2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-20-2004

Chen v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-3124

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Chen v. Atty Gen USA" (2004). 2004 Decisions. Paper 361.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/361
PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

__________

No. 03-3124

____________

CAI LUAN CHEN, 

Petitioner 

v.

 

JOHN ASHCROFT, ATTORNEY

GENERAL OF THE UNITED STATES,

Respondent

____________________

ON PETITION FOR REVIEW OF AN

ORDER OF THE BOARD OF

IMMIGRATION APPEALS

(No. A73 631 654)

__________________

Argued: June 18, 2004

Before: ALITO, SMITH, and WALLACE,

Circuit Judges*

(Opinion Filed August 20, 2004)

THEODORE N. COX

JOSHUA BARDAVID (Argued)

401 Broadway, Suite 701

New York, New York 10013

Counsel for Petitioner

PETER D. KEISLER

DAVID V. BERNAL

JOCELYN L. WRIGHT (Argued)

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

____________________

OPINION OF THE COURT

____________________

ALITO, Circuit Judge:

Cai Luan Chen petitions for review

of an order of the Board of Immigration

Appeals (BIA) affirming the denial of his

application for asylum and withholding of

removal. Chen’s primary argument is that

he is eligible for asylum based on his

fiancee’s forced abortion at the hands of

Chinese government officials. In making

this argument, Chen relies on a decision of

the Board of Immigration Appeals holding

that the spouse of a person who was forced

to undergo an abortion or sterilization is

deemed under a 1996 amendment to 8

U.S.C. § 1101(a)(42) to have suffered past

persecution. Matter of C-Y-Z-, 21 I. & N.

Dec. 915 (BIA 1997) (en banc). Chen

argues that, while he and his fiancee were

never married, they would have married

 

*The Honorable J. Clifford Wallace,

Circuit Judge for the United States Court

of Appeals for the Ninth Circuit, sitting by

designation.
2

had it not been for China’s inflated

minimum marriage age requirement, which

was instituted as part of the country’s

oppressive population control program.

Chen contends China’s refusal to permit

him to marry constituted persecution and

that therefore the BIA’s decision to limit

C-Y-Z- to married persons is irrational and

arbitrary and must be rejected.

We disagree. While limiting C-YZ- to married persons may produce

undesirable results in some cases, the

BIA’s interpretation, which contributes to

efficient administration and avoids

difficult and problematic factual inquiries,

is reasonable. We accordingly deny the

petition for review.

I.

Chen and his fiancee, Chen Gui, are

both natives and citizens of the People’s

Republic of China. Chen and Chen Gui

started living together at Chen’s parents’

house in July 1994. At the time, Chen was

19 and Chen Gui was 18. 

In September 1995, the couple

discovered that Chen Gui was pregnant,

and they then applied for a marriage

license at the local government office

without disclosing the pregnancy.

However, the office told them that their

application could not be approved, since

the legal age to marry was 25 for men and

23 for women.1 

Government officials soon became

aware of the pregnancy and told Chen Gui

that the child would have to be aborted.

Chen and Chen Gui delayed compliance

with the order, and this prompted a group

of local officials to visit the home of

Chen’s parents. Chen Gui, having been

warned of the visit, was not there when the

officials arrived, and Chen was

accordingly asked to disclose Chen Gui’s

whereabouts. When Chen refused, the

officials started hitting him with “sticks,”

and Chen fought back with a “plumbing

tool.” Finally, Chen’s parents intervened

to end the scuffle. The officials left,

warning Chen that he would be arrested if

Chen Gui did not report for an abortion in

three days.

Chen and Chen Gui went into

hiding, and Chen left the country shortly

thereafter. He entered the United States in

April 1996. About two months later, Chen

contacted his family and was told that

Chen Gui had ultimately been found and

had been forced to submit to an abortion in

 

1We note that officially the minimum

age for marriage in China appears to be 22

for men and 20 for women. See Marriage

Law of the People’s Republic of China,

art. 6 (as amended April 28, 2001),

available in LEXIS, Chinalawinfo Selected

PRC Laws file at PRCLEG 1793. It is

conceivable, however, that some local

variation in these requirements may exist.

See United States Department of State,

China: Profile of Asylum Claims and

Country Conditions (April 14, 1998) (“The

minimum age for marriage in China is 22

for males and 20 for females. In some

localities the ages are set higher.”). For

the purposes of this case, we assume the

accuracy of Chen’s description of the age

requirement to which he was subject.
3

the eighth month of the pregnancy. Chen

was also informed that Chen Gui was

continuing to live with his parents.

The INS initiated removal

proceedings agai ns t Che n, who

subsequently sought asylum under the

reasoning of the BIA’s decision in C-Y-Z-.

The IJ concluded that, although Chen and

Chen Gui had never formally married, the

case did “fall by analogy within C-Y-Z-, if

not by the letter.” App. II at 116.

However, the BIA reversed on appeal,

noting summarily that the decision in C-YZ- had “not been extended to include

unmarried partners,” App. I at 3, and that

Chen’s “own experiences with the

authorities in China [did] not rise to the

level of past persecution.” Id. Chen then

filed this petition for review. 

II.

The respondent in this case

(hereinafter “the government”) contends

that the BIA’s interpretation of 8 U.S.C.

§ 1101(a)(42) as covering the spouses but

not the unmarried partners of persons who

have been forced to undergo abortions or

sterilization is entitled to deference under

Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 843-

44 (1984), and should be sustained.

