Cai Luan Chen v. John Ashcroft, Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
__________
No. 03-3124
____________
CAI LUAN CHEN,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY
GENERAL OF THE UNITED STATES,
Respondent
____________________
ON PETITION FOR REVIEW OF AN
ORDER OF THE BOARD OF
IMMIGRATION APPEALS
(No. A73 631 654)
__________________
Argued: June 18, 2004
Before: ALITO, SMITH, and WALLACE,
Circuit Judges*
(Opinion Filed August 20, 2004)
THEODORE N. COX
JOSHUA BARDAVID (Argued)
401 Broadway, Suite 701
New York, New York 10013
Counsel for Petitioner
PETER D. KEISLER
DAVID V. BERNAL
JOCELYN L. WRIGHT (Argued)
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
Cai Luan Chen petitions for review
of an order of the Board of Immigration
Appeals (BIA) affirming the denial of his
application for asylum and withholding of
removal. Chen’s primary argument is that
he is eligible for asylum based on his
fiancee’s forced abortion at the hands of
Chinese government officials. In making
this argument, Chen relies on a decision of
the Board of Immigration Appeals holding
that the spouse of a person who was forced
to undergo an abortion or sterilization is
deemed under a 1996 amendment to 8
U.S.C. § 1101(a)(42) to have suffered past
persecution. Matter of C-Y-Z-, 21 I. & N.
Dec. 915 (BIA 1997) (en banc). Chen
argues that, while he and his fiancee were
never married, they would have married
*The Honorable J. Clifford Wallace,
Circuit Judge for the United States Court
of Appeals for the Ninth Circuit, sitting by
designation.

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2
had it not been for China’s inflated
minimum marriage age requirement, which
was instituted as part of the country’s
oppressive population control program.
Chen contends China’s refusal to permit
him to marry constituted persecution and
that therefore the BIA’s decision to limit
C-Y-Z- to married persons is irrational and
arbitrary and must be rejected.
We disagree. While limiting C-Y-
Z- to married persons may produce
undesirable results in some cases, the
BIA’s interpretation, which contributes to
efficient administration and avoids
difficult and problematic factual inquiries,
is reasonable. We accordingly deny the
petition for review.
I.
Chen and his fiancee, Chen Gui, are
both natives and citizens of the People’s
Republic of China. Chen and Chen Gui
started living together at Chen’s parents’
house in July 1994. At the time, Chen was
19 and Chen Gui was 18.
In September 1995, the couple
discovered that Chen Gui was pregnant,
and they then applied for a marriage
license at the local government office
without disclosing the pregnancy.
However, the office told them that their
application could not be approved, since
the legal age to marry was 25 for men and
23 for women.1
Government officials soon became
aware of the pregnancy and told Chen Gui
that the child would have to be aborted.
Chen and Chen Gui delayed compliance
with the order, and this prompted a group
of local officials to visit the home of
Chen’s parents. Chen Gui, having been
warned of the visit, was not there when the
officials arrived, and Ch en w as
accordingly asked to disclose Chen Gui’s
whereabouts. When Chen refused, the
officials started hitting him with “sticks,”
and Chen fought back with a “plumbing
tool.” Finally, Chen’s parents intervened
to end the scuffle. The officials left,
warning Chen that he would be arrested if
Chen Gui did not report for an abortion in
three days.
Chen and Chen Gui went into
hiding, and Chen left the country shortly
thereafter. He entered the United States in
April 1996. About two months later, Chen
contacted his family and was told that
Chen Gui had ultimately been found and
had been forced to submit to an abortion in
1We note that officially the minimum
age for marriage in China appears to be 22
for men and 20 for women. See Marriage
Law of the People’s Republic of China,
art. 6 (as amended April 28, 2001),
available in LEXIS, Chinalawinfo Selected
PRC Laws file at PRCLEG 1793. It is
conceivable, however, that some local
variation in these requirements may exist.
See United States Department of State,
China: Profile of Asylum Claims and
Country Conditions (April 14, 1998) (“The
minimum age for marriage in China is 22
for males and 20 for females. In some
localities the ages are set higher.”). For
the purposes of this case, we assume the
accuracy of Chen’s description of the age
requirement to which he was subject.

