Ni v. Holder ( 2010 )

Filed: September 2, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1584
YI NI,
Petitioner,
v.
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
O R D E R
The Court amends its opinion filed July 13, 2010, as
follows:
On page 24, second paragraph, line 11 –- the words
“that he was eligible” are deleted.
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
YI NI, 
Petitioner,
v.
 No. 09-1584
ERIC H. HOLDER, JR., U.S.
Attorney General,
Respondent.

On Petition for Review of an Order of
the Board of Immigration Appeals.
Argued: May 12, 2010
Decided: July 13, 2010
Before SHEDD, DUNCAN and AGEE, Circuit Judges.
Denied in part and dismissed in part by published opinion.
Judge Duncan wrote the opinion, in which Judge Shedd and
Judge Agee concurred.
COUNSEL
ARGUED: Gang Zhou, New York, New York, for Petitioner.
Daniel Eric Goldman, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Tony West, Assistant Attorney General, Civil Divi-
sion, Brianne Whelan Cohen, Trial Attorney, Office of Immi-
2 NI v. HOLDER
gration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
OPINION
DUNCAN, Circuit Judge:
This case arises from a petition for review of the Board of
Immigration Appeals’ (the "BIA") denial of Petitioner Yi Ni’s
application for withholding of removal pursuant to section
241(b)(3) of the Immigration and Naturalization Act (the
"INA"). We find that the BIA’s decision is legally sound and
supported by substantial evidence. We further find that Ni has
procedurally forfeited his request for a remand to present
additional evidence. We therefore deny the petition in part
and dismiss it in part.
I.
Ni, a citizen of the People’s Republic of China, filed an
application for asylum and withholding of removal with the
Department of Homeland Security on April 29, 2002.1 Ni’s
application asserted that he was eligible for relief because he
had a well-founded fear of future persecution in China under
that country’s "one-child" policy. His claim was based on sec-
tion 601 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (the "IIRIRA") (codified at 8
U.S.C. § 1101(a)(42)).2 According to the BIA’s interpretation
at the time, section 601 allowed an applicant to establish eligi-
1
Ni also filed an application for protection under Article 3 of the United
Nations Convention Against Torture (the "CAT"), which the BIA ulti-
mately denied. However, as Ni conceded at oral argument, he does not
challenge that denial and therefore the issue is not before us.
2
Courts use "section 601" and "8 U.S.C. § 1101(a)(42)" interchangeably
to refer to the same statutory provision. This opinion will refer to the pro-
vision as "section 601."
NI v. HOLDER 3
bility for asylum and withholding based on past persecution
if the applicant could show that his wife had been forced by
the government to have an abortion. See Matter of C-Y-Z-, 21
I. & N. Dec. 915, 918 (B.I.A. 1997) (en banc); Matter of S-L-
L-, 24 I. & N. Dec. 1, 4 (B.I.A. 2006) (en banc).
Ni’s application alleged that, after marrying Ni Hong Mei
in January 1992, he fathered a son with her in 1993. Approxi-
mately two months after the birth of the couple’s son, Mei
was forced to have an intrauterine contraceptive device (an
"IUD") inserted pursuant to the population control policies of
the Fuzhou municipality, the area where the couple resided.
Those policies prohibited rural couples from having more
than one child and required them to follow certain contracep-
tive measures. In May 2000, during a government-required
"IUD checkup," Mei was diagnosed as pregnant. Ni asserts
that the pregnancy occurred "without [his wife’s] knowledge"
due to the dislodging of her IUD. J.A. 604. According to Ni,
because the pregnancy was the couple’s second, the clinic
staff subjected Mei to an involuntary abortion in accordance
with the local policies.
Ni asserted that following that incident, he and his wife
became depressed because they wished to have more children
but were "too afraid to conceive out of plan." J.A. 604.
According to Ni, he and his wife "would never have the
chance to have more children" and he therefore "hated the
family planning policy." Id. Ni and Mei "decided that [they]
should leave China" and, shortly thereafter, Ni "took an
opportunity" and left the country. Id. Mei remained in China.
On June 21, 2005, Ni appeared for a merits hearing before
an Immigration Judge (an "IJ") in Baltimore, Maryland. Upon
conclusion of Ni’s testimony, the IJ rendered an oral decision
denying Ni’s application. The IJ concluded that Ni’s asylum
application was time-barred because he had failed to establish
by clear and convincing evidence that he filed the application
within one year of his arrival in the United States. The IJ also
4 NI v. HOLDER
denied Ni’s withholding of removal application, holding that
"there [was] no clear probability that the respondent would be
the victim of future persecution in China on account of his
political opinion." J.A. 182. Although she did not directly
address the basis for her decision, the IJ appeared to rely
largely on an adverse credibility finding regarding the alleged
forced abortion. She focused on the fact that Mei’s medical
examination booklet, which Ni submitted in support of his
application, did not make any mention of an abortion taking
place in 2000.
Ni appealed the decision to the BIA. On June 25, 2007, the
BIA issued an opinion affirming the IJ’s decision in part and
remanding in part. The BIA affirmed the IJ’s conclusion that
Ni’s asylum application was time-barred.3 However, the BIA
remanded the matter "for further analysis of the respondent’s
claim for withholding of removal," holding as follows:
The Immigration Judge did not make an explicit
finding with regard to the respondent’s credibility
and provided little analysis of the merits of his claim
that his wife was subjected to a forcible abortion of
her second pregnancy in May 2000. Rather the
Immigration Judge appears to have based her deci-
sion to deny relief solely on the fact that the gyneco-
logical examination booklet submitted in support of
the respondent’s claim does not contain any refer-
ence to the alleged abortion in May 2000. We con-
sider the Immigration Judge’s decision in this case to
be insufficient for purposes of appellate review and
conclude that remand for further fact-finding and
legal analysis is appropriate.