Chevron applies when “it appears that

Congress delegated authority to the agency

generally to make rules carrying the force

of law, and that the agency interpretation

claiming deference was promulgated in the

exercise of that authority.” United States

v. Mead Corp., 533 U.S. 218, 226-27

(2001). If Chevron applies, a court must

ask (at what is customarily called step one)

“whether Congress has directly spoken to

the precise question at issue.” Chevron,

467 U.S. at 842. “If so, courts, as well as

the agency, ‘must give effect to the

unambiguously expressed intent of

Congress.’” Household Credit Servs, Inc.

v. Pfennig, 124 S. Ct. 1741, 1747 (2004)

(quoting Chevron, 467 U.S. at 842-43).

“However, whenever Congress has

‘explicitly left a gap for the agency to

fill,’” a court must proceed to step two,

and “the agency’s [interpretation] is ‘given

controlling weight unless [it is] arbitrary,

capricious, or manifestly contrary to the

statute.’” Id. (second brackets in original)

(quoting Chevron, 467 U.S. at 843-44).

The Court has described this test as one of

reasonableness. See Chevron, 467 U.S. at

845, 865, 866.

Here, there is no dispute that “the

BIA should be accorded Chevron

deference for its interpretations of the

immigration laws,” Tineo v. Ashcroft, 350

F.3d 382, 396 (3d Cir. 2003) (citing INS v.

Aguirre-Aguirre, 526 U.S. 415, 424

(1999)), and Chen does not contend that 8

U.S.C. § 1101(a)(42) unambiguously

covers the unmarried partners of persons

who have undergone forced abortions or

sterilization. Instead, Chen focuses on

step two of the Chevron analysis and

argues that the BIA’s interpretation of 8

U.S.C. § § 1101(a)(42) is arbitrary,

capricious, and irrational.

III.

Before we can address Chen’s

argument regarding the limited scope that

the BIA has given to its decision in C-Y-
4

Z- , it is helpful to review that decision and

the statute on which it is based. 

A.

Under 8 U.S.C. § 1158(b)(1), the

Attorney General may grant asylum to an

alien who is a “refugee” within the

meaning of 8 U.S.C. § 1101(a)(42). In

order to establish refugee status under the

latter provision, an applicant must

generally show that he or she “is unable or

unwilling to return to, and is unable or

unwilling to avail himself or herself of the

protection of [the country of such person’s

nationality or in which such person last

habitually resided] 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).

B y regu l a tion , see 8 C .F.R .

§ 1208.13(b)(1), “[a] showing of past

persecution gives rise to a rebuttable

presumption of a well-founded fear of

future persecution.” Mulanga v. Ashcroft,

349 F.3d 123, 132 (3d Cir. 2003).

The BIA initially rejected the

argument that “implementation of

[China’s] ‘one couple, one child’ policy in

and of itself, even to the extent that

involuntary sterilizations may occur, is

persecution or creates a well-founded fear

of persecution on account of race, religion,

nationality, membership in a particular

social group, or political opinion.” Matter

of Chang, 20 I. & N. Dec. 38, 44 (BIA

1989) (internal quotation marks and

citation omitted). This holding, however,

was superceded several years later by the

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No.

104-208, 110 Stat. 3009-546 (“IIRIRA”).

Section 601 of the IIRIRA amended

§ 1101(a)(42) by 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. 

Id. § 601, 110 Stat. at 3009-689; see also

Matter of X-P-T-, 21 I. & N. Dec. 634

(BIA 1996) (en banc). (For convenience,

we will refer to this new provision as “the

1996 amendment to § 1101(a)(42)” or

simply “the 1996 amendment.”) 

The IIRIRA also imposed a cap of

1,000 persons per fiscal year on the

number of aliens who may be granted

asylum under the 1996 amendment. 8
5

U.S.C. § 1157(a)(5).2 Accordingly, aliens

found eligible for asylum under this

provision are approved only conditionally,

subject to an administrative determination

that a final grant of asylum would not push

the annual total above the statutory cap.

See X-P-T-, 21 I. & N. Dec. at 637.

Because the number of conditional grants

issued per year has exceeded 1,000 for

some time, the waiting list now includes

more than 7,000 applicants. See News

Release, U.S. Department of Justice, EOIR

Notifies Persons Eligible for Full Asylum

Benefits for Fiscal Year 2003 Based on

Coercive Population Control Policies

( S ept. 30 , 200 3), a t

http://www.usdoj.gov/eoir/press/03/CPC

AsylumRelease0903.pdf. This means that

applicants awarded conditional asylum

today face a waiting period of at least

seven years before becoming eligible for

the full benefits of asylum, including the

ability to apply for lawful permanent

resident status and to obtain the admission

to the United States of family members not

included in the original asylum

application. See id.; U.S. Citizenship and

Immigration Services, Resistance To

Coercive Population Control (CPC)

P ro g rams (O ct. 30 , 200 3), a t

http://uscis.gov/graphics/services/asylum

/cpc.htm.

B.

In C-Y-Z-, the BIA, sitting en banc,

considered the asylum petition of a man

who claimed that his wife had been

forcibly sterilized. The government

conceded that the man was a victim of past

persecution as defined by the 1996

amendment to § 1101(a)(42), asserting that

“past persecution of one spouse can be

established by coerced abortion or

sterilization of the other spouse.” C-Y-Z-,

21 I. & N. Dec. at 917; see also id. at 919

(noting agreement on the proposition that

“forced sterilization of one spouse . . . is

an act of persecution against the other

spouse”). The BIA accepted this

proposition, but unfortunately, it did not

explain the basis for this conclusion.

