S-L-L

Cite as 24 I&N Dec. 1 (BIA 2006) Interim Decision #3541

In re S-L-L-, Respondent
Decided September 19, 2006
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) An alien whose spouse was forced to undergo an abortion or sterilization can establish
past persecution on account of political opinion and qualify as a refugee within the
definition of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(42) (2000), but only if the alien was, in fact, opposed to the spouse’s abortion
or sterilization and was legally married at the time of the abortion or sterilization. Matter
of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), reaffirmed and clarified.

(2) Unmarried applicants claiming persecution related to a partner’s coerced abortion or
sterilization may qualify for asylum if they demonstrate that they have been persecuted
for “other resistance to a coercive population control program” within the meaning of
section 101(a)(42) of the Act.
FOR RESPONDENT: Stephen P. Gleit, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: William J. Howard, Principal
Legal Advisor
BEFORE: Board En Banc: OSUNA, Acting Vice Chairman; HOLMES, HURWITZ,
GRANT, MOSCATO, MILLER, and HESS, Board Members. Concurring
Opinion: PAULEY, Board Member. Concurring and Dissenting Opinion:
FILPPU, Board Member, joined by COLE, Board Member.
HOLMES, Board Member:

The United States Court of Appeals for the Second Circuit has remanded
this case with a request that we further explain our rationale in Matter of
C-Y-Z-, 21 I&N Dec. 915, 919 (BIA 1997), “for construing IIRIRA § 601(a)
to provide that the ‘forced sterilization of one spouse on account of a ground
protected under the Act is an act of persecution against the other spouse’ and
that, as a result, the spouses of those directly victimized by coercive family
planning policies are per se as eligible for asylum as those directly victimized
themselves,” and that we “clarify whether, when, and why boyfriends and
fiancés may or may not similarly qualify as refugees pursuant to

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IIRIRA § 601(a).” Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 192 (2d Cir.
2005).1

I. FACTUAL AND PROCEDURAL HISTORY

The respondent, a native and citizen of the People’s Republic of China
(“PRC”), conceded removability in proceedings before the Immigration Judge
but applied for asylum, withholding of removal, and protection under the
regulations implementing the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture”). The
respondent’s asylum claim was based principally on the allegation that in
September1990 the PRC Government forced his girlfriend to abort their child.
The respondent argued that we should extend to his case our decision in
Matter of C-Y-Z-, supra, holding that an applicant whose spouse was forced
to undergo an abortion or sterilization procedure may establish past
persecution on account of political opinion.
On May 9, 2000, an Immigration Judge reasoned that our holding in Matter
of C-Y-Z- was limited to spouses and did not apply to an applicant whose
girlfriend had been forced to undergo an abortion. Consequently, he denied
the respondent’s applications for asylum and withholding of removal, as well
as his request for protection under the Convention Against Torture. On
September 20, 2002, we affirmed the Immigration Judge’s decision without
opinion and the respondent appealed to the Second Circuit.

II. STATUTORY AND CASE LAW
In 1989, we held that implementation of the Chinese Government’s “one
couple, one child” policy did not constitute persecution on account of one of
the five reasons enumerated in section 101(a)(42)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1982), even to the extent that
involuntary sterilizations may occur. Matter of Chang, 20 I&N Dec. 38 (BIA
1989). Following our holding in Matter of Chang, Congress amended
section 101(a)(42) of the Act in 1996 to add the following provision to the
definition of a “refugee”:

1
The Second Circuit remanded two other cases in the opinion issued in Lin v. U.S. Dep’t
of Justice, supra. The remands in those cases will be addressed in separate decisions
applying the law and reasoning set forth in this decision.

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For purposes of determinations under this Act, 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, shall be 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 shall be deemed to have a well founded fear of persecution on account
of political opinion.

Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of Pub. L. No. 104-208, § 601(a), 110 Stat. 3009-546, 3009-689
(“IIRIRA”) (codified at section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42)
(2000)).
In Matter of C-Y-Z-, supra, we held that a husband whose wife was forcibly
sterilized could establish past persecution under this amendment to
section 101(a)(42) of the Act. The position of the former Immigration and
Naturalization Service, now the Department of Homeland Security (“DHS”),
was that “an applicant whose spouse was forced to undergo an abortion or
involuntary sterilization has suffered past persecution, and may thereby be
eligible for asylum under the terms of the new refugee definition.” Matter of
C-Y-Z-, supra, at 917-18 (quoting Memorandum from the Office of the
General Counsel of the Immigration and Naturalization Service 4 (Oct. 21,
1996)). In its brief, the Service stated that “the husband of a sterilized wife
can essentially stand in her shoes and make a bona fide and non-frivolous
application for asylum based on problems impacting more intimately on her
than on him.” Id. at 918. Given the agreement of the parties that the
respondent could claim asylum based on his wife’s sterilization under the
amendment to section 101(a)(42), we did not provide the sort of detailed
statutory analysis that would have been required had the issue been in dispute.
Although Matter of C-Y-Z- involved a spouse’s forced sterilization, the
holding has been understood to apply to a spouse’s forced abortion as well.2

III. ANALYSIS

In its brief addressing the issues on remand, the DHS requests that we
replace the rule adopted in Matter of C-Y-Z-, supra, with a case-by-case
approach grounded in the “other resistance” clause of section 101(a)(42) of
the Act. Under this approach, an applicant claiming persecution based on an
abortion forced upon a spouse, girlfriend, or fiancée would have to show that

2
See, e.g., Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir. 2004), noting that “[t]he BIA and
the courts have uniformly applied the statute’s protections to husbands whose wives have
undergone abortions or sterilization procedures, as well as to the wives themselves.”

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he was targeted for persecution on account of his “resistance” to the family
planning laws and that the resulting harm amounted to past persecution. The
respondent’s brief asks us to extend the holding of Matter of C-Y-Z- to
boyfriends and fiancés whose partners were forced to abort a child.
As explained below, we reaffirm our holding in Matter of C-Y-Z-, but clarify
its intended scope in two respects. First, we limit our holding to applicants
who were, in fact, opposed to a spouse’s abortion or sterilization. An
applicant who encouraged or supported a spouse’s abortion or sterilization,
could not, in good faith, claim to have suffered harm amounting to
persecution for purposes of asylum. Second, as discussed below, we limit our
holding to applicants who are legally married under Chinese law.3
We decline to extend our holding in Matter of C-Y-Z-, as modified, to
unmarried applicants claiming persecution based on a partner’s abortion or
sterilization. Rather, in such cases, the applicant must show, as discussed in
Part III.B. below, that he or she qualifies under the terms of the “other
resistance” clause in section 101(a)(42).

