* In each of the thre e petitions we here consider, Attorney General Alberto R. Gonzales is, pursuant to Federal Rule of Appellate Procedure 43(c)(2), automatically

substituted for former Attorney Genera l John Ashcr

oft as Res pondent. UNIT ED S TAT ES COU RT OF A PP EALS F OR THE S ECOND C IRCU IT

_______________ August Term, 2004 (Argued: May

27, 2005 Decided: July 29, 2005) Errata Filed: August 8, 2005)

________________________________________________________ S HI L IANG L IN ,

Petitioner , —v.— U NITED S TAT ES D EPART MENT OF J USTICE and A TTORNEY G ENERA L G ONZALES , * Responde nts . Docket No. 02-4611

________________________________________________________ Z HEN H UA D ONG ,

Petitioner , —v.— U NITED S TAT ES D EPART MENT OF J USTICE and A TTORNEY G ENERA L G ONZALES , Responde nts . Docket No. 02-4629-2- ________________________________________________________ X IAN Z OU , Petitioner ,

—v.— A LBER TO R. G ONZALES , A TTORNEY G ENERAL , Respondent
. Docket No. 03-40837

________________________________________________________
B e f o r e : C ALABRESI , K ATZMANN , B.D. P ARKER , Circuit Judges
.

_______________ The petitioners appeal from summarily affirmed decisions of three immigration judge s denying their respective applications for immigration relief. REMANDED
.

_______________ Appearing for Petitioners Zhen H ua Dong and B RUNO J. B EMBI , Hempstead, NY. Shi Liang Lin: Appearing

for Petitioner Xian Zou: A LEK SANDER M ILCH , (Mi cha el Le hach, on th e brief ), Christophe

& Ass ociates, P.C., New York, NY. Appear ing for Responde

nts: D AV ID S. R UBENS TE IN , Assistant Unite d States Attorney (Sara

L. S hu do fs ky, Assistant United St at es At to rn ey, of counse l) for David N. Ke lley, United States Attorney for the S outhern District of New York, New Y ork , N.Y.

_______________-3-

K ATZMANN , Circuit Judge : In1997, the Board of I

mmigration Appeals construed § 601 (a) of the Illeg al Immigration Reform and Immigrant Responsibility Act of 1996 (“II

RIRA”) to provide that the forc e d sterilization or abortion of one spouse is an act of perse cution ag ainst the o ther spou se and that, as a result, the spouses of

those dir ectly victimized by coercive f

amily planning policies a re per se as eligible for asylum as those directly victimized themselves. See In re C-Y-Z- , 21 I. & N. Dec . 915 (BIA 1997) (en banc). T he BI A did not, however , identify the spec ific statutory

langua ge pur suant to wh

ich it deemed spouses eligible

for asylum under

II RIRA § 601(a), nor did the BI A endeavor to explain the reasoningmotivating its chosen construction. Yet it was at least partially on the basis of the BIA’s decisionin C-Y-Z- that immigration judges (“I Js”) – in decisions summarily affirmed by the BIA – denied the asylum applications of the pe titioners whose claims we consider here, two of whom (L in and Zou) are boy

friends of those dir ectly victimized

by C hina’s c oercive

family planning policies, the other of whom (Dong) is the fiancé of a woman directly

victimized by such policies. Becau se we hold that an imm igration judge’s construction of the I mmigration and NaturalizationAct is not entitled to deference un der Chevron U.S.A., Inc. v. Natural Resources Defense Council , Inc. , 467 U.S. 837 (1984), and because the BI A failed, in C-Y-Z- , to articulate a reasoned basis for making spouses eligible for asy lum under II

RIRA § 601(a) in the fir st place, we REMAND the instan

t petitions

t o the BIA so t

hat the B IA c an: (a) more pre cisely explain its rationa le for construing II

RIRA § 601(a) to provide that the “for ced sterilization of one spouse on account of a

ground protected under

the Act is an act of persecution aga inst the other spouse” and that, as a result, the spouses of those directly victimized by coercive f

amily planning

policies are per
se as eligible for asy

lum as those directly victimized themselves, C-Y-Z- , 21 I. & N. Dec . at 919; and-4-