However, two rationales seem possible.

The first would proceed on the

assumption that the 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. Cf.

Abay v. Ashcroft, 368 F.3d 634, 642 (6th

Cir. 2004) (suggesting that “mental

suffering” resulting from “being forced to

witness the pain and suffering of [a]

daughter” constitutes persecution) (citing

Matter of Dibba, No. A73 541 857 (BIA

Nov. 23, 2001)). There is some evidence

that this rationale may represent the BIA’s

thinking in C-Y-Z-. Board Member

Rosenberg explained: 

It is not . . . unusual . . . that

the applicant should be

granted asylum although the

 

2The statute provides: “For any fiscal

year, not more than a total of 1,000

refugees may be . . . granted asylum . . .

pursuant to a determination under the third

sentence of section 101(a)(42) (relating to

persecution for resistance to coercive

population control methods).” 8 U.S.C.

§ 1157(a)(5).
6

harm experienced was not

by him, but by a family

member. . . . It . . .

constitutes persecution for

the asylum applicant to

witness or experience the

persecution of family

members . . . .

C-Y-Z-, 21 I. & N. Dec. at 926

(Rosenberg, Board Member, concurring).3

This interpretation would presumably look

to the language in the 1996 amendment

that refers to persons who are “persecuted

for . . . other resistance to a coercive

population control program.” See id. at

928 (Filppu, Board Member, concurring in

part and dissenting in part) (explicitly

noting the possibility that the majority

holding rested on the “persecuted for

. . . other resistance” clause). The

suffering felt by the spouse who did not

personally undergo the procedure would

constitute the “persecut[ion]” to which this

language refers, and the other spouse

would be deemed to have “resist[ed]” the

“coercive population control program,”

presumably on the assumption that he or

she opposed the procedure. 

This interpretation, however, is not

without difficulties. For example, it is not

clear why every spouse of a person who

undergoes a forced abortion or sterilization

should be deemed to have “resist[ed]” the

“coercive population control program.”

What if the spouse who did not personally

undergo the procedure sided with the

government and favored the abortion or

sterilization? 

The second possible rationale for

the C-Y-Z- decision is that performing a

forced abortion or sterilization procedure

on one spouse constitutes persecution of

the other spouse because of the impact on

the latter’s ability to reproduce and raise

children. The Ninth Circuit has suggested

this interpretation, stating in Lin v.

Ashcroft, 356 F.3d 1027, 1041 (9th Cir.

2004), that the forced sterilization of a

wife could be “imputed” to her husband,

“whose reproductive opportunities the law

considers to be bound up with those of his

wife.” See also C-Y-Z-, 21 I. & N. Dec. at

918 (“[T]he husband of a sterilized wife

can essentially stand in her shoes and

make a bona fide and non-frivolous

application for asylum based on problems

impacting more intimately on her than on

him.”); see also id. at 921 n.2 (Rosenberg,

Board Member, concurring) (citing

international law regarding “right to

procreate” and “right to . . . found a

family”); Matter of Y-T-L-, 23 I. & N.

Dec. 601 (BIA 2003) (en banc) (Pauley,

Board Member, dissenting) (“I understand

our ruling in Matter of C-Y-Z- to be based

on the theory that the persecution of one

spouse by forced sterilization is imputed to

the other”). It takes some effort to

reconcile this interpretation with the

language of the 1996 amendment, since

 

3The Sixth Circuit in Abay appeared to

agree that the implication of Board

Member Rosenberg’s concurring opinion

in C-Y-Z- was that a “family member may

be eligible for asylum based upon the

physical harm inflicted upon another

family member.” See Abay, 368 F.3d at

641.
7

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. But perhaps it could be

argued that the loss of opportunity to have

and raise children also constitutes

“persecut[ion] for . . . other resistence to a

coercive population control program.”4

In this case, however, it is not

necessary for us to decide whether C-Y-Z-

’s interpretation of the 1996 amendment is

permissible. If it is not and the 1996

amendment applies only to persons on

whom a forced abortion or sterilization

procedure has actually been performed,

Chen obviously cannot prevail. On the

other hand, if C-Y-Z-’s interpretation is

permissible (and we assume for the sake of

argument that it is), the distinction that the

BIA has drawn between married and

unmarried couples satisfies step two of

Chevron. 

IV.

With the possible bases of the C-YZ- decision in mind, we turn to Chen’s

argument that the BIA’s interpretation of

the 1996 amendment, by drawing a

distinction between married and unmarried

couples, “evinces such a lack of rationality

as to be arbitrary and capricious.”

Petitioner Br. at 16-17 (quoting Zhao v.

United States DOJ, 265 F.3d 83, 95 (2d

Cir. 2001)).5

A.

