SHAN ZHU QIU v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3512

S HAN Z HU Q IU,

Petitioner,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A099-023-327

A RGUED A PRIL 8, 2010—D ECIDED JULY 12, 2010

Before R IPPLE, M ANION, and T INDER, Circuit Judges.

T INDER, Circuit Judge. In December 2004, Shan Zhu

Qiu lost his job and moved back to his parents’ home

outside Fuzhou, China. At a dinner there, he recon-

nected with a childhood friend, who noted that Qiu

looked weak and thin and offered to take him to a

qigong teacher who would help him get in shape for

free. Qiu had been sleeping poorly and thought exercise

2 No. 09-3512

might help, and the price was right, so he agreed to go to

a lesson. Qigong is a popular form of exercise in

China that involves “coordinating slow movements with

breathing to cultivate the flow of energy, or qi, in a sort

of graceful fluid dance.” Nora Isaacs, Exercisers Slow

it Down with Qigong, New York Times, April 5, 2007.

Qiu’s first lesson took place in February 2005 at his

friend’s house; Qiu arrived, exercised for about thirty

minutes and met the qigong teacher, the “master.” Three

days later, Qiu met his friend in front of his house and

they went to a different location and practiced again.

Qiu went to several more sessions, which were held

in constantly shifting locations, and finally got curious

about why the group was moving around so much. At

this point, his friend informed him that the form of

qigong the group was practicing was Falun Gong.

Falun Gong is strictly prohibited by the Chinese gov-

ernment, which considers it an “evil cult.” It was orig-

inally practiced openly in China, but the Chinese gov-

ernment criminalized it after Falun Gong adherents

staged a massive protest outside the Chinese Communist

Party headquarters during the tenth anniversary of the

1989 pro-democracy Tiananmen Square demonstrations.

The protest was a response to increasingly negative por-

trayals of Falun Gong in the state-run media. Ironically,

the strength of the protests confirmed the fears that

prompted the negative state media coverage of Falun

Gong and the government’s position on Falun Gong

changed from disfavor to an outright ban. See Andrew

Jacobs, China Still Presses Crusade Against Falun Gong, N.Y.

No. 09-3512 3

Times, April 28, 2009, and Craig S. Smith, The World:

Rooting Out Falun Gong; China Makes War on Mysticism,

N.Y. Times, April 30, 2000, for more details on the dev-

elopment of the relationship between Falun Gong and

the Chinese government.

Finding out that he was practicing Falun Gong was,

understandably, kind of a nasty shock for Qiu. He

believed that if he were caught practicing, he would be

detained for months. But he decided to continue for

three reasons. First, he was seeing health benefits from

his practice and was sleeping through the night. Second,

he was sure that if the group were careful, it could

practice in safety, undetected by the authorities. Third,

his experience with his Falun Gong practice convinced

him that he was not involved in an evil cult.

A little more than a month later, his master was ar-

rested. Qiu received a call from his friend who told

him that their practice had been reported and that the

authorities were looking for all of the group’s members.

Qiu returned to his parents’ home to get his things and

prepare to go into hiding. The police arrived as he was

packing, forcing him to jump off the balcony behind

the house to escape. He hiked on a mountain trail into

Fuzhou, called his family, sold his cell phone, and bought

a train ticket to Yiwu. From there, he checked in with

his family who reported that the police had served an

official summons on him at their house. His family,

fearing for his safety, told him not to come back.

After a month, Qiu ran out of money, took a train back

to Fuzhou, and went to a nearby relative’s house for

4 No. 09-3512

help. The relative told him that the police had been

looking for him, found him a place to hide, and began

making arrangements for Qiu to flee the country. For

a fee equivalent to $70,000, the family arranged for a

smuggler to get Qiu a false passport and get to the

United States. Qiu arrived at O’Hare Airport, was

stopped by authorities, and asked for asylum.

While his asylum case was proceeding over here, ac-

cording to Qiu, the police came to his family’s home

three times and left summonses on at least two occasions

(in May 2005 and 2006), which Qiu’s mother sent to him

here in the States. Qiu also continued to practice

Falun Gong in the States, and on at least one occasion

protested in front of the Chinese Consulate in Chicago

by practicing there. He testified that there were cameras

at the consulate recording the protest and he is certain

that the police are looking for him and that he will be

arrested when he returns to China.