J.A. 149 (citations omitted).
3
Ni does not challenge that determination in this petition.
NI v. HOLDER 5
On remand, the IJ expressly made an adverse credibility
finding with regard to Ni’s claim that his wife was forced to
have an abortion. This finding was based on a "material dis-
crepancy between his oral account of what transpired and
documentation which he has submitted in support of his
clam." J.A. 65. The IJ again found especially relevant the fact
that Mei’s medical booklet did not make any reference to an
abortion. She further noted that Ni provided no explanation of
why such a reference would have been omitted. The IJ also
highlighted that Ni had failed to present any corroborative
evidence for his claim, in spite of the fact that he had three
years in which to do so.
Ni once again appealed the decision to the BIA. On April
29, 2009, the BIA dismissed Ni’s appeal. In affirming the IJ’s
decision, the BIA held:
Assuming that the Immigration Judge’s adverse
credibility determination did not undermine [Ni’s]
application for withholding of removal, her denial of
his application for such relief was not in error
because his claim is primarily based on his wife’s
alleged forced abortion.
J.A. 4. The BIA concluded that, as held by the Attorney Gen-
eral in the 2008 decision in Matter of J-S-, 24 I. & N. Dec.
520 (A.G. 2008), which overturned prior BIA precedent,4
under section 601 of the IIRIRA "a claim of persecution
based on a forced abortion . . . can only be brought by the
individual who has undergone the procedure." J.A. 4. The
BIA also found that Ni had not shown any other grounds for
eligibility. It noted that Mei’s forced insertion of an IUD did
not rise to the level of persecution and that, in any event, there
was no nexus between Ni’s alleged resistance to the one-child
4
As noted above, the BIA had previously held that the spouse of a per-
son who had been physically subjected to a forced abortion or sterilization
procedure was entitled to bring a claim under section 601 of the IIRIRA.
6 NI v. HOLDER
policy and the insertion of the IUD. Finally, the BIA also held
that Ni’s claim that he would face persecution when he had
more children in the future was too speculative. The BIA
therefore affirmed the IJ’s denial of Ni’s claims. Ni petitioned
this court for review of the BIA’s decision.
II.
Ni challenges only the BIA’s denial of his withholding of
removal claim. He presents three contentions. First, Ni argues
that the BIA erred in relying on Matter of J-S- to deny his
claim because that decision concerned persecution in the con-
text of asylum rather than withholding of removal. Second, he
asserts that, even if he was unable under Matter of J-S- to
show past persecution based on his wife’s forced abortion, his
claim should nonetheless have been granted because he
showed a clear probability of persecution on other grounds.
Finally, Ni argues in the alternative that, because Matter of J-
S- changed the legal standard applicable to his case, the mat-
ter should be remanded to the IJ so that he may have an
opportunity to present additional evidence to support his
claim in light of the new legal standard. We address each
argument in turn.
A.
In addressing Ni’s first contention, we must consider
whether his withholding of removal claim is foreclosed by the
holding in Matter of J-S- that section 601 of the IIRIRA does
not permit a husband to establish past persecution or fear of
future persecution based on his wife’s forced abortion.
Because the Attorney General’s holding in Matter of J-S-
involves a question of statutory interpretation, we must first
evaluate the validity of that interpretation, see Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43 (1984), and then determine whether it governs the
present case.
NI v. HOLDER 7
We begin by exploring the relevant legal background. We
then analyze the Attorney General’s interpretation of section
601 under Chevron. Finally, we determine whether section
601 as interpreted applies to Ni’s withholding of removal
claim.
1.
Withholding of removal is available under 8 U.S.C.
§ 1231(b)(3) "only to an alien who can demonstrate a ‘clear
probability’ of persecution on account of his race, religion,
nationality, membership in a social group, or political opin-
ion." Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir.
2004). To establish a clear probability of persecution, the
alien must prove that "it is more likely than not that her life
or freedom would be threatened in the country of removal."
Gomis v. Holder, 571 F.3d 353, 359 (4th Cir. 2009).
Ni’s claim of persecution is based on his wife’s forced
abortion pursuant to China’s one-child policy. Forced abor-
tion is recognized as grounds for establishing persecution
under section 601 of the IIRIRA, which amended the INA to
include the following sentence:
For purposes of determinations under this Act, a per-
son 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 popu-
lation control program, shall be deemed to have been
persecuted on account of political opinion, and a per-
son 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 per-
secution on account of political opinion.5
5
Although section 601 was adopted in the context of asylum, it applies
equally to withholding claims. See, e.g., Lin-Jian v. Gonzales, 489 F.3d
8 NI v. HOLDER
8 U.S.C. § 1101(a)(42)(B) (footnote call number added). Con-
gress passed section 601 in 1996 "‘for the express purpose of
overturning the BIA’s decision in Matter of Chang, 20 I. &
N. Dec. 38 (B.I.A. 1989),’ which had held that involuntary
sterilization pursuant to China’s ‘one child’ policy did not
constitute persecution on account of a protected ground."
