Long Hao Li v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-4116

_____________

LONG HAO LI,

Petitioner

v.

ATTORNEY GENERAL

OF THE UNITED STATES,

Respondent

_____________

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA No. A099-934-740)

Immigration Judge: Honorable Alberto Liefkohl

_____________

Argued November 3, 2010

Before: SCIRICA, RENDELL and ROTH, Circuit Judges

(Opinion Filed: February 1, 2011)

_____________

Thomas V. Massucci, Esq. [ARGUED]

Suite 908

401 Broadway

New York, NY 10013

Counsel for Petitioner

Eric H. Holder, Jr., Esq.

Marion E. Guyton, Esq.

Thomas W. Hussey, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box. 878

Ben Franklin Station

Washington, DC 20044

David N. Harling, Esq. [ARGUED]

United States Department of Justice

Office of Immigration Litigation

450 5 th Street, N.W.

Washington, DC 20001

Counsel for Respondent

_____________

OPINION OF THE COURT

_____________

RENDELL, Circuit Judge.

Longhao Li, a citizen and national of China who is

ethnically Korean, seeks withholding of removal based on his

fear of persecution for violating Chinese laws forbidding

citizens from providing assistance to illegal immigrants from

North Korea. Li presented testimony that he assisted North

Korean refugees, that Chinese authorities sought to arrest him,

and that he fled to the United States to avoid arrest. Li

concedes that he violated Chinese law, but argues that his

arrest and prosecution for that violation would amount to

2

persecution “because of” his political opinion, thus satisfying

the requirements for withholding of removal.

Under our precedent, prosecution under a generally

applicable law can provide the basis for withholding of

removal, but only where the petitioner establishes a

connection between the prosecution and his or her political

opinion, such that the persecution (if shown) would be

“because of” that opinion. In this case, the law at issue is a

generally applicable law that penalizes people for assisting

those who cross the border illegally. It does not automatically

raise political concerns. Moreover, Li has not offered any

specific evidence concerning his political opinions, the

Chinese government’s awareness of those political opinions,

or the nature of the government’s enforcement of the law that

would raise suspicion that the prosecution of Li for violating

that law would relate to a political opinion. Because Li failed

to adduce evidence that raises an inference of political

persecution, as opposed to legitimate prosecution under

Chinese law, and because substantial evidence supports the

BIA’s determination that Li failed to establish a clear

probability of persecution, we will deny his petition for

review.

I.

Li entered the United States without authorization at an

undetermined date and location. On April 20, 2007, he

applied for asylum, withholding of removal under 8 U.S.C.

§ 1231(b)(3), and protection under the Convention Against

Torture. Li claimed that he would be arrested and jailed for

helping North Korean refugees cross the border into China if

3

he returned to China. Li conceded that his conduct was illegal

under Chinese law.

To support his application, Li submitted: an affidavit

describing the particulars of his claims; various forms of

identification establishing certain biographical facts; an

affidavit from his wife attesting to circumstances surrounding

his arrival in New Jersey; a translated letter from his mother,

who still lives in China, stating: “All you did was to help

pitiful people who were in awkward position. How can it be

such a crime that police is after you to arrest”; a two-page

article from an organization called “HighBeam Research” and

a report from a non-governmental organization called the

International Crisis Group describing the plight of North

Koreans who try to escape from North Korea, including those

who cross the border into China; and an excerpt of a China

“Country of Origin Information Report” published by the

United Kingdom Home Office Border & Immigration

Agency.

Among these materials, only the Home Office report

provides any detail regarding the consequences for those who

assist North Korean refugees, as opposed to the refugees

themselves. Quoting what appears to be a 2006 United States

State Department Report, the Home Office report states:

“ ( H o w e v e r), th e [ C h i n e s e ]

government continued to deny the

UNHCR permission to operate

along its northeastern border with

North Korea, arguing that North

Koreans who crossed the border

were illegal economic migrants,

4

not refugees. During the year

several thousand North Koreans

were reportedly detained and

forcibly returned to North Korea.

Many faced persecution, and

some may have been executed

upon their return. Several

hundred North Koreans were

permitted to travel to third

countries after they had entered

diplomatic compounds or

international schools in the

country. There were numerous

credible reports of harassment and

detention of North Koreans in the

country. The government also

arrested and detained foreign

journalists, missionaries, and

activists, as well as some citizens,

for providing food, shelter,

transportation, and other

assistance to North Koreans.”

A.R. 207 (emphasis added).

The Immigration Judge held a merits hearing on Li’s

claims on February 1, 2008.1 As relevant here, Li testified

1

The IJ denied Li’s asylum claim because he found that Li

failed to establish that he submitted his application within one

year of his arrival in the United States as required under 8

U.S.C. § 1158(a)(2)(B), and the BIA affirmed that decision on

appeal. Because Li’s petition for review does not challenge the

5

regarding his “main purpose” in coming to the United States

as follows: “[i]f I had stayed in China I’ll be arrested by the

police and sentenced to serve time in jail . . .” because “I did

something illegal.” A.R. 128-29. When asked what he did

that was illegal, Li testified, “I help a lot of refugees from

North Korea. Help them . . . smuggle to the United States.”

A.R. 157. Specifically, Li explained that, over the course of a

two-year period, he drove to the Chinese border with North

Korea, where he picked up North Korean refugees crossing

the river into China and transported them in his car or his

company’s minivan to a person who would arrange food,

shelter, and work for the refugees. A.R. 160-64.

Li testified, further, that he left China after an incident

at the border in May 2006. Li drove his car to the border

crossing to pick up refugees. As he waited in his car, Li

watched the police descend and arrest the refugees and Li’s

colleague, who was bringing the refugees to Li’s car. Li fled

the scene in his car and, later, abandoned his car and returned

to the city by taxi. Fearing arrest, he did not return home;

instead, he hid at a friend’s house for ten days before deciding

to come to the United States. Li testified that his colleague

was sentenced to ten years in jail in connection with this

incident and that, shortly thereafter, his contact who helped

provide food, shelter, and work for the refugees also was

arrested. Li testified that his mother told him that authorities

visited her house and intended to arrest him, too. A.R. 164-

68.

In an oral decision at the conclusion of the merits

hearing, the IJ granted statutory withholding of removal to

denial of his asylum claim, we do not consider the facts

surrounding that decision.

