China, Religious Prosecution/Persecution, and Asylum

Rick and Rob have written about the Fifth Circuit's Li case, which held that Li would not be persecuted based on his religion if he were returned to China where he would face prosecution if he worshipped in a non-state registered church. 

In the case, the Immigration Judge (IJ) found Li's testimony credible and corroborated by state department findings that the Chinese government allows religious groups to operate only if the group advocates the communist doctrine of socialism.  Based on these facts, the IJ concluded that Li, who worshipped outside of these state parameters, would be subject to persecution if returned to

China

.

The Board of Immigration Appeals (BIA) agreed with the IJ that Li's testimony was credible but reversed on the ground that Li faced prosecution and not persecution if returned to

China

.  The Fifth Circuit affirmed the BIA's decision, concluding that the BIA factual determination - that this is a case of prosecution not persecution -  was a reasonable one. 

I don't know how the case was argued, but it seems to me that the court was confused.  There were no factual issues in dispute. The only issue was the legal conclusion to be drawn from the facts: given the facts would Li face persecution (or prosecution) if returned?  And, that question turns on the interpretation of persecution. 

The BIA defines persecution as "harm or suffering that is inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome" in one of five areas ("on account of"), including religion.  Using this definition it seems clear that Li would suffer persecution if returned to

China

.  The Chinese government is interested in channeling all religion through state supervised filters and making these religions tools of the Communist propaganda machine.  It seeks, by inflicting harm and suffering, to overcome the religious beliefs of anyone who wants to worship outside this system.  This seems like a fairly classic case of persecution.

I don’t know how the case was briefed and argued, but it seems to me that the Fifth Circuit was confused not only about what constitutes religion but also what constitutes persecution and what constitutes a legal (rather than factual) question.  As troubling (or perhaps more troubling):  Why would the Department of Homeland Security appeal this case to the BIA?  I can understand them testing Li’s credibility before the IJ.  But, once Li is found credible, what interest does this administration have in seeing people like Li deported?

Michael S.