Lin v. INS

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

1-24-2001

Lin v. INS

Precedential or Non-Precedential:

Docket 00-1849

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Filed January 24, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1849

LI WU LIN,

Petitioner

v.

IMMIGRATION & NATURALIZATION SER VICE,

Respondent

Petition for Review of a Decision

of the Immigration and Naturalization Service

(A 72 492 341)

Argued December 5, 2000

BEFORE: BARRY, COWEN and

WOOD,*Circuit Judges

(Filed January 24, 2001)

_________________________________________________________________

* Honorable Harlington Wood, Jr., United States Circuit Judge, U.S.

Court of Appeals for the Seventh Circuit, sitting by designation.

Theodore N. Cox, Esq. (Argued)

401 Broadway, Suite 1802

New York, NY 10013

Counsel for Petitioner

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

Counsel for Respondent

OPINION OF THE COURT

COWEN, Circuit Judge.

Li Wu Lin, once a student in the People's Republic of

China, participated prominently in four pr o-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 wher e he sought

both political asylum under S 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 pr ovisions,

clearing the way for his deportation. Lin now brings this

petition for review.

I

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 pr otested the

2

government's corruption, undemocratic rule, and disregard

for human rights.

The first demonstration that Lin joined occurr ed on May

18th, 1989, and involved about 1,000 students who

gathered in front of a county gover nment 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 gover nment building in

Fuzhou, a large city in the province.

Two days after this last demonstration, the pr otest

movement in China ended with the Tiananmen Square

massacre in Beijing on June 4th, 1989. Accor ding 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;W itnesses

Describe the Devasting 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 r esponse 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

3

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 interr ogation at

the Security Section, Public Security Bureau. In his written

personal statement Lin said that "the officers told my

mother I was involved in the democracy movement and they

demanded to know my location. When she didn't tell, they

demanded she find me. . . . They said I would be arrested

and punished strictly if I was caught, including

imprisonment." App. at 126.

Although political refugees are rar ely 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 thr ee 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

4

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 Mar ch 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. Fr om 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 cr eated 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

5

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.

II

We have jurisdiction under S 106(a)(1) of the Immigration

and Nationality Act, 8 U.S.C. S 1105a(a)(1), as amended by

S 309 of the Illegal Immigration Refor m and Immigrant

Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009

(Sept. 30, 1996). Because this case does not tur n 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 Boar d's decision to deny

asylum and withholding of deportation "only if a reasonable

fact-finder would have to conclude that the r equisite 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 r elief--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.S 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. Br eaking this

standard into parts, we can say that Lin must show that (1)

the government pursued him because of his political

opinions, (2) the action that the government would take

against him is sufficiently serious to constitute persecution,

and (3) he has a "well-founded fear" that the persecution

will in fact occur. See, e.g., Chang, 119 F.3d at 1067 n.9.

For the government's action to constitute persecution, it

must amount to more than "generally harsh conditions

6

shared by many other persons," but "does include threats

to life, confinement, torture, and economic r estrictions so

severe that they constitute a real thr eat to life or freedom."

Chang, 119 F.3d at 1066 (citations omitted). The

requirement that his fear be "well-founded" includes both a

subjective and objective component. No one has ever

questioned that Lin holds a genuine subjective fear of

persecution, so our focus is on the objective standard--i.e.,

was his subjective fear of persecution "supported by

objective evidence that persecution is a reasonable

possibility." Chang, 119 F.3d at 1066 (citing INS v. Cardoza-

Fonseca, 480 U.S. 421, 430, 440, 107 S.Ct. 1207, 1212,

1217-18 (1987)). This standard "does not r equire a showing

that persecution is more likely than not. Fear can be well-

founded even `when there is less than 50% chance of the

occurrence taking place.' " Chang, 119 F.3d at 1066

(quoting Cardoza-Fonseca, 480 U.S. at 431, 107 S.Ct. at

1213).

If an alien satisfies these standards for political asylum,

then the Attorney General has discretion to decide whether

to grant asylum or not. Cardoza-Fonseca , 480 U.S. at 428

n.5, 107 S.Ct. at 1211 n. 5. By contrast, if an alien

qualifies for withholding of deportation, the second type of

relief at issue in this appeal, then the Attor ney General is

prohibited from deporting the alien to the country where

the persecution will occur. 480 U.S. at 429 n.6, 107 S.Ct.

at 1212 n.6.

To qualify for mandatory relief under withholding of

deportation, Lin must show a clear probability that upon

his return to China "his life or fr eedom would be

threatened" because of his political opinions. Chang, 119

F.3d at 1066. Put differently, the standard is that he must

show that it is more likely than not that he will face

persecution if he is deported. Cardoza-Fonseca, 480 U.S. at

430, 107 S.Ct. at 1212.

