REINHARDT, Circuit Judge.
Kui Rong Ma, a native and citizen of the People's Republic of China ("China"), petitions for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reconsider or reopen its decision to deny him asylum. In denying the motion to reconsider, the BIA determined that only a spouse in a marriage "legally" registered with the Chinese government can establish past persecution and qualify as a refugee on the basis of his wife's forced abortion or sterilization. The BIA's decision in this regard limited In Re Matter of C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997), which held that past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse. Id. at 918.
On appeal, Ma asserts that the BIA's determination, that an individual in a marriage that cannot legally be registered in China is not a spouse, is contrary to the relatively recent Congressional amendment granting asylum status to victims of China's oppressive population control policy.
When Ma was nineteen, he fell in love with Lei Chiu Ma ("Chiu"), who was twenty-one. The government of China prohibited them from entering into a legally recognized marriage until Ma turned twenty-two.
Ma wanted to live with his wife without fear of reprisal, so he attempted to register his marriage with local authorities. The officials denied his request for registration, stating that he had not reached the legal age for marriage.
Ma's attempt to register his marriage served to notify local birth control officials that the couple had violated the population control laws by their underage marriage; unfortunately, those officials also learned that Chiu had become pregnant. In October of 1998, five local officials came to Ma's house and demanded that he produce his wife for a physical examination and for forced abortion procedures. When Ma refused to tell the officials where Chiu was hiding, they seized Ma's 63-year-old father, threatening that he would be placed in detention until Chiu presented herself for an abortion. Ma tried to stop the officials from taking his father. His efforts failed. The officials beat Ma and took his father into custody.
Ma did not tell Chiu about his father's detention, because he did not want her to surrender herself for a forced abortion. However, the family planning officials deliberately spread the news that Ma's father
In the days after her abortion, Chiu became ill, both mentally and physically. She and Ma decided that they should not stay in China. Chiu encouraged Ma to leave for America first and then to send for her as soon as possible. At the end of March, after arrangements had been made and funds for the trip collected, Ma left China, smuggled in the hull of a boat. His plans to bring his wife to the United States and reunite his family were quickly frustrated, however.
Upon his arrival in Guam, Ma was intercepted by immigration authorities and placed in an immigration detention center, where he remained for a number of years. Shortly after he was detained, the Immigration and Naturalization Service ("INS") commenced removal proceedings. Ma applied for relief in the form of asylum, withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and withholding of removal pursuant to Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment ("Convention Against Torture"), opened for signature Feb. 4, 1985, S. Treaty Doc. No. 100-20, at 20 (1988). He claimed that he and his wife had been persecuted by the Chinese government based on their opposition to China's population control policies and sought relief under section 101(a)(42)(B). Specifically, he alleged persecution on the basis of his wife's forced abortion and the refusal to permit his underage marriage. Ma submitted supporting documentation with his application, including a receipt for payment of the 5,000 RMB fine, a certificate of proof regarding the forced abortion, and a picture of himself and his "common law wife." The Immigration Judge ("IJ") found Ma credible and granted his application for asylum. The IJ determined that Ma's "traditional" marriage to Chiu qualified him as her spouse and allowed Ma to base his asylum claim on his wife's forced abortion. She considered the BIA's prior decisions on the subject, as well as the language of section 101(a)(42)(B), and concluded that refugee status was:
Ma filed a motion to reconsider. He asserted that the decision was erroneous and submitted additional evidence to support his asylum claim. During his lengthy detention, Ma had reached the legal age to marry in China. Shortly after turning twenty-two, Ma requested a certificate from the Chinese government to provide the BIA with proof of the validity of his marriage. Ma submitted with his petition the certificate he obtained from the Chinese government dated March 2002, which confirmed that Ma and his wife Chiu had "a wedding ceremony according to the rural customs" and stated that the Chinese government had recently issued a certificate recognizing his marriage as a "de facto" marriage. Ma also introduced a report from the Chinese Communist Party establishing that the prohibitions on underage marriage were part of China's population control policy; in submitting this report, he hoped to provide additional evidence to the BIA to prove that it had made an error when it found that his inability to register his traditional marriage was not "directly attributable" to the enforcement of this policy.
