FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAI YUAN JIANG, No. 08-73186
Petitioner,
Agency No.
v.
A074-333-568
ERIC H. HOLDER JR., Attorney
ORDER AND
General,
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 8, 2009—Pasadena, California
Filed July 14, 2010
Before: Harry Pregerson, Stephen Reinhardt and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
10177
JIANG v. HOLDER 10181
COUNSEL
Helen A. Sklar, Stone & Grzegorek LLP, Los Angeles, Cali-
fornia, and Alphan K. Tsoi, Tsoi & Associates, Monterey
Park, California, for the petitioner.
Jessica Segall, Office of Immigration Litigation, Civil Divi-
sion, U.S. Department of Justice, Washington, District of
Columbia, for the respondent.
ORDER
The opinion filed May 24, 2010, slip op. 7355, is hereby
withdrawn and a superseding opinion is filed herewith. No
petitions for panel rehearing or rehearing en banc shall be
entertained. See 9th Cir. G.O. 5.3(a).
OPINION
WARDLAW, Circuit Judge:
Nai Yuan Jiang (“Jiang”), a native and citizen of the Peo-
ple’s Republic of China, petitions for review of the Board of
Immigration Appeals’ (“BIA”) denial of his application for
asylum, withholding of removal, and relief under the Conven-
tion Against Torture (“CAT”). We must decide whether the
10182 JIANG v. HOLDER
BIA’s conclusion that Jiang has not demonstrated persecution
for “other resistance to a coercive population control pro-
gram” under the Immigration and Nationality Act (“INA”)
§ 101(a)(42), 8 U.S.C. § 1101(a)(42), is supported by substan-
tial evidence. Because the BIA expressly found Jiang credi-
ble, we consider whether the BIA correctly applied the law to
the record before it, including Jiang’s credible testimony.
Because we conclude that Jiang suffered persecution for dem-
onstrating other resistance to China’s coercive population
control policy, we grant the petition in part and remand to the
BIA.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jiang entered the United States on May 5, 1999, and was
immediately detained. The Immigration and Naturalization
Service (“INS”) filed a Notice to Appear on May 18, 1999,
charging him with removability for violating INA
§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). Jiang timely
filed an application for asylum, withholding of removal, and
CAT relief. In his application, Jiang claimed past persecution
and fear of future persecution under China’s coercive family
planning policies and on the basis of his religion.1
In a hearing before the Immigration Judge (“IJ”), Jiang tes-
tified that he met his girlfriend, Siu-Jhou Jiang (“Siu-Jhou”),
in high school, and that they were both expelled after they
were caught holding hands, a violation of prohibitions against
romantic relationships. Undeterred, they began living together
in the same household in July 1998, and they began to share
a room on September 5, 1998. On November 16, 1998, they
decided to marry and applied for an official marriage license.
Because they were both under the legal age of marriage
1
In light of our conclusion that Jiang was persecuted on account of other
resistance to a coercive population program, we need not reach Jiang’s
claim that he is entitled to asylum and withholding on the basis of reli-
gious persecution.
JIANG v. HOLDER 10183
imposed as part of China’s population control policy, local
authorities denied their application for the marriage license
and asked the couple if they were cohabiting. Jiang admitted
that they were. Later that day, two police officers arrived at
their home and seized both Jiang and Siu-Jhou. Local officials
detained Jiang and subjected Siu-Jhou to a physical examina-
tion, under her protest. During the physical examination, it
was discovered that she was two months pregnant. The local
officials forcibly subjected Siu-Jhou to an abortion that day.
Meanwhile, local authorities held Jiang in custody. They
released him the next day upon payment of a 5,000 RMB fine
after the abortion had been completed.
Despite the minimum age requirement for a state-
recognized marriage, Jiang and Siu-Jhou decided to be mar-
ried in a traditional Chinese ceremony to be held on Christ-
mas Day, December 25, 1998. On the morning of their
traditional ceremony, police and local officials from the fam-
ily planning division interrupted the wedding preparations and
attempted to arrest Jiang. Fearing that the police and family
planning officials would detain, beat, and fine him, Jiang
escaped with the help of his friend. Siu-Jhou, who had not yet
arrived at the ceremony, also went into hiding.