6

Li.2 The IJ summarized the “literature” regarding the Chinese

government’s policy of returning North Korean immigrants to

North Korea and North Korea’s treatment of returning

refugees, opining that “the government of North Korea is in

some cases punishing some of these individuals in a manner

that is not associated by the fact that they had violated

immigration laws. An assessment of a sentence or hard work

or labor for such a violation clearly offends the analysis of the

Court.” A.R. 85. Apparently referring to the Home Office

report quoted above, he continued, “one of the last analysis by

the Department of State of the United States they admit that

the main action or the main directive by the People’s Republic

of China is to individuals that are assisting in this type of

operation on the other side of the fence and that will be the

respondent.” Id. The IJ concluded that Li had met the

standard for statutory withholding because, “assuming that the

police apparently knows about his operation and the use of

private equipment from his company in the operation of

smuggling these citizens of North Korea may be or may

resolve in some severe punishment to him that could affect his

liberty or even his life.” A.R. 86.

The Board of Immigration Appeals reversed, for two

reasons. First, the BIA held that Li failed to establish a

sufficient nexus between his fear of persecution and his

political opinion. Noting Li’s admission that he acted

illegally in helping refugees enter China and his failure to

“establish[] that the Chinese government’s prohibition of such

2

The record of the IJ’s oral decision contains some strange

phrasing and usage, which may be the result of poor

transcription. The quotes used here are reproduced verbatim

from that record without editing.

7

smuggling is based on an enumerated ground,” the BIA

concluded that Li “faces being the subject of a legitimate

government investigation, and could be legitimately detained

and/or prosecuted for a crime, which is not persecution.”

A.R. 4 (citing Chang v. INS, 119 F.3d 1055 (3d Cir. 1997)).

Second, the BIA concluded that Li failed to establish “a clear

probability of persecution.” It stated that Li “did not show

that the Chinese government was aware that he was involved

in the smuggling operation and still maintained an interest in

persecuting him because of his involvement.” A.R. 4.

II.

Li’s petition for review challenges both the BIA’s

determination that Li failed to demonstrate a likelihood of

persecution on account of his political opinion and its

conclusion that he failed to establish a clear probability of

persecution.

We have jurisdiction to review a final order of removal

under 8 U.S.C. § 1252(a)(1). Where, as here, our review

“does not turn on any novel legal interpretation by the [BIA]

and instead involves the [BIA]’s fact-finding and application

of established legal standards, we will reverse the [BIA]’s

decision to deny . . . withholding of [removal] ‘only if a

reasonable fact-finder would have to conclude that the

requisite fear of persecution existed.’” Lin v. INS, 238 F.3d

239, 243 (3d Cir. 2001) (quoting Chang, 119 F.3d at 1060);

see also 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative findings

of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.”); INS v.

Elias-Zacarias, 502 U.S. 478, 483-84 (1992) (“[I]f [an alien]

seeks to obtain judicial reversal of the BIA’s determination,

8

he must show that the evidence he presented was so

compelling that no reasonable factfinder could fail to find the

requisite fear of persecution.”).

Before considering the merits of Li’s petition, we

briefly review the standard for statutory withholding of

removal, the only substantive claim remaining in this case. 3

The INA provides that “the Attorney General may not remove

an alien to a country if the Attorney General decides that the

alien’s life or freedom would be threatened in that country

because of the alien’s race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A). This standard is similar to, but more

stringent than, the standard for asylum. Whereas an asylum

applicant need only establish a “well-founded fear” of

persecution, a withholding applicant must establish a “clear

probability” that his life or freedom would be threatened

because of an enumerated characteristic. “‘Clear probability’

means that it is ‘more likely than not’ that an alien would be

subject to persecution.” Zubeda v. Ashcroft, 333 F.3d 463,

469 (3d Cir. 2003) (quoting INS v. Stevic, 467 U.S. 407, 429-

3

As noted above, Li’s petition for review does not challenge the

BIA’s denial of his asylum claim. Although Li’s brief contains

several stray references to his CAT claim, he has not made any

separate arguments concerning that claim or pointed to any

evidence that would compel a different result. We therefore

conclude that he has waived any challenge to the BIA’s denial

of that claim. See Laborers’ Int’l Union v. Foster Wheeler

Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived

unless a party raises it in its opening brief, and for those

purposes ‘a passing reference to an issue . . . will not suffice to

bring that issue before this court.’” (citation omitted)).

9

30 (1984)). Unlike asylum, withholding of removal is a

mandatory remedy; once an alien carries his or her burden to

establish a clear probability of persecution on account of an

enumerated ground, see 8 C.F.R. § 1208.16, the Attorney

General must grant the relief, see Zubeda, 333 F.3d at 469.

III.

Li first argues that the BIA erred in concluding that he

failed to establish that any persecution he might face in China

is “because of” his political opinion. Li concedes that he

violated a generally applicable Chinese law, but argues that,

by helping North Korean refugees, he was engaged in a

“quintessentially political gesture.” Pet.’s Br. 11. Without

citing any material in the record, he asserts in his brief that,

“[g]iven China’s generally abysmal human rights record, and

its specifically harsh handling of the Korean refugee situation,

there is no question that any actions to be taken by the

Chinese government against Li would be political in nature,

against someone who has, through his acts, defied China’s

ongoing efforts to circumvent international human rights and

refugee law.” Id.

The question before us is not whether the Chinese

government’s prosecution for the violation of a generally

applicable law under these circumstances could provide the

basis for a withholding of removal claim — our caselaw,

which the BIA cited and applied, plainly establishes that it

could. The real question is whether Li provided sufficient

record evidence to establish that, in his case, prosecution

would be on account of his political opinion. We agree with

the BIA that he did not. At the very least, the evidence Li

10

provided certainly would not compel any reasonable

factfinder to reach a conclusion contrary to that of the BIA.

A.

The BIA correctly identified the standard for

establishing withholding of removal based on a violation of a

generally applicable law. “As a general matter, . . . we have

held that fear of prosecution for violations of ‘fairly

administered laws’ does not itself qualify one as a ‘refugee’ or

make one eligible for withholding of [removal].” Chang v.

INS, 119 F.3d 1055, 1060 (3d Cir. 1997) (citations omitted).

