Shi Liang Lin v. United States Department of Justice

494 F.3d 296, 2007 U.S. App. LEXIS 16842

• Court: Court of Appeals for the Second Circuit
• Decided: July 16, 2007
• Docket: Docket 02-4611-ag, 02-4629-ag, 03-40837-ag
• Status: Published

Opinions

Judge B.D. PARKER delivered the opinion of the Court, in which JACOBS, C.J., and CABRANES, SACK, RAGGI, WESLEY, and HALL, JJ., joined.

Judge KATZMANN filed a concurring opinion, in which STRAUB, POOLER, and SOTOMAYOR, JJ., joined.

Judge SOTOMAYOR filed a concurring opinion, in which POOLER, J., joined.

Judge CALABRESI filed an opinion concurring in part and dissenting in part.

B.D. PARKER, JR., Circuit Judge:

In 1997 the Board of Immigration Appeals (“BIA”) held in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (B.I.A.1997) (en banc) that an individual whose spouse has been forced to abort a pregnancy, undergone involuntary sterilization, or been persecuted under a coercive population control program could automatically qualify for asylum as a “refugee” under § 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”) (amending 8 U.S.C. § 1101(a)(42), Immigration and Nationality Act (“INA”) § 101(a)(42)). See In re S-L-L-, 24 I. & N. Dec. 1, 3 (B.I.A.2006) (en banc) (“In Matter of C-Y-Z-, ... we held that a husband whose wife was forcibly sterilized could establish past persecution under this amendment to section 101(a)(42) of the [INA].”). This appeal considers whether the BIA’s interpretation of the statute was correct. We conclude it was not.

Petitioners Shi Liang Lin, Zhen Hua Dong, and Xian Zou are citizens of the People’s Republic of China and unmarried partners of individuals allegedly victimized by China’s coercive family planning policies. Each seeks review of an order of the BIA summarily affirming the denial of an application for asylum based, in part, on the BIA’s holding in C-Y-Z-.1 We remanded these petitions to the BIA to afford it the opportunity to explain its rationale in C-Y-Z- for reading § 601(a) to say that the spouses of those directly victimized by coercive family planning policies are per se eligible for asylum as if they were directly victimized themselves and also to clarify the status of boyfriends and fiancés under that statute. See Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 187 (2d Cir.2005). We retained jurisdiction. Id.

On remand, the BIA reaffirmed its holding in C-Y-Z- that spouses are entitled to automatic eligibility under § 601(a) but limited this per se eligibility to legally married applicants. S-L-L-, 24 I. & N. Dec. 1. Eschewing a text-based analysis, the BIA elected to interpret the forced abortion and sterilization clause of the section “in light of the overall purpose of the amendment” to include both parties to a marriage. Id. at 8. The Board reaffirmed the dismissal of the appeals of petitioners Lin, id., and Dong, In re Zhen Hua Dong, No. A77 293 661 (B.I.A. Nov. 27, 2006), and remanded Zou’s petition for a determination of whether he qualified for asylum based on the “other resistance to a coercive population control program” clause in § 601(a), In re Xian Zou, No. A73 178 541 (B.I.A. Nov. 21, 2006).

Following the BIA’s decision, we ordered rehearing en banc to consider two issues: First, whether § 601(a)’s provisions are ambiguous, so that the BIA’s construction of them warrants Chevron deference; and second, whether the BIA reasonably construed § 601(a) to extend automatic asylum eligibility to a petitioner whose legally married spouse was subjected to an involuntary abortion or sterilization but not to a domestic partner or fiancé whose claim is derivative unless the petitioner engaged in “other resistance” to a coercive population control policy. Lin v. U.S. Dep’t of Justice, Nos. 02-4611, 02-4629, 03-40837 (2d Cir. Nov. 13, 2006) (order) (“En banc order”). See S-L-L-, 24 I. & N. Dec. 1; Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

We now conclude that the BIA erred in its interpretation of 8 U.S.C. § 1101(a)(42) by failing to acknowledge language in § 601(a), viewed in the context of the statutory scheme governing entitlement to asylum, that is unambiguous and that does not extend automatic refugee status to spouses or unmarried partners of individuals § 601(a) expressly protects. Accordingly, the petition of Zhen Hua Dong is denied. The petition of Shi Liang Lin is dismissed as moot.² The petition of Xian Zou is dismissed for lack of jurisdiction.³ We recognize that this decision creates a split among the circuits.⁴

I. BACKGROUND

Congress has given the Attorney General the discretionary authority to grant asylum to an alien who qualifies as a “refugee” because he or she “is unable or unwilling to avail himself or herself of the protection of [his or her native country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1).

In 1996, Congress passed IIRIRA § 601(a), which amended 8 U.S.C. § 1101(a)(42) by broadening its definition of “refugee,” adding the following language:

[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

8 U.S.C. § 1101(a)(42).

The next year, the BIA held that “past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse,” so that spouses of individuals directly victimized by coercive family planning policies are per se eligible for asylum pursuant to § 1101(a)(42). See Matter of C-Y-Z-, 21 I. & N. Dec 915, 917-18 (B.I.A.1997) (en banc). The BIA gave no reasons for reading the statute to compel this result.

Petitioner Lin entered the United States in January 1991 and filed an application for asylum and withholding of removal in June 1993. According to Lin’s application, he had sought the required governmental permission to marry his girlfriend and have children with her, but she was too young under Chinese law. After his girlfriend became pregnant and was forced to have an abortion, Lin left China. His girlfriend remained in China because she was too weak to travel. Following a hearing, the IJ found Lin credible, but concluded that he did not qualify for asylum based on his girlfriend’s forced abortion and denied the petition. The BIA affirmed without opinion. See In re Shi Liang Lin, No. A70 895 638 (B.I.A. Sept. 29, 2002), aff'g No. A70 895 638 (Immig. Ct. N.Y. City May 9, 2000).

Petitioner Dong attempted to enter the United States in October 1999, and was detained by INS officials. When the INS commenced removal proceedings, Dong requested asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). His asylum petition was based on a claim that his fiancée (who continued to reside in China) had been forced to undergo two abortions and that he would be jailed and fined for having left China illegally were he to be deported. The IJ denied Dong’s petition, finding that, although he was credible, he did not qualify for refugee status as a fiancé of a woman who had undergone forced abortions, and had not established other grounds for relief. The BIA affirmed the IJ’s decision. See In re Zhen Hua Dong, No. A77 293 661 (B.I.A. Sept. 25, 2002), aff'g No. A77 293 661 (Immig. Ct. N.Y. City Oct. 12, 2000).

