Y-Z- and S-L-L-.

The text of section 601(a) is the first, and most important, basis for my

rejection of the per se rule of spousal eligibility the Board adopted in C-Y-Zand S-L-L-. The “language employed by Congress and the assumption that the

ordinary meaning of that language accurately expresses the legislative

purpose” cut strongly against the statutory interpretation respondent urges and

the Board has adopted. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S.

189, 194 (1985). Section 601(a)’s forced sterilization provision refers to “a

person who has been forced to . . . undergo involuntary sterilization.” Section

101(a)(42) of the Act (emphases added). Consistent with ordinary usage and

the Act’s definition of the term, “a person” refers to “an individual” and,

specifically here, the individual who has “undergo[ne]” the sterilization

5

According to this theory, a forced abortion or sterilization procedure performed on one

spouse should be “‘imputed’” to the other spouse because the procedure causes both spouses

emotional and other suffering, and because “‘the law considers’” the “‘reproductive

opportunities’” of one spouse “‘to be bound up’” with the “‘reproductive opportunities’” and

harms of the other. See Matter of S-L-L-, supra, at 8 (quoting Cai Luan Chen v. Ashcroft,

381 F.3d 221, 226 (3d Cir. 2004)).

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procedure at issue. See Section 101(b)(3) of the Act, 8 U.S.C. § 1101(b)(3)

(2000) (defining the term “a person” for purposes of title I of the Act, which

includes section 101(a)(42), to mean “an individual or an organization”); Lin

II, 494 F.3d at 311 (“[T]he language Congress employed in § 601(a)[’s forced

abortion and sterilization provisions] demonstrates that it wanted to cover ‘a

person,’ not ‘a couple,’ not a ‘significant other’ and not an ‘intimate friend.’”).

Furthermore, “undergo” means “to submit to,” e.g., Merriam Webster’s

Collegiate Dictionary 1288 (10th ed. 1994), and in the medical context, a

person who “undergoes” a procedure is the person upon whom the procedure

is physically performed, see, e.g., Milton Hollenberg et al., Predictors of

Postoperative Myocardial Ischemia in Patients Undergoing Noncardiac

Surgery, JAMA, vol. 268, no. 2 (July 8, 1992); Lin, 494 F.3d at 305-06.

Accordingly, reading section 601(a)’s involuntary sterilization provision to

refer only to persons who have themselves undergone forced sterilization

procedures interprets the statute in the manner that gives its words “their

‘ordinary or natural’ meaning,” whereas interpreting it to include spouses does

not. E.g., Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (quoting Smith

v. United States, 508 U.S. 223, 228 (1993)); see also INS v. Cardoza-Fonseca,

480 U.S. 421, 431 (1987) (“With regard to this very statutory scheme [the

Act], we have considered ourselves bound to ‘“assume that the legislative

purpose is expressed by the ordinary meaning of the words used.”’” (quoting

INS v. Phinpathya, 464 U.S. 183, 189 (1984) (quoting American Tobacco Co.

v. Patterson, 456 U.S. 63, 68 (1982)))).

The same may be said of the statute’s reference to “a person forced to abort

a pregnancy.” For the reasons set forth above, this clause is properly read to

refer to the person physically forced to abort the pregnancy (the would-be

mother) because the clause refers to “a person forced to abort a pregnancy,”

and not to “a couple” or “a married couple” forced to do so. Section 601(a)’s

subsequent description of an abortion as a “procedure” that “a person” is

forced to “undergo” further supports this reading. Because this latter

description of a forced abortion can naturally be read only to refer to one

person—the person upon whom the “procedure” is physically performed—it

would be inconsistent with the text and structure of section 601(a) to read the

opening clause on abortion to encompass two people (the would-be mother and

the would-be father). See, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 221

(1991) (stating that it is a “cardinal rule that a statute is to be read as a whole

since the meaning of statutory language, plain or not, depends on context”

(citation omitted)); Davis v. Michigan Dep’t of Treas., 489 U.S. 803, 809

(1989) (same). As the Second Circuit explained in Lin II, “Congress’s specific

designation of some persons (i.e., those who fear, resist, or undergo particular

medical procedures)” as refugees eligible for political asylum “is incompatible

with the view that others (e.g., their spouses) should also be granted asylum

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per se” regardless whether they fall within one of the specific refugee classes

enumerated in the statute. Lin II, 494 F.3d at 307 (“The inclusion of some

obviously results in the exclusion of others.”). Had Congress wanted to

include spouses in section 601(a)’s forced abortion and sterilization provisions,

“‘it could simply have said so.’” Id. at 305 (quoting Hartford Underwriters

Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 7 (2000)).

The foregoing textual evidence that section 601(a)’s forced abortion and

sterilization clauses extend refugee status only to those persons who have

physically undergone the referenced procedures is bolstered by reading section

601(a) in harmony with other provisions of the Act conferring refugee status.