As the BIA recognized, however, “under certain

circumstances, prosecution under laws of general applicability

may provide the basis for withholding of removal.” A.R. 4

(citing Chang, 119 F.3d at 1060). “To provide a basis for

withholding of removal, a generally-applicable law must be

based on an enumerated ground and the punishment must be

sufficiently extreme to constitute persecution.” A.R. 4 (citing

Chang, 119 F.3d at 1061).

Of course, simply articulating the appropriate standard

does not end the analysis. The next step is to determine

whether the law or the Chinese government’s enforcement of

it is “based on” Li’s political opinion. An alien need not

“provide direct proof of his persecutors’ motives.” Elias-

Zacarias, 502 U.S. at 483. “But since the statute makes

motive critical, he must provide some evidence of it, direct or

circumstantial.” Id. We have previously observed that “the

nature of the statute being enforced” and “the actions that” the

alleged persecutor “sought to compel by that statute” may

“help determine the motives of the alleged persecutor.”

Chang, 119 F.3d at 1063.

11

Our opinions in Chang v. INS, 119 F.3d 1055 (3d Cir.

1997), and Lin v. INS, 238 F.3d 129 (3d Cir. 2001), provide

examples of the type of evidentiary showing required to

sustain a substantial evidence challenge to a BIA finding that

the persecutor was not motivated by political opinion. In

Chang, a chief engineer for a state-owned company led a

delegation from China to the United States in 1992. Before

the trip, a Chinese special security agent specifically

instructed Chang to monitor and report to the Chinese

Embassy any suspicious activity by his fellow delegates.

Chang declined to do so. After meeting with FBI agents in

the United States, who told Chang that, as a result of his

actions, he was “in danger” of future mistreatment by the

Chinese government, Chang decided to stay and seek asylum

in the United States. Id. at 1057-58.

We held that the evidence compelled the conclusion

that China’s motive in prosecuting Chang would be “in part,

political.” 4 Id. at 1065. A Human Rights Watch/Asia report

4

Our analysis in Chang turned in part on our conclusion that

Chang needed only to prove that China was motivated “at least

in part” by Chang’s political opinion. See 119 F.3d at 1065.

That portion of our analysis has since been superseded by REAL

ID Act amendments to the INA, which provide that an asylum

applicant “must establish that . . . political opinion was or will

be at least one central reason for persecuting the applicant.” 8

U.S.C. § 1158(b)(1)(B)(i) (emphasis added); see generally

Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d Cir. 2009).

Under the REAL ID Act standard, an applicant must establish

more than that the persecutor is motivated “in part” by a

protected ground; “asylum may not be granted if a protected

ground is only an ‘incidental, tangential, or superficial’ reason

12

included in the record and quoted in the opinion stated that

“‘the principal objective’” of China’s Security Law, under

which Chang feared prosecution, “‘appears to be to frighten

dissidents into halting their activities.’” 5 Id. at 1064. That

evidence was bolstered by a State Department report that

indicated continuing political repression in China and

Chang’s “unique situation,” specifically the facts that “the

Chinese government entrusted him with politically sensitive

obligations to limit the freedoms of other delegates” and that

he “refused to comply” with those obligations “because he

disagreed with the punishment that the government would

mete out for violations.” Id. We summarized the evidence as

follows: “[Our] conclusion is based on the statute itself,

which provides potentially harsh punishment for mere

violation of the exit laws, on the responsibilities with which

Chang was entrusted, on the appearance of disloyalty and

political opposition as a result of Chang’s actions, and on

Chang’s actual motivations in breaking China’s laws.” Id.

In Lin, we likewise concluded that the petitioner, also a

Chinese citizen, had presented sufficient evidence to warrant

a reversal of the BIA’s ruling denying his applications for

asylum and withholding of removal. Lin was a fifteen-year-

old middle school student when, in 1989, he took a “very

active” role in student marches protesting the Chinese

for persecution of an asylum applicant.” Id.

5

Although we relied in part on the Human Rights Watch/Asia

report, we acknowledged that “the use of materials prepared by

[a] ‘watchdog’ organization is not without its problems.”

Chang, 119 F.3d at 1064 (citing M.A. v. INS, 899 F.2d 304, 313

(4th Cir. 1990)).

13

government’s “corruption, undemocratic rule, and disregard

for human rights” in his native Fujian Province. 238 F.3d at

241. Lin participated in a series of marches in May and June

1989, during which he and others attempted to occupy a

county government building and were beaten back by officers

and soldiers wielding electric batons. Id. at 241-42. On June

4th, 1989, the student protest movement ended with a

massacre of student protesters in Tiananmen Square. Id. at

242.

Lin went into hiding in China and ultimately emigrated

to the United States. He presented detailed evidence of his

ordeal to support his asylum and withholding of removal

claims, including a copy of a subpoena (issued six days after

the events in Tiananmen Square, see id. at 245) demanding

that Lin appear for interrogation at the Security Section of the

Public Security Bureau, testimony that officers visited Lin’s

home on six occasions looking for Lin and that they detained

Lin’s mother seeking information about his whereabouts, and

testimony that Lin’s classmates were arrested, beaten, and

sentenced to detention and forced labor for their participation

in the student movement. Id. at 242-43. Lin testified, further,

that the officers who visited his mother repeatedly mentioned

Lin’s involvement in the student movement. Id. at 242.

Reviewing this evidence, we held that the BIA’s

conclusion that the police sought to prosecute Lin “only for

trespass,” not on account of his political opinion, was “wholly

unsupported by the record.” Id. at 244. We based our

assessment on Lin’s testimony that police officers specifically

referenced his participation in the student democracy

movement when they interrogated his mother, the

mistreatment to which his classmates were subjected, the

14

government’s interrogation of Lin’s mother and its six visits

to his home over a year-and-a-half long period, and the

context of the broader, nationwide political repression that

followed the Tiananmen massacre. Id. at 244-45.

B.

This case is very different from Chang and Lin. As a

preliminary matter, we do not even have enough information

to conduct the type of analysis we performed in Chang and

Lin. The record does not identify the precise statute or even

provide any general information about the law under which Li

fears prosecution.6 All we know is that, by his own

6

At argument, Li’s counsel, apparently relying on Li v. Holder,

559 F.3d 1096, 1110 (9th Cir. 2009), argued for the first time

that assisting North Koreans who cross the border is not illegal

under Chinese law. Numerous factors, including Li’s failure to

raise that issue before the IJ and BIA and the assertions to the

contrary in his brief to this Court, see Pet’r’s Br. 11, preclude us

from considering that argument.

