KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent.
If the Supreme Court speaks, and lower courts do not hear it, does it make law? Last year, in INS v. Ventura, the Supreme Court chastised us for failing to defer properly to the BIA in an asylum case. Summarily reversing us, the Court said we "committed clear error" and "seriously disregarded the agency's legally mandated role." Before that, in INS v. Aguirre-Aguirre, the Supreme Court unanimously reversed us for failing "to accord the required level of deference" to the BIA in a case involving withholding of removal. And before that, in INS v. Elias-Zacarias, the Supreme Court reversed our asylum decision because we failed to apply correctly the substantial-evidence standard and defer to the BIA. Yet today we make the same mistakes.
There are two things wrong with the majority opinion. Procedurally, it makes the initial decision instead of remanding to the INS on whether what we determine to be persecution was on account of resistance to a coercive population-control program. This is an issue the BIA did not reach and has not yet decided. Ventura requires us to remand so that the BIA can make the initial decision on this point if we find, as the majority does, that there was persecution. Second, the majority substitutes its own judgment for the BIA's on whether the offensive treatment of Li amounts to "persecution," instead of deferring to the administrative agency's reading of the record under the substantial-evidence standard, as Elias-Zacarias requires.
I. Failure to Remand
The BIA held that the mistreatment of Li did not amount to persecution. The majority opinion holds that it does. Assuming arguendo that the majority is correct, the next issue is whether the persecution was on account of "resistance to a coercive population control program." The BIA never reached this second issue. It did not decide the "on account of" question because Li lost on whether her mistreatment amounted to persecution. Thus our court decides this issue without giving the BIA a chance to decide it first.
We cannot properly do that. We did it in Ventura because, under our reading of the record, the answer was clear. We held that "when it is clear that we would be compelled to reverse the BIA's decision if the BIA decided the matter against the applicant," remand was unnecessary. The Supreme Court reversed summarily. The Court held that "the law entrusts the agency to make the basic asylum eligibility decision" and "`judicial judgment cannot be made to do service for an administrative judgment.'" Except in "`rare circumstances,'" we must remand, because a "court of appeals `is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.'" We were mistaken in Ventura to believe that the record was conclusive, because it could be read as ambiguous, and because additional evidence might have come in on remand. We thereby committed "clear error" that "seriously disregarded the agency's legally mandated role."
When the administrative state first burgeoned, the lower courts needed some bludgeoning before they deferred, for example, to the NLRB on labor matters. We now defer readily to the NLRB and many other agencies. But for some reason, the INS and a few others just do not get the deference we are required by statute and the plainest possible language in Supreme Court decisions to give them. I do not believe the law authorizes us to pick and choose which agencies get standard administrative-law deference.
As in Ventura, the record here is capable of different interpretations, and new evidence could be introduced on remand that might affect the decision as to whether Li's persecution (accepting arguendo that it was persecution) was on account of "resistance to a coercive population control program." Under Aguirre-Aguirre, the INS, through the BIA, is in the first instance responsible for interpreting what its statute means when there is ambiguity. Although the Immigration Judge noted that "it could be said" that Li was opposing the population-control program when she resisted the medical examination, no finding on that point was made or needed, because the IJ found that what was done to her did not amount to persecution.
The majority interprets the abusive medical examination and threatening remarks as persecution for opposing a Chinese population-control program. Another permissible reading, however, is that Li was refusing to cooperate with the Chinese law governing minimum age for marriage, something different from the coercive population-control program of involuntary abortions and sterilizations. The BIA might read the statute as limiting the catch-all phrase, "other resistance to a coercive population control program," to programs in the nature of forced abortions and involuntary sterilizations. I rather suspect that it would be so read. Here is the text of the statute:
For purposes of determinations under this Act, 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.
The most natural reading of this statute is as a response to our revulsion at a government that forcibly and nonconsensually aborts fetuses and sterilizes people. That response is to treat as refugees those subjected to such measures, as well as those who are persecuted for avoiding, refusing, or resisting them. Under the principle of noscitur a sociis, the general language, "coercive population control program," ought to be construed to mean programs similar to or in the nature of forced abortions and involuntary sterilizations, the specific terms in the statute.
The majority prefers a reading that avoids the statutory focus on abortion and sterilization. It reads the catch-all language "or for other resistance to a coercive population control program" as though it stood all by itself, leaving us free to speculate as to what sort of "coercive population control program" Congress might have had in mind. When one reads these terms out of their context, they could include a vast array of policies. Does the statute mean a higher age for marriage? Does it mean coercing children to attend sex education courses in school? Does it mean a government housing policy that makes it hard to get the large apartments that larger families need? Who knows, until we say, since we do not afford the administrative agency an opportunity to say, and since we divorce the "resistance" provision from its context, enabling us to roam far afield through government policy that affects number of children.