A. Forced Abortions Involving Married Couples

We begin by noting the obvious, that our decision in Matter of C-Y-Z-,
supra, reflects the significant tensions inherent in the IIRIRA amendment to
section 101(a)(42) of the Act. There is no clear or obvious answer to the
scope of the protections afforded by the amendment to partners of persons
forced to submit to an abortion or sterilization. The interpretive lines, no
matter where drawn, will be vulnerable to criticism that they are over-
inclusive, under-inclusive, inadequately tied to statutory language, or
unmanageable in practice. The DHS has a significant role in the adjudication
of asylum and withholding of removal cases, and, particularly in that context,
we took seriously the fact that the parties were in agreement as to the
resolution of the issues presented. The fact that the parties agree is not
determinative, but the result agreed upon by the parties in Matter of C-Y-Z-,
as discussed below, was consistent with the focus of the amendment and the
legislative history on the offensiveness of the PRC’s use of forced abortions
and sterilizations to implement its “one couple, one child” policy.
We also note at the outset that the position we articulated in Matter of
C-Y-Z- in 1997 is a precedent of long standing at this point. The Attorney
General recently rejected a request to review our decision, and numerous court
decisions have deferred to the holding in Matter of C-Y-Z-. See Matter of
C-Y-Z-, 23 I&N Dec. 693 (A.G. 2004). Most recently, rather than limiting the
scope of protection afforded by the IIRIRA amendment, Congress repealed

3
No issue was raised in Matter of C-Y-Z-, supra, regarding the legality of the marriage.

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the 1000 annual cap initially placed on the numbers of asylees who could be
admitted pursuant to a finding of persecution under that provision. REAL ID
Act of 2005, Div. B of Pub. L. No. 109-13, § 101(g)(2), 119 Stat. 231, 305
(repealing former section 207(a)(5) of the Act, 8 U.S.C. § 1157(a)(5) (2000)).
Had Congress believed that we had erroneously interpreted the amendment to
section 101(a)(42), it seems unlikely that it would have removed the number
limits on such grants, while leaving untouched our holding in Matter of
C-Y-Z-.
The IIRIRA amendment to section 101(a)(42) of the Act does not explicitly
refer to spouses in any of the three clauses describing the categories of persons
deemed to have been subjected to political persecution. The lack of such a
reference, however, does not necessarily preclude an applicant from
demonstrating past persecution based on harm inflicted on a spouse when both
spouses are harmed by government acts motivated by a couple’s shared
protected characteristic. For example, putting aside the amendment for a
moment, if a government, as part of a campaign of persecution against
members of a particular religious group, subjected married couples within that
religious group to a policy of mandatory sterilization, the government’s
sterilization of either party to the marriage harms both individuals and is on
account of the religion of both.4 Although there is no specific reference in the
statutory definition of a refugee to a husband’s claim based on harm inflicted
upon his wife, the general principles regarding nexus and level of harm apply
in determining such a claim.5
We apply the same general principles requiring nexus and level of harm for
past persecution in assessing a claim under the IIRIRA amendment. In so
doing we also keep in mind the purposes for which Congress enacted the
amendment, i.e., to afford refugee status to persons whose fundamental human
rights were violated by a government’s application of its coercive family
planning policy. See Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 195 (2d Cir.
2005) (citing Coercive Population Control in China: Hearings Before the

4
See Matter of Chang, supra, at 44, indicating, prior to passage of the amendment, that past
persecution could be established if there was evidence that coercive family planning
practices were selectively applied against members of particular religious groups or for other
grounds protected under the Act.
5
The regulatory framework for establishing asylum eligibility provides that an applicant
may qualify as a refugee by establishing that he or she either has suffered past persecution
or has a well-founded fear of future persecution. Past persecution is established if the
applicant “has suffered persecution in the past in the applicant’s country of
nationality . . . on account of race, religion, nationality, membership in a particular social
group, or political opinion, and is unable or unwilling to return to, or avail himself or herself
of the protection of, that country owing to such persecution.” 8 C.F.R. § 1208.13(b)(1)
(2006).

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Subcomm. on Int’l Operations & Human Rights of the House Comm. on Int’l
Relations, 104th Cong. (1995)); Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,
92 (2d Cir. 2001) (same); see also Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir.
2004) (finding that “Congress’s goal in passing the amendments [was] to
provide relief for ‘couples’ persecuted on account of an ‘unauthorized’
pregnancy and to keep families together” (citing H.R. Rep. No. 104-469(I),
at 174 (1996))).
In its brief, the DHS argues that the first two categories of persons deemed
to have suffered past persecution under the terms of the IIRIRA
amendment–those “forced to abort a pregnancy or to undergo involuntary
sterilization” and those who refuse to undergo such a procedure–are limited
to the person directly subjected to the medical procedure or punished for
refusing the medical procedure. Therefore, the DHS suggests that Matter of
C-Y-Z- must be based on the “other resistance” clause of section 101(a)(42).
When considered in light of the reasons Congress expanded the refugee
protections to include persecution based on coercive family planning, and the
well-established principles regarding nexus and level of harm for past
persecution, we understand the husband, as well as the wife, to have been
subjected to the coercive family planning policy when the government forces
an abortion on a married couple. Although the wife is obviously the
individual subjected to the abortion procedure, Congress was concerned not
only with the offensive assault upon the woman, but also with the obtrusive
government interference into a married couple’s decisions regarding children
and family. When the government intervenes in the private affairs of a married
couple to force an abortion or sterilization, it persecutes the married couple as
an entity. We therefore find that Congress intended section 101(a)(42) to
protect both spouses when the government has forced a married couple
opposed to an abortion to submit to such a procedure.
The PRC Government explicitly imposes joint responsibility on married
couples for decisions related to family planning. The Population and Family
Planning Law, for example, provides that “husband and wife bear common
responsibility in implementing family planning.” Population and Family
Planning Law (adopted at the Standing Comm. Nat’l People’s Cong., Dec. 29,
2001, effective Sept. 1, 2002), art. 17, translated in Bureau of Democracy,
Human Rights, and Labor, U.S. Dep’t of State, China–Profile of Asylum
Claims and Country Conditions 41 (Oct. 2005) [hereinafter 2005 Profile]
(emphasis added).6 A married couple may be subjected to social ostracism

6
A translation of the 2001 Population and Family Planning Law is included as Appendix
A to the 2005 Profile, supra. Article 49 of the 1982 Chinese Constitution similarly provides
that both the husband and the wife have an obligation to practice family planning. See INS
(continued...)

