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UNIT ED STA TES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

__________ No. 03-3124

____________ CA I LU AN CH EN ,
Petitioner

v.
JOHN ASHCROFT, ATTORNEY GENER AL OF TH E UNITED STA TES,

Respondent

____________________ ON PET IT ION F OR REVI EW OF AN ORDER OF THE BOAR D OF IMMIGRATION APPEALS (No. A73 631 654)

__________________ Argued: June 18, 2004

Before: ALI TO, SMIT H, a nd WALLACE, Circuit Judges *
(Opinion Fi led August 20, 2004) THEODORE N. COX JOSHU A BA RDA VID (Argued) 401 Broadway, Sui te 701 New Y ork, New York 10013
Counsel for

Petit ioner

PETER D. KEI SLER DAVID V . B ERNAL JOCELY N L. WR IGHT (Argued) Office of Immigrat

ion Litigati on Civil Divi sion U.S. Department

of Justi ce P.O. Box 878, Ben Frankl in Station Washington, DC 20044
Counsel for

Respondent

____________________ OPINI ON OF THE COURT

____________________

AL ITO , Circuit

Judge : Cai Luan Chen petit

ions for review of an orderof the Board of I mmigrati on Ap peals (BIA) affirming the deni al of h is applic ation for asy lum and withholdi ng of
remo val. Chen ’s prima ry argum ent is that he is el ig ible fo r asylum base d on his fiancee’s forced ab orti on at the hands of Chinese go v ernment offi cial s. I n making this argu men t, Chen reli es on a deci sion of the Board of Immigration Appeals hol ding that the spouse of a person who was forced to und ergo an ab ortion o r sterilization is deemed under a 1996 ame ndment to 8 U.S .C. § 1101(a)( 42) to have suffered past persecution. Matterof C- Y-Z- , 2 1 I . & N. Dec. 9 1 5 (BIA 1997) (en banc) . Chen argues that, while he an d his fiancee were never m ar rie d, t he y woul d have married * The Honorable J. Cliffor d Wallace, Circ uit J udge f or the U nited States C ourt of Ap peals f or the N inth C ircuit, sitting by designation.2

had it not been for China’ s infl ated minimum marriageage requi reme nt, wh ic h
w as instituted as part of the co untry ’ s oppressi ve pop u la ti on c ont ro l p ro gr am. Chen contends China ’ s refus al to pe rmit him to marry

consti tut ed persecution and that theref ore the BIA ’s dec ision to limit C-Y-Z- to marriedpersons i s irr ationa l and arbit raryand must be rej ected.
We disagr ee. Wh ile limi ting C-Y

Z- to marr ied pers ons may pr oduce
un desira ble resul ts i n some cases, the BIA ’s inter

pretat ion, whic h contributes to effic ientadministra tion an d avo id s diffic ult and p roblem atic factualinquiries, is reasonable. We accordingly deny t he pe ti ti on f orre vi ew. I. Chen and his fi ancee, Chen Gu i, are both native s and citizens of the P eople’s Rep ublic of C hin a. Chen and Chen Gui started livi ng togethe r atChen’s parents’ house in Ju ly

199 4. At the time, Chen was 19 a nd C hen Gu i wa s 18

. I n September 1995, the coup l e discov er ed that C hen G ui w as pre gnan t, and theythen appl ied fo r a marriage license at the local government of fice without discl osing t he pr egnanc y
. How ever, the offi ce tol d the m that the ir
a pplication cou ld n ot b e ap pro ved , s inc e the legal age to marry was 25 for men and 23 for women. 1 Government off ic ia ls soo n be came aware of the preg nanc y and told Chen Gui that the chi ld wou ld hav e to be aborted. Chen a n d Chen Gui delay ed compliance with the order , and this prompt ed a group of local o fficials to vis it th e home of Chen ’s parents . Chen Gui, havi ng b ee n warned of the visi t, was not there when the
o fficials arri ved, and C he n wa s acco rding ly asked to di sclose Chen G ui’s wh erea bouts. When Chen refused, the offic ials start ed h itting him wit h “s ticks ,” and Chen fought back with a “plumbing too l.” Finall y, Chen’s pa ren ts i ntervene d to end th e scu ffle. T he of ficials le ft, warning Chen thathe w ould be arre sted if Chen Gu i did not report for an aborti on in three days. Chen and Chen Gui went in to hiding, an d C he n l ef t th e c ou nt ry s ho rtly thereafter. He entered the United States in Ap ril 1996. About two months l ater, Chen contact ed hi s f amilyand was told t hat Chen Gui had ulti matelybe en found and had been forced to submit to an abor tion in

1 We note that of

fici al ly the minimum age for marri age in Chinaappe ars to be 22 for men and 20 for wo me n. See Marriage Law of the People’s Republic of China , ar t. 6 (as amen ded A pril 28, 2001), availa ble in LEXIS, Ch inala winfo Selec te d PRC Law s file at P RC LE G 1 793 . It is
co nceivabl e, however, that some loc a l variat ion in t hese requi rements mayexist. See United States Depa rt me nt of State, Ch ina: Profil e of Asyl um Claims and Cou ntry Con ditions (A pril 14, 1 998) (“The minimum age for marri age in China i s 22 fo r males and20 f

orfema le s. In som e local iti es the ag es are s et hig her. ”). For the purposes of t

his cas e, we assume the
accur a cy of Chen’s descripti on of the age requ ireme nt to w hich h e w as sub ject.3

the eighth mo nth o f th e pregnancy . Chen
was also i nformed that Chen Gui was continuing to li ve with his parents. The INS init iate d remova l proce edings aga i n s t Ch e n , w h o subs eque ntly sought asylum under the reasoni ng of the BIA’s decisi on in C-Y-Z-

. The IJ con clude d that, although Chen and Chen Gui had never formal ly married, the
case did “f all by ana logy w ithin C-Y-Z- , if not by the letter. ” App. II at 116. Ho w ever, the B IA re verse d on appe al, noting summarily

that t he decisi on in C-Y

Z- had “not been extended to i nclude
unm arrie d par tners ,” App. I at 3, a nd that Chen ’s “own experience s with the authori ties i n China [did] not ri se to t he level of p ast p erse cutio n.” Id. Chen then filed this p etitio n fo r rev iew

.

