Lin-Zheng v. Atty Gen USA ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-19-2009
Lin-Zheng v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 07-2135
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-2135
_____________
GUANG LIN-ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. 1:A98-355-391
Submitted on Initial Hearing En Banc
May 28, 2008
Before: Scirica, Chief Judge, Sloviter, McKee, Rendell,
Barry, Ambro, Fuentes, Smith, Fisher, Chagares, Jordan,
Hardiman, Weis and Garth, Circuit Judges
(Opinion filed: February 19, 2009)
David X. Feng, Esq.
The Feng & Associates
401 Broadway
Suite 1900
New York, NY 10013-0000
Attorney for Petitioner
Thomas H. Dupree, Jr., Esq.
United States Department of Justice
950 Pennsylvania Avenue, N.W.
601 D. Street, N.W.
Washington, D.C. 20530-0000
Richard M. Evans, Esq.
Paul Fiorino, Esq.
Sada Manickam, Esq.
Song E. Park, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044-0000
Attorneys for Respondent
Nancy Winkelman, Esq.
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103-0000
Amicus Curiae
2
OPINION
McKee, Circuit Judge
Guang Lin-Zheng petitions for review of an order of the
Board of Immigration Appeals affirming the Immigration
Judge’s final order of removal. The Board rejected Lin-Zheng’s
claim that he was entitled to relief from removal because he
qualified as a “refugee” pursuant to 8 U.S.C. § 1101(a)(42).
That claim was based on Lin-Zheng’s assertion that his wife,
who remains in China, has been subjected to China’s coercive
family planning policies. In Sun Wen Chen v. Attorney General,
491 F.3d 100, 103 (3d Cir. 2007), a divided panel of this court
upheld the BIA’s decision in Matter of C-Y-Z-, 21 I. & N. Dec.
915 (B.I.A. 1997) (en banc), in holding that “a husband may
qualify for asylum [based] on the well-founded fear that his wife
may be persecuted under a coercive population control policy,”
pursuant to 8 U.S.C. § 1101(a)(42). Thereafter, the Court of
Appeals for the Second Circuit rejected the holding of C-Y-Z-,
3
in holding that the statute does not “extend automatic refugee
status to spouses or unmarried partners of individuals [who are
forcibly subjected to coercive family planning measures].” Lin
v. U.S. Dept. of Justice, 494 F.3d 296, 300 (2d Cir. 2007).
We granted en banc consideration of Lin-Zheng’s
petition for review to reconsider our decision in Sun Wen Chen.
For the reasons that follow, we now adopt the reasoning of the
Court of Appeals for the Second Circuit and overrule the
holding in Sun Wen Chen.
I. Factual Background.
Guang Lin-Zheng, a native and citizen of China, entered
the United States in 2004, and filed an application for asylum
two months after arriving. In that petition, he claimed he was
entitled to asylum based on China’s coercive birth control
policy. He stated that his wife had been forced to have an
intrauterine device (IUD) inserted, and that she had been forced
to undergo an abortion. According to Lin-Zheng, his wife’s
4
treatment in China allowed him to establish his own persecution,
thus allowing him to qualify for asylum under the broadened
definition of “refugee” contained in amendments to 8 U.S.C. §
1101(a)(42).
A. Lin-Zheng’s Asylum Petition.1
According to the allegations in Lin-Zheng’s asylum
petition, he and his wife were married in a traditional wedding
ceremony in China in 1990, before his wife reached the legal
1
Lin-Zheng filed for asylum, withholding of removal, and
relief under Article III of the Convention Against Torture and
Other Cruel Inhuman or Degrading Treatment or Punishment.