In Chang we held that an alien can be entitled to both

asylum and withholding of deportation based on a fear of

prosecution under a law of general applicability. "[T]he

memory of Hitler's atrocities and of the legal system he

corrupted to serve his purposes . . . are still too fresh for us

to suppose that physical persecution may not bear the nihil

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obstat of a `recognized judicial system.' " Chang, 119 F.3d

at 1060-61 (quoting Sovich v. Esperdy, 319 F.2d 21, 28 (2d

Cir. 1963)). We concluded that if the prosecution is

motivated by one of the enumerated factors, such as

political opinion, and if the punishment under the law is

sufficiently serious to constitute persecution, then the

prosecution under the law of general applicability can

justify asylum or withholding of deportation. Chang, 119

F.3d at 1061.

III

We conclude that Lin has satisfied both the standards for

political asylum and those for withholding of deportation.

The Board reasoned in our case that while Lin is credible--

a conclusion in keeping with our decisions in Senathirajah

and Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998)--

he does not face persecution. Instead, the Boar d

speculated, his testimony only established that the Chinese

police sought him for trespass. But the Boar d's view of

events is wholly unsupported by the recor d. Nowhere is

there any evidence that the Chinese police sought Lin

because of his trespass as opposed to his political

expression. Indeed, for all the evidence r evealed, the

government was not even aware that Lin committed

trespass as part of his participation in mar ches. Lin

specifically asserted that when the police first came to his

house, they said that they sought him because he was

"involved in the democracy movement." The police said

nothing about trespass. Lin also specifically stated that his

classmates were beaten, incarcerated, and subjected to

forced labor "for their student movement activities."

More fundamentally, Lin's subpoena was issued six days

after the Chinese government used tanks and machine

guns to kill at least 700 hundred and possibly more

nonviolent protesters. It is difficult to believe that in the

wake of political repression on that scale that the

government was acting as a disinterested enforcer of

neutral laws when it demanded that Lin appear for

interrogation. We do not understand why the government

would send two police officers and a brigade leader if it did

not believe more was at stake than a fifteen-year old's

8

trespass. Nor does it make sense that if simple trespass

was at issue, the police would returnfive more times over

the course of the next year and a half. That is a long time

to pursue a middle-school student's trespass. Nor would it

make sense that they would take Lin's mother to the

security bureau and interrogate her for half a day about his

whereabouts. Nor is it very plausible that the government

would subject Lin's classmates to the punishment they

received if trespassing was foremost on the government's

mind.

The idea that the subpoena was not aimed at Lin's

political expression also flies in the face of what journalists

reported shortly after the massacre in T iananmen Square.

On June 9th, 1989--the day before the police brought the

subpoena to Lin's mother--the Wall Str eet Journal reported

that the Chinese government "launch[ed] a campaign of

arrests against student and other demonstrators." The

article said that Premier Li Peng appear ed on television for

the first time since the massacre and was"shown

congratulating troops on behalf of the gover nment and the

Communist Party." The article continued, "Government

television announcements demanded that student

demonstration leaders and free labor-union organizers turn

themselves in or face arrest." James P . Sterba, Campaign is

Begun to Arrest Protesters as Signs Gr ow that Hardliners

Prevail, Wall Street Jour nal, June 9, 1989. See also

Nicholas D. Kristof, China's Premier Reappears; Army

Seems to Tighten Grip, New York T imes, June 9, 1989;

Nicholas D. Kristof, Crackdown in China; A Student Leader

Turns Himself In, June 17, 1989 ("The[Chinese]

Government today reported a new series of arrests around

the nation of those involved in the democracy movement.").

Even a passing familiarity with China's history in the

twentieth century would remind the Boar d that the Chinese

government has frequently used for ce and coercion to

suppress political dissent. The Cultural Revolution occurred

as recently as 1966 to 1976--within Lin's own life. Severe

political repression is not a remote part of China's history.

Indeed, Assistant Secretary Harold Koh's r ecent

testimony in March of 2000 before a House subcommittee

indicated, "In the weeks leading up to both June 4th, the

9

10th anniversary of the Tiananmen massacr e, and October

1st, the 50th anniversary of the founding of the People's

Republic, the Government moved against political

dissidents across the country, detaining and formally

arresting scores of activists nationwide and thwarting any

attempts to use the anniversaries as opportunities for

protest." Testimony before the Subcommittee on

International Operations and Human Rights, U.S. House of

Representatives, Washington D.C., Mar ch 8, 2000,

http://www.state.gov/www/policy_remarks/2000. In the

brief Lin submitted in 1993 to the Board, he points out that

the State Department's 1992 Country Report stated that

20-30% of the protesters detained for participating in the

pro-democracy protests were still imprisoned at that time,

and the number of people incarcerated could be in the

thousands. App. at 7. Other reports put the numbers even

higher. Id.

