Zhen Hua Li v. Attorney General of the United States Immigration & Naturalization Service

SLOVITER, Circuit Judge,

dissenting.

The majority’s concern for the economic plight of Zhen Hua Li is admirable but the question before us is whether that plight is a result of economic persecution. The primary basis for the majority’s determination that there was “persecution” is that Li was terminated from his government position and his wife from hers. Is this court ready to take the position that a government that terminates the employment of one of its workers who violated its laws not once but twice 10 is persecuting that employee by terminating his employment? If the government then declines to hire the employee in another position, is that persecution? Does it become persecution because the government then fines the employee for violation of its laws? And finally, if the employee is unable to find a comparable non-government position, does it .then rise to the level of persecution? ■ I dissent from the judgment of the majority because I believe its opinion is flawed as to the relevant facts and as to the relevant law, particularly in that it departs from this court’s precedent.

I.

To qualify for asylum, the alien must demonstrate that s/he is a “refugee,” which entails establishing that s/he is “unable or unwilling to return to ... that 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.” 8 U.S.C. § 1101 (a)(42) (emphasis added).

The Refugee Act of 1980 introduced the term “persecution” into the context of asylum. Congress ’chose not to define “persecution” in the Refugee Act, nor has any legislative definition been enacted in the interim. In Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the BIA determined that “Congress, in using the term ‘persecution’ in the definition of a refugee under section 101(a)(42)(A) of the Act, intended to adopt the judicial and administrative construction of that term existing prior to the Refugee Act of 1980.” Id. at 223 . 11 The BIA cited a number of administrative and federal appellate decisions which in aggregate stand for the proposition that before 1980 “ ‘persecution’ was construed *171 to mean either a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive. The harm or suffering inflicted could consist of confinement or torture. It also could consist of economic deprivation or restrictions so severe that they constitute a threat to an individual’s life or freedom. ” Id. at 222 (citations omitted) (emphasis added).

Following Acosta, various courts of appeals have evolved separate, yet closely related prudential constructions of the term “persecution.” See Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.1999) (“Congress has not defined the term ‘persecution,’ and the courts thus far have failed to achieve a general consensus on its meaning and scope in this context.”); see, e.g., Mansour v. Ashcroft, 390 F.3d 667, 681 (9th Cir.2004) (“The definition of persecution that our court applies is a creation of purely our own case law.”). The definitions of “persecution” given by these courts range from the more expansive constructions adopted by the Fifth, Seventh, Ninth, and Tenth Circuits, 12 to the much narrower construction used by the Eighth Circuit, see, e.g., Rife v. Ashcroft, 374 F.3d 606, 612 (8th Cir.2004) (“Persecution is the infliction or threat of death, torture, or injury to one’s person or freedom on account of a statutory ground .... ” (citations omitted)). 13

In Fatin v. INS, 12 F.3d 1233 (3d Cir.1993), this court set forth our construction of “persecution.” We defined the term as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom;” a definition essentially the same as that adopted by the BIA in Acosta. Id. at 1240 . We made clear that persecution refers only to “severe” conduct and “does not encompass all treatment our society regards as unfair, unjust or even unlawful or unconstitutional.” Id. We emphasized that were a more expansive definition adopted “a significant percentage of the world’s population would qualify for asylum in this country — and it seems most unlikely that Congress intended such a result.” Id.; see also Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003).

*172 Admittedly, our definition of persecution differs from that of circuits such as the Seventh Circuit, which has stated that “a threat to life or freedom is not necessarily a persecution prerequisite.” Borca v. INS, 77 F.3d 210, 215 (7th Cir.1996). Despite this potential tension, the Fatin standard continues to govern our evaluation of asylum claims. The majority’s effort to cabin Fatin to the situation of an Iranian woman being forced to wear a chador and to comply with other religious laws belittles the force of that precedential opinion. In an unbroken line of cases, we have applied Fatin- to fact patterns far afield from the requirement to wear a chador and to comply with- other religious law. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 93 (3d Cir.2004) (applying Fatin standard to a claim of éthnic and. religious persecution in Ukraine); Chen v. Ashcroft, 381 F.3d 221, 231 (3d Cir.2004) (applying Fatin standard to a claim of persecution under China’s population control program); Lukwago v. Ashcroft, 329 F.3d 157, 167-68 (3d Cir.2003) (applying Fatin standard to a claim by petitioner that he was forcibly conscripted into a guerilla organization); Lin v. INS, 238 F.3d 239, 243-44 (3d Cir.2001) (applying Fatin standard to petitioner’s claims that he had a well-founded fear of future persecution for his participation in Tiananmen Square demonstrations); Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.1997) (applying Fatin standard to petitioner’s claim that he. has a well-founded fear of future persecution, if returned to China, on the basis of his political opinion).

