Immigration law.

• Author: Riordan, Katherine F.

Withholding Automatic Asylum for Spouses or Partners of Victims of China's Coercive Family--Planning Policies--Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d Cir. 2007)

Section 601(a) of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act (INA) definition of "refugee" to include victims of coercive family-planning policies. (1) In the 1997 decision In re C-Y-Z-, (2) the Board of Immigration Appeals (BIA) interpreted section 601(a) to extend protection to the victim's spouse, offering automatic refugee status to both individuals. (3) Since then, circuit courts have disagreed over whether C-Y-Z-'s holding also extends automatic asylum to the victim's common-law spouse, unmarried partner, or fiance. (4) In Shi Liang Lin v. U.S. Dep't of Justice, (5) the Second Circuit Court of Appeals considered whether section 601(a) confers automatic refugee status on a victim's unmarried partner. (6) The Second Circuit not only declined to impute automatic refugee status to a victim's unmarried partner, but also abrogated C-Y-Z- as applied to a victim's legal spouse. (7) The court held that neither the victim's spouse nor unmarried partner are per se refugees, and that to obtain asylum, such applicants must demonstrate their own persecution under China's coercive policies. (8)

Three Chinese citizens, Shi Liang Lin, Zhen Hua Dong, and Xian Zou, sought asylum under section 601(a) by virtue of their unmarried partners' forced abortions. (9) In each case, the immigration judge denied the application and held that the C-Y-Z- holding does not apply to a victim's boyfriend or fiance. (10) After the BIA summarily affirmed each decision, petitioners appealed to the Second Circuit, which consolidated the petitions, reviewed them, and remanded them to the BIA. (11) The Second Circuit noted that because, in deciding C-Y-Z-, the BIA failed to provide reasoning for extending section 601(a) to a victim's spouse, the court could not logically determine whether a victim's unmarried partner should enjoy such protection. (12) The court therefore remanded the petitions and ordered the BIA to explain its reasoning in C-Y-Z and to clarify whether section 601(a) extends to a victim's unmarried partner as well as her spouse. (13)

On remand, the BIA reaffirmed C-Y-Z-, as applied to legal spouses, but declined to extend per se eligibility to a victim's unmarried partner. (14) The BIA reasoned that the underlying purpose of section 601(a) is to protect the victim and the spouse as a marital unit. (15) It held, however, that this protection only extends to a victim's legal spouse and that unmarried partners, such as the petitioners, must claim asylum under section 601(a)'s "other resistance" clause. (16)

After the BIA's decision on remand, the Second Circuit ordered sua sponte an en banc rehearing to consider whether section 601(a) is ambiguous such that courts must defer to the BIA's ruling under the Chevron doctrine and whether the BIA reasonably construed section 601(a) to offer automatic asylum to a victim's spouse but not to an unmarried partner. (17) The court held that section 601(a) is not ambiguous, and therefore, the BIA impermissibly construed the statute. (18) Not only did the Second Circuit hold that section 601(a) does not apply to a victim's unmarried partner, but it also abrogated C-Y-Z-, holding that even a victim's legal spouse lacks automatic protection under the provision. (19) As a result, in the Second Circuit, only direct victims of coercive family-planning policies are per se refugees under section 601(a). (20) To attain asylum under the provision, victims' spouses and partners must demonstrate other resistance to a coercive family-planning policy or a well-founded fear of persecution based on such resistance. (21)

Prior section 601(a)'s enactment, INA [section] 101(a)(42) limited refugee status to aliens who had suffered persecution by their national government or had a well founded fear of such persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. (22) Prior to section 601(a), coerced abortions and sterilization did not constitute persecution because such procedures were part of China's uniform family-planning policy designed to rectify its overpopulation problem. (23) In 1996, concerned by what it considered a serious human rights abuse, Congress passed section 601(a), which specifically classified forced abortions or sterilization as political persecution. (24) The following year, the BIA issued C-Y-Z-, applying automatic refugee status to a victim's spouse. (25) Under C-Y-Z-, a physically unharmed applicant could establish his own persecution by virtue of his spouse's direct victimization, such that a wife's forced abortion is an act of persecution against her husband as if he was a direct victim. (26)

Prior to Shi Liang Lin, courts that considered whether section 601(a) extends to a victim's spouse invoked the Chevron doctrine and deferred to the BIA's interpretation in C-Y-Z-. (27) Chevron's two-step test directs courts to defer to an agency's statutory construction if the statute is silent or ambiguous with respect to the issue and if the agency's construction is reasonable. (28) Prior to Shi Liang Lin, circuit courts applied this test and agreed that section 601(a) is ambiguous with respect to spouses; they also agreed that in C-Y-Z-, the BIA reasonably construed the provision to protect spouses because a victim's forced abortion or sterilization may impact the spouse's child-rearing opportunities and may cause the spouse to suffer emotional and psychological trauma. (29) As they consider the scope of C-Y-Z-'s application, however, circuit courts disagree over whether the holding extends beyond legal marriages to protect a victim's common-law spouse, unmarried partner, or fiance. (30) The Ninth and Sevenths Circuits apply C-Y-Z- to a victim's common-law spouse where the couple participates in a traditional marriage ceremony, but the marriage is void under China's restrictive marriage-age laws. (31) In contrast, the Third Circuit distinguishes between legal and common-law spouses and limits C-Y-Z- to marriages that are legal under Chinese law. (32)

In In re S-L-L-, (33) the BIA sought to resolve the division among circuits, to clarify its reasoning in C-Y-Z-, and to explain its basis for extending section 601(a) protection to a victim's spouse. (34) The BIA reaffirmed C-Y-Z-, holding that the nature of the married relationship imputes the victim's persecution to her spouse. (35) However, it limited C-Y-Z- to couples who are legally married under Chinese law. (36) Refusing to extend C-Y-Z- to common-law spouses, fiances, and partners, the BIA reasoned that these relationships lack the sanctity, validity, and long-term commitment inherent in legal marriages. (37)

In Shi Liang Ling v. U.S. Dep't of Justice, the Second Circuit agreed with the BIA that section 601(a) does not protect a victim's unmarried partner. (38) The court went further, however, and abrogated C-Y-Z-, holding that section 601(a) only protects the actual victim of a forced abortion or sterilization; the victim's legal spouse, common-law spouse, or unmarried partner cannot obtain automatic asylum by virtue of the victim's persecution. (39) The court first determined that section 601(a)'s language concerning individuals subjected to China's coercive policies or persecuted for resistance is unambiguous, and that therefore, Chevron prohibits the BIA from construing the provision. (40) According to the court, by choosing the words, "person," "undergo," "he," and "she" to describe the class that section 601(a) protects, Congress clearly intended to limit protection to persons, not couples. (41) The court further reasoned that section 601(a) is merely an exception to the general rule that to obtain asylum applicants must describe a personal ordeal amounting to...