Li v. Holder

Decision Date23 March 2009
Docket NumberNo. 05-70053.,No. 05-76786.,No. 05-72298.,05-70053.,05-72298.,05-76786.
Citation559 F.3d 1096
PartiesXun LI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. Xiangzhe Cui, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent. He Yun Fang, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Joseph S. Porta, Law Offices of Cohen & Kim, Los Angeles, CA, for petitioner Xun Li.

Robert C. Balfe, United States Attorney, Western District of Arkansas; Deborah J. Groom, Assistant United States Attorney, Fort Smith, AR, for Attorney General Holder.

Miguel A. Olano, Santa Clarita, CA; Patricia Vargas, Vargas & Associates, Alhambra, CA, for petitioner Xiangzhe Cui.

Nairi M. Simonian, Department of Justice; Peter D. Keisler, Assistant Attorney General; Norah Ascoli Schwarz, Office of Immigration Litigation; and Karen D. Utiger, Department of Justice, Washington, D.C., for Attorney General Holder.

Jarrett A. Green, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA, for petitioner He Yun Fang.

Matthew C. Mulford, Deputy Attorney General, San Diego, CA; Peter D. Keisler, Assistant Attorney General; and Terri J. Scadron and Anthony W. Norwood, Office of Immigration Litigation, Washington, D.C., for Attorney General Holder.

On Petitions for Review of Orders of the Board of Immigration Appeals. Agency Nos. A96-349-858, A96-349-242, A78-312-198.



WARDLAW, Circuit Judge:

The consolidated petitions of Xun Li, Xiangzhe Cui, and He Yun Fang present the same question of law.1 Police in the People's Republic of China are alleged to have arrested and tortured Chinese petitioners of North Korean descent for having provided humanitarian assistance to North Koreans seeking refuge in China. The Board of Immigration Appeals ("BIA") denied each of the three petitioners' asylum applications, characterizing the Chinese authorities' treatment of the petitioners as prosecution for a criminal act— that of harboring foreign citizens—rather than persecution on account of political opinion. The BIA, however, did not rely upon any Chinese law that actually criminalizes the provision of food and clothing to undocumented North Koreans or other foreigners so as to give rise to a "legitimate prosecutorial purpose." See Ratnam v. INS, 154 F.3d 990, 995-96 (9th Cir. 1998). Nor have we discovered a Chinese law that prohibits providing assistance to foreign refugees. Rather, the BIA seems to have imported into China what it perceived would be criminal activity in the United States. The policy of the United States, however, through the North Korean Human Rights Act of 2004, 22 U.S.C. §§ 7801-7845, has been to encourage the very type of humanitarian assistance provided here. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we hold that when a petitioner violates no Chinese law, but instead comes to the aid of refugees in defiance of China's unofficial policy of discouraging such aid, a BIA finding that the petitioner is a mere criminal subject to legitimate prosecution is not supported by substantial evidence.


China's mountainous border provinces contain one of the world's most acute humanitarian crises.2 Famine in North Korea, compounded by political repression, has propelled into China a stream of desperate North Korean refugees with few options for survival. According to the U.S. Department of State, as many as 50,000 North Koreans (75 percent of whom are female) have journeyed to China in search of sustenance. See Rhoda Margesson et al., Congressional Research Service Report for Congress, North Korean Refugees in China and Human Rights Issues, CRS-4 (Sept. 26, 2007), available at http:// [hereinafter CRS Report]. The North Koreans fleeing their homeland do so at severe risk: Article 47 of the North Korean Penal Code designates "defection" as a capital crime. Id. at CRS-9. Life in China also entails significant peril, however, as China has developed an unofficial policy of discouraging aid to North Korean refugees. Id. at CRS-10 to -12, CRS-25. China similarly has refused to allow U.N. agencies, including the U.N. High Commissioner for Refugees, to provide assistance. Id. at CRS-10 to -12. Under a bilateral 1986 repatriation agreement with North Korea, China occasionally deports North Korean refugees to an uncertain fate, but most refugees appear to be quietly ignored. Id. at CRS-11 to -12. Viewing the North Koreans as nothing more than economic migrants, China does not allow them to apply for asylum, id. at CRS-11, and it will not allow its own citizens to assist the refugees. Confronting this stalemate, individual Chinese citizens, such as the petitioners here, have defied China's policy and provided some relief in the form of food, clothing, and shelter to ameliorate the plight of these North Korean refugees.


