A Circuit Split on Judicial Deference: Interpreting Asylum Claims by Fiancés and Boyfriends of Victims of China's Coercive Family Planning Policies

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Determining who qualifies for asylum under United States law is a complex task based in large part on prevailing international norms about fundamental rights.1 The grant of asylum to an individual serves as recognition of profound harmthat it would be unreasonable and cruel to return a refugee facing persecution to his or her home country.2 Under U.S. law, however, asylum eligibility requires not a violation of international norms, but that an applicant qualifies as a "refugee."3 This "refugee" definition, as much as our consciences may demand otherwise, cannot incorporate each and every victim of maltreatment or persecution. Rather, it demonstrates that our national immigration policy has limits, and is constrained by finite governmental resources, issues of proof, and differences over what practices actually constitute persecution.4 Drawing the line between applicants who do and do not qualify under U.S. law is a difficult, case-by-case task.5

One example illustrating the complexity of this task relates to the practice of forced abortion and sterilization. With direct victims, the decision may seem easy. Most agree that forcible abortion and sterilization comprise egregious human rights violations.6 In fact, in 1996 Congress codified this prevailing norm by enacting legislation aimed at providing specific relief for such victims, particularly for those who suffered under the coercive family planning policies of the People's Republic of China ("PRC").7 This legislation-the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA")-provides per se asylum eligibility for direct victims of forced abortions or sterilizations.8

A more complicated question is whether per se eligibility should be extended to husbands or boyfriends seeking asylum based solely on their wives' or girlfriends' forced abortion or sterilization. This Note discusses the split among the second,9 Third,10 and Ninth11 Circuit Courts of Appeals, and addresses questions that stem from this judicial disagreement. The first substantive issue is whether the derivative harm caused by a forcible abortion or sterilization meets the "persecution" requirement as set forth by the IIRIRA.12 Unquestionably-from a moral perspective-abortion or sterilization harms a husband's or boyfriend's fundamental right to procreate;13 in the case of forcible sterilization, he loses his ability to have children with his partner, and in the case of forcible abortion, he loses his own child. Yet courts disagree over the Board of Immigration Appeals' ("BIA") determination that legally married husbands of forcibly sterilized spouses are deemed to be persecuted, but husbands married in traditional ceremonies not recognized by the state, as well as boyfriends and fiancés, are not also eligible for such imputed persecution. The second, and perhaps more important, question concerns the level of deference a court must show to decisions of the BIA. Is the issue of asylum eligibility within the exclusive purview of the BIA-which has primary authority to determine asylum eligibility-or can a federal court that hears an appeal overrule a BIA interpretation?

This Note addresses these two questions-(1) whether the forcible sterilization of a wife or girlfriend is an act of persecution against a husband, fiancé, or boyfriend, and (2) what level of deference must a federal appeals court show to a determination by the BIA-and argues that the Third and Ninth Circuits, while coming to contrary determinations in the cases at issue, misapplied the required principle of judicial deference to administrative agencies, and consequently intruded upon the BIA's authority. The Third Circuit deferred to the BIA, implicitly ratifying a BIA interpretation that the court should have instead recognized as unsound.14 In contrast, the Ninth Circuit identified the BIA's weak reasoning, but inappropriately set forth its own interpretation and construction of the statute. …