When the government's lawyer skeptically questioned Lin

about why he remembered the exact day he left China--

January 25th, 1989--Lin testified:

I escaped out of my country. I was so scared of the

arrest by the Chinese Public Security Bur eau officers,

so I could still remember it.

Q. Okay.

A. I was so scared.

Q. Thank you.

App. at 98.

On appeal the government defends the Boar d's decision

by invoking a one-page letter that the State Department

submitted to the immigration judge. But the thrust of that

letter was to reject Lin's credibility--something the Board

expressly did not do. Because the Board never cited the

State Department's letter in its opinion and could not have

relied on it with much logical consistency, we question to

what extent the Board's decision can be upheld based on

what that letter said. Perhaps the gover nment's theory is

that the Board implicitly rejected Lin's credibility to the

extent that it conflicted with what was said in the letter.

But the Board of course never identified any part of Lin's

10

testimony that it rejected as not credible, and so we have

no way to evaluate the validity of its reasons for

purportedly rejecting part of his story. Despite these defects

in relying on the State Department's letter , however, we will

address the contents of that letter because wefind its

reasoning as unconvincing as the Board's.

One reason that the State Department's letter r ejected

Lin's account as not credible was that he stayed in China

"three years" after the subpoena was issued, yet he did "not

explain clearly how he managed, assuming the police were

after him, to avoid arrest by staying at the home of a

relative who could have been found easily by local security

authorities." App. at 130.

Initially, we observe that Lin stayed in China for two-and-

a-half years, not three as the letter said, and there are only

the most fleeting references in the r ecord about where or

with whom he stayed during those years. We also want to

emphasize that no one ever asked him how he avoided the

authorities. And Lin did volunteer that he tried to escape

detection by moving three hours away, and added that he

quit working in a bakery after a few months because he

was afraid he would attract the government's attention. But

the most fundamental point here, of course, is that the

authorities could have easily decided that pursuing Lin, a

fifteen-year old, was not worth the resour ces it would take

to discover him three hours distant and in hiding. China is

a big country.

While the State Department's letter acknowledged that

the agency did "not have independent knowledge about this

applicant," it concluded that Lin's "description of the

vigorous police efforts against him and his schoolmates is

inconsistent with the situation as we understand it." App.

130. Specifically, the letter said that the "demonstrations

[i]n Fuzhou were far less dramatic than those in Beijing,

and the crackdown in their aftermath was similarly mild."

Id. The only evidence capable of evaluation that the letter

cited in support of these claims is an article written by two

American college professors who had brought a class of

their students to China some time before the T iananmen

Square demonstrations.

11

Before we discuss this article, we think it is important to

emphasize that the Board's decisions cannot be sustained

simply by invoking the State Department's authority. We

are expected to conduct review of the Boar d's decisions,

and that procedural safeguard would be destroyed if the

Board could justify its decisions simply by invoking

assertions by the State Department that themselves provide

no means for evaluating their validity. See Galina v. INS,

213 F.3d 955, 958-59 (7th Cir. 2000). The Board cannot

hide behind the State Department's letterhead. We turn

therefore to the college professor's article and its value in

assessing the legitimacy of Lin's claims.

The first problem with the article is that it is difficult to

discern how close the authors were to the specific county

where Lin lived and whether they had any first-hand

knowledge about the demonstrations there or the police

response to it. Their article does observe that Fujian

Province, the region they discuss, is the size of Nicaragua

or the former Czechoslovakia and had in 1989 a population

of 26 million people. Obviously they were not speaking from

personal experience about all the demonstrations in a

region that size. And there are r easons to doubt how well

their observations generalize. While they described as

"benign" the police response to the pr otests that they saw,

and add that a month before the massacr e, the Provincial

Party Committee had "praised [the students'] patriotism,"

app. at 134-35, the authors do not mention any of the

protests Lin described, protests that the Board accepted as

having occurred and that indeed formed the basis of its

decision.

The Board's own reasoning relied on the fact that the

police sought Lin because he tried to press past police and

soldiers to occupy a government building. And Lin

explained that during that clash, the authorities beat

protesters with electric batons, confrontations that the

professors showed no awareness of while describing the

police response as benign. The authors also maintained

that the demonstrations in the region "r eached their peak"

on May 18th, which was the date Lin joined in his first

march. These omissions and errors r einforce the

impression that the professors' on-the-gr ound observations

12

may not have been as accurate as those by someone like

Lin who lived all his life in the area.