(b) clarify w

hether, when, and why

boyfriends and f

iancés may or

may not similarly

qu al ify as refugees under II

RIRA § 60 1( a). We retain jurisdiction to rule on the instant petitions after disposition of the remand. I. B ACKGROUND The Immigration and Natura lization Act (“INA”

or “Act”) vests the Attorney Genera l with the discretionary a

uthority to gra

nt asylum to any

alien who is a “re fugee ,” that is, a person unable
or unwilling to return

to his or he

r native country because of “persecution or a well-founded fe ar of persec ution on ac count of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Prior to 1996, the

BIA construe d the Act t

o permit vi ctims of Ch

ina’s co er ci ve fa mi lyplanning policy to claim “ref ugee” status on ly if th e v ic ti ms de mo ns tr at ed th at Ch in a’ s f am il yplanning policy had bee

n or would be “selec tively applied” to them on the basis of a protected ground. See In re Chang , 20 I. & N. Dec . 38, 44 (BIA 1989). B ut in 1996, Congress amended the statutory definition of “refugee” to broa den the number of individuals eligible for as yl um in connection

with coer cive fa mily -plannin

g polici es such a s China’s. To wit, Cong ress pro vided, in § 601(a) of the Illeg al Immigration Reform and I mmigrant Responsibility Act of 1996 (“II RIRA”), that: [A] person who has been forced to abort a pr egnancy or to undergo involuntary sterilization, or who has been persecuted for fa ilure or refusal to u

nde rgo such a procedure or f or other resistance to a coercive population controlprogram, shall be deemed to have been persecuted on account of

political opinion, and a pe rson who has a well

founded fear th at he or she will be forced to un dergo such a procedure or subject to persecution for such failure, refusa l, or resistance shallbe deemed to have a well founded fea r of persecution on account of political opinion.1 We note tha t the 1,000

person- per-y ear ca p has bee n lifted by

§ 101(g) of the r

ecently enacted REAL I

D Act. See REAL I

D Act of 2005, Pub. L. No. 109-13, § 101(g ), 119 Stat. 231 (May 11, 2005) (

repealing the IIRI

RA provision that initially imposed the cap). Accor dingly, a construction of II

RIRA § 601(a) can no long er rely – in whole or in part – on the existence of an annual cap, as did the IJ’s construction of § 601(a ) in Lin
. -5- See Pub. L. No. 104-208, § 601(a), Title VI-A, 110 Stat. 3009-546, 3009-689 c odified at 8 U.S.C. § 1101(a)(42). Not long thereafter, the BI

A held that, under II

RIRA § 6 01 (a), the forced sterilization or abortionof one spo

use is an act

o f persecution against the other spouse and that, a s a result, the spouses of

those dir ectly victimized by coercive f

amily planning policies a re per se as eligible for asylum as those directly victimized themselves. In re C-Y-Z- , 21 I. & N. Dec. 915 (BI A 1997) (en banc). Unfortunately, a s the Third Circuit has noted and as we will discuss in greater detail below, the BIA “did not explain the basis for this conclusion,” Cai Luan Che n v. Ashcroft , 381 F.3d 221, 225 (3d Cir. 2004), nor did the BIA c larify or su pplement its analysis in any subsequent opinion. Yet it was at least partially on the ba sis of the BIA’s dec ision in C-Y-Z- tha t I Js denied the asylum applications of the petitioners whose claims we consider here: Shi Lian g Li n claims that he suffered persecution in China when his girlfrie nd – whom he could not then legally

marry because of her y

oung age – was forc ed to have an abortion. However, the IJ denied Lin’s a

pplication on the ground that it would not be “appropriate to expand .
. . Matter of C-Y-Z- to include unmarried couples.” The I J reasoned that such an expansion would be inappropriatebecause, inter alia , Congress had imposed a 1,000 person-per-y ear cap on the number of persons eligible for

asylum under I

IRI RA § 601(A) and, given this cap, opening the immig ration floodgates to non-spouses coul d jeopard ize the ability of those individuals more directly harmed by coercive family