Jiang also credibly testified that, after the raid on his tradi-
tional wedding ceremony, he retreated to Ginshi Village to
stay with his friend. During this stay, Jiang attended a worship
session, where he helped to prepare fliers about Christianity
for public distribution. Police officers armed with batons dis-
banded the meeting, beating the participants. Police hit Jiang
before he escaped across a nearby river; other participants
were also severely beaten, including one who suffered a bro-
ken leg. After the incident, police arrested and interrogated
Jiang’s parents about his whereabouts and detained and beat
his father.
Jiang conceded removability, and on January 21, 2003, the
IJ denied his petition for asylum, withholding, and CAT
10184 JIANG v. HOLDER
relief. Following Jiang’s timely appeal, the BIA upheld the
IJ’s decision on April 20, 2004. The BIA found that Jiang
failed to meet the burden of proof required to show persecu-
tion under Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997),
which had established that the spouse of an individual forced
to undergo an abortion is prima facie eligible for asylum.
Because “the respondent and his girlfriend were underage,
and therefore did not have a legally recognized marriage in
China,” the BIA denied Jiang’s claim. The BIA also found
that Jiang had not been persecuted in the past on the basis of
his Christian religion and that Jiang had not proven likelihood
of future persecution on these grounds.
Jiang then timely appealed to this court. Upon the govern-
ment’s motion, we referred the case to mediation and thereaf-
ter granted the government’s unopposed motion to remand to
the BIA for reconsideration. On December 27, 2006, the BIA
found Jiang credible, but again denied Jiang’s appeal. Citing
its recent decision in Matter of S-L-L-, 24 I. & N. Dec. 1 (BIA
2006), the BIA held that Jiang did not suffer past persecution
because he was not a legal spouse of the victim of a forced
abortion, and found that he did not demonstrate “other resis-
tance” to a coercive population program. The BIA also
rejected Jiang’s religious persecution claim.
Jiang subsequently filed a motion to reconsider, arguing
that in S-L-L-, the BIA recognized that its ruling “does not
mean that an unmarried applicant may never demonstrate past
persecution in the context of a partner’s forced abortion or
sterilization.” S-L-L-, 24 I. & N. Dec. at 10. The BIA denied
his motion.
Jiang again timely appealed. In October 2007, the govern-
ment again requested that we remand to the BIA for reconsid-
eration, this time because of our decisions in Ma v. Ashcroft,
361 F.3d 553 (9th Cir. 2004), and Tang v. Gonzales, 489 F.3d
987 (9th Cir. 2007). In Ma, we held that an individual whose
spouse was persecuted under China’s population control poli-
JIANG v. HOLDER 10185
cies, and who was married in a traditional, but not a state-
recognized wedding, is eligible for asylum. In Tang, we held
that two people living together as “husband and wife” should
be treated as spouses for purposes of asylum claims based on
population control policies. We again granted the govern-
ment’s motion to remand to the BIA.
On June 24, 2008, the BIA denied Jiang’s claim for the
third time, again based upon an intervening change in the law.
The BIA observed that, subsequent to our remand, the Attor-
ney General had determined that “an alien is not per se enti-
tled to refugee status solely upon the fact that his spouse was
forced to undergo an abortion or sterilization.” Pursuant to
Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), the BIA con-
cluded that Jiang was not entitled to rely upon evidence of
Siu-Jhou’s forced abortion, failed to demonstrate any resis-
tance to family planning policies, and failed to establish past
persecution or a well-founded fear of future persecution due
to such resistance. Jiang timely filed this third appeal.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over a final order of removal pursuant
to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA conducts its
own review of the evidence and law rather than adopting the
IJ’s decision, our “review is limited to the BIA’s decision,
except to the extent that the IJ’s opinion is expressly adopt-
ed.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).
We review questions of law de novo. Fisher v. INS, 79 F.3d
955, 961 (9th Cir. 1996) (en banc). We review findings of fact
for substantial evidence. Khan v. Holder, 584 F.3d 773, 776
(9th Cir. 2009).
