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                           Matter of J-S-, Respondent
                    Decided by Attorney General May 15, 2008

                             U.S. Department of Justice
                            Office of the Attorney General


(1) The spouse of a person who has been physically subjected to a forced abortion or
  sterilization procedure is not per se entitled to refugee status under section 601(a) of the
  Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C
  of 

 Stat. 3009-546, 3009-689, codified at section 101(a)(42) of
  the Immigration and Nationality Act, 

(a)(42) (2000). The holdings to the
  contrary in Matter of S-L-L-, 

 (BIA 2006); Matter of C-Y-Z-, 

 (BIA 1997), overruled.

(2) Persons who have not physically undergone a forced abortion or sterilization procedure
  may still qualify as a refugee on account of a well-founded fear of persecution of being
  forced to undergo such a procedure, or on account of persecution or a well-founded fear
  of persecution for failure or refusal to undergo such a procedure or for other resistance to
  a coercive population control program, or on other grounds enumerated in the Immigration
  and Nationality Act.

FOR RESPONDENT: Jianhua Zhong, Esquire, Flushing, New York; Samuel Estreicher,
Esquire, New York, New York

AMICI CURIAE: Charles A. Rothfeld, Esquire, Washington, D.C.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Gus P. Coldebella, Acting
General Counsel


                   BEFORE THE ATTORNEY GENERAL
                            (May 15, 2008)
  On September 4, 2007, pursuant to his authority under 

(h)(1)(i) (2006), Attorney General Gonzales directed the Board of
Immigration Appeals to refer to him for review its decision in Matter of J-S-
(BIA 2006). The Board’s decision was then stayed pending a decision by the
Attorney General. For the reasons set forth in the accompanying opinion, I
overrule the Board’s decisions in Matter of C-Y-Z-, 

 (BIA
1997) (en banc), and Matter of S-L-L-, 

 (BIA 2006) (en banc),
to the extent those decisions hold that the spouse of a person who has been
physically subjected to a forced abortion or sterilization procedure is per se



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entitled to refugee status under section 601(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546, 3009-689, codified at section 101(a)(42) of the
Immigration and Nationality Act, 

(a)(42) (2000). In light of
this change in the applicable legal framework, I vacate the Board and
Immigration Judge decisions denying respondent’s claims for relief and
remand this case for further proceedings consistent with this opinion.

                                      OPINION
   On September 4, 2007, Attorney General Gonzales directed the Board of
Immigration Appeals, pursuant to 

(h)(1)(i) (2006), to refer
to him for review the Board’s decision in this matter. This case was certified
for Attorney General review in order to provide a final administrative ruling
on a statutory question that has divided the Federal courts of appeals. As
explained below, that question is whether section 601(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C
of 

 Stat. 3009-546, 3009-689 (“IIRIRA”), codified
at section 101(a)(42) of the Immigration and Nationality Act, 

(a)(42) (2000) (“the Act”), can be read to confer automatic or
presumptive (hereinafter “per se”) refugee status on the spouses of persons
who have physically been subjected to a forced abortion or sterilization
procedure pursuant to a foreign government’s coercive population control
program, such as China’s “One Couple, One Child” program. The Board held
that the provision could be read to confer such status in decisions from 1997,
Matter of C-Y-Z-, 

 (BIA 1997) (en banc) (“C-Y-Z-”), and
2006, Matter of S-L-L-, 

 (BIA 2006) (en banc) (“S-L-L-”), but
that determination has not been addressed in an opinion by the Attorney
General.
   After considering the text, structure, history, and purpose of the Immigration
and Nationality Act as amended by IIRIRA, as well as the relevant
administrative and judicial decisions and the briefs submitted, I conclude that
the Department of Justice should not adhere to the Board’s decisions in C-Y-Z-
and S-L-L-. I therefore overrule the Board’s decisions in C-Y-Z- and S-L-L- to
the extent those cases hold that the spouse of a person who has been physically
subjected to a forced abortion or sterilization procedure is per se entitled to
refugee status under section 601(a) of IIRIRA. Furthermore, for the reasons
stated below, I vacate the Immigration Judge’s decision in this case and
remand for reconsideration consistent with this opinion.
   Section 601(a) of IIRIRA defines the circumstances in which the
enforcement against a person of a coercive population control program



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constitutes “persecution on account of political opinion” and thus qualifies that
person for political asylum under the Act. Section 601(a) amended the Act to
state:
      For purposes of determinations under this Act, 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.

Section 101(a)(42) of the Act.
    The year after section 601(a) was enacted, the former Immigration and
Naturalization Service (“INS”) stipulated, and the Board held, that section
601(a) provides per se refugee status not only to persons who have physically
undergone forced abortion or sterilization procedures, but also to the spouses
of such persons. See Matter of C-Y-Z-, supra. This determination later was
questioned by the INS and by some courts, see, e.g., Cai Luan Chen
v. Ashcroft, 

 (3d Cir. 2004) (Alito, J.), and in 2005 the
United States Court of Appeals for the Second Circuit directed the Board to
explain the basis for its decision in C-Y-Z-, see Shi Liang Lin v. U.S. Dep’t of
Justice, 

, 191-92 (2d Cir. 2005) (“Lin I”).
    In 2006, a divided Board reaffirmed the interpretation it adopted in C-Y-Z-
on the grounds that (i) section 601(a) is ambiguous and (ii) interpreting the
provision to confer per se refugee status to the spouses of persons who
physically undergo forced abortion or sterilization procedures best accords
with congressional intent. See Matter of S-L-L-, supra. Sitting en banc, the
Second Circuit reversed S-L-L-, holding that section 601(a) “is unambiguous
and . . . does not extend automatic refugee status to spouses or unmarried
partners of individuals § 601 expressly protects.” Shi Liang Lin v. U.S. Dep’t
of Justice, 

 (2d Cir. 2007) (en banc) (“Lin II”). The Second
Circuit’s ruling created a circuit split because it conflicted with decisions of
other courts of appeals that had deferred to the Board’s interpretation of
section 601(a) in C-Y-Z- as reasonable. Id.; see infra note 3.
    In this case, respondent is a married Chinese national whose wife remains
in China. He seeks political asylum in the United States under section 601(a)
because his wife allegedly was forced to undergo an “involuntary sterilization”
procedure. Section 101(a)(42) of the Act. Applying C-Y-Z- and S-L-L-, the
Immigration Judge agreed with respondent that section 601(a) provides
refugee status to men whose spouses are forced to undergo abortion or
involuntary sterilization procedures, but denied his application on the ground

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that the procedure performed on his wife (forced insertion and monitoring of
an intrauterine device (“IUD”)) was not a “sterilization” procedure covered by
the statute. Respondent appealed this decision to the Third Circuit, which,
upon learning of the Second Circuit’s decision in Lin II, sua sponte ordered en
banc consideration and asked the Department to brief whether it adheres to the
Board’s interpretation of section 601(a) or whether it joins the Second Circuit
in rejecting the Board’s construction of section 601(a).
    After receiving the Third Circuit’s request for supplemental briefing,
Attorney General Gonzales directed the Board, pursuant to 

(h)(1)(i) (2006), to refer to him for review the Board’s decision in this
matter.1 The Attorney General’s order certifying this case for review directed
the parties to submit briefs addressing
      all relevant statutory questions, including, but not limited to, whether IIRIRA § 601(a)
      . . . is ambiguous or silent on the availability of refugee status for spouses or partners
      of individuals who have been subjected to forced abortion or sterilization, and
      whether the BIA interpretation of section 601(a) in Matter of C-Y-Z-, 

 (BIA 1997) and In re S-L-L-, 

 (BIA 2006) is correct.

