Lin v. INS
| Decision Date | 24 January 2001 |
| Docket Number | No. 00-1849,00-1849 |
| Citation | 238 F.3d 239 |
| Parties | (3rd Cir. 2001) LI WU LIN, PETITIONER V. IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT |
| Court | U.S. Court of Appeals — Third Circuit |
Counsel for Petitioner: Theodore N. Cox, Esq. (Argued) 401 Broadway, Suite 1802 New York, NY 10013
Counsel for Respondent: Linda S. Wendtland, Esq. Terri J. Scadron, Esq. John M. McAdams, Jr., Esq. Robbin K. Blaya, Esq. (Argued) United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044
Before: Barry, Cowen and WOOD,* Circuit Judges
Li Wu Lin, once a student in the People's Republic of China, participated prominently in four pro-democracy protests in the weeks and days before the massacre at Tiananmen Square. Fearing persecution in the wake of the government's crackdown, Lin fled his country and eventually arrived in the United States where he sought both political asylum under § 208(a) of the Immigration and Nationality Act, 8 U.S.C. S 1158(a), and withholding of deportation under S 243(h) of the Act, 8 U.S.C. S 1253(h). The immigration judge and the Board of Immigration Appeals have denied him relief under both provisions, clearing the way for his deportation. Lin now brings this petition for review.
In the spring of 1989 Lin was fifteen-years old and a student at a middle school in the Fujian Province. Sympathetic to the student movement then gaining momentum, Lin joined in marches that protested the government's corruption, undemocratic rule, and disregard for human rights.
The first demonstration that Lin joined occurred on May 18th, 1989, and involved about 1,000 students who gathered in front of a county government building. Because Lin is unusually tall and, as he puts it, "very active," he was placed at the front of the march and given a protest sign to hold and a headband to wear that demanded freedom for China. He explained that a few of his teachers helped organize the demonstration and participated in the march, but others were afraid of getting involved.
On May 25th Lin again joined the head of the assembled crowd, held a sign, and marched to the county government building. This time when they arrived at the building, the police and army blocked the entrance. Lin and the others tried to push through the barricade to occupy the building, but the officers and soldiers pushed the students back, beating them with electric batons. Lin said he shielded himself with his arms as he retreated. A few days later Lin headed another parade on May 30th, and he went to a fourth on June 2nd when he traveled with others to a large demonstration in front of the city government building in Fuzhou, a large city in the province.
Two days after this last demonstration, the protest movement in China ended with the Tiananmen Square massacre in Beijing on June 4th, 1989. According to every major American newspaper, Chinese soldiers accompanied by 25-ton tanks drove the student protesters from Tiananmen Square, fired on them with automatic weapons, and crushed others to death under the tanks. Newspapers reported that at least 700 people were killed. See, e.g., Daniel Southerland, Death in Tiananmen; Witnesses Describe the Devastating Assault, Washington Post, June 5, 1989, at A1.
Although he did not live in Beijing and had not participated in any protests there, Lin was worried about the sharp change in the government's response to the protests. After an uncle informed him that the police were seeking one of his relatives for her participation in protests, he feared that they would soon come after him too, so he traveled to an aunt's home in another town about twenty minutes away by bus.
Six days after the massacre in Beijing, on June 10th, two police officers and a brigade leader in fact came to Lin's home. Because he was not there, they spoke to his mother (Lin's father is deceased) and gave her a subpoena demanding that Lin appear immediately for interrogation at the Security Section, Public Security Bureau. In his written personal statement Lin said that App. at 126.
Although political refugees are rarely able, amid the confusion of flight, to amass physical evidence verifying the validity of their asylum claims, see Senathirajah v. INS, 157 F.3d 210, 216-17 (3d Cir. 1998), in this case Lin's mother managed to mail him the subpoena she received. A copy of the subpoena, with a translation, has been included in the record, and all of the information on it is consistent with Lin's story. The immigration judge did request that the government check the age or authenticity of the document, but the government failed to take any action.