Petitioner Zou was taken into custody by the INS when he attempted to enter the United States in September 2000. After removal proceedings commenced, Zou filed for asylum. Under Chinese law, Zou and his girlfriend had been too young to marry. He claimed that she had been forced to have an abortion and he had been threatened with arrest after protesting to family planning officials. An IJ denied the application. The IJ found Zou’s testimony concerning his threatened arrest incredible, doubting that Zou would be able to evade the Chinese authorities and travel to the United States with an outstanding warrant of arrest from the Chinese government. Left only with Zou’s claim that his girlfriend had undergone a forced abortion, the IJ held that Zou did not qualify for relief under § 1101(a)(42) on that basis. Zou appealed to the BIA, which affirmed the decision of the IJ. See In re Zou, No. A77 322 595 (B.I.A. Aug. 27, 2002), aff'g No. A77 322 595 (Immig. Ct. N.Y. City Apr. 4, 2002). The three petitioners sought review here and the cases were heard in tandem.

Three different interpretations of the application of “refugee” status to the facts in these cases have been proposed by the parties throughout the litigation. When we heard the petitions in tandem, the Department of Justice argued that § 601(a) of IIRIRA should be understood to confer per se refugee status on spouses of individuals who had undergone forced abortions or involuntary sterilizations, but not to boyfriends or fiancés, who were covered, if at all, under the “other resistance” language of the amendment. Second, the petitioners argued, both before this Court and before the BIA, that the distinction between spouses and unmarried partners was arbitrary and that the statute should be interpreted to extend per se refugee status to the committed partners of individuals who have been forced to undergo an abortion or involuntarily sterilization.

The third, a text-based interpretation, was put forth before the BIA by the Department of Homeland Security (“DHS”), which is “charged with the administration and enforcement of ... laws relating to the immigration and naturalization of aliens,” 8 U.S.C § 1103(a)(1). In its brief to the BIA, the DHS insisted that no support existed in the statute for the BIA’s automatic extension of § 601(a) to spouses. Specifically, the DHS asserted that the BIA’s interpretation was “at odds with the most natural reading of the statute and with established principles of asylum law.” Brief of DHS on Remand at 5, In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A. 2006) (en bane) (No. A70 895 638) (“DHS brief”). Carefully considering the text of § 601(a), the DHS concluded that a rule conferring per se refugee status on spouses of individuals persecuted under coercive family planning policies contradicted the unambiguous language of the amendment. Further, the DHS stated that such a rule was at odds with the legislative history of the amendment, as well as “a fundamental precept of U.S. refugee law ... that, to qualify for protection, an applicant must demonstrate that he will be targeted for his own protected belief or characteristic.” DHS brief at 8-9, 11. The DHS understood that the statute required a “case-by-case” application to individuals who have not themselves been victims of a forced abortion or involuntary sterilization. Under this approach, spouses, boyfriends, and fiancés would have to demonstrate their qualification for refugee status under the “for other resistance to a coercive population control program” provision of § 601(a).

On remand, in S-L-L-, 24 I. & N. Dec 1, the BIA affirmed its earlier decision in C-Y-Z- that under § 601(a) an applicant whose spouse was forced to undergo an abortion or sterilization procedure is automatically entitled to asylum, while limiting its interpretation to individuals who were opposed to their legal spouse’s abortion or sterilization. Id. at 4. The BIA reasoned that § 601(a) provided “no clear or obvious answer to the scope of the protections ... to partners of persons forced to submit to an abortion or sterilization.” Id. As a result of this perceived ambiguity, the majority chose to ground its interpretation “in the context of the history and purposes of the Act as a whole,” finding that

absent evidence that the spouse did not oppose an abortion or sterilization pro-eedure, we interpret the forced abortion and sterilization clause of section 101(a)(42) of the Act, in light of the overall purpose of the amendment, to include both parties to a marriage.

Id. at 8. While the decision rested on “the forced abortion and sterilization clause of section 101(a)(42),” the Board noted that it was applying “general principles regarding nexus and level of harm.” Id. at 5.

The majority based its conclusion on a number of policy-based factors, including the positions taken by the litigants and the fact that C-Y-Z-, as a ten-year-old decision, constituted long-standing precedent. The majority was also influenced by the shared responsibility of married couples regarding family planning decisions under Chinese law and the “profound impact” that a forced abortion or sterilization has on both parties to a marriage. Id. at 6-8.

The majority stopped short of extending a per se presumption to boyfriends, fian-cés, and other unmarried partners. It concluded that they were not comparable to husbands because “the sanctity of marriage and the long term commitment reflected by marriage place the husband in a distinctly different position from that of an unmarried father.” Id. at 9. The BIA dismissed the appeals of Lin, id., and Dong, In re Zhen Hua Dong, No. A77 293 661 (B.I.A. Nov. 27, 2006), and remanded Zou’s case to the immigration court “for further evidence on the issues of resistance and harm” based on the “other resistance” clause of § 1101(a)(42), In re Xian Zou, No. A73 178 541 (B.I.A. Nov. 21, 2006).

Board Member Pauley concurred. While deferring to the BIA’s prior decision in C-Y-Z- as long-standing and widely accepted precedent, he conceded that:

[w]ere we writing on a clean slate, I would adopt the lately arrived at position of the Department of Homeland Security ... that whether or not the spouse of a forcibly sterilized or aborted individual can be found to have been persecuted depends on a case-by-case assessment of whether that spouse was persecuted on account of “other resistance” to a coercive population control system, because the language of the Act does not support extending refugee status to any person other than the one sterilized or aborted, aside from the “other resistance” ground.

Id. at 13 (Pauley, B.M., concurring).

Board Member Filppu, joined by Board Member Cole, concurred in the result but dissented from the majority’s reaffirmation of C-Y-Z-. They reasoned that the language of the statute was unambiguous in “focus[ing] on ‘a person’ who has been forced to abort a pregnancy, not on a ‘couple,’ let alone a married couple.... ” Id. at 16 (Filppu, B.M., concurring and dissenting). Understanding that “statutory interpretation must begin with reference to the language and structure of the statute,” id. at 15, and “Congress expresses its intent through the language it chooses,” id. at 19 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)), the dissenters concluded that an individual who has not been subjected to a forcible abortion or sterilization procedure can qualify for refugee status in relation to a coercive family planning policy only if he proves that he was persecuted or has a well-founded fear of future persecution “for other resistance to a coercive population control program.” Id.⁵

Following the BIA’s decision, we ordered an en banc rehearing to determine whether § 601(a) is ambiguous, whether the BIA’s interpretation of “refugee” should be accorded Chevron deference, and “[wjhether the BIA reasonably construed IIRIRA § 601’s definition of “refugee” to: (a) include a petitioner whose legally married spouse was subjected to an involuntary abortion or sterilization ...; and (b) not include a petitioner whose claim is derivatively based on any other relationship with a person who was subjected to such a procedure, unless the petitioner has engaged in ‘other resistance’ to a coercive population control program. ...” See En banc order. We now conclude that the BIA’s interpretation of the statute is not correct.