II. The respondent in this case (herei nafter

“the government”) contends tha t th e BI A’s in te rp re ta ti on o f 8 U. S. C. § 1101(a)( 42) as covering the s pouses but not the unmarri ed partne rs of per sons who have been fo rced to undergo abor tions or sterili zati on is entitle d t o deference under Chevron U.S.A., I nc. v. Natural Resources Defense Co uncil, Inc. , 467 U.S. 837, 843- 44 (1984), and should be s ustai ned. Chev ro n a pplies when “it appear s that Co ng ress delegat ed authori ty to the a gency general ly to make rul es carryi ng the forc e of law , and that t

he agency inter

pretat ion clai ming deference was p romulga ted in t he
exe rcise of that

authori ty .” Un ited Sta te s v. Mead Corp. , 533 U.S. 218, 226-27 (20 01). If Chevron applie s, a cou rt mu s t ask (at w hat is customari ly call ed step one) “whetherC o ngre ss has directly spo ken to the precis e questi on at is sue.” Chevron , 467 U.S . at 84 2. “If so, courts , as wellas the agency , ‘must

give eff

ect t o the
una mb iguo usly ex presse d inten t o f Con gress.’” Ho useh old C redit Servs, Inc.
v. Pfe nnig , 124 S. Ct. 1 741, 1747 (2004) (quoti ng Chevron , 467 U.S. at 842 -43). “Howeve r, whenever C ongress ha s ‘exp licitly left a g ap fo r the ag ency to fill,’” a court must

proceed t o step two, and “the agency ’s [i nterpretation] i s ‘give n contro l ling w eig ht un les s [ it is ] a rb itra ry, capricious, or manifestly co ntr ary to the statute.’” Id. (seco nd b racke ts in orig inal) (quoti ng Chevron , 46 7 U.S . at 843-44). The Cou rt has descri bed this test as one of reasonableness. See Chevron , 467 U.S. at 845, 865, 866. Her e, there i s no dispute that “the BIA should b e accorde d Ch evro n deference for its i nte rpret ations of the immigration laws,” Ti neo v. Ashcroft, 350 F.3d 382, 396 (3d Cir. 2003) (citing INS v. Agu irre-Aguirre , 526 U.S. 415, 424 (1999)), and Chen does not contend that 8 U.S .C. § 1101(a)( 42) unambiguou s ly
covers the unmarri ed partne rs o f persons who have undergone for ced abortions or ste ril ization. Inste ad, Chen focuses on step two of the Chevron analysi s and
a rgues that t

he BIA’s int erpret ationof 8 U .S .C. § § 110 1(a)(42) is arbitrary , capric ious, an d irration al.

III. Befo re we can ad dress Ch en’s argument re garding the limi ted scope t hat the BIA has given to its decisi on in C-Y

-4

Z- , it i s helpfulto revi ew that de cisi on and the s tatut e on wh ich it is ba sed

.

A. Under 8 U.S.C. § 115 8(b) (1), the Attorney Gen eral may gra nt as yl um to an alie n wh o is a “r efug ee” w ith in th e meaning of 8 U.S.C. § 11 01(a) (42). In orderto establ ish re fugee status under the latter provisi on, an appl ica nt m ust gene rally show that he or she “is un able or unwilli ng to re turn to, and i s unable or unwilli ng to avai l himsel f or hers elf of the protect ion of [the co untry of such p erson’s nationa l ity or in which such person last habitu ally resi ded] because of persecut ion
or a well-fou nded f ear o f p ersecution on
a ccountof ra ce , re lig io n, n ati on ali ty,
mem bersh ip in a parti cular socialgroup, or political opi nio n.” 8 U. S. C. § 1101 (a)(42). B y regu l a tion , see 8 C .F.R

. § 1208.13 (b)(1), “[a] s howing of p ast persec utio n gives rise to a re buttab le presumpti on of a well- founded fear of future per sec utio n.” Mulanga v. Ashcroft , 349 F .3d 123, 13 2 (3d C ir. 2003). The B IA initiall y r eject ed the argument that “ i m plementat ion o f [China’s] ‘one couple , one child’ policy in and of itself , even to the e xte n t that involuntary sterilization s ma y occur, is persecution or creates a well-f ounded fear of persecution on account of r ace, reli gion,
na tio na lity, membership i n a parti cular socialgroup, or

political opinion. ” Matter of Ch ang , 20 I. & N . Dec. 38, 44 (BIA 1989) (internal quot ationma rks and citation o mitted ). This holding, how ever, was superceded s everal year s later by the Ill egal I mmigrati on Refo rm an d Immigrant Res pon sib il ity Act of 1996, Pub. L. No. 104-208, 110 Sta t. 3 0 09-546 (“IIRIRA ”). Section601 of the II RIRA am en ded § 1101(a)( 42 ) b y addi ng the fol lowing language: [A] person w ho has been fo rc ed to abort

a pregnancy or to underg o involun tary sterili zati on, or who has been per s ecuted fo r failure
or refus al to undergo such a pro cedur e or for other resi stance to a coer cive populati on con tr ol pr ogr am, shall be deemed to have been persecuted on account of political op inion, and a person wh o has a w ell fo unded fear that he or sh e wil l be forced t o undergo such a proce du re or subj ect to persecution f or such fail ure, refus al, or resi stance shall be dee med to have a
we ll founded f e ar o f persecution on acc ou nt of pol itical o pin ion

. Id. § 60 1, 1 10 S tat. at 300 9-68 9; see also Ma tter of X-P- T- , 21 I. & N. Dec. 634 (BIA 1996) (en banc) . (For convenience,
we will referto thi s new provisi on as “the 1996 amendment to § 1101(a) (42)” or simply “the 1996 amen dmen t.”) The IIRIRA also i mposed a cap of 1,000 persons p er fiscal year on th e number of ali en s w ho m ay b e gr anted asy lum under t he 199 6 am end me nt. 85

U.S .C. § 1157 (a)(5). 2 Accordingly , al iens found el ig ib le for

as y lu m u nder this provisi on are approve d only co nd itio na lly, subject to an admini strative de termination that a fina l grant o f asylum wo uld not push the annual t otal above the st atutor y cap. See X -P- T- , 21 I. & N. Dec. at 637. Because the number of

cond itional g rants issuedp er ye ar has exce eded 1,000 for
som e time, the wa it ing li st now incl udes
more than 7,00 0 ap plica nts. S ee News Rele ase, U.S. Dep artment of Justice, EO IR Notifie s Persons El igibl e for Full Asylum Be nefi ts for Fisc al Year 2003 Based on Coercive Populati on Control Pol icie s ( S ept. 30 , 200 3), a t http: //www. usd oj .g ov/ eoi r/pr es s/ 03/ CP C AsylumRelea se0903.pdf. This means that applic ants awarde d conditi onal asy lum todayface a waiti ng period o f a t least
seven year s before bec o ming eli gible f or the full be nefit s of asy lum, i ncluding t he ability to ap ply for lawful pe rmanent resi dent status a nd to obtain the admiss ion to the Unite d States of fam ily members not include d in the or igina l asylu m applic ation. See id. ; U.S. Cit izenshi p and I mmigrati on Services , Resis tance T o Co ercive Popul at io n Con tr ol (CPC ) P r o g r ams (O ct. 30 , 200 3), a t ht tp:/ /usci s.gov/grap hics/se rvices /asylu m /c pc. ht m. B. In C-Y-Z- , the BIA, sitting en banc, conside red the asy lum peti tion of a man who clai med that hi s wife had been forcib ly sterili zed. The government conceded that t

he man was a victim of

past persecution as de fined by th e 19 96 amendment to § 1101(a )(4 2), as serting that “past persecution of one spous e can be esta b lis hed by coerced abortion or sterili zati on of the otherspouse. ” C-Y-Z- , 21 I. & N. Dec. at 917 ; see also id. at 919 (noti ng agreement on t

he proposi tion t

hat “for ced sterili zatio n of one spo use
. . . i s an act of per secuti on again st the other spouse” ). The BIA accepted th is proposit ion, but unfort

unatel y, it di d not expla in the b asis f

or thi s conclus ion. However, two rati onales s eem possibl e. The firs t would procee d on the assumpti on that t

he persecut

ion of one spouse by means of afo r ced abortion or sterili zati on causes the othe r spou se to experie nce intens e sy mpatheti c suffer in g that rises to th e leve l of pe rsecu tio n. Cf