See, e.g., King v. St. Vincent’s Hosp., 502 U.S. at 221. The per se rule of

spousal eligibility the Board attributes to section 601(a) is difficult to reconcile

with the Act’s separate and express provision specifying that “spouse[s]” of

persecuted individuals are eligible for derivative asylum if such spouses do not

themselves qualify as refugees, but only if they “accompany[], or follow[] to

join,” the alien who is eligible for, and is actually granted, asylum. Section

208(b)(3)(A) of the Act. Interpreting section 601(a) to confer per se refugee

status on all spouses of persons who have undergone forced abortion or

sterilization procedures, even spouses who do not themselves qualify as

refugees and are not accompanied by a qualifying alien, circumvents with an

implied rule the requirements for derivative asylum that the Act expressly sets

forth in section 208(b)(3)(A).

Such an interpretation of section 601(a) also departs from, and creates

tension with, the Act’s general requirement that every applicant for personal

asylum (as distinct from statutorily prescribed derivative asylum) must

establish his or her own eligibility for relief under specific provisions of the

statute. See section 208(b)(1)(B)(i) of the Act (providing that the “burden of

proof is on the applicant” to “establish that the applicant is a refugee”

(emphasis added)); INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (stating

that “‘persecution on account of . . . political opinion’ in § 101(a)(42) is

persecution on account of the victim’s political opinion,” not on account of the

political opinion of someone else). The interpretation of section 601(a) I adopt

in this opinion avoids this “critical defect” in the Board’s per se rule because

it does not “effectively absolve[] large numbers of asylum applicants of the

statutory burden to prove” that they themselves have either been persecuted,

or have a well-founded fear of being persecuted, on account of their political

opinion. Lin II, 494 F.3d at 308.

In concluding that section 601(a) does not support the per se rule of spousal

eligibility the Board adopted in C-Y-Z- and S-L-L-, I recognize that section

601(a) does not explicitly exclude spouses from its purview. I also recognize

that several courts, along with the Board, emphasized this in accepting various

arguments for interpreting section 601(a) in a manner that brings spouses

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within the purview of the provision’s forced abortion and sterilization clauses.

The starting point for all such arguments is that, because section 601(a) does

not expressly address the refugee status of spouses one way or the other, it is

improper to conclude that the statute unambiguously forecloses interpretations

that would support the per se rule of spousal eligibility the Board adopted in

C-Y-Z-.

Any court that accepted this starting point was limited to reviewing

whether the Board’s approach represented a “reasonable” interpretation of the

statute, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, which some courts concluded it was.6 My review of the Board’s

interpretation of section 601(a), however, is not so limited. The appellate

courts that reviewed the per se rule established in C-Y-Z- were bound to accept

the Board’s interpretation of section 601(a) if they concluded that that

interpretation was not “unambiguously foreclosed” by the statutory text and

could be considered “reasonable” under the broad standard applied by the

Supreme Court. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 980, 983 (2005). My review of Board decisions, by

contrast, is plenary. See, e.g., section 103(a)(1) of the Act, 8 U.S.C.

§ 1103(a)(1) (Supp. IV 2004) (“[T]h[e] determination and ruling by the

Attorney General with respect to all questions of law shall be controlling.”);

Matter of D-J-, 23 I&N Dec. 572, 575 (A.G. 2003) (Attorney General’s review

of a Board decision is de novo; delegated authority of the Board is superseded

and Attorney General is “authorized to make the determination based on [his]

own conclusions on the facts and the law”). Accordingly, I need not opine on

the circuit split regarding the proper outcome of Chevron’s two-step judicial

6

These courts appear to have reached this conclusion based on one of two theories. First,

that “‘the forced sterilization [or abortion procedure performed on] a wife could be

“imputed” to her husband, “whose reproductive opportunities the law considers to be bound

up with those of his wife.”’” Matter of S-L-L-, supra, at 8 (quoting Judge Alito’s panel

opinion in Cai Luan Chen, 381 F.3d at 226 (quoting Jie Lin v. Ashcroft, 356 F.3d 1027, 1041

(9th Cir. 2004), in which the Ninth Circuit concluded that forced sterilization of a wife could

reasonably be “imputed” to her husband, “whose reproductive opportunities the law

considers to be bound up with those of his wife”)). And, second, that “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.” Matter of S-L-L-, supra,

at 7 (stating that “the ruling in Matter of C-Y-Z- is plausibly based on” the theory of

“sympathetic suffering” the Third Circuit identified in Cai Luan Chen, as well as on the fact

that the “PRC Government explicitly imposes joint responsibility on married couples for

decisions related to family planning” such that its decision to “force an abortion or

sterilization” can reasonably be considered “persecut[ion] [of] the married couple as an

entity”); see also Cai Luan Chen, 381 F.3d at 225-26 (citing cases in which the “‘mental

suffering’” that an asylum seeker endured from “‘being forced to witness the pain and

suffering of’” a close family member constituted persecution of the asylum seeker (quoting

Abay v. Ashcroft, 368 F.3d 634,642 (6th Cir. 2004))).

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test for reviewing Board decisions in order to reverse the C-Y-Z- and S-L-Linterpretation of section 601(a) as erroneous.