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3
the eighth month of the pregnancy. Chen
was also informed that Chen Gui was
continuing to live with his parents.
The I N S initiated removal
p r o c ee d i n g s a g ai ns t C h e n, wh o
subsequently sought asylum under the
reasoning of the BIA’s decision in C-Y-Z-.
The IJ concluded that, although Chen and
Chen Gui had never formally married, the
case did “fall by analogy within C-Y-Z-, if
not by the letter.” App. II at 116.
However, the BIA reversed on appeal,
noting summarily that the decision in C-Y-
Z- had “not been extended to include
unmarried partners,” App. I at 3, and that
Chen’s “own experiences with the
authorities in China [did] not rise to the
level of past persecution.” Id. Chen then
filed this petition for review.
II.
The respondent in this case
(hereinafter “the government”) contends
that the BIA’s interpretation of 8 U.S.C.
§ 1101(a)(42) as covering the spouses but
not the unmarried partners of persons who
have been forced to undergo abortions or
sterilization is entitled to deference under
Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843-
44 (1984), and should be sustained.
Chevron applies when “it appears that
Congress delegated authority to the agency
generally to make rules carrying the force
of law, and that the agency interpretation
claiming deference was promulgated in the
exercise of that authority.” United States
v. Mead Corp., 533 U.S. 218, 226-27
(2001). If Chevron applies, a court must
ask (at what is customarily called step one)
“whether Congress has directly spoken to
the precise question at issue.” Chevron,
467 U.S. at 842. “If so, courts, as well as
the agency, ‘must give effect to the
unambiguously expressed intent of
Congress.’” Household Credit Servs, Inc.
v. Pfennig, 124 S. Ct. 1741, 1747 (2004)
(quoting Chevron, 467 U.S. at 842-43).
“However, whenever Congress has
‘explicitly left a gap for the agency to
fill,’” a court must proceed to step two,
and “the agency’s [interpretation] is ‘given
controlling weight unless [it is] arbitrary,
capricious, or manifestly contrary to the
statute.’” Id. (second brackets in original)
(quoting Chevron, 467 U.S. at 843-44).
The Court has described this test as one of
reasonableness. See Chevron, 467 U.S. at
845, 865, 866.
Here, there is no dispute that “the
BIA should be accorded Chevron
deference for its interpretations of the
immigration laws,” Tineo v. Ashcroft, 350
F.3d 382, 396 (3d Cir. 2003) (citing INS v.
Aguirre-Aguirre, 526 U.S. 415, 424
(1999)), and Chen does not contend that 8
U.S.C. § 1101(a)(42) unambiguously
covers the unmarried partners of persons
who have undergone forced abortions or
sterilization. Instead, Chen focuses on
step two of the Chevron analysis and
argues that the BIA’s interpretation of 8
U.S.C. § § 1101(a)(42) is arbitrary,
capricious, and irrational.
III.
Before we can address Chen’s
argument regarding the limited scope that
the BIA has given to its decision in C-Y-

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Z- , it is helpful to review that decision and
the statute on which it is based.
A.
Under 8 U.S.C. § 1158(b)(1), the
Attorney General may grant asylum to an
alien who is a “refugee” within the
meaning of 8 U.S.C. § 1101(a)(42). In
order to establish refugee status under the
latter provision, an applicant must
generally show that he or she “is unable or
unwilling to return to, and is unable or
unwilling to avail himself or herself of the
protection of [the country of such person’s
nationality or in which such person last
habitually resided] because of persecution
or a well-founded fear of persecution on
account of race, religion, nationality,
membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42).
B y r e g u l a t i o n , s e e 8 C . F . R .
§ 1208.13(b)(1), “[a] showing of past
persecution gives rise to a rebuttable
presumption of a well-founded fear of
future persecution.” Mulanga v. Ashcroft,
349 F.3d 123, 132 (3d Cir. 2003).
The BIA initially rejected the
argument that “implementation of
[China’s] ‘one couple, one child’ policy in
and of itself, even to the extent that
involuntary sterilizations may occur, is
persecution or creates a well-founded fear
of persecution on account of race, religion,
nationality, membership in a particular
social group, or political opinion.” Matter
of Chang, 20 I. & N. Dec. 38, 44 (BIA
1989) (internal quotation marks and
citation omitted). This holding, however,
was superceded several years later by the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No.
104-208, 110 Stat. 3009-546 (“IIRIRA”).
Section 601 of the IIRIRA amended
§ 1101(a)(42) by adding the following
language:
[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
we ll founded fear of
persecution on account of
political opinion.
Id. § 601, 110 Stat. at 3009-689; see also
Matter of X-P-T-, 21 I. & N. Dec. 634
(BIA 1996) (en banc). (For convenience,
we will refer to this new provision as “the
1996 amendment to § 1101(a)(42)” or
simply “the 1996 amendment.”)
The IIRIRA also imposed a cap of
1,000 persons per fiscal year on the
number of aliens who may be granted
asylum under the 1996 amendment. 8

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U.S.C. § 1157(a)(5).2 Accordingly, aliens
found eligible for asylum under this
provision are approved only conditionally,
subject to an administrative determination
that a final grant of asylum would not push
the annual total above the statutory cap.
See X-P-T-, 21 I. & N. Dec. at 637.
Because the number of conditional grants
issued per year has exceeded 1,000 for
some time, the waiting list now includes
more than 7,000 applicants. See News
Release, U.S. Department of Justice, EOIR
Notifies Persons Eligible for Full Asylum
Benefits for Fiscal Year 2003 Based on
Coercive Population Control Policies
( S e p t . 3 0 , 2 0 0 3 ) , a t
http://www.usdoj.gov/eoir/press/03/CPC
AsylumRelease0903.pdf. This means that
applicants awarded conditional asylum
today face a waiting period of at least
seven years before becoming eligible for
the full benefits of asylum, including the
ability to apply for lawful permanent
resident status and to obtain the admission
to the United States of family members not
included in the original asylum
application. See id.; U.S. Citizenship and
Immigration Services, Resistance To
Coercive Population Control (CPC)
P r o g r a m s ( O c t . 3 0 , 2 0 0 3 ) , a t
http://uscis.gov/graphics/services/asylum
/cpc.htm.
B.
In C-Y-Z-, the BIA, sitting en banc,
considered the asylum petition of a man
who claimed that his wife had been
forcibly sterilized. The government
conceded that the man was a victim of past
persecution as defined by the 1996
amendment to § 1101(a)(42), asserting that
“past persecution of one spouse can be
established by coerced abortion or
sterilization of the other spouse.” C-Y-Z-,
21 I. & N. Dec. at 917; see also id. at 919
(noting agreement on the proposition that
“forced sterilization of one spouse . . . is
an act of persecution against the other
spouse”). The BIA accepted this
proposition, but unfortunately, it did not
explain the basis for this conclusion.
However, two rationales seem possible.
The first would proceed 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. Cf.
Abay v. Ashcroft, 368 F.3d 634, 642 (6th
Cir. 2004) (suggesting that “mental
suffering” resulting from “being forced to
witness the pain and suffering of [a]
daughter” constitutes persecution) (citing
Matter of Dibba, No. A73 541 857 (BIA
Nov. 23, 2001)). There is some evidence
that this rationale may represent the BIA’s
thinking in C-Y-Z-. Board Member
Rosenberg explained:
It is not . . . unusual . . . that
the applicant should be
granted asylum although the
2The statute provides: “For any fiscal
year, not more than a total of 1,000
refugees may be . . . granted asylum . . .
pursuant to a determination under the third
sentence of section 101(a)(42) (relating to
persecution for resistance to coercive
population control methods).” 8 U.S.C.
§ 1157(a)(5).