III. DISCUSSION
A. Agency Deference
In denying Jiang’s claim, the BIA determined that a spouse
or unmarried partner of a victim of forced abortion is not pre-
10186 JIANG v. HOLDER
sumptively eligible for refugee status under J-S-. The BIA
further concluded that Jiang had not demonstrated persecution
for “ ‘other resistance’ to a coercive population control pro-
gram” as required by J-S- for refugee status under INA
§ 101(a)(42). J-S-, 24 I. & N. Dec. at 537-38.
[1] In J-S-, the Attorney General concluded that INA
§ 101(a)(42) cannot be read to confer “automatic or presump-
tive refugee status on the spouses of persons who have been
physically subjected to a forced abortion or sterilization pro-
cedure pursuant to a foreign government’s coercive popula-
tion program.” Id. at 521. 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 indi-
vidual 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 offi-
cially recognized spouses of victims of forced abortion or
sterilization benefitted from a per se finding of past persecu-
tion. J-S-, I. & N. Dec. at 521.
[2] We must first decide whether the Attorney General’s
most recent interpretation of INA § 101(a)(42) in J-S- is
legally controlling. When reviewing decisions by an adminis-
trative agency, we apply Chevron deference. Under Chevron,
we first ask whether the “statute is silent or ambiguous with
respect to the specific issue,” and if so, we then ask whether
the agency’s interpretation “is based on a permissible con-
struction of the statute.” Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 843 (1984).
The Attorney General’s conclusion in J-S- is contrary to
our precedent in He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003),
in which we agreed with the BIA’s prior decision in C-Y-Z-.
In He, we affirmed the BIA’s conclusion that spouses of vic-
tims 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
JIANG v. HOLDER 10187
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.” Id.
at 982. The government argues that, under Brand X, we must
defer to the agency’s reinterpretation of INA § 101(a)(42) in
J-S-. We agree.
First, we conclude that the Attorney General’s interpreta-
tion 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:
The term “refugee” means (A) any person who is
outside any country of such person’s nationality . . .
and is unable or unwilling to avail himself or herself
of the protection of, that country because of persecu-
tion or a well-founded fear of persecution on account
of race, religion, nationality, membership in a partic-
ular social group, or political opinion, or (B) . . . .
For purposes of determinations under this Act, a per-
son 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 popu-
lation control program, shall be deemed to have been
persecuted on account of political opinion, and a per-
son 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, reversal, or resistance
shall by deemed to have a well founded fear of per-
secution on account of political opinion.
INA § 101(a)(42).
[3] No language in the statute explicitly denies asylum
relief to spouses of victims of coercive population control pol-
10188 JIANG v. HOLDER
icies 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- indi-
cates, the statutory language of INA § 101(a)(42) is suscepti-
ble to more than one interpretation. Although the Attorney
General in J-S- noted that INA § 101(a)(42) “does not explic-
itly exclude spouses from its purview,” J-S-, 24 I. & N. Dec.
at 530, his decision in J-S- reverses the BIA’s earlier conclu-
sion in C-Y-Z-, which held that the spouse of a victim of coer-
cive population control policies is prima facie eligible for
asylum under INA § 101(a)(42). C-Y-Z-, 21 I. & N. Dec. 915
(BIA 1997). We conclude that INA § 101(a)(42) is silent and
ambiguous as to the refugee status of spouses of victims of
coercive population control policies.
[4] Proceeding to the second step in the Chevron analysis,
we conclude that the agency’s interpretation is based on a per-
missible construction of the statute. Our decision in He does
not require us to conclude otherwise. Under Brand X, “[o]nly
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.” Brand X, 545 U.S. at 982-83. We have clarified
that, under Brand X, “[w]hile agencies retain discretion to fill
ambiguous statutory gaps, it does not follow that an agency
may repeatedly put forward an interpretation that we have
already examined under Chevron and found unreasonable at
its second step.” Escobar v. Holder, 567 F.3d 466, 478 (9th
Cir. 2009). Here we have no reason to hold unreasonable the
agency’s current view as to the presumptive eligibility of a
victim’s spouse.
