KUI RONG MA,
Petitioner, v. JOHN ASHCROFT, Attorney General, Respondent. No. 02-70956 UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT 361 F.3d 553; 2004 U.S. App. LEXIS
4789 March 15, 2004, Filed PRIOR HISTORY: [*1]
Petition for Review of an Order of the Board of Immigration Appeals. Agency No.
A76-279-693. DISPOSITION: Petition
for review granted and remanded. COUNSEL: Jisheng Li, Esq., Law
Office of Jisheng Li, Honolulu, Hawaii, for the petitioner. M. Jocelyn Lopez Wright, Senior Litigation
Counsel, Office of Immigration Litigation Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent. JUDGES: Before: James R. Browning,
Stephen Reinhardt, and Sidney R. Thomas, Circuit Judges. Opinion by Judge
Reinhardt. OPINIONBY: Stephen Reinhardt OPINION: REINHARDT, Circuit Judge Kui Rong Ma, a native and citizen of the
Peoples Republic of China (China), petitions for review of the
Board of Immigration Appeals (BIA) order denying his motion to
reconsider or reopen its decision to deny him asylum. In denying the motion to
reconsider, the BIA determined that only a spouse in a marriage
legally registered with the Chinese government can establish past
persecution and qualify as a refugee on the basis of his wifes forced abortion
or sterilization. The BIAs decision in this regard limited In Re Matter of
C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997), which held that past persecution of
one spouse can be established by coerced abortion [*2] or
sterilization of the other spouse. Id. at 918. On appeal, Ma asserts that the BIAs
determination, that an individual in a marriage that cannot legally be
registered in China is not a spouse, is contrary to the relatively recent Congressional
amendment granting asylum status to victims of Chinas oppressive population
control policy. See INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B). n1 Ma
contends that the marriage restriction is an integral part of the policy that
Congress targeted and that in China a pregnancy occurring during a marriage
that is not registered is subject to abortion. He maintains that the BIAs
decision is based on an erroneous assumption, namely that there is no
connection between the inability to obtain registration from the Chinese
government for a traditional marriage when it is
under-age and Chinas coercive family planning policies. We agree.
n2 - - - - - - - - - - - - - - Footnotes - - - - -
- - - - - - - - - - n1 Section 101(a)(42)(B) provides in relevant
part:For purposes of determinations under this chapter, 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.
[*3] n2 We set forth the facts as they were testified
to by Ma and found to be true by the immigration judge. The INS appealed the
immigration judges credibility findings but the BIA found it unnecessary to
reach the issue. - - - - - - - - - - - - End Footnotes- - - - - -
- - - - - - - - When Ma was nineteen, he fell in love with Lei
Chiu Ma (Chiu), who was twenty-one. The government of China
prohibited them from entering into a legally recognized marriage until Ma
turned twenty-two. n3 But the couple did not want to wait to get married. So,
Ma and Chiu were wed in a traditional Chinese ceremony in their
village, on February 5, 1998. Two months later, Chiu became pregnant. Because
Chinese population control policies prohibited Chiu from becoming pregnant
until she entered into a legally registered marriage, and because pregnancies
occurring outside of such a marriage were subject to termination by forced
abortion, she and Ma worried that government officials would abort her
pregnancy. To ensure that her pregnancy would not be noticed by local birth
control officials, Chiu hid in her aunts house located in a village some
twenty minutes from her own. - - - - - - - - - - - - - - Footnotes - - - - -
- - - - - - - - - - n3 The legal age for women to marry in Mas
village is twenty. Chiu met this requirement because she was twenty-one at the
time of the couples traditional marriage ceremony. - - - - - - - - - - - - End Footnotes- - - - - -
- - - - - - - - [*4] Ma wanted to live with his wife without fear of
reprisal, so he attempted to register his marriage with local authorities. The
officials denied his request for registration, stating that he had not reached
the legal age for marriage. Mas attempt to register his marriage served to
notify local birth control officials that the couple had violated the
population control laws by their underage marriage; unfortunately, those