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6
harm experienced was not
by him, but by a family
member. . . . It . . .
constitutes persecution for
the asylum applicant to
witness or experience the
persecution of family
members . . . .
C-Y-Z-, 21 I. & N. Dec. at 926
(Rosenberg, Board Member, concurring).3
This interpretation would presumably look
to the language in the 1996 amendment
that refers to persons who are “persecuted
for . . . other resistance to a coercive
population control program.” See id. at
928 (Filppu, Board Member, concurring in
part and dissenting in part) (explicitly
noting the possibility that the majority
holding rested on the “persecuted for
. . . other resistance” clause). The
suffering felt by the spouse who did not
personally undergo the procedure would
constitute the “persecut[ion]” to which this
language refers, and the other spouse
would be deemed to have “resist[ed]” the
“coercive population control program,”
presumably on the assumption that he or
she opposed the procedure.
This interpretation, however, is not
without difficulties. For example, it is not
clear why every spouse of a person who
undergoes a forced abortion or sterilization
should be deemed to have “resist[ed]” the
“coercive population control program.”
What if the spouse who did not personally
undergo the procedure sided with the
government and favored the abortion or
sterilization?
The second possible rationale for
the C-Y-Z- decision is that performing a
forced abortion or sterilization procedure
on one spouse constitutes persecution of
the other spouse because of the impact on
the latter’s ability to reproduce and raise
children. The Ninth Circuit has suggested
this interpretation, stating in Lin v.
Ashcroft, 356 F.3d 1027, 1041 (9th Cir.
2004), 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.” See also C-Y-Z-, 21 I. & N. Dec. at
918 (“[T]he 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.”); see also id. at 921 n.2 (Rosenberg,
Board Member, concurring) (citing
international law regarding “right to
procreate” and “right to . . . found a
family”); Matter of Y-T-L-, 23 I. & N.
Dec. 601 (BIA 2003) (en banc) (Pauley,
Board Member, dissenting) (“I understand
our ruling in Matter of C-Y-Z- to be based
on the theory that the persecution of one
spouse by forced sterilization is imputed to
the other”). It takes some effort to
reconcile this interpretation with the
language of the 1996 amendment, since
3The Sixth Circuit in Abay appeared to
agree that the implication of Board
Member Rosenberg’s concurring opinion
in C-Y-Z- was that a “family member may
be eligible for asylum based upon the
physical harm inflicted upon another
family member.” See Abay, 368 F.3d at
641.

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the phrase “a person who has been forced
to abort a pregnancy or to undergo
involuntary sterilization” is most naturally
read as referring only to a person who has
personally undergone one of those
procedures. But perhaps it could be
argued that the loss of opportunity to have
and raise children also constitutes
“persecut[ion] for . . . other resistence to a
coercive population control program.”4
In this case, however, it is not
necessary for us to decide whether C-Y-Z-
’s interpretation of the 1996 amendment is
permissible. If it is not and the 1996
amendment applies only to persons on
whom a forced abortion or sterilization
procedure has actually been performed,
Chen obviously cannot prevail. On the
other hand, if C-Y-Z-’s interpretation is
permissible (and we assume for the sake of
argument that it is), the distinction that the
BIA has drawn between married and
unmarried couples satisfies step two of
Chevron.
IV.
With the possible bases of the C-Y-
Z- decision in mind, we turn to Chen’s
argument that the BIA’s interpretation of
the 1996 amendment, by drawing a
distinction between married and unmarried
couples, “evinces such a lack of rationality
as to be arbitrary and capricious.”
Petitioner Br. at 16-17 (quoting Zhao v.
United States DOJ, 265 F.3d 83, 95 (2d
Cir. 2001)).5
A.
As we understand it, 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. Of course,
this use of marital status as a proxy is
undoubtedly both over- and under-
inclusive to some extent, but neither over-
nor under-inclusiveness is alone sufficient
to render the use of a metric like marital
status irrational. See Heller v. Doe, 509
U.S. 312, 321 (1993) (citation omitted)
(“A classification does not fail
rational-basis review because it ‘is not
made with mathematical nicety or because
in practice it results in some inequality.’”);
Dandridge v. Williams, 397 U.S. 471, 485
(1970); Lofton v. Sec’y of the Dep’t of
Children & Family Servs., 358 F.3d 804,
822-23 (11th Cir. 2004) (“The Supreme
Court repeatedly has instructed that neither
the fact that a classification may be
overinclusive or underinclusive nor the
4In the case of a forced abortion,
conception in violation of the program
could constitute the “resistance,” and since
involuntary sterilization often follows
prohibited conception, this same theory
might work in that context as well.
5While this argument bears some
similarity to a rational-basis Equal
Protection Clause argument, it is clear that
Chen is not attempting to make a
constitutional argument here. Nor does
Chen contend that any standard of review
more stringent than “rationality” ought to
apply.