However, nothing on this record supports a claim that Lin-
Zheng was either tortured in China, or that he has a well-
founded fear of being tortured if he is returned to China. We
will therefore deny Lin-Zheng’s petition as to that claim
without discussion, and limit our inquiry to Lin-Zheng’s claim
that he is a refugee. See Amanfi v. Ashcroft, 328 F.3d 719,
725 (3d Cir. 2003) (“A petition for protection under the
Convention Against Torture differs significantly from
petitions for asylum or withholding of removal because the
alien need not demonstrate that he will be tortured on account
of a particular belief or immutable characteristic.”). In
addition, since Lin-Zheng must establish he is a “refugee,” to
qualify for either asylum or withholding of removal, we will
simplify by using “asylum” to refer to both claims unless
otherwise indicated.
5
age for marriage under Chinese law. Lin-Zheng’s petition also
stated that his wife had given birth to a son approximately a year
after their marriage. Problems purportedly started four months
after their son was born when family planning officials forced
his wife to have an IUD inserted and ordered her to undergo an
IUD inspection every four months.
In 1991, Lin-Zheng and his wife officially registered their
traditional marriage with government authorities. According to
Lin-Zheng, they had to pay a fine when they registered their
marriage because their child was born too soon after their
wedding to comply with China’s family planning policy.2
In 2003, the couple arranged for a private doctor to
2
According to the United States Department of State: “
[t]he minimum age for marriage in China is 22 for males and
20 for females. . . . Persons who marry before the stipulated
age generally are not allowed to register the marriage or
obtain a notarized certificate of marriage.” A.R. 162. In his
asylum petition, Lin-Zheng stated: “because we gave birth
before marriage and married and gave birth early, [my wife
and I] were fined 50RMB and 100RMB respectively when we
went to register our marriage.” A.R. 296.
6
remove the IUD. Thereafter, Lin-Zheng’s wife again became
pregnant, and went into hiding to avoid family planning
officials. Lin-Zheng claimed that family planning officials
eventually found his wife when she was approximately six
months pregnant. Those officials forced her to accompany them
to a “Birth Control Service Station” where labor was induced
and the fetus was aborted. After the abortion, Lin-Zheng
decided to leave China even though his wife’s health had
deteriorated after the abortion, and even though they wanted to
have more children. In a letter she submitted in support of Lin-
Zheng’s asylum petition, Lin-Zheng’s wife claimed that the
family intends to reunite and have more children (presumably in
the United States) if Lin-Zheng is granted relief.
B. The Asylum Hearing.
During his asylum hearing, Lin-Zheng testified about
incidents that he had not included in his asylum petition. For
example, on cross-examination, he testified that a second IUD
7
had been forcibly inserted into his wife in 2004, after the forced
abortion alleged in his petition. Lin-Zheng also testified during
cross-examination that he had been living at home until his
departure from China, but was frequently away in November
and December of 2004. His testimony was somewhat
contradictory, and it is not clear whether he was claiming to be
away from home because of his work or because he was in
hiding. In any event, he testified that his wife informed him that
birth control cadres were looking for him while he was away.
They purportedly threatened to arrest him and demanded that he
appear at their offices and promise not to have any more
“unauthorized children.” They also purportedly threatened to
forcibly sterilize him.
The IJ denied relief after concluding that Lin-Zheng’s
testimony was “implausible and overall unpersuasive.” The IJ
was particularly troubled by the fact that Lin-Zheng testified
extensively about the family planning cadres’ harassment and
8
threats after the second abortion, but those incidents were not
mentioned in his asylum petition, or in the letter that his wife
submitted in support of it. The IJ viewed that as a “serious
omission . . . central to [Lin-Zheng’s] claim.” The IJ reasoned
that, “[h]ad this event occurred it is extremely unrealistic that
[Lin-Zheng] would not have included such information in his
application and his wife would not have included such
information in her letter.”
The IJ was also troubled by the fact that Lin-Zheng’s
asylum application mentioned nothing about a second IUD
being inserted in 2004 after his wife underwent a forced
abortion, although he testified about that incident at the hearing.