Dong v. Holder, 587 F.3d 8, 11 (1st Cir. 2009) (quoting Lin-
Zheng v. Attorney General, 557 F.3d 147, 151 (3d Cir. 2009)
(en banc)).
In 1997, the BIA interpreted the new section 601 to mean
that "the spouse of a woman who has been forced to undergo
an abortion or sterilization procedure can thereby establish
past persecution." Matter of C-Y-Z-, 21 I. & N. Dec. 915, 918
(B.I.A. 1997). See also Matter of S-L-L-, 24 I. & N. Dec. 1,
8 (B.I.A. 2006) (en banc) (explaining and reinforcing the
holding of Matter of C-Y-Z-). This interpretation was based
largely on the finding that "[t]he impact of forced abortions
or sterilizations on a husband and wife’s shared right to repro-
duce and raise children is such that ‘the forced sterilization of
a wife could be imputed to her husband, whose reproductive
opportunities the law considers to be bound up with those of
his wife.’" Matter of S-L-L-, 24 I. & N. Dec. at 14 (quoting
Chen v. Ashcroft, 381 F.3d 221, 226 (3d Cir. 2004) (internal
quotations omitted)).
We previously adopted this interpretation of section 601 in
a case where the government did not contest it. In Lin-Jian v.
Gonzales, 489 F.3d 182 (4th Cir. 2007), we held that an appli-
cant for withholding of removal could establish past persecu-
tion based on his wife’s forced abortion pursuant to China’s
one-child policy:
182, 188 (4th Cir. 2007) (stating that, under the language of section 601
"Lin may establish eligibility for asylum or withholding of removal"); see
also infra Section II.A.2.b (explaining the applicability of section 601 to
withholding of removal).
NI v. HOLDER 9
The BIA interprets [section 601] to cover the spouse
of a person subjected to a forced abortion or steril-
ization, . . . and the government does not challenge
this interpretation. . . . Thus, Lin may establish eligi-
bility for asylum or withholding of removal by dem-
onstrating that his wife was forced to undergo an
abortion or that he himself has a well-founded fear
of sterilization or other persecution if he returns to
China.
Id. at 188 (citations omitted). Several other circuits similarly
applied the BIA’s construction. See Chen v. Attorney General,
491 F.3d 100, 105 (3d Cir. 2007); Cao v. Gonzales, 442 F.3d
657, 660 (8th Cir. 2006); Zhang v. Gonzales, 434 F.3d 993,
1001 (7th Cir. 2006); He v. Ashcroft, 328 F.3d 593, 604 (9th
Cir. 2003).
In 2007, however, the Second Circuit brought the BIA’s
interpretation of section 601 into question. In Lin v. D.O.J.,
494 F.3d 296 (2d Cir. 2007), the court rejected the BIA’s
position that the language of section 601 covered the spouses
of women forced to abort, concluding "that the BIA erred . . .
by failing to acknowledge language in § 601(a), viewed in the
context of the statutory scheme governing entitlement to asy-
lum, that is unambiguous and that does not extend automatic
refugee status to spouses . . . of individuals § 601(a) expressly
protects." Id. at 300.
Shortly thereafter, the Third Circuit ordered the Department
of Justice to submit additional briefing in its pending case of
Shi v. Attorney General, No. 06-1952, 2007 U.S. App. LEXIS
17927 (3d Cir. July 27, 2007), in which an applicant sought
asylum based on his wife’s forced insertion of an IUD. The
government was directed to address "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)." Matter of J-S-, 24 I. & N. Dec. at 522-23. In response
to this request, the Attorney General directed the BIA to refer
10 NI v. HOLDER
to him its decision in Shi for review pursuant to 8 C.F.R.
§ 1003.1(h)(1)(i).
The Attorney General then issued an order in May 2008
overruling the BIA’s prior case law and holding "that the
spouse of a person who has been physically subjected to a
forced abortion or sterilization procedure" is not "per se enti-
tled to refuge status." Matter of J-S-, 24 I. & N. Dec. at 520.
The Attorney General explained that the text and structure of
section 601 clearly indicate that it is only intended to cover
the specific individual that was subjected to the forced proce-
dure and not that individual’s spouse. The Attorney General
also noted that interpreting section 601 to cover spouses cre-
ated conflicts with several other INA provisions, including
those requiring each individual asylum applicant to establish
fear of persecution in his or her own right and those setting
specific limits and requirements for the derivative relief avail-
able to some spouses of successful asylum applicants.
Following Matter of J-S-, at least three other circuits have
applied the Attorney General’s new interpretation of section
601 in published opinions; no circuit appears to have rejected
it. See Yu v. Attorney General, 568 F.3d 1328, 1332-33 (11th
Cir. 2009); Jin v. Holder, 572 F.3d 392, 397 (7th Cir. 2009);
Lin-Zheng v. Attorney General, 557 F.3d 147, 157 (3d Cir.
2009) (en banc).
2.
We turn now to the question of whether to adopt the Attor-
ney General’s construction of section 601. Because in making
that determination we are reviewing "an agency’s construc-
tion of the statute which it administers," we must be guided
by the application of the familiar Chevron framework. Chev-
ron, 467 U.S. at 842. Before conducting that analysis, how-
ever, we must first determine the extent to which our
consideration is affected by our precedent in Lin-Jian, which
NI v. HOLDER 11
applied a contrary interpretation to that reached by Matter of
J-S-.
