Of the Eighth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-2083

JIA DUAN DONG,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Boudin, Hansen, and Lipez, *

Circuit Judges. 

Theodore N. Cox on brief for petitioner.

Manuel A. Palau, Trial Attorney, Office of Immigration

Litigation, Michael F. Hertz, Acting Assistant Attorney General,

and Terri J. Scadron, Assistant Director, on brief for respondent.

November 6, 2009
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LIPEZ, Circuit Judge. Petitioner Jia Duan Dong, a

citizen of China, seeks review of a decision of the Board of

Immigration Appeals ("BIA") affirming the denial of his application

for asylum. Dong argues that the BIA erroneously failed to

consider whether he qualifies for asylum under section 601(a) of

the Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat. 3009-546, which extends

refugee status to certain individuals who have been or will be

subjected to coercive population control procedures such as

involuntary sterilization, or who have been or will be persecuted

for resisting a coercive population control program.

Concluding that the BIA did not err, we deny the

petition.

I.

Dong, a citizen of China, entered the United States

without admission or parole at an unknown port of entry on the

Mexican border on March 10, 2004. Several months later, on

December 10, 2004, Dong filed an application for asylum,

withholding of removal, and protection under the United Nations

Convention Against Torture. The Department of Homeland Security

commenced removal proceedings on February 3, 2005. On May 3, 2005,

an immigration judge ("IJ") found Dong removable as an alien

present in the United States without admission or parole, a status

he conceded. See 8 U.S.C. § 1182(a)(6)(A)(i). A hearing on the
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merits of Dong's asylum application then occurred before the same

IJ on July 7, 2005.

According to petitioner's testimony, as well as other

evidence before the IJ, Dong was born in 1963 in Fuzhou, the

capital city of China's Fujian Province. Dong was raised in Fuzhou

and eventually took a job in a local paper factory. On November

28, 1990, Dong married Kangzhen Jiang in a traditional ceremony.

The marriage was registered with authorities on June 17, 1991, and,

on August 1, 1991, Kangzhen gave birth to their first child, a

girl. Two months after the birth, Chinese family-planning

authorities required Kangzhen to submit to the insertion of an

intrauterine device ("IUD"). Dong was not present when this

occurred. Afterwards, Kangzhen was required to regularly report to

a local hospital for gynecological exams to ensure that the IUD

remained in place.

During one such examination on May 10, 1993, nurses

discovered that Kangzhen had become pregnant again, despite the

IUD. According to Dong, who was not present at the exam, Kangzhen

pleaded with family-planning authorities at the hospital to allow

her to continue the pregnancy, but they forced her to abort it.

Nurses physically restrained Kangzhen by pinning her down, and the

abortion procedure, which lasted about an hour, was painful. Dong

described her as "mentally unnormal" after her return home.
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After the abortion, authorities fitted Kangzhen with a

new IUD and again required her to submit to gynecological exams

three times a year. In 1995, four years after the birth of their

first child, Dong and Kangzhen applied for a "birth permit" to have

a second child. According to Dong, the authorities informed him at

that time that Chinese law would require that he or Kangzhen be

sterilized after the second birth. The permit was eventually

approved; on June 9, 1996, Kangzhen gave birth to a boy.

Dong testified that shortly after the birth of his second

child, a group of officials came to his home to enforce the

sterilization policy. Although Dong was at work at the time, his

wife later told him that the officials brought her to a local

hospital and forced her to undergo a sterilization procedure. By

the time Dong learned of the situation and traveled to the

hospital, the procedure had already been completed.

Dong claims that he resolved to leave China after the

sterilization, explaining that the incident was "a permanent scar

that they put into our life, and it was a form of persecution." 

Because he did not want to leave while the children were young,

however, he waited four years before making his first attempt to

leave China. After several unsuccessful attempts, he left China on

January 26, 2004, eight years after his wife's sterilization.

Kangzhen and the children remained in Fuzhou.
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The IJ denied Dong's application, finding that Dong's

assertion that he left China because of the sterilization was not

credible. An appeal followed, and the BIA remanded the matter to

the IJ for further findings as to whether Dong's testimony about

the abortion and sterilization procedure was credible. The IJ

issued a second order on May 10, 2007 in which he found that none

of Dong's testimony was credible, and he again denied the

application on that ground. Dong appealed once more, and the BIA

affirmed the IJ's decision on July 28, 2008. The Board declined to

address the issue of Dong's credibility, finding instead that

Dong's testimony, even if true, did not establish his eligibility

for asylum, withholding of removal, or protection under the

Convention Against Torture. Dong then filed the present petition

for review, which is limited to the denial of asylum.

II.