To be eligible for asylum, a petitioner must qualify as

a refugee under 8 U.S.C. § 1101(a)(42)(A). A refugee is

someone who is unable or unwilling to return to his

home country 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. Id. Qiu argues that as a practitioner of

Falun Gong he has a well-founded fear of persecution

if forced to return to China. We have defined persecution

to include “detention, arrest, interrogation, prosecution,

imprisonment, illegal searches, confiscation of property,

surveillance, beatings, torture, behavior that threatens

No. 09-3512 5

the same, and non-life-threatening behavior such as

torture and economic deprivation if the resulting condi-

tions are sufficiently severe.” Capric v. Ashcroft, 355

F.3d 1075, 1084 (7th Cir. 2004) (quotations omitted).

Qiu had a hearing before an Immigration Judge,

who found that he was not eligible for asylum in the

United States (and therefore ineligible for withholding

of removal and protection under the Convention

Against Torture, see Mabasa v. Gonzales, 455 F.3d 740, 746-

47 (7th Cir. 2006)). Qiu presented the evidence, described

above, that he fled China to escape persecution on

account of his practice of Falun Gong, that he had pro-

tested by practicing Falun Gong here in America, that

the Chinese were aware of his activities, and, relying

on State Department reports, that Falun Gong peti-

tioners were persecuted in China. This evidence, he

argued, showed that he had a well-founded fear of

future persecution. The IJ disagreed and the Board of

Immigration Appeals affirmed. Qiu petitions for re-

view. As presented to us, the single issue in this case

is whether substantial evidence supports the decision

below that Qiu has not established a well-founded fear

of future persecution as a result of his Falun Gong prac-

tice. We review the decision of the Board under

the substantial evidence standard and will reverse only

if the evidence compelled the contrary result. Gjerazi v.

Gonzales, 435 F.3d 800, 807 (7th Cir. 2006).

The IJ did not challenge Qiu’s credibility, but did find

the summonses that were entered into evidence “unreli-

able.” The IJ found that Qiu did not suffer past persecu-

6 No. 09-3512

tion in China because he was never detained, punished,

or physically harmed there. The fact that the police

sought Qiu for questioning was insufficient, the IJ

found, to establish the level of persecution necessary to

qualify as a refugee. Qiu does not challenge this point.

At the same time, the IJ found Qiu’s “limited participa-

tion in Falun Gong practice in China insufficient to estab-

lish a well-founded fear of future persecution.” The IJ

found that the State Department country reports for

China offered by Qiu (specifically the 2007 Report on

Religious Freedom and the 2006 Report on Human

Rights Practices) were insufficient to establish that his

fear of future persecution was well-founded per se. In-

stead, the IJ found that the reports showed that hundreds

of thousands of people still practice Falun Gong in

their homes and that punishment for Falun Gong prac-

tice depends on the facts of each case. Other than

the presence of the police at his house, the IJ found that

Qiu presented no other evidence that he would be

harmed in China. The IJ questioned the validity of the

summonses, and noted that even if credible, those sum-

monses were not sufficient to establish a fear of future

persecution. The IJ also credited no evidence that the

Chinese were aware of his actions in front of their

Chicago consulate. Finally, the IJ noted that there is a

wide range of punishment for practitioners of Falun

Gong (ranging from loss of employment to imprison-

ment) and that Qiu could not establish where his

case falls along that spectrum. The Board adopted these

findings, noting the little weight given to the summons

and the unlikelihood that Qiu was identified by the

No. 09-3512 7

Chinese government as a protester in front of their con-

sulate. The Board, then, found that the evidence sup-

ported the IJ’s decision that Qiu had not proven that

he was eligible for asylum. See 8 U.S.C. § 1158(b)(1)(B)

(“The burden of proof is on the applicant to establish

that the applicant is a refugee . . . .”).

To reverse the Board’s decision, we must determine

that the evidence compels the conclusion that Qiu has

a well-founded fear of persecution. See INS v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992). As a practical

matter, we think it beyond doubt that Qiu is in for some

type of trouble when he returns to China. If nothing else,

the Chinese government need only search the Seventh

Circuit web site’s archived opinions to be alerted to

his activities. But evidence describing the way the

Chinese government treats repatriated, asylum-seeking

Falun Gong adherents is not in the record. (The 2007 State

Department Report on Religious Freedom in China does

describe a Falun Gong adherent who was repatriated

from Russia and has since been kidnapped; his wife

believes it was at the hands of the Chinese government).

The Board seemed to agree that Qiu was indeed in for

some type of punishment in China, but found that Qiu

could not prove how harsh it was going to be.