As we understand it, C-Y-Z- uses

marital status as a rough way of identifying

a class of persons whose opportunities for

reproduction and child-rearing were

seriously impaired or who suffered serious

emotional injury as the result of the

performance of a forced abortion or

sterilization on another person. Of course,

this use of marital status as a proxy is

undoubtedly both over- and underinclusive to some extent, but neither overnor under-inclusiveness is alone sufficient

to render the use of a metric like marital

status irrational. See Heller v. Doe, 509

U.S. 312, 321 (1993) (citation omitted)

(“A classification does not fail

rational-basis review because it ‘is not

made with mathematical nicety or because

in practice it results in some inequality.’”);

Dandridge v. Williams, 397 U.S. 471, 485

(1970); Lofton v. Sec’y of the Dep’t of

Children & Family Servs., 358 F.3d 804,

822-23 (11th Cir. 2004) (“The Supreme

Court repeatedly has instructed that neither

the fact that a classification may be

overinclusive or underinclusive nor the

 

4

In the case of a forced abortion,

conception in violation of the program

could constitute the “resistance,” and since

involuntary sterilization often follows

prohibited conception, this same theory

might work in that context as well.

 

5While this argument bears some

similarity to a rational-basis Equal

Protection Clause argument, it is clear that

Chen is not attempting to make a

constitutional argument here. Nor does

Chen contend that any standard of review

more stringent than “rationality” ought to

apply.
8

fact that a generalization underlying a

classification is subject to exceptions

renders the classification irrational.”).6 

This principle is well illustrated by

cases involving immigration laws that

attempt “to provide some – but not all –

families with relief from various

immigration restrictions that would

otherwise hinder reunification of the

family in this country.” Fiallo v. Bell, 430

U.S. 787, 797 (1977). For example, in

Fiallo, the Supreme Court upheld the

constitutionality of provisions that

excluded illegitimate children and their

fathers (but not illegitmate children and

their mothers) from special preference

immigration status. The Court

acknowledged that these provisions could

have the effect of “deny[ing] preferential

status to parents and children who share

strong ties,” id. at 798, and the Court noted

the argument that “the statutory distinction

[was] based on an overbroad and outdated

stereotype concerning the relationship of

unwed fathers and their illegitimate

children,” id. at 799 n.9. Nevertheless, the

Court concluded that the statutory

distinction could be viewed as serving two

purposes: (1) providing a convenient way

to weed out cases in which “close family

ties” were lacking and (2) avoiding

“problems of proof and the potential for

fraudulent visa applications.” Id. at 798,

799 n.8; see also Nguyen v. INS, 533 U.S.

53, 62 (2001) (finding need for reliable

evidentiary verification “that a biological

parent-child relationship exists” to be an

important government interest justifying

disparate treatment of illegitimate children

born to citizen mothers and those born to

citizen fathers). Likewise, a law requiring

aliens who married United States citizens

while in removal proceedings to wait

outside the country for two years before

qualifying as I-130 “immediate relatives”

has been found to be rational as a method

of deterring sham marriages. Almario v.

INS, 872 F.2d 147, 152 (6th Cir. 1989);

Anetekhai v. INS, 876 F.2d 1218, 1222

(5th Cir. 1989) (“Congress logically could

have concluded that aliens who are

engaged in deportation proceedings are

more likely than aliens not so situated to

enter into fraudulent marriages as a means

of avoiding expulsion from the United

States.”).7 

 

6

Indeed, the marriage relation is used in

so many areas of the law (income tax,

welfare benefits, property, inheritance,

testimonial privilege, etc.) that it would

seem absurd to characterize reliance on

marital status in C-Y-Z- as arbitrary and

capricious. Cf. Montgomery v. Carr, 101

F.3d 1117 (6th Cir. 1996) (deeming

rational the enforcement of a school antinepotism policy against married couples

but not cohabitants).

 

7The Supreme Court has reversed at

least one prior attempt by this Circuit to

engage in more searching review of linedrawing exercises by the political

branches of government in the area of

immigration law. In INS v. Hector, 479

U.S. 85 (1986) (per curiam), the

Supreme Court rejected a holding

allowing for the possibility of treating

nieces as “children” in a hardship
9

Similarly, we may say that the BIA

“logically could have concluded that aliens

who are [married] are more likely than

aliens not so situated” to be severely

injured in the ways noted above when their

partners are forced to endure forced

abortions or sterilization. Indeed, in light

of the “crushing caseload” faced by the

BIA in recent years, see Dia v. Ashcroft,

353 F.3d 228, 235 (3d Cir. 2003) (en

banc), it was entirely rational for the Board

to adopt a position requiring marriage,

which can often be proven easily and

reliably through objective documentary

evidence such as marriage certificates or

“household registration booklets.” See,

e.g., Zhao, 265 F.3d at 87; C-Y-Z-, 21 I. &

N. Dec. at 916. By contrast, a rule

extending C-Y-Z- to non-spouses would

create numerous practical difficulties that

the BIA might reasonably have chosen to

avoid. For example, in cases in which a

male applicant claims to have fathered an

illegitimate child who was forcibly aborted

by government officials, the problem of

proving paternity would be even more

acute than those presented in Fiallo and

Nguyen. Moreover, the BIA might

reasonably have decided that, in general,

forced abortions and sterilization

procedures tend to have a more severe

impact on spouses than on unmarried

partners. The BIA might also have been

concerned that unmarried asylum-seekers

would falsely claim to have had an

intimate relationship with a person who

suffered a forced abortion or sterilization,8

and the BIA might have felt that it would

be too difficult to distinguish between

those unmarried persons who had a truly

close relationship with the person who

underwent the medical procedure and

those unmarried asylum seekers who did

not.9 Chen does not explain why the BIA

analysis if it could be shown that a

“parental-type relationship” existed. See

id. at 87. Whether any unfairness to the

nieces in such “parental-type

relationship[s]” may have resulted did

not enter into the Court’s calculus; all

that mattered was that Congress, in

defining “children,” had not seen fit to

include nieces raised as effective

adoptees. See id. at 90-91.