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and pressures from Government officials to agree to submit to an abortion.7
They may be threatened with fines, their property may be damaged or
confiscated, and one or both spouses threatened with demotion, job loss, or
other economic sanctions for refusing to agree to an abortion. If such efforts
fail, an abortion may ultimately be imposed upon the couple.8 Given the
shared responsibility of husband and wife for decisions related to having a
family and the PRC Government’s treatment of the married couple as a
partnership with common responsibility for complying with the family
planning laws, we are willing to presume, in the absence of evidence to the
contrary, that the Government focuses on the married couple as a unit when
it intervenes to force an abortion.
A forced abortion imposed on a married couple naturally and predictably has
a profound impact on both parties to the marriage. Although a forced abortion
does not entirely end a couple’s procreative potential, the forced abortion, like
sterilization, “deprive[s] a couple of the natural fruits of conjugal life, and the
society and comfort of the child or children that might eventually have been
born to them.” Matter of Y-T-L-, 23 I&N Dec. 601, 607 (BIA 2003). A
husband also suffers emotional and sympathetic harm arising from his
spouse’s mistreatment and the infringement on their shared reproductive
rights. Chen v. Ashcroft, 381 F.3d 221, 225-26 (3d Cir. 2004). Local PRC
Government officials understand this when they force a married couple to
abort their prospective child. We find that such Government action is
explicitly directed against both husband and wife for violation of the
Government-imposed family planning law and amounts to persecution of both
parties to the marriage.
As recognized in Chen v. Ashcroft, supra, the ruling in Matter of C-Y-Z- is
plausibly based on “the assumption that the persecution of one spouse by
means of a forced abortion or sterilization causes the other spouse to
experience intense sympathetic suffering that rises to the level of persecution.”

6
(...continued)
Resource Information Center, U.S. Dep’t of Justice, Profile Series, China: Family Planning
Policy and Practice in the People’s Republic of China, PR/CHN/95.001A, at 2 (Mar. 1995).
Article 12 of the 1980 Marriage Law also contains the explicit requirement that “[b]oth
husband and wife shall have the duty to practice family planning.” Id. at 6.
7
The State Department notes that “[b]ecause penalties can be theoretically levied against
a spouse’s work unit or against local officials for allowing out-of-plan births, many
individuals and organizations are affected, providing multiple sources of pressure on
couples. The scope and intensity of the pressure often leave expectant mothers feeling that
they have little choice but to undergo abortion.” 2005 Profile, supra, at 21.
8
The State Department reports that the “[c]entral government policy prohibits the use of
physical coercion to compel persons” to submit to abortion or sterilization. However,
“[r]eports of physical coercion continue to be heard.” 2005 Profile, supra, at 21-22.

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Id. at 225. The impact of forced abortions or sterilizations on a husband and
wife’s shared right to reproduce and raise children is such that “the forced
sterilization of a wife could be ‘imputed’ to her husband, ‘whose reproductive
opportunities the law considers to be bound up with those of his wife.’” Id. at
226 (quoting Lin v. Ashcroft, 356 F.3d 1027, 1041 (9th Cir. 2004)).9
The DHS expresses concerns in its brief that the rule in Matter of C-Y-Z-
may open the door to asylum for husbands who were not, in fact, opposed to
a spouse’s abortion or sterilization or who actually encouraged a spouse to
submit to an abortion or sterilization procedure. We clarify that our holding
in Matter of C-Y-Z- was not intended to, and does not, include such cases. A
husband who participated in attempts to persuade his wife to submit to an
abortion, or who favored the abortion, could not, in good faith, claim to have
been persecuted as a result of the abortion.
We do not require proof in the individual case that the local PRC
Government officials involved were confronted by the husband or otherwise
made aware of the husband’s opposition. Rather, absent evidence that the
spouse did not oppose an abortion or sterilization procedure, we interpret the
forced abortion and sterilization clause of section 101(a)(42) of the Act, in
light of the overall purpose of the amendment, to include both parties to a
marriage.
In conclusion, we reaffirm Matter of C-Y-Z- with regard to married couples
subject to the clarifications made by this decision. When parties have legally
committed to marriage, we recognize the requisite nexus and level of harm for
past persecution when a spouse is forced to undergo an abortion or
sterilization procedure.

B. Boyfriends, Fiancés, and Other Unmarried Partners

The second question to be addressed on remand is whether boyfriends and
fiancés should qualify for refugee status under the IIRIRA amendment to
section 101(a)(42) of the Act in the same manner as an applicant whose
spouse is subjected to a forced abortion or sterilization. As explained below,
we decline to extend Matter of C-Y-Z- to an applicant whose claim is that his
girlfriend or fiancée was subjected to a forced abortion.
Matter of C-Y-Z- relies on marriage as the linchpin. In the absence of proof
to the contrary, we recognize, in the case of a husband opposed to a spouse’s
abortion, that the loss of the child and the interference with the couple’s
reproductive rights, is harm to both spouses amounting to past persecution.

9
Lin v. Ashcroft, supra, was amended and superseded on denial of rehearing, but the quoted
language remained in the amended decision. See Jie Lin v. Ashcroft, 377 F.3d 1014, 1030
(9th Cir. 2004).

