“Persecution” is defined as “to cause to suffer because of belief.” Merriam-Webster’s Collegiate Dictionary 866 (10th ed. 1993).  Chinese government officials arrested Ting Xue for attending an unregistered Christian church, hit him with an electrically charged baton, threw him in a squalid cell for four days, and threatened him with serious punishment if he ever repeated the offense. When some of his fellow church members were caught shortly thereafter practicing underground, they arrested them and sentenced them to one year in prison. Fearing that he would soon suffer the same punishment simply for freely exercising his faith, Mr. Xue fled to the United States and applied for asylum. One would think that, if anyone had suffered because of his beliefs, it would be Mr. Xue. Nonetheless, the Board of Immigration Appeals dismissed his appeal from the immigration judge’s denial of asylum.

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The Chinese government fears organizations—like Western religions—that might undermine its tight control over the country and its citizens. Accordingly, it has instituted its own state-controlled protestant Church—the “Three-Self Patriotic Movement”—which “manipulates and modifies doctrine and theology in an effort to eliminate elements of Christian faith that the Communist Party regards as incompatible with its goals and ideology.” So, for example, the Three-Self Patriotic Movement teaches that loyalty to the State and the Community Party come before loyalty to God. And the top leadership of the Movement has even considered simply getting rid of the book of Revelation. Unsurprisingly, the Chinese government bans unregistered or “house” churches and seeks them out in order to arrest, imprison, and torture their leaders and members. 

Chinese police caught wind of Mr. Xue’s house church one day and raided it—imprisoning and interrogating all its members.  During his interrogation, Mr. Xue was hit across the head and beaten with an electrically charged baton. Afterward, the police threw him into a squalid and crowded jail cell with four other men where they shared a single wooden bucket for a toilet—a bucket not emptied during Mr. Xue’s entire imprisonment. The officers routinely mocked Mr. Xue and his companions, referring to themselves as the prisoners’ “God,” claiming the power to refuse to feed them, and taunting them to call on God for rescue.  After four days in these conditions, Mr. Xue’s family obtained his release at a costly price—15,000 yuan—which amounted to over half of Mr. Xue’s yearly 25,000 yuan salary. The government also forced Mr. Xue to sign a “guarantee letter”—a pledge not to attend underground church meetings lest he face severe punishment and required him to report to the police station weekly to ensure that he did not attend again a house church.

After a few weeks, however, Mr. Xue’s conscience got the best of him and he resumed practicing his faith underground.  One day, while Mr. Xue happened to be stuck at work putting in overtime, the police again raided his church.  This time the repeat offenders (which would have included Mr. Xue) were sentenced to one year in jail. Terribly frightened by this close brush with the law, Mr. Xue went into hiding and eventually fled China for the United States, seeking religious asylum. 

Despite finding Mr. Xue credible, the Board dismissed his appeal from the immigration judge’s denial of asylum. The Board offered three arguments in support of its opinion. First, Mr. Xue’s reliance on Kazemzadeh v. U.S. Attorney General, 577 F.3d 1341 (11th Cir. 2009), which held that being forced to practice underground constituted persecution, at least where practicing openly could lead to his execution, was misplaced. Second, Mr. Xue did not suffer severe enough harm in the past to prove persecution—which would entitle him to a presumption of future persecution. Third and finally, Mr. Xue did not prove that the Chinese government had a sufficient interest in him such that he had a reasonable fear of persecution if he returned to China.

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The Board’s three arguments each suffer from their own flaws. Taken together, they represent an affront to religious liberty, the rule of law, and human rights.

Forced clandestine practice, backed up by the coercive power of the state, amounts to persecution.  Most fundamentally, the Board misunderstands the nature of persecution. Forced clandestine practice—backed up by serious punishments such as imprisonment—amounts to religious persecution. 

