March 24, 2009Immigration judges wrongly denied asylum to three Chinese Christians who suffered alleged persecution at the hands of Chinese authorities after the trio supplied food and clothing to North Koreans fleeing to China.
The Chinese nationals fled to the United States after they were arrested and suffered alleged torture at the hands of Chinese officials for providing humanitarian assistance to North Koreans seeking refuge in China, according to the 9th U.S. Circuit Court of Appeals Monday.
The immigration judge in the lead case of three consolidated appeals rejected asylum finding the aliens were complaining of treatment for prosecution of criminal acts in China, not persecution for political beliefs.
But Judge Kim Wardlaw pointed out there is no Chinese law against providing the help to Korean refugees, only a national policy discouraging it.
"We hold that when a petitioner violates no Chinese law, but instead comes to the aid of refugees in defiance of China's unofficial policy of discouraging such aid, a [Board of Immigration Appeals] finding that the petitioner is a mere criminal subject to legitimate prosecution is not supported by substantial evidence," Wardlaw wrote.
The decision "will help in an area of the law that was nebulous," said Joseph Porta, of Cohen, Porta & Kim in Los Angeles and attorney for Xun Li, one of the three Chinese seeking U.S. asylum.
The appeals court was making a legal distinction, is it persecution or prosecution, said Porta. The question comes up regularly in asylum cases, he said.
Charles Miller, Justice Department spokesman said, "We're going to review the decision and make a determination how to respond."
Li, a Chinese native citizen of North Korean descent, began helping Korean refugees after he converted to Christianity, he told the court. The Chinese arrested him in 2002 during a church service in a private home. Li alleged police beat, kicked and slapped him during an interrogation seeking names of others involved. He was then allegedly stripped to his underwear and left handcuffed to an electric pole in frigid weather for an hour in an effort to get him to talk, the court said.
He fled to Los Angeles after his family paid a bribe to police at a labor camp to free Li, according to the court opinion, Li v. Holder, 05-70053.
The immigration judge found Li's testimony lacked credibility but Wardlaw found the judge's "scatter-shot justifications for his adverse credibility determination, however, are riddled with speculation, and are based on minor inconsistencies that do not go to the heart of the claim."
The appeals court said the case back to the lower court to determine whether circumstances in China have changed sufficiently to eliminate the aliens' fear of persecution. Porta said he did not believe anything has changed for those who harbor North Koreans in China.
In the other two cases, Jarrett Green of New York-based Skadden, Arps, Slate, Meagher & Flom's Los Angeles office represented He Yun Fang and Miguel Olano of Vargas & Assoc. in Santa Clarita, Calif. represented Xiangzhe Cui.