Uncontested in this matter are the propositions that a

Falun Gong practitioner can qualify for asylum and

that Qiu is a bona fide Falun Gong adherent. Also uncon-

tested is the proposition that Qiu genuinely fears perse-

cution in China. The issue for our consideration is only

whether this fear is justified. So, to obtain a reversal, Qiu

8 No. 09-3512

needs to show that he has proven that a Falun Gong

practitioner, like him, would be in for some trouble

in China and that the trouble would be severe enough

to rise to the level of persecution. See Bhatt v. Reno, 172

F.3d 978, 982 (7th Cir. 1999) (“[A petitioner] must show

specific, detailed facts supporting the reasonableness of

his fear that he will be singled out for persecution.”

(internal quotations and alterations omitted)). The bur-

den is on him to do so. 8 U.S.C. § 1158(b)(1)(B). Because

Qiu got out of China in time (which means he can’t rely

on previous persecution at the hands of the Chinese

authorities to prove future persecution), and because he

hasn’t spoken to any of the other practitioners who were

rounded up when he was (including the master and his

friend who introduced him to Falun Gong), Qiu’s only

evidence appears to be the State Department reports

entered into evidence below. If pertinent, these State

Department reports can be sufficient to prove a well-

founded fear of persecution. See Tamas-Mercea v. Reno,

222 F.3d 417, 423 (7th Cir. 2000).

The State Department reports, relied on by Qiu, reveal

that in 1999, Falun Gong was officially banned by the

Chinese government, and that as late as 2007, “Falun Gong

practitioners continued to face arrest, detention, and

imprisonment, and there were credible reports of deaths

due to torture and abuse.” 2007 State Department

Report on Religious Freedom in China. “Practitioners

who refuse to recant their beliefs are sometimes sub-

jected to harsh treatment in prisons, reeducation through

labor camps, and extra-judicial ‘legal education’ centers.”

Id. “Some foreign observers estimated that at least half

No. 09-3512 9

of the 250,000 officially recorded inmates in the country’s

reeducation-through-labor camps are Falun Gong adher-

ents. . . . Hundreds of Falun Gong adherents were

also incarcerated in legal education centers, a form of

administrative detention, upon completion of their

reeducation-through-labor sentences. . . . In March 2006

U.N. Special Rapporteur on Torture Manfred Nowak

reported that Falun Gong practitioners accounted for

66 percent of victims of alleged torture while in govern-

ment custody.” Id.

The 2006 State Department Report on Human Rights in

China catalogs several beatings, deaths, and disappear-

ances of Falun Gong advocates (these people seem to

be something more than your average practitioner) and

it also notes that Falun Gong practitioners and their

families are targeted for arbitrary arrest, detention, and

harassment. The State Department also reports that

Falun Gong practitioners are subject to a “crackdown.”

While “core leaders” of Falun Gong are singled out for

harsher treatment, apparently most practitioners are

forced into study sessions or sent directly to the

reeducation-through-labor camps.

Had Qiu been more of an activist in China, we

don’t think there’s any question that he established a

well-founded fear of future persecution upon his return

to China. But, the question is whether a Falun Gong

practitioner in his situation can expect this same type

of persecution. The IJ and the Board relied on the fact

that Qiu practiced Falun Gong for only about three

months; they found that this makes him a low-level

10 No. 09-3512

practitioner and therefore subject to lesser penalties.

While we agree that the facts established that Qiu is a

novice practitioner (or at least was when he left China),

the evidence also shows that the police were at his door

only three months after he started practicing. This estab-

lishes, at least, that police are interested in any Falun

Gong practitioner, not merely the “core leaders.” The

evidence also establishes, both through the State Depart-

ment reports and Qiu’s personal experience, that the

Chinese do not tolerate “private” Falun Gong practice.

Qiu’s private sessions with his group were reported to

the police who acted accordingly. Falun Gong is illegal

in China and the only way for Qiu to avoid punishment

is to cease practicing Falun Gong or work even harder

to avoid discovery.