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We do not find convincing reasons to extend the nexus and level of harm
attributed to a husband who was opposed to his wife’s forced abortion to a
boyfriend or fiancé.
As indicated above, the sanctity of marriage and the long term commitment
reflected by marriage place the husband in a distinctly different position from
that of an unmarried father. From the point of view of the wife, the local
community, and the government, a husband shares significantly more
responsibility in determining, with his wife, whether to bear a child in the face
of societal pressure and government incentives than does a boyfriend or fiancé
for the resolution of a pregnancy of a girlfriend or fiancée.
Several circuit courts have deferred to unpublished Board decisions refusing
to extend the holding in Matter of C-Y-Z- to unmarried partners. See, e.g.,
Chen v. Gonzales, 457 F3d. 670, 674 (7th Cir. 2006) (declining to extend the
definition of “refugee” to reach boyfriends). Chen v. Ashcroft, supra (holding
that an applicant whose fiancée was forced to have an abortion was not
protected under Matter of C-Y-Z-); Wang v. U.S. Att’y Gen., 152 Fed. Appx.
761 (11th Cir. 2005) (recognizing that a forced abortion or sterilization may
not be imputed beyond the marital relationship). The Third Circuit explains
in Chen v. Ashcroft, supra, at 227, that Matter of C-Y-Z- “uses marital status
as a rough way of identifying a class of persons whose opportunities for
reproduction and child-rearing were seriously impaired or who suffered
serious emotional injury as the result of the performance of a forced abortion
or sterilization on another person.”10 While recognizing that the classification
is “both over- and under-inclusive,” the court in Chen noted that benefits and
presumptions based on marriage are found in so many other areas of the law
and in other provisions of the Immigration and Nationality Act that “it would
seem absurd to characterize reliance on marital status in C-Y-Z- as arbitrary
and capricious.” Id. at 227 n.6.
We recognize that drawing the line at marriage is not an exact measure of
either nexus or level of harm. Requiring marriage, however, is a practical and
manageable approach which takes into account the language and purpose of
the statutory definition in light of the general principles of asylum law. In the
absence of a legal marriage, evaluating the existence of the requisite nexus is
problematic, both as to whether the applicant was, in fact, the father of the
child and as to whether local officials considered him responsible, or were

10
In Chen, after the applicant’s fiancée became pregnant, they applied for a marriage
license but were turned down because they could not meet the minimum age requirements.
After a confrontation with local planning officials, Chen left China for the United States.
Once here, he learned that his fiancée had been found and forced to have an abortion. He
sought asylum based on his fiancée’s forced abortion.

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even aware of his involvement.11 As the court in Chen recognized, “[A] rule
extending C-Y-Z- to non-spouses would create numerous practical difficulties
that the BIA might reasonably have chosen to avoid.” Chen v. Ashcroft,
supra, at 228. Proof or presumption of paternity, for example, may be
considerably more difficult when a boyfriend claims to have fathered a child
who was forcibly aborted by government officials. For all of the reasons
identified above, we do not extend the approach of Matter of C-Y-Z- to
boyfriends or fiancés.
That the holding in Matter of C-Y-Z- is limited to legally married spouses
does not mean that an unmarried applicant may never demonstrate past
persecution in the context of a partner’s forced abortion or sterilization. As
the DHS acknowledges in its brief, there may be cases in which an unmarried
partner in an extremely close and committed relationship may demonstrate
persecution based on the clause referring to “other resistance to a coercive
population control program.”
The term “resistance” is not defined in the Act. The ordinary meaning of
“resistance,” however, is “an act or instance of resisting” or “opposition.”
Merriam Webster’s Collegiate Dictionary 994 (10th ed. 2002). To “resist” is
“to exert force in opposition,” “to exert oneself so as to counteract or defeat,”
or “to withstand the force or effect of.” Id. In the context of coercive family
planning, the term “resistance” covers a wide range of circumstances,
including expressions of general opposition, attempts to interfere with
enforcement of government policy in particular cases, and other overt forms
of resistance to the requirements of the family planning law.
In addition to meeting the nexus requirement based on “resistance” to the
family planning law, an applicant claiming persecution based on an unmarried
partner’s abortion must demonstrate that he has suffered harm amounting to
persecution on account of that resistance. According to the DHS, the relevant
factors to be considered in identifying such cases may include whether the
couple “has children together, has cohabited for a significant length of time,
holds themselves out to others as a committed couple, has taken steps to have
their relationship recognized in some fashion (perhaps having taken such steps

11
As the court in Chen noted, “[T]he BIA might also have been concerned that unmarried
asylum-seekers would falsely claim to have had an intimate relationship with a person who
suffered a forced abortion or sterilization, and the BIA might have felt that it would be too
difficult to distinguish between those unmarried persons who had a truly close relationship
with the person who underwent the medical procedure and those unmarried asylum seekers
who did not.” Chen v. Ashcroft, supra, at 229 (footnotes omitted). In enacting the coercive
family planning protections, members of Congress expressed concern that “young Chinese
single-unmarried-males” might take advantage of the amendment to the “refugee” definition
in section 101(a)(42) of the Act. 142 Cong. Rec. S4592, S4593 (1996) (statement of Sen.
Simpson), 1996 WL 220426.

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repeatedly, as where permission to marry has been denied by authorities
[based on failure to meet the minimum age requirements]), is financially
interdependent, and [whether] persuasive objective evidence of that
relationship’s continued existence during the time that the applicant has been
in the U.S. is presented.”

IV. RESPONDENT’S ASYLUM CLAIM

The respondent is a 41-year-old citizen of the PRC. His asylum application
provides the following account of events which occurred prior to his January
1991 entry to the United States.12 After “going steady” for about 2 years, the
respondent’s girlfriend, then age 18, told the respondent that she “felt like
being pregnant.” They requested a marriage license but were turned down
because the respondent’s girlfriend was under the required age for marriage.
After the respondent’s girlfriend became pregnant, they sought permission
from local family planning officials to have the child. This request was also
denied and they were told that they “must have an abortion.” Two days later
the respondent’s girlfriend was “forced to the hospital.” After the abortion,
they made plans to travel to the United States, but when the time came his
girlfriend was “too weak” to travel, and the respondent came to the United
States on his own. The respondent also indicated that he feared that he would
be “put in prison for leaving the country without permission.”
As explained in Part III.A. above, we decline to extend Matter of C-Y-Z- to
unmarried couples. We therefore examine whether the facts alleged by the
respondent demonstrate that he was persecuted based on “other resistance” to
the family planning laws. The respondent’s conduct relevant to the family
planning policy includes impregnating his underage girlfriend, seeking
permission to marry outside the age requirements for marriage, and seeking
permission to have the child outside the age requirements for having children.
The respondent did not otherwise claim to have expressed opposition or
resistance to his girlfriend’s abortion or the family planning regime.
Merely impregnating one’s girlfriend does not constitute an act of resistance
under the family planning laws within the meaning of section 101(a)(42) of
the Act. See Zhang v. Ashcroft, 395 F.3d at 531, 532 (5th Cir. 2004). In some
cases a pregnancy may have been unplanned or even unwanted. The
respondent merely asserts that his girlfriend “felt like being pregnant.” The

12
The Immigration Judge and the parties agreed to accept the truth of the events recounted
in the asylum application without taking testimony from the respondent. See Matter of Fefe,
20 I&N Dec. 116, 119 (BIA 1989) (stating that in lieu of hearing testimony, the parties may
stipulate that an “applicant’s written statement is believable and that the applicant could
have presented oral testimony consistent with that statement”).