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fact that a generalization underlying a
classification is subject to exceptions
renders the classification irrational.”).6
This principle is well illustrated by
cases involving immigration laws that
attempt “to provide some – but not all –
fam ilies with relief from various
immigration restrictions that would
otherwise hinder reunification of the
family in this country.” Fiallo v. Bell, 430
U.S. 787, 797 (1977). For example, in
Fiallo, the Supreme Court upheld the
constitutionality of provisions that
excluded illegitimate children and their
fathers (but not illegitmate children and
their mothers) from special preference
imm igration status. The Court
acknowledged that these provisions could
have the effect of “deny[ing] preferential
status to parents and children who share
strong ties,” id. at 798, and the Court noted
the argument that “the statutory distinction
[was] based on an overbroad and outdated
stereotype concerning the relationship of
unwed fathers and their illegitimate
children,” id. at 799 n.9. Nevertheless, the
Court concluded that the statutory
distinction could be viewed as serving two
purposes: (1) providing a convenient way
to weed out cases in which “close family
ties” were lacking and (2) avoiding
“problems of proof and the potential for
fraudulent visa applications.” Id. at 798,
799 n.8; see also Nguyen v. INS, 533 U.S.
53, 62 (2001) (finding need for reliable
evidentiary verification “that a biological
parent-child relationship exists” to be an
important government interest justifying
disparate treatment of illegitimate children
born to citizen mothers and those born to
citizen fathers). Likewise, a law requiring
aliens who married United States citizens
while in removal proceedings to wait
outside the country for two years before
qualifying as I-130 “immediate relatives”
has been found to be rational as a method
of deterring sham marriages. Almario v.
INS, 872 F.2d 147, 152 (6th Cir. 1989);
Anetekhai v. INS, 876 F.2d 1218, 1222
(5th Cir. 1989) (“Congress logically could
have concluded that aliens who are
engaged in deportation proceedings are
more likely than aliens not so situated to
enter into fraudulent marriages as a means
of avoiding expulsion from the United
States.”).7
6Indeed, the marriage relation is used in
so many areas of the law (income tax,
welfare benefits, property, inheritance,
testimonial privilege, etc.) that it would
seem absurd to characterize reliance on
marital status in C-Y-Z- as arbitrary and
capricious. Cf. Montgomery v. Carr, 101
F.3d 1117 (6th Cir. 1996) (deeming
rational the enforcement of a school anti-
nepotism policy against married couples
but not cohabitants).
7The Supreme Court has reversed at
least one prior attempt by this Circuit to
engage in more searching review of line-
drawing exercises by the political
branches of government in the area of
immigration law. In INS v. Hector, 479
U.S. 85 (1986) (per curiam), the
Supreme Court rejected a holding
allowing for the possibility of treating
nieces as “children” in a hardship

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Similarly, we may say that the BIA
“logically could have concluded that aliens
who are [married] are more likely than
aliens not so situated” to be severely
injured in the ways noted above when their
partners are forced to endure forced
abortions or sterilization. Indeed, in light
of the “crushing caseload” faced by the
BIA in recent years, see Dia v. Ashcroft,
353 F.3d 228, 235 (3d Cir. 2003) (en
banc), it was entirely rational for the Board
to adopt a position requiring marriage,
which can often be proven easily and
reliably through objective documentary
evidence such as marriage certificates or
“household registration booklets.” See,
e.g., Zhao, 265 F.3d at 87; C-Y-Z-, 21 I. &
N. Dec. at 916. By contrast, a rule
extending C-Y-Z- to non-spouses would
create numerous practical difficulties that
the BIA might reasonably have chosen to
avoid. For example, in cases in which a
male applicant claims to have fathered an
illegitimate child who was forcibly aborted
by government officials, the problem of
proving paternity would be even more
acute than those presented in Fiallo and
Nguyen. Moreover, the BIA might
reasonably have decided that, in general,
forced abor tions an d steriliza tion
procedures tend to have a more severe
impact on spouses than on unmarried
partners. The 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,8
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.9 Chen does not explain why the BIA
analysis if it could be shown that a
“parental-type relationship” existed. See
id. at 87. Whether any unfairness to the
nieces in such “parental-type
relationship[s]” may have resulted did
not enter into the Court’s calculus; all
that mattered was that Congress, in
defining “children,” had not seen fit to
include nieces raised as effective
adoptees. See id. at 90-91.
8An analogy may be drawn here to the
tort of negligent infliction of emotional
harm. As explained in Restatement
(Second) of Torts § 436, recovery under
this tort may be available when members
of the immediate family of a victim witness
the infliction of harm. Id. § 436(3)
(emphasis added). “However, where a
stranger is involved . . . there may be
sufficient uncertainty as to the genuineness
or seriousness of the emotional disturbance
to justify, as a matter of administrative
policy, a denial of liability.” Id. cmt. h.
Here, the BIA may have concluded that,
given the difficulty of determining the
“genuineness” of emotional harm felt by
one upon hearing of harm to his fiancee,
the strict limitation of C-Y-Z- to married
couples was justified “as a matter of
administrative policy.”
9That some applicants could
conceivably be able to present such
convincing evidence is beside the point.

