St. John's Law Review

A Circuit Split On Judicial Deference: Interpreting Asylum Claims By Fiancés And Boyfriends Of Victims Of China’s Coercive Family Planning Policies

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.