Without addressing this waiver problem, our dissenting

colleague asserts that this “gap” in the record provides an

independent basis for remand, see Dissenting Op. 6-7, because

the Government, not Li, bore the burden of producing evidence

concerning the applicable Chinese law, see id. at 1. That

assertion is contrary to the well established standards that the

alien, not the Government, bears the burden of proof on a

withholding of removal claim, see Zubeda, 333 F.3d at 469, and

that, to “obtain judicial reversal of the BIA’s determination,” an

alien “must show that the evidence he presented” to the BIA

“was so compelling that no reasonable factfinder could fail to

find the requisite fear of persecution.” Elias-Zacarias, 502 U.S.

15

admission, Li’s conduct was illegal, A.R. 129, 170, and that,

according to a United Kingdom government report of what

the United States State Department has said, the Chinese

government has “‘arrested and detained foreign journalists,

missionaries, and activists, as well as some citizens, for

providing food, shelter, transportation, and other assistance to

North Koreans,’” A.R. 207. The sum total of those facts —

that Chinese law penalizes people who assist others who cross

the border illegally — does not automatically raise the same

sort of political concerns as the laws involving controls on

people leaving the country or political expression implicated

in Chang and Lin.

Indeed, in this case, unlike in Chang or Lin, no record

evidence suggests that the law’s objective is to silence or

punish political dissent. To the contrary, the record suggests

that the Chinese government views North Korean immigrants

as “illegal economic migrants” and is concerned that “a

steady stream of border crossers” could “become a flood,

at 483-84.

The Ninth Circuit Court of Appeals adhered to those

standards in Li, when it held that the IJ’s conclusion that Li’s

previous detention for assisting North Korean immigrants

violated Chinese law was contrary to record evidence in the

form of sworn affidavits from two Chinese legal experts that the

petitioner had presented to the IJ. 559 F.3d at 1110. Critically,

Li presented no similar evidence in this case. In light of the law

that governs our review in this area, his failure to provide

meaningful information regarding the content of the applicable

Chinese law only underscores our conclusions that Li failed to

produce sufficient evidence to support his withholding claim

and, more to the point, that the record evidence in this case does

not compel us to reach a finding contrary to that of the BIA.

16

causing economic havoc in the [border] region and possibly

stoking latent Korean nationalism there.” A.R. 213-14.

Viewed in this light, and without any additional information,

a generally applicable Chinese law designed to deter Chinese

citizens from assisting North Korean migrants can reasonably

be interpreted as a rational policy response to a serious

immigration problem, similar to steps that other countries take

to protect their own borders. In fact, as the Government

pointed out in its brief to the BIA, United States law also

provides criminal penalties, including up to ten years in

prison, for bringing in, transporting, or harboring aliens in the

United States in violation of the immigration laws. See A.R.

46 (citing 8 U.S.C. § 1324).

Nor does Li provide any detail about his own political

opinions, about the Chinese government’s awareness of those

political opinions, or about the government’s enforcement of

the law that compels the conclusion that any prosecution in

his case would be politically motivated. Li testified only that

he broke the law by assisting North Korean refugees; that

some of his colleagues were arrested and sentenced to ten

years in prison for breaking the law; and that police knew

about Li’s activities and sought to arrest Li for breaking the

law. This evidence is at least as consistent with fear of

legitimate prosecution for smuggling as it is with targeted

persecution on account of a political opinion.

Li’s testimony did not touch on his motivation to help

the North Korean refugees, but the affidavit attached to his

asylum application suggests that his concerns were

humanitarian. After describing the Chinese government’s

policy of deporting North Koreans who enter China illegally,

Li stated, “I asked myself, since the Chinese government is

17

unwilling to help, shouldn’t I do my best to assist them?”

A.R. 291. Li’s mother also cast his actions in humanitarian

terms: “All you did was to help pitiful people who were in

awkward position. How can it be such a crime that police is

after you to arrest[?]” A.R. 237. We recognize that “a

humanitarian or charitable act may signify a humanitarian or

charitable conviction; and a government might construe [a]

violation of law as opposition or resistance to the law’s

underlying policy, and punish it accordingly.” Jin Jin Long v.

Holder, 620 F.3d 162, 167 (2d Cir. 2010). But surely any

prosecution involving a humanitarian act cannot be presumed

to be politically motivated. Indeed, without any evidence

concerning the government’s motivation in enforcing the law,

a government prosecution of a violation of the law would

seem to be based on legitimate law enforcement concerns. In

this case, Li simply has not provided any facts to suggest that

prosecution would be because of any opposition or resistance

to the law’s underlying policy, rather than appropriate

administration of the law.7

7

Judge Roth’s assertion that our analysis in this regard “all but

abandons Chang,” Dissenting Op. 3, is incorrect. Our

conclusion in Chang that the petitioner was entitled to asylum

and withholding of removal was based on more than a

determination that Chang acted out of a humanitarian instinct;

we also considered record evidence concerning the specific

Chinese law at issue, State Department and private human rights

reports bolstering Chang’s claims, and the unique features of

Chang’s situation that, taken together, established that the

Chinese government’s motivation for prosecuting Chang was

“in part, political.” See Chang, 119 F.3d at 1064-65. No such

evidence bolsters Li’s claim in this case.

18

Specifically, Li presents none of the indicia of political

motivation on the part of the Chinese government that the law

requires. We are not presented with the type of “unique

situation” involving special government responsibilities and

confirmation by the FBI that the petitioner was in a politically

precarious position we considered so persuasive in Chang, or

evidence that police were seeking to punish the petitioner

through beatings or forced labor as a direct consequence of

participating in a political demonstration, as we confronted in

Lin. Therefore, we cannot conclude, as we must to grant the

petition for review, that Li’s evidence is “so compelling that

no reasonable factfinder could fail to find the requisite fear of

persecution.” Elias-Zacarias, 502 U.S. at 483-84.

C.

