By: Nicholas Cutaia
Each year, thousands of people around the world petition the
United States government for asylum. Take, for instance, a
Chinese woman who has been forcibly sterilized for defying the
family planning policy of the People’s Republic of China, a policy
which prohibits couples from having more than one child.
Assume that she has been deemed “persecuted” under the law
governing her claim—the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”)—and that she is eligible for
asylum. Assume also that her husband is eligible for asylum
based solely on his wife’s forced sterilization. Is
this a proper reading of the IIRIRA? If so, does a fiancé or
boyfriend of a victim deserve the same protection? Is the
asylum legislation an aspirational law that seeks to acknowledge
fundamental harm—that is, loss of a couple’s ability to bear
children together—or did Congress limit asylum protection to more
formal distinctions such as marital status?
Now switch gears for a minute. If that husband, fiancé, or
boyfriend seeks asylum, how does our legal system adjudicate his
claim? First, it is heard by an immigration judge, and if
appealed, by the Board of Immigration Appeals (“BIA”), the
administrative body charged with interpreting and applying
immigration laws. If appealed again, it goes directly to a
U.S. court of appeals. At the federal appellate level, what
kind of responsibility does a court have, both in dealing with the
substantive merits of an asylum claim and in affording proper
deference to a BIA decision? May the court provide an
alternative construction of the statute? What do principles
of judicial deference dictate?
This Note addresses several recent cases that deal with the
above two issues, namely, (1) whether the forcible sterilization of
a spouse or girlfriend is an act of persecution against a husband,
fiancé, or boyfriend, and (2) what level of deference a federal
appeals court must show to a statutory interpretation promulgated
by the BIA. Specifically, this Note examines three cases in
which the Second, Third, and Ninth Circuit Courts of Appeals split
over how to review the BIA’s interpretation of the IIRIRA.
The statutory construction at issue grants eligibility to the
husband of a forcibly sterilized spouse, but does not confer that
same protection on a similarly situated fiancé or
boyfriend.
In dividing over the issue, the Third Circuit affirmed the BIA’s
decision to deny eligibility to a fiancé or boyfriend, despite the
Board’s failure to explain properly its rationale. In
contrast, the Ninth Circuit rejected the BIA’s interpretation, but
overstepped principles of judicial deference by promulgating its
own statutory construction. This Note endorses the approach
of the Second Circuit, which—while recognizing the BIA’s failure to
provide a rationale for its interpretation—properly refused to
state an alternative construction; doing so, the Second Circuit
correctly reasoned, would encroach upon the BIA’s authority to
decide issues of statutory interpretation in the first
instance.