II. DISCUSSION

When reviewing the BIA’s interpretation of statutes that it administers, we apply the Chevron principles. We first ask if Congress has spoken. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Only if the statute is silent or ambiguous do we turn to the second inquiry — whether the BIA’s interpretation constitutes “a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778.

While the petitioners in this case are unmarried partners, and not spouses, of individuals who have been subjected to forced abortions, we review the BIA’s interpretation of § 601, as articulated in its decision below, to extend a per se presumption of persecution to spouses, but not to non-married partners, of individuals who have been involuntarily subjected to an abortion or sterilization.⁶ It is the existence of this spousal policy that the petitioners argue is an arbitrary and capricious interpretation of the statute. If the BIA’s policy is at odds with the plain language of the statute, it makes little sense to consider only whether it can reasonably be limited to couples who are formally married.

Accordingly, we start our Chevron analysis of § 601(a) by asking whether Congress has spoken directly to the question of whether an individual can establish past persecution based solely on his spouse or partner’s forced abortion or sterilization. 467 U.S. at 842-43, 104 S.Ct. 2778. In SL-L-, the BIA, without elaboration or explanation, observed that “[t]here is no clear or obvious answer to the scope of the protections afforded by the amendment to partners of persons forced to submit to an abortion or sterilization.” 24 I. & N. Dec. at 4. We disagree. We conclude that Congress has spoken to this issue and that it has done so unambiguously.

In the past, this Court, when following the BIA’s holding in C-Y-Z-, has deferred to the BIA’s interpretation without performing a threshold Chevron analysis of the ambiguity of the statute. In Yuan v. U.S. Dep’t of Justice, for example, we stated of IIRIRA § 601 that, “[b]y its plain language, the law would seem to extend refugee status only to actual victims of persecution — for example, a woman who was ‘forced to abort a pregnancy,’ but not her husband.” 416 F.3d 192, 196 (2d Cir.2005). Despite this recognition of the amendment’s plain language, we went on to defer to the interpretation of the BIA, stating that, “we have held that spouses of people actually subject to persecution under coercive family planning policies are per se eligible for asylum.... In doing so, however, we did not explain why. Rather, we followed the lead of the BIA.” Id. at 196-97 (internal citation omitted); see also Zhang v. I.N.S., 386 F.3d 66, 73 (2d Cir.2004); Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003). To the extent that deference implicit in these cases can be read to say that deference is due, they are overruled.

The amendment provides:

[ (1) ] a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or [(2)] who has been persecuted for failure or refusal to undergo such a procedure or [ (3) ] for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and [ (4) ] a person who has a well founded fear that he or she will be forced to undergo such a procedure or [ (5) ] subject to persecution for such failure, refusal, or [ (6) ] resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

8 U.S.C. § 1101(a)(42). The language of the first clause, which refers to “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization,” could not be more clear in its reference to “a person,” rather than “a couple,” who has been subjected to a forced abortion or involuntary sterilization. This interpretation follows two cardinal rules: first that “[statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose,” Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985); and, second, that “we begin with the understanding that Congress says in a statute what it means and means in a statute what it says there,” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (internal quotation marks omitted).

As the statute is written, “a person who has been forced to abort a pregnancy” unambiguously refers to a woman who has been physically subjected to a forced abortion, and “a person who has been forced ... to undergo involuntary sterilization” means an individual who has physically undergone an involuntary medical procedure intended to result in infertility. Had Congress intended this clause to refer to a spouse or partner of someone who has been physically subjected to a forced procedure, “it could simply have said so.” Id. at 7, 120 S.Ct. 1942.

Similarly, the second clause of the amendment refers to “a person” who “has been persecuted for failure or refusal to undergo [an abortion or involuntary sterilization.]” 8 U.S.C. § 1101(a)(42). Like the preceding clause, this language refers to individuals who have failed or refused to undergo (i.e., “submit to”) a procedure affecting their own bodies. Under the language used by Congress, having someone else, such as one’s spouse, undergo a forced procedure does not suffice to qualify an individual for refugee status.

A parallel analysis governs the categories of § 601(a) relating to the establishment of a well-founded fear of future persecution. The fourth category covers “a person who has a well founded fear that he or she will be forced to undergo [an abortion or involuntary sterilization].” This category plainly excludes an individual who does not fear that she herself will be subjected to a forced abortion or sterilization. Not only does it refer to “a person,” and indicate that that person will “undergo” the procedure his- or herself, the use of the pronouns “he” and “she” reinforces the intention of Congress to limit the application of the clause to individuals who are themselves physically forced to undergo an abortion or sterilization.

Finally, the fifth category of individuals refers to “a person who has a well founded fear that he or she will be ... subject to persecution for such failure [or] refusal [to undergo an abortion or involuntary sterilization].” Like the language of the previous clauses, this phrase is unambiguous in its reference to “a person” who fears that “he or she” will be persecuted for his or her reaction to a threat of “undergoing]” an abortion or sterilization to his or her own body. This section, like the previous three categories discussed, cannot be read reasonably to cover an individual’s fears arising from a coercive procedure performed on someone else.⁷

In S-L-L-, the BIA noted that it was applying “general principles regarding nexus and level of harm,” 24 I. & N. Dec. at 5 — principles derived from the general refugee definition subsection of § 1101(a)(42) — to reach its holding. We believe that this approach was not correct. The general definition of a “refugee” under § 1101(a)(42) permits “any person” who experiences “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” to obtain asylum. 8 U.S.C. § 1101(a)(42). Nothing in the general definition of refugee would permit “any person” who has not personally experienced persecution or a well-founded fear of future persecution on a protected ground to obtain asylum, as the BIA’s per se rule would permit. Indeed, an examination of the overall statutory scheme reassures us that, pursuant to Chevron, we must conclude that Congress has clearly and unambiguously spoken to the issue at hand. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (“In determining whether Congress has specifically addressed the question at issue [under Chevron step one], a reviewing court should not confine itself to examining a particular statutory provision in isolation.... A court must ... interpret the statute as a symmetrical and coherent regulatory scheme.” (citation and internal quotation marks omitted)).

