This court has jurisdiction over a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). Where the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, this court’s review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.
This court reviews questions of law de novo and findings of fact for substantial evidence.
In Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), the Attorney General concluded that INA § 101(a)(42) cannot be read to confer automatic or presumptive refugee status on the spouses of persons who have been physically subjected to a forced abortion or sterilization procedure pursuant to a foreign government’s coercive population program. The Attorney General in J-S- thus overruled the BIA’s earlier decisions in C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997), which held that the spouse of an individual forced to undergo an abortion or sterilization is prima facie eligible for asylum, and Matter of S-L-L-, 4 I. & N. Dec. 1 (BIA 2006), which limited C-Y-Z- to hold that only officially recognized spouses of victims of forced abortion or sterilization benefitted from a per se finding of past persecution.
This court must first decide whether the Attorney General’s most recent interpretation of INA § 101(a)(42) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), is legally controlling. When reviewing decisions by an administrative agency, this court applies Chevron deference. Under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), this court first asks whether the statute is silent or ambiguous with respect to the specific issue, and if so, whether the agency’s interpretation is based on a permissible construction of the statute.
The Attorney General’s conclusion in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), is contrary to this court’s precedent in He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003), in which it was in agreement with the BIA’s prior decision in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997). In He, this court affirmed the BIA’s conclusion that spouses of victims of coercive population control policies are presumptively eligible for asylum under INA § 101(a)(42). However, in
National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”), the Supreme Court held that a court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.
This court is in agreement with the government’s argument that, under Brand X, deference must be given to the agency’s reinterpretation of INA § 101(a)(42) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). First, this court concludes that the Attorney General’s interpretation of INA § 101(a)(42) is entitled to Chevron deference. INA § 101(a)(42) is silent as to the provision of refugee status to spouses of victims of coercive population control policies. No language in the statute explicitly denies asylum relief to spouses of victims of coercive population control policies or precludes the Attorney General from construing that statute in a manner that affords them such relief. Moreover, as the agency’s new interpretation of the statute in J-S- indicates, the statutory language of INA § 101(a)(42) is susceptible to more than one interpretation. Although the Attorney General in J-S- noted that INA § 101(a)(42) did not explicitly exclude spouses from its purview, his decision in J-S- reversed the BIA’s earlier conclusion in C-Y-Z-, which held that the spouse of a victim of coercive population control policies is prima facie eligible for asylum under INA § 101(a)(42). This court therefore concludes that INA § 101(a)(42) is silent and ambiguous as to the refugee status of spouses of victims of coercive population control policies.
Proceeding to the second step in the Chevron analysis, this court would typically decide whether the agency’s interpretation is based on a permissible construction of the statute. In the instant case, however, this court defers to the agency’s new interpretation of INA § 101(a)(42), pursuant to National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). Under Brand X, only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. This court has clarified that, under Brand X, while agencies retain discretion to fill ambiguous statutory gaps, it does not follow that an agency may repeatedly put forward an interpretation that this court has already examined under Chevron and found unreasonable at its second step. Here this court has had no occasion to hold unreasonable the agency’s current view as to the presumptive eligibility of a victim’s spouse.
In He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003), this court agreed with the BIA’s prior decision in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) that spouses of victims of coercive population control policies are presumptively eligible for asylum under INA § 101(a)(42). However, this court’s decision in He affirmed the BIA’s prior position in C-Y-Z- without analyzing whether the agency’s answer is based on a permissible construction of the statute under the second prong of the Chevron test. Because our prior decision failed to foreclose the agency’s current interpretation, this court must defer to it. This court notes that our deference to the Attorney General’s new interpretation in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) is in accord with every other circuit to have addressed this issue.
Having concluded that the Attorney General’s interpretation of INA § 101(a)(42) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) controls, this court next examines whether the BIA committed legal error in concluding that the petitioner failed to demonstrate other resistance to a coercive population control program under the statute, and whether the BIA’s conclusion that the petitioner did not suffer persecution on the basis of that resistance is supported by substantial evidence.
In Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), the BIA concluded that spouses cannot rely upon the sole fact of their spouse’s persecution automatically to qualify for political asylum under the statute’s coercive population control ‘resistance’ provisions. The Attorney General’s interpretation, however, does not prevent the spouse of a person who has physically undergone a forced abortion or sterilization procedure from qualifying for political asylum. Such a person may qualify for asylum under INA § 101(a)(42) if he or she can demonstrate that: (i) he or she qualifies as a refugee on account of persecution for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program; (ii) he or she has a well-founded fear of being forced to undergo an abortion or involuntary sterilization procedure or of being persecuted for failing or refusing to undergo such a procedure or for other resistance to a coercive population control program; (iii) the specific facts of his or her case justify asylum on grounds other than those articulated in section 601(a); or (iv) he or she satisfies the requirements for derivative asylum expressly set forth in section 208(b)(3)(A) of the Act.
Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) thus stands only for the limited proposition that INA § 101(a)(42) cannot be read to confer automatic or presumptive refugee status on the spouses of persons who have physically been subjected to a forced abortion or sterilization procedure pursuant to a foreign government’s coercive population program. Indeed, the Attorney General concluded in J-S- that applicants may present proof, of which their spouse’s treatment may be a part, of persecution for refusing to undergo forced abortion or sterilization procedures or for engaging in ‘other resistance’ to a coercive population control program. This court thus considers a spouse’s forced abortion or sterilization as “proof” that an applicant resisted a coercive population control policy, and in analyzing whether persecution occurred as a result. However, an applicant must provide evidence of resistance in addition to the spouse’s forced abortion or sterilization to avoid what the Attorney General described as the “fatal flaw” in the per se eligibility analysis: Some spouses may not have ‘resisted,’ and in fact may have affirmatively supported, the forced abortion or sterilization procedure that was performed on the spouse who remains in China. Such applicants should not be permitted to use the sole fact of their spouse’s persecution automatically to qualify for political asylum under the statute’s coercive population control ‘resistance’ provisions.
Where (1) the petitioner neither supported nor acquiesced in the forced abortion, (2) family planning officials arrested both the petitioner and his partner after they had applied for a marriage license for cohabiting in violation of China’s prohibition against underage marriage, (3) subjected the petitioner’s partner to a medical examination against her will, (4) held the petitioner in detention while they subjected his partner to an abortion, (5) released him the next day after the abortion had been completed and after he paid a heavy fine, the petitioner’s partner’s forced abortion is proof of his resistance to China’s population control policy. Because the petitioner’s credible testimony amply demonstrates the “other resistance to a coercive population control program” required, the BIA erred as a matter of law in concluding otherwise.
Where the petitioner and his partner (1) cohabited without having been able to marry under Chinese law, (2) attempted to apply for an official marriage license, which was denied them due to their underage status., (3) were determined to marry in a traditional Chinese ceremony despite the government’s denial of an official marriage license even after the forced abortion and fine resulting from their previous violation of the population control law, and (4) on the morning of the wedding, ten police officers and family planning officials arrived to arrest the petitioner and he was forced to flee from his home and his bride was also forced into hiding, the forced abortion took place as part of a series of events that reflect the petitioner’s persistent defiance of the coercive population control policy. This court has established that China’s prohibition on underage marriage “is an integral part” of China’s coercive population control policy. In Li v. Ashcroft, 356 F.3d 1153, this court addressed for the first time the meaning of the phrase “other resistance to a coercive population control program” and held that a petitioner may also be able to demonstrate resistance to a coercive population control policy by deciding to marry, even when denied a license by local authorities. The petitioner’s acts in defiance of the coercive population control policy fit squarely within this court’s precedent as to the meaning of “other resistance.” Pursuant to Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) and Li v. Ashcroft, 356 F.3d 1153, it is clear that the forced abortion on the petitioner’s partner, of which the petitioner was not a willing participant, and his continued attempts to cohabit and marry in contravention of China’s population control policy, in the face of denial of an official marriage license, constitute “other resistance.”
To establish past persecution, a petitioner must demonstrate (1) an incident, or incidents, that rise to the level of persecution; (2) persecution on account of one or more of the statutorily-protected grounds; and (3) that the persecution was committed either by the government or by forces that the government was unable or unwilling to control. Because the petitioner’s claim falls under persecution on the basis of political opinion, and because the petitioner’s claim of persecution is based on actions by local police and family planning officials’ enforcement of China’s official population control policy, which he resisted, this court addresses only the question of whether the petitioner’s experiences rise to the level of persecution.
