Iao v. Gonzales

• Decision Date: 09 March 2005
• Docket Number: No. 04-1700.,04-1700.
• Citation: 400 F.3d 530
• Parties: Zhen Li IAO<SMALL><SUP>*</SUP></SMALL> Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

400 F.3d 530

Zhen Li IAO^* Petitioner, v. Alberto R. GONZALES, Respondent.

No. 04-1700.

United States Court of Appeals, Seventh Circuit.

Argued January 26, 2005.

Decided March 9, 2005.

Scott E. Bratton (argued), Wong & Associates, Cleveland, OH, for Petitioner.

Karen Lundgren, Dept. of Homeland Security Office of the District Counsel, Chicago, IL, Anthony W. Norwood (argued), Terri J. Scadron, Dept. of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, MANION, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

An immigration judge ordered the petitioner, a citizen of China seeking asylum in the United States, to be removed (deported) from the United States, and the Board of Immigration Appeals affirmed without opinion. The basis of the immigration judge's ruling was that the petitioner is not entitled to asylum because she lacks a well-founded fear of being persecuted by the Chinese government should she return to China.

A woman in her early 20s, Li arrived in the United States in 2000. At the removal hearing she testified through an interpreter that she had begun to practice Falun Gong in China and — the Chinese government having outlawed Falun Gong in 1999 — that police and village officials had learned of her activity (probably through her employer) and decided to investigate. 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. They kept coming back to the home, looking for her, and she fled the country.

Since arriving in the United States, Li has, again according to her testimony, practiced Falun Gong in Chicago (where she lives) and has also participated in street demonstrations against the Chinese government's persecution of the movement. When she arrived in this country she knew the name of the founder of Falun Gong (Li Hongzhi, now in exile in the United States) and had done the physical exercises that are the primary manifestation of adherence to Falun Gong, but she was vague about its doctrines and unfamiliar with its symbol. She has since become more familiar with the movement's doctrines and symbol. At the hearing before the immigration judge she presented letters from her mother in China, and the Chinese man who had introduced her to Falun Gong there, corroborating her testimony.

Falun Gong is an international movement, though primarily Chinese, that is often referred to as a "religion" (or, by its critics, as a "cult"), though it is not a religion in the Western sense. Like other Asian "religions," such as Buddhism and Confucianism — on both of which Falun Gong draws — there is no deity. The emphasis is on spiritual self-perfection through prescribed physical exercises; in this respect the movement has affinities with traditional Chinese medicine.

The government acknowledges that China persecutes adherents to Falun Gong and that an applicant for asylum need not have experienced persecution (Li has not) in order to have a well-founded fear of future persecution, Diallo v. Ashcroft, 381 F.3d 687, 699 (7th Cir.2004); Sivaainkaran v. INS, 972 F.2d 161, 165 n. 2 (7th Cir.1992); Knezevic v. Ashcroft, 367 F.3d 1206, 1212 (9th Cir.2004), which suffices for a claim of asylum. Capric v. Ashcroft, 355 F.3d 1075, 1084-85 (7th Cir.2004); Yadegar-Sargis v. INS, 297 F.3d 596, 601-02 (7th Cir.2002); Krastev v. INS, 292 F.3d 1268, 1270 (10th Cir.2002). As Falun Gong is neither theistic nor, so far as appears, political, the ferocious antipathy to it by the Chinese government — that government's determination to eradicate it root and branch — is mysterious, but undeniable. See, e.g., Zhang v. Ashcroft, 388 F.3d 713, 716, 719 (9th Cir.2004) (per curiam). If Li practiced Falun Gong in China, as she testified she did, or if she attempted to practice it upon returning to China, she would face a substantial likelihood of persecution. She might be able to conceal her adherence to Falun Gong from the authorities, but the fact that a person might avoid persecution through concealment of the activity that places her at risk of being persecuted is in no wise inconsistent with her having a well-founded fear of persecution. Id. at 719 ("to require Zhang to practice his beliefs in secret is contrary to our basic principles of religious freedom and the protection of religious refugees"); Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir.2004). On the contrary, it is the existence of such a fear that motivates the concealment.

The immigration judge gave five reasons for nevertheless denying Li's application for asylum. The first is that she was not persecuted in China. But she does not claim to have been; it is a nonissue. The fifth reason is that her brother, who lives in the United States, is a follower of Falun Gong yet failed to submit an affidavit attesting that his sister is too. The judge misread the record; the brother is not a follower of Falun Gong.

Reasons 2 through 4 overlap. Reason 2 is that Li failed to present persuasive evidence that she is a follower of the movement, because in her testimony she was "quite vague concerning her beliefs." For example, she didn't know that Falun Gong has a symbol (the "Falun Wheel" composed of reverse swastikas, a Buddhist symbol). But the heart of Falun Gong observance is the exercises, which she testified without contradiction that she does.

Reason 3 was that there were inconsistencies in her testimony about the visits of the police to her home. This was not, as the immigration judge thought, an independent reason for denying the application for asylum; rather, it was a reason not to credit her testimony about being a member of Falun Gong. The inconsistencies were trivial, however, and may well have been due to the fact that Li was testifying through an interpreter who appears not to have had a good command of English. When Li testified about the delivery of the summons to her home by the police, the immigration judge asked her whether she had had any prior "confrontations" with the government and she said no, but later explained that although the police didn't start coming to her home until they served the summons, village officials had visited earlier. Were these "confrontations"? She was never at home when they visited. And goodness knows how the interpreter translated "confrontations" into Chinese.

Reason 4 was that when interviewed by an asylum officer at the time she first applied for asylum, Li testified that after the village officials got wind of her involvement with Falun Gong she "went into hiding at different locations and never went back home." The immigration judge said that she "did not specifically testify in this manner (e.g. that she went into hiding) nor does the rest of the record support this statement." That is not correct. Although Li (more precisely, the interpreter) did not use the word "hiding," she said she wasn't at home when the police visited and that sometimes she was "at my aunt that I mentioned at her house." Apparently the village officials and police visited her home repeatedly, and since she was never there when they showed up it is a logical inference, supported also by her mother's letter, that she was indeed trying to evade the authorities.

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.

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 Witnesses, 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 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 adherent) of Falun Gong, Liu v. Ashcroft, 380 F.3d 307 (7th Cir.2004); Yu v. Ashcroft,...