It is apparent to us that when Congress rejected the BIA’s view in Matter of Chang, 20 I. & N. Dec. 38 (B.I.A.1989), of birth control policies in other nations as an avenue for asylum, it did so in clear and unmistakable language. It identified those to whom asylum could be granted and reaffirmed the need for direct personal persecution. Congress’s specific designation of some persons (i.e., those who fear, resist, or undergo particular medical procedures) is incompatible with the view that others (e.g., their spouses) should also be granted asylum per se because of birth control policies. The inclusion of some obviously results in the exclusion of others. See TRW Inc. v. Andrews, 534 U.S. 19, 28, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).⁸

The language of § 601(a) does nothing to alter the pre-IIRIRA definition of “political opinion” in § 1101(a)(42), and this further demonstrates the exclusivity of the group of persons entitled to asylum per se under § 601(a). Congress could have announced that the term “political opinion” included any reproductive act in violation of a coercive population control program, but instead it chose to create a specific exception to the general statutory requirement that a person claiming refugee status based on past persecution has the burden of demonstrating that the particular conduct experienced by him rose to the level of persecution and the persecution had a specified impermissible nexus. See 8 U.S.C. § 1158(b)(l)(B)(i) (stating that “[t]he burden of proof is on the applicant to establish that the applicant is a refugee”). IIRIRA § 601(a) states that certain individuals affected by coercive population control programs “shall be deemed” persecuted by reason of political opinion. In using the word “deem” in this context,⁹ § 601(a) makes clear that those who benefit from the amendment would not be entitled to per se political opinion asylum relief absent the amendment. In other words, their political opinion exists de jure rather than as a matter of fact on which the applicant bears the burden of proof. For an asylum applicant who does not fall within this limited exception, the burden remains on the applicant — and the opportunity remains open — to demonstrate, in light of the particular facts of the case, that he has (i) a well-founded fear of personal persecution (ii) based on political opinion or some other impermissible ground.

This is consistent with what we know: While it is plain that suffering a forced medical procedure can be a persecution if it is on account of a protected ground, the conception of a child is no more an expression of political opinion than birth, death, sleep, or the taking of nourishment. If the language of § 601(a) indicates that the woman who is subjugated to the outrage of a forced abortion has not herself been persecuted for the “political opinion” of conceiving a child under pre-IIRIRA § 1101(a)(42), then so much less the man who has impregnated her; but unlike his wife or partner, he is not “deemed” under § 601(a) to hold a political opinion and he must prove the existence of a political opinion or other protected ground under § 1158(b)(l)(B)(i). Accordingly, we conclude that the statutory scheme unambiguously dictates that applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer. See Sun Wen Chen, 491 F.3d at 114, (McKee, J., dissenting) (“Congress could have easily drafted [§ 601(a) ] to extend to ‘married couples who have been subjected to a forced abortion or involuntary sterilization.’ So drafted, an actual victim of persecution under a coercive population control program, as well as his/her spouse, would qualify for relief under the statute. However, Congress did not draft the statute in this way, and we can not rewrite the statute’s explicit text to achieve that result.”).

Indeed, the critical defect in the BIA’s policy of according per se refugee status to spouses of individuals explicitly protected by § 601(a) is its creation of an irrebuttable presumption of refugee status for a new class of persons. This policy effectively absolves large numbers of asylum applicants of the statutory burden to prove that they have (i) a well-founded fear of persecution (ii) based on an impermissible nexus. Such a presumption is contrary to the text of 8 U.S.C. § 1158(b)(1)(B), which specifies that “[t]he burden of proof is on the applicant,” that “the applicant must establish that ... political opinion was or will be at least one central reason for persecuting the applicant,” and that an applicant’s testimony may be sufficient to meet this burden only if it “refers to specific facts sufficient to demonstrate that the applicant is a refugee.” The law is clear that “an agency is not free to ignore statutory language by creating a presumption on grounds of policy to avoid the necessity for finding that which the legislature requires to be found.” United Scenic Artists v. NLRB, 762 F.2d 1027, 1034 (D.C.Cir.1985). The creation of such a presumption “is beyond the [agency’s] statutory authority.” Id. at 1035; see also Cerrillo-Perez v. INS, 809 F.2d 1419, 1426-27 (9th Cir.1987) (holding that the “BIA cannot adopt a general presumption” unfavorable to applicant but instead “must consider the specific facts and circumstances of each ease”). Thus, the BIA lacks authority to adopt a policy that presumes that every person whose spouse was subjected to a forced abortion or sterilization has himself experienced persecution based on political opinion.

Our concurring colleagues Judge Katz-mann and Judge Sotomayor suggest that the political nexus prong of this presumption is, in fact, inherent in Congress’s 1996 amendments. Op. of Judge Katzmann at 324; op. of Judge Sotomayor at 331. However, this contention is irreconcilable with the language of § 601(a), in which Congress created this presumption for specifically identified persons — those who were themselves subjected to or threatened with a forcible abortion or sterilization. To the extent that the amendments overruled Matter of Chang’s, categorical rejection of such a nexus, 20 I. & N. Dec. 38, this means that an asylum applicant is no longer foreclosed from relying on evidence of a forced abortion or sterilization — whether personal or spousal — in attempting to demonstrate persecution based on political opinion. However, the fact remains that Congress has relieved only persons who actually experienced, or are threatened with, a forcible abortion or sterilization from the burden of proving a political nexus in their particular cases.

We do not deny that an individual whose spouse undergoes, or is threatened with, a forced abortion or involuntary sterilization may suffer a profound emotional loss as a partner and a potential parent. But such a loss does not change the requirement that we must follow the “ordinary meaning” of the language chosen by Congress, according to which an individual does not automatically qualify for “refugee” status on account of a coercive procedure performed on someone else. See Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990) (stressing the importance of “giving the ‘words used’ their ‘ordinary meaning.’ ”); Cardoza-Fonseca, 480 U.S. at 453, 107 S.Ct. 1207 (“Where the language of [a] law[ ] is clear, we are not free to replace it with an unenacted legislative intent.”).¹⁰

Under Chevron, once it is apparent that the statute is unambiguous, our inquiry stops. “If the intent of Congress is clear, that is the end of the matter,” and we are required to refrain from deferring to an agency’s contradictory interpretation. 467 U.S. at 842-43, 104 S.Ct. 2778; see, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 462, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002); Brown & Williamson Tobacco Corp., 529 U.S. at 160-61, 120 S.Ct. 1291; Nat’l Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 500, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998); MCI Telecommunications Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 226-28, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994); Cardoza-Fonseca, 480 U.S. at 447-48, 107 S.Ct. 1207. Congress’s choices of language in the phrases, “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization,” “[a person] who has been persecuted for failure or refusal to undergo such a procedure,” 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 [or] refusal,” is uniformly unambiguous in its reference to an individual who is subjected to, or threatened with, an involuntary abortion or sterilization affecting his or her own body, and the statutory scheme of § 1101(a)(42) only reinforces that conclusion.

