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No. 07-639

 

In the Supreme Court of the United States

ZEN HUA DONG, PETITIONER

v.

DEPARTMENT OF JUSTICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General

DONALD E. KEENER
SONG PARK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in holding that the fiancé of a person who was forced to undergo an abortion pursuant to a coercive population control policy is not automatically eligible for "refugee" status under 8 U.S.C. 1101(a)(42).

In the Supreme Court of the United States

No. 07-639

ZEN HUA DONG, PETITIONER

v.

DEPARTMENT OF JUSTICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-95a) is reported at 494 F.3d 296. The decisions of the Board of Immigration Appeals (Pet. App. 96a-102a) and the immigration judge (Pet. App. 118a-125a) are unre ported.

JURISDICTION

The judgment of the court of appeals was entered on July 16, 2007. On October 1, 2007, Justice Ginsburg ex tended the time within which to file a petition for a writ of certiorari to and including November 14, 2007, and the petition was filed on November 13, 2007. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., provides that the Attorney General may grant asylum to an alien who qualifies as a "refu gee" under 8 U.S.C. 1101(a)(42). A "refugee" is a person who is unable or unwilling to return to his or her native country 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)(A); see INS v. Elias- Zacarias, 502 U.S. 478, 481 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987).

In 1989, the Board of Immigration Appeals (BIA) rejected an asylum applicant's claim that implementa tion of China's "one couple, one child" policy, even if it results in the applicant's involuntary sterilization, is persecution or creates a well-founded fear of persecu tion on account of race, religion, nationality, member ship in a particular social group, or political opinion. In re Chang, 20 I. & N. Dec. 38, 44 (B.I.A. 1989).

In 1996, Congress amended the INA's definition of "refugee" to include the following:

[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 perse cution on account of political opinion.

8 U.S.C. 1101(a)(42); see Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, § 601(a), 110 Stat. 3009-689; see also H.R. Rep. No. 469, 104th Cong., 2d Sess. 173 (1996) (stating that IIRIRA § 601(a), 110 Stat. 3009-689, was enacted in response to the Chang decision).

The BIA has held that the spouse of a person who has been forced to undergo an abortion or sterilization may qualify for asylum under the revised definition of "refugee" in 8 U.S.C. 1101(a)(42). See In re C-Y-Z-, 21 I. & N. Dec. 915, 917-918 (B.I.A. 1997) (en banc). Nei ther the BIA nor any court of appeals has held that a boyfriend or fiancé of a person forced to undergo an abortion or sterilization may automatically qualify for asylum under that provision.

2. Petitioner, a native and citizen of the People's Re public of China, entered the United States in 1999 without valid admission documentation and was placed in removal proceedings. Pet. App. 119a. He was charged with being inadmissible under 8 U.S.C. 1182(a)(7)(A)(i)(I), as an applicant for admission who did not possess or present the proper documentation for admission. Pet. App. 7a, 118a-119a; A.R. 181. Petitioner conceded removability but sought asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted Dec. 10, 1984, 1465 U.N.T.S. 85. Pet. App. 119a.

At a hearing before an immigration judge (IJ), peti tioner provided testimony through his written asylum application. The parties stipulated that if petitioner had testified, his testimony would have been credible and consistent with his asylum application. Pet. App. 120a- 121a.

Petitioner's written asylum application stated that he and his fiancée began living together in September 1997. Pet. App. 97a. At the time, they were too young to legally marry. Ibid. Petitioner's fiancée became pregnant, and government officials forced her to have an abortion. Id. at 97a-98a. According to petitioner, family planning officials warned him that he would be fined and sterilized if it happened again. Id. at 98a. About a year later, petitioner's fiancée became pregnant again. Ibid. Fearing that family planning officials would force him to undergo sterilization, petitioner left China for the United States. Ibid. Officials located his fiancée and forced her to undergo another abortion. Ibid. She then left China and now lives in Taiwan. Ibid.

Because the parties' stipulation was limited to peti tioner's asylum application, and did not cover his CAT claim, petitioner testified regarding that claim. A.R. 51- 52. He stated that, if returned to China, he would be jailed, fined, and beaten because he left the country without permission, and that birth control officials would arrest him. Pet. App. 121a.

