Chen v. Atty Gen USA

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

8-20-2004

Chen v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 03-3124

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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL THEODORE N. COX JOSHUA BARDAVID (Argued) UNITED STATES COURT OF 401 Broadway, Suite 701 APPEALS New York, New York 10013 FOR THE THIRD CIRCUIT __________ Counsel for Petitioner

No. 03-3124 PETER D. KEISLER ____________ DAVID V. BERNAL JOCELYN L. WRIGHT (Argued) CAI LUAN CHEN, Office of Immigration Litigation Civil Division Petitioner U.S. Department of Justice P.O. Box 878, Ben Franklin Station v. Washington, DC 20044

JOHN ASHCROFT, ATTORNEY Counsel for Respondent GENERAL OF THE UNITED STATES, ____________________

Respondent OPINION OF THE COURT ____________________ ____________________

ON PETITION FOR REVIEW OF AN ALITO, Circuit Judge: ORDER OF THE BOARD OF IMMIGRATION APPEALS Cai Luan Chen petitions for review (No. A73 631 654) of an order of the Board of Immigration __________________ Appeals (BIA) affirming the denial of his application for asylum and withholding of Argued: June 18, 2004 removal. Chen’s primary argument is that he is eligible for asylum based on his Before: ALITO, SMITH, and WALLACE, fiancee’s forced abortion at the hands of Circuit Judges* Chinese government officials. In making this argument, Chen relies on a decision of (Opinion Filed August 20, 2004) the Board of Immigration Appeals holding that the spouse of a person who was forced to undergo an abortion or sterilization is deemed under a 1996 amendment to 8 U.S.C. § 1101(a)(42) to have suffered past * The Honorable J. Clifford Wallace, persecution. Matter of C-Y-Z-, 21 I. & N. Circuit Judge for the United States Court Dec. 915 (BIA 1997) (en banc). Chen of Appeals for the Ninth Circuit, sitting by argues that, while he and his fiancee were designation. never married, they would have married had it not been for China’s inflated Government officials soon became minimum marriage age requirement, which aware of the pregnancy and told Chen Gui was instituted as part of the country’s that the child would have to be aborted. oppressive population control program. Chen and Chen Gui delayed compliance Chen contends China’s refusal to permit with the order, and this prompted a group him to marry constituted persecution and of local officials to visit the home of that therefore the BIA’s decision to limit Chen’s parents. Chen Gui, having been C-Y-Z- to married persons is irrational and warned of the visit, was not there when the arbitrary and must be rejected. officials arrived, and Ch en w as accordingly asked to disclose Chen Gui’s We disagree. While limiting C-Y- whereabouts. When Chen refused, the Z- to married persons may produce officials started hitting him with “sticks,” undesirable results in some cases, the and Chen fought back with a “plumbing BIA’s interpretation, which contributes to tool.” Finally, Chen’s parents intervened efficient administration and avo ids to end the scuffle. The officials left, difficult and problematic factual inquiries, warning Chen that he would be arrested if is reasonable. We accordingly deny the Chen Gui did not report for an abortion in petition for review. three days. I. Chen and Chen Gui went into Chen and his fiancee, Chen Gui, are hiding, and Chen left the country shortly both natives and citizens of the People’s thereafter. He entered the United States in Republic of China. Chen and Chen Gui April 1996. About two months later, Chen started living together at Chen’s parents’ contacted his family and was told that house in July 1994. At the time, Chen was Chen Gui had ultimately been found and 19 and Chen Gui was 18. had been forced to submit to an abortion in In September 1995, the couple art. 6 (as amended April 28, 2001), discovered that Chen Gui was pregnant, available in LEXIS, Chinalawinfo Selected and they then applied for a marriage PRC Laws file at PRCLEG 1793. It is license at the local government office conceivable, however, that some local without disclosing the pregnancy. variation in these requirements may exist. However, the office told them that their See United States Department of State, application could not be approved, since China: Profile of Asylum Claims and the legal age to marry was 25 for men and Country Conditions (April 14, 1998) (“The 23 for women. 1 minimum age for marriage in China is 22 for males and 20 for females. In some 1 We note that officially the minimum localities the ages are set higher.”). For age for marriage in China appears to be 22 the purposes of this case, we assume the for men and 20 for women. See Marriage accuracy of Chen’s description of the age Law of the People’s Republic of China, requirement to which he was subject.