. Abay v. Ashcr oft , 368 F.3d 634 , 642 ( 6th Cir. 2004) (sugg es ting t hat “mental sufferi ng” resul ting from “being for ced to witness the pai n and s uf fering of [ a] daugh ter” consti tutes persecution) ( citi ng Matterof Dibba , N o
. A73 541 85 7 (BIA Nov. 23, 2001)) . The re is some evidence that this rati onale may repres ent the BIA ’s thinki ng in C-Y-Z- . Bo a rd Member Ro senb erg ex plaine d: It is not

. . . unusual . . . t hat the applic ant shoul d be grantedasy lum although t he 2 Th e stat ute provi des: “For

any fi sca l year, no t more than a t otal of 1,000 refu gees ma y be . . . g ran ted a sylum

. . . pursuant to a det ermination under t he third sentence of secti on 101(a)( 42) (relating to persecution for resi sta nce to coer cive populati on control methods)

. ” 8 U. S. C. § 1157 (a)(5).6

harm experie nced w a s not by hi m , but by a f amily
mem ber.

. . . I t . . . consti tutes per s ecuti on for the asylum a pplica nt t o witness or experi ence the persecut ion of fam il y me mb ers . . . . C- Y-Z- , 21 I. & N. D ec. at 92 6 (Rosenberg, Board Me mber, concu rring). 3 This inter

pretat ion would pres umably l ook to the langua ge in the 1996 amendment that refers to person s who are “persecuted for

. . . oth er res ist ance to a coe rcive populati on cont r ol progr am.” See id. at 928 (Filpp u, Bo ard M emb er, con currin g in part and dissen ting in part) (e xpli citly not ing the po ssibility that the m ajorit y holding rest ed on the “per secuted f or

. . . oth er re sista nce ” cla use ). T he sufferi ng felt

by the s pous e who did not per s onally und ergo the pro cedu re w ould
cons titute the “per secu t[i on]” to w hich th is language refers, and the o ther s po use wo uld be deemed to have “r esist [ed]” the “coerci ve populati on c ont rol p rog ram ,” presu mab ly on the ass umption that h e or she opp ose d th e pr oce dur e. This inter

pretat ion, how ever, is not withoutdiffi culti es. For example, i t is not clear why everyspou se o f a person who undergoes a forced ab orti on or ste ril ization shou ld be deemed to have “r esist [ed]” the “coerci ve populati on con t rol p rog ram .” What if the spouse who did n ot pers onally undergo the proce dure si ded with the governmentand favored the a b orti on or st eri li zation ? The second p o ssibl e rati onale for the C-Y-Z- decisi on is that perf orming a forced abortion or ste rilization procedure
on one spou s e consti tutes persecution of the other spouse because of the impact on the latter’s abili ty to repr oduce an d raise children. The Nin th Circuit has suggested this in terpretation, s tati ng in Lin v. Ashcroft , 356 F.3d 1027, 1041 ( 9th C ir. 20 0 4), that t

he forced steril ization of a wife could be “im puted” t o her husband, “whose reproductive opport uniti es the l aw considers to be bound up with those of h is wif e.” See also C-Y-Z- , 21 I. & N. Dec. at 918 (“[T]he husbandof a sterili zed wife
can es senti ally

stand i n her shoes and make a bona fide and non- frivol ous applic ation for

as y lu m bas ed o n pr obl ems impacti ng more inti matelyon her than on him.”); see also id. at 921 n.2 (Rosenber g, B oard M emb er, con currin g) (citi n g internationa l law r egard ing “rig ht to procreate” and “right

to

. . . found a f a mily”); Matt er o f Y-T- L- , 2 3 I . & N. Dec. 601 (BI A 2 003 ) (e n b an c) (P au ley, Board Member, dissent

ing) ( “I unders tand
our ruli ng in Matterof C- Y-Z- to be based
on the the ory that t

he persecut

ion of one spouse by for ced sterili zati on is i mputed to th e ot her”). It ta kes so me e ffort to
recon cile this interpre ta tion wit h the language of the 1996 amendment, since 3 The Sixth Circu it in Abay appe ared to agree that t

he impli cat i on of B oard Member Rosen berg’s concurri ng opinion in C-Y-Z- was that a “ familymember may be eligible foras yl um based upon the physi cal harm in f licted upon another fam ily member.” See Abay , 368 F.3d at 641.7

the phrase “aperson who has been for ced to ab ort a pregnancy or to under go involuntary sterili zati on” is mo st natur ally read as refer

ring onl y t o a person who has p erson ally undergone one of thos e pr ocedures. But perhaps i t could b e argued that t

he loss of opp ortun ity to have and rais e ch ildren also cons titute s “persecut [ion] for . . . othe r resi stence to a
coe rciv e po pul ation con trol p rog ram .” 4 In this case, however , it is not necessary for us to decide w hether C-Y-Z- ’s inter pretat ion of the 1996 amendment is perm issib le. If it

is not and the 1996
ame n dment applie s onlyto pers ons on whom a forced abortion or s teri lization procedu re has actua lly been performed, Chen obviousl y cannot prevail . On the ot her hand, i f C-Y-Z- ’s interpret ation i s perm issible (and we assume for t he sake of argumentthat i t is ), t

he distincti on that t

he BIA h as d rawn between marri ed and unmarriedcouples s atis fi e s step two of Chevron