 

8An analogy may be drawn here to the

tort of negligent infliction of emotional

harm. As explained in Restatement

(Second) of Torts § 436, recovery under

this tort may be available when members

of the immediate family of a victim witness

the infliction of harm. Id. § 436(3)

(emphasis added). “However, where a

stranger is involved . . . there may be

sufficient uncertainty as to the genuineness

or seriousness of the emotional disturbance

to justify, as a matter of administrative

policy, a denial of liability.” Id. cmt. h.

Here, the BIA may have concluded that,

given the difficulty of determining the

“genuineness” of emotional harm felt by

one upon hearing of harm to his fiancee,

the strict limitation of C-Y-Z- to married

couples was justified “as a matter of

administrative policy.”

 

9That some applicants could

conceivably be able to present such

convincing evidence is beside the point.
10

was irrational in deciding on a bright-line

rule for this class of cases, rather than

submitting each individual claim to a

detailed (and probably inconclusive)

psychological analysis concerning the

nature of a claimed relationship. 

For these reasons, we conclude that

the BIA’s decision not to extend C-Y-Z- to

unmarried partners satisfies step two of

Chevron. The BIA’s interest in promoting

administrability and verifiability is

sufficient to clear the low hurdle presented

by the step two standard, especially in light

of the limited number of spots allowed by

Congress for asylum claims based on the

1996 amendment.10

B.

Chen argues, however, that even if

it is rational not to extend C-Y-Z- to cover

all unmarried partners, it is irrational to

exclude him and other unmarried persons

who wanted and indeed tried to get

married but were prevented from doing so

by a law that is

an integral part of a program of

persecution. This argument must be

rejected for reasons similar to those

already discussed. Chen’s situation simply

shows that C-Y-Z- is underinclusive with

respect to a narrow but sympathetic class,

and as noted, a rule is not irrational just

because it is underinclusive to some

We note that Fiallo did not require any

special exception to be carved out for

fathers who could prove actual paternity of

illegitimate children when they had not

adopted or legitimated them. Nor did

Almario and Anetekhai provide those who

married during removal proceedings an

opportunity to present evidence showing

that their marriages were not shams. Such

rules, like the one adopted by the BIA

here, represent pragmatic approaches that

make it possible for an overburdened

agency to do the work with which it is

charged. 

 

10The government offers an alternative

explanation for the BIA’s distinction

between married and unmarried asylum

applicants, noting that “[a] grant of asylum

to an applicant present in the United States

enables the asylee to have his or her

spouse and children admitted to the United

States as derivative beneficiaries of the

asylee’s status.” Respondent Br. at 19.

Because “the existence of a valid, legal

marriage is required before an immigrant

visa may be issued,” the government

concludes that the disparate treatment of

married and unmarried applicants is

“consistent with the statutory design and

the family unification policies underlying

the issuance of immigration visas.” Id.

This argument is not without some merit.

However, given the current length of the

conditional asylee waiting list, spouses

granted conditional status under C-Y-Ztoday must wait at least seven years before

they can even apply for such a visa on

behalf of their spouses. Accordingly, we

doubt as a practical matter that the

potential eligibilty for preferential visas

actually operates to hasten the admittance

to the United States of spouses directly

persecuted under coercive population

control programs.
11

extent. 

Of course, if the Chinese

authorities’ refusal to permit Chen and

Chen Gui to marry was itself an act of

persecution, then Chen suffered past

persecution. But although minimum

marriage ages of 23 and 25 are contrary to

our traditions and international practice,

we cannot go so far as to say that

enforcement of these laws necessarily

amounts to persecution.

 American constitutional law

recognizes marriage as a fundamental

right, see Loving v. Virginia, 388 U.S. 1

(1967), but all states impose minimum

marriage age requirements,11 and we

assume that these laws are constitutional.

See Moe v. Dinkins, 669 F.2d 67, 68 (2d

Cir. 1982) (per curiam) (law requiring

parental consent for marriage of

ind ividua l s under 18 deem e d

constitutional, as a rational means for

helping “prevent[] unstable marriages

among those lacking the capacity to act in

their own best interests”); Maynard v. Hill,

125 U.S. 190, 205 (1888) (state legislature

may prescribe “the age at which parties

may contract to marry”); see also Zablocki

v. Redhail, 434 U.S. 374, 386 (1978)

(“[R]easonable regulations that do not

significantly interfere with decisions to

enter into the marital relationship may

legitimately be imposed.”); cf. Zablocki,

434 U.S. at 392 (Stewart, J., concurring)

(“A State may not only ‘significantly

interfere with decisions to enter into the

marital relationship,’ but may in many

circumstances absolutely prohibit it.”)

(footnote and citation omitted). Laws

setting reasonable minimum marriage ages

are also recognized as legitimate and

desirable under international human rights

law.12

It is certainly true that marriage

laws in this country set the minimum age

for marriage considerably below 23 or 25.

Almost all states set 18 as the minimum

age to marry without parental consent.13

Where parental consent is provided, as it

apparently was in the case now before us,

most states permit marriage at the age of

 

11See Legal Information Institute,

Cornell Law School, Marriage Laws of the

Fifty States, District of Columbia and

Pue rto R i co, a t

http://www.law.cornell.edu/topics/Table

_Marriage.htm (citing age requirements

and pertinent statutes) (hereinafter

Marriage Laws of the Fifty States).