2 the eighth month of the pregnancy. Chen ask (at what is customarily called step one) was also informed that Chen Gui was “whether Congress has directly spoken to continuing to live with his parents. the precise question at issue.” Chevron, 467 U.S. at 842. “If so, courts, as well as T h e I N S initiated removal the agency, ‘must give effect to the p r o c ee d i n g s a g ai ns t C h e n, wh o unambiguously expressed intent of subsequently sought asylum under the Congress.’” Household Credit Servs, Inc. reasoning of the BIA’s decision in C-Y-Z-. v. Pfennig, 124 S. Ct. 1741, 1747 (2004) The IJ concluded that, although Chen and (quoting Chevron, 467 U.S. at 842-43). Chen Gui had never formally married, the “However, whenever Congress has case did “fall by analogy within C-Y-Z-, if ‘explicitly left a gap for the agency to not by the letter.” App. II at 116. fill,’” a court must proceed to step two, However, the BIA reversed on appeal, and “the agency’s [interpretation] is ‘given noting summarily that the decision in C-Y- controlling weight unless [it is] arbitrary, Z- had “not been extended to include capricious, or manifestly contrary to the unmarried partners,” App. I at 3, and that statute.’” Id. (second brackets in original) Chen’s “own experiences with the (quoting Chevron, 467 U.S. at 843-44). authorities in China [did] not rise to the The Court has described this test as one of level of past persecution.” Id. Chen then reasonableness. See Chevron, 467 U.S. at filed this petition for review. 845, 865, 866. II. Here, there is no dispute that “the The respondent in this case BIA should be accorded Chevron (hereinafter “the government”) contends deference for its interpretations of the that the BIA’s interpretation of 8 U.S.C. immigration laws,” Tineo v. Ashcroft, 350 § 1101(a)(42) as covering the spouses but F.3d 382, 396 (3d Cir. 2003) (citing INS v. not the unmarried partners of persons who Aguirre-Aguirre, 526 U.S. 415, 424 have been forced to undergo abortions or (1999)), and Chen does not contend that 8 sterilization is entitled to deference under U.S.C. § 1101(a)(42) unambiguously Chevron U.S.A., Inc. v. Natural Resources covers the unmarried partners of persons Defense Council, Inc., 467 U.S. 837, 843- who have undergone forced abortions or 44 (1984), and should be sustained. sterilization. Instead, Chen focuses on Chevron applies when “it appears that step two of the Chevron analysis and Congress delegated authority to the agency argues that the BIA’s interpretation of 8 generally to make rules carrying the force U.S.C. § § 1101(a)(42) is arbitrary, of law, and that the agency interpretation capricious, and irrational. claiming deference was promulgated in the III. exercise of that authority.” United States Before we can address Chen’s v. Mead Corp., 533 U.S. 218, 226-27 argument regarding the limited scope that (2001). If Chevron applies, a court must the BIA has given to its decision in C-Y-

3 Z- , it is helpful to review that decision and Responsibility Act of 1996, Pub. L. No. the statute on which it is based. 104-208, 110 Stat. 3009-546 (“IIRIRA”). A. Section 601 of the IIRIRA amended § 1101(a)(42) by adding the following Under 8 U.S.C. § 1158(b)(1), the language: Attorney General may grant asylum to an alien who is a “refugee” within the [A] person who has been meaning of 8 U.S.C. § 1101(a)(42). In forced to abort a pregnancy order to establish refugee status under the or to undergo involuntary latter provision, an applicant must sterilization, or who has generally show that he or she “is unable or been persecuted for failure unwilling to return to, and is unable or or refusal to undergo such a unwilling to avail himself or herself of the procedure or for other protection of [the country of such person’s resistance to a coercive nationality or in which such person last population control program, habitually resided] because of persecution shall be deemed to have or a well-founded fear of persecution on been persecuted on account account of race, religion, nationality, of political opinion, and a membership in a particular social group, or person who has a well political opinion.” 8 U.S.C. § 1101(a)(42). founded fear that he or she By regu lation , see 8 C .F.R . will be forced to undergo § 1208.13(b)(1), “[a] showing of past such a procedure or subject persecution gives rise to a rebuttable to persecution for such presumption of a well-founded fear of failure, refusal, or resistance future persecution.” Mulanga v. Ashcroft, shall be deemed to have a 349 F.3d 123, 132 (3d Cir. 2003). we ll founded fear of persecution on account of The BIA initially rejected the political opinion. argument that “implementation of [China’s] ‘one couple, one child’ policy in Id. § 601, 110 Stat. at 3009-689; see also and of itself, even to the extent that Matter of X-P-T-, 21 I. & N. Dec. 634 involuntary sterilizations may occur, is (BIA 1996) (en banc). (For convenience, persecution or creates a well-founded fear we will refer to this new provision as “the of persecution on account of race, religion, 1996 amendment to § 1101(a)(42)” or nationality, membership in a particular simply “the 1996 amendment.”) social group, or political opinion.” Matter The IIRIRA also imposed a cap of of Chang, 20 I. & N. Dec. 38, 44 (BIA 1,000 persons per fiscal year on the 1989) (internal quotation marks and number of aliens who may be granted citation omitted). This holding, however, asylum under the 1996 amendment. 8 was superceded several years later by the Illegal Immigration Reform and Immigrant