The Supreme Court has addressed the precise question that
confronts us: "A court’s prior judicial construction of a statute
trumps an agency construction otherwise entitled to Chevron
deference only if the prior court decision holds that its con-
struction follows from the unambiguous terms of the statute
and thus leaves no room for agency discretion." Nat’l Cable
& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
982 (2005) (emphasis added). We have previously applied
Brand X in the context of a BIA interpretation that is contrary
to our precedent. In Fernandez v. Keisler, 502 F.3d 337 (4th
Cir. 2007), a petitioner urged us to apply our precedent in
United States v. Morin, 80 F.3d 124 (4th Cir. 1996), where we
held that a person qualifies as a "national of the United
States" under 8 U.S.C. § 1101(a)(22) if he can establish that
he owes "permanent allegiance to the United States." Morin,
80 F.3d at 126. The BIA had subsequently rejected such inter-
pretation of the statute, finding that § 101(a)(22)(B) "does not
provide a means for acquiring U.S. national status." Fernan-
dez, 502 F.3d at 339.
Relying on Brand X, we held that "[a]lthough we agree
with Fernandez that he would qualify as a U.S. national under
Morin, our decision in Morin did not purport to set forth the
only possible interpretation of the definition of ‘national of
the United States’" and therefore "we must afford deference
to the BIA’s contrary, post-Morin interpretation of the INA if
it is a ‘permissible construction of the statute.’" Id. (quoting
Chevron, 467 U.S. at 843). We explained that, although
"Brand X in no way calls into doubt our many previous judi-
cial interpretations that rested on the unambiguous words of
the statute," where a prior decision of this court applied an
interpretation that it "merely assumed was correct without
saying anything, one way or the other, about whether the stat-
ute dictated such an interpretation," that decision "must yield
12 NI v. HOLDER
to a reasonable interpretation" by the relevant agency. Id. at
347-48 (emphasis in the original).
Here, Lin-Jian did not hold that the interpretation it was
applying followed "from the unambiguous terms of the stat-
ute." Brand X, 545 U.S. at 982. In fact, the opinion made clear
that because the BIA’s interpretation of section 601 was
uncontested at the time, we "merely assumed [it] was correct
without saying anything, one way or the other, about whether
the statute dictated such an interpretation." Fernandez, 502
F.3d at 338. Therefore, pursuant to Brand X and Fernandez,
our precedent in Lin-Jian is not controlling here if our Chev-
ron review of Matter of J-S- reveals that the language of the
statute is unambiguous and thus the Attorney General’s inter-
pretation of section 601 is correct. Accordingly, as the court
did in Fernandez, we will guide our analysis by the applica-
tion of the Chevron framework. See id. at 348-51.
a.
Pursuant to Chevron, we "must first consider whether
‘Congress has directly spoken to the precise question’ at issue."6
United States v. Thompson-Riviere, 561 F.3d 345, 350 n.2
(4th Cir. 2009) (quoting Chevron, 467 U.S. at 842). If we
determine that Congress has indeed so spoken, we "must give
effect to the unambiguously expressed intent of Congress." Id.
(quoting Chevron, 467 U.S. at 843). If, however, we find that
Congress has not directly spoken, we "must determine
whether the agency’s interpretation of the statute in question
is based on a permissible construction of the statute." Id.
In seeking to determine whether Congress has directly spo-
6
As explained above, Lin-Jian did not have occasion to analyze the
meaning of section 601, and we are therefore free to address that question
anew. See Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) ("[S]ince we
have never squarely addressed the issue, and have at most assumed [it]
. . . , we are free to address the issue on the merits.").
NI v. HOLDER 13
ken through section 601, we must "begin by examining its
plain language" and "give the relevant terms their common
and ordinary meaning." Reid v. Angelone, 369 F.3d 363, 367
(4th Cir. 2004) (internal quotations omitted). This is because
we must "assum[e] that the ordinary meaning of that language
accurately expresses the legislative purpose." Gross v. FBL
Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009) (internal quota-
tions omitted).
Section 601 states in relevant part:
For purposes of determinations under this Act, a per-
son 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 popu-
lation 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 per-
secution on account of political opinion.
8 U.S.C. § 1101(a)(42)(B) (emphasis added). The ordinary
meaning of the word "person" in section 601 is "[a]n individ-
ual human being." Webster’s Third New Int’l Dictionary
1686 (1986) (emphasis added); see also Black’s Law Dictio-
nary 1257 (9th ed. 2009) (defining "person" as "[a] human
being"). Therefore, in using the word person, and omitting
any reference to that person’s spouse, it is clear that Congress
intended to cover only the individual who has actually been
forced to undergo the forced procedure or related persecution,
or who has a well-founded fear of such persecution. See Yu,
568 F.3d at 1332-33; Lin-Zheng, 557 F.3d at 157; Lin, 494
F.3d at 305. Had Congress intended to cover couples rather
than individuals, it could easily have said so. See Lin-Zheng,
557 F.3d at 156 ("Had Congress wished to extend protection
14 NI v. HOLDER
to that person’s spouse, it could easily have defined ‘refugee’
to include the person persecuted as well as his or her
spouse."); see also Gutierrez v. Ada, 528 U.S. 250, 255-56
(2000) (declining to read a word by inference into a statute
that does not contain it and finding that "[t]o argue otherwise
is to tag Congress with an extravagant preference for the
opaque when the use of a clear adjective or noun would have
worked nicely").