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10
was irrational in deciding on a bright-line
rule for this class of cases, rather than
submitting each individual claim to a
detailed (and probably inconclusive)
psychological analysis concerning the
nature of a claimed relationship.
For these reasons, we conclude that
the BIA’s decision not to extend C-Y-Z- to
unmarried partners satisfies step two of
Chevron. The BIA’s interest in promoting
administrability and verifiability is
sufficient to clear the low hurdle presented
by the step two standard, especially in light
of the limited number of spots allowed by
Congress for asylum claims based on the
1996 amendment.10
B.
Chen argues, however, that even if
it is rational not to extend C-Y-Z- to cover
all unmarried partners, it is irrational to
exclude him and other unmarried persons
who wanted and indeed tried to get
married but were prevented from doing so
by a law that is
an integral part of a program of
persecution. This argument must be
rejected for reasons similar to those
already discussed. Chen’s situation simply
shows that C-Y-Z- is underinclusive with
respect to a narrow but sympathetic class,
and as noted, a rule is not irrational just
because it is underinclusive to some
We note that Fiallo did not require any
special exception to be carved out for
fathers who could prove actual paternity of
illegitimate children when they had not
adopted or legitimated them. Nor did
Almario and Anetekhai provide those who
married during removal proceedings an
opportunity to present evidence showing
that their marriages were not shams. Such
rules, like the one adopted by the BIA
here, represent pragmatic approaches that
make it possible for an overburdened
agency to do the work with which it is
charged.
10The government offers an alternative
explanation for the BIA’s distinction
between married and unmarried asylum
applicants, noting that “[a] grant of asylum
to an applicant present in the United States
enables the asylee to have his or her
spouse and children admitted to the United
States as derivative beneficiaries of the
asylee’s status.” Respondent Br. at 19.
Because “the existence of a valid, legal
marriage is required before an immigrant
visa may be issued,” the government
concludes that the disparate treatment of
married and unmarried applicants is
“consistent with the statutory design and
the family unification policies underlying
the issuance of immigration visas.” Id.
This argument is not without some merit.
However, given the current length of the
conditional asylee waiting list, spouses
granted conditional status under C-Y-Z-
today must wait at least seven years before
they can even apply for such a visa on
behalf of their spouses. Accordingly, we
doubt as a practical matter that the
potential eligibilty for preferential visas
actually operates to hasten the admittance
to the United States of spouses directly
persecuted under coercive population
control programs.

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11
extent.
Of course, if the Chinese
authorities’ refusal to permit Chen and
Chen Gui to marry was itself an act of
persecution, then Chen suffered past
persecution. But although minimum
marriage ages of 23 and 25 are contrary to
our traditions and international practice,
we cannot go so far as to say that
enforcement of these laws necessarily
amounts to persecution.
American constitutional law
recognizes marriage as a fundamental
right, see Loving v. Virginia, 388 U.S. 1
(1967), but all states impose minimum
marriage age requirements,11 and we
assume that these laws are constitutional.
See Moe v. Dinkins, 669 F.2d 67, 68 (2d
Cir. 1982) (per curiam) (law requiring
parental consent for marriage of
i n d i v i d u a l s u n d e r 1 8 d e e m e d
constitutional, as a rational means for
helping “prevent[] unstable marriages
among those lacking the capacity to act in
their own best interests”); Maynard v. Hill,
125 U.S. 190, 205 (1888) (state legislature
may prescribe “the age at which parties
may contract to marry”); see also Zablocki
v. Redhail, 434 U.S. 374, 386 (1978)
(“[R]easonable regulations that do not
significantly interfere with decisions to
enter into the marital relationship may
legitimately be imposed.”); cf. Zablocki,
434 U.S. at 392 (Stewart, J., concurring)
(“A State may not only ‘significantly
interfere with decisions to enter into the
marital relationship,’ but may in many
circumstances absolutely prohibit it.”)
(footnote and citation omitted). Laws
setting reasonable minimum marriage ages
are also recognized as legitimate and
desirable under international human rights
law.12
It is certainly true that marriage
laws in this country set the minimum age
for marriage considerably below 23 or 25.
Almost all states set 18 as the minimum
age to marry without parental consent.13
Where parental consent is provided, as it
apparently was in the case now before us,
most states permit marriage at the age of
11See Legal Information Institute,
Cornell Law School, Marriage Laws of the
Fifty States, District of Columbia and
P u e r t o R i c o , a t
http://www.law.cornell.edu/topics/Table
_Marriage.htm (citing age requirements
and pertinent statutes) (hereinafter
Marriage Laws of the Fifty States).
12See Convention on Consent to
Marriage, Minimum Age for Marriage and
Registration of M arriages, Dec. 9, 1964,
art. 2, 521 U.N.T.S. 231, 234, at
http://untreaty.un.org/English/access.asp
(“States parties to the present Convention
shall take legislative action to specify a
minimum age for marriage.”). We note,
however, that the apparent purpose of the
Convention’s minimum age requirement
(as stated in the preamble) is not
population control, but rather the
elimination of child marriages and the
“betrothal of young girls before the age of
puberty.” Id. pmbl., 521 U.N.T.S. at 232.
13See Marriage Laws of the Fifty States,
supra note 11.