4 U.S.C. § 1157(a)(5).2 Accordingly, aliens /cpc.htm. found eligible for asylum under this B. provision are approved only conditionally, subject to an administrative determination In C-Y-Z-, the BIA, sitting en banc, that a final grant of asylum would not push considered the asylum petition of a man the annual total above the statutory cap. who claimed that his wife had been See X-P-T-, 21 I. & N. Dec. at 637. forcibly sterilized. The government Because the number of conditional grants conceded that the man was a victim of past issued per year has exceeded 1,000 for persecution as defined by the 1996 some time, the waiting list now includes amendment to § 1101(a)(42), asserting that more than 7,000 applicants. See News “past persecution of one spouse can be Release, U.S. Department of Justice, EOIR established by coerced abortion or Notifies Persons Eligible for Full Asylum sterilization of the other spouse.” C-Y-Z-, Benefits for Fiscal Year 2003 Based on 21 I. & N. Dec. at 917; see also id. at 919 Coercive Population Control Policies (noting agreement on the proposition that ( S e p t . 3 0 , 2 0 0 3 ), a t “forced sterilization of one spouse . . . is http://www.usdoj.gov/eoir/press/03/CPC an act of persecution against the other AsylumRelease0903.pdf. This means that spouse”). The BIA accepted this applicants awarded conditional asylum proposition, but unfortunately, it did not today face a waiting period of at least explain the basis for this conclusion. seven years before becoming eligible for However, two rationales seem possible. the full benefits of asylum, including the The first would proceed on the ability to apply for lawful permanent assumption that the persecution of one resident status and to obtain the admission spouse by means of a forced abortion or to the United States of family members not sterilization causes the other spouse to included in the original asylum experience intense sympathetic suffering application. See id.; U.S. Citizenship and that rises to the level of persecution. Cf. Immigration Services, Resistance To Abay v. Ashcroft, 368 F.3d 634, 642 (6th Coercive Population Control (CPC) Cir. 2004) (suggesting that “mental P ro g ra m s (O ct. 30 , 200 3), at suffering” resulting from “being forced to http://uscis.gov/graphics/services/asylum witness the pain and suffering of [a] daughter” constitutes persecution) (citing 2 Matter of Dibba, No. A73 541 857 (BIA The statute provides: “For any fiscal Nov. 23, 2001)). There is some evidence year, not more than a total of 1,000 that this rationale may represent the BIA’s refugees may be . . . granted asylum . . . thinking in C-Y-Z-. Board Member pursuant to a determination under the third Rosenberg explained: sentence of section 101(a)(42) (relating to persecution for resistance to coercive It is not . . . unusual . . . that population control methods).” 8 U.S.C. the applicant should be § 1157(a)(5). granted asylum although the

5 harm experienced was not clear why every spouse of a person who by him, but by a family undergoes a forced abortion or sterilization member. . . . It . . . should be deemed to have “resist[ed]” the constitutes persecution for “coercive population control program.” the asylum applicant to What if the spouse who did not personally witness or experience the undergo the procedure sided with the p e r secution of family government and favored the abortion or members . . . . sterilization? C-Y-Z-, 21 I. & N. Dec. at 926 The second possible rationale for (Rosenberg, Board Member, concurring).3 the C-Y-Z- decision is that performing a This interpretation would presumably look forced abortion or sterilization procedure to the language in the 1996 amendment on one spouse constitutes persecution of that refers to persons who are “persecuted the other spouse because of the impact on for . . . other resistance to a coercive the latter’s ability to reproduce and raise population control program.” See id. at children. The Ninth Circuit has suggested 928 (Filppu, Board Member, concurring in this interpretation, stating in Lin v. part and dissenting in part) (explicitly Ashcroft, 356 F.3d 1027, 1041 (9th Cir. noting the possibility that the majority 2004), that the forced sterilization of a holding rested on the “persecuted for wife could be “imputed” to her husband, . . . other resistance” clause). The “whose reproductive opportunities the law suffering felt by the spouse who did not considers to be bound up with those of his personally undergo the procedure would wife.” See also C-Y-Z-, 21 I. & N. Dec. at constitute the “persecut[ion]” to which this 918 (“[T]he husband of a sterilized wife language refers, and the other spouse can essentially stand in her shoes and would be deemed to have “resist[ed]” the make a bona fide and non-frivolous “coercive population control program,” application for asylum based on problems presumably on the assumption that he or impacting more intimately on her than on she opposed the procedure. him.”); see also id. at 921 n.2 (Rosenberg, This interpretation, however, is not Board Member, concurring) (citing without difficulties. For example, it is not international law regarding “right to procreate” and “right to . . . found a family”); Matter of Y-T-L-, 23 I. & N. 3 The Sixth Circuit in Abay appeared to Dec. 601 (BIA 2003) (en banc) (Pauley, agree that the implication of Board Board Member, dissenting) (“I understand Member Rosenberg’s concurring opinion our ruling in Matter of C-Y-Z- to be based in C-Y-Z- was that a “family member may on the theory that the persecution of one be eligible for asylum based upon the spouse by forced sterilization is imputed to physical harm inflicted upon another the other”). It takes some effort to family member.” See Abay, 368 F.3d at reconcile this interpretation with the 641. language of the 1996 amendment, since