Furthermore, as our sister circuits have noted, the fact that
the statute makes reference to a person who fears that "he or
she will be forced to undergo such a procedure" indicates that
it intends to refer to only one person rather than a couple, for
the individual pronouns "he or she" would not be needed if
the word "person" was intended to automatically cover both
members of a couple. 8 U.S.C. § 1101(a)(42)(B). See Yu, 568
F.3d at 1332; Lin-Zheng, 557 F.3d at 156; Lin, 494 F.3d at
306; see also Lane v. United States, 286 F.3d 723, 731 (4th
Cir. 2002) (noting "the basic principle of statutory interpreta-
tion instructing courts to avoid a reading which renders some
words altogether redundant" (internal quotations omitted)).
For these reasons, we join our sister circuits in holding that
in section 601 Congress unambiguously expressed the intent
to cover only the specific individual who has undergone
forced abortion or sterilization, who has been persecuted for
resisting, or who has a well-founded fear of such persecution.
Thus, as the Attorney General correctly held in Matter of
J-S-, section 601 clearly covers only an applicant’s personal,
not derivative, experience or fear of persecution. See Yu, 568
F.3d at 1332 ("In simple terms, persecution, or the fear
thereof, must be personally endured by the applicant.").
b.
Even if we found that the terms of the statute were some-
how ambiguous, we would still defer to the Attorney Gener-
al’s holding that an applicant who establishes that his spouse
NI v. HOLDER 15
was subjected to a forced abortion is not "entitled to refugee
status under section 601" based on that fact alone, Matter of
J- S-, 24 I. & N. Dec. at 520,7 but rather must establish a well-
founded fear of persecution in his own right, id. at 537-38.8
As the Supreme Court has explained, the Attorney General’s
decisions regarding eligibility for withholding of removal are
especially worthy of Chevron deference because "[s]ection
1253(h) [of Title 18] . . . in express terms confers decision-
making authority on the Attorney General, making an alien’s
entitlement to withholding turn on the Attorney General’s
determination whether the statutory conditions for withhold-
ing have been met." I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,
424-25 (1999) (internal quotations omitted). The Supreme
Court has also highlighted that "judicial deference to the
Executive Branch is especially appropriate in the immigration
context where officials ‘exercise especially sensitive political
functions that implicate questions of foreign relations.’" Id. at
425 (quoting I.N.S. v. Abudu, 485 U.S. 94, 110 (1988)). Thus,
we must give the Attorney General’s determination "control-
ling weight unless th[e] interpretation[ ] [is] ‘arbitrary, capri-
cious, or manifestly contrary to the statute.’" Fernandez, 502
F.3d at 344 (quoting Chevron, 467 U.S. at 844).
The Attorney General’s decision in Matter of J-S- is partic-
ularly well-deserving of that deference. First, the Attorney
General analyzed the text of the statute in a manner consistent
7
In an unpublished opinion issued in March 2010, we relied on Matter
of J-S- in affirming a denial of withholding of removal. See Ouyang v.
Holder, No. 09-1160, 2010 U.S. App. LEXIS 6080, at *2 (4th Cir. Mar.
24, 2010). However, we specifically declined to analyze the effect of Mat-
ter of J-S- on our precedent in Chen, finding that Ouyang was not the right
case in which to address that question.
8
The Attorney General’s holding also mentions that such spouses might
be eligible for asylum under the derivative status of section 208(b)(3)(A)
of the INA "but only if they accompany, or follow to join, the alien who
is eligible for, and is actually granted, asylum." Matter of J-S-, 24 I. & N.
Dec. at 530 (internal quotations omitted). Because Ni’s spouse remains in
China, that provision is not applicable here.
16 NI v. HOLDER
with the rules of statutory construction that we applied above.
He explained:
[Section 601(a)] is properly read to refer to the per-
son 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. Sec-
tion 601(a)’s subsequent description of an abortion
as a "procedure" that "a person" is forced to "un-
dergo" 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).
Matter of J-S-, 24 I. & N. Dec. at 529 (emphasis in the origi-
nal). As discussed previously, we find this reading of the stat-
ute’s text to be inherently reasonable.
Second, the Attorney General also discussed several other
compelling reasons supporting his construction. For example,
he noted that permitting a husband to be automatically eligi-
ble for asylum based on his wife’s persecution would circum-
vent the INA’s specific requirements for derivative asylum.
The INA provides that "spouses of persecuted individuals are
eligible for derivative asylum if such spouses do not them-
selves qualify as refugees, but only if they accompany, or fol-
low to join, the alien who is eligible for, and is actually
granted, asylum." Id. at 530 (internal quotations omitted). By
granting applicants automatic refugee status based on their
spouses’ persecution, the BIA’s approach "circumvents with
an implied rule the requirements for derivative asylum that
the Act expressly sets forth . . . ." Id.
NI v. HOLDER 17
The Attorney General further noted that the BIA’s con-
struction of section 601 "also departs from, and creates ten-
sion 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," and "‘effec-
tively absolve[s] 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 perse-
cuted, on account of their political opinion." Id. (quoting Lin,
494 F.3d at 308).
The Attorney General’s finding that these conflicts between
the BIA’s construction of section 601 and other provisions of
the INA counsel against adopting the BIA’s construction is
consistent with the well-established principle that we must
"give meaning to all statutory provisions and seek an interpre-
tation that permits us to read them with consistency." United
States v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995).