officials also learned that Chiu had become pregnant. In October of 1998, five
local officials came to Mas house and demanded that he produce his wife for a
physical examination and for forced abortion procedures. When Ma refused to
tell the officials where Chiu was hiding, they seized Mas 63-year-old father,
threatening that he would be placed in detention until Chiu presented herself
for an abortion. Ma tried to stop the officials from taking his father. His
efforts failed. The officials beat Ma and took his father into custody. Ma did not tell Chiu about his fathers
detention, because he did not want her to surrender herself for a forced
abortion. However, the family planning officials deliberately spread the news
that Mas father had been placed in prison, [*5] presumably in
hopes that word would reach Chiu. When she finally learned of her
father-in-laws detention and heard that he might be tortured on her account,
she went to the Family Planning Office to plead for his release. She later told
Ma that she thought she might be able to convince the officials to let her have
their child, because the couple had no other children. She was wrong. Officials
detained her and forcibly aborted the pregnancy, which was in its third
trimester. After the authorities released Chiu, they fined the couple 5,000 RMB
for the early pregnancy and marriage. n4 - - - - - - - - - - - - - - Footnotes - - - - -
- - - - - - - - - - n4 The original documentation for Mas payment
of this fee contains a check in the early marriage box, as well as the early
pregnancy box, indicating that the fine was imposed for both reasons. However,
the translated version shows only that it was for the unlawful pregnancy. - - - - - - - - - - - - End Footnotes- - - - - -
- - - - - - - - In the days after her abortion, Chiu became ill,
both mentally and physically. She and Ma decided that they should not stay in
China. Chiu encouraged Ma [*6] to leave for America first and then
to send for her as soon as possible. At the end of March, after arrangements
had been made and funds for the trip collected, Ma left China, smuggled in the
hull of a boat. His plans to bring his wife to the United States and reunite
his family were quickly frustrated, however. Upon his arrival in Guam, Ma was intercepted by
immigration authorities and placed in an immigration detention center, where he
remained for a number of years. Shortly after he was detained, the Immigration
and Naturalization Service (INS) commenced removal proceedings. Ma
applied for relief in the form of asylum, withholding of removal under INA §
241(b)(3), 8 U.S.C. § 1231(b)(3), and withholding of removal pursuant to
Article 3 of the United Nations Convention Against Torture and Other Cruel,
Inhumane or Degrading Treatment or Punishment (Convention Against
Torture), opened for signature Feb. 4, 1985, S. Treaty Doc. No. 100-20,
at 20 (1988). He claimed that he and his wife had been persecuted by the
Chinese government based on their opposition to Chinas population control policies
and sought relief under section 101(a)(42)(B). Specifically, he
[*7] alleged persecution on the basis of his wifes forced abortion
and the refusal to permit his underage marriage. Ma submitted supporting
documentation with his application, including a receipt for payment of the
5,000 RMB fine, a certificate of proof regarding the forced abortion, and a
picture of himself and his common law wife. The Immigration Judge
(IJ) found Ma credible and granted his application for asylum. The
IJ determined that Mas traditional marriage to Chiu qualified him
as her spouse and allowed Ma to base his asylum claim on his wifes forced
abortion. She considered the BIAs prior decisions on the subject, as well as
the language of section 101(a)(42)(B), and concluded that refugee status
was:not limited to individuals who actually undergo an involuntary abortion or
sterilization but appears to encompass those who would offer resistance to
coercive population control programs. In a situation where a marriage cannot be
registered because foreign law precludes marriage by men under the age of
[twenty-two], while no visa petition for example, could be granted on a spouse
[ ] petition, there does not appear to be a logical or statutory basis to rule
that [*8] a common law husband cannot meet his burden of proof when
his common law wife has had a forced abortion. The INS filed a notice of appeal with the BIA