-planning policies to secure immigration relief. 12 Zou also claims to have vocally protested the decision to subject his girlfriend to a forced abortion and that, in the wake of this protest, family planning officials pushed him and threatened him. The IJ deemed this aspec t of Zou’s claims not credible. Given that we are otherwise remanding Zou’s c ase, we need not and do not assess the probity of this particular credibi lity

determination. We a

lso note th at the I

J in Zou’s c ase expre ssly

stated tha

t “[w]ith respect to the issue of the respondent’s girlfr iend’s abortion” he would “make neither a negative or positive credibility finding.” -6- Another IJ similarly re

jected petitioner Xian Zou’s claim that he suffe red past persecution when his girlfriend was forced to have a n abortion. 2 In Zo u’s cas e, t he IJ cited C-Y-Z-, but argued

– without pr

ovidin g any

meaningful analy sis – that there was “absolutely no way that Section 101(a)(42) of the

Imm igra tion a nd Na tiona lity Act a nd sup porti ng c ase l aw ap

ply [to Z ou]”because Zou had not married his girlfriend in either a traditional or legal ceremony
. Fi na ll y, an IJ denied the application of petit ioner Z hen Hua D ong, who sought asy lum in
connec tion with th e perse cution of his fiancée , unlike petitioners Lin and Zou who sought asy

lum incon necti on with the persecution of their respective girlfriends . Dong claims that his fiancée discovered

that she was pregnant during a routine exam in Aug ust 1998 and

was forced to have an abortionthat same day. Dong further claimed that he, himself, was wa rned by fami ly planning officia ls that he would be fined and sterilized if his fiancée became preg nant again. Finally , Dong claimed that his fiancée became preg nant for a second time in the summer of 1999 and th at alt hough he was able to flee, she ultimately wa s subjected to a second forced abortion in November 1999
. Alth ough all of Dong’s allegations were deemed credible (pursua ntto a stipulation of the parties), the IJ held

that Dong

failed to establish eligibil ity

for asylum. The

IJ a rgu ed t hat alt hou gh t he B IA held, in C-Y-Z- , that “the spouse of a person who was forced to undergo an a bortion or sterilization pursuant to a coercive population control program is . . . a r efugeeunder [II

RIRA § 601(a)],”th e BIA has not “fur

ther exten

ded the pr

otection s of this amended definition of refugee to fia ncées or-7-

girlfriends or boyfriends of people who have been forced to under go an i nvolunt ary abor

tion or sterilization.” Accord

ingly , the IJ held that D ong cou ld not esta

blish eli gibi lity

for asy lum in connection with his fiancée’s forced abor tions. The BIA summarily

affirmed the IJ’s decision in each of these three cases pursuant to the BIA’sstreamlining regulations – that is to s ay , in each of these three cases, a single Boa

rd member affirmed, without opinion, the results of the IJ’s decision below. See 8 C.F.R. § 1003.1(e)(4). II. D ISCU SSI ON It is well-settled that wh en the BIA summarily affirms an IJ’s decision, we re view the decisionof the IJ directly
. Secaida-Rosales v. INS , 331 F.3d 297, 305 (2d

Cir. 2003). Yet we have
never before discussed whether an I J’s cons truction of the INA is entitled to review unde r the deferential standards set forth in Chevron U.S.A., I nc. v. Nat ural Resou rces De

fense Cou ncil , Inc. , 467 U.S. 837 (1984), where, as here, an I J has engaged

in statutor

y construction and the BIA ha s summarily affirmed. Accordingly , we address this question at the threshold. This Circuit has previ ously recog nized that “[a]n agency interpretation ‘qualifies for Chevr on defere

nce whe n it appea rs that Con

gress d elega ted authority

to the ag ency

gener all y t o
ma ke rules carry

ing the force of law, and that the agency interpretation claiming defere nce wa s promulgated in the exercise of that authority .” Coke v. Long Island Care at Home, Ltd. , 376 F.3d 118, 130 (2d