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12
16.14 It is also true that the marriage laws
of other countries generally set the
minimum marriage age at 18 years or less,
and it appears probable that no other
country sets the minimum as high as does
China.15
A law or practice, however, does
not necessarily rise to the level of
“persecution” simply because it does not
satisfy American constitutional standards
or diverges from the pattern followed by
other countries. As we have noted,
persecution is an “extreme” concept that
“does not encompass all treatment that our
society regards as unfair, unjust, or even
unlawful or unconstitutional.” Fatin v.
INS, 12 F.3d 1233, 1240 & n.10 (3d Cir.
1993).
Here, we cannot say that the BIA
was bound to conclude that minimums of
23 and 25 amounted to persecution. Chen
and Chen Gui were not permanently barred
from marrying, and marriage at the
minimum ages in question would not have
precluded them from having a long life
together or from raising children. See Li
v. Ashcroft, 356 F.3d 1153, 1164 (9th Cir.
2004) (en banc) (Kleinfeld, J., dissenting)
(“[T]he higher marriage age does not
necessarily restrain people from having the
number of children they want. . . . People
can . . . still have 2, or 3, or 10 children, if
their individual biology and preferences
lead them to do so and the government
does not forcibly abort their children or
sterilize them.”). It is perhaps worth
noting that the median ages of first
marriages for men and women in this
country now exceed the minimum age
requirements that Chen contends amount
to persecution.16 Although defining the
outer boundaries of the concept of
“persecution” is hard, we cannot say that
requiring a person to wait until reaching
the age of 23 or 25 is so far outside the
accepted realm of human decency as to
constitute persecution.
C.
We acknowledge that our reasoning
may appear to be in tension with that of
Ma v. Ashcroft, 361 F.3d 553 (9th Cir.
2004). In that case, the petitioner Ma and
his partner were married in a “traditional”
Chinese ceremony in their village.
Because Ma was underage, the marriage
could not be officially registered with the
Chinese government. Ma’s partner
conceived two months later and went into
hiding to avoid detection by the
authorities. Ultimately, however, she was
found and forced to undergo an abortion,
and the couple was fined for “early” 14Id.
15Angela Melchiorre, Right to
Education Project, At what age? 15-21 (2d
ed. 2004) (listing marriage age
requirements 156 countries). A few
countries, including Algeria, Cambodia,
India, Indonesia, Togo, and Vietnam, set
age requirements above 18 years. Id.
16See United States Census Bureau,
Statistical Abstract of the United States 60
(123d ed. 2003) (noting that 85.4% of
males and 74.0% of females under the age
of 25 in the United States have never been
married).

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13
pregnancy and marriage. Ma subsequently
fled to the United States. When he
attempted to apply for asylum under C-Y-
Z-, the BIA rejected his claim on the
ground that he was not legally married
under Chinese law. By this time, however,
Ma had actually reached the legal age to
marry in China. He therefore applied for
and obtained a certificate from the Chinese
government indicating that his marriage
was considered valid, and he submitted
this certificate to the BIA with a motion to
reconsider, which the BIA ultimately
denied. Ma petitioned for review, and the
Ninth Circuit reversed, holding that C-Y-
Z-’s interpretation of § 1101(a)(42) could
not rationally be limited to exclude
“husbands whose marriages would be
legally recognized, but for China’s
coercive family planning policies.” Ma,
361 F.3d at 561 (emphasis added).
Because Ma’s marriage had been
recognized by the Chinese government by
the time of the BIA’s decision, it was
unnecessary for the Ninth Circuit to reach
the question whether the BIA can
reasonably refuse to extend C-Y-Z- to
cases involving persons whom the Chinese
authorities refuse to recognize as married.
But assuming that the holding in Ma
reaches all persons married in traditional
ceremonies that the Chinese government
does not sanction, Chen would still not
qualify, since he does not claim that he and
Chen G ui ever formalized their
relationship in that way. Indeed, Chen has
never argued that he is actually married in
any sense, and in fact he affirmed precisely
the opposite in his asylum application. See
App. II at 265 (checking box labeled “not
married”). Because Ma’s express holding
applies only to putative husbands and not
unmarried partners, it is inapposite here.17
Nevertheless, we acknowledge that
Ma’s reasoning could be applied to
someone in Chen’s shoes. The Ma court
reasoned that it is “absurd and wholly
unacceptable” to deny asylum to a person
based solely on a consequence of a
population control policy expressly
“deemed by Congress to be oppressive and
persecutory.” Ma, 361 F.3d at 559.
According to Ma, this would “contravene[]
the purpose and policies of the [IIRIRA]
statutory amendment.” Id. at 560. In other
words, the Ma Court concluded that the
BIA’s interpretation of § 1101(a)(42)
failed step two of Chevron because it was
clearly contrary to Congress’s intent, or, as
the Ma Court put it, Congress’s “purpose
and policies.” Id. We must disagree with
this analysis because we see no basis for
concluding that Congress’s intent in
17See, e.g., Ma, 361 F.3d at 559 (“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.”)
(emphasis added); id. at 560 (“BIA’s
decision to limit asylum eligibility so as to
exclude husbands . . . contravenes the
purpose and policies of the statutory
amendment.”) (emphasis added); id. at 561
(“Application of the BIA’s rule would
result in the separation of a husband and
wife . . . .”) (emphasis added).