. IV. With the possible bases of the C-Y

Z- d ecision in min d, we turn to Chen ’s
ar gu ment that t

he BIA’s int erpret ation of the 1996 amendmen t , bydrawing a distincti on between married and unmarrie d couples, “evinces such a lackof ratio nality
as to b e arb itrary an d ca pric iou s.” PetitionerBr. at 16-17 (quoting Zhao v. Uni ted St at es DOJ , 265 F.3d 83, 95 (2 d Cir. 2001 )). 5 A. As we und ersta nd i t, C-Y-Z- use s marita l stat

us as a rough wayof identify ing
a class of persons whose opportuni ties for reproduction and ch ild-rearing we re seriou sly impaire d or who suffered s erious emotionali nju ry as the result of the perf orm ance of a forced abortion or sterili zati on on another

person. Of course, this use o f ma rital status as a p roxy is
u ndo ubted ly both ov er- and un derinclus ive to som e extent , butneither overnor und er-inclu siven ess is alone suffi cient to render t

he use of a metric lik e marit al stat us irratio nal. See Heller v . D oe , 509 U.S. 312, 321 (1 993) (cit ation omi tted) (“A class ific ation doe s not fai l rati o nal-ba sis review becaus e it ‘ is not made with mathematical nicety or because in pr act ic e i t r es ul ts in som e inequality.’”); Dandridge v. Wil li ams , 397 U.S. 471, 485 (197 0) ; Lofton v. Sec’ y of t he Dep’t of Children& Fami ly S ervs. , 358 F.3d 804, 822- 23 ( 11th Ci r. 200 4) (“ The S upr eme Cou rt repeat edlyhas inst ructed that n eithe r t he fact that a cl assif ication may be overinclusive or underi nclusi ve nor the

4 In the ca se of a force d aborti on, concepti on in viol ation of the progr am could cons titute the “resi stance, ” and since involuntary steri li za ti on o ft en fo ll ows prohibi ted conc eption , this same the ory migh t wo rk in tha t conte xt as w ell. 5 Whil e thi s a rg umen t b ear s s ome similarity to a rat

ional- basis Equal Protection Clau se arg um ent, it is clear that Chen is no t attempting t o make a consti tuti onal argument her e. Nor doe s Chen contend that any standard of revie w more stri nge nt than “ rationa lity” ough t to ap pl y.8

factthat a

gen er aliz ation unde rly ing a class ific ationis subje ct t o excepti ons renders the classifica tion irrational.”). 6 This princip le is we ll ill ustrated by
cases i nvolving i mmigrati on laws that atte mpt “to pro vide s om e – bu t not all – fam ili es with rel ief from var iou s immigrat ion restriction s that w oul d otherwise hinder reunifi cati on of the fam ily in thi s country. ” Fiall o v. Bell , 430 U

. S. 787 , 797 ( 197 7). Fo r exam ple, in Fiallo , the Sup re me Court upheld t he
con stitutiona lity of provis ions t ha t exclude d i llegitima te child ren an d their fathers (but n ot il le gitmat e chil dren and their mothers) from specia l prefe rence i mm ig rati on stat us. The Cour t acknowledged that

these pr ovisi ons could have the effect

of “deny[ ing] pr eferential stat us to parents and children w ho share strong ties ,” id. at 798, and the Cou rt noted the argumentthat “ the stat utorydistincti on [was] based on an overbroad and outdate d ster eoty pe concerni ng t he relat ionshi p of unwed fathe rs and their illegitim ate child ren ,” id . at 799 n.9. Nevertheless, the Cou rt conclud ed tha t t he statutory distincti on co ul d be vi ewe d a s s er vi ng two purposes: ( 1) provi ding a conveni ent way to weed out cases i n w hich “ close f amily ties” were lacki ng and (2) avoi ding “pr obl ems of p roof and th e pote nti al f or fr audulent

visa appl ications. ” Id. at 798, 799 n.8; see also Ngu y en v. INS , 533 U. S. 53, 62 (2 001 ) (fin d ing n eed f or reliab le evidentiary verifi cati on “that a biologi cal paren t-child relat

i onship exi sts” to be an im p ortant

government i nteres t jus tifying dispa rate treat

ment of illegitima te children born to citizen mo thers a nd th ose b orn to citi zen fath ers). Likewise, a law requi ring alie ns who married Unite d States citi zens wh ile in removal proceedings t o wa it outsi de th e co untry for two years bef ore qu al ify ing as I-130 “immediate relati ves” has been found to be rat ional a s a method of dete rring sha m m arria ges
. Almari o v. INS , 872 F.2 d 14 7, 15 2 (6 th C ir. 1 989) ; Anetekhai v. INS , 876 F.2d 1218, 1222 (5th Cir. 1989) (“Congress logica lly could have conclud ed that aliens w ho are engaged in dep or tation proceed ings are
more lik ely th an alie ns no t so situa ted to enter into fr audulent

marriage s as a means of avoiding e xpulsi on from the Unit ed States.”). 7 6 Indeed , the marri age rel ationis usedin
so many are as of the l aw (income tax, welfare benefi t s, pr operty , inhe rit ance, testimon ial privileg e, etc.) tha t it wou ld
seem absurd t o charact erize reli ance on marita l stat

us in C-Y

- Z- a s arbi trary and capric iou s. Cf. Mo ntgom ery v. Carr , 101 F.3d 1 1 17 (6th Cir . 1996) ( deeming rati onal the enfor cemen t of a sc hoo l antinepotism pol ic y aga in st ma rri ed couples but not coh abitants). 7 The Supreme Court has r eversed at least on e prior attem pt by this C ircuit to engage in more s earchi ng review of l inedrawing exerc ises by

the poli tica l branches of gover

nment in the area of immigration law. In INS v. Hector , 479 U.S. 85 (1986) (per curiam), the Supreme Court rej ected a hol ding allowing f

or the pos sibi lit

y of t reati ng niece s as “c hildren ” in a h ardsh ip9

Si m ila rly, we may saythat the BIA “logic ally could have concluded t hat al iens who are [married] are more li kelythan alie ns not so sit uated ” to be seve rely injured in the ways noted above wh en the ir pa rtners are forced to endure f orc e d aborti ons or ste ril ization. I ndeed, i n light of the “crushi n g caseloa d” faced by the BIA in re cen t years , see Dia v

. Ashcroft , 353 F. 3 d 228, 235 (3d Cir . 2003) ( en banc), it was entirel y r ationa l for t he Board to adopt a posi tion req uiri ng marriage , which can often be proven easi ly and
re l iably through o bjective docu mentary evidence such as marriage certifi cates or “hou seho ld regis tration booklet s.” See, e.g. , Zhao , 265 F .3d at 8 7; C-Y-Z- , 21 I . & N. Dec. at 916. By co ntrast, a rule extendi ng C-Y-Z- to non -spou ses w ould create num erou s prac tical diff iculti e s that t he B IA m ight rea sona bly have chos en to avoid. For example, in cases in which a male applic ant cla i ms to have fathered an illegitima te child who was forcibly ab orted by government offi cial s, the problem of pr o ving paternity would b e even m ore acute than thos e presented in Fiallo and Nguyen

. Moreover, theB IA might
reaso nably hav e de cide d th at, in general , f o rced abor tions an d steriliza tio n procedures tend to have a m ore severe impacton spouses t han on unmarrie d partners. The BIA might also have be en concerned that

u nmarried a sylum-seekers
wo uld falsel y cl aim to have ha d a n i ntima te relat

ionshi p with a pers on wh o suffereda forced abortion or sterili zati on, 8

a nd the BIA might have fe lt t hat it wou l d be too d ifficu lt to disting uis h between th ose unm arried p erson s wh o had a truly close relat

ionshi p with the pe rson who und erw ent the medicalprocedure a nd those unm arr ied asylum s eeke rs wh o did not. 9 Chen does not ex plain why the B IA

analysis if it c ould be sh ow n that a “pa ren tal-type relat ion ship ” ex isted