6 the phrase “a person who has been forced Petitioner Br. at 16-17 (quoting Zhao v. to abort a pregnancy or to undergo United States DOJ, 265 F.3d 83, 95 (2d involuntary sterilization” is most naturally Cir. 2001)).5 read as referring only to a person who has A. personally undergone one of those procedures. But perhaps it could be As we understand it, C-Y-Z- uses argued that the loss of opportunity to have marital status as a rough way of identifying and raise children also constitutes a class of persons whose opportunities for “persecut[ion] for . . . other resistence to a reproduction and child-rearing were coercive population control program.” 4 seriously impaired or who suffered serious emotional injury as the result of the In this case, however, it is not performance of a forced abortion or necessary for us to decide whether C-Y-Z- sterilization on another person. Of course, ’s interpretation of the 1996 amendment is this use of marital status as a proxy is permissible. If it is not and the 1996 undoubtedly both over- and under- amendment applies only to persons on inclusive to some extent, but neither over- whom a forced abortion or sterilization nor under-inclusiveness is alone sufficient procedure has actually been performed, to render the use of a metric like marital Chen obviously cannot prevail. On the status irrational. See Heller v. Doe, 509 other hand, if C-Y-Z-’s interpretation is U.S. 312, 321 (1993) (citation omitted) permissible (and we assume for the sake of (“A classification does not fail argument that it is), the distinction that the rational-basis review because it ‘is not BIA has drawn between married and made with mathematical nicety or because unmarried couples satisfies step two of in practice it results in some inequality.’”); Chevron. Dandridge v. Williams, 397 U.S. 471, 485 IV. (1970); Lofton v. Sec’y of the Dep’t of With the possible bases of the C-Y- Children & Family Servs., 358 F.3d 804, Z- decision in mind, we turn to Chen’s 822-23 (11th Cir. 2004) (“The Supreme argument that the BIA’s interpretation of Court repeatedly has instructed that neither the 1996 amendment, by drawing a the fact that a classification may be distinction between married and unmarried overinclusive or underinclusive nor the couples, “evinces such a lack of rationality as to be arbitrary and capricious.” 5 While this argument bears some similarity to a rational-basis Equal 4 In the case of a forced abortion, Protection Clause argument, it is clear that conception in violation of the program Chen is not attempting to make a could constitute the “resistance,” and since constitutional argument here. Nor does involuntary sterilization often follows Chen contend that any standard of review prohibited conception, this same theory more stringent than “rationality” ought to might work in that context as well. apply.

7 fact that a generalization underlying a distinction could be viewed as serving two classification is subject to exceptions purposes: (1) providing a convenient way renders the classification irrational.”).6 to weed out cases in which “close family This principle is well illustrated by ties” were lacking and (2) avoiding cases involving immigration laws that “problems of proof and the potential for attempt “to provide some – but not all – fraudulent visa applications.” Id. at 798, fam ilies with relief from various 799 n.8; see also Nguyen v. INS, 533 U.S. immigration restrictions that would 53, 62 (2001) (finding need for reliable otherwise hinder reunification of the evidentiary verification “that a biological family in this country.” Fiallo v. Bell, 430 parent-child relationship exists” to be an U.S. 787, 797 (1977). For example, in important government interest justifying Fiallo, the Supreme Court upheld the disparate treatment of illegitimate children constitutionality of provisions that born to citizen mothers and those born to excluded illegitimate children and their citizen fathers). Likewise, a law requiring fathers (but not illegitmate children and aliens who married United States citizens their mothers) from special preference while in removal proceedings to wait imm igration status. The Court outside the country for two years before acknowledged that these provisions could qualifying as I-130 “immediate relatives” have the effect of “deny[ing] preferential has been found to be rational as a method status to parents and children who share of deterring sham marriages. Almario v. strong ties,” id. at 798, and the Court noted INS, 872 F.2d 147, 152 (6th Cir. 1989); the argument that “the statutory distinction Anetekhai v. INS, 876 F.2d 1218, 1222 [was] based on an overbroad and outdated (5th Cir. 1989) (“Congress logically could stereotype concerning the relationship of have concluded that aliens who are unwed fathers and their illegitimate engaged in deportation proceedings are children,” id. at 799 n.9. Nevertheless, the more likely than aliens not so situated to Court concluded that the statutory enter into fraudulent marriages as a means of avoiding expulsion from the United 6 States.”).7 Indeed, the marriage relation is used in so many areas of the law (income tax, 7 welfare benefits, property, inheritance, The Supreme Court has reversed at testimonial privilege, etc.) that it would least one prior attempt by this Circuit to seem absurd to characterize reliance on engage in more searching review of line- marital status in C-Y-Z- as arbitrary and drawing exercises by the political capricious. Cf. Montgomery v. Carr, 101 branches of government in the area of F.3d 1117 (6th Cir. 1996) (deeming immigration law. In INS v. Hector, 479 rational the enforcement of a school anti- U.S. 85 (1986) (per curiam), the nepotism policy against married couples Supreme Court rejected a holding but not cohabitants). allowing for the possibility of treating nieces as “children” in a hardship