As I have explained, I reach this result first and foremost because neither

C-Y-Z- nor S-L-L- addresses what I consider to be the proper reading of section

601(a)’s plain text. Indeed, C-Y-Z- did not even decide the issue of per se

spousal eligibility for asylum as a contested issue. See Matter of C-Y-Z-,

supra, at 918 (concluding that “the applicant in this case has established

eligibility for asylum by virtue of his wife’s forced sterilization” because

“[t]his position is not in dispute”). The Board simply based its ruling on the

INS’s stipulation that the “‘husband of a sterilized wife can essentially stand

in her shoes,’” id., even though “[n]either the [INS] brief nor the General

Counsel’s memorandum set[] forth the reasoning behind this position on ‘joint

spousal persecution,’” id. at 928 (Filppu, concurring and dissenting).

Although DHS has abandoned the INS’s prior support for C-Y-Z-’s per se rule

on spousal eligibility as inconsistent with section 601(a)’s text and purpose, SL-L- reaffirmed C-Y-Z- on the grounds that C-Y-Z- was (i) “long standing”

precedent to which courts and Congress have deferred and (ii) consistent with

the “policy” and “intent” behind section 601(a). Matter of S-L-L-, supra, at 4­

8. Neither of these grounds persuades me to affirm the per se rule of spousal

eligibility the Board majority embraced in S-L-L-.

Respect for precedent is undeniably important for any adjudicative body.

But it does not prevent the Department of Justice from reversing

administrative decisions when there is good reason for doing so. Indeed, the

Supreme Court has emphasized that one of the primary purposes of

Chevron deference is to allow agencies to do just that. See Nat’l Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. at 981-82 (stating

that courts must defer to agency interpretations as those interpretations evolve

in response to, inter alia, “changed factual circumstances” or “reversal of

agency policy”); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. at 863-64 (emphasizing that an “agency . . . must consider varying

interpretations and the wisdom of its policy on a continuing basis”).

Accordingly, that several courts have deferred to the Board’s interpretation of

section 101(a)(42) of the Act as amended by IIRIRA does not alter my

decision to reverse that interpretation as unsupported by the provision’s text,

structure, history, and purpose.7

My decision is similarly unaffected by the fact that Congress,

presumptively aware of the Board’s interpretation of section 601(a), in 2005

amended the statutory limit on the number of refugees who may be admitted

7

In addition, because it is important that administration of the Act be consistent throughout

the country, administrative stare decisis principles carry less weight where, as here, Federal

courts have divided on whether an administrative decision is correct and entitled to

deference.

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pursuant to section 601(a), but did not otherwise alter the provision’s text. See

REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, § 101(g)(2), 119 Stat.

231, 305 (repealing former section 207(a)(5) of the Act, 8 U.S.C. § 1157(a)(5)

(2000)). Because “Congress takes no governmental action except by

legislation,” what respondent and others view as Congress’s 2005

acquiescence-by-inaction in the statutory interpretation espoused in C-Y-Zcould also, to use the Supreme Court’s words, “appropriately be called

Congress’s failure to express any opinion” on the then-current agency

interpretation of the statute. Rapanos v. United States, 547 U.S. 715, 749-50

(2006) (emphasizing the Court’s “oft-expressed skepticism towards reading

the tea leaves of congressional inaction”); see also Matter of S-L-L-, supra, at

14 n.2 (Pauley, concurring) (“I do not read into [Congress’s recent] elimination

[of the annual cap] congressional approval of Matter of C-Y-Z-, but instead

merely a practical recognition that, over the years, the unrealistically low cap

had produced an unhealthy backlog of applicants awaiting permanent asylee

status, including those women and men who themselves had been forcibly

sterilized or aborted.”). Moreover, even if the lack of congressional reaction

to C-Y-Z- were to undercut the argument that section 601(a) “unambiguously

forecloses” the Board’s interpretation for purposes of Chevron deference, it

“does not definitively mean that Congress intended to protect spouses,” Lin II,

494 F.3d at 323 (Katzmann, J., concurring in the judgment), and certainly does

not require section 601(a) to be read to accord spouses per se refugee status.

Accordingly, nothing in Congress’s 2005 inaction precludes my interpretation

of section 601(a).

The Board’s discussion of section 601(a)’s “policy” and “intent” also does

not persuade me to support its per se rule of spousal eligibility. See Matter of

S-L-L-, supra, at 5-8. Asserting that section 601(a)’s text provides “no clear

or obvious answer to the scope of” its protections, id. at 4, the majority in

S-L-L- reasoned that the per se rule in C-Y-Z- can be justified based on an

examination of the provision’s purpose in light of the “nexus and level of

harm” the Act requires for asylum:

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 [or sterilization] on a married couple.

Id. at 6. I disagree.