The BIA construed Ma's motion as one to reconsider and reopen the prior decision and then denied it. In denying the request for reconsideration, the BIA held that Ma had not "demonstrated a legal or factual error" in its prior decision, and that "as it previously stated on appeal,[it] decline[d] to extend [Matter of C-Y-Z] protection to legally unmarried partners." Ma appealed.
On review, we consider only the BIA's order denying Ma's motion to reconsider and reopen.
As a preliminary matter, the government contends that Ma has waived his argument that the BIA erred in restricting the definition of "spouse" to individuals in "legally" registered marriages because he did not present it under a heading explicitly challenging the BIA's denial of the motion to reconsider, but rather under the portion of his brief discussing the March 13th Order. We reject this contention for two reasons.
First, because the BIA's denial of reconsideration explicitly reaffirmed the conclusion and reasoning of the underlying opinion, preferring to adopt it rather than offer a different analysis, it was permissible for Ma to refute the arguments made in that opinion in order to explain why the BIA should be reversed. See Mejia, 298 F.3d at 876-77. Second, in its brief the government provided a full response to Ma's contentions, and we do not see how it could have suffered prejudice, as its principal complaint is that Ma failed to raise these contentions under the appropriate heading in his brief or to discuss specific sections of the motion to reconsider when advancing those contentions. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992) (court may review an issue if the failure to raise it properly did not prejudice the opposing party). Accordingly, we conclude that the INS's waiver argument lacks merit.
b. Standards of Review
A petitioner's motion to reconsider must identify a legal or factual error in the BIA's prior decision. See 8 C.F.R. § 1003.2(b)(1) (2003) (stating that the motion "shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority"); see also Matter of Cerna, 20 I. & N. Dec. 399, 402 (BIA 1991) (stating that a motion to reconsider "questions the Board's decision for alleged errors in appraising the facts and the law"; when the BIA reconsiders a decision, it considers the case as though a decision had never been entered). Where, as here, the denial of the motion to reconsider turns on the BIA's construction of INA provisions, we review the BIA's construction de novo, subject to established principles of deference. Kamalthas v. INS, 251 F.3d 1279, 1281-82 (9th Cir. 2001). In such circumstances, "deference is owed to the BIA's reasonable interpretations of such provisions, so long as they do not contravene other indications of congressional intent." Id. at 1282 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Further, statutory interpretations which would produce absurd results are to be avoided. United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992).
The BIA determined that, although a husband whose marriage is registered with the state may obtain refugee status on the basis of his wife's sterilization or abortion, a husband whose marriage is not so registered, because China's coercive population control policy prohibits registration, may not. Ma contends that this
The statute grants asylum to individuals who have been subjected to a forced abortion or sterilization procedure pursuant to Chinese population control policies. INA § 101(a)(42)(B). The BIA and the courts have uniformly applied the statute's protections to husbands whose wives have undergone abortions or sterilization procedures, as well as to the wives themselves. He v. Ashcroft, 328 F.3d 593, 603-04 (9th Cir.2003) (holding that where the petitioner's wife underwent a sterilization procedure, the petitioner was automatically eligible for asylum); Qiu v. Ashcroft, 329 F.3d 140, 144-45 (2d Cir.2003) (recognizing that a petitioner may assert a claim of persecution on the basis of his wife's forced sterilization); Matter of C-Y-Z, 21 I. & N. Dec. at 918 (holding that where a petitioner's wife undergoes either an abortion or sterilization procedure, he is eligible for asylum).