At oral argument, Li’s counsel took the position that

the Chinese government’s position on North Korean refugees

is so abhorrent that withholding of removal should be

automatic for any Chinese citizen who helps North Korean

refugees and, to some extent, our dissenting colleague

suggests the same result.8 The logical upshot of such a ruling,

8

To be sure, the dissenting opinion asserts that the record

“compels” the conclusion that Li’s “humanitarian interest in

assisting North Korean refugees” was “at least one central

ground for the Chinese government’s attempt to arrest him”

because it concludes that the record shows that “China’s

treatment of immigration by North Koreans and assistance to

such immigrants is harsh, politicized, and far from evenhanded.”

Dissenting Op. 8, 11. But we are unwilling to conclude that

China’s enforcement of its immigration laws is “harsh,

politicized, and far from evenhanded” simply because China

19

however, would be that every Chinese citizen who helps

North Korean refugees would qualify automatically for

asylum or withholding of removal. But our law plainly

requires more. As we noted above, absent “some evidence . .

., direct or circumstantial” of his persecutors’ motives, an

alien may not succeed on an asylum or withholding of

removal claim. Elias-Zacarias, 502 U.S. at 483.

Applying that principle, we and other courts of appeals

have granted petitions for review in cases involving claims

similar to Li’s only where the petitioners adduced specific

evidence that supported their claims; in the case of asylum or

withholding of removal claims, this means specific evidence

that at least raises an inference of political persecution. For

example, in Jin Jin Long v. Holder, 620 F.3d 162, 167-68 (2d

Cir. 2010), the Second Circuit Court of Appeals granted a

petition for review and ordered the BIA to consider whether

facts related to the Chinese petitioner’s previous arrest and

detention supported an inference that the petitioner was

“persecuted for political reasons, rather than punished for

legitimate law enforcement purposes.” There, the evidence

showed that, “though neither charged nor presented in court,

may previously have imposed less severe penalties for violations

of the law. See id. 9-10 (citing fact that penalties for assisting

with North Korean immigration increased from relatively

modest fines to jail sentences of up to ten years as evidence of

“disproportionately severe punishment”). For all we know

based on this record, the Chinese government could have

responded to the escalating crisis of North Korean immigration

by increasing the applicable legal penalties for assisting with

such immigration. The record simply does not provide us with

sufficient information to conclude (let alone for us to find that

the record compels the conclusion) that the increased penalties

flow from unfair administration of the law.

20

[the petitioner] was subjected to prolonged detention and

physical abuse.” Id. Similarly, in Kang v. Attorney General,

611 F.3d 157, 166-67 (3d Cir. 2010), we granted a petition for

review and held that the evidence compelled a finding that the

petitioner met her burden of establishing a CAT claim where

she provided affidavits from similarly situated individuals

detailing their detention and torture and testimony and an

affidavit concerning police beating and torture of her son to

elicit information about the petitioner. And, in Li v. Holder,

559 F.3d 1096, 1111-12 (9th Cir. 2009), the Ninth Circuit

Court of Appeals granted a petition for review based on the

petitioner’s claim that he was persecuted on account of his

political opinion for helping North Korean refugees because

he provided “direct evidence of officers’ motivation in the

record — the officers specifically interrogated Li about why

and how he had helped the North Koreans while they were

brutalizing him.” Id.

By contrast, in other cases involving Chinese citizens

who have assisted North Korean refugees, courts of appeals

have not hesitated to deny petitions for review that were not

supported by specific evidence raising an inference of

political persecution. See, e.g., Jin, 620 F.3d at 168 (holding

that petition “fails on the essential ground that there is little (if

any) evidence that [alien] acted from a political motive”

where alien testified that he “did not believe that assisting

North Korean refugees was illegal until after his assistance

was completed”; alien acted out of “independently sufficient

motive of family loyalty”; and alien, like Li in this case, fled

“before encountering the authorities investigating his

conduct”); Li, 559 F.3d at 1098 n.1 (noting that Li’s petition

was consolidated with two other petitions involving “Chinese

citizen[s] of North Korean descent who [were] allegedly

21

persecuted for giving aid, food, and shelter to North Korean

refugees,” and granting relief to only one of the three

petitioners). Because Li has not presented any specific

evidence of past mistreatment or any details regarding the

government’s administration of the law or the arrest and

detention of his colleagues that suggest that his prosecution

would be anything other than a legitimate prosecution for a

violation of the law, his case plainly falls within the latter

category.9

We emphasize that our decision is based solely on the

lack of compelling evidence of a political motive for

prosecution in this case. Although we disagree with Li’s

counsel that an alien who testifies that he or she assisted

North Korean refugees automatically establishes a

withholding of removal claim, we certainly do not suggest

that a Chinese citizen who has assisted North Korean refugees

can never establish such a claim. In each case, the question is

whether the alien has provided evidence sufficient to establish

an inference that he or she would be persecuted “because of

the alien’s . . . political opinion.” 8 U.S.C. § 1231(b)(3)(A)

9

We would agree with Judge Roth’s view that the case should

be remanded to consider whether the prosecution Li fears is a

mere pretext for persecution, see Dissenting Op. 9-10, but for

the fact that it was Li’s burden to prove his claim, see Zubeda,

333 F.3d at 469. Li conceded the existence of the law, and he

neither made any argument nor adduced any proof to suggest

that the law was pretextual as applied to him. These facts

distinguish Li’s case from the Second Circuit’s decision in Jin

Jin Long v. Holder, 620 F.3d 162, 164 (2d Cir. 2010), and the

Ninth Circuit’s decision in Li v. Holder, 559 F.3d 1096 (9th Cir.

2009). See supra 21.

22

(emphasis added). Where, as here, the alien has not adduced

such evidence, we will deny his or her petition for review.

IV.

In addition to challenging the BIA’s determination

concerning the nexus between his political opinion and his

alleged persecution, Li also asserts that the BIA’s

determination that he failed to establish a clear probability of

persecution is unsupported by substantial evidence. Li barely

argues the point in his brief and, because our conclusion with

respect to the political opinion issue is dispositive of Li’s

petition for review, we only briefly consider this issue here.

As explained above, the “‘clear probability’” standard

for withholding of removal requires an alien to establish that

“it is ‘more likely than not’” that “the alien would be subject

to persecution.” Zubeda, 333 F.3d at 469 (citation omitted).