[5] In He, we agreed with the BIA’s prior decision in C-Y-
Z- that spouses of victims of coercive population control poli-
cies are presumptively eligible for asylum under INA
§ 101(a)(42). However, our decision in He affirmed the BIA’s
prior position in C-Y-Z- without indicating that that position
“follow[ed] from the unambiguous terms of the statute.”
JIANG v. HOLDER 10189
Brand X, 545 U.S. at 982. Because He thus did not unambigu-
ously foreclose the agency’s current interpretation, our prior
decision does not displace the agency’s new interpretation.
We note that our deference to the Attorney General’s new
interpretation in J-S- is in accord with every other circuit to
have addressed this issue. See Dong v. Holder, 587 F.3d 8 (1st
Cir. 2009) (finding that J-S- overruled C-Y-Z- and S-L-L-);
Chen v. Holder, No. 08-5656-ag, 348 Fed. Appx. 622 (2d Cir.
Oct. 6, 2009) (same); Wu v. Holder, No. 08-9558, 343 Fed.
Appx. 309 (10th Cir. Aug. 27, 2009) (same); Jin v. Holder,
572 F.3d 392 (7th Cir. 2009) (same); Zhao v. Holder, 569
F.3d 238 (6th Cir. 2009) (same); Yu v. Att’y Gen., 568 F.3d
1328 (11th Cir. 2009) (same); Lin-Zheng v. Att’y Gen., 557
F.3d 147 (3d Cir. 2009) (same).
B. Merits of Jiang’s Political Opinion Claim
Having concluded that the Attorney General’s interpreta-
tion of INA § 101(a)(42) in J-S- controls, we next examine
whether the BIA committed legal error in concluding that
Jiang failed to demonstrate “other resistance to a coercive
population control program” under the statute, and whether
the BIA’s conclusion that Jiang did not suffer persecution on
the basis of that resistance is supported by substantial evi-
dence.
1. Persecution Due to “Other Resistance to a
Coercive Population Control Program”
[6] In J-S-, 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.” J-S-, 24 I. & N.
Dec. 534-35. 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.” Id. at 523. Such a person
10190 JIANG v. HOLDER
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 pop-
ulation 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.
J-S-, 24 I. & N. Dec. at 537-38.
[7] J-S- thus stands only for the limited proposition that
INA § 101(a)(42) cannot be read to confer “automatic or pre-
sumptive 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 popu-
lation program.” J-S-, 24 I. & N. Dec. at 521 (emphasis
added). Indeed, the Attorney General concluded in J-S- that
applicants may “present proof, of which their spouse’s treat-
ment 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.”
J-S-, 24 I. & N. Dec. at 535 (emphasis added). We thus con-
sider 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. Id.
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”
JIANG v. HOLDER 10191
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.” Id. at 534-35.
a. Other Resistance to a Coercive Population
Control Program
Jiang’s credible testimony amply demonstrates the “other
resistance to a coercive population control program” required
by J-S-. The BIA erred as a matter of law in concluding other-
wise.
[8] First, Siu-Jhou’s forced abortion is proof of Jiang’s
resistance to China’s population control policy. J-S-, 24 I. &
N. Dec. at 535. Jiang neither supported nor acquiesced in the
forced abortion. Family planning officials arrested both Jiang
and Siu-Jhou for cohabiting in violation of China’s prohibi-
tion against underage marriage, after they had applied for a
marriage license. Family planning officials then subjected
Siu-Jhou to a medical examination against her will, during
which they discovered that Jiang and Siu-Jhou had conceived
in defiance of the population control policy, and that Siu-Jhou
was two months pregnant. Officials held Jiang in detention
while they subjected Siu-Jhou to an abortion. They released
him the next day, after the abortion had been completed, and
only after he paid a heavy fine.
[9] Moreover, the forced abortion took place as part of a
series of events that reflect Jiang’s persistent defiance of the
coercive population control policy. Jiang and Siu-Jhou cohab-
ited without having been able to marry under Chinese law,
and attempted to apply for an official marriage license, which
was denied them due to their underage status. Even after the
10192 JIANG v. HOLDER
forced abortion and fine resulting from their previous viola-
tion of the population control law, Jiang and Siu-Jhou were
determined to marry in a traditional Chinese ceremony despite
the government’s denial of an official marriage license. Their
continued resistance of the official policy prohibiting their
marriage was again met with violence by the local police. At
seven o’clock on the morning of the wedding, as Jiang’s rela-
tives were helping to decorate for the ceremony, and as Jiang
was straightening out his wedding clothes, ten police officers
and family planning officials arrived to arrest Jiang. Jiang was
forced to flee from his home, and his bride was also forced
into hiding.
