11.16.2005

Seventh Circuit on Split re Persecution of Boyfriend Based on Forced Sterilization of Girlfriend

Per Chen v. Gonzales, Slip Copy, 2005 WL 2709346 (7th Cir. Oct. 24, 2005):

To qualify for asylum, a petitioner must show that he is a refugee by proving that he was persecuted in the past or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A); Liu v. Ashcroft, 380 F.3d 307, 312 (7th Cir.2004). Under § 1101(a)(42)(B), an asylum applicant may establish persecution by showing that he or she has been forced to undergo sterilization or abortion; has been persecuted for failing to undergo either procedure; or has experienced persecution for other resistance to coercive family planning procedures. Lin v. Ashcroft, 385 F.3d 748, 752-53 (7th Cir.2004).

To the extent Chen is arguing before this court that the IJ erred in concluding that he could not avail himself of relief under § 1101(a)(42)(B) because he and his girlfriend were unmarried, he runs into the problem of deference to the agency's interpretation of the rules. As the IJ pointed out, although In re C-Y-Z- found past persecution of a husband based on the forced sterilization of his wife, see 21 I & N Dec. at 919, Chen and his girlfriend were not married and the BIA has never extended the C-Y-Z- rule to unmarried couples. Other courts of appeals have accepted this reading of the statute. See, e.g., Chen v. Ashcroft, 381 F.3d 221, 227-29 (3d Cir.2004) (presumption of persecution afforded to spouses of women forced to undergo abortions not extended to unmarried men); Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir.2004) (same). The Ninth Circuit extends C-Y-Z- to couples who are married in traditional ceremonies, but are unable to legally register their marriage. See Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir.2004) (BIA decision not to extend C-Y-Z- to couples who are married in traditional ceremonies, but not legally registered, was not entitled to deference because § 1101(a)(42)(B) protects "couples"); Zheng v. Ashcroft, 397 F.3d 1139, 1148 (9th Cir.2005) (traditionally, but not legally, married husband eligible for asylum on the basis of wife's forced abortion). Notably, the First Circuit has characterized the case law as a circuit split. See Chen v. Gonzales, 418 F.3d 110, 111 & n. 2 (1st Cir.2005) (declining to address the question). And the Second Circuit, in Lin v. United States Department of Justice, 416 F.3d 184, 191-92 (2d Cir.2005), recently remanded a number of cases of the BIA to explain the rationale for limiting the asylum presumption to spouses. We are not persuaded that we should reach a result different than the Third and Fifth Circuits.

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