The omission was all the more suspect because Lin-Zheng’s
wife also failed to mention it in her letter. The IJ reasoned:
The omission cannot be taken lightly in light of
the fact that she made reference to an IUD
insertion in 1991. It is inconceivable that she
would mention an IUD insertion in 1991 and
fail to mention the most recent insertion of an
IUD in 2004.
9
The IJ also characterized Lin-Zheng’s testimony on
cross-examination as “somewhat delirious” and “incoherent.”
Lin-Zheng “was not able to provide the specifics requested by
the Court and counsel for the government[,]” and the IJ
concluded that Lin-Zheng was “making up new stories” as he
went along. The IJ explained: “once [Lin-Zheng] was taken
outside the script [his] testimony was clearly disjointed and [he]
could not explain matters and rather than explaining he kept
adding, . . .unfortunately to his detriment.”
The IJ was also troubled by Lin-Zheng’s testimony about
the population control measures in his region because it was
inconsistent with background materials that said there was no
evidence of forced abortions in the region of China where he
and his wife lived.
C. The BIA’s Decision.
On appeal, the BIA was also troubled by discrepancies
between Lin-Zheng’s testimony before the IJ and assertions in
10
his asylum petition. The BIA noted that Lin-Zheng’s petition
made no mention of visits by birth control cadres in the months
following the abortion, or threats of arrest and forced
sterilization. In the BIA’s view:
the omission itself is so substantial that if it
were credible, it could form the basis of an
asylum application. See 8 U.S.C.
1101(a)(42) (providing the definition of a
refugee which includes persons who have a
well-founded fear that they will be forced to
undergo sterilization). In other words, the
omission is directly related to threats and
pursuits of persecution made against [Lin-
Zheng]. Hence, we cannot characterize the
omission as minor or, in this instance,
excusable. The respondent also changed his
testimony as to where he was residing in the
last months of 2004, at first saying he lived
at his own household [], but then saying he
was sometimes hiding elsewhere, after he
had testified to his own sterilization threat [].
Consequently, we do not find that the
Immigration Judge’s adverse credibility
finding is clearly erroneous and we agree
that the respondent did not meet his burden
of proof for asylum.
This petition for review followed.
II. Legal Background.
11
The Immigration and Nationality Act (“INA” or “Act”)
gives the Attorney General discretionary authority to grant
asylum to an alien who qualifies as a “refugee.” Originally, the
Act defined “refugee” as:
(A) any person who is outside any country of such
person’s nationality or, in the case of a person
having no nationality, is outside any country in
which such person last habitually resided, and
who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of
the protection of, that country because of
persecution or a well-founded fear of persecution
on account of race, religion, nationality,
membership in a particular social group, or
political opinion. . .
8 U.S.C. § 1101(a)(42).
In 1996, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”). Section
601(a) of IIRIRA added the following language at the end of 8
U.S.C. § 1101(a)(42):
For purposes of determinations under this chapter,
a person who has been forced to abort a
pregnancy or to undergo involuntary sterilization,
or who has been persecuted for failure or refusal
12
to undergo such a procedure or for other
resistance to a coercive population control
program, shall be deemed to have been persecuted
on account of political opinion, and a person who
has a well-founded fear that he or she will be
forced to undergo such a procedure or subject to
persecution for such failure, refusal, or resistance
shall be deemed to have a well-founded fear of
persecution on account of political opinion.
8 U.S.C. § 1101(a)(42).3
Congress enacted § 601(a) for the express purpose of
overturning the BIA’s decision in Matter of Chang, 20 I. & N.
Dec. 38 (B.I.A 1989). See H.R. Rep. No. 104-469 (I), at 173
(1996) (“The primary intent of [this section] is to overturn
several decisions of the [BIA], principally Matter of Chang and
Matter of G-.”). In Matter of Chang, the petitioner had
requested asylum based upon his fear that he would be forcibly
sterilized if returned to China. In affirming the IJ’s rejection of
his claim, the BIA explained:
We cannot find that implementation of the “one
3
Unless otherwise indicated, we will refer to this
amendment as “§ 601(a).”