Even though the BIA was correct in concluding that pursuant to Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) the petitioner cannot qualify for refugee status solely on the basis of his partner’s forced abortion, J-S- makes clear that a forced abortion or sterilization imposed on one’s spouse is a factor in establishing that the petitioner was persecuted and the petitioner has offered substantial evidence of additional persecution in support of his claim. This court examines the totality of the circumstances in deciding whether a finding of persecution is compelled. The key question is whether, looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment he or she received rises to the level of persecution. Where (1) the petitioner was first expelled from school due to his romantic relationship with his partner, which was legally prohibited, (2) after attempting to obtain a marriage license from the government, local authorities detained him for over a day, (3) family planning authorities required him to pay a heavy fine in order to be released from detention, (4) the petitioner resisted China’s official population control policy of prohibiting underage marriage by organizing and participating in a traditional wedding ceremony, (5) local officials and police officers arrived at his home on the morning of the wedding and attempted to arrest him, and (6) the petitioner was then forced to flee his hometown and hide from authorities out of concern for his safety, an examination of the totality of the circumstances compels a finding that the petitioner was persecuted as a result of his resistance to China’s coercive population control policy.
The BIA also erred in denying the petitioner’s asylum application because he was not a legal spouse of the victim of a forced abortion. In its decision, the BIA failed to account for our precedent in Ma v. Ashcroft, 361 F.3d 533 (9th Cir. 2004) establishing that China’s bar on underage marriage is an integral part of its coercive population control program. Under this holding, whether a persecuting country would recognize a marriage is not the dispositive question in determining whether the petitioner is a “spouse,” particularly where the marriage is barred by a coercive population control program. In Ma, this court held that because the prohibition on underage marriage is an integral part of China’s population control policy, it would contravene the fundamental statute to deny asylum on the basis of that rule. Thus, for couples who do not meet the age requirements to marry under population control policies, the failure to have an official marriage ceremony does not preclude male partners of women who have had forced abortions from obtaining asylum under § 1101(a)(42)(B). The Chinese government, moreover, recognizes a wedding ceremony according to the rural customs as a “de facto” marriage where both spouses have reached the legal age to marry. This court has therefore concluded that the protections of section 101(a)(42)(B) apply to husbands whose marriages would be legally recognized, but for China’s coercive family planning policies, and not only to husbands whose marriages are recognized by Chinese authorities.”
Because the petitioner and his partner would have been married in accordance with their village’s tradition but for this interference by local officials, and would have been married had the state not denied them a marriage license, this court thus concludes that the petitioner is not precluded from the protections of INA § 101(a)(42)(B), and that he may present proof of his partner’s forced abortion as a factor in establishing persecution, along with all the other acts of persecution that he suffered at the hands of Chinese officials. Accordingly, this court finds that any reasonable adjudicator would be compelled to conclude that the petitioner has established past persecution on the basis of “other resistance” to China’s coercive population control policy.
In light of the foregoing, this court needs not reach the petitioner’s religious persecution claim. Nevertheless this court disagrees with the government’s assertion that we lack jurisdiction to review this claim. The government’s contention that the petitioner failed to file a petition for review of the BIA’s December 27, 2006, denial of relief, in which the BIA considered his religious persecution claim is without merit. Where the petitioner timely filed, within the 30-day period required by statute, a motion for reconsideration of the BIA’s December 27, 2006 decision on January 10, 2007, in which he preserved his claim of religious persecution, and where the government subsequently requested that this court to remand his petition for review to the BIA for further reconsideration and this court remanded the petition in full to the BIA, which then neglected to address the petitioner’s religious persecution claim, this court has jurisdiction over his religious persecution claim, particularly when the petitioner properly briefed the issue before our court on this appeal. This court does not, however, determine whether the BIA erred in finding that the petitioner failed to establish persecution on the basis of his religious practice for purposes of his asylum, withholding, and CAT petition.
This court defers to the Attorney General’s interpretation of INA § 101(a)(42)(B) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). Under J-S-, a spouse of an individual who has undergone forcible abortion or sterilization may present proof of such treatment to evidence persecution. This court reaffirms that, for the purposes of INA § 101(a)(42), a spouse includes an individual whose marriage would be recognized but for the enforcement of China’s coercive population control policy, as well as an individual whose marriage is officially recognized by Chinese authorities. Because any reasonable adjudicator would be compelled to conclude that the petitioner established past persecution for “other resistance” to the population control policy, this court concludes that the petitioner is entitled to the protections of INA § 101(a)(42)(B). Accordingly, this court grants the petition for review and remands to the BIA, which shall, on behalf of the Attorney General, exercise discretion regarding whether to grant asylum. This court remands for further proceedings on whether the petitioner is eligible for withholding of removal and CAT relief.
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