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respondent’s requests for permission to marry and to have a child outside the
age limits are likewise insufficient to indicate resistance to coercive family
planning laws. Rather, the respondent appears to have attempted to comply
with the law by seeking an exception to the usual age requirements. Once
permission was denied, he did not take steps to avoid or prevent the abortion
that might have been perceived as “resistance.”
The respondent asserts that he should be afforded asylum because he and his
girlfriend were denied permission to marry and bear a child based on the
minimum age requirements of the Chinese family planning law.13 He argues
that but for the minimum age requirements, he and his girlfriend would have
married and, therefore, Matter of C-Y-Z- should apply to his case. In Chen v.
Ashcroft, supra, the Third Circuit rejected the argument that persons who
would have married but for the minimum age laws must be included within
the scope of Matter of C-Y-Z-. The court reasoned that however sympathetic
such arguments might be, there are rational reasons, as discussed above, for
limiting Matter of C-Y-Z- to couples who have actually committed to a marital
relationship. See Chen v. Ashcroft, supra, at 232. For the reasons indicated
above, we require that an applicant have entered into a legally recognized
marriage in order to be considered a spouse within the meaning of Matter of
C-Y-Z-.14 The respondent in this case has not demonstrated that he has been
persecuted on account of resistance to the PRC Government’s family planning
policy. In regard to future persecution, he has not asserted or demonstrated
a well-founded fear of future harm based on application of the coercive family
planning law or policy. He indicated only that he feared he would be
imprisoned for departing China without permission.15 The fact that a country
13
Under PRC law, no marriage may be contracted before the man is age 22 and the woman
is 20. 2005 Profile, supra, at 22. An underage couple living in an unregistered de facto
marital relationship is not recognized as a married couple by the Government, and the
parties to such a relationship do not have the legal rights and obligations of a married
couple. Regulations on Control of Marriage Registration (adopted by the State Council,
Jan. 12, 1994, and promulgated by Decree No. 1 of the Ministry of China, Feb. 1, 1994),
art. 24, http://english.gov.cn/2005-07/29/content_18376.htm.
14
We recognize that two circuit courts have decided to the contrary when an underage
couple has entered into a traditional marriage ceremony. Zhang v. Gonzales, 434 F.3d 993
(7th Cir. 2006); Ma v. Aschroft, supra.
15
In the notice of appeal, the respondent’s attorney wrote that the respondent’s elder
brother was killed while trying to intervene to prevent the girlfriend’s abortion. No such
incident was included in the respondent’s asylum application or mentioned in proceedings
before the Immigration Judge, where the respondent had an opportunity to supplement the
information in the asylum application. The respondent’s brief on appeal did not further
address this unsupported allegation. Nor has the respondent provided an amended asylum
application or proffered supporting evidence, or even a statement, explaining the basis of
(continued...)

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may punish a citizen for an illegal departure, however, does not generally
qualify an alien for refugee protection. See Li v. INS, 92 F.3d 985, 988 (9th
Cir. 1996); Matter of Sibrun, 18 I&N Dec. 354, 359 (BIA 1983). Therefore
the respondent has not demonstrated eligibility for asylum or for withholding
of removal under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (2000).
We also agree with the Immigration Judge that the respondent failed to
demonstrate that he would more likely than not be tortured, as that term is
defined by the regulations implementing the Convention Against Torture,
were he to be returned to China. 8 C.F.R. §§ 1208.16(c), 1208.18(a) (2006).
The core events in this case occurred over 15 years ago and the respondent has
not demonstrated that the Chinese Government will likely subject him to
mistreatment rising to the level of torture. We will therefore dismiss the
respondent’s appeal from the Immigration Judge’s decision.
ORDER: The respondent’s appeal is dismissed.
Chairman Lori L. Scialabba did not participate in the decision in this case.

CONCURRING OPINION: Roger A. Pauley
I respectfully concur. I agree with the majority that nothing in the
Immigration and Nationality Act supports the extension of derivative asylum
eligibility, under Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), to
unmarried partners of a man or woman forcibly sterilized or aborted.
However, I disagree with the majority’s determination to “reaffirm” Matter of
C-Y-Z-, supra. Were we writing on a clean slate, I would adopt the lately
arrived at position of the Department of Homeland Security (“DHS”) that
whether or not the spouse of a forcibly sterilized or aborted individual can be
found to have been persecuted depends on a case-by-case assessment of
whether that spouse was persecuted on account of “other resistance” to a
coercive population control system, because the language of the Act does not
support extending refugee status to any person other than the one sterilized or
aborted, aside from the “other resistance” ground. In other words, I would
hold that the DHS’s original theory, accepted without analysis by the Board
in Matter of C-Y-Z-, supra, at 918, that the spouse “stand[s] in [the] shoes” of
the other spouse who was persecuted, is not sustainable. I have previously

15
(...continued)
his knowledge of this incident and why he did not include such information in his asylum
application. Under these circumstances, we do not find any reason to remand for
consideration of evidence which, if it exists, has not been shown to have been unavailable
during the proceedings below.