The BIA held that Li failed to establish a “clear probability of

persecution” because he “did not show that the Chinese

government was aware that he was involved in the smuggling

operation and still maintained an interest in persecuting him

because of his involvement.” A.R. 4. As the Government

conceded at oral argument, Li did provide some testimony

and a letter from his mother that indicated that the Chinese

authorities sought to arrest him based on his activities with the

North Koreans.

Even taking that evidence into account, however, Li

cannot show that the record compels a contrary result, as he

must to succeed on his petition for review. See Shardar v.

Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004) (BIA’s

determination whether alien has met his burden of proof “will

23

be upheld to the extent it is supported by ‘reasonable,

substantial and probative evidence on the record considered as

a whole’” (citations omitted)). The record discloses only that

authorities came looking for Li once, shortly after they

arrested his colleague. At the same time, the record also

contains evidence that, after he came to the United States, Li

contacted the Chinese government, applied for, and received a

Chinese passport without any difficulty. See A.R. 182-83.

Thus, the record as a whole does not compel the conclusion

that police have continued to pursue his case in the several

years since he left, or that they would more likely than not

seek to persecute him on his return.

V.

For the foregoing reasons, we will deny Li’s petition for

review.

24

Long Hao Li v. Attorney General of the United States

No. 09-4116

ROTH, Circuit Judge, Dissenting:

The Majority and I agree that there is a glaring

omission in the record: evidence of the generally applicable

law that the BIA cited as the source of China’s interest in Li.

The Majority tries to pin this omission on Li. However, it is

not Li who is arguing that any generally applicable law is

involved here. The Immigration Judge did not discuss any

such law or rely upon one in its decision granting withholding

of removal. Mention of a generally applicable law appears in

the record before us for the first time in the government’s

brief before the BIA. The government has not, however,

indicated what specific law it had in mind. Because it is the

government that is arguing that China seeks to prosecute Li

under a law of general applicability, it is the government that

must bear the initial burden of identifying the law it has in

mind and producing evidence to support its theory. The

omission in the record of a generally applicable law does not

count towards the ultimate burden Li bears in establishing his

claim for withholding of removal. To the contrary, this

omission eviscerates the government’s argument for denial of

the petition for review.

Moreover, the record before us suffices to support Li’s

petition and compels three essentials conclusions: (1) Li

manifested his political opinion in assisting North Korean

refugees; (2) he faces a clear probability of enduring

treatment severe enough to amount to persecution; and (3) his

political opinion serves as at least one central reason China

seeks to persecute him. Li’s petition does not depend on his

demonstrating a law of general applicability. For these

reasons, I respectfully dissent.

A. Li’s Political Opinion

The record clearly establishes that Li held a political

opinion in opposition to China’s policy towards North Korean

refugees. The instant case invokes Chang v. I.N.S., 119 F.3d

1055 (3d Cir. 1997), where we confronted a petition for

asylum and withholding of removal from a Chinese national

who had violated China’s generally applicable exit laws and

refused to report others who had violated those same laws.

There, we stated:

To argue that Chang is prosecuted merely for

“breaking the law” and not on “political”

grounds is to turn a blind eye to the motives of

the government. Those motives are, at least in

part, to punish those, like Chang, who have

manifested opposition to the policy of the

Chinese government and to prevent others from

taking similar political actions.

Chang, 119 F.3d at 1065. While the standards for granting

asylum and withholding of removal have shifted in the years

since, Chang retains its salience today and applies with equal

force to the instant Petition for Review.

By assisting North Koreans refugees not for monetary

compensation, but because he sympathized with their plight,

Li manifested his opposition to the policies of the Chinese

government. See id. The Majority presents a false choice

between Li’s humanitarian and political motivations. See

ante, 18-19. In this case, as in Chang, the two are one and the

same. In his testimony before the IJ and in the affidavit

submitted with his asylum application, Li demonstrated that

he is acutely aware of the poverty and starvation endemic to

North Korea and that he believes China is “obligated to . . .

2

protect human rights and provide asylum to the [North

Korean] refugees.” (A.R. 291 (affidavit); see also A.R. 161

(testimony).) Li’s actions, moreover, speak louder than his

words. Despite the risk of grave punishment, Li’s willful

disobedience of China’s policy towards North Koreans based

on conscientious – rather than pecuniary – motives indicates

a political belief. In other words, a humanitarian action in

knowing violation of a state policy constitutes opposition to

that policy, and therefore, reflects a political belief.1 A

conclusion to the contrary all but abandons Chang. See 119

F.3d at 1065.

B. A Clear Probability of Being Subjected to

Persecution

The assertion that Li failed to establish by a clear

probability that he would be subject to persecution is not

reasonably grounded in the record. Rather, the record

demonstrates that the Chinese government knows of Li’s

assistance, threatens punishment severe enough to constitute

persecution, and maintains an interest in arresting him. At the

merits hearing, Li testified that, while in hiding after his

escape from police, he learned from his mother that police

had visited their home to arrest him. (A.R. 165, 167.) In a

subsequent letter to Li, his mother mentioned again that the

police seek to arrest Li for the assistance he provided to North

Koreans who had crossed into China. (A.R. 179, 237.) Li

1

I note that Li’s actual political opinion, or China’s

knowledge of his actual political opinion, may be

inconsequential where China has imputed one to him. See

Espinosa-Cortez v. U.S. Atty Gen., 607 F.3d 101, 108-09 (3d

Cir. 2010).

3

further testified that his fellow dissidents received ten-year

jail terms and that he likely would receive the same

punishment if he were to return. (A.R. 165, 168).2 Thus, as

the Majority all but says outright, the BIA incorrectly

concluded that Li “did not show that the Chinese government

was aware he was involved in the smuggling operation.”

Ante, 21 (citing A.R. 4); see also Kang, 611 F.3d at 163-64,

166 (concluding that the substantial evidence standard called

for reversal of BIA’s findings where BIA appeared to ignore

forceful evidence in support of applicant).

The harm Li fears from the Chinese government – ten

years of imprisonment – amounts to a deprivation of freedom

that rises to the level of persecution. “Our oft-quoted, non-

exclusive list of examples of persecution ‘include[s] threats to

life, confinement, torture, and economic restrictions so severe

that they constitute a threat to life or freedom.’” Cheng v.