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14
amending § 1101(a)(42) was to afford
relief to every person who is a victim of
any rule or practice that forms a part of the
Chinese population control program.
“The starting point in discerning
congressional intent is the existing
statutory text . . . .” Lamie v. United
States Tr., 124 S. Ct. 1023, 1033 (2004).
The language of the 1996 amendment to
§ 1101(a)(42) has several indications of
intent that we think are unmistakable. The
first is that proof of “persecution” or
“well-founded fear of persecution” is
absolutely required to make a successful
claim for asylum, just as was the case prior
to the amendment. The second point is
that, with the exception of forced abortions
and sterilizations, the concept of
“persecution” is left completely undefined.
We infer from Congress’s use of this
ambiguous term an intent to delegate
interpretive authority to the agency,
including the ability to decide, within a
reasonable range, the precise contours of
its meaning. FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 159 (2000)
(“Deference under Chevron to an agency’s
construction of a statute that it administers
is premised on the theory that a statute’s
ambiguity constitutes an implicit
delegation from Congress to the agency to
fill in the statutory gaps.”).18 Third, the
imposition of a yearly cap clearly reveals
an intent to carefully limit the scope of
relief made available by the amendment.
Against this background, it is hard
to see how Ma could have concluded that
a rule limiting C-Y-Z- to married couples
was contrary to Congress’s intent. If Ma
meant to say that individuals who suffer
under a coercive population program may
be eligible for asylum even if their
suffering (or feared suffering) is not
proved or presumed to rise to the level of
persecution, we emphatically disagree.19
As we have explained, the asylum statute
plainly limits relief to cases involving
“persecution.” That scheme necessarily
excludes cases involving lesser harms,
even when those harms implicate to some
degree the humanitarian interests that
animated passage of the asylum statute.20
18There is no question that Congress has
delegated authority to the BIA generally to
“make rules carrying the force of law,” cf.
Mead, 533 U.S. at 226-27, and that its
interpretations of ambiguous statutory
terms are entitled to Chevron deference.
Aguirre-Aguirre, 526 U.S. at 425.
19We note that the opinion in Ma never
explicitly finds or assumes that the
p e t i ti o n e r ha d a ctu all y suffere d
persecution.
20For example, the statute extends relief
to those who are persecuted “on account of
race.” 8 U.S.C. § 1101(42). The primary
purpose of that provision is no doubt to
extend aid to certain individuals who
suffer the effects of gross racial inequality
in their countries of origin. Yet courts
routinely deny relief to those who suffer
racial discrimination that falls short of
“persecution,” see, e.g., Nagoulko v. INS,
333 F.3d 1012, 1016-17 (9th Cir. 2003),
even though it might be said that such

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15
Alternatively, it may be that Ma’s
position was that the BIA’s interpretation
of the term “persecution” fell outside the
acceptable range of meanings within
which Congress authorized the agency to
choose. However, there is no indication
that Congress intended to put limits on the
meaning of the term “persecution” beyond
t h o s e i m po s ed b y t he n or m al
understanding of the word. Matter of
Acosta, 19 I. & N. Dec. 211, at 223 (BIA
1985). (“Congress chose not to define the
word ‘persecution’ . . . because the
meaning of the word was understood to be
well established by administrative and
court precedents.”). Of course, with the
1996 amendment, Congress did add the
constraint that “persecution” could not be
interpreted in a way that would exclude
involuntary sterilizations or abortions. But
this merely shows that Congress knew how
to be very specific regarding what
constituted persecution when it wanted to.
Furthermore, we find it highly unlikely
that Congress could have intended to
dramatically broaden the notion of
“persecution” with respect to persons
suffering under coercive population
programs while contemporaneously
i m p o s i n g a yearly cap s trictly
circumscribing the relief available to them.
An examination of the relevant
legislative history only confirms our
understanding of Congress’s intent. We
cannot locate any evidence that the
legislators who considered the amendment
to § 1101(a)(42) thought that persons such
as Chen would qualify thereunder.21 To
the contrary, it seems that some legislators
had reservations about the ease with which
“young Chinese single-unmarried-males ”
might falsely claim eligibility for asylum
under the proposed amendment, resulting
in a flood of meritless applications. 142
Cong. Rec. S4593 (daily ed. May 2, 1996)
(statement of Sen. Simpson). Statements
from others suggest that the reference to
“persecut[ion]” in the amendment was
simply intended to include actions such as
“torture” and “sexual abuse” that would
qualify as persecution under the prevailing
definition of the term. See 142 Cong. Rec.
H2634 (daily ed. Mar. 21, 2996)
(statement of Rep. Smith).22
At a more general level, we note
that some members of Congress have in
the past actu ally considered—and
denials disserve Congress’s broader policy
of providing relief to victims of racial
injustice.
21There is at least one statement in the
Congressional Record which speaks
disparagingly of China’s “marriage bans,”
but that statement is made in reference to
permanent restrictions on marriage
motivated by a desire to “avoid new births
of inferior quality,” and not the sort of age-
based restrictions at issue in this case. See
140 Cong. Rec. S327-28 (daily ed. Jan. 28,
1994) (statement of Sen. Helms).
22In such cases, the amendment would
serve to clarify that such actions, if taken
in response to resistance to a coercive
population control program, should be
deemed inflicted “on account of political
opinion.”