In addition to the briefs I received from the parties, I received two amicus
briefs in support of respondent.2
     Respondent’s reliance on section 601(a) presents the key question in this
case: whether the Department of Justice should adhere to the Board’s
interpretation of that provision as conferring per se refugee status on the
spouses of persons who have physically been subjected to a forced abortion or
sterilization procedure. After considering the text, structure, history, and
purpose of the Act as amended by IIRIRA, as well as the relevant
administrative and judicial decisions and the briefs submitted, I conclude, as
stated above, that it should not. I therefore overrule the Board’s decisions in
C-Y-Z- and S-L-L- to the extent those cases hold that the spouse of a person
who has been physically subjected to a forced abortion or sterilization
procedure is per se entitled to refugee status under section 601(a) of IIRIRA.
It is important to emphasize that this decision does not prevent the spouse of
a person who has physically undergone a forced abortion or sterilization
procedure from qualifying for political asylum under section 601(a)’s
1
  The Third Circuit entered a final order dismissing respondent’s appeal after the court
received notice of Attorney General Gonzales’s decision to conduct further administrative
review of this case.
2
   Brief of Amici Representative Chris Smith and Former Representative Henry Hyde,
Sponsors and Drafters of Section 601 of the Illegal Immigration Reform and Immigrant
Responsibility Act; Brief of Amici the United States Conference of Catholic Bishops,
Advocates International, the Jubilee Campaign, and the National Advocacy Center of the
Sisters of the Good Shepherd.

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“failure,” “refusal,” “other resistance,” or “well founded fear” provisions set
forth above, or from obtaining asylum under other provisions of the Act, if that
person satisfies the relevant statutory criteria. My decision holds only that
spouses are not entitled to the same per se refugee status that section 601(a)
expressly accords persons who have physically undergone forced abortion or
sterilization procedures.
    Accordingly, and for the reasons stated below, I vacate as no longer
necessary to the determination of respondent’s claims the Immigration Judge’s
decision that the procedures performed on respondent’s wife are not
“sterilization” procedures that support per se asylum under section 601(a), and
remand respondent’s claims for reconsideration consistent with this opinion.

                                       I.
    Respondent was placed in removal proceedings after entering the country
without being admitted or paroled. He conceded removability but applied for
political asylum, withholding of removal to China, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,
G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (hereinafter “Convention Against Torture” or “CAT”). At
respondent’s 2004 hearing before the Immigration Judge, he testified that
Chinese officials prevented him and his wife from having more than one child
by forcing his wife to submit to medical insertion of an IUD and to report for
periodic medical visits to confirm the IUD’s continued presence and
effectiveness. Respondent said he was at home when the officials forcibly
removed his wife in order to insert the IUD, but that he “didn’t want to
interfere” because he did not want to further jeopardize his wife. After the
IUD was inserted in 1993, respondent on three separate occasions requested
permission from the Chinese family planning officials to have another child,
but his requests were denied each time. After the last denial in 1995,
respondent “gave up hope” and used false documents to enter the United States
in 2001.
    On November 8, 2004, the Immigration Judge denied respondent’s request
for asylum and withholding of removal. Respondent’s evidence of past
persecution and a well-founded fear of future persecution consisted of
documents and testimony, which the Immigration Judge found “credible,” that
he and his wife were fined for marrying below the age prescribed by China’s
coercive population control program; that his wife was forced to submit to the
insertion and monitoring of an IUD shortly after their son was born; that
family planning officials warned him that, if he and his wife tried to have

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another child, they would abort the pregnancy and permanently sterilize
respondent or his wife as they had allegedly sterilized respondent’s sister and
mother; and that respondent expected to be “fined” and/or “incarcerated” if
returned to China because he could not prove that he left the country legally.
    In her oral decision, the Immigration Judge emphasized respondent’s
testimony that he came to the United States partly “for financial reasons,” as
well as his admissions that he (i) “did not violate [China’s] birth control
planning policies” and (ii) “waited some eight years after the events in
question before . . . coming to the United States.” The Immigration Judge
stated further that respondent had provided no evidence that, “during the eight
years that he remained in the People’s Republic of China . . . he was the victim
of any persecution or repercussions,” such as arrest, “that would establish any
past persecution on account of any enumerated ground” in the Act or IIRIRA.
The Immigration Judge explained:
      In this particular case, the only one reality appears to be that [respondent’s] wife was
      forced to undergo insertion of an intrauterine device. And, it’s clear that this, in and
      of itself, cannot be the basis to establish a claim for asylum based on past persecution.
      The forcible insertion of an intrauterine device is not tantamount to sterilization nor
      to abortion. . . . While the concept of [respondent’s] wife being forced to undergo an
      insertion of an intrauterine device may be repugnant, offensive, even unlawful, or
      unfair, and may be viewed as such by some individuals, this, in and of itself, does not
      constitute persecution per se, and does not meet the definition of refugee.

Accordingly, the Immigration Judge denied respondent’s application for
asylum and ordered him removed to the People’s Republic of China.
    On February 24, 2006, the Board affirmed the Immigration Judge’s
decision without opinion and respondent appealed to the Third Circuit.
Respondent’s appeal was fully briefed and scheduled for submission to a panel
when, in July 2007, the Second Circuit issued its en banc decision rejecting
C-Y-Z-’s and S-L-L-’s per se rule of spousal eligibility and departing from the
decisions of several courts of appeals that had deferred to the Board’s
interpretation of section 601(a) in C-Y-Z-.3 See Lin II, 

.
    The Second Circuit in Lin II reversed the Board’s interpretation of section
601(a) in C-Y-Z-and S-L-L-, concluding, as other circuits had not, that the text
of section 601(a) is neither silent nor ambiguous on the question of spousal
eligibility. Accordingly, the Second Circuit did not focus on whether the

3
  See, e.g., Chen Lin-Jian v. Gonzales, 

 (4th Cir. 2007); Junshao Zhang
v. Gonzales, 

 (7th Cir. 2006); Wang He v. Ashcroft, 

(9th Cir. 2003); Guang Hua Huang v. Ashcroft, 

 (6th Cir. 2004)
(unpublished opinion); Gong Fu Li v. Ashcroft, 

 (5th Cir. 2003)
(unpublished per curiam opinion).


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Board’s per se rule was “a permissible construction” of the statute under step
two of the interpretive framework in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 

 (1984). Instead, Lin II
concluded that section 601(a)’s forced abortion and sterilization provisions
unambiguously foreclose an interpretation that accords per se refugee status
to the spouses of persons who physically undergo such procedures. See Lin II,

. Having reached this conclusion based on section
601(a)’s text, the court declined to defer to the Board’s interpretation, although
the court did observe in dictum that the legislative history and policy on which
the Board relied also did not support the Board’s reading of the statute. See 

.
    After ordering en banc consideration of respondent’s appeal, the Third
Circuit directed the parties to brief whether that circuit should “adopt any or
all of the reasoning announced in” Lin II. See J-S- v. Att’y Gen. of the
United States, No. 06-1952 (3d Cir. July 27, 2007). Respondent urged the
Third Circuit to defer to the Board’s interpretation of section 601(a) in C-Y-Z-
and S-L-L- and reject the Second Circuit’s reasoning in Lin II. The
Government did not file a response because the Third Circuit dismissed
respondent’s appeal following receipt of Attorney General Gonzales’s
certification order.

