Institutional Form of Persecution

U.S. Court Calls for Deportation of Chinese Christian

Court believes Christian's story, says China has the right to maintain social order.

For more than five years, Xiaodong Li and about half a dozen friends gathered weekly in their hometown of Ningbo, China, to study the Bible and sing hymns. Then one Sunday morning in April 1995, in the middle of one of the services inside Li's apartment, three cops stormed in, handcuffed Li, and escorted him to the local police station.
The officers grabbed his hair and kicked his legs, forcing him to kneel. They hit and shocked him with an electronic black baton until he confessed two hours later to organizing an underground church. Later, they locked him inside a windowless, humid cell with six other inmates until his friend and uncle bailed him out five days later. After his release, police forced him to clean public toilets 40 hours a week without pay. He lost his job as a hotel spokesman.

Li, 22 at the time, likely faced two years in prison. A court hearing was set for later that year. Li began plotting an escape. He applied for a visa. Unaware of Li's looming trial, a government agency issued him a passport. And on November 4, 1995, Li left the country.

Two months later, a Carnival Cruise Lines ship docked in Miami. Li, a food server on board, walked off and never returned. He moved to Houston, hoping to go back to his homeland when China's government eased religious restrictions. Instead, conditions worsened. His friend was imprisoned for participating in their underground church. And police interrogated Li's family, who still live in China, after receiving Bibles, religious magazines, and newspapers that Li had sent them.

In 1999, Li applied for asylum on the grounds that the Chinese government had persecuted him for his religious beliefs. He missed the application deadline, but an immigration judge agreed with his arguments, granting him a status that allowed him to remain in the United States until conditions in China improved.

But in 2003, the Board of Immigration Appeals reversed the judge's decision. It ruled that Li was punished for violating laws on unregistered churches that it said China has a legitimate right to enforce. Li, the board concluded, feared legal action or prosecution, not persecution.

In August, a three-judge panel of the federal Fifth Circuit Court of Appeals affirmed the board's ruling. The decision has alarmed refugee and religious-freedom advocates. They say the ruling, unless overturned, will make it much more difficult for future asylum-seekers to prove religious persecution.

The appeals court decision "sends a chilling message that the United States is beginning to turn its back on people fleeing religious persecution," said Dori Dinsmore, the former advocacy director for World Relief, an international organization that assists refugees.

Last year, U.S. immigration courts completed about 65,000 applications for asylum. Of those cases, about 20 percent of the applicants were granted asylum, the plurality of which came from China. Asylum allows refugees to work in the United States and later apply for permanent residence. To gain asylum, applicants must prove they are refugees escaping persecution because of their nationality, membership in a particular social group, political opinion, race, or religion.

"Ultimately," Dinsmore told CT, the Fifth Circuit's ruling means that many more asylum applicants "will be deported back into the hands of the people persecuting them."

The ruling has broad implications for worshipers across the globe. Ann Buwalda, founder and executive director of human-rights group Jubilee Campaign USA, told CT that adherents of other faiths could soon be denied U.S. asylum because some of their religious practices are considered illegal in their homelands. For example, she pointed to persecuted practitioners of Falun Gong exercises in China, and Muslims who convert to Christianity in Iran.

"Essentially," Buwalda said of the Fifth Circuit ruling, "you've removed religion as a basis of gaining asylum."

Chris Bentley, a spokesman for the U.S. Citizenship and Immigration Services bureau, declined to comment on the impact Li's case could have on other asylum applicants. The agency is "reviewing the judges' decision, and then we'll take appropriate actions," Bentley said.

Li's Houston-based attorney, Garrett White, said his client, now 32, plans to appeal, both to the full ring of Fifth Circuit judges and to the U.S. Supreme Court. The Alliance Defense Fund has joined Garrett as co-counsel.

Persecution a 'Moral Judgment, Not a Legal One'
That an immigration judge on up to the Fifth Circuit found Li's story of prosecution credible makes it all the more perplexing to his backers how the court failed to recognize his persecution.

Li was among 30 million to 60 million Chinese citizens who worship in illegal independent house churches. China officially recognizes five religions: Catholicism, Protestantism, Buddhism, Islam, and Taoism. So-called patriotic religious organizations sanctioned by the government supervise religious groups. Protestants such as Li must register with the Three-Self Patriotic Movement committee. About 10 million to 15 million citizens have registered as Protestants, according to Chinese government reports.

Registered religious groups have faced numerous restrictions for decades, said Caleb Weatherl, a researcher with the China Aid Association, a Texas-based advocacy group for persecuted Chinese Christians. For example, he said all church instructors must be approved by the Chinese government.

The Chinese law against unregistered religious activities is "simply an institutional form of persecution," according to the immigration judge who tried Li's case.

Not so, the U.S. Attorney General's Office argued. In prosecuting Li for engaging in illicit religious activities, China was simply motivated by a desire to maintain social order, not persecute based on his religious beliefs, the office contended.

The line between religious belief and religious activity in Li's case is a fine one, according to the Fifth Circuit judge writing the opinion in the case.

"While we may abhor China's practice of restricting its citizens from gathering in a private home to read the gospel and sing hymns, and abusing offenders, like Li, who commit such acts, that is a moral judgment, not a legal one," he wrote.

Because the Chinese government tolerates Christianity, so long as it's practiced in a registered group, the Fifth Circuit concluded that reasonable and substantial evidence supports the Board of Immigration Appeals decision that Li was punished for illegal activities and not for his religion.

Andrew Painter, senior protection officer for the United Nations High Commissioner for Refugees, said he plans to soon meet with officials from the Department of Homeland Security and Department of Justice to discuss Li's case and the harm the court ruling could cause to future asylum seekers.

Painter said the Fifth Circuit decision "seems to miss the point" and sets an "artificial distinction between religion and religious activities that would not appear to be justified."

Boaz Herzog | posted 09/06/2005 09:30 a.m.
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