contending that only a legally recognized marriage qualified an
individual as a spouse for the purpose of requesting asylum. n5 By
a two to one vote, the members of the BIA majority revoked Mas asylum status,
stating that in order to invoke his wifes persecution to establish asylum, Ma
needed to provide proof of a legal[ ] marriage. Without such proof,
Ma could not be the spouse of the person who was allegedly forced to have
an abortion. In response to Mas assertion that his inability to obtain
legal registration was a result of a law promulgated as part of
Chinas coercive population control plan, the BIA stated that it found no link
in the record between Mas inability to establish a legal marriage and the
Chinese policy. In dissent, Board Member Schmidt wrote:In this case there is
absolutely no doubt about the relationship between the respondent and his
common law spouse. Whether or not the persecuting country, China,
would decline to recognize the marriage on technical grounds, because the
respondent [*9] was under the age of [twenty-two], has little, if
anything, to do with this asylum application. - - - - - - - - - - - - - - Footnotes - - - - -
- - - - - - - - - - n5 Ma waived his right to appeal from the IJs
denial of withholding of removal and protection under the Convention Against
Torture because he failed to raise these issues in the reply brief to the
governments appeal. - - - - - - - - - - - - End Footnotes- - - - - -
- - - - - - - - Ma filed a motion to reconsider. He asserted
that the decision was erroneous and submitted additional evidence to support
his asylum claim. During his lengthy detention, Ma had reached the legal age to
marry in China. Shortly after turning twenty-two, Ma requested a certificate
from the Chinese government to provide the BIA with proof of the validity of
his marriage. Ma submitted with his petition the certificate he obtained from
the Chinese government dated March 2002, which confirmed that Ma and his wife
Chiu had a wedding ceremony according to the rural customs and
stated that the Chinese government had recently issued a certificate
recognizing his marriage as a de facto marriage. Ma
[*10] also introduced a report from the Chinese Communist Party
establishing that the prohibitions on underage marriage were part of Chinas
population control policy; in submitting this report, he hoped to provide
additional evidence to the BIA to prove that it had made an error when it found
that his inability to register his traditional marriage was not directly
attributable to the enforcement of this policy. The BIA construed Mas motion as one to
reconsider and reopen the prior decision and then denied it. In denying the
request for reconsideration, the BIA held that Ma had not demonstrated a
legal or factual error in its prior decision, and that as it
previously stated on appeal, [it] declined to extend [Matter of C-Y-Z]
protection to legally unmarried partners. Ma appealed. II On review, we consider only the BIAs order
denying Mas motion to reconsider and reopen. n6 However, to the extent that
the BIA in denying the motion adopted the underlying reasoning and holding of
its prior opinion, we look to that underlying opinion. See Mejia v. Ashcroft,
298 F.3d 873, 876-77 (9th Cir. 2002) (holding that where the denial of
reconsideration relies upon the [*11] reasoning in the previous
order, then it is appropriate to examine that prior opinion). n7 - - - - - - - - - - - - - - Footnotes - - - - -
- - - - - - - - - - n6 We agree with the government that we do not
have jurisdiction over the BIAs March 13, 2002, order (March 13th
Order) denying the original appeal because Ma filed his petition more
than thirty days from the date of that order. INA § 242(b)(1), 8 U.S.C. §
1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2002). n7 Because we conclude that the BIA abused its
discretion in denying the motion to reconsider, we do not reach the motion to
reopen. - - - - - - - - - - - - End Footnotes- - - - - -
- - - - - - - - a. Waiver As a preliminary matter, the government contends
that Ma has waived his argument that the BIA erred in restricting the definition
of spouse to individuals in legally registered
marriages because he did not present it under a heading explicitly challenging
the BIAs motion to reconsider, but rather under the portion of his brief
discussing the March 13th Order. We reject this contention for two reasons.