As a result, we conclude that the statute does not provide that a spouse— and a fortiori, a boyfriend or fiancé — of someone who has been forced to undergo, or is threatened with, an abortion or sterilization is automatically eligible for “refugee” status. Instead, to qualify for refugee status under the amendment, such an individual must turn to the two remaining categories of § 601(a), which provide protection to petitioners who demonstrate “other resistance to a coercive population control program” or “a well founded fear that he or she will be ... subject to persecution for such ... resistance.... ” 8 U.S.C. § 1101(a)(42).¹¹

In S-L-L-, the BIA was influenced by the fact that C-Y-Z- “is a precedent of long standing at this point ... and numerous court decisions have deferred to the holding.” S-L-L-, 24 I. & N. Dec. at 4; see also id. at 14 (Pauley, B.M., concurring) (“[Njotwithstanding my belief that Matter of C-Y-Z-, ... was wrongly decided, I would not overrule it now, clearly a decade later and in the aftermath of thousands of decisions applying it....”). However, the Supreme Court has made clear that “[sjtare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision.” Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (internal quotation marks omitted).

While stare decisis is undoubtedly of considerable importance to questions of statutory interpretation, the Supreme Court “ha[s] never applied stare decisis mechanically to prohibit overruling ... earlier decisions determining the meaning of statutes.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 695, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We should not do so either. The fact that we have failed to follow the plain language of a law of Congress for ten years does not require that we do so indefinitely. That would “place on the shoulders of Congress the burden of the Court’s own error.” Girouard v. United States, 328 U.S. 61, 70, 66 S.Ct. 826, 90 L.Ed. 1084 (1946).

Given the clarity of the statute, there is no need to resort to legislative history, which is a tool of construction that we employ only if the statutory text at issue in the context of the statute as a whole is ambiguous. However, were we to examine the statute’s legislative history, we would find that our interpretation of § 601(a) comports with Congress’s stated purpose in passing the amendment. The House Report accompanying the passage of the amendment states that its

primary intent ... is to overturn several decisions of the Board of Immigration Appeals, principally Matter of Chang and Matter of G- ... which ... hold that a person who has been compelled to undergo an abortion or sterilization, or has been severely punished for refusal to submit to such a procedure, cannot be eligible on that basis for refugee or asy-lee status unless the alien was singled out for such treatment on account of factors such as religious belief or political opinion.

H.R. Rep. 104-469(1) at 173-74 (1996) (emphasis added).

The report mentions as examples of victims of coercive family planning policies women who have been subjected to involuntary abortions, men and women who are forcibly sterilized, and “couples with unauthorized children [who are] subjected to excessive fines,” but not spouses of individuals who have been subjected to forced abortions or sterilizations. Id. While Congress disapproved of coercive family planning policies as a whole, the amendment was meant to provide protection for individuals who were subjected to persecution themselves. As the report goes on to state:

The Committee emphasizes that the burden of proof remains on the applicant, as in every other case, to establish by credible evidence that he or she has been subject to persecution — in this case, to coercive abortion or sterilization — or has a well-founded fear of such treatment The Committee is aware that asylum claims based on coercive family planning are often made by entire groups of smuggled aliens, thus suggesting that at least some of the claims, if not the majority, have been “coached.” Section [601(a) ] is not intended to protect persons who have not actually been subjected to coercive measures or specifically threatened with such measures

Id. at 174 (emphasis added). There is nothing in the legislative history that leads us to question “the strong presumption that Congress expresses its intent through the language it chooses.” Cardoza-Fonseca, 480 U.S. at 432 n. 12, 107 S.Ct. 1207. Here, the language Congress employed in § 601(a) demonstrates that it wanted to cover “a person,” not “a couple,” not a “significant other” and not an “intimate friend.” Moreover, Congress’s “empha-si[s]” on its intention that “the burden of proof remains on the applicant” demonstrates that no other subsection of § 1101(a)(42) could support the BIA’s interpretation of the statute.¹² See Sun Wen Chen, 491 F.3d at 119 (McKee, J., dissenting) (“The House Report ... expresses a congressional intent to restrict asylum to the ‘person’ who undergoes the coercive procedure just as clearly as the text of the statute.”).

This reading of the statute is further supported by the Supreme Court’s pronouncement about what “refugee” means. In INS v. Elias-Zacarias, the Supreme Court held that under the plain language of the general refugee definition subsection of § 1101(a)(42), “ ‘persecution on account of ... political opinion’ in [§ 1101(a)(42) ] is persecution on account of the victim’s political opinion,” 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original), not persecution on account of a political opinion held by someone else. Similarly, a spouse who has not demonstrated that he himself is a victim of persecution cannot be entitled to asylum under this section of the statute. It would be unreasonable to conclude otherwise, whether under § 601(a), or under § 1101(a)(42) as a whole.¹³

Our conclusion that Congress never intended § 601 — or § 1101(a)(42) — to apply automatically to spouses is reinforced by the fact that Congress already provides for family members elsewhere in the statute by authorizing derivative asylum status for spouses and children of individuals who qualify as “refugees.” 8 U.S.C. § 1158(b)(3)(A). Specifically, under § 1158(b)(3)(A), an individual whose spouse or parent has been granted asylum on the basis of having undergone or been threatened with the prospect of a forced abortion or sterilization is automatically eligible for derivative asylum: “[a] spouse or child ... of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.”

What Congress did by providing in § 1158(b)(3)(A) for automatic asylum for spouses of individuals who have been granted “refugee” status as a result of having been forced to undergo an abortion or involuntary sterilization reflects a policy decision to encourage the preservation of families. Under § 1158(b)(3)(A) the benefits of asylum are extended first to the person Congress understood to be most deserving of protection — the direct victim. Once the victim gains asylum, so does the spouse, and so do their children. This structure encourages couples to remain together, or, in circumstances where this is not possible, facilitates reunion.