                                            II.
    Respondent appeals the Immigration Judge and Board decisions denying
his application for asylum solely under section 601(a) of IIRIRA.4 The key
question in this case is whether the Department of Justice should adhere to the
Board’s interpretation of section 601(a) in C-Y-Z- and S-L-L- as conferring
per se refugee status on the spouses of persons who have physically been
subjected to a forced abortion or sterilization procedure. For the reasons stated
in this opinion, I conclude it should not.




4
  The only alternative claim respondent raised below was a claim under the Convention
Against Torture. In order to qualify for protection from removal under the CAT, an
applicant must establish that “it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 

(c)(2) (2008). The
Immigration Judge concluded that respondent did not satisfy this standard, and respondent
does not challenge this determination in his current brief.


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                                            A.
   An alien seeking political asylum in the United States must establish that
he or she is a refugee. Section 208(b)(1)(A) of the Act, 

(b)(1)(A) (2000). Section 101(a)(42) of the Act defines a “refugee” as
      any person who is outside any country of such person’s nationality . . . and who is
      unable or unwilling to return to, and is unable or unwilling to avail himself or herself
      of the protection of, that country because of persecution or a well-founded fear of
      persecution on account of race, religion, nationality, membership in a particular social
      group, or political opinion.

Section 101(a)(42) of the Act (emphases added).
    As noted, section 601(a) of IIRIRA amended section 101(a)(42) of the Act
to specify the circumstances in which victims of coercive population control
programs could qualify for political asylum:
      For purposes of determinations under this Act, 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.

 (emphasis added). Section 601(a) thus created four new and specific
classes of refugees:
      1. “person[s] who ha[ve] been forced to abort a pregnancy”;
      2. “person[s] who ha[ve] been forced . . . to undergo involuntary sterilization”;
      3. “person[s] . . . who ha[ve] been persecuted for failure or refusal to undergo such
         a procedure or for other resistance to a coercive population control program”; and
      4. “person[s] who ha[ve] . . . a well founded fear that [they] will be forced to undergo
         such a procedure or subject to persecution for such failure, refusal, or resistance.”

    The third and fourth categories above specifically accord refugee status to
persons who have not physically undergone forced abortion or sterilization
procedures if such persons can prove (i) past persecution for “fail[ing] or
refus[ing]” to “undergo” a forced abortion or sterilization procedure; (ii) past
persecution for some “other resistance” to a coercive population control
program; or (iii) a “well founded fear” that they will be forced to undergo an
abortion or involuntary sterilization procedure, or will be persecuted for failing
or refusing to undergo such a procedure or for otherwise “resisting” a coercive
population control program. Persons such as respondent thus may be able to
qualify for asylum under these categories upon an appropriate factual showing.

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    The question remains, however, whether persons such as respondent—i.e.,
persons who have not physically undergone a forced abortion or sterilization
procedure—can also qualify for asylum under the first and second categories
above. Respondent argues that they can, and that he personally qualifies for
asylum under category two (“forced . . . to undergo involuntary sterilization”),
pursuant to the per se rule of spousal eligibility set forth in C-Y-Z- and S-L-L-.
That rule begins with the uncontroversial proposition that categories one and
two accord per se refugee status to any individual who has physically
undergone a forced abortion or sterilization procedure because all such
persons should be presumed to have been persecuted for resisting a coercive
population control program. However, the rule goes on to encompass the
much more doubtful proposition, which respondent invokes here, that the
spouse of any individual who physically undergoes one of the referenced
procedures is also entitled to per se refugee status. Respondent defends this
position on the ground that section 601(a)’s text is silent on the question of
spousal eligibility, and accordingly should be construed to permit his claim of
past persecution under the “joint spousal persecution” theory underlying the
Board’s per se rule.5 The Department of Homeland Security (“DHS”)
contends that I should adopt the Second Circuit’s reasoning in Lin II and
conclude that the text of the relevant provision unambiguously forecloses
respondent’s claim and compels reversal of the interpretation set forth in the
Board decisions in C-Y-Z- and S-L-L-.
    The text of section 601(a) is the first, and most important, basis for my
rejection of the per se rule of spousal eligibility the Board adopted in C-Y-Z-
and S-L-L-. The “language employed by Congress and the assumption that the
ordinary meaning of that language accurately expresses the legislative
purpose” cut strongly against the statutory interpretation respondent urges and
the Board has adopted. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 

 (1985). Section 601(a)’s forced sterilization provision refers to “a
person who has been forced to . . . undergo involuntary sterilization.” Section
101(a)(42) of the Act (emphases added). Consistent with ordinary usage and
the Act’s definition of the term, “a person” refers to “an individual” and,
specifically here, the individual who has “undergo[ne]” the sterilization



5
  According to this theory, a forced abortion or sterilization procedure performed on one
spouse should be “‘imputed’” to the other spouse because the procedure causes both spouses
emotional and other suffering, and because “‘the law considers’” the “‘reproductive
opportunities’” of one spouse “‘to be bound up’” with the “‘reproductive opportunities’” and
harms of the other. See Matter of S-L-L-, supra, at 8 (quoting Cai Luan Chen v. Ashcroft,

 (3d Cir. 2004)).


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procedure at issue. See Section 101(b)(3) of the Act, 

(b)(3)
(2000) (defining the term “a person” for purposes of title I of the Act, which
includes section 101(a)(42), to mean “an individual or an organization”); Lin
II, 

 (“[T]he language Congress employed in § 601(a)[’s forced
abortion and sterilization provisions] demonstrates that it wanted to cover ‘a
person,’ not ‘a couple,’ not a ‘significant other’ and not an ‘intimate friend.’”).
Furthermore, “undergo” means “to submit to,” e.g., Merriam Webster’s
Collegiate Dictionary 1288 (10th ed. 1994), and in the medical context, a
person who “undergoes” a procedure is the person upon whom the procedure
is physically performed, see, e.g., Milton Hollenberg et al., Predictors of
Postoperative Myocardial Ischemia in Patients Undergoing Noncardiac
Surgery, JAMA, vol. 268, no. 2 (July 8, 1992); Lin, 

.
Accordingly, reading section 601(a)’s involuntary sterilization provision to
refer only to persons who have themselves undergone forced sterilization
procedures interprets the statute in the manner that gives its words “their
‘ordinary or natural’ meaning,” whereas interpreting it to include spouses does
not. E.g., Leocal v. Ashcroft, 

 (2004) (quoting Smith
v. United States, 

 (1993)); see also INS v. Cardoza-Fonseca,

 (1987) (“With regard to this very statutory scheme [the
Act], we have considered ourselves bound to ‘“assume that the legislative
purpose is expressed by the ordinary meaning of the words used.”’” (quoting
INS v. Phinpathya, 

 (1984) (quoting American Tobacco Co.
v. Patterson, 

 (1982)))).
     The same may be said of the statute’s reference to “a person forced to abort
a pregnancy.” For the reasons set forth above, this clause is properly read to
refer to the person physically forced to abort the pregnancy (the would-be
mother) because the clause refers to “a person forced to abort a pregnancy,”
and not to “a couple” or “a married couple” forced to do so. Section 601(a)’s
subsequent description of an abortion as a “procedure” that “a person” is
forced to “undergo” further supports this reading. Because this latter
description of a forced abortion can naturally be read only to refer to one
person—the person upon whom the “procedure” is physically performed—it
would be inconsistent with the text and structure of section 601(a) to read the
opening clause on abortion to encompass two people (the would-be mother and
the would-be father). See, e.g., King v. St. Vincent’s Hosp., 