 

12See Convention on Consent to

Marriage, Minimum Age for Marriage and

Registration of Marriages, Dec. 9, 1964,

art. 2, 521 U.N.T.S. 231, 234, at

http://untreaty.un.org/English/access.asp

(“States parties to the present Convention

shall take legislative action to specify a

minimum age for marriage.”). We note,

however, that the apparent purpose of the

Convention’s minimum age requirement

(as stated in the preamble) is not

population control, but rather the

elimination of child marriages and the

“betrothal of young girls before the age of

puberty.” Id. pmbl., 521 U.N.T.S. at 232.

 

13See Marriage Laws of the Fifty States,

supra note 11.
12

16.14 It is also true that the marriage laws

of other countries generally set the

minimum marriage age at 18 years or less,

and it appears probable that no other

country sets the minimum as high as does

China.15

A law or practice, however, does

not necessarily rise to the level of

“persecution” simply because it does not

satisfy American constitutional standards

or diverges from the pattern followed by

other countries. As we have noted,

persecution is an “extreme” concept that

“does not encompass all treatment that our

society regards as unfair, unjust, or even

unlawful or unconstitutional.” Fatin v.

INS, 12 F.3d 1233, 1240 & n.10 (3d Cir.

1993). 

Here, we cannot say that the BIA

was bound to conclude that minimums of

23 and 25 amounted to persecution. Chen

and Chen Gui were not permanently barred

from marrying, and marriage at the

minimum ages in question would not have

precluded them from having a long life

together or from raising children. See Li

v. Ashcroft, 356 F.3d 1153, 1164 (9th Cir.

2004) (en banc) (Kleinfeld, J., dissenting)

(“[T]he higher marriage age does not

necessarily restrain people from having the

number of children they want. . . . People

can . . . still have 2, or 3, or 10 children, if

their individual biology and preferences

lead them to do so and the government

does not forcibly abort their children or

sterilize them.”). It is perhaps worth

noting that the median ages of first

marriages for men and women in this

country now exceed the minimum age

requirements that Chen contends amount

to persecution.16 Although defining the

outer boundaries of the concept of

“persecution” is hard, we cannot say that

requiring a person to wait until reaching

the age of 23 or 25 is so far outside the

accepted realm of human decency as to

constitute persecution. 

C.

We acknowledge that our reasoning

may appear to be in tension with that of

Ma v. Ashcroft, 361 F.3d 553 (9th Cir.

2004). In that case, the petitioner Ma and

his partner were married in a “traditional”

Chinese ceremony in their village.

Because Ma was underage, the marriage

could not be officially registered with the

Chinese government. Ma’s partner

conceived two months later and went into

hiding to avoid detection by the

authorities. Ultimately, however, she was

found and forced to undergo an abortion,

and the couple was fined for “early”

 

14Id.

 

15Angela Melchiorre, Right to

Education Project, At what age? 15-21 (2d

ed. 2004) (listing marriage age

requirements 156 countries). A few

countries, including Algeria, Cambodia,

India, Indonesia, Togo, and Vietnam, set

age requirements above 18 years. Id.

 

16See United States Census Bureau,

Statistical Abstract of the United States 60

(123d ed. 2003) (noting that 85.4% of

males and 74.0% of females under the age

of 25 in the United States have never been

married). 
13

pregnancy and marriage. Ma subsequently

fled to the United States. When he

attempted to apply for asylum under C-YZ-, the BIA rejected his claim on the

ground that he was not legally married

under Chinese law. By this time, however,

Ma had actually reached the legal age to

marry in China. He therefore applied for

and obtained a certificate from the Chinese

government indicating that his marriage

was considered valid, and he submitted

this certificate to the BIA with a motion to

reconsider, which the BIA ultimately

denied. Ma petitioned for review, and the

Ninth Circuit reversed, holding that C-YZ-’s interpretation of § 1101(a)(42) could

not rationally be limited to exclude

“husbands whose marriages would be

legally recognized, but for China’s

coercive family planning policies.” Ma,

361 F.3d at 561 (emphasis added).

Because Ma’s marriage had been

recognized by the Chinese government by

the time of the BIA’s decision, it was

unnecessary for the Ninth Circuit to reach

the question whether the BIA can

reasonably refuse to extend C-Y-Z- to

cases involving persons whom the Chinese

authorities refuse to recognize as married.

But assuming that the holding in Ma

reaches all persons married in traditional

ceremonies that the Chinese government

does not sanction, Chen would still not

qualify, since he does not claim that he and

Chen Gui ever formalized their

relationship in that way. Indeed, Chen has

never argued that he is actually married in

any sense, and in fact he affirmed precisely

the opposite in his asylum application. See

App. II at 265 (checking box labeled “not

married”). Because Ma’s express holding

applies only to putative husbands and not

unmarried partners, it is inapposite here.

17

Nevertheless, we acknowledge that

Ma’s reasoning could be applied to

someone in Chen’s shoes. The Ma court

reasoned that it is “absurd and wholly

unacceptable” to deny asylum to a person

based solely on a consequence of a

population control policy expressly

“deemed by Congress to be oppressive and

persecutory.” Ma, 361 F.3d at 559.

