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An en banc 2D U.S. Circuit Court of Appeals said the Board of Immigration Appeals was wrong to interpret an act of Congress as allowing men, whose wives face forced abortion or sterilization at the hands of the Chinese government, to qualify automatically for asylum as “refugees.” Lin v. U.S. Department of Justice, No. 02-4611-ag. The act is Section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The decision of the Board of Immigration Appeals was In Matter of C-Y-Z, No. 21 I & N Dec. 915 (B.I.A. 1997). The circuit took the unusual step of sua sponte ordering an en banc rehearing of three cases � none of which implicated spouses and all of which concerned refugee status for the unmarried partners of women who have either undergone a procedure or have been persecuted for violating the Chinese policy of one-family, one-child. The reason, according to the majority, was that the extension of protections to nonspouses necessarily implicated the C-Y-Z decision. The 2d Circuit decision sets up a split among the circuits. Writing for the majority, Judge Barrington Parker said all three petitions had been remanded to the BIA to explain why “spouses of those directly victimized by coercive family planning policies are per se eligible for asylum as if they were directly victimized themselves and also to clarify the status of boyfriends and fiances under that statute.” The BIA reaffirmed its holding on spouses, but said the per se eligibility did not extend to unmarried partners. Rehearing en banc was ordered first to determine whether the BIA’s finding was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), and, second, whether the BIA had reasonably construed Section 601(a) as making spouses automatically eligible but denying equal treatment to unmarried partners unless they demonstrate political persecution based on “other resistance” to the Chinese family-planning program. The majority found that the BIA had erred in its interpretation of a statute that, Parker said, “is unambiguous and that does not extend automatic refugee status to spouses or unmarried partners.” “The language of � 601(a) does nothing to alter the pre-IIRIRA definition of ‘political opinion’ in � 1101(a)(42), and this further demonstrates the exclusivity of the group of persons entitled to asylum per se under � 601(a),” Parker said. The BIA’s opinion, he said, “effectively absolves large numbers of asylum applicants of the statutory burden to prove that they have (i) a well-founded fear of persecution (ii) based on an impermissible nexus.” Though “[w]e do not deny that an individual whose spouse undergoes, or is threatened with, a forced abortion or involuntary sterilization may suffer profound emotional loss as a partner and potential parent. But such a loss does not change the requirement that we must follow the ‘ordinary meaning’ of the language chosen by Congress, according to which an individual does not automatically qualify for ‘refugee’ status on account of a coercive procedure performed on someone else,” Parker said. Judge Guido Calabresi concurred in part and dissented in part. He said, “it follows that, because � 601(a) does not grant [per se] asylum to spouses, it also cannot be read as granting asylum to non-spouses � like the petitioners in this case.” However, the majority went too far, he said. What the court should now be asking the BIA to do is look beyond � 601(a) to the broader statute it amended � � 1101(a)(42) and ask, “What would you do under � 1101(a)(42)(A), given that 601(a) does not give you the authority to do what you did in C-Y-Z?”

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