13
couple, one child” policy in and of itself, even to
the extent that involuntary sterilizations may
occur, is persecution or creates a well-founded
fear of persecution “on account of race, religion,
nationality, membership in a particular social
group, or political opinion.” . . . To the extent . .
. that such a policy is solely tied to controlling
population, rather than as a guise for acting
against people for reasons protected by the Act,
we cannot find that persons who do not wish to
have the policy applied to them are victims of
persecution or have a well-founded fear of
persecution within the present scope of the Act.
20 I. & N. Dec. at 44.
The BIA had an opportunity to apply the newly expanded
definition of “refugee” in Matter of C-Y-Z-, 21 I. & N. Dec. 915(BIA 1997) (en banc). There, an alien, whose wife and three
children had remained in China, petitioned for asylum arguing
that “he was persecuted in China on account of his opposition to
China’s birth control policies.” Id. at 916. According to the
petitioner, the persecution consisted of his wife being sterilized
against her will after the birth of their third child. The IJ
rejected the claim explaining: “‘(i)n effect, the applicant seeks
to ride on his wife’s coattails or claim asylum because of alleged
14
adverse factors to his wife, including forced sterilization. He,
himself, has never been persecuted and he cannot show either
past persecution or a reasonable fear of future persecution.’” Id.
at 916 (quoting the IJ’s decision) (alteration in C-Y-Z-).
On appeal, the BIA acknowledged that the IJ’s decision
was consistent with Matter of Chang. However, the Board
noted that “subsequent to the Immigration Judge’s decision, the
law was amended to specifically address coercive family
planning practices in the context of applications for asylum, and
Matter of Chang, has been superseded . . . .” The Immigration
and Naturalization Service (“INS”) 4 actually agreed with the
petitioner before the BIA and took the position that “past
4
On March 1, 2003, the functions of the INS were
transferred from the Department of Justice to three different
agencies (Immigration and Customs Enforcement, Customs
and Border Protection, and Citizenship and Immigration
Services) in the newly formed Department of Homeland
Security. See Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135. The immigration courts and the BIA
remain within the Department of Justice under the direction of
the Attorney General.
15
persecution of one spouse can be established by coerced
abortion or sterilization of the other spouse.” 5 Id. at 917.
Accordingly, the Board held that “the applicant in this case has
established eligibility for asylum by virtue of his wife’s forced
sterilization.” Id. at 918.6 Given the lack of opposition to the
merits of the claim, the Board was able to reach that conclusion
without any explanation, examination of statutory text, or
inquiry into congressional intent. See id. at 919 (“In view of the
enactment of section 601(a) of the IIRIRA and the agreement of
the parties that forced sterilization of one spouse on account of
a ground protected under the Act is an act of persecution against
the other spouse, the applicant has established past
persecution.”).
5
The INS did oppose the C-Y-Z- petitioner’s asylum
application based on credibility and evidentiary concerns.
6
The Board rejected the INS’ “assertion that an alien who
has established past persecution” based on coercive family
planning procedures was subject to any additional burden,
such as proving that the procedure amounted to an “atrocious
form” of persecution. Id. at 919.
16
Thereafter, the Courts of Appeals that were called upon
to interpret § 601(a) initially accepted the holding in C-Y-Z-.
However, until recently the “C-Y-Z- rule” was not contested by
the government. See, e.g., Lin-Jian v. Gonzales, 489 F.3d 182,
188 (4th Cir. 2007) (“The BIA interprets this provision to cover
the spouse of a person subjected to a forced abortion or
sterilization, [], and the government does not challenge this
interpretation.”) (citing C-Y-Z-); Cao v.Gonzales, 442 F.3d 657,
660 (8th Cir. 2006) (“In a case where forced sterilization and/or
abortion is the basis of a male petitioner's claim, we allow him
to stand in the shoes of his wife in claiming persecution.”)