[*12] First, because the BIAs denial of
reconsideration explicitly reaffirmed the conclusion and reasoning of the
underlying opinion, preferring to adopt it rather than offer a different
analysis, it was permissible for Ma to refute the arguments made in that
opinion in order to explain why the BIA should be reversed. See Mejia, 298 F.3d
at 876-77. Second, in its brief the government provided a full response to Mas
contentions, and we do not see how it could have suffered prejudice, as its
principal complaint is that Ma failed to raise these contentions under the
appropriate heading in his brief or to discuss specific sections of the motion
to reconsider when advancing those contentions. See United States v. Ullah, 976
F.2d 509, 514 (9th Cir. 1992) (court may review an issue if the failure to
raise it properly did not prejudice the opposing party). Accordingly, we
conclude that the INSs waiver argument lacks merit. b. Standards of Review A petitioners motion to reconsider must
identify a legal or factual error in the BIAs prior decision. See 8 C.F.R. §
1003.2(b)(1) (2003) (stating that the motion shall state
[*13] the reasons for the motion by specifying the errors of fact
or law in the prior Board decision and shall be supported by pertinent
authority); see also Matter of Cerna, 20 I. & N. Dec. 399, 402 (BIA
1991) (stating that a motion to reconsider questions the Boards decision
for alleged errors in appraising the facts and the law; when the BIA
reconsiders a decision, it considers the case as though a decision had never
been entered). Where, as here, the denial of the motion to reconsider turns on
the BIAs construction of INA provisions, we review the BIAs construction de
novo, subject to established principles of deference. Kamalthas v. INS, 251
F.3d 1279, 1281-82 (9th Cir. 2001). In such circumstances, deference is
owed to the BIAs reasonable interpretations of such provisions, so long as
they do not contravene other indications of congressional intent. Id. at
1282 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 143 L. Ed. 2d 590, 119 S.
Ct. 1439 (1999); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 843, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)). Further, statutory
interpretations which would produce absurd [*14] results are to be
avoided. United States v. Wilson, 503 U.S. 329, 334, 117 L. Ed. 2d 593, 112 S.
Ct. 1351 (1992). c. Merits The BIA determined that, although a husband
whose marriage is registered with the state may obtain refugee status on the
basis of his wifes sterilization or abortion, a husband whose marriage is not
so registered, because Chinas coercive population control policy prohibits
registration, may not. Ma contends that this determination contravenes the statute
and we agree. The statute grants asylum to individuals who
have been subjected to a forced abortion or sterilization procedure pursuant to
Chinese population control policies. INA § 101(a) (42)(B). The BIA and the
courts have uniformly applied the statutes protections to husbands whose wives
have undergone abortions or sterilization procedures, as well as to the wives
themselves. He v. Ashcroft, 328 F.3d 593, 603-04 (9th Cir. 2003) (holding that
where the petitioners wife underwent a sterilization procedure, the petitioner
was automatically eligible for asylum); Qiu v. Ashcroft, 329 F.3d 140, 144-45
(2d Cir. 2003) (recognizing that a petitioner may assert a claim
[*15] of persecution on the basis of his wifes forced
sterilization); Matter of C-Y-Z, 21 I. & N. Dec. at 918 (holding that where
a petitioners wife undergoes either an abortion or sterilization procedure, he
is eligible for asylum). n8 The evident purpose of these decisions is to
fulfill Congresss goal in passing the amendments to provide relief for
couples persecuted on account of an unauthorized
pregnancy and to keep families together. See H.R. Rep. No. 104-469(I), at 174
(1996). - - - - - - - - - - - - - - Footnotes - - - - -
- - - - - - - - - - n8 We note that in He, Qiu, and Matter of C-Y-Z
the male petitioner entered into a marriage deemed illegal by the Chinese
government because one or both of the spouses were underage. In none of these
cases, however, did the INS or the BIA deny relief on the ground that the
petitioner failed to obtain a registration certificate from the
Chinese government, nor did the INS or the BIA mention the failure to
register as an issue to be considered. The failure of the INS to
invoke this purported restriction on asylum relief prior to the present case
further calls into question its legitimacy. - - - - - - - - - - - - End Footnotes- - - - - -
- - - - - - - - [*16] The question presented here is whether husbands,
whose marriages are denied recognition by virtue of the population control
program that Congress has condemned, may be deprived of eligibility for asylum
on the basis of that denial. In other words, we must determine whether husbands
may be denied eligibility because China refuses to grant official recognition
to marriages that, in its view, would lead to an excessive number of children.