8 Similarly, we may say that the BIA forced abor tions an d steriliza tion “logically could have concluded that aliens procedures tend to have a more severe who are [married] are more likely than impact on spouses than on unmarried aliens not so situated” to be severely partners. The BIA might also have been injured in the ways noted above when their concerned that unmarried asylum-seekers partners are forced to endure forced would falsely claim to have had an abortions or sterilization. Indeed, in light intimate relationship with a person who of the “crushing caseload” faced by the suffered a forced abortion or sterilization,8 BIA in recent years, see Dia v. Ashcroft, and the BIA might have felt that it would 353 F.3d 228, 235 (3d Cir. 2003) (en be too difficult to distinguish between banc), it was entirely rational for the Board those unmarried persons who had a truly to adopt a position requiring marriage, close relationship with the person who which can often be proven easily and underwent the medical procedure and reliably through objective documentary those unmarried asylum seekers who did evidence such as marriage certificates or not. 9 Chen does not explain why the BIA “household registration booklets.” See, e.g., Zhao, 265 F.3d at 87; C-Y-Z-, 21 I. & 8 N. Dec. at 916. By contrast, a rule An analogy may be drawn here to the extending C-Y-Z- to non-spouses would tort of negligent infliction of emotional create numerous practical difficulties that harm. As explained in Restatement the BIA might reasonably have chosen to (Second) of Torts § 436, recovery under avoid. For example, in cases in which a this tort may be available when members male applicant claims to have fathered an of the immediate family of a victim witness illegitimate child who was forcibly aborted the infliction of harm. Id. § 436(3) by government officials, the problem of (emphasis added). “However, where a proving paternity would be even more stranger is involved . . . there may be acute than those presented in Fiallo and sufficient uncertainty as to the genuineness Nguyen. Moreover, the BIA might or seriousness of the emotional disturbance reasonably have decided that, in general, to justify, as a matter of administrative policy, a denial of liability.” Id. cmt. h. Here, the BIA may have concluded that, analysis if it could be shown that a given the difficulty of determining the “parental-type relationship” existed. See “genuineness” of emotional harm felt by id. at 87. Whether any unfairness to the one upon hearing of harm to his fiancee, nieces in such “parental-type the strict limitation of C-Y-Z- to married relationship[s]” may have resulted did couples was justified “as a matter of not enter into the Court’s calculus; all administrative policy.” that mattered was that Congress, in 9 defining “children,” had not seen fit to That some applicants could include nieces raised as effective conceivably be able to present such adoptees. See id. at 90-91. convincing evidence is beside the point.

9 was irrational in deciding on a bright-line B. rule for this class of cases, rather than Chen argues, however, that even if submitting each individual claim to a it is rational not to extend C-Y-Z- to cover detailed (and probably inconclusive) all unmarried partners, it is irrational to psychological analysis concerning the exclude him and other unmarried persons nature of a claimed relationship. who wanted and indeed tried to get For these reasons, we conclude that married but were prevented from doing so the BIA’s decision not to extend C-Y-Z- to by a law that is unmarried partners satisfies step two of an integral part of a program of Chevron. The BIA’s interest in promoting persecution. This argument must be administrability and verifiability is rejected for reasons similar to those sufficient to clear the low hurdle presented already discussed. Chen’s situation simply by the step two standard, especially in light shows that C-Y-Z- is underinclusive with of the limited number of spots allowed by respect to a narrow but sympathetic class, Congress for asylum claims based on the and as noted, a rule is not irrational just 1996 amendment. 10 because it is underinclusive to some

We note that Fiallo did not require any asylee’s status.” Respondent Br. at 19. special exception to be carved out for Because “the existence of a valid, legal fathers who could prove actual paternity of marriage is required before an immigrant illegitimate children when they had not visa may be issued,” the government adopted or legitimated them. Nor did concludes that the disparate treatment of Almario and Anetekhai provide those who married and unmarried applicants is married during removal proceedings an “consistent with the statutory design and opportunity to present evidence showing the family unification policies underlying that their marriages were not shams. Such the issuance of immigration visas.” Id. rules, like the one adopted by the BIA This argument is not without some merit. here, represent pragmatic approaches that However, given the current length of the make it possible for an overburdened conditional asylee waiting list, spouses agency to do the work with which it is granted conditional status under C-Y-Z- charged. today must wait at least seven years before 10 The government offers an alternative they can even apply for such a visa on explanation for the BIA’s distinction behalf of their spouses. Accordingly, we between married and unmarried asylum doubt as a practical matter that the applicants, noting that “[a] grant of asylum potential eligibilty for preferential visas to an applicant present in the United States actually operates to hasten the admittance enables the asylee to have his or her to the United States of spouses directly spouse and children admitted to the United persecuted under coercive population States as derivative beneficiaries of the control programs.

10 extent. significantly interfere with decisions to Of course, if the Chinese enter into the marital relationship may authorities’ refusal to permit Chen and legitimately be imposed.”); cf. Zablocki, Chen Gui to marry was itself an act of 434 U.S. at 392 (Stewart, J., concurring) persecution, then Chen suffered past (“A State may not only ‘significantly persecution. But although minimum interfere with decisions to enter into the marriage ages of 23 and 25 are contrary to marital relationship,’ but may in many our traditions and international practice, circumstances absolutely prohibit it.”) we cannot go so far as to say that (footnote and citation omitted). Laws enforcement of these laws necessarily setting reasonable minimum marriage ages amounts to persecution. are also recognized as legitimate and desirable under international human rights American constitutional law law.12 recognizes marriage as a fundamental right, see Loving v. Virginia, 388 U.S. 1 It is certainly true that marriage (1967), but all states impose minimum laws in this country set the minimum age marriage age requirements,11 and we for marriage considerably below 23 or 25. assume that these laws are constitutional. Almost all states set 18 as the minimum See Moe v. Dinkins, 669 F.2d 67, 68 (2d age to marry without parental consent. 13 Cir. 1982) (per curiam) (law requiring Where parental consent is provided, as it parental consent for marriage of apparently was in the case now before us, individua ls under 18 deemed most states permit marriage at the age of constitutional, as a rational means for helping “prevent[] unstable marriages 12 See Convention on Consent to among those lacking the capacity to act in Marriage, Minimum Age for Marriage and their own best interests”); Maynard v. Hill, Registration of M arriages, Dec. 9, 1964, 125 U.S. 190, 205 (1888) (state legislature art. 2, 521 U.N.T.S. 231, 234, at may prescribe “the age at which parties http://untreaty.un.org/English/access.asp may contract to marry”); see also Zablocki (“States parties to the present Convention v. Redhail, 434 U.S. 374, 386 (1978) shall take legislative action to specify a (“[R]easonable regulations that do not minimum age for marriage.”). We note, however, that the apparent purpose of the 11 Convention’s minimum age requirement See Legal Information Institute, (as stated in the preamble) is not Cornell Law School, Marriage Laws of the population control, but rather the Fifty States, District of Columbia and elimination of child marriages and the P u e r t o R i c o , a t “betrothal of young girls before the age of http://www.law.cornell.edu/topics/Table puberty.” Id. pmbl., 521 U.N.T.S. at 232. _Marriage.htm (citing age requirements 13 and pertinent statutes) (hereinafter See Marriage Laws of the Fifty States, Marriage Laws of the Fifty States). supra note 11.