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had occasion to voice doubts about the correctness of Matter of C-Y-Z- on the
basis on which it was then decided, noting among other things that Congress’s
choice to put coerced population control claims in the category of “political
opinion,” rather than to create a unique and separate ground, was inconsistent
with a general theory of derivative asylum eligibility.1 See Matter of Y-T-L,
23 I&N Dec. 601, 618-20 (BIA 2003) (Pauley, dissenting).
However, notwithstanding my belief that Matter of C-Y-Z-, supra, was
wrongly decided, I would not overrule it now, nearly a decade later and in the
aftermath of thousands of decisions applying it to grant asylum on a derivative
basis. Stare decisis is an important principle for any adjudicative body,
whether a court or an appellate administrative agency such as the Board.
Thus, for many of the same reasons as undergirded my separate opinion in
Matter of Assaad, 23 I&N Dec. 553, 569-71 (BIA 2003) (Pauley, concurring),
I would find that given the almost universal acceptance of Matter of C-Y-Z-
and the extensive degree of reliance thereon, it is too late in the day for the
Board to upset the applecart and reach a different conclusion.2 It is, however,
another thing to extend an untenable approach to afford asylum to additional
thousands, or tens of thousands, of potential applicants as would result from
applying Matter of C-Y-Z, supra, to unmarried partners of the victims of a
coercive population control regime. For the reasons set forth in Part III.B. of
the majority opinion, I concur in the result in this case.

1
That theory has spawned other derivative claims, of dubious merit in my view, e.g.,
involving applicants who claim that their children may experience female genital mutilation
(“FGM”). See, e.g., Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004). While FGM may be
a pernicious form of persecution, it is difficult to understand why a fear that it may be
performed on another person, albeit one’s child, is a ground for asylum, any more than if
a parent had a fear that a child would be singled out for persecution on account of political
opinion, race, or religion.
2
I note that were the Board to overrule Matter of C-Y-Z-, supra, the DHS could seek
termination of asylum under section 208(c)(2)(A) of the Immigration and Nationality Act,
8 U.S.C. § 1158(c)(2)(A) (2000), on the basis of a “fundamental change in circumstances.”
Whether a change in the Board’s interpretation of the Act is a “fundamental change in
circumstances” contemplated by the statute and regulations is an open question. See Azanor
v. Ashcroft, 364 F.3d 1013, 1022 (9th Cir. 2004) (implicitly treating a change in United
States asylum law as a “change in circumstances” under another regulation); cf. also Matter
of Y-T-L-, supra, at 604-05.
I also take into account, as does the majority, Congress’s recent elimination of the annual
cap for persons found eligible for asylum for having been persecuted on the basis of a
coercive population control program. However, I do not read into this elimination
congressional approval of Matter of C-Y-Z-, but instead merely a practical recognition that,
over the years, the unrealistically low cap had produced an unhealthy backlog of applicants
awaiting permanent asylee status, including those women and men who themselves had been
forcibly sterilized or aborted.

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CONCURRING and DISSENTING OPINION: Lauri Steven Filppu,
Board Member, in which Patricia A. Cole, Board Member, joined
I concur in the result, but I respectfully dissent from the majority’s
reaffirmation of the “joint spousal persecution” theory announced in Matter
of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997).
In Matter of C-Y-Z-, supra, we accepted, without any statutory analysis, the
parties’ agreed view that the spouse of a forcibly sterilized woman qualified
in his own right as a “refugee” because of past persecution. We merely
explained that this “position is not in dispute,” thereby implicitly endorsing
the stated view of the former Immigration and Naturalization Service (“INS”)
“‘that the husband of a sterilized wife can essentially stand in her shoes and
make a bona fide and non-frivolous application for asylum based on problems
impacting more intimately on her than on him.’” Id. at 918 (quoting INS
brief). Despite the absence of an explicit “stand in the shoes” clause in the
statute, this understanding of the law has gone largely unchallenged since
1997 and has routinely been applied in both forced sterilization and forced
abortion contexts.
Today, however, we do face a challenge to the “stand in the shoes” theory.
The Department of Homeland Security (“DHS”) disavows the prior position
of its predecessor, the INS, and instead argues for an interpretation based on
the actual language of the statute. Importantly, the United States Court of
Appeals for the Second Circuit remanded this very case for us to explain why
“the spouses of those directly victimized by coercive family planning policies
are per se as eligible for asylum as those directly victimized themselves,” in
part because the decision in Matter of C-Y-Z-, supra, “never . . . identified the
specific statutory language pursuant to which it deemed spouses eligible for
asylum.” Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 191, 192 (2d Cir. 2005).
These powerful entreaties for a reading grounded in statutory text are
consonant with the vast body of case law declaring that statutory interpretation
must begin with reference to the language and structure of the statute–the
paramount indicia of legislative intent. E.g., INS v. Cardoza-Fonseca, 480
U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984).
In the face of all this, the majority’s opinion fails to discuss “the specific
statutory language” supporting the “stand in the shoes” theory it reaffirms.
The majority admits that none of the clauses of the statute explicitly refers to
spouses in describing the categories of persons subjected to qualifying
persecution. Matter of S-L-L-, 24 I&N Dec. 1, 5 (BIA 2006). It then
interprets the “forced abortion and sterilization clause” of the statute “to
include both parties to a marriage” as long as the husband opposed the

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abortion. Id. at 8. But it does so “in light of the overall purpose” of the
coercive population control amendment. Id. The majority never explains how
the actual text of the statute supports its construction, or even how that text is
actually ambiguous on the question of covering married couples, as opposed
to all couples or just individuals.
The literal language of the statute, however, is contrary to the majority’s
ruling. As the DHS convincingly argues, the statute plainly focuses on “a
person” who has been forced to abort a pregnancy, not on a “couple,” let alone
a married couple, or, in the majority’s terms, “both parties to a marriage.”
Matter of S-L-L-, supra, at 8. The statute as a whole reinforces the ordinary
meaning of “a person.” In ordinary English usage, couples do not “undergo”
medical procedures; only an individual will “undergo such a procedure.” That
“procedure,” of course, is the forced abortion or sterilization. If this were not
enough, the natural meaning of “a person” is inescapably clarified by the
clause addressing “a person who has a well founded fear that he or she will
be forced to undergo such a procedure.” Section 101(a)(42) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000) (emphasis
added). “[H]e or she” cannot reasonably be read to cover married couples.
Departures from literal text are warranted to correct scrivener’s errors or to
avoid absurdity, for example. Clarification and interpretation are justified to
fill statutory gaps and resolve ambiguities. But exceptions such as these
compel analysis and explanations founded first and foremost on statutory text.
In no case do they justify avoiding a meaningful discussion of literal statutory
language.
The majority claims no scrivener’s error or absurdity to support joint spousal
persecution. It does assert statutory ambiguity by claiming that “Matter of
C-Y-Z-, supra, reflects significant tensions inherent” in the statute, and that all
“interpretive lines” will be subject to criticism as “inadequately tied to
statutory language.” Matter of S-L-L-, supra, at 4. But it never explains where
any ambiguity lies in the text of the law itself.
To the extent that “significant tensions” exist, I believe they were caused by
our decision in Matter of C-Y-Z-, not reflected in it. The parties agreed to the
result, and we simply adopted that agreement without any independent
analysis. Matter of C-Y-Z-, supra, at 918. The tension that exists is between
Matter of C-Y-Z- and the statute, not within the statute itself.
The majority invokes what it terms “well-established principles regarding
nexus and level of harm” to say that both spouses automatically qualify when
one is aborted. Matter of S-L-L-, supra, at 6. It claims that China “persecutes
the married couple as an entity” when it “intervenes in the private affairs of
a married couple to force an abortion or sterilization” Id. This might well
provide some support for the spouse of an abortion victim to advance a claim
under the “other resistance” clause of the statute. It is not a basis, however,