According to Ma, this would “contravene[]

the purpose and policies of the [IIRIRA]

statutory amendment.” Id. at 560. In other

words, the Ma Court concluded that the

BIA’s interpretation of § 1101(a)(42)

failed step two of Chevron because it was

clearly contrary to Congress’s intent, or, as

the Ma Court put it, Congress’s “purpose

and policies.” Id. We must disagree with

this analysis because we see no basis for

concluding that Congress’s intent in

 

17See, e.g., Ma, 361 F.3d at 559 (“The

question presented here is whether

husbands, whose marriages are denied

recognition by virtue of the population

control program that Congress has

condemned, may be deprived of eligibility

for asylum on the basis of that denial.”)

(emphasis added); id. at 560 (“BIA’s

decision to limit asylum eligibility so as to

exclude husbands . . . contravenes the

purpose and policies of the statutory

amendment.”) (emphasis added); id. at 561

(“Application of the BIA’s rule would

result in the separation of a husband and

wife . . . .”) (emphasis added).
14

amending § 1101(a)(42) was to afford

relief to every person who is a victim of

any rule or practice that forms a part of the

Chinese population control program. 

“The starting point in discerning

congressional intent is the existing

statutory text . . . .” Lamie v. United

States Tr., 124 S. Ct. 1023, 1033 (2004).

The language of the 1996 amendment to

§ 1101(a)(42) has several indications of

intent that we think are unmistakable. The

first is that proof of “persecution” or

“well-founded fear of persecution” is

absolutely required to make a successful

claim for asylum, just as was the case prior

to the amendment. The second point is

that, with the exception of forced abortions

and sterilizations, the concept of

“persecution” is left completely undefined.

We infer from Congress’s use of this

ambiguous term an intent to delegate

interpretive authority to the agency,

including the ability to decide, within a

reasonable range, the precise contours of

its meaning. FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 159 (2000)

(“Deference under Chevron to an agency’s

construction of a statute that it administers

is premised on the theory that a statute’s

ambiguity constitutes an implicit

delegation from Congress to the agency to

fill in the statutory gaps.”).18 Third, the

imposition of a yearly cap clearly reveals

an intent to carefully limit the scope of

relief made available by the amendment.

Against this background, it is hard

to see how Ma could have concluded that

a rule limiting C-Y-Z- to married couples

was contrary to Congress’s intent. If Ma

meant to say that individuals who suffer

under a coercive population program may

be eligible for asylum even if their

suffering (or feared suffering) is not

proved or presumed to rise to the level of

persecution, we emphatically disagree.19

As we have explained, the asylum statute

plainly limits relief to cases involving

“persecution.” That scheme necessarily

excludes cases involving lesser harms,

even when those harms implicate to some

degree the humanitarian interests that

animated passage of the asylum statute.20

 

18There is no question that Congress has

delegated authority to the BIA generally to

“make rules carrying the force of law,” cf.

Mead, 533 U.S. at 226-27, and that its

interpretations of ambiguous statutory

terms are entitled to Chevron deference.

Aguirre-Aguirre, 526 U.S. at 425.

 

19We note that the opinion in Ma never

explicitly finds or assumes that the

petitioner ha d a ctu all y suffered

persecution.

 

20For example, the statute extends relief

to those who are persecuted “on account of

race.” 8 U.S.C. § 1101(42). The primary

purpose of that provision is no doubt to

extend aid to certain individuals who

suffer the effects of gross racial inequality

in their countries of origin. Yet courts

routinely deny relief to those who suffer

racial discrimination that falls short of

“persecution,” see, e.g., Nagoulko v. INS,

333 F.3d 1012, 1016-17 (9th Cir. 2003),

even though it might be said that such
15

Alternatively, it may be that Ma’s

position was that the BIA’s interpretation

of the term “persecution” fell outside the

acceptable range of meanings within

which Congress authorized the agency to

choose. However, there is no indication

that Congress intended to put limits on the

meaning of the term “persecution” beyond

those imposed by the normal

understanding of the word. Matter of

Acosta, 19 I. & N. Dec. 211, at 223 (BIA

1985). (“Congress chose not to define the

word ‘persecution’ . . . because the

meaning of the word was understood to be

well established by administrative and

court precedents.”). Of course, with the

1996 amendment, Congress did add the

constraint that “persecution” could not be

interpreted in a way that would exclude

involuntary sterilizations or abortions. But

this merely shows that Congress knew how

to be very specific regarding what

constituted persecution when it wanted to.

Furthermore, we find it highly unlikely

that Congress could have intended to

dramatically broaden the notion of

“persecution” with respect to persons

suffering under coercive population

programs while contemporaneously

imposing a yearly cap strictly

circumscribing the relief available to them.

An examination of the relevant

legislative history only confirms our

understanding of Congress’s intent. We

cannot locate any evidence that the

legislators who considered the amendment

to § 1101(a)(42) thought that persons such

as Chen would qualify thereunder.21 To

the contrary, it seems that some legislators

had reservations about the ease with which

“young Chinese single-unmarried-males ”

might falsely claim eligibility for asylum

under the proposed amendment, resulting

in a flood of meritless applications. 142

Cong. Rec. S4593 (daily ed. May 2, 1996)

(statement of Sen. Simpson). Statements

from others suggest that the reference to

“persecut[ion]” in the amendment was

simply intended to include actions such as

“torture” and “sexual abuse” that would

qualify as persecution under the prevailing

definition of the term. See 142 Cong. Rec.

H2634 (daily ed. Mar. 21, 2996)

(statement of Rep. Smith).22

At a more general level, we note

that some members of Congress have in

the past actually considered—and

denials disserve Congress’s broader policy

of providing relief to victims of racial

injustice.