11 16.14 It is also true that the marriage laws number of children they want. . . . People of other countries generally set the can . . . still have 2, or 3, or 10 children, if minimum marriage age at 18 years or less, their individual biology and preferences and it appears probable that no other lead them to do so and the government country sets the minimum as high as does does not forcibly abort their children or China.15 sterilize them.”). It is perhaps worth A law or practice, however, does noting that the median ages of first not necessarily rise to the level of marriages for men and women in this “persecution” simply because it does not country now exceed the minimum age satisfy American constitutional standards requirements that Chen contends amount or diverges from the pattern followed by to persecution.16 Although defining the other countries. As we have noted, outer boundaries of the concept of persecution is an “extreme” concept that “persecution” is hard, we cannot say that “does not encompass all treatment that our requiring a person to wait until reaching society regards as unfair, unjust, or even the age of 23 or 25 is so far outside the unlawful or unconstitutional.” Fatin v. accepted realm of human decency as to INS, 12 F.3d 1233, 1240 & n.10 (3d Cir. constitute persecution. 1993). C. Here, we cannot say that the BIA We acknowledge that our reasoning was bound to conclude that minimums of may appear to be in tension with that of 23 and 25 amounted to persecution. Chen Ma v. Ashcroft, 361 F.3d 553 (9th Cir. and Chen Gui were not permanently barred 2004). In that case, the petitioner Ma and from marrying, and marriage at the his partner were married in a “traditional” minimum ages in question would not have Chinese ceremony in their village. precluded them from having a long life Because Ma was underage, the marriage together or from raising children. See Li could not be officially registered with the v. Ashcroft, 356 F.3d 1153, 1164 (9th Cir. Chinese government. Ma’s partner 2004) (en banc) (Kleinfeld, J., dissenting) conceived two months later and went into (“[T]he higher marriage age does not hiding to avoid detection by the necessarily restrain people from having the authorities. Ultimately, however, she was found and forced to undergo an abortion, 14 Id. and the couple was fined for “early” 15 Angela Melchiorre, Right to 16 Education Project, At what age? 15-21 (2d See United States Census Bureau, ed. 2004) (listing marriage age Statistical Abstract of the United States 60 requirements 156 countries). A few (123d ed. 2003) (noting that 85.4% of countries, including Algeria, Cambodia, males and 74.0% of females under the age India, Indonesia, Togo, and Vietnam, set of 25 in the United States have never been age requirements above 18 years. Id. married).

12 pregnancy and marriage. Ma subsequently married”). Because Ma’s express holding fled to the United States. When he applies only to putative husbands and not attempted to apply for asylum under C-Y- unmarried partners, it is inapposite here.17 Z-, the BIA rejected his claim on the Nevertheless, we acknowledge that ground that he was not legally married Ma’s reasoning could be applied to under Chinese law. By this time, however, someone in Chen’s shoes. The Ma court Ma had actually reached the legal age to reasoned that it is “absurd and wholly marry in China. He therefore applied for unacceptable” to deny asylum to a person and obtained a certificate from the Chinese based solely on a consequence of a government indicating that his marriage population control policy expressly was considered valid, and he submitted “deemed by Congress to be oppressive and this certificate to the BIA with a motion to persecutory.” Ma, 361 F.3d at 559. reconsider, which the BIA ultimately According to Ma, this would “contravene[] denied. Ma petitioned for review, and the the purpose and policies of the [IIRIRA] Ninth Circuit reversed, holding that C-Y- statutory amendment.” Id. at 560. In other Z-’s interpretation of § 1101(a)(42) could words, the Ma Court concluded that the not rationally be limited to exclude BIA’s interpretation of § 1101(a)(42) “husbands whose marriages would be failed step two of Chevron because it was legally recognized, but for China’s clearly contrary to Congress’s intent, or, as coercive family planning policies.” Ma, the Ma Court put it, Congress’s “purpose 361 F.3d at 561 (emphasis added). and policies.” Id. We must disagree with Because Ma’s marriage had been this analysis because we see no basis for recognized by the Chinese government by concluding that Congress’s intent in the time of the BIA’s decision, it was unnecessary for the Ninth Circuit to reach the question whether the BIA can 17 See, e.g., Ma, 361 F.3d at 559 (“The reasonably refuse to extend C-Y-Z- to question presented here is whether cases involving persons whom the Chinese husbands, whose marriages are denied authorities refuse to recognize as married. recognition by virtue of the population But assuming that the holding in Ma control program that Congress has reaches all persons married in traditional condemned, may be deprived of eligibility ceremonies that the Chinese government for asylum on the basis of that denial.”) does not sanction, Chen would still not (emphasis added); id. at 560 (“BIA’s qualify, since he does not claim that he and decision to limit asylum eligibility so as to Chen G ui ever formalized their exclude husbands . . . contravenes the relationship in that way. Indeed, Chen has purpose and policies of the statutory never argued that he is actually married in amendment.”) (emphasis added); id. at 561 any sense, and in fact he affirmed precisely (“Application of the BIA’s rule would the opposite in his asylum application. See result in the separation of a husband and App. II at 265 (checking box labeled “not wife . . . .”) (emphasis added).