. See id. at 87. Whether any unfairne ss to t he nieces i n such “parent al-type relation ship[ s]” m ay have resulted did not en ter into th e Co urt’s ca lculus; a ll that m attered wa s that C ong ress, in defin ing “c hildren ,” had not se en fit to include nieces r aised as effecti ve ado ptee s. See id. at 90-91. 8 An analogy maybe drawn her e to the t ort of n eglige nt inflictio n of emo tio na l harm. As explained i n Restate ment (Second) of Torts § 436, reco very under this tort may be available w hen m embe rs of the immediate f

amily of a victim witness the infli ctio n of har m. Id. § 436(3) (emp hasis add ed) . “ Howe ver, where a
s trang er is i nvolved . . . t here may be suffici ent uncertainty

as to t he genuine ness or seriousn ess of the emo tio nal dis turbance to justify , as a matter of a dminist rati ve po lic y, a denialof liabi lit y. ” Id. cmt. h. Here, the BIA may have conc luded that , given the dif ficulty of d ete rmi ning the “ge nuineness” of emotionalharm felt by
one upon hearing of harm to his fiancee, the strict limit a tion of C-Y-Z- to marri ed couples was justi fied “as a matte r of adm inistr ative pol icy.”

9 Th at so me applic ants co uld
conc eivab ly be able t o present such convinci ng evide nc e is bes ide the poin t.10

was irr ationa l in dec iding on a bright- line
r ule for thi s clas s of cases , rat her tha n subm it ting each indi vidual c laim t o a detai led (and probabl y i nconclusi ve) psyc hologica l analy sis conc erning t he natu re o f a c laim ed r elatio nsh ip. For these reasons, we conclude that the BIA’s decisi on not to extend C-Y-Z- to
unm arri ed partner s sati sfies step two of Chevron

. The BIA ’s interes t in promoting adm inistrability and verifia bilit y i s suffici ent to cle ar the low hurd le present ed by the step two stand ard, esp ecially in li ght of the li mited numberof

spots al lowed by Congress for as yl um clai ms based on the 199 6 am endm ent. 10 B. Chen argues, however, that even if it is rationalnot to extend C-Y-Z- to cover al l unm arried p artners , it is irrational t o exclude him and other unmarried pers ons who wanted and indeed tri ed to get marriedbut were preve nted from doing so by a law that is

an integral part of a p rogra m o f persecution. This argument must be rejec ted for reas ons simi lar to those alrea dy discuss ed. Chen’s s ituat ion s imply sh ows that C-Y-Z- is und erinclu sive w ith respect to a narrow but sympathetic class, and as no ted, a ru le is not ir ratio nal just beca use it

is und er in cl usi ve t o so me

We note t hat Fiallo did not require any speci al excepti on to be carved out for fathers wh o cou ld pro ve ac tual pa ternity of il legi timate children when they had not
a dop te d or legitim ated th em. N or did Alm ario and Anetekhai provide those who
m arri ed during removal proceedings a n opp ortu n ity to pres ent evi dence showing that their ma rriag es w ere n ot sh am s. Such rule s, like t

he one adopted bythe B I A here, repres ent pragmatic approa ches that make it pos sibl e for an overburdened ag enc y to do the w ork w ith w hich it is cha rge d.

10 The government offers an al ternat ive
e x planation for the BIA’s distincti on between marr ied an d un marr ie d asy lum applicants, noting that “ [a] grant of asy lum to an applic ant pres ent in the United State s enables the asyl ee to have his o r her spouse and chil dren admitted to t he United S tate s as deri vative benefici aries of the asylee’s stat us.” Respondent

Br. at 19. Because “the exi st ence of a vali d, le gal marriage is re quired bef ore an immigrant visa may be i ssued, ” the government conclud e s that t

he dispar ate treatment

of marriedand u nm arried a pplica nts is “consis tent

with the stat

utorydesign and the fam ily unificatio n po lic ies underly ing the issuance of immigration visa s .” Id. This argu men t is not w ithout s om e me rit. How ever, g iven the current length of

the conditi onal asy lee waiting li st, spouses grantedcon di tional status under C-Y-Ztodaymust wait at

least seven years before theycan even apply for such a vi sa on beha lf of thei r spous e s. Acc or di ngl y , w e doub t as a pract

ical matter

that t he potenti al eligibiltyfor prefere n tialvisas actua lly operates to hasten the admittance to the U nited S tates of spou ses dire ctly persecuted under coerc ive population control programs.11

exte nt. Of course, if the Chi n ese auth oriti es’ refusalto permit Chen and Chen Gui to marry

was itse lf an act

of persecution, then C hen suffered past persecution. But although minimum marriage ages of

23 and 25 are co ntrary to
our tradi tion s and inte rnati onal prac tice , we cannot go so far as t o say that enforcementof the se law s nec essarily amounts to per secuti on. American cons ti tuti onal la w recog n izes marriage as a fundamental right, see Lovi ng v. Virg inia , 388 U.S . 1 (1967), but

al l s ta te s i mpos e mi n imum marriage age re q uirements, 11 an d we
as sum e that t

hese laws ar e cons titu tional. See M oe v . D inki ns , 669 F.2d 67, 68 (2d Cir

. 1982) (per

curiam) ( law requiring paren tal consent for marriage o f ind ividua l s under 18 dee m e d
cons titutional, as a rational means for helping “prevent [] unst able marriages among those l acking the capa city to act in their own best interests”); Ma ynard v. H ill , 125 U.S. 190, 205 (1888) (state legislature
m ay prescribe “the age at which par tie s may contrac t to ma rry”); see also Zablocki
v. Red hail , 434 U.S. 374, 386 (1978) (“[R]ea s onab le regulat ions that do not signif icantly interfere with decisi ons t o enter into the marit al relat ionshi p may legit imat e ly be im pose d.”); cf. Zablocki , 434 U.S. at 39 2 ( Stewart, J., concurri ng) (“A State maynot only ‘signi fica ntly interfere with decisi ons to enter int o the marita l relation ship,’ b ut m ay in many circumst a nces absolutelyprohibi t it .”) (foo tnote and c ita ti on o mi tted ). Laws
se tti ng reasonabl e minimum marria g e age s are also r ecognized as legit imate and desira ble under internati onal human rights la w. 12 It is c erta inly

true t hat marri age la ws in th is cou ntryse t t he mi ni mu m ag e for marriage consider ablybelow 23 or 25. Almost all s tate s set 18 a s the m inimum age to marry

withou t paren tal con sent. 13 Wh ere p aren tal con sent is p rovid ed, as it appa rently wa s in the case now befo re us, most st at es permi t mar riage at the a ge of