(1991) (stating that it is a “cardinal rule that a statute is to be read as a whole
since the meaning of statutory language, plain or not, depends on context”
(citation omitted)); Davis v. Michigan Dep’t of Treas., 

(1989) (same). As the Second Circuit explained in Lin II, “Congress’s specific
designation of some persons (i.e., those who fear, resist, or undergo particular
medical procedures)” as refugees eligible for political asylum “is incompatible
with the view that others (e.g., their spouses) should also be granted asylum


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per se” regardless whether they fall within one of the specific refugee classes
enumerated in the statute. Lin II, 

 (“The inclusion of some
obviously results in the exclusion of others.”). Had Congress wanted to
include spouses in section 601(a)’s forced abortion and sterilization provisions,
“‘it could simply have said so.’” 

 at 305 (quoting Hartford Underwriters
Ins. Co. v. Union Planters Bank, N.A., 

 (2000)).
    The foregoing textual evidence that section 601(a)’s forced abortion and
sterilization clauses extend refugee status only to those persons who have
physically undergone the referenced procedures is bolstered by reading section
601(a) in harmony with other provisions of the Act conferring refugee status.
See, e.g., King v. St. Vincent’s Hosp., 

. The per se rule of
spousal eligibility the Board attributes to section 601(a) is difficult to reconcile
with the Act’s separate and express provision specifying that “spouse[s]” of
persecuted individuals are eligible for derivative asylum if such spouses do not
themselves qualify as refugees, but only if they “accompany[], or follow[] to
join,” the alien who is eligible for, and is actually granted, asylum. Section
208(b)(3)(A) of the Act. Interpreting section 601(a) to confer per se refugee
status on all spouses of persons who have undergone forced abortion or
sterilization procedures, even spouses who do not themselves qualify as
refugees and are not accompanied by a qualifying alien, circumvents with an
implied rule the requirements for derivative asylum that the Act expressly sets
forth in section 208(b)(3)(A).
    Such an interpretation of section 601(a) also departs from, and creates
tension with, the Act’s general requirement that every applicant for personal
asylum (as distinct from statutorily prescribed derivative asylum) must
establish his or her own eligibility for relief under specific provisions of the
statute. See section 208(b)(1)(B)(i) of the Act (providing that the “burden of
proof is on the applicant” to “establish that the applicant is a refugee”
(emphasis added)); INS v. Elias-Zacarias, 

 (1992) (stating
that “‘persecution on account of . . . political opinion’ in § 101(a)(42) is
persecution on account of the victim’s political opinion,” not on account of the
political opinion of someone else). The interpretation of section 601(a) I adopt
in this opinion avoids this “critical defect” in the Board’s per se rule because
it does not “effectively absolve[] large numbers of asylum applicants of the
statutory burden to prove” that they themselves have either been persecuted,
or have a well-founded fear of being persecuted, on account of their political
opinion. Lin II, 

.
    In concluding that section 601(a) does not support the per se rule of spousal
eligibility the Board adopted in C-Y-Z- and S-L-L-, I recognize that section
601(a) does not explicitly exclude spouses from its purview. I also recognize
that several courts, along with the Board, emphasized this in accepting various
arguments for interpreting section 601(a) in a manner that brings spouses


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within the purview of the provision’s forced abortion and sterilization clauses.
The starting point for all such arguments is that, because section 601(a) does
not expressly address the refugee status of spouses one way or the other, it is
improper to conclude that the statute unambiguously forecloses interpretations
that would support the per se rule of spousal eligibility the Board adopted in
C-Y-Z-.
    Any court that accepted this starting point was limited to reviewing
whether the Board’s approach represented a “reasonable” interpretation of the
statute, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

, which some courts concluded it was.6 My review of the Board’s
interpretation of section 601(a), however, is not so limited. The appellate
courts that reviewed the per se rule established in C-Y-Z- were bound to accept
the Board’s interpretation of section 601(a) if they concluded that that
interpretation was not “unambiguously foreclosed” by the statutory text and
could be considered “reasonable” under the broad standard applied by the
Supreme Court. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 

 (2005). My review of Board decisions, by
contrast, is plenary. See, e.g., section 103(a)(1) of the Act, 

(a)(1) (Supp. IV 2004) (“[T]h[e] determination and ruling by the
Attorney General with respect to all questions of law shall be controlling.”);
Matter of D-J-, 

 (A.G. 2003) (Attorney General’s review
of a Board decision is de novo; delegated authority of the Board is superseded
and Attorney General is “authorized to make the determination based on [his]
own conclusions on the facts and the law”). Accordingly, I need not opine on
the circuit split regarding the proper outcome of Chevron’s two-step judicial
6
  These courts appear to have reached this conclusion based on one of two theories. First,
that “‘the forced sterilization [or abortion procedure performed on] a wife could be
“imputed” to her husband, “whose reproductive opportunities the law considers to be bound
up with those of his wife.”’” Matter of S-L-L-, supra, at 8 (quoting Judge Alito’s panel
opinion in Cai Luan Chen, 

 (quoting Jie Lin v. Ashcroft, 

(9th Cir. 2004), in which the Ninth Circuit concluded that forced sterilization of a wife could
reasonably be “imputed” to her husband, “whose reproductive opportunities the law
considers to be bound up with those of his wife”)). And, second, that “persecution of one
spouse by means of a forced abortion or sterilization causes the other spouse to experience
intense sympathetic suffering that rises to the level of persecution.” Matter of S-L-L-, supra,
at 7 (stating that “the ruling in Matter of C-Y-Z- is plausibly based on” the theory of
“sympathetic suffering” the Third Circuit identified in Cai Luan Chen, as well as on the fact
that the “PRC Government explicitly imposes joint responsibility on married couples for
decisions related to family planning” such that its decision to “force an abortion or
sterilization” can reasonably be considered “persecut[ion] [of] the married couple as an
entity”); see also Cai Luan Chen, 

-26 (citing cases in which the “‘mental
suffering’” that an asylum seeker endured from “‘being forced to witness the pain and
suffering of’” a close family member constituted persecution of the asylum seeker (quoting
Abay v. Ashcroft, 

 (6th Cir. 2004))).