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for treating that spouse as being the one who has undergone the abortion
itself, as is the clear requirement of the “forced abortion and sterilization”
clause.
The DHS actually argues for a focus on the “other resistance” clause when
it comes to the independent qualification of a spouse who lacks a direct
“forced abortion or sterilization” claim. All indications are that the majority
rejects such a focus when it adopts an automatic entitlement rule for spouses
in general. But it then proceeds to qualify its own “interpretation” to exclude
any husband who was not, in fact, opposed to his wife’s abortion. The
separate views of a husband and wife on this subject would seem to qualify
as “the private affairs of a married couple,” as much as would jointly held
views. And unless China actually knows of an otherwise private family
dispute, it is impossible to understand how it intends to punish “the married
couple as an entity” only in those cases where there is joint opposition to the
abortion.
I agree that relief should not be available to a husband who favors an
abortion his wife is forced to endure. But that is because such a husband has
neither resisted China’s coercive population control program nor suffered
persecution from the abortion. “Family entity persecution,” however, is
simply a creative construct for deeming a husband to be “a person” who has
undergone a forced abortion without any grounding in the statutory language
itself.
The clearly applicable “general principle” as to spouses is already embodied
in sections 207(c)(2) and 208(b)(3) of the Act, 8 U.S.C. §§ 1157(c)(2) and
1158(b)(3) (2000 & Supp. II 2002), according derivative status to spouses
and children of aliens who qualify as refugees or for asylum. Each spouse to
a marriage may well be able to show independent grounds for asylum as a
principal in a given case, and that ground could be identical in some cases.
But there is no general rule that the persecution of one spouse is imputed to
the other such that both are independently deemed to qualify for relief.
Any legislative goal of automatically benefitting spouses is already
accomplished in removal cases through the ordinary derivative asylum
provisions of section 208(b)(3) of the Act. Congress, after all, placed its
“coercive population control” amendment within the confines of the broader
refugee and asylum statutes. Nothing in the language of that amendment
suggests that it was intended to supersede or obviate derivative status for
spouses in the abortion and sterilization context. Reliance on “derivative
status” may not benefit every husband who can get asylum under the
majority’s approach, particularly those whose marriages have ended in death

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or divorce.1 But, I am at a loss to understand the imperative, absent
identifiable statutory text, to accord refugee status to men who have
undergone no coercive procedure and who have left behind their forcibly
aborted or sterilized wives.
The majority also defends its rule by saying that Matter of C-Y-Z- is a
long-standing precedent left untouched by the Attorney General, that
Congress changed the annual cap for affected asylees without questioning
Matter of C-Y-Z-, that some spouses can be persecuted together in other
contexts, and that Congress’s goal was to protect couples.
I make no claim that the considerations noted by the majority can never be
relevant. But resort to such factors is only appropriate if the “forced abortion
and sterilization” clause, when read in the context of the statute as a whole, is
reasonably ambiguous on whether “a person” includes married couples.
Further, I have already explained why the derivative refugee and asylum
statutes should control any automatic benefit accorded spouses, as this is the
long-standing statutory basis for providing benefits to spouses who were not
themselves the direct recipients of persecution.
The Attorney General’s refusal to review Matter of C-Y-Z-, moreover, does
not justify our refusal to confront the text of the statute when we are called
upon to do so by both a party and the court remanding this very case to us.
The repeal of the statutory cap for “coercive population control” refugees may
well reflect no dissatisfaction with Matter of C-Y-Z-. But it does not contain
an express endorsement either. Indeed, there is precious little in Matter of
C-Y-Z- to endorse, other than a bottom line, perhaps, given that the decision
itself fails to contain any statutory analysis for Congress to accept or reject.
It gives no guidance on how to address “boyfriend” cases, such as the one
presently before us, let alone “traditional marriage” or divorce cases. Most
importantly, if the actual statute does not support the result in Matter of
C-Y-Z-, we simply have no authority to amend the statute just because the
Attorney General and Congress have failed to object.
The majority’s discussion of legislative history may also be incomplete; it
cites to case law construing that history rather than directly to the history
itself. The DHS in its appeal brief, on the other hand, cites directly to portions
of that history in arguing that Congress was focused on women, not on men,
when it came to forced abortions. E.g., Coercive Population Control in
China: Hearings before the Subcomm. on Int’l Operations & Human Rights
of the House Comm. on Int’l Relations, 104th Cong. 1 (1995) (statement of
Rep. Christopher Smith). I find it unnecessary to join this battle, beyond
noting that the statute, when read in context, is sufficiently clear as to the

1
Derivative status would also be unavailable for those aliens who only qualify for
withholding of removal, given the lack of derivative eligibility in that context.