We hold that eligibility for asylum may not be denied on that basis. The BIAs
refusal to grant asylum to an individual who cannot register his marriage with
the Chinese government on account of a law promulgated as part of its coercive
population control policy, a policy deemed by Congress to be oppressive and
persecutory, contravenes the statute and leads to absurd and wholly
unacceptable results. Accordingly, we need not defer to the BIAs decision. See
Kamalthas, 251 F.3d at 1282 (the court need not defer to the BIAs
interpretation of a statutory provision where that interpretation contravenes
the statute); Wilson, 503 U.S. at 334 (statutory interpretations that lead to
absurd results are to be avoided). [*17] i. Congressional Intent The record in this case conclusively shows, and
this Circuit has already held, that the prohibition against underage marriages
is an integral part of Chinas coercive population control program.
See Li v. Ashcroft, 356 F.3d 1153, 1160 n.5 (9th Cir. 2004)(en banc); see also
Circular Notice on Obligations of Departments Directly under the Municipality
in Implementing Fujian Province Planned Birth Regulations (stating that the
policy against early marriages should be strictly enforced in order to prevent
early births); Fuzhou Citys Enforcement of the Fujian Province Family
Planning Regulations (stating that it is strictly forbidden to get
married and give birth underage); 1999 China Country Report (stating that
unmarried women are prohibited from having children); Family Planning Office,
Changle Receipt for Out-Of-Plan Birth Fee (fine receipt, which among other
things, includes a box to fine individuals for early marriages and births);
Hearing on Chinas Planned Birth Policy Before the House International
Relations Comm., Subcomm. on Intl Operations and Human Rights, 105th Cong.
(1998) (statement of Zhou Shiu Yon, Victim) (witness [*18] stating
that because she could not obtain a marriage certificate or a birth permit on
account of her early marriage, her pregnancy was illegal and officials sought
her out to perform abortion procedures). The record also establishes that women
are prohibited from having children prior to entering into a marriage sanctioned
under the Chinese population control policy and that the policy against
underage marriages was designed to reduce the period of time during which
couples could legally reproduce. Id. Here, because Ma and Chiu could not legally
register their marriage until Ma turned twenty-two, the couples first
pregnancy was considered an early illegal pregnancy, which
warranted forced abortion. In other words, Chius pregnancy was terminated
solely because Ma had not turned twenty-two, (even though Chiu herself had
reached the legal age for marriage). n9 Congresss amendments to the
immigration statute are clearly intended to provide protection to individuals
who suffer persecution, in the form of forced abortion, as a result of their
violation of the population control program. Because the early marriage
prohibition is inextricably linked to the restrictions on childbirth,
[*19] the BIAs decision to limit asylum eligibility so as to
exclude husbands who marry their spouses prior to the authorized age established
in the program contravenes the purpose and policies of the statutory amendment. - - - - - - - - - - - - - - Footnotes - - - - -
- - - - - - - - - - n9 The governments position on appeal that
the underage marriage prohibition was not related to the forced abortion is
further undermined by the position it took during Mas hearing before the IJ.