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test for reviewing Board decisions in order to reverse the C-Y-Z- and S-L-L-
interpretation of section 601(a) as erroneous.
    As I have explained, I reach this result first and foremost because neither
C-Y-Z- nor S-L-L- addresses what I consider to be the proper reading of section
601(a)’s plain text. Indeed, C-Y-Z- did not even decide the issue of per se
spousal eligibility for asylum as a contested issue. See Matter of C-Y-Z-,
supra, at 918 (concluding that “the applicant in this case has established
eligibility for asylum by virtue of his wife’s forced sterilization” because
“[t]his position is not in dispute”). The Board simply based its ruling on the
INS’s stipulation that the “‘husband of a sterilized wife can essentially stand
in her shoes,’” id., even though “[n]either the [INS] brief nor the General
Counsel’s memorandum set[] forth the reasoning behind this position on ‘joint
spousal persecution,’” id. at 928 (Filppu, concurring and dissenting).
Although DHS has abandoned the INS’s prior support for C-Y-Z-’s per se rule
on spousal eligibility as inconsistent with section 601(a)’s text and purpose, S-
L-L- reaffirmed C-Y-Z- on the grounds that C-Y-Z- was (i) “long standing”
precedent to which courts and Congress have deferred and (ii) consistent with
the “policy” and “intent” behind section 601(a). Matter of S-L-L-, supra, at 4­
8. Neither of these grounds persuades me to affirm the per se rule of spousal
eligibility the Board majority embraced in S-L-L-.
    Respect for precedent is undeniably important for any adjudicative body.
But it does not prevent the Department of Justice from reversing
administrative decisions when there is good reason for doing so. Indeed, the
Supreme Court has emphasized that one of the primary purposes of
Chevron deference is to allow agencies to do just that. See Nat’l Cable
& Telecomms. Ass’n v. Brand X Internet Servs., 

 (stating
that courts must defer to agency interpretations as those interpretations evolve
in response to, inter alia, “changed factual circumstances” or “reversal of
agency policy”); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

 (emphasizing that an “agency . . . must consider varying
interpretations and the wisdom of its policy on a continuing basis”).
Accordingly, that several courts have deferred to the Board’s interpretation of
section 101(a)(42) of the Act as amended by IIRIRA does not alter my
decision to reverse that interpretation as unsupported by the provision’s text,
structure, history, and purpose.7
    My decision is similarly unaffected by the fact that Congress,
presumptively aware of the Board’s interpretation of section 601(a), in 2005
amended the statutory limit on the number of refugees who may be admitted

7
  In addition, because it is important that administration of the Act be consistent throughout
the country, administrative stare decisis principles carry less weight where, as here, Federal
courts have divided on whether an administrative decision is correct and entitled to
deference.

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pursuant to section 601(a), but did not otherwise alter the provision’s text. See
REAL ID Act of 2005, Div. B of 

(g)(2), 

, 305 (repealing former section 207(a)(5) of the Act, 

(a)(5)
(2000)). Because “Congress takes no governmental action except by
legislation,” what respondent and others view as Congress’s 2005
acquiescence-by-inaction in the statutory interpretation espoused in C-Y-Z-
could also, to use the Supreme Court’s words, “appropriately be called
Congress’s failure to express any opinion” on the then-current agency
interpretation of the statute. Rapanos v. United States, 

(2006) (emphasizing the Court’s “oft-expressed skepticism towards reading
the tea leaves of congressional inaction”); see also Matter of S-L-L-, supra, at
14 n.2 (Pauley, concurring) (“I do not read into [Congress’s recent] elimination
[of the annual cap] congressional approval of Matter of C-Y-Z-, but instead
merely a practical recognition that, over the years, the unrealistically low cap
had produced an unhealthy backlog of applicants awaiting permanent asylee
status, including those women and men who themselves had been forcibly
sterilized or aborted.”). Moreover, even if the lack of congressional reaction
to C-Y-Z- were to undercut the argument that section 601(a) “unambiguously
forecloses” the Board’s interpretation for purposes of Chevron deference, it
“does not definitively mean that Congress intended to protect spouses,” Lin II,

 (Katzmann, J., concurring in the judgment), and certainly does
not require section 601(a) to be read to accord spouses per se refugee status.
Accordingly, nothing in Congress’s 2005 inaction precludes my interpretation
of section 601(a).
    The Board’s discussion of section 601(a)’s “policy” and “intent” also does
not persuade me to support its per se rule of spousal eligibility. See Matter of
S-L-L-, supra, at 5-8. Asserting that section 601(a)’s text provides “no clear
or obvious answer to the scope of” its protections, id. at 4, the majority in
S-L-L- reasoned that the per se rule in C-Y-Z- can be justified based on an
examination of the provision’s purpose in light of the “nexus and level of
harm” the Act requires for asylum:
      When considered in light of the reasons Congress expanded the refugee protections
      to include persecution based on coercive family planning, and the well-established
      principles regarding nexus and level of harm for past persecution, we understand the
      husband, as well as the wife, to have been subjected to the coercive family planning
      policy when the government forces an abortion [or sterilization] on a married couple.

Id. at 6. I disagree.
    The “nexus and level of harm” to which the Board refers is the connection
(nexus) that section 101(a)(42) of the Act requires between an asylum seeker’s
“race, religion, nationality, membership in a particular social group, or
political opinion” and the persecution (level of harm) that he or she suffered


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or has a well-founded fear of suffering “on account of” such characteristics,
membership, or opinion. In 1989 and 1993, the Board held that persecution
on account of a person’s response to a coercive population control program
does not establish eligibility for asylum under section 101(a)(42) because such
persecution is not “on account of . . . political opinion” or any other ground
enumerated in the statute. See Matter of Chang, 

 (BIA 1989);
Matter of G-, 

 (BIA 1993). In response to these
decisions, see H.R. Rep. 104-469(I), at 173-74 (1996), Congress passed the
language in section 601(a) of IIRIRA that amended section 101(a)(42) to state
that a person “shall be deemed to have been persecuted on account of political
opinion” if that person was forced (or has a well-founded fear of being forced)
to “undergo” an abortion or sterilization “procedure” or if he or she was (or
has a well-founded fear of being) persecuted for “failure or refusal to undergo
such a procedure or for other resistance to” a coercive population control
program. Section 101(a)(42) of the Act (emphases added).
    The relationship between the foregoing language and the underlying
“nexus and level of harm” that section 101(a)(42) of the Act requires is clear.
Section 601(a) “deem[s]” the nexus and level of harm required for political
asylum under section 101(a)(42) to be satisfied if “a person” has been, or has
a well-founded fear of being, “persecuted” for engaging in various forms of
“resistance” to a coercive population control program. Section 101(a)(42) of
the Act; see also REAL ID Act, § 101(g)(2), 199 Stat. at 305 (characterizing
section 601(a)’s amendment to section 101(a)(42) of the Act as a provision for
“persons resisting coercive population control” (emphasis added)). The reason
section 601(a) makes an applicant’s “resistance” to a coercive population
control program the trigger for refugee status is obvious: If mere enforcement
of a coercive population control program were the trigger, most of China’s
population would qualify as refugees under the provision. That is not what
section 601(a) provides. Section 601(a) extends political asylum to persons
who have been, or who have a well-founded fear of being, “persecuted on
account of” their “resistance” to a coercive population control program.
Section 101(a)(42) of the Act. It then spells out that certain specific
persons—namely, persons who are “forced to undergo” abortion or
sterilization “procedure[s]” required by a coercive population control
program—are per se considered to have engaged in the kind of “resistance”
necessary for asylum. Id. By contrast, persons who cannot show they have
undergone such procedures must prove persecution or a well-founded fear of
persecution for “fail[ing] or refus[ing]” to undergo such procedures or for
some “other resistance” to a coercive population control program to qualify as
refugees. Id.
    The fatal flaw in the per se approach to spousal eligibility under section
601(a) is that it ignores the foregoing analysis and simply assumes the