13 amending § 1101(a)(42) was to afford imposition of a yearly cap clearly reveals relief to every person who is a victim of an intent to carefully limit the scope of any rule or practice that forms a part of the relief made available by the amendment. Chinese population control program. Against this background, it is hard “The starting point in discerning to see how Ma could have concluded that congressional intent is the existing a rule limiting C-Y-Z- to married couples statutory text . . . .” Lamie v. United was contrary to Congress’s intent. If Ma States Tr., 124 S. Ct. 1023, 1033 (2004). meant to say that individuals who suffer The language of the 1996 amendment to under a coercive population program may § 1101(a)(42) has several indications of be eligible for asylum even if their intent that we think are unmistakable. The suffering (or feared suffering) is not first is that proof of “persecution” or proved or presumed to rise to the level of “well-founded fear of persecution” is persecution, we emphatically disagree.19 absolutely required to make a successful As we have explained, the asylum statute claim for asylum, just as was the case prior plainly limits relief to cases involving to the amendment. The second point is “persecution.” That scheme necessarily that, with the exception of forced abortions excludes cases involving lesser harms, and sterilizations, the concept of even when those harms implicate to some “persecution” is left completely undefined. degree the humanitarian interests that We infer from Congress’s use of this animated passage of the asylum statute.20 ambiguous term an intent to delegate interpretive authority to the agency, including the ability to decide, within a Aguirre-Aguirre, 526 U.S. at 425. reasonable range, the precise contours of 19 We note that the opinion in Ma never its meaning. FDA v. Brown & Williamson explicitly finds or assumes that the Tobacco Corp., 529 U.S. 120, 159 (2000) p e t i ti o n e r ha d a ctu all y s uffere d (“Deference under Chevron to an agency’s persecution. construction of a statute that it administers is premised on the theory that a statute’s 20 For example, the statute extends relief ambiguity constitutes an implicit to those who are persecuted “on account of delegation from Congress to the agency to race.” 8 U.S.C. § 1101(42). The primary fill in the statutory gaps.”).18 Third, the purpose of that provision is no doubt to extend aid to certain individuals who suffer the effects of gross racial inequality 18 There is no question that Congress has in their countries of origin. Yet courts delegated authority to the BIA generally to routinely deny relief to those who suffer “make rules carrying the force of law,” cf. racial discrimination that falls short of Mead, 533 U.S. at 226-27, and that its “persecution,” see, e.g., Nagoulko v. INS, interpretations of ambiguous statutory 333 F.3d 1012, 1016-17 (9th Cir. 2003), terms are entitled to Chevron deference. even though it might be said that such

14 Alternatively, it may be that Ma’s legislators who considered the amendment position was that the BIA’s interpretation to § 1101(a)(42) thought that persons such of the term “persecution” fell outside the as Chen would qualify thereunder.21 To acceptable range of meanings within the contrary, it seems that some legislators which Congress authorized the agency to had reservations about the ease with which choose. However, there is no indication “young Chinese single-unmarried-males ” that Congress intended to put limits on the might falsely claim eligibility for asylum meaning of the term “persecution” beyond under the proposed amendment, resulting t h o s e i m po s ed b y t he n or m al in a flood of meritless applications. 142 understanding of the word. Matter of Cong. Rec. S4593 (daily ed. May 2, 1996) Acosta, 19 I. & N. Dec. 211, at 223 (BIA (statement of Sen. Simpson). Statements 1985). (“Congress chose not to define the from others suggest that the reference to word ‘persecution’ . . . because the “persecut[ion]” in the amendment was meaning of the word was understood to be simply intended to include actions such as well established by administrative and “torture” and “sexual abuse” that would court precedents.”). Of course, with the qualify as persecution under the prevailing 1996 amendment, Congress did add the definition of the term. See 142 Cong. Rec. constraint that “persecution” could not be H2634 (daily ed. Mar. 21, 2996) interpreted in a way that would exclude (statement of Rep. Smith).22 involuntary sterilizations or abortions. But At a more general level, we note this merely shows that Congress knew how that some members of Congress have in to be very specific regarding what the past actu ally considered—and constituted persecution when it wanted to. Furthermore, we find it highly unlikely 21 that Congress could have intended to There is at least one statement in the dramatically broaden the notion of Congressional Record which speaks “persecution” with respect to persons disparagingly of China’s “marriage bans,” suffering under coercive population but that statement is made in reference to programs while contemporaneously permanent restrictions on marriage i m p o s i n g a yearly cap s trictly motivated by a desire to “avoid new births circumscribing the relief available to them. of inferior quality,” and not the sort of age- based restrictions at issue in this case. See An examination of the relevant 140 Cong. Rec. S327-28 (daily ed. Jan. 28, legislative history only confirms our 1994) (statement of Sen. Helms). understanding of Congress’s intent. We cannot locate any evidence that the 22 In such cases, the amendment would serve to clarify that such actions, if taken in response to resistance to a coercive denials disserve Congress’s broader policy population control program, should be of providing relief to victims of racial deemed inflicted “on account of political injustice. opinion.”