The Immigration and Nationality Act authorizes the

Attorney General, in his discretion, to grant asylum to an alien

who qualifies as a "refugee" within the meaning of the Act. See 8

U.S.C. § 1158(b)(1)(A); INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992); Touch v. Holder, 568 F.3d 32, 38 (1st Cir. 2009). The term

"refugee" includes any person who is unable or unwilling to return

to his country of nationality "because of persecution or a

well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political
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opinion." 8 U.S.C. § 1101(a)(42). To be eligible for asylum, an

applicant must therefore establish as a threshold matter that he

has suffered past persecution on account of one of the five

protected grounds, or that he has a well-founded fear of future

persecution on account of one of those grounds. See 8 C.F.R.

§§ 1208.13(a)-(b), 1208.14(a).

Dong claims that he was and will be persecuted "on

account of . . . political opinion," relying on the broadened

definition of that phrase set forth in section 601(a) of the

Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat. 3009-546. Section 601(a)

provides:

[A] person who has been forced to abort a

pregnancy or to undergo involuntary

sterilization, or who has been persecuted for

failure or refusal to undergo such a procedure

or for other resistance to a coercive

population control program, shall be deemed to

have been persecuted on account of political

opinion, and a person who has a well founded

fear that he or she will be forced to undergo

such a procedure or subject to persecution for

such failure, refusal, or resistance shall be

deemed to have a well founded fear of

persecution on account of political opinion. 

8 U.S.C. § 1101(a)(42). Congress enacted section 601(a) "for the

express purpose of overturning the BIA's decision in Matter of

Chang, 20 I. & N. Dec. 38 (B.I.A. 1989)," which had held that

involuntary sterilization pursuant to China's "one child" policy

did not constitute persecution on account of a protected ground.
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Lin-Zheng v. Att'y Gen., 557 F.3d 147, 151 (3d Cir. 2009) (en banc)

(citing H.R. Rep. No. 104-469(I), at 173 (1996)). As the 1996

amendment makes clear, an individual who has been (or will be)

subjected to coercive population control procedures is now "deemed"

to have been persecuted on account of political opinion, as are

individuals who have been (or will be) persecuted for failing or

refusing to undergo such a procedure or for resisting a coercive

population control program.

The BIA originally interpreted the involuntary

abortion/sterilization clause of section 601(a) to extend to both

the victims of those measures and their spouses. See Matter of

C-Y-Z-, 21 I. & N. Dec. 915, 918 (B.I.A. 1997) (en banc) ("[T]he

spouse of a woman who has been forced to undergo an abortion or

sterilization procedure can thereby establish past persecution.");

see also Matter of S-L-L-, 24 I. & N. Dec. 1, 4 (B.I.A. 2006) (en

banc) (reaffirming and clarifying the holding of Matter of C-Y-Z-);

Zeng v. Gonzales, 436 F.3d 26, 28 (1st Cir. 2006) (acknowledging

the BIA's interpretation). Dong relied on that doctrine -- which

we shall refer to as the "spousal bootstrapping rule" -- throughout

the proceedings below, arguing before the IJ and the BIA that he

was eligible for asylum because of Kangzhen's forced abortion and

sterilization.

The legal landscape shifted during the pendency of Dong's

second appeal to the BIA, however. Before the briefs were filed,
 Two other circuits reached the same conclusion in subsequent 2

cases. See Yu v. U.S. Att'y Gen., 568 F.3d 1328, 1332-33 (11th

Cir. 2009) (per curiam); Lin-Zheng v. Att'y Gen., 557 F.3d 147, 149

(3d Cir. 2009) (en banc).

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the Second Circuit held that the BIA's spousal bootstrapping rule

contravened the unambiguous text of section 601(a). See Lin v. 2

U.S. Dep't of Justice, 494 F.3d 296, 300 (2d Cir. 2007) (en banc).

Then, after Dong had submitted his brief to the BIA, the Attorney

General issued a decision expressly abrogating the spousal

bootstrapping rule. See Matter of J-S-, 24 I. & N. Dec. 520, 536-

37 (A.G. 2008) ("[T]he spouse of the physical victim of [a coercive

population control] procedure is not someone who can be considered

per se to have faced, or to have a well-founded fear of facing,

'persecution' 'on account of' 'resisting' a coercive population

control program . . . based solely on the fact that he or she is

married to the victim.") (emphasis in original). The BIA concluded

that Dong's asylum claim was foreclosed by the Attorney General's

decision and affirmed the IJ's denial of his application on that

basis.

Dong does not challenge the validity or applicability of

the Attorney General's decision in the present petition. Instead,

he now claims that his own actions bring him within the "other

resistance" clause of section 601(a). See 8 U.S.C. § 1101(a)(42)

(providing that an individual who was persecuted, or has a wellfounded fear of being persecuted, for "other resistance to a
 Dong's brief is not a model of clarity with respect to the 3

relief requested. For the sake of thoroughness, we consider all of

the possibilities suggested by his filings.

