Zhang v. Ashcroft
| Decision Date | 09 November 2004 |
| Docket Number | No. 03-70930.,03-70930. |
| Parties | Hongke ZHANG, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Steve W. Baughman, Baughman & Wang, San Francisco, CA, for the petitioner.
John M. McAdams, Jr., Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.
Before: SCHROEDER, Chief Judge, GOODWIN, and TASHIMA, Circuit Judges.
Hongke Zhang, a native and citizen of the People's Republic of China, seeks review of the decision of the Board of Immigration Appeals ("BIA") summarily affirming the immigration judge's ("IJ") denial of withholding of removal and protection under Article 3 of the United Nations Convention Against Torture ("Convention Against Torture" or "Convention"). We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed the IJ's decision without opinion, we review the IJ's decision as the final agency determination. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004).
Zhang contends that the evidence compels a finding that it is more likely than not that he will be persecuted if returned to China based on his practice of Falun Gong. We agree, and grant the petition for review.
Zhang was born in 1962 in Tianjin, China, and worked as a business manager for a government company after graduating from college in 1988. Zhang and his wife married in 1985, and they had a daughter in 1986. Zhang's wife was forced to undergo an abortion in 1988 under China's one-child policy. Zhang testified that his wife's abortion was not related to his decision to leave China in 1996.
Zhang first entered the United States on November 21, 1996, as a non-immigrant employee. Zhang returned to China in April 1997, and July 1997, for month-long visits. During one of these trips home, Zhang's friend introduced him to the meditation practice Falun Gong, claiming that it would improve his spirit and health. Zhang returned to the United States on August 2, 1997, and he has not departed since that time.
The State Department's 2000 Human Rights Report on China ("Country Report"), which is part of the administrative record, describes Falun Gong, also known as "Falun Dafa" or "Wheel of the Law," as a spiritual movement" blend[ing] aspects of Taoism, Buddhism, and the meditation techniques of qigong (a traditional martial art) with the teachings of Li Hongzhi." Zhang stated that the basic principles of Falun Gong are truthfulness, forbearance and benevolence. The Country Report notes that "Falun Gong does not consider itself a religion and has no clergy or formal places of worship," and Zhang testified that Falun Gong is not a political organization or movement.
After returning to the United States in August 1997, Zhang began to explore Falun Gong by reading books and watching videotapes. Zhang learned the five sets of exercises by practicing at home in front of the television. Zhang claims that his practice of Falun Gong improved his health and spirit by alleviating his ulcers, stimulating his appetite, enabling him to quit a 20-year smoking habit, and helping him to be less argumentative. Zhang shared his positive experiences with his family members and friends in China, and they also began to practice Falun Gong.
In April 1999, Zhang's mother informed him that the Chinese authorities arrested his older brother, along with other Falun Gong practitioners, because they participated in a protest against the Tianjin Municipal government. Zhang's brother was given a two-year sentence at a reeducation-through-labor camp, where he continued to be incarcerated at the time of Zhang's immigration hearing in 2001.
As a result of his brother's detention, Zhang's parents participated in the widely-reported April 25, 1999 Falun Gong demonstration in Beijing, where, according to the Country Report, "10,000 Falun Gong adherents ... demonstrated peacefully in front of the Zhongnanhai leadership compound." Zhang sent his parents supporting letters from overseas Falun Gong practitioners, along with media coverage of other Falun Gong protests. In his letters to his parents, Zhang opined that the government was distorting Falun Gong, and he rejected the government's claim that Falun Gong was wrong. After the Beijing demonstration, the police arrested Zhang's parents and forced them to write self-criticism letters.
According to the Country Report, the Chinese Government officially banned Falun Gong in July 1999, three months after the large Zhongnanhai demonstration. Thus began a "severe political, propaganda, and police campaign against the Falun Gong spiritual movement." As a result of the national crackdown,
tens of thousands of practitioners were rounded up and detained for several days—often in open stadiums—under poor and overcrowded conditions, with inadequate food, water, and sanitary facilities. Practitioners who refused to renounce their beliefs were expelled from schools or fired from jobs.