Cir. 2004) (quot ing United States v. Mead Corp. , 533 U.S. 218, 226-27 (2001)). Here, it is beyond ca

vil that Congress has, as a genera l matter, delegated the authority to make immigration rules carry

ing the force of law; the INA, after a ll, unambiguously vests such powe r in the Attorney Genera l, among others. See, e.g. , 8 U.S.C. § 1103(a)(1) (providing that the Attorney General’s determinations and rulings on questions of immigration law are controlling ); 8 U.S.C. §3 8 C.F.R. § 1 003.1(g ) provide s: Decisions as precedents. Except as Board [i.e. BI A] decisions may be modified or overruled by

the Board or the Attorney General, decisions of the Boa rd, and d ecisions of the Att

orney Genera l, shall be binding on all officers and employ

ees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States. By majority vote of the permanent Board members, sele cted decisions of the Board rendered by a three-member panel or by the Board en ban c may be des ignate d to s erve as preced ents i n all p roceed ings involving the same issue or issues. Selected decisions designated by the Board, decisions of the Attorney General, and decisions of the Secretar y of Homeland Security to the e xtent authorized in paragraph (i) of this section, shall serve as precedents in all proceeding s involving the same issue or issues. -8- 1158(d)(5)(B) (provi din g that the Attorney General “may

provide by re gulation for any other conditions or limitations on the consideration of an application for asy lum not inconsiste

nt with this [Act]”); see also I

NS v. Aguir

re-Aguir re , 526 U.S. 4 15, 424 (1 999) (hol din g that principles of Chevron deference are applica ble to the Attorney Ge

neral’s constructions of the INA, g enerally, a nd to the BIA, specif

ically, prec isely be cause Congre ss has delegated rule-making pow er to the Attorney General and the Attorney General has, in turn, further deleg ated rule-making power to the BI A). The operative question i s whethe r an IJ’s summaril

y affirmed

construction of the

INA is “promulgated

in t he exercise of” the Attorney General’s authority . We hold that it is not for two principal reasons. First, although the Attorney Gener al h as expressly deleg ated rule-making authority to the BIA , s ee, e.g. , 8 C.F.R. § 1003.1(g), 3 the government does not point to any rule or regulat ion indicatin

g that th e Attorne

y G eneral ever int ended to –

let alone did in fact –

delegat e similar rule-makingauthority

to the IJ s , themselves. Indeed, ag ency pra ctice strongly

suggests that the more than 200 IJs employed by the Executive Office for I

mmigration Review at 53 immigration4 See U.S. Department of Justice, Executive Office for I mmigration Review, Office of the Chief I mmigrat ion Judge, http://www .usdoj.g ov/eoir/o cijinfo.h tm.
-9- courts around the country 4 lack the juridical power to issue decisions that are in any way

binding on future parties, on one another, or on theBIA. Cf
. Mead Corp. , 533 U.S. at 233 (noting, in declining to afford Chevron deference to the agency

construction there at issue, that the agency itself treated the classifications it had made as binding only in limited circumstance s and that, furthermore, “[a]ny suggestion

that rulings intended to have the force of law a r e being churned out at a rate of 10,000
a year a t anagency ’s 46 scattered offices is simply self-refuting”). Absent the power to issue binding decision s, IJs cannot, themselves, be said to possess the requisit e ability to issue, on behalf of the Attorney Genera l, a “rule” carry

ing the force of law – beca use one of the hallmarks of a legal “rule” is that it will, in fact, apply equa

lly in all cases of a similar kind. See Black’s Law Dictionary 1357 (8th ed. 2004)