(citing C-Y-Z-); Zhang v. Gonzales, 434 F.3d 993, 1001 (7th Cir.
2006) (accepting the C-Y-Z- holding without discussion and
rejecting the government’s position that subsequent break-up of
the marriage nullifies spouse’s status based on wife’s
persecution); He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003)
(accepting the C-Y-Z- rule without discussion and then reversing
17
adverse credibility finding); see also Zhang v. I.N.S., 386 F.3d
66, 73 (2d Cir. 2004) (“However difficult the problems of
identifying legitimate spousal persecution claims, we are obliged
to defer to the BIA’s interpretation of § 1101(a)(42).”),
overruled by Lin, 494 F.3d 296.7
In 2006, in a case remanded from the Court of Appeals
for the Second Circuit, the BIA reaffirmed the rule of C-Y-Z-.8
Matter of S-L-L-, 24 I. & N. Dec. 1 (BIA 2006). By then,
7
As noted at the outset, we initially accepted the Board’s
interpretation of IIRIRA § 601(a) also. See Sun Wen Chen,
491 F.3d at 103; Cai Luan Chen v. Ashcroft, 381 F.3d 221,
227 (3d Cir. 2004) (“[I]f C-Y-Z-’s interpretation is permissible
(and we assume for the sake of argument that it is), the
distinction that the BIA has drawn between married and
unmarried couples satisfies step two of Chevron.”).
8
The matter was remanded to the BIA with a request that
the BIA explain its rationale for the C-Y-Z- rule. Lin v. U.S.
Dep’t of Justice, 416 F.3d 184, 192 (2d Cir. 2005)
(“[B]ecause the BIA has never adequately explained its
rationale for establishing spousal eligibility under IIRIRA §
601(a), we cannot reasonably determine the status of
boyfriend and fiancé eligibility under IIRIRA § 601(a).”)
(emphasis in original).
18
however, the Department of Homeland Security (“DHS”) had
reversed the prior position of the INS and “request[ed] that [the
Board] replace the spousal eligibility rule adopted in Matter of
C-Y-Z- . . . with a case-by-case approach grounded in the ‘other
resistance’ clause of section 101(a)(42) of the Act.” Id. at 3. In
response, the Board opined that “[t]here is no clear or obvious
answer to the scope of protections afforded by the [IIRIRA]
amendment to partners of persons forced to submit to an
abortion or sterilization.” Id. at 4. The Board then applied what
it described as: “general principles requiring nexus and level of
harm[,]” and concluded that “[w]hen the government intervenes
in the private affairs of a married couple to force an abortion or
sterilization, it persecutes the married couple as an entity.” Id.
at 5-6. However, the Board ultimately relied upon nothing more
than its own view of the impact of coercive family planning
measures on the marital relationship and affirmed the rule of C-
Y-Z-. Accordingly, the Board held that the broadened definition
19
of “refugee” set forth in § 601(a) “protect[s] both spouses.” Id.
at 6.
Soon thereafter, we decided Sun Wen Chen. A divided
panel of this court held that the Board’s “spousal eligibility” rule
(as articulated in C-Y-Z- and S-L-L-) was entitled to Chevron
deference because the majority perceived an ambiguity in §
601(a). 9 491 F 3d. at 107 (“[N]othing in the statute evince[s]
9
See Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Under our familiar
Chevron analysis:
[I]n reviewing an agency’s construction of a
statute administered by the agency, the court
asks first if the statute is silent or ambiguous
with respect to the specific issue of law in the
case, using traditional tools of statutory
construction to determine whether Congress had
an intention on the precise question at issue. If
Congress’s intention is not evident, the court
moves to the second step, where the question
for the court is whether the agency’s answer is
based on a permissible construction of the
statute. When Congress has left a gap in a
statute, implicitly leaving the administering
agency responsible for filling that gap, a court
may not substitute its own construction of a
statutory provision for a reasonable
20
Congressional intent to establish a particular policy regarding
spousal eligibility.”). The majority then concluded that the
Board’s interpretation was a permissible construction of the
statute and thus entitled to deference. In the majority’s view, it
was not unreasonable for the Board to conclude that “the scope
of the harm resulting from the enforcement of a population-
control policy by forced abortion and involuntary sterilization
extends to both spouses.” Id. at 108.
