Tuesday, July 17, 2007

Second Circuit En Banc Decision on Asylum Eligibility For Persons Who Flee Coercive Family Planning Practices

On July 16, the Second Circuit handed down an en banc decision in Shi Liang Lin v. Gonzales.  The Court, in an opinion by Judge Barrington Parker, rejected the BIA's ruling in Matter of C-Y-Z- (2006) that a husband whose wife was forcibly sterilized could establish past persecution and eligibility for asylum under Section 101(a)(42) of the INA.  The Second Circuit's decision is at odds with precedent in several other circuits, including that of the Ninth Circuit. 

The Second Circuit concluded that the BIA's reasoning was not entitled to Chevron deference because the statute was not ambiguous on the point in question and thus that the agency had not been delegated the power to interpret an ambiguous statute.

Several judges concurred in the judgment and, among other things, emphasized that the court need not have reached out to decide all it purported to decide because the case before it did not involve a spouse claiming persecution based on the sterilization of a spouse -- the couple at issue in the case was unmarried.

Here is the opinion.  Download china.pdf  Thanks to Lenni Benson for forwarding it.

KJ

https://lawprofessors.typepad.com/immigration/2007/07/second-circuit-.html

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