Reading more closely into the State Department

reports, it also looks like the Board made an error: the

Board held that Qiu cannot establish that he, specifically,

will be persecuted because most practitioners of Falun

Gong were “punished administratively.” That sounds

like they were given a slap on the wrist; but when you

look at the State Department Report on Human Rights

Practices in China in 2006 (which the Board relied on),

you see that the term “administrative” includes “adminis-

trative detention centers” which are “administered sepa-

rately from the formal court system.” Later in the report,

we find that “[a]ctivists sentenced to administrative

detention also reported they were strapped to beds or

other devices for days at a time, beaten, forcibly injected

or fed medications, and denied food and use of toilet

facilities.” Administrative detention facilities include

No. 09-3512 11

“reeducation-through-labor camps” and conditions there

are described as “similar to those in prisons.” Conditions

in prison are described as “harsh and degrading.” The

report notes that “[a]dministrative detention was fre-

quently used to intimidate political activists and

prevent public demonstrations” and that the Chinese

“government was reforming its administrative punish-

ment system, but reforms seek to codify rather than

abolish it.” Activists can be sentenced to “three years

in reeducation-through labor camps or other detention

programs” without trial by administrative panels. The

IJ found that Qiu faced punishment from “possible loss

of employment to imprisonment” and that many Falun

Gong practitioners who are released after detention

are re-arrested. Administrative punishment, therefore,

does not necessarily mean lenient punishment. To us,

therefore, it seems that administrative punishment

may be persecution and indeed, Qiu can expect to be ad-

ministratively punished when he returns to China. The

Board’s minimization of administrative punishment

must be more clearly explained, therefore, before we

can defer to its determination that Qiu has no well-

founded fear of persecution. See Gomes v. Gonzales, 473

F.3d 746, 757 (7th Cir. 2007) (“We cannot defer to

findings of fact that the immigration judge has not

made.” (quotation omitted)).

The government’s response is that it is incumbent on

Qiu to prove the degree of harm he can expect when he

returns to China. But all the evidence in the case shows

that Qiu can never practice Falun Gong again if he goes

back to China unless he’s willing to be punished. See

12 No. 09-3512

Ghebremedhin v. Ashcroft, 385 F.3d 1116, 1120 (7th Cir.),

opinion modified on reh’g, 392 F.3d 241 (7th Cir. 2004) (noting

that the State Department reports established a “history

of persecution” in petitioner’s country and finding that

“nothing in the record demonstrates that [the petitioner]

would not face the same dangers should he be returned

there”). At best, the State Department reports establish

that there’s a sort of progressive discipline structure for

punishment of Falun Gong prisoners, but the discipline

only appears to stop if the practitioner ceases to prac-

tice Falun Gong.

Asylum exists to protect people from having to return

to a country and conceal their beliefs. Iao v. Gonzales,

400 F.3d 530, 532 (7th Cir. 2005); Muhur v. Ashcroft, 355

F.3d 958, 960-61 (7th Cir. 2004) (noting the “fatal flaw” in

the IJ’s opinion lies in the “assumption—a clear error of

law—that one is not entitled to claim asylum on the

basis of religious persecution if . . . one can escape the

notice of the persecutors by concealing one’s religion”). We

addressed a similar issue in Iao, 400 F.3d at 531, where

we remanded an IJ decision that was “unreasoned.”

There, the IJ made several factual errors and faulty as-

sumptions that undercut his ultimate decision that a

Falun Gong follower should be deported. As an aside,

we noted: “The number of followers of Falun Gong in

China is estimated to be in the tens of millions, all of

them subject to persecution . . . . [Because] [a]nyone, we

suppose, can get hold of a book of [Falun Gong] teachings,

start doing the exercises, and truthfully declare himself

or herself a bona fide adherent to Falun Gong[,] [t]he

implications for potential Chinese immigration to the

No. 09-3512 13

United States may be significant. . . . But Congress has

not authorized the immigration services to [control Chi-

nese immigration] by denying asylum applications in

unreasoned decisions.” Id. at 533.

While the Board found that Qiu had failed to establish

that he was subject to a well-founded fear of persecution

on return to China because he could not identify the

type of punishment he would be subject to, we find

that the evidence established the opposite. The State

Department reports and Qiu’s own credited testimony

established that he is a Falun Gong practitioner, that

the practice of Falun Gong is outlawed in China, that

the Chinese police know he practices Falun Gong, that

China persecutes Falun Gong practitioners, and that

the only way Qiu can avoid persecution is to cease the

practice of Falun Gong or hope to evade discovery.

Putting Qiu to such a choice runs contrary to the

language and purpose of our asylum laws. Before finding

Qiu ineligible for asylum, the Board must reconcile the

dilemma facing Qiu, the level of persecution he would

face in China’s administrative system, and the asylum

statute. Accordingly, we grant the petition for review

and remand for reconsideration in light of our opinion.

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