This court, as well as others, has recognized that following the 1965 amendment to the INA deleting the requirement that persecution be “physical,” INA, Pub.L. No. 89-236, § 11 (f), 79 Stat. 918 (1965), the definition of “persecution” encompasses not only physical persecution but also economic persecution. See, e.g., Ahmed, 341 F.3d at 217 -18 Since then, several circuits have adopted the formulation first coined by the Ninth Circuit in Kovac v. INS, 407 F.2d 102 (9th Cir.1969), that a “deliberate imposition of substantial economic disadvantage upon an alien for reasons of race, religion, or political opinion” constitutes persecution. Id. at 107 (exploring economic disadvantage in the withholding of removal context) (emphasis added); see Maj. 167 (citing cases from the Second, Fourth, Fifth, Seventh, and Ninth Circuits). 14

To the extent that the majority’s adoption of the Ninth Circuit’s Kovac standard suggests a weakening of the standard previously. applied to find “persecution,” it is unwarranted. The standard for “economic persecution,” must accord with the overarching prudential standard adopted for persecution . claims in general. In other words, a standard for economic persecution must not be more expansive than the standard for physical persecution. The 1965 amendments do not reveal a contrary congressional intent. Thus, whereas our definition of persecution in Fatin may contain language suggesting that it is more exacting than the standard of persecution adopted by the Ninth Circuit, so also must be our definition of economic persecution. 15

*173 In expressing our own formulation of economic persecution, see Acosta, 19 I. & N. Dec. at 222 , we should give due deference to the reasonable interpretations of the BIA. 16 See Chevron, 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984); see, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 448 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987) (“the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program”); Smriko v. Ashcroft, 387 F.3d 279, 297 (3d Cir.2004) (“We are required to ‘accord [] Chevron deference [to the BIA] as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication.’ ” quoting Aguirre-Aguirre, 526 U.S. 415, 425 , 119 S.Ct. 1439 , 143 L.Ed.2d 590 (1999)); Bamidele v. INS, 99 F.3d 557, 561 (3d Cir.1996) (“We, of course, also acknowledge the general applicability of Chevron’s analysis to our review of an agency’s interpretations of its governing statutes.”).

The majority opinion, in defining economic persecution as “the deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom,” purports to recognize the interpretation given by the BIA and by this court in Fatin . Maj. at 168. However, it is disingenuous to use the words of the governing precedent to give the appearance of following in that path while in reality applying a far different standard. Rather than considering whether the restrictions on the Lis were “so severe that they constitute a threat to life or freedom,” the majority applies instead the more expansive standard of “substantial economic disadvantage” used by the Ninth Circuit in the Kovac case. That is simply not the same standard as “a threat to life or freedom,” and smoke and mirrors cannot make them comparable. 17 In any event, the facts of record show that under any court’s definition of economic persecution, Li has not made the necessary showing.

II.

A review of the record puts Li’s position in a far different light than does the majority’s opinion. Even assuming that we must take Li’s credibility as established, his own testimony and affidavit show that the circumstances surrounding his asylum claim do not amount to economic persecution.

Both he and his wife left their jobs in anticipation of, not as a result of, the government’s response to their non-compliance with the government’s population control policy. The majority itself holds that the unfulfilled threats described by Li do not constitute past persecution. Maj. at 164-65. It follows that such threats can *174 not be used to excuse the Lis’ unauthorized departure from their jobs. Li’s testimony makes clear that he ran- away from his job after his fourth child was born because he was afraid he would be beaten, as happened to a factory worker in a neighboring factory after he had a fourth child.

A. We were frightened and the officials also told us, told us if I don’t, if we don’t go to abortion then we will be, end up like them, we’ll be captured and will be beaten up.