The BIA’s interpretation of the statute in S-L-L- cuts in a different direction since it has the perverse effect of creating incentives for husbands to leave their wives. As hundreds of cases in the courts illustrate, the policy allows a married man to “capitalize on the persecution of his wife to obtain asylum even though he has left his wife behind and she might never join him and he might intend that she not do so,” Chen v. Ashcroft, 376 F.3d 215, 223 n. 2 (3d Cir.2004). It is highly unlikely— indeed, inconceivable — that Congress would approve of, much less intended, any of this. These counterintuitive results reinforce our conclusion that in § 601(a) Congress intended to grant automatic asylum to an individual directly victimized by a coercive birth control policy, and that no part of § 1101(a)(42) extends this automatic asylum to spouses. Congress did not, at the same time it adopted § 601(a), intend to gut or to undermine § 1158(b)(3)(A), which already contained a synchronous, sensible way of addressing the compelling problems faced by spouses and children of direct victims.

Although we conclude that Congress has spoken unambiguously to whether an asylum applicant is per se eligible for asylum if his spouse or partner has suffered as a result of a coercive population control program, the phrase “other resistance” is ambiguous and leaves room for the BIA’s reasonable interpretation where the applicant relies on something beyond his spouse’s or partner’s persecution.¹⁴ See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1203 (11th Cir.2005) (“There is very little case law analyzing the ‘other resistance’ clause in the asylum statute. Additionally, a review of the legislative history behind the 1996 Amendment does not reveal any clear intent from Congress on the scope of the ‘other resistance clause.’ ”).

In its decision, the BIA held that an applicant claiming persecution for “other resistance” must demonstrate (1) “resistance” to a coercive family planning policy, which can “cover[ ] a wide range of circumstances, including expressions of general opposition, attempts to interfere with enforcement of government policy in particular cases, and other overt forms of resistance to the requirements of the family planning law”; and (2) that the applicant has “suffered harm amounting to persecution on account of that resistance.” S-L-L-, 24 I. & N. Dec. at 10. An individual whose spouse or partner has been subjected to a forced abortion or involuntary sterilization can therefore qualify for “refugee” status under this interpretation if that individual can prove past persecution or a fear of future persecution for “resistance” that is directly related to his or her own opposition to a coercive family planning policy.

Whatever interpretation the BIA chooses to give to the meaning of “resistance,” it is clear that the fact that an individual’s spouse has been forced to have an abortion or undergo involuntary sterilization does not, on its own, constitute resistance to coercive family planning policies. See Zhang, 395 F.3d at 532 (“[Mjerely impregnating one’s girlfriend is not alone an act of ‘resistance.’ ”). Nor could the resistance of an individual’s spouse or partner to a family planning policy — whether by failure or refusal to undergo a procedure, or for “other resistance” — constitute, on its own, “resistance” under regulations implementing § 1101(a)(42). Instead, as the DHS has argued, “where the applicant himself has not resisted [coercive family control policies], he would need to demonstrate, though persuasive direct or circumstantial evidence, that his wife’s, fiancee’s, or girlfriend’s resistance has been or will be imputed to him.” DHS brief at 17 (citing Singh v. INS, 134 F.3d 962, 970 (9th Cir.1998)). The fact that someone’s spouse has been subjected to a forced abortion or sterilization would not be irrelevant to such an analysis, it simply could not provide for asylum status per se.¹⁵

Before turning to the dispositions of the petitioners’ claims, we address some practical implications of our decision. We affirm the result of the BIA’s decision in S-L-L- denying per se refugee status to boyfriends or fiancés of individuals who have been persecuted directly under coercive family planning policies. A necessary predicate for this result is our conclusion that § 601 does not confer automatic asylum eligibility on spouses, whether legal spouses or spouses from a traditional marriage, but only on individuals who themselves have undergone or been threatened with coercive birth control procedures. Thus, although none of the petitioners before us is legally married, we understand that our reading of the statute would necessarily exclude spouses of those directly victimized from per se asylum eligibility as well.

We emphasize that our holding today should not be read to presage the reopening of cases of aliens who have already been granted asylum based on the BIA’s interpretation of § 601 in C-Y-Z-. Under 8 U.S.C. § 1158(c)(2)(A), the DHS is permitted to seek the termination of asylum when an alien no longer qualifies for refugee status “because, owing to a fundamental change in circumstances relating to the original claim, the alien’s life or freedom no longer would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the country from which deportation or removal was withheld.” 8 C.F.R. § 208.24(b)(1) (emphasis added). Just as a change in United States asylum law does not qualify as a “change in circumstances” sufficient to reopen an asylum case under 8 C.F.R. § 1003-2(c)(3)(ii) (permitting motion to reopen “based on changed circumstances arising in the country of nationality or in the country to which deportation is ordered”), see Azanor v. Ashcroft, 364 F.3d 1013, 1022 (9th Cir.2004), a change in the BIA’s interpretation of section 601(a) as a result of our decision should not be seen as a “fundamental change in circumstances relating to the original claim” under 8 C.F.R. § 208.24(b)(1) so as to allow the termination of an asylum claim that has already been granted. See S-L-L-, 24 I. & N. Dec. at 21 n. 2 (Filppu, B.M., concurring and dissenting) (‘We are not now concerned with reopening past cases.”).

III. PETITIONERS’ CLAIMS

We agree with the BIA that none of the petitioners can qualify for automatic refugee status as a result of the treatment of their girlfriends or fiancées. Instead, each petitioner must demonstrate “other resistance to a coercive population control program” or “a well founded fear that he ... will be ... subject to persecution for such ... resistance....” 8 U.S.C. § 1101(a)(42).

Petitioner Dong’s application for asylum was based upon his fiancée’s two forced abortions and threats from family planning officials that they would fine and sterilize Dong if his fiancée became pregnant again. But Dong failed to demonstrate that he acted in a manner that could constitute “resistance” or opposition to a coercive family control program. Nor can we find that Dong has a fear of future persecution as a result of the threat that the Chinese government would sterilize him if his fiancée became pregnant again. Dong submitted evidence to the immigration court that his fiancée had moved to Taiwan to be with her father. The IJ thus found that Dong was unlikely to return to China, and his fear of sterilization was conjectural. Moreover, as the BIA notes, were Dong’s fiancée to return to China, Dong and his fiancée would now meet the age requirements for marriage. See In re Dong, A. 77 293-661 (B.I.A. Nov. 27, 2006). In addition, the immigration judge correctly determined that Dong did not demonstrate that he would “more likely than not” be persecuted as grounds for a withholding of removal, or that he would be subjected to torture within the meaning of the Convention Against Torture. See id. Accordingly, we deny Dong’s petition for review.