(definin g “rule ” to mean

“an esta blished a nd author itative st andard or princip le; a general norm mand

ating or guiding conduct or action

in a give n ty p e of situation”). Indeed, were
we to accord Chevron deference to non-binding I J statutory interpretations, we could find ourselve s in the imposs ible positi on of having to uph old as re asonable

on Tuesda

y one constr

uction tha

t i s completely antithetical to anothe r construction we had

affirmed as reasonable the Monday before. Such a scenario cannot be countenance d in a system of law. Se cond and simila

rly , we belie

ve that a summarily

affirme d IJ dec ision als o cannot b e construed as a “rule” promulgated by the BIA on behalf of the Attorney Gene ral. The government stressed at oral argument that a summarily affirmed IJ decision is deserving of deference because

the B IA – in summarily affirming – deems the IJ’s decision to be a “final ag ency de ter mination ” pursuant to 8 C.F.R. § 10 03.1(e) (4). How ever, the fact that the BI A deemsan IJ’s decision to be a-10-

“final agency

determination” does not transform the IJ’s legal construction into a BI A rule carry

ing the force of law. For one thing, the BIA’sstreamlining regulations expressly pr ovide that when the BIA summarily affirms an I J’s decision , the BI

A approv es only

“the re sult

reached in the decision below; it does not

necessa rily imply approval of all of the r easoning of that decision.” See id
. Thus, when a court of appeals is faced

with a BIA’s summary

affirmance, the court has no way of knowing that the BIA has, in fac

t, adopted the IJ’s particular construction of a statute when the court is asked to assess its reasonableness. And in addition, as already discussed above, agenc

y pr actice sugge sts that neither the BIA, nor

the IJs, treat summary

affirmances as binding in any event. There is, in

sum, no reason to believe that an IJ’ssummarily affirmed de cision contains the sort of author itative a nd conside

red statu tory construction that Chevron deference was designe d to honor. As a result, we decline to extend Chevron deference to any statutory construction of the INA set forth in a summarily af firmed IJ opinion. Of course, individual IJ decisions may be entitled to the lesser

form of deference established under Skidmore

v. Swift & Co. , 323 U.S. 134 (1 944), to th e extent tha t such dec isions poss ess “thos e factors which give [the agency ’s interpretation] power to persuade, if lacking power to control.” Id
. at 140; see also Mead Corp. , 533 U.S. at 235-36. We need not consider this issue here, however, because even as sumi ng arguendo th at IJ decisions are generally entitled to Skidmore

deference, the IJ decisions before us do not possess any persuasive power. The rea son is si mp le: bec aus e th e BIA failed, in C-Y-Z- , to artic

ulate a r easoned basis for makin

g spouse s eligib le for asy

lum under II RIRA § 601(a), IJs cann ot po ss ib ly advanc e princi pled – let alone pe rsuasive – reason s to disting

uish between, o n the one hand, the BI A’s decision to create spousal eligibility under II RIRA § 601(a), and, on the other hand, the eligibility of boyfriends a

nd fiancés under tha

t same statutory provision.-11-

For much the same reason, it is impossible for us to properly determine, upo n a de novo review of II RIRA § 601(a), whether to a ffirm or reverse theresults r eached inthe instan

t petitions
. Alth ough admittedl

y th is Court ha s previou sly

deferr ed to the result of the BIA’s dec ision in C-Y-Z-,
see, e.g., Zhou Yun Zhang v. I NS , 386 F.3d 66, 73 (2d Cir. 2004), a fresh lo ok at C-Y-Z- reveals that the BIA never

adequately

explained how or why, in the first instance , it constru ed I IRI RA § 601(a) to permit spouses of those directly vic timized by coerci

ve fa mi ly planning

policies t

o become eligible for asylum themselves. To be clear, we do not

sugge st that the

re can b e no such

basis – on that we take no stand whatsoever – only that the BIA failed to supply it. The B IA never, for example, identified the specific statutory language pursuant to which it deeme d spouses e ligible