For these reasons, we conclude that the Attorney General’s
construction of section 601 in Matter of J-S- is reasonable and
certainly not "arbitrary, capricious, or manifestly contrary to
the statute." Fernandez, 502 F.3d at 344 (quoting Chevron,
467 U.S. at 844).
3.
Having found that the statute is unambiguous, we turn now
to the question of whether the BIA correctly applied it to Ni’s
withholding of removal claim. Ni asserts that, because "seek-
ing protection from threat to one’s life or freedom" through
withholding of removal "is a much broader concept than
avoiding ‘persecution’ for the purpose of seeking the relief of
asylum," the BIA’s "mere reference to . . . Matter of J-S- as
basis for finding [him] not eligible for withholding of removal
is . . . clearly erroneous" because Matter of J-S- concerned
18 NI v. HOLDER
persecution in the context of asylum. Petitioner’s Br. at 47
(emphasis added). That assertion is unavailing.
First, the Attorney General in Matter of J-S- specifically
stated that the holding in that decision applied to withholding
of removal claims. He explained:
I conclude that, at least as to political asylum or
withholding of removal claims predicated on the
enforcement of coercive population control pro-
grams, the ordinary meaning of the statutory term
‘resistance,’ coupled with the text of [section 601] of
the Act . . . 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-.
Matter of J-S-, 24 I. & N. Dec. at 536 (emphasis added).
Therefore, Matter of J-S- clearly applies to Ni’s withholding
claim.
Furthermore, contrary to Ni’s assertion, it is well settled
that withholding of removal covers a narrower, rather than a
broader, set of circumstances than asylum. See I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 424 (1987) (describing those
eligible for withholding of removal as "a narrower class of
aliens" than those eligible for asylum). As the Third Circuit
has explained, an asylum applicant need only establish a well-
founded fear of persecution, whereas "[t]he eligibility thresh-
old for withholding of removal is even higher" because "[t]he
applicant must . . . demonstrate a ‘clear probability’ of perse-
cution." Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004)
(internal citations omitted). Because of the higher standard
required for withholding of removal, we follow the general
rule that "an applicant who is ineligible for asylum is neces-
sarily ineligible for withholding of removal . . . ." Camara v.
Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). See also Yu, 568
F.3d at 1334 (holding that, because the petitioner "does not
NI v. HOLDER 19
qualify for asylum" under Matter of J-S-, "he necessarily fails
to satisfy the more stringent standard of proof for withholding
of removal").
Accordingly, we hold that Ni cannot establish a claim for
withholding of removal based solely on his wife’s forced
abortion.
B.
Notwithstanding Matter of J-S-, Ni argues that he is entitled
to withholding of removal because he has shown past perse-
cution or a clear probability of future persecution based on
grounds other than his wife’s forced abortion. He asserts that
he has established persecution because: (1) he faced depres-
sion as a result of the abortion and felt too afraid to conceive
out of plan; (2) he plans to have more children and will face
persecution in China if he is successful in doing so; and (3)
he has established persecution based on his wife’s forced
insertion of an IUD. The BIA rejected each of these alterna-
tive grounds for relief. We review the BIA’s findings for sub-
stantial evidence and we must affirm unless "evidence
presented was so compelling that no reasonable fact finder
could fail to find" that the applicant should have prevailed.
Dankam v. Gonzales, 495 F.3d 113, 119 (4th Cir. 2007)
(internal quotations omitted). "In fact, to reverse the BIA’s
finding we must find that the evidence not only supports that
conclusion, but compels it." Id. (internal quotations omitted).
1.
It is clear under our precedent that Ni’s depression does not
suffice to support a finding of persecution. We have previ-
ously held that "‘persecution’ cannot be based on a fear of
psychological harm alone" and "[t]hus . . . to establish a claim
for withholding an applicant cannot rely solely on psychologi-
cal harm . . . but must also establish injury or a threat of injury
to the applicant’s person or freedom." Niang v. Gonzales, 492
20 NI v. HOLDER
F.3d 505, 511-12 (4th Cir. 2007) (finding no persecution
where petitioner’s claim for "withholding of removal
focuse[d] on the psychological harm she claim[ed] she
w[ould] suffer if her daughter accompanie[d] her to Senegal
and [was] there subjected to FGM").
Furthermore, Ni’s depression claim suffers from the fatal
defect that he cannot show a nexus between the alleged harm
and his political opinion. See Saldarriaga v. Gonzales, 402
F.3d 461, 466 (4th Cir. 2005) ("To satisfy the statutory test,
an applicant must make a two-fold showing. He must demon-
strate the presence of a protected ground, and he must link the
feared persecution, at least in part, to it."). In other words, Ni
cannot show that he suffered the emotional persecution "on
account of his . . . political opinion" because there is no evi-
dence that the government ever perceived Ni as holding any
particular political opinion or that he ever exhibited resistance
to the population control policies.9 Ngarurih, 371 F.3d at 189
n.7; see Lin, 494 F.3d at 309, 313 (recognizing "that an indi-
vidual whose spouse undergoes, or is threatened with, a
forced abortion or involuntary sterilization may suffer a pro-
found emotional loss as a partner and a potential parent," but
explaining that "where the applicant himself has not resisted
coercive family control policies, he would need to demon-
strate, though [sic] persuasive direct or circumstantial evi-
dence, that his wife’s, fiancee’s, or girlfriend’s resistance has
been or will be imputed to him"). Therefore, we hold that Ni’s
depression is not sufficient to support his withholding claim.