The “nexus and level of harm” to which the Board refers is the connection

(nexus) that section 101(a)(42) of the Act requires between an asylum seeker’s

“race, religion, nationality, membership in a particular social group, or

political opinion” and the persecution (level of harm) that he or she suffered

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or has a well-founded fear of suffering “on account of” such characteristics,

membership, or opinion. In 1989 and 1993, the Board held that persecution

on account of a person’s response to a coercive population control program

does not establish eligibility for asylum under section 101(a)(42) because such

persecution is not “on account of . . . political opinion” or any other ground

enumerated in the statute. See Matter of Chang, 20 I&N Dec. 38 (BIA 1989);

Matter of G-, 20 I&N Dec. 764, 778 (BIA 1993). In response to these

decisions, see H.R. Rep. 104-469(I), at 173-74 (1996), Congress passed the

language in section 601(a) of IIRIRA that amended section 101(a)(42) to state

that a person “shall be deemed to have been persecuted on account of political

opinion” if that person was forced (or has a well-founded fear of being forced)

to “undergo” an abortion or sterilization “procedure” or if he or she was (or

has a well-founded fear of being) persecuted for “failure or refusal to undergo

such a procedure or for other resistance to” a coercive population control

program. Section 101(a)(42) of the Act (emphases added).

The relationship between the foregoing language and the underlying

“nexus and level of harm” that section 101(a)(42) of the Act requires is clear.

Section 601(a) “deem[s]” the nexus and level of harm required for political

asylum under section 101(a)(42) to be satisfied if “a person” has been, or has

a well-founded fear of being, “persecuted” for engaging in various forms of

“resistance” to a coercive population control program. Section 101(a)(42) of

the Act; see also REAL ID Act, § 101(g)(2), 199 Stat. at 305 (characterizing

section 601(a)’s amendment to section 101(a)(42) of the Act as a provision for

“persons resisting coercive population control” (emphasis added)). The reason

section 601(a) makes an applicant’s “resistance” to a coercive population

control program the trigger for refugee status is obvious: If mere enforcement

of a coercive population control program were the trigger, most of China’s

population would qualify as refugees under the provision. That is not what

section 601(a) provides. Section 601(a) extends political asylum to persons

who have been, or who have a well-founded fear of being, “persecuted on

account of” their “resistance” to a coercive population control program.

Section 101(a)(42) of the Act. It then spells out that certain specific

persons—namely, persons who are “forced to undergo” abortion or

sterilization “procedure[s]” required by a coercive population control

program—are per se considered to have engaged in the kind of “resistance”

necessary for asylum. Id. By contrast, persons who cannot show they have

undergone such procedures must prove persecution or a well-founded fear of

persecution for “fail[ing] or refus[ing]” to undergo such procedures or for

some “other resistance” to a coercive population control program to qualify as

refugees. Id.

The fatal flaw in the per se approach to spousal eligibility under section

601(a) is that it ignores the foregoing analysis and simply assumes the

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requisite statutory “nexus and level of harm” in all cases where the asylum

seeker is married to a person who was forced to undergo an abortion or

involuntary sterilization procedure. Section 601(a) does not permit this

blanket assumption for good reason: Some spouses may not have “resisted,”

and in fact may have affirmatively supported, the forced abortion or

sterilization procedure that was performed on the spouse who remains in

China. Such applicants should not (and as I read section 601(a) cannot) use

the sole fact of their spouse’s persecution automatically to qualify for political

asylum under the statute’s coercive population control “resistance” provisions.

Instead, such applicants must present proof, of which their spouse’s treatment

may be a part, of persecution for refusing to undergo forced abortion or

sterilization procedures or for engaging in “other resistance” to a coercive

population control program, or of persecution on account of another ground for

asylum enumerated in the Act. The Board recognized the point that not all

spouses oppose coercive procedures in S-L-L- and insisted that the rule it

announced in C-Y-Z- “was not intended to, and does not, include” cases where

the applicant supported or acquiesced in the coercive procedure physically

performed on his or her spouse. Matter of S-L-L-, supra, at 8. This assertion,

however, does not accord with the Board’s holding that, “absent evidence”

that the spouse seeking asylum affirmatively supported or acquiesced in the

coercive procedure performed on his or her partner, the Board will continue

to “interpret the forced abortion and sterilization clause of section [601(a)], in

light of the overall purpose of the amendment, to include both parties to a

marriage.”8 Id. (emphasis added) (expressly rejecting an approach that would

require some demonstrable resistance by one spouse to the other spouse’s

abortion or sterilization for that spouse to qualify for direct asylum in his or

her own right under section 601(a)).

8

I agree with Board Member Filppu that the above-referenced flaw in the Board’s approach

is “further illustrated in its treatment of ‘boyfriends, fiancés, and other unmarried partners.’”

Matter of S-L-L-, supra, at 19 (Filppu, concurring and dissenting) (quoting the majority

opinion at 8). As Member Filppu explains, the Board “rel[ies] on its construct of family

entity persecution” to “craft[ ] a rule that treats a father as ‘a person who has been forced to

abort a pregnancy’ if the father is both legally married to the woman who was forced to

undergo such a procedure and if the father opposed the abortion.” Id. However, the majority

never justifies “how a father ceases to be ‘a person’ forced to abort a pregnancy when it

comes to unmarried”—or, to complicate the situation further, divorced or otherwise

separated—partners. Id. Although the Board provides plausible “policy reasons for

‘drawing the line at marriage,’ and for refusing to extend to a boyfriend or fiancé ‘the nexus

and level of harm’ it attributes to a husband,” I agree with Member Filppu that this “entire

discussion is only necessary because of the underlying [joint spousal] rule it invents in the

first place.” Id. (quoting the majority opinion at 9).