11 See Legal Information Ins tit ute, Co rnell Law Sch ool, Marriage Laws of the Fifty St at es , D i s tri ct of Columbia and Pue rto R i co, a t http: //www.law.cor nell. edu/topi cs/Tabl e _M arriage .htm (citin g age re quirem ents
a nd pertine nt statute s) (here inafte r Ma rriage Law s of the Fifty States). 12 See Co nven tion on Co nsen t to Marriage, Minimum Age for Marriage and Registr ationof M arria ges , De c. 9 , 1964, art. 2, 52 1 U .N.T .S. 2 31, 2 34, at h ttp: //un treaty. un.org/English/ access. as p (“States parties to the presentConvention shall ta ke leg isl ati ve ac tio n t o s pe cif y a minimum age f or marri age.”) . We note, how ever, that t

he app ar ent purpos e of the C onven tion’s minimum age requi rement ( as stated in the preamble) is not populati on control, but ra ther th e elimin atio n of chil d marriage s and the “betrot hal of young gi rls be fore the age of puberty .” Id. pm bl., 521 U.N.T.S. at 232.

13 See Marriage Law s of the Fifty States, supra note 11.12

16. 14 It i s also t

rue that the mar ri ag e l aws of other count

ries general ly set t

he minimum marriage age at 18 years or less, and it appe ars probable that no other
coun try sets the mini mum as high as does China. 15 A law or pract

ice, however, does not nec es sari ly rise to the l evel of “persec uti on” simplybecause i t does not sati sfy American constitutional s tandards
or diverges from the pa tt ern foll owed by othercountri es. As we have noted, p ersecution is an “ext

reme” concept

tha t “does not encompass alltreat ment that our society reg ard s as u nfa ir, un just , or even unlawful or unconstituti onal. ” Fatin v. INS , 1 2 F. 3d 1 233 , 1 240 & n. 10 ( 3d Ci r
. 199 3). Here, we ca nnot say that the BIA
was bound to conc lu de that minimums of 23 and 2 5 am oun ted to per sec utio n. Chen and C he n G ui w er e n ot pe rm an en tly ba rred from marry ing, a nd ma rri age at the minimum ages in ques tion would not have preclude d them from having a l ong life togethe r or f rom raisin g ch ildre n. See Li
v. Ashcroft , 356 F.3d 1153, 1164 (9th Cir. 2004) (en banc) (Klei nfeld, J., dissent ing) (“[T]he higher marriage age does not
nece ssarily restrain pe ople f rom having the number of ch ildren th ey wan t. . . . People

can
. . . stillhave 2, or 3, or 10 ch ildren, if their individ ual b io logy and prefere nces lead them to do so and the government does no t fo rc ib ly a bo rt t heir chi ldren or sterili ze them .”). It is perh aps w orth noting that t

he median ages of

firs t marriage s for men and women in this
coun tr y n ow exceed the mini mum age requ ireme nts that Chen contends amount to per secuti on. 16 Although defi ning the outerboundaries of the concept of “persecut

ion” is har d, we cannot say t hat requiring a person t o wait unti l reac hing the age of 23 or 25 i s so fa r outsid e the acceptedrealm of human decency as to
con stitute per sec utio n.

C. We acknowledg e that our r easoning may appear t o be in te nsion with tha t o f Ma v. Ashcroft , 361 F.3d 553 (9th C ir. 2004). In that c ase, the petiti oner Ma and his partner

were marrie d in a “traditio nal” Ch ine se ceremony in their vil lage. Because Ma w as underage, the marri age could not be offi ci a lly

regis tered wit

h the Chinese govern me nt. Ma’s partner conceivedtwo months later and we nt into hiding to avo id dete ctio n by th e authoriti es. Ultimat ely , however, she was foun d and forced t o undergo an abort ion,
a nd th e c ou pl e w as fin ed fo r “ ea rly” 14 Id.

15 Angel a Melch iorre, R ight to Education Pro ject, At what age? 15-21 (2d ed. 2004) (lis ti ng marriage ag e requ ireme nts 156 countri es). A few countries, inclu d ing Algeri a, Cambodia, India, Indonesi a, Togo, and Vie tnam, se t age req uire me nts a bov e 18 years. Id. 16 See Un ite d Stat es Census Bureau, Stati sti cal Abstract

of the Unit ed State s 60 (123d ed. 2 003) (noting that 85.4% of males and 74.0% of

females under

the age of 25 in the United State s have neverbeen
ma rried ).13

pregnancyand marria ge. M a sub sequ ently fled t o the Un i t edSt ates
. Wh e n he atte mpted to apply

for asy lum under C-Y

Z- , the BIA reje cted hi s clai m on the ground that he was not legal ly m arri ed under Chi ne se la w. By this time, how ever, Ma had a ctually reac hed th e le gal age to marry in China . He there fore applie d for and obtaine d a certific ate fr om the Chinese governmentindicating that his m arri ag e wa s cons idered valid, an d he s ubm itt e d this certifica te to the BIA with a mo tion to reconsider, wh ich the BIA ulti mat ely denied. Ma pe ti ti one d f orre vi ew, and the Nin th Circuit

rever se d, hold ing tha t C-Y

Z- ’s interpret ation of

§ 1101(a)( 42) could
no t ra tional ly be limi ted to e xclude

“ husbands who se marri ages would be l ega lly recognize d, but for C hina’s coerci ve familyplanning pol icie s.” Ma , 361 F .3d at 561 (em phasis add ed). Because Ma’ s m arri age had been recogniz ed by the Chinese governmentby the time of t

he BIA’s decis ion, it was unnec essary for the Nin th Circu it to reach the questi on whether the BIA ca n reaso nably refuse t o extend C-Y-Z- to
cases involvi ng persons whom the Chines e authori ties refus e to recogniz e as married. But assum ing th a t the hol ding in Ma reaches all pe rsons married in t raditional ceremonies that t

he Chinese government does not sanction, Ch en would sti ll not qu ali fy, since he does not cl aim that he and Chen G ui ever f ormaliz ed thei r relation ship in that

way. I ndeed, Chen has
never argued that he is act ually marriedin any sense, and in fact h e aff irmed precis ely the opp osite in h is asy lum appli cati on. See App. II at

265 (checki ng box label ed “not married”). Because Ma ’s express holding appl ies only to putat

ive husbands and not unmarriedpartners, it is inapposi te here

. 17 Nevertheless, we acknowledge that Ma ’s reason ing could be ap plied to
someone in Chen ’s s hoes. The Ma court reasonedthat i t is “absurd and wh olly unacceptabl e” to de n y as yl um to a person based so lel y on a consequence of a populati on c ontrol policyexpressl y “deemed by Co ngre ss to be oppressi ve and per sec uto ry.” Ma , 36 1 F .3d at 559. According to Ma , t his wo uld “con travene [] the purpose and pol icie s of the [I IRI RA] statutory amendment.” Id. at 560. In other words , t he Ma Court concl uded that the BIA ’s inter

pret a tion of § 1101( a)(42) fail ed step two of Chevron because it was clearly contrary t o Congress’s intent , or, as the Ma Court put i t, Congre ss’s “ pu rpo se and polici es.” Id. We mu st disag ree w ith this analy sis bec ause we s ee no basis for concludi ng that C ong ress’s in tent in