Q. Okay. So, what did you do next?

A. Not, not long before my, the child was born I have decided to leave that factory.

Q. And, were did you go?

A. Then I, I went to Woo Haun (phonetic sp.) City and the Chung Zua (phonetic sp.) City to hide. To hide away.

App. at A-31.

Li’s affidavit makes clear that it was after he ran away and hid and after the fourth child (a third boy) was born on April 19, 1989 that his wife received notice that he was officially fired from his job on April 30,1989. App. at A-103.

Li’s wife also left her job at the hospital where she worked, despite the fact that her job was never officially terminated. Li’s affidavit states:

My wife, was also being pressured by her superiors at her workplace and threatened with fines and other punishment, so she took our three kids to the countryside to stay with a friend. We could not go into hiding together because in order to earn money I had to stay close to the city where there was no place there for my wife and children to stay. My wife was unable to earn money because of her pregnancy and the need to take care of our children.

App. at A-103. Although the Lis were threatened with the possible termination of their jobs, they were not terminated until they actually left. The termination of a departed employee hardly constitutes persecution.

There is also no evidence that Li was “blacklisted;” as the majority states. He did not apply for a government job in any other region of China, which is vast, nor did he apply for a private industry job. He merely assumed he would be unable to find one if he had applied.' App. at A-33 (“[bjecause I have violated the birth control policy, most companies would not hire me.” (emphasis added)). ’

The majority portrays the fine imposed on Li as draconian. Li’s own testimony does hot so portray it. The Lis apparently anticipated that violation of China’s population control policy would be followed by imposition of a fine, but the amount of Li’s fine after’ the birth of his third child does not appear to have created the economic hardship the majority assumes. Li’s testimony makes that clear:

Q. Did you pay the fine, this 1200 yuan fine, did you ever pay that fine?

A. Yes, I paid that.

Q. And, how did you manage to pay a fine that was so large?

A. At that time me and my wife both working and so we had some savings.

Q. And, where did you pay that fine?

A. It’s about, over 10, 20 days after the third child was born,- so we went to pay the fine.

Q. That was ’87?

A. Yes.

App. at A-55.

The majority in its discussion of the effect of the 1200 yuan fine that constituted the equivalent of twenty months of Li’s salary never acknowledges that Li’s wife also worked, and the record does not show *175 the amount of her earnings. Nor does the majority even consider that as a result of the dual income the family may have had savings, a fact to which Li testified. It follows that while the fine may have been substantial, the majority’s characterization of the fine as “an extremely onerous fine in relation to Li’s income” is not supported by the record. Maj. at 168.

The other economic effects of Li’s violation of China’s population control policy also do not rise to the level of persecution under any court’s standard. Once the Lis left their positions, it is not surprising that they would also have forfeited some of the benefits that accrue to government workers, such as health benefits, school tuition and food rations. The taking of some of the Lis’ property is deplorable, but the majority makes more of it than does Li. Li’s affidavit states that he was informed that officials confiscated their “refrigerator and television,” which he noted was private property purchased with their own money. App. at A-103. The latter is significant because the Lis lived in an apartment provided by the factory (“we all live in the factory’s dorm, the factory’s assigned apartments....”, App. at A-37) and there is nothing to show whether the officials who confiscated the refrigerator and television believed that those items were provided by the factory. Thus, while the economic restrictions imposed on Li may have been “substantial,” any argument that they were so severe as to constitute threats to life or freedom is undercut by Li’s own assertion that during the fifteen months between the birth of his fourth child and his flight to the United States, he was able to support his family through temporary unofficial jobs. 18 There is an evident contradiction in the majority’s conclusion that “while Li’s family did not reach near-starvation levels,” the economic disadvantage he purportedly suffered “could threaten his family’s freedom if not their life.” Maj. at 169.

Finally, although we may not agree with China’s coercive population control policy, a policy I note that was instituted to avoid the true starvation that would result for many of its 1.3 billion people were the population growth to continue unabated, I believe that the record substantially supports the BIA’s conclusion that “[a] fine, loss of a particular job, and confiscation of some personalty do not rise to the level of persecution, even when viewed in the aggregate.” App. at A-5.

III.

I cannot refrain from a personal note. It appears that our immigration policy has significantly changed from the welcoming words on the Statute of Liberty. 19 As much as some of us may wish to return, at least in part, to the days of more open doors, it is our duty as federal judges to follow the immigration policies enacted by Congress. For the foregoing reasons, I would deny the petition for review.