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16
rejected—the possibility of providing an
explicit definition for “persecution” in
connection with another portion of the
INA. It was reasoned that
any such definition would
necessarily limit application
o f t h e p r o v is i o n t o
p a r t i c u l a r , p r e s e n t l y
f o r eseea ble s i tu a t i o n s.
Persecution, however, has
and will continue to take
many forms and it is the
intention of the committee
in recom m ending this
legislation to allow the
m a x i m u m a m o u n t o f
flexibility possible in its
a d m i n i s t r a t i o n . T h e
inclusion of a necessarily
limited and rigid definition
would be inconsistent with
such an intent.
H.R. Rep. 95-1452, at 6-7 (1978),
reprinted in 1978 U.S.C.C.A.N. 4700,
4705-06; cf. INS v. Cardoza-Fonseca, 480
U.S. 421, 449 (1987) (“In enacting the
Refugee Act of 1980 Congress sought to
give the United States sufficient flexibility
to respond to situations involving political
or religious dissidents and detainees
throughout the world.”) (internal quotation
omitted).
To be sure, we assume that the
members of Congress who voted in favor
of the 1996 amendment to § 1101(a)(42)
considered the Chinese population control
program as a whole to be objectionable
and that they found fault with many
specific features of the program.
However, the 1996 amendment to
§ 1101(a)(42) is limited in scope. Under
that amendment, the worst effects of the
Chinese program – forced abortions and
involuntary sterilization – are deemed to
cons titute “persecuti on,” b ut the
amendment does not provide similar
treatment for other adverse effects of the
program, such as, to take one example,
dismissal from employment for failure to
abide by the one-child policy.23 Even
though a person who is fired for violating
the policy is a victim of the objectionable
Chinese program, such a person cannot
prove past persecution simply by
establishing the occurrence of and the
reason for the dismissal.24 It is apparent,
23See United States Dep’t of State,
Country Report on Human Rights
Practices—2002: China (2003) (noting
China’s r e l ia n c e o n “ e ducation,
propaganda, and economic incentives, as
well as on more coercive measures such as
the threat of job loss or demotion and
social compensation fees”).
24Under the 1996 amendment the reason
for the dismissal (failure to comply with
the one-child policy) might well qualify as
“resistance to a coercive population
control program,” but the person who was
fired would still have to show that
dismissal was severe enough to amount to
persecution. While we express no opinion
on this point, we re iterate that
“persecution” is an extreme concept that
“does not encompass all treatment that our
society regards as unfair, unjust, or even
unlawful or unconstitutional.” Fatin, 12

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17
therefore, that it was not Congress’s intent
to provide relief for every victim of any
feature of the Chinese program. Rather,
Congress obviously had the more modest
purpose of providing relief for a much
more limited class. Especially in light of
the rather low yearly cap on the number of
asylum applications that may be granted
under the 1996 amendment, the BIA’s
refusal to extend C-Y-Z- may be viewed as
furthering this congressional goal.
V.
A few remaining issues must be
addressed. First, Chen suggests that the
beatings he suffered at the hands of
government officials combine with the
forced abortion and the marriage license
denial in such a way as to constitute past
persecution. They do not. Chen’s scuffle
with the local officials does not appear to
have been serious. For example, the
government points out that Chen has never
alleged that this altercation resulted in any
injuries that required medical treatment.
Respondent Br. at 24. Physical abuse
similar to this has been held to not
constitute persecution. See, e.g., Prasad v.
INS, 47 F.3d 336, 339 (9th Cir. 1995) (no
past persecution where petitioner was
arrested, hit, kicked, and detained for four
to six hours). The BIA found that Chen’s
experiences with the authorities in China
did not rise to the level of persecution, and
we cannot say that “any reasonable
adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B).
Chen further argues that, even if he
did not suffer persecution in the past, he
still has a well-founded fear that he would
suffer future persecution if he returned to
China. He points to several cases and
secondary sources generally describing
incidents of harsh treatment that Chinese
prison officials have inflicted upon
political prisoners, including refugees
returned to China. See Petitioner Br. at
20-22. This generalized evidence
presented by Chen, however, by no means
compels the conclusion that the BIA erred
in determining that he had not “established
a well-founded fear of persecution.” App.
I at 3; 8 U.S.C. § 1252(b)(4)(B).
Finally, Chen does not appear to
have challenged the rejection of his claim
for withholding of removal in the brief
accompanying his petition for review.
Accordingly, the claim has been waived.
See FDIC v. Deglau, 207 F.3d 153, 169-70
(3d Cir. 2000); Ma, 361 F.3d at 557 n.5;
Qin v. Ashcroft, 360 F.3d 302, 305 n.5 (1st
Cir. 2004).
VI.
In sum, assuming that C-Y-Z-
permissibly applied the 1996 amendment
to spouses, we hold that the BIA’s
decision not to extend C-Y-Z- to
unmarried partners is reasonable and
therefore, under step two of Chevron, is
entitled to controlling weight. We defer
to this interpretation and deny the petition
for review.
F.3d at 1240 & n.10.

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