2.
Ni’s argument that he plans to have more children and will
therefore face persecution is both speculative and unsupported
9
Under section 601, a person forced to undergo a forced abortion "shall
be deemed to have been persecuted on account of political opinion." 8
U.S.C. § 1101(a)(42)(B). However, as explained above section 601 does
not apply equally to the spouse of such a person.
NI v. HOLDER 21
by the record.10 The fear is speculative because it depends on
many factors outside of Ni’s control, including his wife’s
willingness to have more children and the couple’s physical
ability to conceive, which Ni himself has questioned.11 See
J.A. 604 (Ni’s affidavit stating that as of the year 2000, he and
his wife "were both getting quite old for child birth and would
never have the chance to have more children if [he] stayed in
China"); see also Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir.
2005) (holding that an applicant fails to establish eligibility
for relief based on future persecution under China’s one child
policy where his fear "lacks solid support in the record" and
"is merely speculative at best").
In addition, the record directly contradicts Ni’s contention
10
The Second Circuit has questioned the validity of characterizing such
a claim as speculative without relying on any specific evidence. In Lin v.
Gonzales, 445 F.3d 127, 132 (2d Cir. 2006), the court overturned an IJ’s
finding that an asylum claim based on a future pregnancy was speculative,
concluding that the IJ "failed . . . to point to any evidence in the record
establishing [the] future pregnancy as speculative." Id. at 136. However,
even assuming that the BIA’s lack of discussion about the speculative
nature of Ni’s claim could constitute error, it is well-settled that we can
affirm BIA "factual findings . . . despite error, where that analysis is other-
wise supported by substantial evidence and we can state with confidence
that the same decision would be made on remand." Chen v. D.O.J., 471
F.3d 315, 339 (2d Cir. 2006). Because the record here contains substantial
evidence supporting the BIA’s finding, we need not determine whether its
lack of discussion of the claim’s speculative nature constitutes error.
11
Several unpublished opinions from other circuits have found that an
asylum claim based on a desire to have another child is too speculative to
support a claim of asylum. See Zou-Ye v. Holder, No. 09-1610, 2010 U.S.
App. LEXIS 3133, at *2 (2d Cir. Feb. 18, 2010) ("We likewise uphold the
IJ’s finding that Zou-Ye’s claimed well-founded fear of persecution was
too speculative where it was based on Zou-Ye’s desire to have a second
child in the future."); Zhen v. Holder, 312 F. App’x 940, 942 (9th Cir.
2009) ("Zhen and Moy testified that they intend to have more than one
child and fear that Zhen would be sterilized or have an IUD forcibly
inserted after the birth of one child. . . . The IJ found that Zhen’s claim
was too speculative to support a grant of asylum. We agree, and therefore
deny the petition.").
22 NI v. HOLDER
that he is likely to face persecution. In order to establish a
clear probability of persecution based on China’s family plan-
ning policies, Ni would have to show that he would face per-
secution for violating or resisting the policies. See 8 U.S.C.
§ 1101(a)(42)(B). He has failed to do so. Although Ni alleges
that he "hated the family planning polic[ies]," J.A. 604, there
is nothing in the record to indicate that he ever took any affir-
mative steps to violate or resist them, or that the Chinese gov-
ernment ever perceived him as opposing the policies. Nor is
there any indication in the record that, if deported, Ni plans
to engage in behavior that will subject him to persecution in
the future. In fact, the opposite is true. Ni testified in his depo-
sition that he would not have more children if returned to
China because of his unwillingness to break the law. See J.A.
116-17 ("If you deport me back to China, it’s impossible for
me to have any more children . . . [b]ecause the Chinese gov-
ernment will not allow me."). Although his return would
potentially put him in the unfortunate circumstance of being
legally prohibited from having more children, he cannot
establish that it would subject him to persecution "on account
of" his violation of or resistance to the family planning poli-
cies because the record does not support the conclusion that
he will ever violate or resist the policies.
Were the fact that a person is subject to family planning
policies sufficient to establish persecution, every Chinese citi-
zen of childbearing age would be eligible for relief. Withhold-
ing of removal does not protect against the existence of the
family planning policies. It only protects those who face a
clear probability of persecution as a result of violating or
resisting the policies. See 8 U.S.C. § 1231(b)(3). Because the
record here does not compel the conclusion that Ni has estab-
lished a clear probability that he will face such persecution,
we must uphold the BIA’s finding that Ni is not eligible for
withholding of removal on this basis. See Dankam v. Gon-
zales, 495 F.3d 113, 119 (4th Cir. 2007) (quoting I.N.S. v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) ("[T]o reverse
the BIA finding we must find that the evidence not only sup-
NI v. HOLDER 23
ports that conclusion, but compels it . . . .") (emphasis in the
original)).
3.
Finally, Matter of J-S- squarely forecloses Ni’s argument
that he can establish persecution based on the fact that Mei
was forced to have an IUD inserted. Matter of J-S- actually
dealt with a case in which the petitioner made an identical
argument, namely that he could establish past persecution
because his wife had been forced by the Chinese government
to have an IUD inserted. In rejecting that argument, the opin-
ion holds that, under section 601, a petitioner cannot establish
persecution based on his wife’s forced IUD insertion. See
Matter of J-S-, 24 I. & N. Dec. at 523, 542-43.