17 See , e.g. , Ma , 36 1 F. 3d at 559 ( “Th e questi on prese nted h ere is w hether husbands , whose marriages are deni ed recognit ion by vi rtue of t

he populati on controlprogram that Congre ss has condemned, may be deprived of eligibility for as y lu m o n the basi s of that denial .”) (emp hasis adde d); id. at 560 (“B IA’s decisi on to limit asylum eli gibili ty s o as to exclude husbands

. . . con tra venes the purpose and p olicies o f th e s tatutory
am endment.”) (emp hasis a dded ); id. a t 56 1 (“Application of t

he BI A ’s rule w ould resul t in the s eparation of a husband and wife . . . .”) (empha sis added).14

amendi ng § 1101 (a)(42) w as to afford
r elie f to every person who is a vi ct im o f any rule or practice that forms a part of the Ch ines e po pul ation con trol p rog ram
. “The starting poi nt in di scerni ng con gr essiona l intent

is the existing statutory text .

. . . ” Lamie v. U nit ed States Tr. , 124 S. Ct. 10 23, 1033 (2 004). The langu age o f the 1 996 ame ndm ent t o § 1101(a)( 42) has seve ral i ndications of intent that we think are unmist akable. The first is that proof o f “ persecution” or “well-f ounded fear of per secut i on” is absolutely required to make a succe ssful claim for as y lu m, just as was the case prior to the amendment. The second poi nt i s that, with the exception of force d aborti ons and ster ili zati on s, t he c once pt o f “per secuti on” is l eft completelyun defined

. W e infer from Congress’s useof thi s ambiguous te rm an intent to deleg ate inter preti ve authori ty to the a genc y , includi ng the abi lit

y t o decide, within a
reaso nable range, t

he preci se contour s of its meaning. FDA v. Bro wn & W ill iamson Tobacco Corp. , 529 U.S. 120, 159 (2000) (“Deference under Chevron to an agen cy’s constructionof a statute that it adm inisters is premised o n the theory that a statute’s ambigu ity consti tutes an impli ci t delegation from Con gress to the a gency to fill in the statutory gaps.”). 1 8 Third, the imp osition of a yea rly cap clea rly reveals
an i ntent to care fully

limi t the s cope of relief m ade a vailab le by the a men dm ent. Against this b ackgrou nd, it is hard to se e h ow Ma co ul d have concluded t hat
a rule l imiting C-Y-Z- t o married c ouples
was contra ry to Co ngre ss’s in tent . If Ma meant to say that i nd ividual s who suffer under a coerci ve populati on program may be el ig ib le for

as y lu m ev en if th eir sufferi ng ( or feared suff ering) is not proved or pre sum ed to r ise t o the le vel of persecution, we emp h atic ally disagr ee. 19 As we have explaine d, the a s ylum statu te plainly limi ts re lief

to cases invo lvi ng “pe rsec utio n.” That sche me n ecess arily excludes cases involving lesser harms, eve n whe n t hos e harms imp li cate t o so me degree th e humanitarian interest s that animated pas sage of the asy lum stat ute. 20

18 There is no question that Congress has delegat ed autho rity to the B IA g enera lly to “make rules carr ying th e fo rce o f law ,” cf. Mead , 533 U.S. at 22 6-2 7, and th at its inter pretat ions of am biguou s statutory te rms are entitl ed to Chevron defere n ce. Agu irre-Aguirre , 526 U.S. at 425.

19 We note that t

he opinion i n Ma never explic itly finds or

assumes that the petit ioner ha d a ctu all y s uffere d persecution.

20 For e xam ple, the s tatute extends reli ef to those who are pers ecuted “on ac count of
race .” 8 U.S .C. § 110 1(42). Th e primary purpose of tha t prov ision is n o do ubt to extend aid t o certain indi viduals who sufferthe ef fects of gross racial ine quality in their co untries of o rig in. Ye t courts routine ly deny r elie f to thos e who suffer racia l discrimination that fall s sho r t of “pe rsec utio n,” see, e. g. , Nag oulko v . I NS , 333 F.3d 10 12, 1016 -17 (9th C ir. 2003),
even though it

might be sa id that

such15

Altern ativ ely , it may be that Ma ’s po siti on was that t

he BIA’s int erpret ation of t he te rm “persecut

ion” fel l outs ide the
acce ptable rang e of m eanin gs w ithin which Congress autho rize d the a genc y to choose. However, there is no i ndication that Congress intended to pu t limits on the meaning of the t erm “persec ution” be yond tho s e imp ose d by th e no rma l und erstan din g of th e w ord

. Matter of Ac osta , 19 I. & N . Dec. 211 , at 223 (BIA 1985). (“Co ngre ss cho se no t to define the word ‘perse cution’

. . . becau se the meaning of the word was understoodto be
we ll establ ished byadminist rati ve and court pr ec ed en ts .” ). Of c ourse, with the 19 96 amendment, Congress did add the constr aint

that “pers ecutio n” co uld not be inter pretedin a w ay that would e xclude i nvolun tary st er il iz at io ns o r aborti ons . Bu t this mere ly show s that Co ngress knew how to be ve ry s peci fic re garding what consti tutedpersecution when it wanted to. Furthermore, we find it highly unl ikel y that Congress coul d have intend ed to dram atically b r oaden the notion of “pers ec ution” with res pect t o persons sufferi ng und er coe rcive p opu lati o n pr ogr ams whi le con te mp or aneousl y impo sing a yearly cap s trictl y circumscribing the rel ief avai lable to them

. An examinati on of the re levant le gisl ative hist ory only confirms our underst anding of

Co ng r es s’ s i nt en t

. We cannotlocat e any e videnc e t hat the legislators who considered t he amendment to § 1101(a)( 42) thought that pe rsons suc h
as Chen would qualifythereunde r. 21 To the contrary, it s eems that some leg islators had reservations about the ease with whic h “young Chinese singl e-unmarri ed-males ” mightfalsel y clai m eligi bili ty for asy lum under th e p roposed amendment, resul ting in a fl ood of me rit less applications . 142 Cong. Rec . S45 93 (d aily ed. May 2, 1996) (s tat ement of S en. Sim pson ). Statem ents from others s ugges t that the r efere nce to “perse cut [ion]” in the amendment was simp ly intend ed to include acti ons such as “tort ure” and “ sexu al abu se” tha t wo uld qualif y as perse cution under the prevail ing defini tion of the term

. See 142 Cong. Rec. H26 34 (dail y ed. Mar. 21, 299 6 ) (statement of R ep. Sm ith). 22 At a mo re gen eral l evel , we n ote that som e m emb ers of Co ngre ss hav e in the pa st a ctu all y c onside red—an d

denia ls di s serve Congres s’s br oader poli cy of prov iding re lief to v icti ms o f raci al injus tice

. 21 There is at lea st one s tate ment in the Congressiona l Record which speaks dispa raging ly of C hin a’s “ ma rriag e ba ns,” bu t that state men t is mad e in ref erenc e to perman ent restri ctions on marriag e motivat ed by a des ire to “avoid new birt hs of inferi or quali ty ,” and not the sort of

agebased restriction s at issue in this cas e. See 140 Cong. Rec. S327-28 ( daily ed. Jan. 28, 1994) (statem ent of Se n. Helm s).