 

21There is at least one statement in the

Congressional Record which speaks

disparagingly of China’s “marriage bans,”

but that statement is made in reference to

permanent restrictions on marriage

motivated by a desire to “avoid new births

of inferior quality,” and not the sort of agebased restrictions at issue in this case. See

140 Cong. Rec. S327-28 (daily ed. Jan. 28,

1994) (statement of Sen. Helms).

 

22In such cases, the amendment would

serve to clarify that such actions, if taken

in response to resistance to a coercive

population control program, should be

deemed inflicted “on account of political

opinion.”
16

rejected—the possibility of providing an

explicit definition for “persecution” in

connection with another portion of the

INA. It was reasoned that

any such definition would

necessarily limit application

o f the provision to

particular, prese n t l y

foreseea ble situations.

Persecution, however, has

and will continue to take

many forms and it is the

intention of the committee

in recommending this

legislation to allow the

maximum amoun t o f

flexibility possible in its

adm inistratio n. The

inclusion of a necessarily

limited and rigid definition

would be inconsistent with

such an intent.

H.R. Rep. 95-1452, at 6-7 (1978),

reprinted in 1978 U.S.C.C.A.N. 4700,

4705-06; cf. INS v. Cardoza-Fonseca, 480

U.S. 421, 449 (1987) (“In enacting the

Refugee Act of 1980 Congress sought to

give the United States sufficient flexibility

to respond to situations involving political

or religious dissidents and detainees

throughout the world.”) (internal quotation

omitted). 

To be sure, we assume that the

members of Congress who voted in favor

of the 1996 amendment to § 1101(a)(42)

considered the Chinese population control

program as a whole to be objectionable

and that they found fault with many

specific features of the program.

However, the 1996 amendment to

§ 1101(a)(42) is limited in scope. Under

that amendment, the worst effects of the

Chinese program – forced abortions and

involuntary sterilization – are deemed to

constitute “persecution,” b ut the

amendment does not provide similar

treatment for other adverse effects of the

program, such as, to take one example,

dismissal from employment for failure to

abide by the one-child policy.23 Even

though a person who is fired for violating

the policy is a victim of the objectionable

Chinese program, such a person cannot

prove past persecution simply by

establishing the occurrence of and the

reason for the dismissal.24 It is apparent,

 

23See United States Dep’t of State,

Country Report on Human Rights

Practices—2002: China (2003) (noting

China’s reliance on “education,

propaganda, and economic incentives, as

well as on more coercive measures such as

the threat of job loss or demotion and

social compensation fees”).

 

24Under the 1996 amendment the reason

for the dismissal (failure to comply with

the one-child policy) might well qualify as

“resistance to a coercive population

control program,” but the person who was

fired would still have to show that

dismissal was severe enough to amount to

persecution. While we express no opinion

on this point, we re iterate that

“persecution” is an extreme concept that

“does not encompass all treatment that our

society regards as unfair, unjust, or even

unlawful or unconstitutional.” Fatin, 12
17

therefore, that it was not Congress’s intent

to provide relief for every victim of any

feature of the Chinese program. Rather,

Congress obviously had the more modest

purpose of providing relief for a much

more limited class. Especially in light of

the rather low yearly cap on the number of

asylum applications that may be granted

under the 1996 amendment, the BIA’s

refusal to extend C-Y-Z- may be viewed as

furthering this congressional goal.

V.

A few remaining issues must be

addressed. First, Chen suggests that the

beatings he suffered at the hands of

government officials combine with the

forced abortion and the marriage license

denial in such a way as to constitute past

persecution. They do not. Chen’s scuffle

with the local officials does not appear to

have been serious. For example, the

government points out that Chen has never

alleged that this altercation resulted in any

injuries that required medical treatment.

Respondent Br. at 24. Physical abuse

similar to this has been held to not

constitute persecution. See, e.g., Prasad v.

INS, 47 F.3d 336, 339 (9th Cir. 1995) (no

past persecution where petitioner was

arrested, hit, kicked, and detained for four

to six hours). The BIA found that Chen’s

experiences with the authorities in China

did not rise to the level of persecution, and

we cannot say that “any reasonable

adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B).

Chen further argues that, even if he

did not suffer persecution in the past, he

still has a well-founded fear that he would

suffer future persecution if he returned to

China. He points to several cases and

secondary sources generally describing

incidents of harsh treatment that Chinese

prison officials have inflicted upon

political prisoners, including refugees

returned to China. See Petitioner Br. at

20-22. This generalized evidence

presented by Chen, however, by no means

compels the conclusion that the BIA erred

in determining that he had not “established

a well-founded fear of persecution.” App.

I at 3; 8 U.S.C. § 1252(b)(4)(B).

Finally, Chen does not appear to

have challenged the rejection of his claim

for withholding of removal in the brief

accompanying his petition for review.

Accordingly, the claim has been waived.

See FDIC v. Deglau, 207 F.3d 153, 169-70

(3d Cir. 2000); Ma, 361 F.3d at 557 n.5;

Qin v. Ashcroft, 360 F.3d 302, 305 n.5 (1st

Cir. 2004).

VI.

In sum, assuming that C-Y-Zpermissibly applied the 1996 amendment

to spouses, we hold that the BIA’s

decision not to extend C-Y-Z- to

unmarried partners is reasonable and

therefore, under step two of Chevron, is

entitled to controlling weight. We defer

to this interpretation and deny the petition

for review.

 

F.3d at 1240 & n.10.