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requisite statutory “nexus and level of harm” in all cases where the asylum
seeker is married to a person who was forced to undergo an abortion or
involuntary sterilization procedure. Section 601(a) does not permit this
blanket assumption for good reason: Some spouses may not have “resisted,”
and in fact may have affirmatively supported, the forced abortion or
sterilization procedure that was performed on the spouse who remains in
China. Such applicants should not (and as I read section 601(a) cannot) use
the sole fact of their spouse’s persecution automatically to qualify for political
asylum under the statute’s coercive population control “resistance” provisions.
Instead, such applicants must present proof, of which their spouse’s treatment
may be a part, of persecution for refusing to undergo forced abortion or
sterilization procedures or for engaging in “other resistance” to a coercive
population control program, or of persecution on account of another ground for
asylum enumerated in the Act. The Board recognized the point that not all
spouses oppose coercive procedures in S-L-L- and insisted that the rule it
announced in C-Y-Z- “was not intended to, and does not, include” cases where
the applicant supported or acquiesced in the coercive procedure physically
performed on his or her spouse. Matter of S-L-L-, supra, at 8. This assertion,
however, does not accord with the Board’s holding that, “absent evidence”
that the spouse seeking asylum affirmatively supported or acquiesced in the
coercive procedure performed on his or her partner, the Board will continue
to “interpret the forced abortion and sterilization clause of section [601(a)], in
light of the overall purpose of the amendment, to include both parties to a
marriage.”8 Id. (emphasis added) (expressly rejecting an approach that would
require some demonstrable resistance by one spouse to the other spouse’s
abortion or sterilization for that spouse to qualify for direct asylum in his or
her own right under section 601(a)).


8
  I agree with Board Member Filppu that the above-referenced flaw in the Board’s approach
is “further illustrated in its treatment of ‘boyfriends, fiancés, and other unmarried partners.’”
Matter of S-L-L-, supra, at 19 (Filppu, concurring and dissenting) (quoting the majority
opinion at 8). As Member Filppu explains, the Board “rel[ies] on its construct of family
entity persecution” to “craft[ ] a rule that treats a father as ‘a person who has been forced to
abort a pregnancy’ if the father is both legally married to the woman who was forced to
undergo such a procedure and if the father opposed the abortion.” Id. However, the majority
never justifies “how a father ceases to be ‘a person’ forced to abort a pregnancy when it
comes to unmarried”—or, to complicate the situation further, divorced or otherwise
separated—partners. Id. Although the Board provides plausible “policy reasons for
‘drawing the line at marriage,’ and for refusing to extend to a boyfriend or fiancé ‘the nexus
and level of harm’ it attributes to a husband,” I agree with Member Filppu that this “entire
discussion is only necessary because of the underlying [joint spousal] rule it invents in the
first place.” Id. (quoting the majority opinion at 9).


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    In cases where the physically persecuted spouse remains in China, there
will rarely be affirmative evidence that the spouse seeking per se refugee status
supported or failed to resist the coercive procedure at issue. Moreover, unless
Immigration Judges presume that the Chinese Government is aware of what
would normally be a “private family dispute” over whether the physically
victimized spouse should submit to an abortion or sterilization procedure
required by a coercive population control program, it is “impossible to
understand” the Board’s conclusion that the Chinese Government’s use of such
abortion and sterilization procedures should be understood to “punish ‘the
married couple as an entity’ only in those cases where there is joint opposition
to the abortion [or sterilization].” Matter of S-L-L, 

 (Filppu,
concurring and dissenting) (emphasis added) (noting that the majority’s
concession that certain spouses fall outside the per se rule is fundamentally in
tension with its assertion that section 601(a)’s forced abortion and sterilization
clauses pertain to “the married couple as an entity”).
    For all the foregoing reasons, I conclude that, at least as to political asylum
or withholding of removal claims predicated on the enforcement of coercive
population control programs,9 the ordinary meaning of the statutory term
“resistance,” coupled with the text of section 101(a)(42) of the Act, as
amended by IIRIRA, and settled principles of asylum law, does not support the
per se rule of spousal eligibility the Board adopted in C-Y-Z- and reaffirmed
in S-L-L-. This conclusion, like the text of section 601(a) itself, simply reflects
the logic of limiting per se refugee status to persons who have physically
undergone a coercive birth control procedure. As the Board itself conceded
in S-L-L-, unlike a person who has physically undergone a forced abortion or
sterilization procedure, the spouse of such a person may or may not have
“resist[ed]” the procedure (and, thus, the coercive population control program
pursuant to which the procedure was performed) in the manner the Act
requires for asylum. Matter of S-L-L-, supra, at 8 (conceding that “C-Y-Z- was
not intended to, and does not,” provide “asylum for husbands who were not,
in fact, opposed to a spouse’s abortion”). If this is true, which the text,
structure, history, and purpose of the relevant statutory provisions demonstrate

9
  I agree with DHS that what the Act means by the phrase “persecution on account of . . .
political opinion” is a “complex issue that need not be fully resolved here” because this case
does not concern the application of that phrase in contexts other than political asylum
claims predicated on “persecution” for “resisting” a coercive population control program.
Accordingly, I confine my analysis to that context, and do not purport to address
whether the phrase would support a per se rule in other contexts such as, for example,
Judge Calabresi’s hypothetical in which the Board interprets section 101(a)(42) to support
a rule that “any child who sees his parents tortured and murdered before him by a
totalitarian government—say, the Nazis—is persecuted, and therefore eligible for asylum.”
Lin II, 

 (Calabresi, J., concurring and dissenting).

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it is, the spouse of the physical victim of such a procedure is not someone who
can be considered per se to have faced, or to have a well-founded fear of
facing, “persecution” “on account of” “resisting” a coercive population control
program under section 101(a)(42) of the Act based solely on the fact that he
or she is married to the victim. See Lin II, 

; Matter of
C-Y-Z-, supra, at 928-29 (Filppu, concurring and dissenting).
     Accordingly, from now on,10 the Board and Immigration Judges shall cease
to apply the per se rule of spousal eligibility articulated in C-Y-Z- and S-L-L-

10
    In his concurrence in S-L-L-, Board Member Pauley stated that although he believed
C-Y-Z- “was wrongly decided,” he would not overrule it because “it is too late in the day for
the Board to upset the apple cart” and overruling the decision could enable DHS to “seek
termination of [existing grants of] asylum under section 208(c)(2)(A)” of the Act on the
grounds that the new interpretation constitutes a “fundamental change in circumstances.”
Matter of S-L-L-, supra, at 14 & n.2 (Pauley, concurring).
     I agree with the en banc Second Circuit that reversal of the statutory interpretation set
forth in C-Y-Z- should not be considered a “fundamental change in circumstances” that
would allow DHS to terminate existing final grants of asylum under the regulations
implementing section 208(c)(2)(A) of the Act. See Lin II, 

 (stating that the
regulations permit DHS 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 . . .
political opinion in the country from which deportation or removal was withheld ’” (quoting

(b)(1))). Specifically, just as courts have concluded that a “change in
United States asylum law does not qualify as a ‘change in circumstances’ sufficient to reopen
an asylum case under 

(c)(3)(ii)” based on “changed circumstances arising
in the country of nationality,” my reversal of the Board’s interpretation of section 601(a)
should “not be seen as a ‘fundamental change in circumstances’” under 

(b)(1) that allows the termination of asylum claims that have already been granted.
Lin II, 

; see also Matter of S-L-L-, supra, at 21 n.2 (Filppu, concurring and
dissenting) (“We are not now concerned with reopening past cases.”).
     My decision overruling the per se rule of spousal eligibility in C-Y-Z- and S-L-L- does,
however, apply to all cases pending now or in the future before asylum officers, the
Immigration Judges, or the Board, and to cases pending on judicial review. My decision also
applies to cases in which a motion to reconsider is filed within 30 days of a final decision.
See Matter of O-S-G-, 

 (BIA 2006) (“A motion to reconsider is a
‘“request that the Board reexamine its decision in light of additional legal arguments, a
change of law, or perhaps an argument or aspect of the case which was overlooked.”’”
(quoting Matter of Ramos, 

 (BIA 2002) (quoting Matter of Cerna,

, 402 n.2 (BIA 1991)))). And my decision applies to cases in which a final
ruling on asylum or withholding of removal was issued prior to the date of this opinion if
such cases are later reopened for reasons unrelated to the reasoning in this opinion. By
contrast, my decision shall not serve as the sole basis for reopening cases where a final grant
of asylum or withholding of removal has been made, and is subject only to the procedures
of 

(d)(6) and 1003.47 where applicable, if the time for seeking
reconsideration or judicial review has expired or such opportunities for administrative or
judicial review have already been exhausted.