The dissent argued that the majority had erred in applying
Chevron, because § 601(a) is not ambiguous. In the dissent’s
view, congressional intent could readily be determined from the
text of the statute, and therefore there was no need to defer to
the agency’s construction of the statute. Rather, in the dissent’s
interpretation made by the administrator of an
agency.
Augustin v. Attorney General, 520 F.3d 264 (3d Cir. 2008)
(citations and internal quotation marks omitted). Chevron is
discussed more thoroughly in Section III, below.
21
view, § 601(a) “unambiguously broaden[ed] the definition of
‘refugee’ to include ‘a person who has been forced to abort a
pregnancy or to undergo involuntary sterilization[.]” The dissent
argued that “the omission of any reference to a ‘spouse’ [was
not] accidental or insignificant.” Id. at 114 (McKee, J.
dissenting) (emphasis in original). Thus, the dissent concluded
that analysis should begin and end with the text of the statute
because there was no textual “gap” for an agency interpretation
to fill. Id. Moreover, even assuming the statute contained some
latent ambiguity, the dissent believed that the Board’s
interpretation of § 601(a) would still not be entitled to deference
because it was not a reasonable interpretation of the statute. Id.
at 114-19.
Not long after the panel decided Chen, the en banc Court
of Appeals for the Second Circuit reviewed the Board’s decision
in S-L-L- as well as that court’s own precedent. In Shi Liang Lin
v. United States Department of Justice, 494 F.3d 296 (2d Cir.
22
2007) (en banc), the en banc court rejected the Board’s
interpretation of § 601(a), agreeing instead with the dissent in
Chen. In denying Shi Liang’s petition for review, the Court of
Appeals for the Second Circuit held that § 601(a) clearly and
unambiguously states congressional intent to limit refugee status
to one who is actually subjected to the coercive family planning
procedure. Id. at 304.10 The court noted that the amendment
repeatedly refers to “a person” who has been victimized, and
concluded that, “[u]nder the language used by Congress, having
someone else, such as one’s spouse, undergo a forced procedure
does not suffice to qualify an individual for refugee status.” Id.
at 305-06. The court thus held that “the statutory scheme
unambiguously dictates that applicants can become candidates
for asylum relief only based on persecution that they themselves
10
As we shall explain, an alien who is not actually
subjected to coercive family planning policies can still
establish refugee status if he was actually persecuted for
opposing those policies or has a well-founded fear of being
subjected to such persecution.
23
have suffered or must suffer.” Id. at 308.
The Attorney General has recently released a new
opinion overruling the Board’s C-Y-Z-/S-L-L- interpretation.
See Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). Although
we note this development for the sake of thoroughness, it is not
relevant to our analysis. As explained below, given the
unambiguous text of § 601(a), our inquiry into congressional
intent must begin and end with the statutory text.
It is against this background that we granted en banc
consideration of Lin-Zheng’s petition for review.
III. Our Standard of Review.
The Board’s view of spousal asylum under § 601(a) is a
legal conclusion which we review de novo. See, e.g., Yusupov
v. Attorney General, 518 F.3d 185, 197 (3d Cir. 2008). Since
we are called upon to interpret a statute that is within the scope
of an agency’s rulemaking and lawmaking authority, our inquiry
implicates the principles set forth in Chevron U.S.A., Inc. v.
24
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
See I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999)
(“principles of Chevron deference” apply to the INA).