Xun Li ("Li") is a thirty-eight-year-old Chinese native and citizen of North Korean descent. Before he left China, Li lived in Yanji City, which is located in Jilin Province, a mountainous region in northeastern China that borders North Korea, and worked as a tour guide.3 Around 2001, during a difficult time in Li's life, Li met Dong Hoa Cui ("Hoa"), a North Korean citizen and Christian pastor who preached to Li about Christianity. In time, Li decided to convert to Christianity. He began practicing in a nondenominational church. The church held services every Sunday at the home of one of the members. The services rotated to a different home each week, and there were usually at least ten members at each meeting. Yun Ho Jen ("Jen") led the meetings.

In October 2002, Hoa asked Li to provide shelter and assistance to Christian North Koreans who were fleeing persecution, and Li agreed. In late November, Li began providing shelter to two North Korean refugees by allowing them to stay in his home. On the evening of December 8, 2002, Li's church held a small service at his home with other members and the North Koreans in attendance. Around 9:00 p.m., the police came to the door, arrested and handcuffed Li and the others in attendance, including the North Koreans, and took them all to the police station. At the station, the police took the group to an interrogation room. It was approximately 11:00 p.m. when the interrogation began. The police asked, "Who is your leader?" When no one responded, the police began slapping each of them on their faces. Finally, Jen admitted he was the leader, at which point he was taken away from the group. Li later learned that Jen was sent to a labor camp.

Li was the second one to be separated from the group and interrogated individually. The police asked, "What was the reason to for you to join the cults? And why did you giving asylums to the North Korean?"4 The police also asked, "You know that you [giving] asylum to those North Koreans would be a violation of the law?" Li responded:

I believe in the religion. It's my personal to freedom. And then in regard to accommodating the North Koreans, they been sufferings and it was very brutal. And it's human to rights to give them the protection. And then would it be something in violation the law that to accommodate those suffered people?

Li said that he gave this statement to the police "[b]ecause that's how [he] feel[s] to and without any guilt." Thus, Li stated his belief that he should aid the North Koreans to protect their human rights, and that it was consistent with his religious beliefs to protect them.

The interrogation continued with the police telling Li that they wanted a list of all the church members and how they had helped the North Koreans. When Li refused to disclose the names and to explain how the church members had helped, one interrogating officer began to hit and punch the handcuffed Li in the face "vigorously." The officer then kicked Li backward to the floor and continued punching him as blood began to flow from Li's nose and lips. Once Li hit the floor, another officer joined in, and the officers then took turns kicking Li in the head and stomach. Li, remaining conscious, tried to shield himself from the blows. When Li again refused to disclose the names of the church members and to explain their help to the North Koreans, the officers told him that he was "going to suffer for the consequences." The officers then stripped him down to his underwear and tied him to an electric pole. In the frigid December night, the officers left Li, who was bleeding and still handcuffed, exposed to the below-freezing temperature for nearly an hour. They eventually retrieved Li and resumed questioning. Li was paralyzed and frozen, and was unable to respond. The officers then told Li they had all the evidence they needed—"the Bible and also the North Koreans"—to sentence him to a labor reform camp. Li spent fifteen days at the labor camp, where the other inmates continuously beat him up. Li's family finally secured his release by furnishing a 5000 RMB5 bribe to the police department. In exchange, Li was required to sign a letter of guarantee promising to give up his faith, report on other church members, and obey Chinese laws. The guarantee also stated that Li had to report to the local police station every week, which he did for a short time.6 Fearing Chinese authorities, however, Li decided to seek asylum in the United States. He paid 120,000 RMB7 to travel from China to South Korea to Vancouver to Seattle to Los Angeles, where he requested asylum in May 2003.

The Immigration Judge ("IJ") denied Li's petition for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") on the basis of an adverse credibility finding. The IJ alternatively found that, even if Li were credible, his testimony did not establish past...

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