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In cases where the physically persecuted spouse remains in China, there

will rarely be affirmative evidence that the spouse seeking per se refugee status

supported or failed to resist the coercive procedure at issue. Moreover, unless

Immigration Judges presume that the Chinese Government is aware of what

would normally be a “private family dispute” over whether the physically

victimized spouse should submit to an abortion or sterilization procedure

required by a coercive population control program, it is “impossible to

understand” the Board’s conclusion that the Chinese Government’s use of such

abortion and sterilization procedures should be understood to “punish ‘the

married couple as an entity’ only in those cases where there is joint opposition

to the abortion [or sterilization].” Matter of S-L-L, 24 I&N Dec. at 17 (Filppu,

concurring and dissenting) (emphasis added) (noting that the majority’s

concession that certain spouses fall outside the per se rule is fundamentally in

tension with its assertion that section 601(a)’s forced abortion and sterilization

clauses pertain to “the married couple as an entity”).

For all the foregoing reasons, I conclude that, at least as to political asylum

or withholding of removal claims predicated on the enforcement of coercive

population control programs,9 the ordinary meaning of the statutory term

“resistance,” coupled with the text of section 101(a)(42) of the Act, as

amended by IIRIRA, and settled principles of asylum law, does not support the

per se rule of spousal eligibility the Board adopted in C-Y-Z- and reaffirmed

in S-L-L-. This conclusion, like the text of section 601(a) itself, simply reflects

the logic of limiting per se refugee status to persons who have physically

undergone a coercive birth control procedure. As the Board itself conceded

in S-L-L-, unlike a person who has physically undergone a forced abortion or

sterilization procedure, the spouse of such a person may or may not have

“resist[ed]” the procedure (and, thus, the coercive population control program

pursuant to which the procedure was performed) in the manner the Act

requires for asylum. Matter of S-L-L-, supra, at 8 (conceding that “C-Y-Z- was

not intended to, and does not,” provide “asylum for husbands who were not,

in fact, opposed to a spouse’s abortion”). If this is true, which the text,

structure, history, and purpose of the relevant statutory provisions demonstrate

9

I agree with DHS that what the Act means by the phrase “persecution on account of . . .

political opinion” is a “complex issue that need not be fully resolved here” because this case

does not concern the application of that phrase in contexts other than political asylum

claims predicated on “persecution” for “resisting” a coercive population control program.

Accordingly, I confine my analysis to that context, and do not purport to address

whether the phrase would support a per se rule in other contexts such as, for example,

Judge Calabresi’s hypothetical in which the Board interprets section 101(a)(42) to support

a rule that “any child who sees his parents tortured and murdered before him by a

totalitarian government—say, the Nazis—is persecuted, and therefore eligible for asylum.”

Lin II, 494 F.3d at 335 (Calabresi, J., concurring and dissenting).

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it is, the spouse of the physical victim of such a procedure is not someone who

can be considered per se to have faced, or to have a well-founded fear of

facing, “persecution” “on account of” “resisting” a coercive population control

program under section 101(a)(42) of the Act based solely on the fact that he

or she is married to the victim. See Lin II, 494 F.3d at 309-10; Matter of

C-Y-Z-, supra, at 928-29 (Filppu, concurring and dissenting).

Accordingly, from now on,10 the Board and Immigration Judges shall cease

to apply the per se rule of spousal eligibility articulated in C-Y-Z- and S-L-L10

In his concurrence in S-L-L-, Board Member Pauley stated that although he believed

C-Y-Z- “was wrongly decided,” he would not overrule it because “it is too late in the day for

the Board to upset the apple cart” and overruling the decision could enable DHS to “seek

termination of [existing grants of] asylum under section 208(c)(2)(A)” of the Act on the

grounds that the new interpretation constitutes a “fundamental change in circumstances.”

Matter of S-L-L-, supra, at 14 & n.2 (Pauley, concurring).

I agree with the en banc Second Circuit that reversal of the statutory interpretation set

forth in C-Y-Z- should not be considered a “fundamental change in circumstances” that

would allow DHS to terminate existing final grants of asylum under the regulations

implementing section 208(c)(2)(A) of the Act. See Lin II, 494 F.3d at 314 (stating that the

regulations permit DHS to seek the termination of asylum when an alien no longer qualifies

for refugee status “‘because, owing to a fundamental change in circumstances relating to the

original claim, the alien’s life or freedom no longer would be threatened on account of . . .

political opinion in the country from which deportation or removal was withheld ’” (quoting

8 C.F.R. § 208.24(b)(1))). Specifically, just as courts have concluded that a “change in

United States asylum law does not qualify as a ‘change in circumstances’ sufficient to reopen

an asylum case under 8 C.F.R. § 1003.2(c)(3)(ii)” based on “changed circumstances arising

in the country of nationality,” my reversal of the Board’s interpretation of section 601(a)

should “not be seen as a ‘fundamental change in circumstances’” under 8 C.F.R.

§ 208.24(b)(1) that allows the termination of asylum claims that have already been granted.