The question presented here is whether husbands, whose marriages are denied recognition by virtue of the population control program that Congress has condemned, may be deprived of eligibility for asylum on the basis of that denial. In other words, we must determine whether husbands may be denied eligibility because China refuses to grant official recognition to marriages that, in its view, would lead to an excessive number of children. We hold that eligibility for asylum may not be denied on that basis. The BIA's refusal to grant asylum to an individual who cannot register his marriage with the Chinese government on account of a law promulgated as part of its coercive population control policy, a policy deemed by Congress to be oppressive and persecutory, contravenes the statute and leads to absurd and wholly unacceptable results. Accordingly, we need not defer to the BIA's decision. See Kamalthas, 251 F.3d at 1282 (the court need not defer to the BIA's interpretation of a statutory provision where that interpretation contravenes the statute); Wilson, 503 U.S. at 334, 112 S.Ct. 1351 (statutory interpretations that lead to absurd results are to be avoided).
i. Congressional Intent
The record in this case conclusively shows, and this Circuit has already held, that the prohibition against underage marriages is "an integral part" of China's coercive population control program. See Li v. Ashcroft, 356 F.3d 1153, 1160 n. 5 (9th Cir.2004)(en banc); see also Circular Notice on Obligations of Departments Directly under the Municipality in Implementing Fujian Province Planned Birth Regulations (stating that the policy against early marriages should be strictly enforced in order to prevent early births); Fuzhou City's Enforcement of the `Fujian Province Family Planning Regulations' (stating that "[i]t is strictly forbidden to get married and give birth underage"); 1999 China Country Report (stating that unmarried women are prohibited from having children);
Here, because Ma and Chiu could not legally register their marriage until Ma turned twenty-two, the couple's first pregnancy was considered an "early" illegal pregnancy, which warranted forced abortion. In other words, Chiu's pregnancy was terminated solely because Ma had not turned twenty-two, (even though Chiu herself had reached the legal age for marriage).
In a misguided attempt to provide some statutory support for the BIA's decision, the government asserts that if a husband in a non-registered marriage is provided relief, it will create an absurd result, namely that his spouse, the "persecuted female" will be unable to benefit from her husband's grant of asylum pursuant to the derivative status provision of INA § 208(b)(3).
Only by adopting the BIA's rule restricting relief to legally registered spouses would we create the harsh and arbitrary result that the government decries in its brief, namely breaking apart a family. If Chiu, Ma's wife, applied for asylum, she would be automatically eligible based on her forced abortion. Yet, under the BIA's rule, Ma's husband would not be eligible because under China's population control program their marriage was "underage" and could not be "legally registered." Application of the BIA's rule would result in the separation of a husband and wife, the break-up of a family, a result that is at odds not only with the provision at issue here, but also with significant parts of our overall immigration policy. See, e.g., Kaho v. Ilchert, 765 F.2d 877, 879 n. 1 (9th Cir.1985) (recognizing that one of the Act's basic objectives is to reunite families); Lau v. Kiley, 563 F.2d 543, 545 (2d Cir. 1977) (same); Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir.1990) (recognizing that one of Congress's reasons for enacting the visa preference provisions is family unification). We cannot construe the statute in the manner suggested by the BIA because, as the government correctly points out, we cannot adopt a construction that leads to absurd results — the break-up of the family unit. Wilson, 503 U.S. at 334, 112 S.Ct. 1351 (holding that courts should interpret statutes so as to preclude absurd results).
The government also contends that we must follow China's policy regarding the minimum age for marriage in determining whether to recognize Ma as Chiu's husband. While ordinarily we respect the marriage rules and regulations of foreign nations, including the establishment of a minimum age, cf. Adams v. Howerton, 673 F.2d 1036, 1038-39 (9th Cir.1982), here the entire purpose of Congress's amendment to the asylum statute is to give relief to victims of China's oppressive population control policy. As we have stated, because the prohibition on underage marriage is an integral part of that policy, it would contravene the fundamental purpose of the statute to deny asylum on the basis of that rule. Because the purpose of section 101(a)(42)(B) is to protect individuals, such as Ma, from persecution stemming from the program at issue here, it would contravene the statute to permit asylum decisions to be made in reliance on the legitimacy of the program, including its prohibition against underage marriages.
Accordingly, we hold that the protections of section 101(a)(42)(B) apply to husbands whose marriages would be legally recognized, but for China's coercive family planning policies, and not only to husbands whose marriages are recognized by Chinese authorities.
We GRANT THE PETITION FOR REVIEW and REMAND for further proceedings consistent with this opinion.