The IJ found petitioner removable as charged and denied his applications for asylum, withholding of removal, and protection under the CAT. Pet. App. 118a-125a. The IJ held that petitioner failed to establish past persecution based on his fiancée's forced abortions. Id. at 122a-123a. The IJ noted that the BIA held in C-Y-Z- that the spouse of a person who was forced to undergo an abortion or sterilization pursuant to a coer cive population control policy is automatically deemed eligible for asylum under 8 U.S.C. 1101(a)(42). Pet. App. 122a. But she noted that the BIA "has not further ex tended the protections of this amended definition of ref ugee to fiancées or girlfriends or boyfriends of people who have been forced to undergo an involuntary abor tion or sterilization," and she therefore rejected peti tioner's claim. Ibid.

In addition, the IJ held that petitioner's alleged fear of future persecution was "entirely hypothetical" be cause petitioner "has no legal spouse on which [to] premise such a claim" and because petitioner's fiancée "is currently living in Taiwan and, therefore, in the fu ture would not be subject to the family planning laws of the People's Republic of China." Pet. App. 123a.

Finally, the IJ held that petitioner failed to demon strate that it is more likely than not that he would be tortured if he returned to China. Pet. App. 123a. The IJ noted that illegal departure from China was punishable by administrative detention or fines, not torture, and that petitioner would not face a likelihood of torture un der the family planning laws, because his fiancée was now living in Taiwan and "whatever measures the au thorities felt were appropriate under the family plan ning laws have already been taken against his girl friend." Id. at 124a.1

The BIA summarily affirmed. Pet. App. 117a.

3. Petitioner sought review in the court of appeals. Pet. App. 103a-116a. His case was consolidated with two other cases in which boyfriends or fiancés of persons subjected to coercive population control practices chal lenged the BIA's decisions that they were not automati cally eligible for asylum based on the persecution of their girlfriends or fiancées. Id. at 106a-108a.

The court of appeals remanded the cases to the BIA, declining to review the decisions until the BIA "explain ed how or why, in the first instance, it construed IIRIRA § 601(a) to permit spouses of those directly vic timized by coercive family planning policies to become eligible for asylum themselves." Pet. App. 113a (empha sis added). The court of appeals also asked the BIA to address whether, assuming spouses are automatically eligible for asylum, boyfriends or fiancés are also auto matically eligible for asylum. Id. at 115a-116a.

4. The en banc BIA reaffirmed that spouses of those forced to undergo forced abortions or sterilization are automatically eligible for asylum under 8 U.S.C. 1101(a)(42). Pet. App. 126a-160a (S-L-L-).2 The BIA stated that "[t]here is no clear or obvious answer to the scope of the protections afforded by the [IIRIRA] amendment to partners of persons forced to submit to an abortion or sterilization." Id. at 131a. However, em phasizing what it viewed as the congressional purpose underlying the amendment-"to afford refugee status to persons whose fundamental human rights were vio lated by a government's application of its coercive family planning policy"-the BIA determined that the statute should be interpreted to provide spouses with automatic asylum eligibility. Id. at 133a-134a. The BIA noted that a married couple has "shared responsibility" for family planning under China's laws, and it stated that "[a] forced abortion * * * naturally and predictably has a profound impact on both parties to the marriage." Id. at 135a-136a.

The BIA then concluded that boyfriends or fiancés are not per se eligible for refugee status under Section 1101(a)(42). Pet. App. 138a-142a. It explained that the "spousal eligibility rule" it adopted in C-Y-Z- "relies on marriage as the linchpin" and that the logic of the spousal eligibility rule does not extend to boyfriends or fiancés:

[T]he sanctity of marriage and the long term commit ment reflected by marriage place the husband in a distinctly different position from that of an unmar ried father. From the point of view of the wife, the local community, and the government, a husband shares significantly more responsibility in determin ing, with his wife, whether to bear a child in the face of societal pressure and government incentives than does a boyfriend or fiancé for the resolution of a pregnancy of a girlfriend or fiancée.