Lin II, 494 F.3d at 314; see also Matter of S-L-L-, supra, at 21 n.2 (Filppu, concurring and

dissenting) (“We are not now concerned with reopening past cases.”).

My decision overruling the per se rule of spousal eligibility in C-Y-Z- and S-L-L- does,

however, apply to all cases pending now or in the future before asylum officers, the

Immigration Judges, or the Board, and to cases pending on judicial review. My decision also

applies to cases in which a motion to reconsider is filed within 30 days of a final decision.

See Matter of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006) (“A motion to reconsider is a

‘“request that the Board reexamine its decision in light of additional legal arguments, a

change of law, or perhaps an argument or aspect of the case which was overlooked.”’”

(quoting Matter of Ramos, 23 I&N Dec. 336, 338 (BIA 2002) (quoting Matter of Cerna,

20 I&N Dec. 399, 402 n.2 (BIA 1991)))). And my decision applies to cases in which a final

ruling on asylum or withholding of removal was issued prior to the date of this opinion if

such cases are later reopened for reasons unrelated to the reasoning in this opinion. By

contrast, my decision shall not serve as the sole basis for reopening cases where a final grant

of asylum or withholding of removal has been made, and is subject only to the procedures

of 8 C.F.R. §§ 1003.1(d)(6) and 1003.47 where applicable, if the time for seeking

reconsideration or judicial review has expired or such opportunities for administrative or

judicial review have already been exhausted.

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and shall instead engage in a case-by-case assessment of whether a section

601(a) applicant who has not physically undergone a forced abortion or

sterilization procedure can demonstrate that (i) he or she qualifies as a refugee

under section 601(a) on account of persecution for “failure or refusal” to

undergo such a procedure or for “other resistance” to a coercive population

control program; (ii) he or she has a well-founded fear of being forced to

undergo an abortion or involuntary sterilization procedure or of being

persecuted for failing or refusing to undergo such a procedure or for “other

resistance” to a coercive population control program; (iii) the specific facts of

his or her case justify asylum on grounds other than those articulated in section

601(a); or (iv) he or she satisfies the requirements for derivative asylum

expressly set forth in section 208(b)(3)(A) of the Act.

B.

Respondent and amici contend that, notwithstanding the analysis above, I

should affirm the Board’s per se rule of spousal eligibility on policy grounds

they argue are reflected in section 601(a)’s legislative and enforcement history.

I disagree. To the extent this history is relevant to the proper interpretation of

section 601(a), it, like section 601(a)’s underlying policy goals, are more

consistent with my interpretation than with the Board’s interpretation.

In reaching this conclusion, I considered the portions of the legislative

history identified in the briefs, including the brief submitted by

Representatives Smith and Hyde. For several reasons, this history does not

alter my decision. Most notably, section 601(a)’s legislative history does not

expressly address whether the spouse of a person subjected to a forced

abortion or sterilization procedure is entitled to per se refugee status. The

Smith/Hyde Brief’s references to House Report and floor discussion regarding

“couples” or “women and men . . . fleeing from forced abortion” indicate that

some in Congress expected the new provision to benefit both members of a

couple where each member is able to satisfy the Act’s requirements for

asylum. But these references say nothing about whether Congress intended a

person presumptively to qualify for asylum solely on the ground that a

spouse had been physically subjected to one of the coercive procedures

specified in the legislation.11 See, e.g., H.R. Rep. No. 104-469(I), at 174-75

(1996) (referring to “a person who has been compelled to undergo an abortion

11

The reference in the House Report to the Board’s decision in Matter of G-, supra, is not

to the contrary. The applicant in that case did not base his request solely on the threatened

sterilization of his wife, but rather on his fear that he himself would be subjected to

sterilization and other punishment (including a fine that had already been imposed on him

for having a second child) based on his violation of China’s family planning policy. See id.

at 774, 778.

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or sterilization, or has been severely punished for refusal to submit to such a

procedure,” as well as to “women . . . subjected to involuntary abortions” and

“men and women” who may be “forcibly sterilized,” and concluding that

“[t]he United States should not deny protection to persons subjected to such

treatment”) (emphases added); see also S-L-L-, 24 I&N Dec. at 18 (Filppu,

concurring and dissenting) (noting that the legislative history of section 601(a),

to the extent it focuses on particular individuals at all, appears to have focused

on women, not their spouses or partners, when addressing the issue of

extending refugee status to victims of forced procedures) (citing sources). If

anything, the House Report counsels against interpreting section 601(a) as

conferring per se refugee status on the spouses of persons expressly covered

by the provision because the report declares that section 601(a) does not

change the Act’s general requirement that applicants prove eligibility for direct

asylum on an individual basis:

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. . . . Section [601(a)] is not intended to protect persons who

have not actually been subjected to coercive measures or specifically threatened with

such measures . . . .

H.R. Rep. No. 104-469(I), at 174 (emphases added).

Respondent and amici contend also that section 601(a) should be

interpreted in light of the content of an earlier bill and proposed regulations

that were previously (and unsuccessfully) offered in response to the same

Board decisions section 601(a) ultimately addressed. Such proposals,

however, lack the force of law, and the Supreme Court has counseled against

relying upon failed legislative proposals. See, e.g., Rapanos v. United States,

547 U.S. at 749. Nonetheless, I will address these failed proposals briefly

because the parties have raised them and because they further support my

interpretation of section 601(a).