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and shall instead engage in a case-by-case assessment of whether a section
601(a) applicant who has not physically undergone a forced abortion or
sterilization procedure can demonstrate that (i) he or she qualifies as a refugee
under section 601(a) on account of persecution for “failure or refusal” to
undergo such a procedure or for “other resistance” to a coercive population
control program; (ii) he or she has a well-founded fear of being forced to
undergo an abortion or involuntary sterilization procedure or of being
persecuted for failing or refusing to undergo such a procedure or for “other
resistance” to a coercive population control program; (iii) the specific facts of
his or her case justify asylum on grounds other than those articulated in section
601(a); or (iv) he or she satisfies the requirements for derivative asylum
expressly set forth in section 208(b)(3)(A) of the Act.

                                            B.
    Respondent and amici contend that, notwithstanding the analysis above, I
should affirm the Board’s per se rule of spousal eligibility on policy grounds
they argue are reflected in section 601(a)’s legislative and enforcement history.
I disagree. To the extent this history is relevant to the proper interpretation of
section 601(a), it, like section 601(a)’s underlying policy goals, are more
consistent with my interpretation than with the Board’s interpretation.
    In reaching this conclusion, I considered the portions of the legislative
history identified in the briefs, including the brief submitted by
Representatives Smith and Hyde. For several reasons, this history does not
alter my decision. Most notably, section 601(a)’s legislative history does not
expressly address whether the spouse of a person subjected to a forced
abortion or sterilization procedure is entitled to per se refugee status. The
Smith/Hyde Brief’s references to House Report and floor discussion regarding
“couples” or “women and men . . . fleeing from forced abortion” indicate that
some in Congress expected the new provision to benefit both members of a
couple where each member is able to satisfy the Act’s requirements for
asylum. But these references say nothing about whether Congress intended a
person presumptively to qualify for asylum solely on the ground that a
spouse had been physically subjected to one of the coercive procedures
specified in the legislation.11 See, e.g., H.R. Rep. No. 104-469(I), at 174-75
(1996) (referring to “a person who has been compelled to undergo an abortion

11
   The reference in the House Report to the Board’s decision in Matter of G-, supra, is not
to the contrary. The applicant in that case did not base his request solely on the threatened
sterilization of his wife, but rather on his fear that he himself would be subjected to
sterilization and other punishment (including a fine that had already been imposed on him
for having a second child) based on his violation of China’s family planning policy. See id.
at 774, 778.

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or sterilization, or has been severely punished for refusal to submit to such a
procedure,” as well as to “women . . . subjected to involuntary abortions” and
“men and women” who may be “forcibly sterilized,” and concluding that
“[t]he United States should not deny protection to persons subjected to such
treatment”) (emphases added); see also S-L-L-, 24 I&N Dec. at 18 (Filppu,
concurring and dissenting) (noting that the legislative history of section 601(a),
to the extent it focuses on particular individuals at all, appears to have focused
on women, not their spouses or partners, when addressing the issue of
extending refugee status to victims of forced procedures) (citing sources). If
anything, the House Report counsels against interpreting section 601(a) as
conferring per se refugee status on the spouses of persons expressly covered
by the provision because the report declares that section 601(a) does not
change the Act’s general requirement that applicants prove eligibility for direct
asylum on an individual basis:
      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. . . . Section [601(a)] is not intended to protect persons who
      have not actually been subjected to coercive measures or specifically threatened with
      such measures . . . .

H.R. Rep. No. 104-469(I), at 174 (emphases added).
    Respondent and amici contend also that section 601(a) should be
interpreted in light of the content of an earlier bill and proposed regulations
that were previously (and unsuccessfully) offered in response to the same
Board decisions section 601(a) ultimately addressed. Such proposals,
however, lack the force of law, and the Supreme Court has counseled against
relying upon failed legislative proposals. See, e.g., Rapanos v. United States,

. Nonetheless, I will address these failed proposals briefly
because the parties have raised them and because they further support my
interpretation of section 601(a).
    The failed bill at issue is the Emergency Chinese Immigration Relief Act
of 1989 (“ECIR”). Section 3(a) of that bill, which was vetoed by the
President, would have required that “careful consideration shall be given to . . .
an applicant who expresses a fear of persecution upon return to China related
to China’s ‘one couple, one child’ family planning policy,” and would have
directed that “[i]f the applicant establishes that such applicant has refused to
abort or be sterilized, such applicant shall be considered to have established
a well-founded fear of persecution . . . on the basis of political opinion.” H.R.
2712, 101st Cong. § 3(a) (1989) (emphases added). Section 3(b) of ECIR
would then have required the Attorney General to promulgate regulations



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providing that an applicant shall be considered to have established a
well-founded fear of persecution if the applicant establishes that
      (1) the applicant (or applicant’s spouse) has refused to abort a pregnancy or resisted
      sterilization in violation of China’s family planning policy directives, and (2) . . . in
      the case of an applicant for asylum or refugee status, there is good reason to believe
      that the applicant will be required to abort the pregnancy or to be sterilized or will
      otherwise be persecuted if the applicant were returned to China.

 § 3(b) (emphases added).
    This failed bill language, which expressly references “spouse[s]” who
“refuse[] to abort a pregnancy or resist[] sterilization,” shows at most that if
Congress wanted to cover spouses in section 601(a)’s forced abortion and
sterilization clauses, it knew how to do so. The language does not show a
“clearly expressed legislative intention” in ECIR—much less in the different
language that Congress enacted as section 601(a) several years later—to confer
per se refugee status on the spouses of persons who undergo forced abortion
or sterilization procedures. INS v. Cardoza-Fonseca, 

 n.12
(quoting United States v. James, 

 (1986)). Rather, the
provisions above suggest that, even had ECIR been enacted, it would not have
been enough for an applicant merely to show that his spouse endured a forced
abortion or sterilization procedure; the applicant would also have had to show
that he would likely be subjected to a coercive procedure or would otherwise
be persecuted if returned to his country of origin. Thus, even assuming the
failed ECIR legislation is relevant to interpreting section 601(a), but see
Rapanos v. United States, 

, that legislation does not establish
the proposition respondent and amici advance—namely, that Congress clearly
intended section 601(a) to confer per se refugee status on any applicant who
is married to someone who has undergone a forced abortion or sterilization
procedure.12 Accordingly, I disagree that the failed legislative proposal and
12
   Similarly, the various Executive Branch documents cited by respondent and amici do not
alter my interpretation of section 601(a). Those documents consist primarily of a 1990
executive order directing the Secretary of State and the Attorney General to grant “enhanced
consideration” to claims of persecution based upon a country’s policy of forced abortion or
coerced sterilization, Exec. Order No. 12711, 

 (1991), and a putative final (but
never published) Justice Department rule intended to advance the policy expressed in the
executive order. The most recent (1993) version of that rule would have provided:

      An applicant (and the applicant’s spouse, if also an applicant) shall be found to be a
      refugee on the basis of past persecution on account of political opinion if the
      applicant establishes that, pursuant to the implementation . . . of a family planning
      policy that involves or results in forced abortion or coerced sterilization, the applicant

                                                                                (continued...)

