Second Circuit En Banc Review of Forced Sterilization Asylum Case

In Shi Liang Lin v. United States Department of Justice and Attorney General Gonzales, the U.S. Court of Appeals for the Second Circuit, 2006 U.S. App. LEXIS 28465 (Nov. 13, 2006) ordered the case to be heard in banc and invited amicus curiae briefs from interested parties. The question previously briefed by the parties was whether the Code's definition of "refugee" as amended by IIRIRA § 601 (a) (codified at 8 U.S.C. § 1101 (a) (42)) encompasses a petitioner whose asylum claim is based upon a relationship with an individual who has been forced to abort a pregnancy or undergo involuntary sterilization. The case returns to this Court following remand to the Board of Immigration Appeals for it to decide certain issues, and the Board's issuance of a precedential opinion on those issues. The court instructed the parties to address, inter alia, the following issues: (1) Whether IIRIRA § 601 (a)'s provisions are ambiguous, so that the BIA's reasonable construction of the definition of "refugee" should be accorded Chevron deference. (2) Whether the BIA reasonably construed IIRIRA § 601 (a)'s definition of "refugee" to: (a) include a petitioner whose legally married spouse was subjected to an involuntary abortion or sterilization, see In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997); and (b) not include a petitioner whose claim is derivatively based on any other relationship with a person who was subjected to such a procedure, unless the petitioner has engaged in "other resistance" to a coercive population control program, see In re S-L-L-, 24 I. & N. Dec. 1 (BIA 2006).

KJ