Id. at 138a.

The BIA noted, however, that unmarried partners may establish asylum eligibility by demonstrating that they have been or will be persecuted for their own resis tance to a coercive population control program. Pet. App. 140a-142a; see 8 U.S.C. 1101(a)(42) ("[A] person * * * who has been persecuted * * * for other resis tance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion.").

The BIA affirmed the decision in petitioner's case in a separate opinion. Pet. App. 96a-102a. Relying on its decision in S-L-L-, the BIA held that "an unmarried partner claiming persecution based on a partner's forced abortion or sterilization must demonstrate that he or she qualified as a refugee under the terms of the 'other resis tance' clause in [8 U.S.C. 1101(a)(42)]." Pet. App. at 97a. The BIA concluded that petitioner did not demon strate past persecution based on "other resistance," be cause the mere act of impregnating one's fiancée does not constitute "resistance," and because petitioner did not express resistance when he was warned by family planning officials after his fiancée's first abortion. Id. at 100a. In addition, the BIA concluded that petitioner failed to demonstrate a well-founded fear that he would be sterilized upon his return to China, since his fiancée was now residing in Taiwan and if petitioner and his fiancée returned to China, they could legally marry and have children. Id. at 101a. The BIA also concluded that petitioner failed to demonstrate a well-founded fear of persecution on account of his departure from China without permission, because petitioner failed to demon strate that any punishment he may face for an illegal departure would be of sufficient severity to amount to persecution or that it would be on account of a protected ground. Ibid.

5. The en banc court of appeals affirmed. Pet. App. 1a-95a. It agreed with the BIA that "none of the peti tioners can qualify for automatic refugee status as a re sult of the treatment of their girlfriends or fiancées," id. at 34a, and it noted that every circuit that had consid ered the issue had come to the same conclusion, id. at 4a n.4. The court explained that, in its view, the statutory text clearly and unambiguously grants automatic refu gee status only to the person who was subjected to the involuntary sterilization or abortion, and not to his or her partner. Id. at 16a, 24a; see 8 U.S.C. 1101(a)(42) (stating that "a person who has been forced to abort a pregnancy or to undergo involuntary sterilization * * * shall be deemed to have been persecuted on account of political opinion" (emphasis added)). The court noted that the statute repeatedly refers to "a person" who has been victimized, and "[u]nder the language used by Con gress, having someone else, such as one's spouse, un dergo a forced procedure does not suffice to qualify an individual for refugee status." Pet. App. 16a. The court thus "affirm[ed] the result of the BIA's decision in S-L- L- denying per se refugee status to boyfriends or fiancés of individuals who have been persecuted directly under coercive family control policies." Id. at 33a. It noted, however, that a boyfriend or fiancé could be deemed automatically eligible for asylum if he demonstrated his own "resistance to a coercive population control pro gram." Id. at 24a (quoting 8 U.S.C. 1101(a)(42)).

Although none of the petitioners were married to their partners, the court of appeals went further and rejected the BIA's conclusions in C-Y-Z- and S-L-L- that spouses of those subject to forced abortions or steriliza tion are automatically eligible for asylum under 8 U.S.C. 1101(a)(42). Pet. App. 12a-34a. That conclusion was also premised on the court's view that the "the statutory scheme unambiguously dictates that applicants can be come candidates for asylum relief only based on perse cution that they themselves have suffered or must suf fer." Id. at 21a.

Assessing the merits of petitioner's claim, the court held that he was not automatically eligible for asylum based on his fiancée's forced abortions, Pet. App. 33a- 35a, and that he failed to demonstrate "that he acted in a manner that could constitute 'resistance' or opposition to a coercive family control program," id. at 35a. The court also concluded that petitioner failed to demon strate a well-founded fear of future persecution on ac count of a threat that the Chinese government would sterilize him if his fiancée became pregnant again, rea soning that petitioner's fear of sterilization was "conjec tural" because his fiancée had moved to Taiwan and be cause, if she and petitioner returned to China, they could now legally marry. Ibid.3