Nor does the majority's expansion of the statutory phrase "resistance to a coercive population control program" to include the minimum age of marriage make sense of the word "coercive," since the age of marriage does not coerce anyone to do anything or to suffer someone else to do it to them against their will, as "forced" abortion and "involuntary" sterilization do. Also, the higher marriage age does not necessarily restrain people from having the number of children they want. It is thus not necessarily a population-control program. People can marry at 20 or 22, the minimum ages for women and men in Li's village, and 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.
The INA also provides for a maximum of 1,000 asylum grants per year under the provision that Li invokes. One-thousand grants could hardly have been a serious attempt to deal with the problem if Congress meant to grant asylum to anyone who resisted any government program having to do directly or indirectly with population growth, including a minimum age of marriage that seems high to us (high as a legal minimum, though American custom now has most people marrying at a later age than the Chinese minimum). The majority turns a law responding to revulsion at forced abortions and compulsory sterilizations into an altogether new law, protecting young love.
The majority tosses off these concerns with an ipse dixit that "[t]he early marriage policy is an integral part of the population control policy." The majority also claims that Li saying "I'm going to have many babies with my boyfriend," when she was confronted about the couple's relationship, turns this into something like a forced-abortion case. This reasoning is a substitution of something at or beyond the fringe of what the statute addresses for that which is at its core: forced abortions and sterilizations. In any event, Ventura requires us to leave this construction of the statute to the agency in the first instance. Then, after the agency construes it, we will be required by Aguirre-Aguirre to defer to that construction rather than go off on a jaunt of our own as though the agency had no authority to speak.
If it were established that the forced pregnancy examination was "persecution," and the BIA then had to decide whether the persecution followed resistance to a coercive population-control program, it could permissibly choose an interpretation of the statute under which Li's actions did not qualify. Also, the BIA could decide that the repulsive medical examination resulted from the crudeness of Chinese village medicine and was not, as the majority implies, sadistic punishment to deter resistance. As for the threats, the BIA could conclude that they were not motivated by retaliation for political resistance to Chinese population control, but rather were in the nature of abusive remarks responding to Li's failure to cooperate with the medical personnel.
In the end, even if (1) the medical examination and threats were deemed persecution and (2) no further evidence was introduced on remand, the BIA on remand could still decide on this record that the persecution was not "for other resistance to a coercive population control program." There are several ways to read the law and the record on the question whether any persecution was a result of "resistance to a coercive population control program." Under Ventura and Aguirre-Aguirre, we must remand to let the BIA deal with this issue.
The majority responds to Ventura with a footnote summarily claiming that the BIA already did decide that the forced pregnancy examination and the threats were retaliation for resistance to coercive population control. Not so. Believing Li about what happened (as the IJ did) is not the same thing as deciding that the reason it happened is that the government wanted to punish her for resisting a coercive population-control program. Here is what the IJ, whose opinion the BIA adopted, actually said:
The female applicant in this case is single. She has not been pregnant. She has not been forced to abort a pregnancy. She has never been forced to undergo an involuntary sterilization. The one incident where it could be said that she offered resistance to a coercive population control program is when she was forced to take a medical examination.... However, the requirement under Section 101 [8 U.S.C. 1101(a)(42)] was not only for "other resistance to a coercive population control program," but also required that the alien must have been "persecuted." In this case, neither the female Applicant or male Applicant have been subject to any arrest or any treatment that could rise to the level of past persecution.
This cannot fairly be read as a determination by the IJ (1) that the age-of-marriage law is part of a coercive population-control program, and (2) that resistance to the age-of-marriage law is resistance to a coercive population control program, and (3) that such resistance motivated the pregnancy examination. All it can fairly be read to say is that the pregnancy examination did not rise to the level of persecution. The majority pretends not to recognize the passage's subjunctive mode, "it could be said," and the "assuming arguendo" approach to legal reasoning. The agency simply did not have to, and did not, decide whether the reason for Li's persecution was resistance to a coercive population control program, because it decided that she was not persecuted at all.
The disingenuous reading of the IJ's decision accomplishes, in substance, the same error we made in Ventura. We do not have a determination from the agency that tells us whether that which the agency says is not persecution and the majority says is persecution, was on account of resistance to a "coercive population control program." One reading of the majority's treatment of what the IJ said is that the majority is sure that what happened was on account of "resistance to a coercive population control program." Another reading is that the majority does not care whether the statute is satisfied, because the pregnancy examination is so repulsive to us. The latter would be illegitimate, because it skips a statutory requirement, so I shall assume that the former is correct. But the former is what Ventura says we cannot do. The majority says that Ventura is not a problem, because the IJ "accepted the testimony that demonstrated the exam was in retaliation for, or `on account of,' Li's opposition to the population control policies." In Ventura we also thought the record "demonstrated" the conclusion we reached. The Supreme Court said that that was not enough. The issue is not whether the testimony demonstrates something to us, but rather whether it demonstrates something to the agency.