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Executive Branch rules that preceded section 601(a) support the per se rule in
C-Y-Z-, and conclude instead that this history supports the interpretation of
section 601(a) in this opinion.
    I view the policy goals underlying section 601(a) the same way. I
understand that the purpose of section 601(a) was to expand the asylum relief
available to victims of coercive population control programs who had been
denied relief under the Board’s 1989 and 1993 decisions, and I agree that
application of coercive population control procedures may constitute
“obtrusive government interference into a married couple’s decisions
regarding children and family” that may have “a profound impact on both
parties to the marriage,” Matter of S-L-L-, supra, at 6-7. The construction of
section 601(a) set forth in this opinion, however, does not foreclose spouses
from obtaining asylum on a case-by-case basis even if they are not
accompanied by their physically persecuted partners. The one thing I reject
is a rule that does not accord with the statutory text and that extends to these
spouses the same per se refugee status that section 601(a) facially affords those
who have physically undergone the coercive procedures referenced in the
statute. See supra Part II.A.
    My conclusion on this point is bolstered by DHS’s decision to abandon the
INS’s previous support for C-Y-Z-’s interpretation of section 601(a), and by
the Second Circuit’s observation in Lin II that “hundreds of cases in the courts
illustrate” that the Board’s per se rule has had the unforeseen effect of
allowing “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.’” Lin II, 

 (quoting He
Chun Chen v. Ashcroft, 

, 223 n.2 (3d Cir. 2004)). Although many
husbands may genuinely intend eventually to bring their wives and children
to the United States, the numerous cases that the Second Circuit and DHS
reference suggest that this is not always true. The behavior in such cases

(...continued)
       has been forced to abort a pregnancy or to undergo sterilization or has been persecuted
       for failure or refusal to do so.

Att’y Gen. Order No. 1659-93, at 13-14 (Jan. 15, 1993) (emphases added).
     Nothing in this never-published rule, however, unambiguously provides that an applicant
establishes refugee status solely by being married to a non-accompanying spouse who was
subjected to a forced abortion or sterilization procedure. Indeed, the preamble to the rule
indicates that the rule would not have addressed that situation, and, like section 208(b)(3)(A)
of the Act, contemplates derivative asylum for spouses only if the physically persecuted
person was a successful applicant for asylum. Att’y Gen. Order No. 1659-93, at 5 (stating
that “[a]t least in the situation provided for in the rule, in which a directly threatened person
is an applicant for relief along with his or her spouse, affording such relief to both is
warranted” (emphasis added)).

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should not be rewarded, particularly when the Act already provides a means
for husbands and wives to obtain asylum together or seriatim, including
through derivative asylum. See id.; section 208(b)(3)(A) of the Act. As DHS
and the Second Circuit have emphasized, the existing (and express) derivative
asylum provision in section 208(b)(3)(A) “encourage[s] the preservation of
families,” whereas the Board’s interpretation “has the perverse effect of
creating incentives for husbands to leave their wives.”13 Lin II, 

.

                                            III.
     Having rejected the per se, or joint spousal, eligibility rule articulated in
C-Y-Z- and S-L-L-, I consider respondent’s claims under section 601(a).
Because respondent seeks refugee status under section 601(a) but has not
physically undergone a forced abortion or sterilization procedure, resolution
of his claims requires a careful examination of the record to determine whether
respondent (i) “resisted” China’s coercive population control program,
(ii) suffered or has a well-founded fear that he will suffer “persecution” by the
Chinese Government, and (iii) can show that such persecution was inflicted,
or that he has a well-founded fear that it would be inflicted, “on account of”
his resistance to the coercive population control program.
     I decline to make these complex and fact-specific determinations in the first
instance, and instead vacate the Immigration Judge’s decision that the
procedures performed on respondent’s wife are not “sterilization” procedures
supporting per se asylum within the meaning of section 601(a) and remand this
case for further proceedings consistent with this opinion. I remand so that the
Board or Immigration Judge can reconsider, as necessary, respondent’s claims
(including his claim that he has a well-founded fear of future persecution based
on, among other things, Chinese family planning officials’ threats to sterilize
him personally) in light of the facts in the record, respondent’s testimony,
which the Immigration Judge expressly found “credible,” and the legal
13
    Although I reject the per se rule articulated in C-Y-Z- and S-L-L-, the interpretation of
section 601(a) I adopt in this opinion allows both members of the “spousal unit” to begin the
asylum effort in the United States, either by coming here together or by having one lead and
the other follow. The only difference between my interpretation and the per se rule for
purposes of who initiates the asylum effort is that, in cases where the spouse who begins the
asylum effort is the spouse who was not physically subjected to a forced abortion or
sterilization procedure, that spouse must be able to establish his or her personal eligibility
for asylum on the facts of his or her own case. As the Second Circuit noted in Lin II, “that
[the applicant’s] spouse has been subjected to a forced abortion or sterilization would not be
irrelevant” to this determination. Lin II, 

 (emphasis added). This fact would
simply not allow the applicant, if he or she left the physically persecuted spouse behind, to
qualify for per se refugee status.

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framework I announce in this opinion. I vacate the Immigration Judge’s
holding on whether forced insertion of an IUD constitutes “sterilization” under
section 601(a) because that determination is no longer necessary to this case.14
The Immigration Judge was required to decide whether the procedures
performed on respondent’s wife constitute “sterilization” procedures under
section 601(a) because the per se rule for spousal eligibility was controlling
precedent when the Immigration Judge issued her decision. My reversal of the
Board’s per se rule alters the legal framework that governs respondent’s claims
by refocusing the evaluation of his eligibility for asylum on the merits of his
experience and fears, rather than on a determination whether procedures
performed on his wife constitute “sterilization” under the statute. Accordingly,
I remand respondent’s claims for reconsideration and do not—because I need
not—decide whether the forced insertion and monitoring of an IUD constitutes
“sterilization” under section 601(a).15
    So ordered.




14
   In any event, the question whether forced insertion of an IUD constitutes “sterilization”
under section 601(a) is already being considered by the Board in more appropriate cases.
See, e.g., Chao Qun Jiang v. Bureau of Citizenship & Immig. Servs., 

 (2d Cir.
2008) (remanding to the Board to consider whether forced insertion of an IUD constitutes
“persecution” under the Act); Ying Zheng v. Gonzales, 

 (2d Cir. 2007) (same).
15
   Whether the Board and the courts should remand other cases for reconsideration in light
of this opinion depends on the particularized facts of those cases. Where, as here, a case that
was decided principally on the basis of the per se rule appears to involve credible evidence
of threats or action against the applicant that might support relief under the legal framework
set forth herein, but that were not adequately considered or developed before the
Immigration Judge, it may be an appropriate exercise of the Board’s discretion to order a
remand.

                                             543