In a number of concurring and dissenting opinions, all of the other judges who reached the question agreed with the en banc majority that a boyfriend or fiancé of a person forced to undergo an abortion is not automati cally eligible for asylum under 8 U.S.C. 1101(a)(42). See Pet. App. 37a-38a (Katzmann, J., concurring in the judg ment) ("The question the parties dispute * * * is whether the BIA's interpretation of the statute as ap plied to boyfriends and fiancés is reasonable. Every judge on this Court who reaches this issue agrees that it is."); see also id. at 61a-62a, 74a-75a (Sotomayor, J., concurring in the judgment). Several of the judges took issue with the majority's decision "to go far beyond" the question presented to address the "unbriefed, unargued, and unnecessary" question whether spouses of persons subject to forced abortions are automatically eligible for asylum. Id. at 61a (Sotomayor, J., concurring in the judgment); see id. at 37a-38a (Katzmann, J., concurring in the judgment).

ARGUMENT

The court of appeals correctly determined that a boy friend or fiancé is not automatically deemed eligible for asylum if his partner is forced to undergo an abortion. There is no disagreement in the courts of appeals on that issue. All of the circuit courts that have considered the issue, as well as the BIA, have concluded that boy friends and fiancés of persons subjected to coercive pop ulation control policies are not automatically eligible for asylum. Although there is disagreement in the courts regarding whether the spouse of a person forced to un dergo an abortion is automatically eligible for asylum, this case does not raise that issue, because petitioner and his fiancée are not married.

In any event, this Court should not consider the question presented, or the related question of whether a person may be automatically eligible for asylum based on a spouse's forced abortion, at this time, because the Attorney General has recently certified a BIA decision to himself to revisit the BIA's "spousal eligibility rule." It would be premature for this Court to review these issues before giving the courts of appeals an opportunity to consider the decision to be rendered by the Attorney General on certification.

1. The court of appeals correctly held that a boy friend or fiancé of a person forced to undergo an abor tion is not automatically eligible for asylum under the INA. The relevant statutory provision provides that "a person who has been forced to abort a pregnancy or to undergo involuntary sterilization * * * shall be deemed to have been persecuted on account of political opinion." 8 U.S.C. 1101(a)(42). The plain text of the statute does not compel the conclusion that a boyfriend or fiancé of a person forced to abort a pregnancy is deemed to have been persecuted. The BIA and the court of appeals agree on this point. The BIA noted in S-L-L- that Section 1101(a)(42) "does not explicitly refer to spouses," boyfriends, or fiancés. Pet. App. 132a; see id. at 138a-139a. The court of appeals came to the same conclusion, finding that the text of the statute does not extend automatic asylum eligibility to boyfriends or fiancés. Id. at 13a-14a, 33a.

Moreover, the BIA and the court of appeals agree that the INA cannot reasonably be interpreted to extend automatic asylum eligibility to a boyfriend or fiancé of a person subject to a forced abortion, although they come to that conclusion in different ways. In S-L-L-, the BIA found the statute ambiguous on the question of spousal eligibility, but interpreted the statute to include spouses based on the purposes underlying the statute: "Al though there is no specific reference in the statutory definition of a refugee to a husband's claim based on harm inflicted upon his wife, the general principles re garding nexus and level of harm apply in determining such a claim," because Chinese law "explicitly imposes joint responsibility on married couples for decisions re lated to family planning." Pet. App. 132a-134a. But the BIA limited its holding to spouses, stating that C-Y-Z- "relies on marriage as the linchpin," because "the sanc tity of marriage and the long term commitment reflected by marriage place the husband in a distinctly different position from that of an unmarried father." Id. at 138a. The court of appeals followed a different path but came to the same result, holding that the statute unambigu ously provides automatic asylum eligibility only for the person who was forced to undergo an involuntary abor tion or sterilization. Id. at 12a-35a.4