The failed bill at issue is the Emergency Chinese Immigration Relief Act

of 1989 (“ECIR”). Section 3(a) of that bill, which was vetoed by the

President, would have required that “careful consideration shall be given to . . .

an applicant who expresses a fear of persecution upon return to China related

to China’s ‘one couple, one child’ family planning policy,” and would have

directed that “[i]f the applicant establishes that such applicant has refused to

abort or be sterilized, such applicant shall be considered to have established

a well-founded fear of persecution . . . on the basis of political opinion.” H.R.

2712, 101st Cong. § 3(a) (1989) (emphases added). Section 3(b) of ECIR

would then have required the Attorney General to promulgate regulations

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providing that an applicant shall be considered to have established a

well-founded fear of persecution if the applicant establishes that

(1) the applicant (or applicant’s spouse) has refused to abort a pregnancy or resisted

sterilization in violation of China’s family planning policy directives, and (2) . . . in

the case of an applicant for asylum or refugee status, there is good reason to believe

that the applicant will be required to abort the pregnancy or to be sterilized or will

otherwise be persecuted if the applicant were returned to China.

Id. § 3(b) (emphases added).

This failed bill language, which expressly references “spouse[s]” who

“refuse[] to abort a pregnancy or resist[] sterilization,” shows at most that if

Congress wanted to cover spouses in section 601(a)’s forced abortion and

sterilization clauses, it knew how to do so. The language does not show a

“clearly expressed legislative intention” in ECIR—much less in the different

language that Congress enacted as section 601(a) several years later—to confer

per se refugee status on the spouses of persons who undergo forced abortion

or sterilization procedures. INS v. Cardoza-Fonseca, 480 U.S. at 432 n.12

(quoting United States v. James, 478 U.S. 597, 606 (1986)). Rather, the

provisions above suggest that, even had ECIR been enacted, it would not have

been enough for an applicant merely to show that his spouse endured a forced

abortion or sterilization procedure; the applicant would also have had to show

that he would likely be subjected to a coercive procedure or would otherwise

be persecuted if returned to his country of origin. Thus, even assuming the

failed ECIR legislation is relevant to interpreting section 601(a), but see

Rapanos v. United States, 547 U.S. at 749, that legislation does not establish

the proposition respondent and amici advance—namely, that Congress clearly

intended section 601(a) to confer per se refugee status on any applicant who

is married to someone who has undergone a forced abortion or sterilization

procedure.12 Accordingly, I disagree that the failed legislative proposal and

12

Similarly, the various Executive Branch documents cited by respondent and amici do not

alter my interpretation of section 601(a). Those documents consist primarily of a 1990

executive order directing the Secretary of State and the Attorney General to grant “enhanced

consideration” to claims of persecution based upon a country’s policy of forced abortion or

coerced sterilization, Exec. Order No. 12711, 3 C.F.R. § 283 (1991), and a putative final (but

never published) Justice Department rule intended to advance the policy expressed in the

executive order. The most recent (1993) version of that rule would have provided:

An 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 that involves or results in forced abortion or coerced sterilization, the applicant

(continued...)

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Executive Branch rules that preceded section 601(a) support the per se rule in

C-Y-Z-, and conclude instead that this history supports the interpretation of

section 601(a) in this opinion.

I view the policy goals underlying section 601(a) the same way. I

understand that the purpose of section 601(a) was to expand the asylum relief

available to victims of coercive population control programs who had been

denied relief under the Board’s 1989 and 1993 decisions, and I agree that

application of coercive population control procedures may constitute

“obtrusive government interference into a married couple’s decisions

regarding children and family” that may have “a profound impact on both

parties to the marriage,” Matter of S-L-L-, supra, at 6-7. The construction of

section 601(a) set forth in this opinion, however, does not foreclose spouses

from obtaining asylum on a case-by-case basis even if they are not

accompanied by their physically persecuted partners. The one thing I reject

is a rule that does not accord with the statutory text and that extends to these

spouses the same per se refugee status that section 601(a) facially affords those

who have physically undergone the coercive procedures referenced in the

statute. See supra Part II.A.

My conclusion on this point is bolstered by DHS’s decision to abandon the

INS’s previous support for C-Y-Z-’s interpretation of section 601(a), and by

the Second Circuit’s observation in Lin II that “hundreds of cases in the courts

illustrate” that the Board’s per se rule has had the unforeseen effect of

allowing “a married man to ‘capitalize on the persecution of his wife to obtain

asylum even though he has left his wife behind and she might never join him

and he might intend that she not do so.’” Lin II, 494 F.3d at 312 (quoting He

Chun Chen v. Ashcroft, 376 F.3d 215, 223 n.2 (3d Cir. 2004)). Although many

husbands may genuinely intend eventually to bring their wives and children

to the United States, the numerous cases that the Second Circuit and DHS

reference suggest that this is not always true. The behavior in such cases

(...continued)

has been forced to abort a pregnancy or to undergo sterilization or has been persecuted

for failure or refusal to do so.