Country Report at 26. The government issued a warrant for the arrest of Falun Gong leader Li Hongzhi, and "seized and destroyed Falun Gong literature, and attempted to shut down Falun Gong Internet web sites." Government practitioners were forced to undergo anti-Falun Gong study sessions, and to recant their beliefs. On October 30, 1999, the government labeled Falun Gong an illegal cult under Article 300 of the Criminal Law. According to the Country Report, "cult members who `disrupt public order' or distribute publications can receive prison terms of 3 to 7 years[, and c]ult leaders and recruiters can be sentenced to 7 years or more in prison." The then President of China Jiang Zemin also "announced that the campaign against the Falun Gong was one of the `three major political struggles' of 1999." Zhang testified that the Chinese government banned Falun Gong because practitioners do not believe in the principles of Communism, and the authorities feared that adherents would oppose the government.
On November 29, 1999, the police searched Zhang's parents' home, and told them that Zhang had joined an anti-government organization in the United States. The officers informed Zhang's parents that he mailed anti-government materials to China, and they confiscated the Falun Gong materials that Zhang had sent. The authorities also warned Zhang's parents that Zhang must immediately report to the police station upon his return to China. Zhang testified that the police regularly returned to his parents' home, and placed his parents under constant surveillance. The police informed Zhang's parents that the constant home visits were "the benefit of your son practicing Falun Gong in America." Because of the surveillance, Zhang's mother has not been able to practice Falun Gong in the park, or even in her home. Zhang's daughter has also faced discrimination and ridicule at school because of Zhang's Falun Gong membership.
Zhang's parents have warned him not to return home out of fear for his safety. Zhang believes that he would be arrested, detained, sentenced to a labor camp, and physically and mentally abused or tortured, if he returned to China.
Zhang filed an affirmative application for asylum and withholding of removal on October 31, 2000. The government served Zhang with a Notice to Appear on December 26, 2000.
On March 27, 2001, following a hearing on the merits of Zhang's requests for relief, the IJ granted voluntary departure, but denied his applications for asylum, withholding of removal, and Convention Against Torture relief.
The IJ ruled that Zhang was statutorily ineligible for asylum because he did not file his application for asylum within one year after his last arrival in the United States. The IJ also found that Zhang failed to show a material change in circumstances or extraordinary circumstances to justify his late application for asylum.
The IJ denied withholding of removal finding that Zhang failed to meet his burden of showing a clear probability of persecution based on his wife's 1988 abortion, or his practice of Falun Gong. According to the IJ, the Country Report did not establish that "the government is going from pillar to post, home to home, checking out each and every home about Falun Gong followers." The IJ reasoned that because Zhang "practiced Falun Gong in his home in the United States alone, ... there is no reason why he could not do that if he returned to the People's Republic of China." Finally, the IJ found that "[t]he fact that [Zhang's] brother was reeducated does not guarantee that [Zhang] would be persecuted on the standard required for withholding of removal."
The IJ denied Zhang's request for relief under the Convention Against Torture because Zhang had not been harmed, he did not participate in any Falun Gong protests, and his family members have not been tortured.
The BIA affirmed the IJ's decision without opinion on January 31, 2003, and Zhang filed a timely petition for review.
Because we lack jurisdiction over the IJ's determination that Zhang is ineligible for asylum because he did not apply for asylum within one year after his last arrival in the United States, see Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001), our review is limited to whether Zhang is eligible for withholding of removal and relief under the Convention Against Torture.
In order to qualify for withholding of removal under 8 U.S.C. § 1231(b)(3), Zhang must show that his "life or freedom would be threatened" in China on account of his race, religion, nationality, membership in a particular social group, or political opinion. Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir.2004) (internal quotation marks omitted). This standard of proof requires Zhang to show that...
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