Regardless of how one arrives there, the conclusion of the BIA and court of appeals is correct. The statute does not cover boyfriends or fiancés by its terms, and the significant differences between married and unmar ried couples preclude extension of the statute to boy friends and fiancés. The BIA has reasonably explained that, assuming that the INA may be read to permit spouses to be automatically eligible for asylum, it cannot be read to make boyfriends or fiancés automatically eli gible for asylum, for two reasons. First, reliance on marital status is appropriate because "benefits and pre sumptions based on marriage are found in so many other areas of the law and in other provisions of the [INA]." Pet. App. 139a; see Chen v. Ashcroft, 381 F.3d 221, 227 n.6 (3d Cir. 2004). Second, a legally married couple oc cupies a fundamentally different position in society than a couple that is not married: "An underage couple living in an unregistered de facto marital relationship [that] is not recognized as a married couple by the Govern ment * * * do[es] not have the legal rights and obliga tions of a married couple." Pet. App. 143a n.13; see id. at 138a-139a. Thus, even assuming there is some ambi guity in the definition of "refugee," as petitioner claims (Pet. 19-22), the BIA has reasonably concluded that the statute should not be interpreted to extend automatic asylum eligibility to boyfriends and fiancés.5 Further review of petitioner's claim is therefore unwarranted.

2. There is no disagreement in the circuits about whether a boyfriend or fiancé of a person forced to undergo an abortion is automatically eligible for asylum under 8 U.S.C. 1101(a)(42). All of the courts of appeals that have considered the question have held that a boy friend or fiancé is not per se eligible. See Pet. App. 33a; Lin Chen v. Gonzales, 457 F.3d 670, 674 (7th Cir. 2006) ("Like our sister circuits, we decline to extend the defi nition of 'refugee' to reach boyfriends."); Wang v. United States Att'y Gen., 152 Fed. Appx. 761, 769 (11th Cir. 2005) (unpublished) (holding that the INA's "forced sterilization or abortion provision [does not] extend to a boyfriend for purposes of meeting the statutory defini tion of a 'refugee'"); Chen, 381 F.3d at 228-229 (defer ring to the BIA's decision that its "spousal eligibility rule" does not extend to boyfriends or fiancés).6 Peti tioner has thus failed to demonstrate any disagreement in the lower courts on the question that is actually pre sented by the facts of this case, and the petition should thus be denied. Sup. Ct. R. 10.

Petitioner contends (Pet. 16-17) that certiorari re view is warranted on a separate question, which is whe ther a person whose spouse was forced to undergo an abortion or sterilization is automatically eligible for asy lum under the INA. There is disagreement on that question in the circuits, because the court's discussion of that issue in the decision below disagrees with the pub lished decisions of the Third, Seventh, and Ninth Cir cuits, all of which have deferred to the BIA's "spousal eligibility rule." Pet. App. 4a n.4 (citing Chen v. Attor ney General of the United States, 491 F.3d 100, 108-109 (3d Cir. 2007); Zhang, 434 F.3d at 1001; He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003)).7 This case, however, does not raise that issue. It is undisputed that peti tioner is unmarried, and thus no court of appeals would find him automatically eligible for asylum based on his fiancée's forced abortion. Id. at 13a ("[P]etitioners in this case are unmarried partners, and not spouses, of individuals who have been subjected to forced abor tions."); see pp. 13-14, supra.

Although the majority below addressed the question whether spouses are automatically eligible for asylum, that discussion was not necessary to resolve this case. See Pet. App. 61a-62a (Sotomayor, J., concurring in the judgment). This case thus would not be an appropriate vehicle for resolving the question whether a spouse is automatically eligible for asylum based on his spouse's forced abortion, even if that issue otherwise warranted review. Because there is no dispute about whether boy friends and fiancés are automatically eligible for asylum, and this case does not raise the question of spousal eligi bility, further review is not warranted.

