This court has jurisdiction to review final orders of removal. When the BIA does not adopt the decision of the IJ to any extent, this court reviews only the decision of the BIA.
Where the BIA issued a brief opinion addressing only the issue of whether the insertion of an IUD constitutes persecution, and where the BIA left intact the remainder of its conclusions in its original decision, this court reviews the BIA’s original opinion as modified by its subsequent decision, which constitutes the agency’s final order of removal. Further, this court reviews the agency’s factual findings under the substantial evidence standard, but reviews de novo questions of law and the application of law to undisputed fact.
The Attorney General may grant asylum to an alien if he determines that the alien is a “refugee.” Section 101(a)(42) of the Immigration and Nationality Act defines a refugee as one who has suffered persecution, or has a well-founded fear of future persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added to the definition of a “refugee” 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 (such a person is 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 is deemed to have a well founded fear of persecution on account of political opinion).
In re M-F-W & L-G, 24 I. & N. Dec. 633 (BIA 2008), the BIA held that the amendment to the INA creates two categories of aliens who are deemed refugees per se, in that their political opinion exists de jure rather than as a matter of fact on which the applicant bears the burden of proof: (1) those who have been forced to abort a pregnancy, and (2) those who have been forced to undergo involuntary sterilization. The BIA concluded that neither category applies to a forced IUD insertion, as being forced to use an IUD does not amount to being forced to abort a pregnancy or being sterilized. According to the BIA, IUD use should not be treated as the equivalent of sterilization because “to sterilize” means “to make sterile” and “sterile” means “incapable of sexual reproduction.” This definition implies that sterilization is permanent and leaves one permanently incapable of having children. Unlike sterilization, IUD use is a temporary measure meant to provide for birth planning and not to remove all possibility of future birth opportunities.
The BIA also held that, beyond the two categories of those who are deemed refugees per se, the amendment includes in the definition of a refugee one who establishes that (1) she otherwise resisted China’s family planning policy, (2) she was persecuted or has a well-founded fear of future persecution, and (3) the persecution was or would be because of her resistance to the family planning policy. In terms of “other resistance to a coercive population control program,” the BIA held that removing an IUD or failing to attend a mandatory gynecological appointment constitutes such resistance because it thwarts the goals of the family planning policy. As to persecution, the BIA held that a forced IUD insertion, without aggravating circumstances, does not constitute persecution. Neither does reinsertion of an IUD after the removal of an IUD (without aggravating circumstances), or regularly required gynecological exams. Finally, even if a forced IUD insertion is accompanied by aggravating circumstances sufficient to rise to the level of persecution, under the third prong of the analysis a petitioner must still establish that the persecution is because of her resistance to China’s family planning policy. In terms of the required nexus, the BIA held that an IUD that is reinserted not to punish the alien’s resistance to the family planning policy, but merely because reinsertion is standard procedure in China, even if an IUD falls out on its own, is not sufficient to establish the required nexus.
When reviewing the BIA’s interpretation of the INA, this court employs the familiar two-step inquiry set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Under this analysis, this court first asks whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. To uphold the agency’s construction, this court needs not conclude that the agency construction was the only one it permissibly could have adopted or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Instead, this court will defer to the agency’s interpretation as long as that interpretation is reasonable. In other words, even where this court thinks that an alternative version is preferable, binding precedent dictates that this court is without authority to impose it if the agency’s ruling is permissible. This court thus rules within narrow parameters.
Congress has not determined whether a person who has been forced to have an IUD inserted is a refugee, whether an IUD insertion constitutes sterilization, or whether a forced IUD insertion constitutes persecution. Therefore, this court proceeds to step two of the Chevron analysis. Under step two, this court concludes that the BIA’s conclusion that an involuntary IUD insertion is not an involuntary sterilization is permissible. The BIA’s reasoning that sterilization makes one permanently incapable of having children, whereas an IUD is a temporary measure, is reasonable. This court therefore concludes that the BIA’s interpretation that a forced IUD insertion is not a per se ground for granting asylum is entitled to deference.
This court needs not consider the petitioner’s challenge to the BIA’s determination that involuntary IUD insertion, or involuntary IUD insertion plus mandatory gynecological check-ups, does not constitute persecution because the petitioner did not challenge the BIA’s conclusion that she failed to establish that the insertion of the IUD was or would be on account of her resistance to China’s family planning policy. The petitioner also did not challenge the BIA’s determination that the persecution at issue must be the result of resistance to the family planning policy in order to fall under the terms of statute. Therefore, any such challenge is deemed waived.
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