U.S. Atty Gen., 623 F.3d 175, 192 (3d Cir. 2010) (quoting

Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993). Ten years

of imprisonment constitutes a period of confinement greater

than past instances where this Court found persecution. See

Chang, 119 F.3d at 1067 (concluding that punishment of up to

one year of imprisonment is “sufficiently severe to constitute

‘persecution’ under this Circuit’s standard . . . .”); see also

Gomez-Zuluaga v. U.S. Atty Gen., 527 F.3d 330, 342 (3d Cir.

2008) (finding that abduction and eight-day confinement,

during which she was threatened, tied to a bed, and

2

We must credit Li’s testimony. Where, as here, “an IJ or

the BIA fails to make an explicit credibility finding, [the Court]

. . . proceed[s] as if the applicant’s testimony were credible.”

Toure v. U.S. Atty Gen., 443 F.3d 310, 326 (3d Cir. 2006).

4

blindfolded, rose to the level of persecution); Li Wu Lin, 238

F.3d 239, 248 (3d Cir. 2001) (finding that “a year and a half

incarceration and forced labor for a fifteen-year old who

voiced opposition to the government” constituted a

sufficiently severe deprivation that amounted to persecution).

Despite the BIA’s error in concluding that the Chinese

government was not aware of Li’s involvement in the

operation, the Majority stills finds that the record does not

demonstrate a clear probability of persecution. In reaching

this conclusion, the Majority notes that Li successfully

applied for and obtained a Chinese passport from the Chinese

Consulate in New York, suggesting that China’s interest in

persecuting Li has dissipated. See ante, 24 (citing A.R. 182-

83.). But the Majority omits that Li paid a “broker” to

accompany him to the Consulate and to ensure that he would

be able to obtain a passport. This undermines the use of this

evidence to support the inference that China has lost interest

in Li. (A.R. 132, 182-84.) 3 In addition, the ten years of

imprisonment that Li potentially faces indicates how severely

China may punish such conduct and renders it unlikely that

China would disregard such a perceived offense. Moreover,

there is no evidence in the record that China’s interest in

3

I note further that, even if Li had not relied on the

assistance of a “broker,” China’s willingness to issue Li a

passport is consistent with an intent to persecute Li. Granting

Li’s passport application would increase Li’s likelihood of

returning to China, which would provide the Chinese

government the best opportunity to apprehend him. Refusing to

grant the passport application would prevent Li from entering

China on his own volition and therefore prevent China from

arresting Li.

5

persecuting Li has lessened with time, nor of any amelioration

in China’s treatment of those who assist North Korean

refugees. (A.R. 168.)

C. Political Opinion as at Least One Central

Reason for Persecution

In reaching its conclusion, the Majority ultimately

relies on the BIA’s finding that Li did not face persecution,

but prosecution under a generally applicable law. In my view,

this finding reads too far into a sparse record and

oversimplifies the distinction between persecution and

prosecution.

First, the record is remarkably silent on the generally

applicable law that Li supposedly defied. And the BIA did

not point to any provision of Chinese law that Li violated in

concluding that China sought to prosecute, not persecute, Li

under a law of general applicability. As the Second Circuit

recognized in Long v. Holder, this point alone merits remand

to the BIA and, pursuant to 8 CFR § 1003.1(d)(3)(iv),

possible remand to the IJ, for further consideration of the

relevant Chinese law. 620 F.3d 162, 164, 168 (2d Cir. 2010).

The only evidence that Li violated any law at all comes from

his own, limited testimony to that end. See ante, 6 (citing

A.R. 128-29, 157.). But Li is not a lawyer and did not state

what law he violated. It appears the only reason he thought

he did something illegal was because other members of his

organization had been imprisoned. Moreover, even if Li’s

testimony is literally true, it does not establish that he violated

a law that carries a penalty of ten years in prison.

This gap in the record is particularly troubling in light

6

of Li v. Holder, 559 F.3d 1096, 1111 & n.15 (9th Cir. 2009),

which found that there is no Chinese law punishing assistance

to North Korean refugees. Although the Ninth Circuit found

that smuggling of refugees is an offense in China, see id. at

1111 n.15, the record does not establish that Li participated

in smuggling North Korean immigrants across the border. It

is admittedly conceivable that, as the Majority and the BIA

appear to have assumed, China’s smuggling law is drafted

broadly enough to reach Li’s conduct.4 But in the absence of

the text of the law or evidence about its scope, this conclusion

cannot be based on substantial evidence. This assumption is

all the more suspect, as record evidence demonstrates that Li

held a political motivation for supporting the immigration of

North Koreans, and documents China’s practice of harshly

punishing individuals accused of assisting North Korean

refugees for political motives. (See A.R. 207-09.)

Second, the Majority overlooks several nuances in the

distinction between prosecution and persecution. The

Majority correctly states that prosecution under a generally

4

The Majority’s speculation about Chinese law based on

United States law providing criminal penalties for bringing in,

transporting, or harboring aliens simply underscores the lack of

evidence in the record. See ante, 17. As Chang and the

numerous cases granting asylum to Chinese citizens establish,

China’s laws can be very different from our own, thus making

persuasive comparisons unlikely. Even if our law were

somehow relevant here, because Li obtained no private financial

gain from transporting aliens, he would have faced at most a

five-year prison sentence under United States law, see 8 U.S.C.

§ 1324(a)(1)(B)(ii), and probably much less than that under the

United States Sentencing Guidelines.

7

applicable law would not necessarily amount to persecution.

Ante, 11. But where prosecution is a mere pretext for

persecution, the existence of a generally applicable law must

not be allowed to cloak the government’s true intent. In the

present case, the Majority and the BIA have failed to

adequately consider the possibility of pretext. The record

compels the conclusion that Li’s political opinion, i.e., his

humanitarian interest in assisting North Korean refugees

despite China’s official policy toward those refugees, along

with the action he took consistent with that opinion, was at

least one central ground for the Chinese government’s attempt

to arrest him and its continued interest in him.

While enforcement of a law of general applicability –

even against an offender who objects to the law because of his

political opinion – might not be on account of a protected

ground, pretextual prosecution on the basis of political

opinion is. See Shardar v. Ashcroft, 382 F. 3d 318, 323 (3d

Cir. 2004); see also Long v. Holder, 620 F.3d 162, 166-68 (2d

Cir. 2010) (distinguishing persecution from prosecution); Li v.