15 rejected—the possibility of providing an However, the 1996 amendment to explicit definition for “persecution” in § 1101(a)(42) is limited in scope. Under connection with another portion of the that amendment, the worst effects of the INA. It was reasoned that Chinese program – forced abortions and any such definition would involuntary sterilization – are deemed to necessarily limit application cons titute “persecuti on,” b ut the o f t h e p r o v is i o n t o amendment does not provide similar particular, presently treatment for other adverse effects of the f o r eseea ble s i tu a t i o n s. program, such as, to take one example, Persecution, however, has dismissal from employment for failure to and will continue to take abide by the one-child policy.23 Even many forms and it is the though a person who is fired for violating intention of the committee the policy is a victim of the objectionable in recom m ending this Chinese program, such a person cannot legislation to allow the prove past persecution simply by maximum amoun t of establishing the occurrence of and the flexibility possible in its reason for the dismissal. 24 It is apparent, adm inistration. The inclusion of a necessarily 23 See United States Dep’t of State, limited and rigid definition Country Report on Human Rights would be inconsistent with Practices—2002: China (2003) (noting such an intent. China’s r e l ia n c e o n “ e duc a tio n, H.R. Rep. 95-1452, at 6-7 (1978), propaganda, and economic incentives, as reprinted in 1978 U.S.C.C.A.N. 4700, well as on more coercive measures such as 4705-06; cf. INS v. Cardoza-Fonseca, 480 the threat of job loss or demotion and U.S. 421, 449 (1987) (“In enacting the social compensation fees”). Refugee Act of 1980 Congress sought to 24 give the United States sufficient flexibility Under the 1996 amendment the reason to respond to situations involving political for the dismissal (failure to comply with or religious dissidents and detainees the one-child policy) might well qualify as throughout the world.”) (internal quotation “resistance to a coercive population omitted). control program,” but the person who was fired would still have to show that To be sure, we assume that the dismissal was severe enough to amount to members of Congress who voted in favor persecution. While we express no opinion of the 1996 amendment to § 1101(a)(42) on this point, we re iterate that considered the Chinese population control “persecution” is an extreme concept that program as a whole to be objectionable “does not encompass all treatment that our and that they found fault with many society regards as unfair, unjust, or even specific features of the program. unlawful or unconstitutional.” Fatin, 12

16 therefore, that it was not Congress’s intent Chen further argues that, even if he to provide relief for every victim of any did not suffer persecution in the past, he feature of the Chinese program. Rather, still has a well-founded fear that he would Congress obviously had the more modest suffer future persecution if he returned to purpose of providing relief for a much China. He points to several cases and more limited class. Especially in light of secondary sources generally describing the rather low yearly cap on the number of incidents of harsh treatment that Chinese asylum applications that may be granted prison officials have inflicted upon under the 1996 amendment, the BIA’s political prisoners, including refugees refusal to extend C-Y-Z- may be viewed as returned to China. See Petitioner Br. at furthering this congressional goal. 20-22. This generalized evidence V. presented by Chen, however, by no means compels the conclusion that the BIA erred A few remaining issues must be in determining that he had not “established addressed. First, Chen suggests that the a well-founded fear of persecution.” App. beatings he suffered at the hands of I at 3; 8 U.S.C. § 1252(b)(4)(B). government officials combine with the forced abortion and the marriage license Finally, Chen does not appear to denial in such a way as to constitute past have challenged the rejection of his claim persecution. They do not. Chen’s scuffle for withholding of removal in the brief with the local officials does not appear to accompanying his petition for review. have been serious. For example, the Accordingly, the claim has been waived. government points out that Chen has never See FDIC v. Deglau, 207 F.3d 153, 169-70 alleged that this altercation resulted in any (3d Cir. 2000); Ma, 361 F.3d at 557 n.5; injuries that required medical treatment. Qin v. Ashcroft, 360 F.3d 302, 305 n.5 (1st Respondent Br. at 24. Physical abuse Cir. 2004). similar to this has been held to not VI. constitute persecution. See, e.g., Prasad v. In sum, assuming that C-Y-Z- INS, 47 F.3d 336, 339 (9th Cir. 1995) (no permissibly applied the 1996 amendment past persecution where petitioner was to spouses, we hold that the BIA’s arrested, hit, kicked, and detained for four decision not to extend C-Y-Z- to to six hours). The BIA found that Chen’s unmarried partners is reasonable and experiences with the authorities in China therefore, under step two of Chevron, is did not rise to the level of persecution, and entitled to controlling weight. We defer we cannot say that “any reasonable to this interpretation and deny the petition adjudicator would be compelled to for review. conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

F.3d at 1240 & n.10.