Furthermore, although we have previously left open the
question of whether "the required insertion and continuous
usage of an IUD" might constitute sterilization for purposes
of persecution, Lin v. Mukasey, 517 F.3d 685, 693 (4th Cir.
2008) (emphasis omitted),12 under our reading of section 601,
the finding of persecution would only apply to the woman
subjected to the IUD insertion, not to her husband.
For the reasons stated above, we find that Ni has not pres-
ented any evidence "so compelling that no reasonable fact-
finder could fail to find" that he has shown past persecution
or fear of future persecution in his own right. Dankam, 495
F.3d at 119. We therefore hold that the BIA did not err in
denying Ni’s claim for withholding of removal.
12
After Lin, the BIA held that requiring a woman to use an IUD does
not amount to persecution absent aggravating circumstances. In re M-F-
W-, 24 I. & N. Dec. 633, 642 (B.I.A. 2008). We have since adopted that
conclusion in an unpublished opinion. See Chen v. Holder, 313 F. App’x
625, 629 (4th Cir. 2009).
24 NI v. HOLDER
C.
Finally, Ni argues that, given that Matter of J-S- changed
the legal standard applicable to his case after the evidentiary
record in his case was closed, we should remand the case so
that Ni may present additional evidence in light of the new
legal standard.
Ni relies on Chen v. Holder, 578 F.3d 515 (7th Cir. 2009), in
which the Seventh Circuit remanded a similar case to the BIA.
There, Chen had based his asylum claim on his wife’s forced
abortion. The IJ denied his application due to credibility issues.
After the IJ issued its opinion, and after Chen had filed his
appeal briefs with the BIA, Matter of J-S- was issued, thereby
changing the applicable legal standard. As in the case before us,
the BIA dismissed the appeal based on the fact that Matter of J-
S- foreclosed Chen’s argument regarding his ground for appeal.
The BIA also found that Chen presented no other evidence of
persecution. The Seventh Circuit remanded to the BIA for fur-
ther proceedings to give Chen an opportunity to present addi-
tional evidence. The court explained:
[T]he BIA never acknowledged the fact that Chen had
no reason to put evidence of other persecution into the
record at the time he filed his application, because the
law then was clear that he needed only to prove his
wife’s forced abortion. The same was true at the time
of his hearing and his appeal. . . . This is the first
time that Chen has had the opportunity to respond to
the government’s critical shift in position. Chen has a
statutory right to "a reasonable opportunity to examine
the evidence against [him], to present evidence on [his]
own behalf, and to cross-examine witnesses presented
by the Government." . . . In our view, because of the
way the proceedings unfolded in Chen’s case, he has
been deprived of that statutory opportunity.
NI v. HOLDER 25
Id. at 517 (quoting 8 U.S.C. § 1229a(b)(4)(B)).
Ni’s reliance on Chen is unwarranted. In contrast with
Chen, Ni’s briefs to the BIA in this case were not filed until
July 2008, two months after Matter of J-S- changed the appli-
cable law. Thus, this is not the "first time that [Ni] has had the
opportunity to respond to the government’s critical shift in
position." Id. Unlike Chen, Ni had ample opportunity to argue
to the BIA that, in light of the change in the applicable law,
he should be entitled to a remand in order to present addi-
tional evidence. By declining to raise such an argument before
the BIA, Ni failed to exhaust his administrative remedies with
regard to this issue, and we therefore lack jurisdiction to
entertain it.13 See 8 U.S.C. § 1252(d)(1); see also Kporlor v.
Holder, 597 F.3d 222, 226 (4th Cir. 2010) ("It is well estab-
lished that an alien must raise each argument to the BIA
before we have jurisdiction to consider it." (internal quota-
tions omitted)); Asika v. Ashcroft, 362 F.3d 264, 267 (4th Cir.
2004) ("We have no jurisdiction to consider this argument,
however, because Asika failed to make it before the Board
and, therefore, failed to exhaust all administrative remedies."
(internal quotations omitted)). Accordingly, we must dismiss
this aspect of Ni’s petition.14
13
We further note that Ni has given us no indication of what new evi-
dence he would present on remand. As the government argues, given that
Ni did originally present other evidence to try to establish his own grounds
for asylum—including the fact that he was depressed due to the abortion
and that he planned to have more children and feared persecution because
of it—it is difficult to see how he would benefit from a further opportunity
to present evidence.
14
Our approach here is consistent with that of the First Circuit in the
similar case of Dong v. Holder, 587 F.3d 8 (1st Cir. 2009). There, a peti-
tioner who had relied largely on his wife’s forced abortion as grounds for
persecution, requested that the court remand the case in light of Matter of
J-S- for the BIA to determine whether the record established alternative
grounds for persecution. The Dong court found that, by failing to raise
those alternative grounds before the BIA, the petitioner had failed to
exhaust his administrative remedies as to those claims and the claims were
therefore forfeited. The court explained that it would not remand for the
BIA "to consider an altogether different merits argument that was never
urged before it." Id. at 13.
26 NI v. HOLDER
III.
For the reasons explained above, we deny Ni’s petition for
review of the BIA’s decision with regard to the application of
Matter of J-S- and his eligibility for withholding of removal
on other grounds. We also dismiss for lack of jurisdiction Ni’s
claim that he is entitled to remand in order to present addi-
tional evidence.
PETITION DENIED IN PART AND DISMISSED IN PART