Holder, 559 F.3d 1096, 1108-09 (9th Cir. 2009) (same). In

the present case, the record demonstrates that China seeks to

disproportionately punish Li as a result of his political

opinion. China, thus, does not fairly administer the purported

law at issue.

To begin with, disproportionately severe punishment

may indicate that a prosecution is a mere pretext for

persecution. Shardar, 382 F. 3d at 323.5 On this point, Li’s

5

Both the Second and Ninth Circuits have devoted

considerable attention to this theory. See, e.g., Vumi v.

Gonzalez, 502 F.3d 150, 158 (2d Cir. 2007) (noting that the BIA

8

testimony that his colleagues received jail sentences of ten

years demonstrates that the punishment Li feared was

disproportionate to the alleged crime – assistance to North

Korean refugees. Indeed, as the Chinese government began

to crack down on North Korean refugees, those Chinese

citizens who had assisted North Korean refugees were

punished only with fines in the $3,600 range. (A.R. 215.) At

a minimum, the BIA should have considered whether the ten-

year sentence Li faced was so disproportionate as to constitute

persecution by means of a pretextual prosecution. See Long,

620 F.3d at 166-68 (citing cases where disproportionate

punishment or selective enforcement of a law amounted to

persecution on a protected ground).

M oreover, this evidence of disproportionate

punishment indicates that the purported law at issue is not

fairly administered, and thus should not be considered a law

of general applicability. The Majority recognizes that “[a]s a

general matter . . . we have held that fear of prosecution for

violations of ‘fairly administered laws’ does not itself qualify

one as a ‘refugee’ or make one eligible for withholding of

[removal].” Ante, 11 (quoting Chang, 119 F.3d at 1060

(citations omitted)); see also Shardar, 382 F.3d at 323

failed to consider whether punishment was “disproportionate to

the crime, which would indicate persecution on grounds of

political opinion rather than prosecution or legitimate law-

enforcement”) (internal quotation omitted); Chanco v. I.N.S., 82

F.3d 298, 302 (9th Cir. 1996) (“Although prosecution for a

common law crime will not ordinarily constitute persecution, a

showing of disproportionate punishment may support a claim

that the prosecution is a pretext for persecution on account of

political opinion.”).

9

(quoting Chang for the same proposition). Here, however,

China’s exceptionally unfavorable application of the

purported law to Li – when compared with mere fines it

assessed to other alleged violators – indicates unfair

administration. See Janusiak v. I.N.S., 947 F.2d 46, 48-49 (3d

Cir. 1991) (noting that prosecution may amount to

persecution on account of a protected ground where petitioner

“would be treated differently than other violators of [a] law

because of [petitioner’s] political leanings”). Thus, assuming

a law exists that prohibits Li’s conduct, China’s selective and

severe enforcement of the law reveals that in some

circumstances China uses enforcement of the law as a pretext

for persecuting political dissenters, not simply to implement

rational immigration policy.

As discussed above, over the past year the Second and

Ninth Circuits have addressed the persecution of Chinese

citizens for humanitarian assistance provided to North Korean

refugees. Both circuits found that the BIA, in denying

petitions for review, failed to consider a number of factors

indicating pretextual prosecution. See Long v. Holder, 620

F.3d 162, 164 (2d Cir. Sept. 16, 2010) (vacating and

remanding for BIA’s failure to consider whether prosecution

of a Chinese citizen for assisting North Korean refugees may

have been pretextual); Li v. Holder, 559 F.3d 1096, 1108-09

(9th Cir. 2009) (finding error in BIA’s conclusion that

petitioner is a mere criminal subject to legitimate prosecution,

because police persecuted petitioner for providing aid to

North Korean refugees and for expressing opinions contrary

to Chinese policy). Like the petitioners in those cases, Li

faces persecution under the guise of “prosecution” for his

efforts to help North Korean refugees. The harsh punishment

suffered by those who worked with Li to help North Korean

10

refugees demonstrates the likelihood that China will persecute

Li on account of his political beliefs. The BIA erred in

failing to consider this possibility and the considerable record

evidence supporting it. See Espinosa-Cortez v. U.S. Atty

Gen., 607 F.3d 101, 113-14 (3d Cir. 2010) (“An applicant for

asylum is entitled to a reasoned analysis, not one which

wholly disregards relevant, probative evidence.”)

In short, the evidence before us does not support the

Majority’s conclusion that Li has failed to establish

persecution because there may be a generally applicable

Chinese law that might criminalize his conduct and could be

fairly applied to result in a proportionate punishment of ten

years. The record does not contain the text of this law, the

Ninth Circuit cast doubt on the existence of any law punishing

Li’s conduct, see Li, 559 F.3d at 1111 n.15, and the only

available record evidence shows that China’s treatment of

immigration by North Koreans and of assistance to such

immigrants is harsh, politicized, and far from evenhanded.

There is insufficient evidence to support the BIA’s finding

that Li faced prosecution under a generally applicable law. I

would therefore follow the course of the Second Circuit and

remand for further factfinding on this issue.6 See Long, 620

6

If this case were to be remanded, I also would direct the

BIA to consider whether Li has established that “there is a

pattern or practice of persecution of a group of persons similarly

situated to him on account of a protected ground and that he is

included in, or identified with, the persecuted group such that it

is more likely than not that his life or freedom would be

threatened if he returned.” In re A-M-, 23 I. & N. Dec. 737,

740-41 (B.I.A. 2005) (analyzing 8 C.F.R. § 1208.16(b)(2)); see

also Wong v. U.S. Atty Gen., 539 F.3d 225, 232-34 (3d Cir.

11

F.3d at164, 168.

For the reasons stated above, I would grant Li’s

Petition for Review, and vacate and remand this case to the

BIA for further action consistent with this dissent.

2008) (discussing evidence of a “pattern or practice” of

persecution in the context of an asylum claim); Lie v. Ashcroft,

396 F.3d 530, 537-38 (3d Cir. 2005) (same). There are reports

in the record of the harsh Chinese crackdown on individuals,

like Li, who assist North Korean refugees, which may evidence

such a pattern or practice. (See A.R. 207-09.)

12