We have established that China’s prohibition on underage
marriage “is an integral part” of China’s coercive population
control policy. Li v. Ashcroft, 356 F.3d 1153,1159 n.5; see
also Ma, 361 F.3d at 554 (concluding same). In Li, we
addressed for the first time the meaning of the phrase “other
resistance to a coercive population control program.” Id. at
1157. There, we held that a petitioner “may also be able to
demonstrate resistance to a coercive population control poli-
cy” by deciding to marry, even when denied a license by local
authorities. Id. at 1161.
[10] Jiang’s acts in defiance of the coercive population
control policy fit squarely within our precedent as to the
meaning of “other resistance.” Pursuant to J-S- and Li, it is
clear that Siu-Jhou’s forced abortion, in which Jiang was not
a willing participant, and Jiang’s 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.”
b. Persecution
[11] To establish past persecution, a petitioner must dem-
onstrate (1) an incident, or incidents, that rise to the level of
persecution; (2) persecution on account of one or more of the
JIANG v. HOLDER 10193
statutorily-protected grounds; and (3) that the persecution was
committed either by the government or by forces that the gov-
ernment was unable or unwilling to control. Chand v. INS,
222 F.3d 1066, 1073 (9th Cir. 2000). Because Jiang’s claim
falls under persecution on the basis of political opinion, 8
U.S.C. § 1101(a)(42), and because Jiang’s claim of persecu-
tion is based on actions by local police and family planning
officials’ enforcement of China’s official population control
policy, which he resisted, we address only the question of
whether Jiang’s experiences rise to the level of persecution.
We conclude they do.
The BIA concluded that Jiang has not demonstrated past
persecution or a well-founded fear of future persecution on
account of his resistance to a coercive population control pol-
icy. The BIA was correct in concluding that pursuant to
J-S-, Jiang cannot qualify for refugee status solely on the
basis of Siu-Jhou’s forced abortion. J-S- makes clear, how-
ever, that the forced abortion or sterilization imposed on one’s
spouse is proof of the fact that the petitioner was persecuted.
J-S-, 24 I. & N. Dec. at 535. However, Jiang offered substan-
tial evidence of additional persecution in support of his claim.
[12] We examine “the totality of the circumstances in
deciding whether a finding of persecution is compelled.” Guo
v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004); see also
Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (“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.”). Here, an
examination of the totality of the circumstances compels a
finding that Jiang was persecuted as a result of his resistance
to China’s coercive population control policy. Jiang was first
expelled from school due to his romantic relationship with
Siu-Jhou, which was legally prohibited. After attempting to
obtain a marriage license from the government, local authori-
ties detained him for over a day. Family planning authorities
required him to pay a heavy fine in order to be released from
10194 JIANG v. HOLDER
detention.2 When Jiang resisted China’s official population
control policy of prohibiting underage marriage by organizing
and participating in a traditional wedding ceremony, local
officials and police officers arrived at his home and attempted
to arrest him on the morning of the wedding. Jiang was then
forced to flee his hometown and hide from authorities out of
concern for his safety. See Guo, 361 F.3d 1194 (finding perse-
cution under the totality of circumstances where the Chinese
government detained applicant for a day and a half and
coerced him into signing a document that he would no longer
believe in Christianity).
[13] The BIA also erred in denying Jiang’s petition
because he was not a legal spouse of the victim of a forced
abortion. In its decision, the BIA failed to account for our pre-
cedent establishing that China’s bar on underage marriage is
an integral part of its coercive population control program.