Petitioner Lin’s claim for asylum is that he and his girlfriend were refused permission to marry or have a child out of wedlock, and his girlfriend was forced to undergo an abortion. Lin did not claim before the immigration court, the BIA, or this Court that he had “otherwise resisted” China’s coercive family planning policies. Even if he had, we agree with the BIA that a request, through the appropriate legal channels, for permission to have a child, combined with the subsequent abortion performed on his girlfriend, does not constitute “resistance to a coercive population control program.” S-L-L-, 24 I. & N. at 10-12. However, we do not have jurisdiction over Lin’s petition for review, as we find that his petition is moot. Lin’s attorney has informed this Court that he has never had any contact with the petitioner, and that Lin’s prior attorney has not spoken to him in approximately three years. In addition, an individual from Lin’s village in China has told the attorney that “he heard from other villagers that Lin was terminally ill and had returned to China not too long ago and died.” Aff. of Yee Ling Poon ¶ 5. When the possibility of relief is “so remote and speculative that any decision on the merits ... would amount to a ‘declaration of] principles or rules of law which cannot affect the matter in issue in the case before [us],”’ United States v. Blackburn, 461 F.3d 259, 262 (2d Cir.2006) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895) (alterations in original)), we would run afoul of Article III were we to decide the claim. Given that we do not retain jurisdiction over Lin’s claim if he has returned to China and has provided no explanation to overcome the presumption that his asylum application has been abandoned, see 8 C.F.R. § 1208.8, or if he is deceased, Lin’s petition is dismissed as moot.

Petitioner Zou’s petition has been remanded by the BIA to the immigration court to review its findings of adverse credibility and determine whether Zou qualifies as a refugee for “resistance” to a coercive family planning policy. See In re Xian Zou, No. A77 322 295 (B.I.A. Nov. 21, 2006). Accordingly, we no longer have jurisdiction over Zou’s petition. See 8 U.S.C. § 1252(a)(1) (giving courts of appeals jurisdiction to review only final orders of removal).

CONCLUSION

For these reasons, the petition for review of Zhen Hua Dong is Denied. The petitions for review of Shi Liang Lin and Xian Zou are Dismissed for lack of jurisdiction.

1 . See In re Shi Liang Lin, No. A70 895 638 (B.I.A. Sept. 29, 2002), aff'g No. A70 895 638 (Immig. Ct. N.Y. City May 9, 2000); In re Zhen Hua Dong, No. A 7 293 661 (B.I.A. Sept. 25, 2002), aff'g No. A77 293 661 (Immig. Ct. N.Y. City Oct. 12, 2000); In re Zou, No. A77 322 595 (B.I.A. Aug. 27, 2002), aff'g No. A77 322 595 (Immig. Ct. N.Y. City Apr. 4, 2002).

2 . Subsequent to oral arguments, we learned that Lin has had no contact with his attorneys since "early 2004,” and that his attorney believes that he has either returned to China or is deceased. (Aff. of Yee Ling Poon, ¶¶ 3-5). Accordingly, Lin's case is moot. See 8 C.F.R. § 1208.8.

4 . A number of our sister circuits have deferred to the BIA's interpretation of § 601(a). See, e.g., Zhang v. Gonzales, 434 F.3d 993, 1001 (7th Cir.2006); Huang v. Ashcroft, 113 Fed.Appx. 695, 700 (6th Cir.2004) (unpublished opinion); He v. Ashcroft, 328 F.3d 593, 604 (9th Cir.2003); Li v. Ashcroft, 82 Fed.Appx. 357, 358 (5th Cir.2003) (unpublished per curiam opinion). While the Third Circuit had questioned the BIA's reading of the plain language of the amendment, stating that "[i]t takes some effort to reconcile [the BIA’s] interpretation with the language of the 1996 amendment, since the phrase ‘a person who has been forced to abort a pregnancy or to undergo involuntary sterilization' is most naturally read as referring only to a person who has personally undergone one of those procedures,” Chen v. Ashcroft, 381 F.3d 221, 226 (3d Cir.2004) (Alito, J.), a divided panel of the Third Circuit recently validated the BIA’s interpretation of § 601(a) over a vigorous dissent. See Sun Wen Chen v. U.S. Att'y Gen., 491 F.3d 100, 108-9 (3d Cir.2007).

The circuits are already split over whether § 601(a) provides protection for individuals who marry in traditional ceremonies not recognized by their government and later seek asylum based on the forced abortion or sterilization of their "common law spouses.” The Seventh and Ninth Circuits have held that the statute covers spouses from traditional marriage ceremonies, see Zhang, 434 F.3d at 999; Zhu v. Gonzales, 465 F.3d 316, 321 (7th Cir.2006); Ma v. Ashcroft, 361 F.3d 553, 559-61 (9th Cir.2004). In contrast, the Third Circuit, in Chen, supra, held that the amendment does not cover unmarried partners, even when they have been prevented from marrying by their government's family planning policy. 381 F.3d at 232-34; see also Chen v. Gonzales, 418 F.3d 110, 111 (1st Cir.2005) (acknowledging circuit split on the issue). While they have not reached the issue of traditional marriage ceremonies, the Fifth and Eleventh Circuits have declined to extend IIRIRA § 601 to cover boyfriends of individuals who have been subjected to a forced abortion or sterilization. See Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir.2004); Wang v. U.S. Att’y Gen., 152 Fed.Appx. 761, 767 (11th Cir.2005) (unpublished opinion).

5 . While here, as throughout the opinion, we refer to a male petitioner with a wife or girlfriend who has been forced to undergo an abortion or sterilization, our reasoning applies with equal force to the perhaps more uncommon situation in which a female petitioner's male spouse or boyfriend has been forced to undergo sterilization.

6 . We announced our intention to reach this question in our order that this case be reheard en banc. In that order we instructed the parties to address the BIA's interpretation of § 601 as it related to both spouses and non-married partners of individuals subjected to an involuntary abortion or sterilization. All members of this en banc panel joined the order, including those who now express confusion as to why we reach the question. We are particularly perplexed by the position taken by our colleagues Judge Katzmann and Judge Sotomayor, who contend we are overreaching by considering whether the BIA's per se rule survives review under Chevron step one, but who then proceed to assess, and declare valid, the same rule under Chevron step two. Op. of Judge Katzmann at 324, Op. of Judge Sotomayor at 327-28 & n. 1.

7 . No member of the en banc Court disputes this reading of IIRIRA § 601(a). Instead, our colleagues assert that other language in 8 U.S.C. § 1101(a)(42) — language predating adoption of the amendment — might (in the case of our colleague, Judge Calabresi) or does (in the case of our colleagues Judge Katzmann and Judge Sotomayor) somehow support the BIA’s per se rule. These assertions are incorrect, we believe, for reasons discussed infra.