for asylum under II RIRA § 601(a), nor did th e BI A endea vor to expla

in the re asoning

motivating

its desired construction. Frankly , it appears to us that the BIA’ s analysis in C-Y-Z- rested largely on the Immigration

and Natu ralizatio n S ervice ’s conce ssion in tha t case . See, e .g., In re

C-Y-Z- , 21 I. & N. Dec. at 918 (stating that “[t]he Service also conceded . . . that the husband of a ster ilized wife can essentia lly stand in he

r shoes” ); id. (noting that “[w]e find t hat the applicant in this case has established

eligibility for asy

lum by virtue of

his wife’s forced sterilization. This positio n is not in dispute, for the Service conceded in its appeal brief that the spouse of

a woman who has been forced to underg o an abor

tion or ste rilization p

rocedur e can the reby establish past per secution

”); id. at 919 (holding that “ [i]n

view of the enact

ment of se ction 601( a) of the II RIRA and the agreement of the parties that forced sterilization of one spouse on account of a g round protected under the Act is an act of persecution against the other spouse, the applicant has established past persecution”). Thus, because the BIA has nev er adeq uatel y explai ned it s rati onale for est ablis hing spousal eligibil ity under II RIRA § 601(a), we ca

nnot reasonably de

termine the status of boyfr iend and fiancé5 We note that our Court has recently held that a parent or parent-in-law of a person persec uted unde r a coer cive fa mily planning policy is not per se as entitled to asylum under II RIRA § 601(a) as those directly victimized themselves. See Ai Feng Yuan v. U.S. Dep’t of Justice , Nos. 02-4632-ag, 02-4635-ag, 2005 WL 1745200, __ F.3d __ (2d Cir. Jul. 26, 2005). We believ e, howev er, that neither this holding

nor, of c ourse, th e dicta o ffere d in suppor t of it necessa rily compels a

specific outcome i

n the cas es befor

e us. -12- eligibil ity under I IRI RA § 601(a). Of course, it may be the case that

permissible distinctions can be drawn between spousal eligibility , on the one hand, and boyfriend and fiancéeligibility, on the other. It may also be the c ase, however, that the rationale for spousal eligibility applies with equal logicand force to the elig

ibili ty of boy

friends and fiancés. Until the BI A has clarified why

it established spousal eligibility in the first instance, we cannot know. 5 The go ve rn me nt su gge st s t ha t w e m ay s im pl y s upply our own rationale for the BI A’s decision in C-Y-Z- and then act accordingly
. But the Supreme Court has made clear that “[i]t will not do for a court t o be compe lled to g

uess at the theory unde

rlying [a par

ticular] agency ’s action;
nor can a co urt be expe cted to chisel that which must be precise from what the agenc y has left vag

ue and indecisive .” SEC v. Ch enery Corp. , 332 U.S. 1 94, 196-9 7 (1947). It is n ot diffic ult to understand

why . Were co

urts oblig ed to cre ate and a ssess ex-p ost justif ications f or inade quately reasoned agency decisions, courts would, in effect, be conscripted into making policy . Such an activity is, for myriad and obvious rea sons, more properly the province of other

bodies, pa

rticular ly where, as here, the other body is an agency

that can bring to bear

particular subject matter expertise. Accord ingly , we must r

eject the gover nment’s e ntreaty to adjudic ate by

ex-post hy

pothesis. For all the reasons stated above, werem and th e in st ant pet it io ns t o t he B IA so th at t he B IA
can: (a) more precisely

explain its rationale for construing II RIRA § 601(a) t o provide th at the “forced sterilization of one spouse on account of a ground protecte d under the Ac t is an a ct of-13-

persecution against the other spouse” and that, as a res

ult, the spouses of those directly victimized by coercive family

planning policies are per se as eligible for asy lum as those directly victimized themselve s; and (b) clarify whether, when, and why

boyfriends and f

iancés may

or may not similar

ly qualify as refugees pu

rsu ant to IIRIR A § 601(a). This panel retains jurisdiction to rule upon the instant petitions and decide the issues on appeal after the disposition of the remand.