Despite the police's delivery of the subpoena, Lin never reported for interrogation. Instead he moved from his aunt's house to a much more distant location three hours away, where he stayed for roughly two-and-a-half years while his family gathered the money to pay a smuggler to take him out of the country. During his wait, Lin said he worked briefly in a bakery for a few months, but then quit because he was afraid he would attract the government's attention.
Officials returned to Lin's home five more times to look for him. The first time they returned, on June 20th, 1989, Lin said that the officers took his mother to the Changle County Security Bureau, detained her for half a day, and threatened her when she would not reveal her son's location. Lin said they "asked her many times about me and threatened to jail her." App. at 126. The officers returned in early July of 1989, at the end of 1989, on May 1, 1990, and in January of 1991. Lin explained, "They always asked for my location, said I had participated in the student movement, and continued to say I would be in serious trouble if caught." App. at 127.
Lin learned that one of his classmates, Lin Bin, whom he knew well, was arrested and sentenced to one year of detention and forced labor. In March of 1990 three other classmates were arrested, beaten, and sentenced to between one and one-and-a-half years of detention and forced labor. Lin testified that these classmates "all had participated in the same events that I did, and all were sentenced for their student movement activities." App. at 127.
Once the smugglers supplied him with a fake passport from Singapore, Lin left China on January 25th, 1992, and traveled by airplane first to Sen Jen (phonetic spelling) and then Hong Kong where he stayed for about a week. After a brief stopover in Singapore, he moved again to somewhere in former Czechoslovakia, where he lived with another person from China for about eight months. From there he took a train to a country whose identity he never learned and boarded a plane for the United States, arriving on October 31st, 1992.
Lin appeared before an immigration judge for two evidentiary hearings--one on May 18th, 1993, and the second on September 19th, 1993. The judge rendered a brief oral opinion at the second hearing denying Lin the relief he sought. About six-and-a-half years later--a delay the government's lawyer attributed to the agency's backlog --the Board rejected Lin's appeal. Collectively, the total time that this case has been pending now spans seven-and- a-half years. This delay is unconscionable. As other courts have remarked, many problems are created when asylum cases are so protracted. Salameda v. INS, 70 F.3d 447, 449 (7th Cir. 1995).
In its two-page opinion, the Board found Lin's testimony credible and consistent, but the Board nevertheless concluded that Lin did not have a well-founded fear of persecution in China. The Board reasoned, as did the immigration judge, that since Lin admitted in his testimony that he joined the other demonstrators in attempting to occupy a county government building during the second demonstration, the subpoena merely showed that the Chinese government was interested in enforcing a neutral law of general applicability, namely the law against trespass.
We have jurisdiction under S 106(a)(1) of the Immigration and Nationality Act, 8 U.S.C. S 1105a(a)(1), S 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Because this case does not turn on any novel legal interpretation by the Board and instead involves the Board's fact-finding and application of established legal standards, we will reverse the Board's decision to deny asylum and withholding of deportation "only if a reasonable fact-finder would have to conclude that the requisite fear of persecution existed." Chang v. INS, 119 F.3d 1055, 1060 (3d Cir. 1997) (citing INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812 (1992)).
Lin has sought two different types of relief--political asylum and withholding of deportation. To qualify for political asylum, the first type of relief, an alien must be a "refugee" within the meaning of 8 U.S.C. § 1158(a). Under that provision a refugee includes those who are unable or unwilling to return to their country of nationality "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion." Chang, 119 F.3d at 1059 (quoting 8 U.S.C. S 1101(42)(A)). In this case Lin seeks to establish that he has a well-founded fear of persecution because of his political opinions. Breaking this standard into parts, we can say that Lin must show that (1) the government pursued him because of his political...
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...109 F.3d 413, 416 (7th Cir. 1997) (expressing willingness, in rare cases, to regard mere threats as persecution); Li Wu Lin v. I.N.S., 238 F.3d 239, 244 (3d Cir. 2001) (finding that persecution can include "threats to life" (quoting Chang v. I.N.S., 119 F.3d 1055, 1059 (3d Cir. 1997))); Che......