At that hearing, during its questioning of Ma, government counsel emphasized
that because Ma and his wife could not register their marriage, the couple was prohibited
from having children:Mary Lee Fong, INS: Since you and your wife didn't have a
registered marriage, did you realize that if you and your wife had a baby that
it was not permitted? Ma: I do know that I was not permitted to have
baby. - - - - - - - - - - - - End Footnotes- - - - - -
- - - - - - - - In a misguided attempt to provide some statutory
support for the BIAs decision, the government asserts that if a husband in a
non-registered marriage is provided relief, it will create [*20] an
absurd result, namely that his spouse, the persecuted female will
be unable to benefit from her husbands grant of asylum pursuant to the
derivative status provision of INA § 208(b)(3). n10 8 U.S.C. § 1158(b)(3); see
also 8 C.F.R. § 208.21 (2002). The governments argument is simply wrong. That
the persecuted female cannot obtain derivative status under section 208(b)(3)
is entirely without meaning, because, under the plain language of section
101(a)(42), she is eligible for relief as a refugee in her own right. As such,
she could not benefit from section 208(b)(3) derivative status even if her
marriage had been recognized by the Chinese government; section 208(b)(3)
status is only available to individuals who are not otherwise eligible
for asylum under this section. Id. In other words, Mas common law wife
cannot benefit from the derivative status protection of section 208(b)(3)
because she, herself, satisfies the refugee criteria of section 101(a)(42)(B)
based on her forced abortion. See He, 328 F.3d at 604 (stating that a person
who has been forced to abort a pregnancy is automatically classified as
[*21] a refugee, and is therefore automatically eligible for
asylum). The absurd consequence that the government fears if we
hold in favor of Ma a persecuted wife presumably unable to join her asylee
common law husband in this country is a pure figment of the governments
imagination: the persecuted female is automatically deemed a refugee upon a
finding that her testimony regarding the forced abortion or sterilization is
credible. - - - - - - - - - - - - - - Footnotes - - - - -
- - - - - - - - - - n10 Section 1158(b)(3) provides in relevant
part:A spouse or child (as defined in section 1101(b)(1)(A), (B), (C), (D), or
(E) of this title) of an alien who is granted asylum under this subsection may,
if not otherwise eligible for asylum under this section, be granted the same
status as the alien if accompanying, or following to join, such alien.Id. - - - - - - - - - - - - End Footnotes- - - - - -
- - - - - - - - Only by adopting the BIAs rule restricting
relief to legally registered spouses would we create the harsh and arbitrary
result that the government decries in its brief, namely breaking apart a
family. If Chiu, [*22] Mas wife, applied for asylum, she would be
automatically eligible based on her forced abortion. Yet, under the BIAs rule,
Mas husband would not be eligible because under Chinas population control
program their marriage was underage and could not be legally
registered. Application of the BIAs rule would result in the separation
of a husband and wife, the break-up of a family, a result that is at odds not
only with the provision at issue here, but also with significant parts of our
overall immigration policy. See, e.g., Kaho v. Ilchert, 765 F.2d 877, 879 n.1
(9th Cir. 1985) (recognizing that one of the Acts basic objectives is to
reunite families); Lau v. Kiley, 563 F.2d 543, 545 (2d Cir. 1977) (same);
Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990) (recognizing that one
of Congresss reasons for enacting the visa preference provisions is family
unification). We cannot construe the statute in the manner suggested by the BIA
because, as the government correctly points out, we cannot adopt a construction
that leads to absurd results the break-up of the family unit. Wilson, 503
U.S. at 334 (holding [*23] that courts should interpret statutes so
as to preclude absurd results). The government also contends that we must follow
Chinas policy regarding the minimum age for marriage in determining whether to
recognize Ma as Chius husband. While ordinarily we respect the marriage rules
and regulations of foreign nations, including the establishment of a minimum
age, cf. Adams v. Howerton, 673 F.2d 1036, 1038-39 (9th Cir. 1982), here the
entire purpose of Congresss amendment to the asylum statute is to give relief
to victims of Chinas oppressive population control policy. As we have stated,
because the prohibition on underage marriage is an integral part of that policy,
it would contravene the fundamental purpose of the statute to deny asylum on
the basis of that rule. Because the purpose of section 101(a)(42)(B) is to
protect individuals, such as Ma, from persecution stemming from the program at
issue here, it would contravene the statute to permit asylum decisions to be
made in reliance on the legitimacy of the program, including its prohibition
against underage marriages. d. Conclusion Accordingly, we hold that the protections of
section 101(a)(42)(B) apply [*24] to husbands whose marriages would
be legally recognized, but for Chinas coercive family planning policies, and
not only to husbands whose marriages are recognized by Chinese authorities. We GRANT THE PETITION FOR REVIEW and REMAND for
further proceedings consistent with this opinion. PETITION GRANTED AND REMANDED. |