As noted earlier, under Chevron, we must first determine
“if the statute is silent or ambiguous with respect to the specific
issue of law in the case, using traditional tools of statutory
construction to determine whether Congress had an intention on
the precise question at issue.” Augustin, 520 F.3d at 268(internal quotation marks omitted). If congressional intent is
clear, “the inquiry ends, as both the agency and the court must
give effect to the plain language of the statute.” Yusupov, 518
F.3d at 197. Where, however, a “statute is silent or ambiguous
with respect to the specific issue, the court proceeds to step two,
where it inquires whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 198 (internal
quotation marks omitted).
We review factual findings of the Board under the
25
“substantial evidence” standard. See INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992); Guo v. Ashcroft, 386 F.3d 556, 561 (3d
Cir. 2004). A factual determination will be upheld if it is
“supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Elias-Zacarias, 502 U.S. at
481 (citation omitted). “Adverse credibility determinations are
factual matters and are also reviewed under the substantial
evidence standard.” Guo, 386 F.3d at 561. The Board’s adverse
credibility determination must be upheld on review unless “‘any
reasonable adjudicator would be compelled to conclude to the
contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
IV. The Meaning of IIRIRA § 601(a).
As noted earlier, in enacting IIRIRA § 601(a), Congress
broadened the definition of “refugee” to include “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
26
population control program,” as well as “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.” 8 U.S.C. § 1101(a)(42). We must determine if
Congress intended to include spouses such as Lin-Zheng within
this broadened definition of “refugee.”
A basic tenet of statutory construction is that we “must
begin with . . . the assumption that the ordinary meaning of
[statutory] language accurately expresses the legislative
purpose.” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S.
189, 194 (1985); see also Flora v. United States, 357 U.S. 63,
65 (1958) (“In matters of statutory construction, the duty of this
Court is to give effect to the intent of Congress, and in doing so
our first reference is of course to the literal meaning of the
words employed.”) In ordinary usage, “person” is defined as
“an individual human being.” Webster’s Third New Int’l
Dictionary (1986); see also Black’s Law Dictionary (8th ed.
27
2004) (defining “person” as “a human being”). “Undergo”
means “to submit to” or “to go through.” Webster’s, supra.
Thus, there is no room for us to conclude that Congress intended
to extend refugee status to anyone other than the individual who
has either been forced to submit to an involuntary abortion or
sterilization, has been persecuted for failure or refusal to
undergo such a procedure, or has a well-founded fear of that
occurring in the future.11 Had Congress wished to extend
protection to that person’s spouse, it could easily have defined
“refugee” to include the person persecuted as well as his or her
spouse. See Sun Wen Chen, 491 F.3d at 113. (McKee, J.,
dissenting). (“Congress could have easily drafted this provision
11
In Cai Luan Chen, we noted in dicta that a contrary
interpretation “is not without difficulties.” 381 F.3d at 225.
There, we discussed the spousal eligibility rule of C-Y-Z-, and
possible justifications for it. However, we did not need to
interpret § 601(a). Rather, we simply noted that the Board’s
justification for the rule could be “the assumption that the
persecution of one spouse by means of a forced abortion or
sterilization causes the other spouse to experience intense
sympathetic suffering that rises to the level of persecution.”
Id.
28
to extend to ‘married couples who have been subjected to a
forced abortion or involuntary sterilization.’”). However,
Congress did not include anyone other than the “person” who is
actually subjected to coercive family planning policies, and
neither this court, nor the BIA, can amend the statute by
broadening the meaning of “refugee” beyond the parameters of
the statutory text. See id. at 107 (majority opinion) (“[A]
statute’s silence on a given issue does not confer gap-filling
power on an agency unless the question is in fact a gap - an
ambiguity tied up with the provisions of the statute.”). Yet,
since 1997, the C-Y-Z- spousal eligibility rule has resulted in
refugee status being conferred on persons who were never faced
with forced sterilization or abortion, and could not claim a well-
founded fear of being forcibly subjected to those procedures in
the future.
