“The number of followers of Falun Gong in China is estimated to be in the tens of millions, all of them subject to persecution.”
Hon. Richard A. Posner
Membership in Falun Gong is a basis for fear of future persecution if deported to China, the Seventh Circuit held on March 9.
Zhen Li Iao arrived in the United States from China in 2000, and sought asylum, claiming past persecution and fear of future persecution if removed, based on her membership in Falun Gong, a primarily Chinese movement/religion outlawed there in 1999.
At the removal hearing, she testified through an interpreter that she had begun to practice Falun Gong in China and the Chinese government investigated her after it learned of her activity.
According to Li, village officials made repeated visits to the house in which she lived with her parents to tell her to abandon Falun Gong, but she eluded them by residing mainly in her aunt’s house. Police visited the parents’ home and delivered a summons commanding Li to come to the police station for an interview. She did not comply with the summons, and they repeatedly came back to the home, looking for her, and she fled the country.
Since arriving in the United States, Li has practiced Falun Gong in Chicago (where she lives) and has also participated in street demonstrations against the Chinese government’s persecution of the movement.
Li testified correctly as to the name of the founder of Falun Gong and does the physical exercises that are the primary manifestation of adherence to Falun Gong, but was vague about its doctrines and unfamiliar with its symbol. At the immigration hearing, she presented letters from her mother in China, and the Chinese man who had introduced her to Falun Gong there, corroborating her testimony.
The government acknowledged that China persecutes adherents to Falun Gong, and that an applicant for asylum need not have experienced past persecution (Li has not) in order to have a well-founded fear of future persecution.
Nevertheless, the immigration judge denied asylum for five reasons: that she was not persecuted in China; that her brother, who lives in the United States, and is a follower of Falun Gong, failed to submit an affidavit attesting that his sister is too; that Li failed to present persuasive evidence that she is a follower of the movement, because she was "quite vague concerning her beliefs"; that there were inconsistencies in her testimony about the visits of the police to her home; that she did not specifically use the word "hiding" when describing the police visits to her home.
The Bureau of Immigration Appeals affirmed, and Li petitioned for review. The Seventh Circuit granted the petition, and remanded the case, in a decision by Judge Richard A. Posner.
The court rejected the immigration judges reasons, concluding, "The immigration judge’s opinion cannot be regarded as reasoned; and there was no opinion by the Board of Immigration Appeals. So we have to vacate the decision and send the matter back to the immigration service. We do not decide that Li is entitled to asylum; that is a decision for the immigration authorities to make. But she is entitled to a rational analysis of the evidence by them."
Because Li’s claim was based solely on fear of future persecution, rather than past persecution, the court dismissed the first reason the immigration judge gave for denying asylum as a "nonissue." Discussing the lack of testimony from her brother, the court found, "The judge misread the record; the brother is not a follower of Falun Gong (emphasis in original)."
What the court held
Case: Iao v. Gonzales, No. 04-1700.
Issues: Did the Board of Immigration Appeals error in denying asylum to a bona fide practitioner of Falun Gong who would be removed to China if denied asylum?
Holding: Yes. The Chinese government has an undeniably ferocious antipathy to practitioners of
Addressing the vagueness of her beliefs, the court found, "The heart of Falun Gong observance is the exercises, which she testified without contradiction that she does."
And regarding the inconsistencies, the court found them trivial, and likely due to interpretation problems. "[G]oodness knows how the translator translated ‘confrontations [with the government]’ into Chinese," the court wrote.
Turning from the specifics of the case to Chinese practitioners of Falun Gong generally, the court expounded at length: "The number of followers of Falun Gong in China is estimated to be in the tens of millions, all of them subject to persecution. And among the other billion Chinese there are doubtless many who would prefer to live in the United States than in China. Falun Gong, unlike, say, Judaism or Roman Catholicism or Jehovah’s Wit-nesses, does not appear to have any formal requirements for membership; indeed, it has no membership. Anyone, we suppose, can get hold of a book of Li Hongzhi’s teachings, start doing the exercises, and truthfully declare himself or herself a bona fide adherent to Falun Gong."
The court added, "The implications for potential Chinese immigration to the United States may be significant, though in this circuit there have been only two litigated applications for asylum based on fear of persecution for being an adherent (or for being believed by the Chinese authorities to be an adhere
nt) of Falun Gong, Liu v. Ashcroft, 380 F.3d 307 (7th Cir. 2004); Yu v. Ashcroft, No. 03-3965, 2004 WL 3103070 (7th Cir. Dec. 28, 2004) (unpublished order), and in the federal courts as a whole there have been only a couple of dozen such cases since 2003. The United States has every right to control immigration. But Congress has not authorized the immigration service to do so by denying asylum applications in unreasoned decisions."
Accordingly, the court granted Li’s petition, and remanded for further proceedings by the immigration service.
Before concluding, however, the court noted "six disturbing features of the handling of this case that bulk large in the immigration cases that we are seeing."
First, the court cited, "a lack of familiarity with relevant foreign cultures," writing, "The immigration judge offered no justification for regarding a person’s lack of knowledge of Falun Gong doctrines as evidence of a false profession of faith. Different religions attach different weights to different aspects of the faith. Falun Gong, remember, is not theistic; nor is it hierarchical. So far as appears, what is central is neither doctrine nor symbol, but the exercises."
Second, the court noted, "an exaggerated notion of how much religious people know about their religion." The court elaborated, "Of course a purported Christian who didn’t know who Jesus Christ was, or a purported Jew who had never heard of Moses, would be instantly suspect; but many deeply religious people know very little about the origins, doctrines, or even observances of their faith."
Third, the court cited, "an exaggerated notion of the availability, especially in poor nations, of documentary evidence of religious membership," adding, "An acephalous, illegal religious movement is particularly unlikely to issue membership cards. The immigration judge’s zeal for documentation reached almost comical proportions when after Li had testified at length and in considerable detail about locations, including the street in front of the Chinese consulate in Chicago, in which she had participated in demonstrations against the persecution of Falun Gong, he upbraided her for having ‘failed to submit to the Court any letters or photographs or any other evidence whatsoever to corroborate these claims.’ Since the demonstrators are mainly Chinese who might one day want or be forced to return to China, they are hardly likely to be taking photos of each other demonstrating, or to be creating other documentary proof of participating in demonstrations of which the Chinese government deeply disapproves."
Fourth, the court cited, "insensitivity to the possibility of misunderstandings caused by the use of translators of difficult languages such as Chinese, and relatedly, insensitivity to the difficulty of basing a determination of credibility on the demeanor of a person from a culture remote from the American, such as the Chinese."
The court observed, "Behaviors that in our culture are considered evidence of unreliability, such as refusing to look a person in the eyes when he is talking to you, are in Asian cultures a sign of respect."
Fifth, the court cited, "reluctance to make clean determinations of credibility," explaining, "When an immigration judge says not that he believes the asylum seeker or he disbelieves her but instead that she hasn’t carried her burden of proof, the reviewing court is left in the dark as to whether the judge thinks the asylum seeker failed to carry her burden of proof because her testimony was not credible, or for some other reason."
Finally, the court cited, "affirmances by the Board of Immigration Appeals either with no opinion or with a very short, unhelpful, boilerplate opinion, even when, as in this case, the immigration judge’s opinion contains manifest errors of fact and logic."
Click here for Case Analysis.
David Ziemer can be reached by email.