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meaning of “a person” and that nothing in the legislative history reflects a
“‘clearly expressed legislative intention,’ contrary to [the statutory] language,
which would require us to question the strong presumption that Congress
expresses its intent through the language it chooses.” INS v. Cardoza-
Fonseca, supra, at 432 n.12 (quoting United States v. James, 478 U.S. 597,
606 (1986)).
The fundamental flaw in the majority’s approach–its failure to analyze
precise statutory text–is further illustrated in its treatment of “boyfriends,
fiancés, and other unmarried partners.” Relying on its construct of family
entity persecution, the majority crafts a rule that treats a father as “a person
who has been forced to abort a pregnancy” if the father is both legally married
to the woman who was forced to undergo such a procedure and if the father
opposed the abortion. The majority never explains, however, how a father
ceases to be “a person” forced to abort a pregnancy when it comes to
unmarried partners. Instead, the majority advances a series of policy reasons
for “drawing the line at marriage,” Matter of S-L-L-, supra, at 9, and for
refusing to extend to a boyfriend or fiancé “the nexus and level of harm” it
attributes to a husband. Id. Its policy explanations are not without reason.
But its entire discussion is only necessary because of the underlying rule it
invents in the first place.
The majority’s creation of, and restrictions on, its rule of family entity
persecution would appear to resolve the cases of most married couples,
“traditionally” married couples, and never married couples. But, I see no clear
answer emerging as to divorced couples. Does the rule apply if a forced
abortion or sterilization took place before the divorce, even if the husband
now has children with his second wife? Does it apply if the divorce preceded
a forced abortion or sterilization, even if it was the husband’s child that was
aborted? In this respect, does a father suffer “family entity” persecution if
China recognizes a divorce that extinguishes that very entity before it even
learns the woman is carrying the father’s child?
For the reasons set forth earlier, I agree with the DHS that the statute does
not permit the spouse of “a person forced to abort a pregnancy” to establish
refugee status in his own right simply by virtue of the marital relationship.
Instead, “a person” who has not suffered, or who will not and has not been
placed in jeopardy of suffering, a forcible abortion or sterilization procedure
can qualify for this sort of refugee status only if he proves that he was
persecuted, or has a well-founded fear of future persecution, “for other
resistance to a coercive population control program.”
As DHS also persuasively argues, the word “for” in the “other resistance”
clause means “because of,” such that this resistance is the reason why the
persecution is inflicted or feared. Thus, if the Chinese Government would
forcibly abort a woman regardless of the views or actions of her husband, it

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may become difficult for the husband to show that the abortion was because
of his resistance.
A coercive abortion that is performed against a woman in simple pursuance
of the population control policy, and that would have been performed in any
event, would qualify as persecution of the woman upon whom it is performed
under the plain language of the statute. But, it would not automatically
qualify as persecution of her husband or boyfriend, even if he adamantly
resisted it and was emotionally harmed by it, unless he can show that it was
motivated by (i.e., was “for”) his resistance. However, a person who is
imprisoned or whose livelihood is lost through governmental action or who
is subjected to other forms of economic detriment or physical harm could
qualify for refugee status under the “other resistance” clause if these injuries
were sufficiently severe and were motivated by his acts or statements in
opposition to the coercive population control program, or to its enforcement
in a particular case.
The majority evidently reaches the same result on this point in relation to
unmarried partners. It declares that “[m]erely impregnating one’s girlfriend
does not constitute an act of resistance” as “a pregnancy may have been
unplanned or even unwanted.” Matter of S-L-L-, supra, at 11. In some cases,
however, I think a planned pregnancy could well be viewed as an act of
“resistance.” The question then becomes the motivation for any termination
of that pregnancy, that is, did the Chinese Government intend the forced
abortion to be a measure of harm to the father because of his resistance. Some
of the points made by the majority may support a husband’s claim under the
“other resistance” clause, at least to the extent that China deems both parties
to a marriage to share birth control responsibilities. We do not now face the
claim of a husband, however, and are only required by the Second Circuit’s
remand to explain why spouses may (or, in my opinion, may not)
automatically qualify for relief without being direct victims of forced
abortions or sterilizations, and then to address the scope of the statute in
relation to a boyfriend.
In the latter respect, the respondent presently before us does not qualify. He
has not been forced to abort a pregnancy or to undergo involuntary
sterilization and has not disobeyed a governmental command that he do so; he
has no well-founded fear that either an abortion or sterilization procedure will
be performed on him in the future; and he has adduced no evidence that he
offered discernible “resistance” to the enforcement of the coercive population
control program in general, or to its enforcement against his former girlfriend,
who remains in China. Accordingly, even if his girlfriend’s involuntary
abortion was perceived as a grievous loss by him, it was not persecution
inflicted because of his resistance to the coercive population control program.

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Moreover, he has not shown that any mistreatment he fears upon return to
China would be “for” such resistance.
Turning now to Board Member Pauley’s concurring opinion, I note that he
acknowledges that the joint spousal persecution theory underlying Matter of
C-Y-Z-, supra, has no basis in the statutory language, but he nonetheless
justifies adherence to that theory on grounds of stare decisis. Respect for prior
decisions is an important consideration. But Board Member Pauley’s view
would elevate stare decisis to the power to rewrite the law, simply because the
parties once agreed and we published that agreement. The Board is an
administrative body. Our precedents are subject to the legal rulings of the
Attorney General and the courts.
The Second Circuit has asked us to explain the statutory grounding for
Matter of C-Y-Z-, supra, in this case. It is no answer that our precedent lacks
any such grounding, but we adhere to it anyway because we announced it
nearly 10 years ago. And I fail to see any justifiable reliance on our precedent
by males in China who come to the United States without their forcibly
aborted wives, often through costly and dangerous smuggling schemes. In
these circumstances, stare decisis is an insufficient basis for defending our
rule as against the law enacted by Congress, and conforming to that law is
surely a sound reason for departing from past precedent. In short, we have no
authority to invent our own version of the law.2
In sum, the “joint spousal persecution” or “stand in the shoes” theory has no
basis in the text of the statute, and we should repudiate it. Males lacking their
own sterilization claims can independently qualify only under the “other
resistance” clause, if at all. Otherwise, husbands are fully entitled to pursue
derivative status based on any refugee determinations accorded their wives.
I agree with the majority’s ultimate ruling that the respondent has not
demonstrated that he was persecuted in the past for his “resistance” to the
Chinese coercive population control program or that he has a well-founded
fear that he will be persecuted for such resistance in the future. The majority
thus correctly dismisses the appeal, but it seriously errs in perpetuating a rule
that finds no support in the text of the law.

2
We are not now concerned with reopening past cases. Instead, as I see it, we must decide
whether to continue dispensing an automatic benefit not authorized by law and, if so,
whether to extend that same unauthorized automatic benefit to an additional category of
persons not covered by the statute. Attempting to draw lines between categories of
ineligible applicants is a precarious business, assuming it can ever be justified.

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