. The majority assumes that the applicable policy at the relevant time limited the family to two children. See Maj. at 160. From that we deduce that a family with four children, as the Lis admittedly have, has violated the policy twice.

. The BIA reasoned that "[i]t is a basic rule of statutory construction that words used in an original act or section, that are repeated in subsequent legislation with a similar purpose, are presumed to be used in the same sense in the subsequent legislation.” Acosta, 19 I. & N. Dec. at 223 (citing Lorillard v. Pons, 434 U.S. 575, 581 , 98 S.Ct. 866 , 55 L.Ed.2d 40 (1978)). Only "2 years before enacting the Refugee Act of 1980, Congress chose not to define the word persecution’ when using it in other provisions of the Act because the meaning of the word was understood to be well established by administrative and court precedents.” Id.

. See, e.g., Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir.2004) ("[W]e have held that a finding of persecution 'requires the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive' and must entail ‘more than just restrictions on threats to life and liberty’ ” (citing Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir.2001))); Borca v. INS, 77 F.3d 210, 215 (7th Cir.1996) ("a threat to life or freedom is not necessarily a persecution prerequisite.”); Abdel-Masieh v. INS, 73 F.3d 579, 583-84 (5th Cir.1996) (defining persecution as "[t]he infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive {e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments.”); Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995) (defining persecution as "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” (citations omitted)).

. Other courts of appeals evaluate claims of persecutions on a case-by-case basis, without adopting a formalized working definition of the term. See, e.g., Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir.2004) ("This Court has held that persecution ... requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,, infliction of harm, or significant deprivation of liberty.” (internal quotations omitted)); Manzoor v. United States Dept. of Justice, 254 F.3d 342, 346 (1st Cir.2001) ("[W]e can say that while persecution is not restricted to threats to life or freedom, it requires more than 'mere harassment or annoyance.' " (citations omitted)); Gonzalez v. Reno, 212 F.3d 1338 , 1355 (11th Cir.2000) (citing cases from the Seventh and Ninth Circuit);

. Kovac was later extended to the asylum context by Borca v. INS, 77 F.3d 210, 217 (7th Cir.1996).

. We note that the Kovac standard for economic persecution mirrors the Ninth Circuit’s relatively expansive standard for persecution in general. See, e.g., Ghaly, 58 F.3d at 1431 (9th Cir.1995) (defining persecution as "the infliction of suffering or harm upon those who differ (in race, religion or political opinion)) in a way regarded as offensive.” Likewise, other circuits that have adopted the Kovac- standard appear to have broader definitions of persecution than the standard adopted by this Court.

. The BIA stated in Acosta:

Prior to 1980, "persecution” was construed to mean either a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive. See, e.g., Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969); Matter of Maccaud, 14 I & N Dec. 429, 434 (BIA 1973); Matter of Dunar, supra, at 320; Matter of Diaz, 10 I & N Dec. 199 , 200 n. 1 (BIA 1963); see also Matter of Laipenieks, 18 I & N Dec. 433, 456-57 (BIA 1983). The harm or suffering inflicted could consist of confinement or torture. See Blazina v. Bouchard, 286 F.2d 507, 511 (3d Cir.1961). It also could consist of economic deprivation or restrictions so severe that they constitute a threat to an individual's life or freedom. See, e.g., Dunat v. Hurney, 297 F.2d 744, 746 (3d Cir.1962); Matter of Saloma, 11 I & N Dec. 536 (BIA 1966); Matter of Eusaph, 10 I & N Dec. 453, 454 (BIA 1966).

19 I. & N. Dec. at 222 .

. Indeed the majority’s factual analysis cites only the Seventh Circuit's decision in Borca and the Ninth Circuit’s decision in Kovac.

. The majority relies heavily on Borca, 77 F.3d at 215 , and Kovac, 407 F.2d at 104 , where the Seventh and Ninth Circuits found important, for purposes of evaluating whether petitioners had suffered economic persecution, the fact that petitioners could not find work in the occupations in which they had specialized training. Under our doctrine of economic persecution, which requires restrictions so severe that they constitute a threat to an individual’s life or freedom, Borca and Kovac are not controlling.

. "Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore, Send these, the homeless, tempest-tossed, to me: I lift my lamp beside the golden door.” Emma Lazarus