As the court concluded in Lin, the statute “could not be
more clear in its reference to ‘a person,’ rather than ‘a couple’”
29
and “cannot be read reasonably to cover an individual’s fears
arising from a coercive procedure performed on someone else.”
494 F.3d at 305-06; see also id. at 308 (“[W]e 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.”); Sun Wen
Chen, 419 F.3d at 113 (McKee, J., dissenting) (“[o]ne need look
only to the words Congress used in the statute to conclude that
§ 1101(a)(42) . . . applies to ‘a person who’ [meets the criteria
outlined in the provision]”). Moreover, as also noted in Lin, the
use of the pronouns “‘he’ and ‘she’ reinforces the intention of
Congress to limit the application of the clause to individuals
who are themselves physically forced to undergo an abortion or
sterilization.” 494 F.3d at 306.
When the BIA established the spousal eligibility rule of
C-Y-Z-, the agency noted that § 601(a) does not mention
spouses. However, the BIA concluded that the omission was
30
not dispositive. See S-L-L-, 24 I. & N. Dec at 5. The Board
reasoned:
The lack of such a reference, . . . does not
necessarily preclude an applicant from
demonstrating past persecution based on harm
inflicted on a spouse when both spouses are
harmed by government acts motivated by a
couple's shared protected characteristic. For
example, putting aside the amendment for a
moment, if a government, as part of a campaign
of persecution against members of a particular
religious group, subjected married couples within
that religious group to a policy of mandatory
sterilization, the government's sterilization of
either party to the marriage harms both
individuals and is on account of the religion of
both.
Id. (Emphasis added) Thus, while interpreting § 601(a), the
BIA “put aside” the very statutory text that should have
controlled its inquiry into congressional intent.
We conclude that § 601(a) is clear and unambiguous. We
must therefore “give effect to the plain language of the statute.”
Yusupov, 518 F.3d at 197. Accordingly, we now overrule the
holding in Sun Wen Chen, and instead adopt the analysis of the
31
Court of Appeals for the Second Circuit in Lin.
Before concluding our discussion, we think it important
to emphasize that spouses of individuals subjected to coercive
family planning obviously remain eligible for derivative asylum
under 8 U.S.C. § 1158(b)(3)(A). That provision of the Act
generally confers eligibility for asylum on “[a] spouse or child
of an alien who is granted asylum under this subsection” where
the spouse or child is “ accompanying, or following to join, [the
alien with the primary asylum claim].” 8 U.S.C. §
1158(b)(3)(A).
Spouses also remain eligible for relief in their own right
under the specific language of § 1101(a)(42), provided they
qualify as a refugee based upon their own “persecution.” For
example, the “other resistance” clause of § 1101(a)(42) confers
refugee status on “[a] person . . . who has been persecuted . . .
for other resistance to a coercive population control program .
. . [or] has a well-founded fear that he or she will be . . . subject
32
to persecution for such . . . resistance.” Thus, an applicant can
claim refugee status if he/she can demonstrate actual persecution
for resisting a country’s coercive family planning policy, or a
well-founded fear of future persecution for doing so.
V. Conclusion
For the reasons set forth above, we will deny Lin-
Zheng’s petition for review to the extent it is based on
allegations of his wife’s forced abortion and/or the forced
insertion of an IUD. That testimony fails as a matter of law
because, even if credible, it does not establish eligibility for
asylum under § 1101(a)(42), as amended by § 601(a) of IIRIRA.
We realize that Lin-Zheng also testified about his own
harassment by family planning authorities. That testimony
could, under some circumstances, form the basis of an
independent asylum claim. Here, however, there is substantial
evidence on the record to support the Board’s adverse credibility
determination with regard to this portion of Lin-Zheng’s
33
testimony. Cao v. Attorney General, 407 F.3d 146, 152 (3d Cir.
2005). Accordingly, we find it unnecessary to remand this
matter for any further proceedings to consider that basis for
relief.
34