By contrast, the Third Circuit's recent decision in Sun Wen Chen, which our concurring colleagues Judge Katzmann and Judge Soto-mayor cite extensively even though they apparently disagree with its analysis, asserts that § 601(a) contains an ambiguity that the BIA is empowered to fill. See Sun Wen Chen, at 106 ("The C-Y-Z- rule ... fleshes out an issue germane to the application of [§ 601(a) ] that was not addressed by Congress, and so poses no Chevron step one problem.”). But see Sun Wen Chen, 491 F.3d at 113 (McKee, J., dissenting) (“Rather than accept the language [of § 601(a)] as drafted, the majority concludes that the absence of ‘spouse’ in the statute creates a vacuum that the Attorney General may rush in and fill, even though this results in amending the statute.”); id. at 113 (McKee, /., dissenting) ("Our analysis should therefore begin and end with the language of [§ 601(a) ]. There is no room here for a step two inquiry under Chevron .... I believe Congress meant what it said, and I do not assume that the omission of any reference to a 'spouse' is accidental or insignificant.”).

8 . Judge Katzmann contends that we have employed this well-known canon of statutory construction to conclude that IIRIRA § 601(a) restricts, rather than expands, the availability of asylum relief. Op. of Judge Katzmann at 318-19. This contention is misplaced. We acknowledge that IIRIRA § 601(a) expands the availability of asylum, but find it significant that it does so only to specifically-enumerated categories of asylum applications — categories that do not include the beneficiaries of the BIA’s per se rule.

9 . To "deem” is "[t]o treat (something) as if (1) it were really something else, or (2) it has qualities that it doesn't have,” or, in the alternative, ”[t]o consider, think, or judge.” Black’s Law Dictionary 446 (8th ed.2004). Black’s Law Dictionary further notes that the word deem "has been traditionally considered to be a useful word when it is necessary to establish a legal fiction either positively by 'deeming' something to be what it is not or negatively by ‘deeming’ something not to be what it is.... All other uses of the word should be avoided.” Id. (quoting G.C. Thornton, Legislative Drafting 99 (4th ed. 1996)).

10 . If this conclusion is inconsistent with Congress's intentions, it can, if it so chooses, of course, amend the statute, as it did when it adopted IIRIRA § 601(a) in response to the BIA’s decision in Matter of Chang, 20 I. & N. Dec. 38 (B.I.A.1989).

11 . While no party before us argues that the rule in S-L-L- fails under Chevron step one, DHS did argue this point before the BIA, and the BIA considered and rejected the argument over a persuasive dissent by two members of the Board. In any event, we cannot defer to the Department of Justice's argument (opposed below by DHS, the agency charged with enforcing immigration laws) that the rule in S-L-L- survives review under Chevron step one if the rule finds no support in the statutory text. Accordingly, we assume that the Solicitor General will take appropriate action to recommend or assure that the views of DHS and this Court will be represented in any future proceedings.

12 . Judge Katzmann asserts that Congress, when it adopted IIRIRA § 601(a) in 1996, intended to accomplish the same goal as a 1993 order of former Attorney General Barr that was never enacted and never reviewed by any court. That order would have explicitly granted asylum to spouses of coercive family planning policy victims. Op. of Judge Katz-mann at 320. Judge Katzmann’s assertion is squarely contradicted by the plain language of IIRIRA § 601(a), which — unlike Attorney General Barr's order — does not grant asylum to spouses of persecution victims, as well as by the legislative history recounted above, which emphasizes that IIRIRA § 601(a) was not intended to make asylum available to those not explicitly protected by the amendment. Even more precarious is Judge Katz-mann’s reliance on the various messages he hears in the sounds of Congressional silence. Op. of Judge Katzmann at 323.

13 . In her concurring opinion, Judge Sotoma-yor suggests that today’s holding casts doubt on Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir.2006) (remanding asylum claim to BIA on determination that a "combination of circumstances” experienced by applicant in Guatemala as a dependent child — including the massacre of close family members — "could well constitute [past] persecution” of the child). We do not address this concern because today's decision does not preclude the BIA from considering the totality of circumstances in any particular case to determine if an asylum applicant has carried his statutory burden.

14 . For an analysis of what "resistance” might mean when someone has not been forcibly sterilized himself, see Li v. Ashcroft, 356 F.3d 1153, 1159-61 (9th Cir.2004) (en banc) (analyzing the meaning of the "other resistance” clause and holding that it applies to a woman who announced her opposition to government population control policies and was thereafter subjected to a forced gynecological exam and threatened with future abortion, sterilization of her boyfriend, and arrest).

15 . Judge Calabresi asserts first that our holding conflicts — if not in actuality, then in "spirit,” Op. of Judge Calabresi at 337 — with the Supreme Court’s recent decisions in INS v. Orlando Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam), and Gonzales v. Thomas, 547 U.S. 183, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam), and second that we rush to reach a particular result. We disagree with both of these assertions. First, Orlando Ventura and Thomas held that a reviewing court should ordinarily remand rather than pass upon a matter that is (1) primarily committed to the BIA's discretion, and (2) has not yet been considered by the BIA. See Orlando Ventura, 537 U.S. at 16-17, 123 S.Ct. 353; Thomas, 126 S.Ct. at 1615. Neither of these conditions is present in this case. We, rather than the BIA, have primary authority under Chevron to determine whether a particular agency interpretation is consistent with the unambiguously expressed intent of Congress. See, e.g., Cardoza-Fonseca, 480 U.S. at 447-48, 107 S.Ct. 1207.

Second, the BIA has had ample opportunity to consider the statutory interpretation question in the first instance. The per se rule that we now invalidate was first announced by the BIA in 1997, in its opinion in C-Y-Z-, 21 1. & N. Dec. at 915. In 2005, we remanded this case to the BIA to give it the opportunity to reconsider whether the rule in C-Y-Z- could find support in the language of § 601(a). See Lin, 416 F.3d at 187. On remand, DHS explicitly argued to the BIA that its per se rule was foreclosed by the plain language of § 601(a) and the statutory scheme. A majority of the BIA considered and rejected this argument over the forceful, and persuasive, objections of a minority of the Board. See S-L-L-, 24 I. & N. Dec. at 15-21 (Filppu, B.M., concurring and dissenting). We see no reason to remand yet again—ping pong style— when the BIA has had ten -years and several opportunities to reconsider a rule that has no basis in statutory text.