The IJ knew how to make it clear when he was making a finding and when he was assuming something arguendo: "this Court makes a finding of credibility"; "Evidence in the record would support a finding that these two Applicants knew... that they were not [of the required age]"; "there is no way to make a finding whether the rumors they heard about the arrest were well-founded or not." And concluding his asylum discussion: "I find, based on all the evidence in the record, that both Applicants have failed to establish past persecution as to warrant a grant of asylum." The question whether there was persecution decided the case and was the only factor on which the IJ made a holding. Both the context and the subjunctive mode showed unambiguously that the IJ was not making a holding that the forced pregnancy examination was on account of resistance to a coercive population-control program when he referred to "[t]he one incident where it could be said that she offered resistance to a coercive population control program." Our court, not the IJ or the BIA, has taken the first shot at this question, which is just what we may not do.
The examination Li was subjected to, and the words spoken to her during the examination, of course repel us. I share the majority's doubt that this examination was a medically sound way to determine whether Li was pregnant. But the statute does not provide for asylum on account of crude medical practices. I cannot share the majority's certainty that the examination and statements made during it amount to persecution. While the record can be read that way by reasonable individuals such as my colleagues in the majority, it can also be read to the contrary, as it was by the reasonable judges in the majority on the three-judge panel, the Immigration Judge, and the members of the BIA. Where the record can be read in more than one way, the standard of review requires us to defer to the BIA's way. We can reverse only where the record "compels" a reasonable person to decide contrary to the BIA. I cannot agree that two of the three judges on our original panel, the Immigration Judge, and the BIA judges were not reasonable.
As an initial matter, Li did not say on direct examination that she came to the United States because she had been persecuted (she managed to give her attorney what he needed on redirect, but the IJ credited her "first and initial answer"). She said instead that she came so that she and her boyfriend could get married and get jobs:
Q. Why did you come to the United States?
A. Our intention was to come here, to get married, and then we find employment here in the United States. It was unlawful to get married in China.
Q. Okay. Were there any other reasons why you came to the United States?
A. But we were get married in China. That was unlawful, and that was considered as against the policy of the country.
The crude pregnancy examination does not compel the interpretation that Li was persecuted. Though the medical technique was offensive and likely ineffectual for determining whether she was pregnant, there is nothing in the record to show that it was any different from standard Chinese village obstetric procedures. Being subjected to low medical standards to which everyone else is subjected regardless of race, religion, or political opinion is not persecution.
The majority's comparison to "rape" seems overheated. Our state and county governments routinely force young children to suffer nonconsensual probing of their vaginas and anuses in child-abuse investigations. We mandate other medical procedures as well, including degrading penile plethysmographs and insulting syphilis testing of those who wish to marry. In light of what we do and accept routinely in the United States, we cannot say that a coerced obstetrical or gynecological examination compels a finding of persecution, even if such a finding would not be unreasonable.
We have said that persecution is an "extreme concept." In Prasad v. INS, for example, soldiers in Fiji stopped an ethnic Indian cabdriver. He was jailed, questioned about his support for a particular political party, held four to six hours, and beaten. We condemned these actions, but concluded that while "a reasonable factfinder could have found this incident sufficient to establish past persecution, we do not believe that a factfinder would be compelled to do so." In Hoxha v. Ashcroft, the BIA addressed the asylum claim of an ethnic Albanian from Kosovo, who had testified to mistreatment extending back to his early childhood. On one occasion, he was beaten by "Serbian vigilantes" who heard him speaking Albanian. He suffered "extensive facial bruises and two broken ribs." While we found the events he described "disturbing and regrettable," we held that "they do not evince actions so severe as to compel a finding of past persecution." The BIA could permissibly conclude that, though different, the maltreatment of Li was no worse.
In addition to the coerced pregnancy examination, the majority takes the remarks made during it as compelling not just the conclusion that Li was persecuted, but also that she has a well-founded fear of future persecution. Here too, Li's burden is "a heavy one," and our review is supposed to be "extremely deferential." Furthermore, any fear Li has of future persecution must be objectively reasonable.
Here is what occurred in relation to the potential for future persecution, to the extent the record reveals it: Li was taken to the birth-control department of the village, and two nurses held her down while a doctor examined her vaginal area. Li testified that she was yelling during the exam — "Let me go. Let me go. Release me" — and "I was kicking my feet." A doctor came over and "said stop yelling. If you keep on doing this, we will take you back any minute we want to give you examination. Anytime if you are found being pregnant, we will have the abortion performance taking place right away." After the examination, they gave Li a document — exhibit 9 — which says she had a "[u]rinal infection" [sic], but "[a]fter examination the patient is not pregnant." She also testified that she was told, "If you are found, you know, you became pregnant, you are subject to the abortion, and then your boyfriend will be subject to the sterilization operation, and for the rest of your life, you will not have a child."