3. In any event, review of the question presented by this case, or the separate question of spousal eligibility, would be premature because the Attorney General is now considering whether the agency's position should be modified. In the decision below, the court of appeals rejected the BIA's spousal eligibility rule, holding that the statutory provision conferring refugee status on asy lum applicants who have been subjected to involuntary sterilizations or abortions does not provide the spouses of such persons with a per se entitlement to refugee sta tus. See Pet. App. 4a. The Third Circuit then issued a sua sponte briefing order in another case, Shi v. Attor ney General of the United States, No. 06-1952 (July 27, 2007), slip op. 1, suggesting that it wished to revisit the spousal eligibility rule. In response, the Attorney Gen eral directed the BIA to refer the agency's decision in Shi to him so that he could review the spousal eligibility rule. See 8 C.F.R. 1003.1(h)(1)(i). The Attorney Gen eral instructed the parties to submit briefs addressing

all relevant statutory questions including, but not limited to, whether IIRIRA § 601(a), codified at 8 U.S.C. § 1101(a)(42), is ambiguous or silent on the availability of refugee status for spouses or part ners of individuals who have been subjected to forced abortion or sterilization, and whether the BIA inter pretation of Section 601(a) set forth in Matter of C-Y- Z-, 21 I. & N. Dec. 915 (BIA 1997) and Matter of S-L- L-, 24 I. & N. Dec. 1 (2006) is correct.

Att'y Gen. Order No. 2905-2007, at 1 (Sept. 4, 2007); see Pet. 18 n.5 (noting the Attorney General's certification order).

The Attorney General therefore has undertaken to assess the Department's position with respect to whe ther a person who has not personally suffered a forced abortion or sterilization may automatically obtain asy lum on the basis of his or her partner's persecution. The facts of Shi are different from this case, in that the ap plicant in Shi was legally married to the person argu ably subject to coercive population control measures. See In re Shi, No. A 95 476 611 (Immigr. Ct. Nov. 8, 2004), slip op. 4-6. Nonetheless, the Attorney General's resolution of Shi may impact this case, because the At torney General's certification order mentions both mar ried and unmarried partners. Moreover, to the extent there is disagreement in the circuits about the spousal eligibility rule, that disagreement may be resolved once the Attorney General issues his decision and courts then have the benefit of that definitive position. This Court therefore should decline to consider the question pre sented, or the separate question of spousal eligibility, at this time.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

 

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General

DONALD E. KEENER
SONG PARK
Attorneys

APRIL 2008

 

1 Petitioner did not appeal the IJ's denial of his CAT claim, and that claim therefore is not before this Court.

2 The BIA considered the questions posed by the court of appeals in S-L-L-, Pet. App. 126a-198a, which was one of the cases consolidated with petitioner's case by the court of appeals. The BIA then applied its legal reasoning to petitioner's case in another opinion. See id. at 96a- 102a.

3 Petitioner does not renew his claim that he has been persecuted or will be persecuted for "other resistance" to a coercive population pro gram, nor does he renew his claim that he has a well-founded fear of future persecution because he will be sterilized if returned to China. He has therefore abandoned those claims.

4 Moreover, the court of appeals agreed with the BIA that a boyfriend or fiancé of a person forced to undergo an abortion may obtain automatic asylum eligibility only by demonstrating his own "resistance to a coercive population control program." See Pet. App. 33a-35a (court of appeals), 140a-142a (BIA).

5 Petitioner appears not to take issue with this conclusion, for he states that the "reasonableness of not applying C-Y-Z- to asylum applicants such as petitioner" is "not presented by this petition." Pet. 14 n.4.

6 There are courts that have found, relying on the BIA's "spousal eligibility rule," that a person who participated in a traditional marriage ceremony with, but was not legally married to, a person later forced to undergo an abortion is automatically eligible for asylum under 8 U.S.C. 1101(a)(42). See Zhang v. Gonzales, 434 F.3d 993, 999 (7th Cir. 2006); Ma v. Ashcroft, 361 F.3d 553, 561 (9th Cir. 2004). That question is not presented in this case, because petitioner has not married his fiancée, either legally or traditionally. Pet. App. 97a-98a.

7 The Fifth and Sixth Circuits have also deferred to the BIA's inter pretation in unpublished decisions. See Li v. Ashcroft, 82 Fed. Appx. 357, 358 (5th Cir. 2003); Huang v. Ashcroft, 113 Fed. Appx. 695, 698-699 (6th Cir. 2004).