Att’y Gen. Order No. 1659-93, at 13-14 (Jan. 15, 1993) (emphases added).

Nothing in this never-published rule, however, unambiguously provides that an applicant

establishes refugee status solely by being married to a non-accompanying spouse who was

subjected to a forced abortion or sterilization procedure. Indeed, the preamble to the rule

indicates that the rule would not have addressed that situation, and, like section 208(b)(3)(A)

of the Act, contemplates derivative asylum for spouses only if the physically persecuted

person was a successful applicant for asylum. Att’y Gen. Order No. 1659-93, at 5 (stating

that “[a]t least in the situation provided for in the rule, in which a directly threatened person

is an applicant for relief along with his or her spouse, affording such relief to both is

warranted” (emphasis added)).

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Interim Decision #3611

should not be rewarded, particularly when the Act already provides a means

for husbands and wives to obtain asylum together or seriatim, including

through derivative asylum. See id.; section 208(b)(3)(A) of the Act. As DHS

and the Second Circuit have emphasized, the existing (and express) derivative

asylum provision in section 208(b)(3)(A) “encourage[s] the preservation of

families,” whereas the Board’s interpretation “has the perverse effect of

creating incentives for husbands to leave their wives.”13 Lin II, 494 F.3d at

312.

III.

Having rejected the per se, or joint spousal, eligibility rule articulated in

C-Y-Z- and S-L-L-, I consider respondent’s claims under section 601(a).

Because respondent seeks refugee status under section 601(a) but has not

physically undergone a forced abortion or sterilization procedure, resolution

of his claims requires a careful examination of the record to determine whether

respondent (i) “resisted” China’s coercive population control program,

(ii) suffered or has a well-founded fear that he will suffer “persecution” by the

Chinese Government, and (iii) can show that such persecution was inflicted,

or that he has a well-founded fear that it would be inflicted, “on account of”

his resistance to the coercive population control program.

I decline to make these complex and fact-specific determinations in the first

instance, and instead vacate the Immigration Judge’s decision that the

procedures performed on respondent’s wife are not “sterilization” procedures

supporting per se asylum within the meaning of section 601(a) and remand this

case for further proceedings consistent with this opinion. I remand so that the

Board or Immigration Judge can reconsider, as necessary, respondent’s claims

(including his claim that he has a well-founded fear of future persecution based

on, among other things, Chinese family planning officials’ threats to sterilize

him personally) in light of the facts in the record, respondent’s testimony,

which the Immigration Judge expressly found “credible,” and the legal

13

Although I reject the per se rule articulated in C-Y-Z- and S-L-L-, the interpretation of

section 601(a) I adopt in this opinion allows both members of the “spousal unit” to begin the

asylum effort in the United States, either by coming here together or by having one lead and

the other follow. The only difference between my interpretation and the per se rule for

purposes of who initiates the asylum effort is that, in cases where the spouse who begins the

asylum effort is the spouse who was not physically subjected to a forced abortion or

sterilization procedure, that spouse must be able to establish his or her personal eligibility

for asylum on the facts of his or her own case. As the Second Circuit noted in Lin II, “that

[the applicant’s] spouse has been subjected to a forced abortion or sterilization would not be

irrelevant” to this determination. Lin II, 494 F.3d at 313 (emphasis added). This fact would

simply not allow the applicant, if he or she left the physically persecuted spouse behind, to

qualify for per se refugee status.

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Interim Decision #3611

framework I announce in this opinion. I vacate the Immigration Judge’s

holding on whether forced insertion of an IUD constitutes “sterilization” under

section 601(a) because that determination is no longer necessary to this case.14

The Immigration Judge was required to decide whether the procedures

performed on respondent’s wife constitute “sterilization” procedures under

section 601(a) because the per se rule for spousal eligibility was controlling

precedent when the Immigration Judge issued her decision. My reversal of the

Board’s per se rule alters the legal framework that governs respondent’s claims

by refocusing the evaluation of his eligibility for asylum on the merits of his

experience and fears, rather than on a determination whether procedures

performed on his wife constitute “sterilization” under the statute. Accordingly,

I remand respondent’s claims for reconsideration and do not—because I need

not—decide whether the forced insertion and monitoring of an IUD constitutes

“sterilization” under section 601(a).15

So ordered.

14

In any event, the question whether forced insertion of an IUD constitutes “sterilization”

under section 601(a) is already being considered by the Board in more appropriate cases.

See, e.g., Chao Qun Jiang v. Bureau of Citizenship & Immig. Servs., 520 F.3d 132 (2d Cir.

2008) (remanding to the Board to consider whether forced insertion of an IUD constitutes

“persecution” under the Act); Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir. 2007) (same).

15

Whether the Board and the courts should remand other cases for reconsideration in light

of this opinion depends on the particularized facts of those cases. Where, as here, a case that

was decided principally on the basis of the per se rule appears to involve credible evidence

of threats or action against the applicant that might support relief under the legal framework

set forth herein, but that were not adequately considered or developed before the

Immigration Judge, it may be an appropriate exercise of the Board’s discretion to order a

remand.

543