Subsequently, Li and her boyfriend twice applied for marriage licenses. The legal ages of marriage were twenty for women and twenty two for men. Li testified that in her opinion, the legal age for marriage should be fifteen. She said that when their applications were denied, "I decided this was not fair to us, and at that time we were deeply in love. So we make up our minds to declare our marriage." Both families then sent out wedding invitations.
Li did not testify that she feared sterilization if she returned. Her boyfriend was threatened with sterilization, not her. She also did not testify that she feared forced abortion, with which she was threatened, if she returned. The threat that she would never have babies seems to have been connected to her boyfriend's sterilization and an implicit assumption by the official that Li would marry the boy and never have sexual intercourse with anyone else.
On this record, the BIA could have concluded that since Li and her boyfriend never did get married, in China or in the United States, her fear of jail for marrying underage was not well-founded. It could also have concluded that China is a big country, and Li and her boyfriend could avoid these particular brutish village officials by living somewhere else. Or it could have concluded that, since Li and her boyfriend are now old enough to marry under Chinese law, they could do so without fear. As for the threats during Li's gynecological examination, the BIA could have concluded that both Li and the others were yelling whatever came into their heads, and that the threats were expostulations to get her to stop yelling and kicking during the medical examination, rather than serious statements of future intent. That conclusion would be bolstered by the conditional nature of the threats: if Li were found pregnant, she would be forced to abort and her boyfriend would be sterilized. Fortunately she was not pregnant, so neither occurred. Furthermore, as for the potential for arrest, Li's brother testified that there was an arrest warrant, but that it, too, was contingent on Li being found pregnant. The medical certificate said she was not pregnant, so that threat amounted to nothing. Now that the gynecological examination is long past, and they are both of age to marry, the BIA could have concluded that they have nothing to fear.
I do not suggest that the majority's conclusions are unreasonable or cannot be reached on this evidence. But the question before us is not whether the majority's conclusions are reasonable. Rather, it is whether they are compelled. They are not.
It is disgraceful that the government officials in Li's village subjected her to a degrading medical examination and subjected her and her boyfriend to talk of forced abortion and sterilization. The most disgraceful aspect is the inappropriate intrusion of government into such highly personal matters as love, sex, and childbirth. But China is a Communist country, and that disgrace may best be attributed, not to persecution, but to Communism. It may be that not too many people believe anymore in the old-time religion of Communism, but it is ossified in governmental structures and the relationship of government to people, and it is the only system of belief they have. The personal, in Communism, is supposed to be political.
The Chinese marriage law recites that "[l]ate marriage and late childbirth should be encouraged" and "family planning shall be practiced," as if it were any of the law's business. Mao Tse Tung wrote in Combat Liberalism that it is wrong "[t]o disobey orders and place personal opinions above everything" and to put "personal interests foremost and the interests of the revolution in the second place," as young lovers are wont to do. "The bourgeois family," which Li and her boyfriend evidently wanted to start, "will vanish as a matter of course when its complement vanishes, and both will vanish with the vanishing of capital." Marxists have favored "a new relation between instincts and reason," especially for "the most `disorderly' of all instincts — namely sexuality," a goal which in the new Communist state would "minimize the manifestations of mere sexuality by integrating them into a far larger order, including the order of work."
During the Cultural Revolution, love and marriage were condemned as fascist, and the subsequent withdrawal from that insanity has been only partial — the Party has subsequently published propaganda on "How Youth Should Treat Love," in an attempt to "`excite people to enthusiastically put their all into the program for the Four Modernizations.'" The high age of marriage may be partly related to Chinese anti-natal policy, but it is very much related to Mao's doctrine that "it is of the utmost importance to arouse the broad masses of women to join in productive activity," by which he meant industrial rather than natal production. Work first, marry later, propels more women into the labor force. This is not the same policy or practice as forced abortions and compelled sterilizations, for which our law provides asylum. The primary purpose of the somewhat high minimum age for marriage appears to be to assure that women join the labor force before marrying.
Our court is not in a position to change the ideology of the Communist Party of China, nor to afford a safe harbor to all those Chinese who chafe under it. There are only 1,000 asylum spots a year for those seeking it under the same provision to which Li appeals, which arguably extended its succor only to those most brutalized by Chinese family policy. By broadening the grant to those who are most peripheral to this class, young lovers thwarted in their desire to marry, we may well be withdrawing American protection from those at the heart of it, persons subjected to forced abortions and sterilizations. The compassion felt by the majority risks a cruel irony of denial of compassion to those who need it most. The law requires us to avoid flirting with this risk in this case by deferring to the administrative agency's determinations.