But the most important defect in the government's

reliance on this article is that the benign police responses

reported by the authors all occurred befor e the massacre in

Tiananmen Square. Events before the massacre are not the

appropriate standard for judging the political fallout

afterwards. It is well understood that the Chinese

government's decision to use force against the protesters in

Beijing was the product of a power struggle within the

government and that those favoring less fr eedom emerged

in control. This shift in leadership inevitably prompted a

more repressive approach by the government. Even the

authors of the article acknowledge that befor e the

massacre, "Fujian officials were r eluctant to take tough

measures against demonstrators, perhaps because they

could not predict the outcome of the crisis." Id. at 134. The

authors also indicated that the situation was much more

serious after the massacre. Even in the location where the

authors were, "there was a realistic acceptance that further

demonstrations would be dangerous. We only witnessed one

more, on 6 June." Id. at 136. The article adds that the

university in Fuzhou closed two weeks early, and while a

short time later national and provincial education

commissions "demanded that schools make students return

to class," many parents were afraid to let their children

return. App. at 137. The authors observed, "By 18 June,

Fuzhou was utterly quiet." Id.

At one point the article does remark, "A few students

were questioned by the police, but we hear d of no arrests."

App. at 142. But there is no reason to think that two

American college professors--who were busily shepherding

a class of students--were especially well informed about

whom the police sought, particularly in a region with 26

million inhabitants in an area the size of for mer

Czechoslovakia. The Chinese government did not make

these college professors privy to their enfor cement plans.

Lin testified credibly that the police served him with a

subpoena six days after the massacre in Beijing, and he

even supplied the subpoena to the immigration judge. He

also testified that he learned that four of his classmates

13

were arrested and punished for their participation in

protests. Significantly, Lin said that at least three of those

arrests occurred in March of 1990, a date well after the

article was written and almost a year after the massacre.

The article also acknowledged that the Chinese

government was keenly aware of public r elations and did

try to manipulate foreigners who were visiting. The authors

commented that when the evening news showed footage of

two of the American students walking in a mar ch with

Chinese students, the professors received a call rebuking

them even before the broadcast was over , and the police

refused to extend any student's visa beyond the end of the

term. And once the massacre occurr ed, with its sea-change

in the government's response, the pr ofessors explained that

they declined to attend a banquet because other for eigners

who had done so in other cities were filmed and televised as

supporters of Beijing. It is also significant that we are not

presented with any evidence vouching for the quality of the

scholarship in this article.

We think Judge Posner's remarks in Galina about the

Board's reliance on one of the State Department's country

reports apply equally here: "The country report is evidence

and sometimes the only evidence available, but the Board

should treat it with a healthy skepticism, rather than, as is

its tendency, as Holy Writ." Galina , 213 F.3d at 959.

Finally, the article and Lin's account are actually consistent

in many respects. Both report that fr equent demonstrations

occurred, and the article also confir ms Lin's claim that the

police had access to videotapes of the demonstrations. They

also agree that the government's r esponse was not as

severe as in Beijing. But much as Galina cautioned that a

country report saying that human rights wer e "generally

respected" did not categorically rule out an alien's claims of

persecution, id., so too the fact that the government did not

kill hundreds of people where Lin lived does not mean that

the government took no repressive action there. The

Board's performance in this case was less than it should

have been, a problem that, as Judge Posner has remarked,

appears to occur too often. See Galina, 213 F.3d at 958

(collecting cases). This court has itself rejected the Board's

credibility judgments in two published opinions,

Balasubramanrim and Senathirajah.

14

At oral argument the government maintained that a year

and a half of incarceration and forced labor for a fifteen-

year old who voiced opposition to the government is not

sufficiently severe punishment to qualify as persecution.

We emphatically disagree. That is a very long sentence for

simply voicing opposition to the government. If in Chang a

one-year or possibly longer sentence was sever e enough to

qualify as persecution for an adult who violated China's exit

laws based on his political beliefs, see 119 F.3d at 1066-67,

we think it follows that the year-and-a-half and possibly

longer sentence that Lin faces also constitutes persecution.

We also think it is worth pointing out that Lin has in

addition broken China's law by fleeing the country and

faces the same prosecution for that offense as the petitioner

in Chang. And unlike Chang, ther e can be no dispute that

Lin fled because of his political beliefs.

IV

We hold that Lin has satisfied the standar ds for both

political asylum and withholding of deportation. For the

foregoing reasons, the Board's or der of March 10, 2000, will

be reversed and remanded for further pr oceedings

consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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