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coercive population control program" shall be "deemed to have a

well founded fear of persecution on account of political opinion").

To be eligible for asylum under that provision, an applicant must

show that he engaged in resistance to a coercive population control

program and that he was persecuted, or has a well-founded fear of

being persecuted, for that resistance. See Lin, 494 F.3d at 313;

Li v. Ashcroft, 356 F.3d 1153, 1158-60 (9th Cir. 2004) (en banc).

According to Dong, the BIA improperly refused to consider whether

his flight from China constituted "resistance" within the meaning

of section 601(a). He therefore asks us to do one of three things:

(1) remand the matter to the BIA with instructions to determine

whether his flight renders him eligible for asylum; (2) rule as a

matter of law that his flight renders him eligible for asylum; or

(3) instruct the BIA to remand the matter to the IJ for further

factfinding on the "other resistance" issue.3

Dong's first request is foreclosed by the procedural

background of his case. His argument suggests that the BIA

arbitrarily failed to consider a potentially outcome-determinative

argument that was clearly before it. Cf. Cordero-Trejo v. INS, 40

F.3d 482, 492 (1st Cir. 1994) (remanding for further proceedings

because, inter alia, the BIA failed to consider the applicant's

"pattern or practice" persecution argument); Abdulai v. Ashcroft,
 Dong apparently meant to invoke the Lin court's observation 4

that the spouse of an individual who has been subjected to coercive

population control measures, although not automatically eligible

for asylum, might nevertheless be eligible under section 601(a)'s

"other resistance" provision. See Lin, 494 F.3d at 313.

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239 F.3d 542, 549 (3d Cir. 2001) ("A decisionmaker must actually

consider the evidence and argument that a party presents.")

(internal quotation marks and citations omitted). It is true that

the BIA did not consider whether Dong's flight amounted to "other

resistance." However, Dong never presented that argument to the

BIA in the first place. As we have indicated, Dong relied almost

exclusively on the spousal bootstrapping rule throughout the

administrative proceedings. He did not mention "other resistance"

at all until his second appeal to the BIA. Even then, he did not

argue that he had resisted a coercive population control program by

leaving China. Rather, he asked for a remand so that he could

attempt to muster unspecified evidence of resistance:

In the alternative, the case should be

remanded to allow the respondent to testify

more fully as to the events that occurred when

his wife was forcibly aborted and sterilized

to see if his actions may have constituted

"other resistance" as required by the recent

Second Circuit decision in Lin v. U.S.

Department of Justice.4

Putting to one side the issue of whether the BIA erroneously denied

Dong's request for a remand for further factfinding, see infra, we

cannot fault the Board for failing to consider an altogether

different merits argument that was never urged before it. See Yu
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v. Gonzales, 502 F.3d 17, 20 (1st Cir. 2007) (rejecting the

applicant's attempt to "change the nature of [her forced abortion]

claim by shifting her focus in the appellate tribunals" to her

resistance efforts).

Dong's second request -- that we find as a matter of law

that his flight renders him eligible for asylum -- fails for

similar reasons. We have consistently held that "arguments not

raised before the BIA are waived due to a failure to exhaust

administrative remedies." See Molina De Massenet v. Gonzales, 485

F.3d 661, 664 (1st Cir. 2007). As we have explained, Dong never

argued before the BIA that his flight from China constituted "other

resistance to a coercive population control program." His attempt

to raise that argument for the first time in this court is

therefore unavailing. Id.; see also Olujoke v. Gonzales, 411 F.3d

16, 22-23 (1st Cir. 2005) (rejecting an applicant's attempt to

"resurrect" a claim in the court of appeals where the applicant

"failed to make any developed argumentation in support of that

claim before the BIA").

Finally, to the extent that Dong means to challenge the

BIA's refusal to remand for further factfinding, we review that

decision for abuse of discretion. Pakasi v. Holder, 577 F.3d 44,

48 (1st Cir. 2009). We may reverse under that deferential standard

only if the denial was "made without a rational explanation,

inexplicably departed from the established policies, or rested on
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an impermissible basis." Id. (internal quotation marks and

citations omitted). None of those factors are present here. Dong

did not explain to the BIA what additional facts he would have

presented if the case had been remanded. Nor did the record before

the BIA contain any obvious signs of resistance that could have

been explored further. Faced with a record and briefs that failed

to show how further factfinding would aid Dong, the BIA properly

exercised its discretion in declining to remand. See id. (finding

that the BIA did not abuse its discretion in refusing to remand

when the applicant failed to present any evidence that would have

altered the outcome on remand).

The petition for review is DENIED.