Ma, 361 F.3d at 553; Li, 356 F.3d at 1159. Under this hold-
ing, whether a persecuting country would recognize a mar-
riage 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, we
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.” Ma, 361 F.3d at 561. Thus “for couples
who do not meet the age requirements to marry under popula-
tion 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
2
In its December 2006 decision, the BIA held that the fine imposed on
Jiang did not rise to the level of persecution. However, the BIA errone-
ously concluded that this case was controlled by Zehatye v. Gonzales, 453
F.3d 1182 (9th Cir. 2006) and Gormley v. Ashcroft, 364 F.3d 1172 (9th
Cir. 2004). Unlike the petitioners in those cases, Jiang does not claim eco-
nomic disadvantage as the grounds for establishing persecution. Rather,
the fine that Jiang paid was part and parcel of a broader set of reprisals
for his resistance to China’s coercive population control policies.
JIANG v. HOLDER 10195
§ 1101(a)(42)(B). Tang, 489 F.3d at 990. The Chinese gov-
ernment, moreover, recognizes “a wedding ceremony accord-
ing to the rural customs” as a “de facto” marriage where both
spouses have reached the legal age to marry. Ma, 361 F.3d at
557. We have 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.” Id. at 561.
[14] Here, it is clear that Jiang is not precluded from the
protections of INA § 101(a)(42)(B). Even after cohabiting,
conceiving, and being denied an official marriage license on
account of their age, as well as enduring a forced abortion,
Jiang and Siu-Jhou expressed their clear intent and actions
toward achieving a traditional marriage union. However, local
police officers and family planning officials forcibly pre-
vented Jiang and Siu-Jhou from concluding their traditional
marriage ceremony as part of its enforcement of China’s pop-
ulation control policy. Because Jiang and Siu-Jhou 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,
we thus conclude that Jiang is not precluded from the protec-
tions of INA § 101(a)(42)(B), and that he may present proof
of Siu-Jhou’s forced abortion as a factor in establishing perse-
cution, see J-S-, 24 I.& N. Dec. at 535, along with all the
other acts of persecution that he suffered at the hands of Chi-
nese officials.
[15] Accordingly, we find that “any reasonable adjudicator
would be compelled to conclude,” 8 U.S.C. § 1252(b)(4)(B),
that Jiang has established past persecution on the basis of
“other resistance” to China’s coercive population control pol-
icy.
C. Religious Persecution Claim
In light of the foregoing, we need not reach Jiang’s reli-
gious persecution claim. We nevertheless disagree with the
10196 JIANG v. HOLDER
government’s assertion that we lack jurisdiction to review this
claim. The government contends that Jiang 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. The record belies this assertion. Jiang timely filed 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. The motion was filed within the 30-
day period required by statute. 8 U.S.C. § 1229a(c)(6); 8
C.F.R. § 1003.2(b)(1). After Jiang timely filed his appeal, the
government requested that we remand his petition to the BIA
for further reconsideration “in light of the circumstances of
this case.” We remanded the petition in full to the BIA, which
then neglected to address Jiang’s religious persecution claim.
Jiang properly briefed the issue before our court on this
appeal. Thus, we have jurisdiction over his religious persecu-
tion claim. We do not, however, determine whether the BIA
erred in finding that Jiang failed to establish persecution on
the basis of his religious practice for purposes of his asylum,
withholding, and CAT petition.
IV. CONCLUSION
[16] We defer to the Attorney General’s interpretation of
INA § 101(a)(42)(B) in J-S-. Under J-S-, a spouse of an indi-
vidual who has undergone forcible abortion or sterilization
may present proof of such treatment to evidence persecution.
We reaffirm that, for the purposes of INA § 101(a)(42), a
spouse includes an individual whose marriage would be rec-
ognized but for the enforcement of China’s coercive popula-
tion 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
Jiang established past persecution for “other resistance” to the
population control policy, we conclude that Jiang is entitled
to the protections of INA § 101(a)(42)(B). Accordingly, we
grant the petition for review and remand to the BIA, which
shall, on behalf of the Attorney General, exercise discretion
JIANG v. HOLDER 10197
regarding whether to grant asylum. See Ding v. Ashcroft, 387
F.3d 1131, 1140 (9th Cir. 2004); Li, 356 F.3d at 1160. We
remand for further proceedings on whether Jiang is eligible
for withholding of removal and CAT relief.
Petition GRANTED and REMANDED.