22 In such cas es, t

he amen dme nt w ould
serve to clarify

that su ch a ctions , if t aken in response to resi stance to a coerci ve populati on controlprog ra m, should be dee me d infli cted “on acc ount of poli tica l opi nio n.”16

rejec ted—the poss ibili ty of providi ng an explic it definition for “perse cu tion” in connecti on with anothe r portion of the INA. It was rea soned that any s uc h def inition w ould
nece ssarily limi t appli cati on o f the provi sion t o particular, prese n t l y for eseea ble sit uations

. Persecution, however, has and will cont

inue to t ake
man y forms and it

is the intenti o n of the committee in reco mme nding thi s legis lati on to all ow the
m aximum am oun t o f flexib ility possibl e in its adm inistratio n. Th e inclus ion of a necess ar ily limi ted and rigi d defini tion
wo uld be inc onsiste nt w ith such an inte nt. H.R. Re p. 9 5-1452 , at 6-7 (1978 ), repri nted in 1978 U.S.C.C.A.N. 4700, 4705-06; cf. INS v. Cardoza-Fonseca , 480 U.S. 421, 449 (1987) (“In en acti ng the R efug ee Ac t of 19 80 C ong ress so ugh t to give the Un ited Sta tes suf ficien t flexib ility to respond to si tuati ons invol ving political
or reli gious di ssident s and detai nees throughout

the w orld .” ) (inter nal quotation
om itted ). To be sure, we assume that t he
mem bers of Congress who voted i n favor of the 1996 amendment t o § 1101(a)( 42) considered the Chinese populati on control program as a whole to be objec t ionab le
an d tha t they

found fault

with many spec ific featur es of the prog ram
. How ever, the 1996 amend men t to § 11 01 (a)( 42) is l imit ed in scope. Under that ame ndm ent, th e worst effect s of the Chinese program – force d ab orti ons and involuntary sterilization – are d eem ed to
cons titute “pers ecuti on,” b ut th e amendment does no t pro v ide si milar treat ment for oth er advers e effects of the pr ogr am, suc h as , to ta ke one example, dismis sal from emp loymen t for fa ilure to abide by th e o ne -c hi ld po lic y. 23 Even though a person who is fir ed for viol ating the policy

is a vi ctim of t

he objectionab le C hinese program, s uch a person ca n no t pro ve past pe rse cu tio n s im pl y b y es tabl ishi ng the occurrence of and t he
reason for the dism issal. 24 It i s app aren t,

23 See United States Dep ’t of State , Cou ntry Repo rt on Human Righ ts Practi ces—2002: China (2003) (not ing China’s reli ance on “ed ucati on , propaganda, and ec ono mic incentives, as we ll as on more coerc ive measure s such as the threat

of job l oss or demoti on and social com pensation f ees”).

24 Under the 1996 amendment the reason for th e d ism iss al ( fa ilu re to co m pl y wit h the one-chil d policy ) might wellqualif y as “resi stance to a co ercive pop ula ti on controlprogram,” but the pe rson who was fired would sti ll have to show that dismis sal was se vere enou gh to amo unt to persecution. While we exp ress no opinion
on this point, we re iter ate t ha t “persecut

ion” is an ext

reme conc ep t that “does not encompass all t reatment that our society rega rd s as unfai r, unj ust, or even unlawful o r unconsti tuti onal. ” Fatin , 1217

theref ore, that i t was notCongress’s intent to pr ovi de r el ie f fo r e very vi ct im o f any feat ure of the Chines e program. Rathe r , Congress obviously had the more modest purpose of providi ng reli ef for a much
more limi ted cl ass. Especial ly in li ght of the rather

low yearly cap on the number of asy lum applic ations that maybe grante d under the 1996 a m endm ent, the BIA ’s refusalto exte nd C-Y-Z- may be viewed as furthe ring this cong ression al goa l.

V. A few r ema ini ng issues must be addresse d. First , Chen suggest s that the beati ngs he suffered at the hands of government of fici als combinewith the forced aborti on and the marriage l icense denial in such a way as to const itute past persecution. They do n ot. Chen’s scuf fle with the loc al offi cial s does no t appe ar to have bee n se riou s. F or example, the governmentpoints out that Chen has never alle ged that t

his al tercation resul ted in any injuries that required med ical treatm ent. Respondent Br. a t 2 4. Physicalabuse simil ar to th is has be en held t o not
cons titute per sec utio n. See, e. g. , Prasad v. INS , 47 F.3d 336, 339 (9th Cir. 1995) (no past perse cu tion where pe titioner was
arres ted, hit, kicked, and detai ned for four to six hours ). The BIA found that Chen ’s experie nces with the auth orities i n China did not ri se to t

he levelof

persecution, a nd
we cann ot say that “ any reaso nable adjudic atorwould be compel l ed to conclude to the co ntra ry.” 8 U .S.C . § 1252(b )(4)(B). Chen furthe r argu es that, e ven if he di d not suffer

persecution in t

he past, he still has a well- founded fearthat he wo uld
su ff er future perse cution if he re turned to China. He poin ts to sev eral c ase s and second ary sources ge nerall y des cribi ng incide nts of h arsh tre atme nt tha t Chinese prisonoffic ia l s have infl icte d upon political prisone rs, includi ng refugees retur ned to C hin a. See Petitioner Br. at 20-22. This gene ralized evid enc e present ed by Chen, ho wev er, by no means com pels the conclu sion that the B IA erred in determi ning that

he had not “es tabli shed
a well-founde d fea r ofper sec utio n.” App. I at 3; 8 U.S.C . § 1252(b )(4)(B). Fi na lly, Chen does not appe ar to have challe nged the reje ction o f his cla im for with hold in g of

removal i n the bri ef accompanyi ng his petiti on for r ev ie w. A cc or di ng ly, the cla im ha s bee n w aiv ed

. 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, assumi ng that C- Y-Zperm issibly applie d the 1996 amendment to spo uses, we hold that the B IA’s decis io n not to extend C-Y-Z- to unmarriedpartne rs is re asonable and theref ore, un der step two of Chevron , is entitled to control l ing we igh t. We defer to this inter

pretat ion and deny t

he peti tion fo r r ev ie w.

F.3 d at 1 240 & n.10

.