The Board rejected Mr. Xue’s argument along these lines because, in its view, Kazemzadeh—the leading case adopting this rule—was distinguishable because the petitioner there risked death by openly practicing his religion while Mr. Xue faced “only” imprisonment. This attempt to distinguish Kazemzadeh is flawed, however; by its own terms, Kazemzadeh applies whenever a religious adherent is forced to worship in hiding upon pain of severe punishment—death is not a necessary prerequisite for persecution under this theory.  See, e.g., Kazemzadeh, 577 F.3d at 1354 (explaining that “having to practice religion underground to avoid punishment is itself a form of persecution”). This distinction, moreover, makes no sense given that a petitioner can prove persecution even when he suffers punishments well-short of death. See, e.g., Zviagilsky v. INS, No. 98-9528, 1999 WL 317598, at *4 (10th Cir. May 20, 1999) (“[I]n order to be an act of persecution, the behavior in question must threaten death, imprisonment, or the infliction of substantial harm or suffering.” (quoting Sharif v. INS, 87 F.3d 932, 935 (7th Cir. 1996) (emphasis added)); see also Ahmed v. Gonzales, 467 F.3d 669 (7th Cir. 2006) (persecution includes imprisonment).   

Indeed, the rule that being forced to practice one’s religion underground upon pain of serious punishment constitutes persecution is well-supported by all the traditional sources of interpretation. As a matter of plain meaning, Judge Posner has explained, “it is virtually the definition of religious persecution that the votaries of a religion are forbidden to practice it.” Bucur v. INS, 109 F.3d 399, 405 (7th Cir. 1997). And it is the definition of persecution “to cause to suffer because of belief.” Merriam-Webster’s Collegiate Dictionary 866 (10th ed. 1993).

Unsurprisingly, then, all four circuit courts to have faced the question have concluded that a government persecutes an adherent by forcing him to exercise his religion in secrete or face serious punishment. See, e.g., Zhang v. Ashcroft, 388 F.3d 713, 719 (9th Cir. 2004); (“[T]o require [petitioner] to practice his beliefs in secret is contrary to our basic principles of religious freedom and the protection of religious refugees.”); Kazemzadeh, 577 F.3d at 1354 (majority opinion) (“We agree with the decision of the Seventh Circuit that having to practice religion underground to avoid punishment is itself a form of persecution.”) & 1360 (Marcus, J., specially concurring) (“Forced clandestine practice amounts to religious persecution all by itself; it should not be the guarantee of safety to which we relegate genuine [adherents] who have attracted the attention of a totalitarian state.”); Muhur v. Ashcroft, 355 F.3d 958, 961 (7th Cir. 2004) (explaining that a petitioner “is entitled to asylum if the denial of asylum will land her back in Eritrea, because she has a well-founded fear of being persecuted by the Eritrean authorities unless she abandons or successfully conceals her religion”); Woldemichael v. Ashcroft, 448 F.3d 1000, 1003 (8th Cir. 2006) (getting at the point from a different angle by explaining that “[a]bsent physical harm, subjecting members of an unpopular faith to hostility, harassment, discrimination, and even economic deprivation is not persecution unless those persons are prevented from practicing their religions or deprived of their freedom” (emphasis added)).   

In determining who qualifies as a refugee, moreover, the Supreme Court has stated that the United Nations’ Handbook on Procedures and Criteria for Determining Refugee Status provides “significant guidance.”  INS v. Cardoza-Fonseca, 480 U.S. 421, 438-39 n.22 (1987).  And the Handbook confirms that being forced to practice one’s religion underground amounts to persecution: religious persecution includes “prohibition of membership of a religious community, of worship in community with others in public or in private, of religious instruction, or serious measures of discrimination imposed on individuals because they practice their religion, [or] belong to or are identified with a particular religious community.”  United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 126 (2011), http://www.unhcr.org/3d58e13b4.pdf.  And the legislative history of the Refugee Act, which provides the foundation for the modern asylum regime, reveals an intent to conform U.S. asylum law to the United Nations Convention and Protocol Relating to the Status of Refugees, which the Handbook interprets.  See Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No. 6577, 19 U.S.T. 6223 (entered into force Nov. 1, 1968). 

Finally, this rule best accounts for the purposes of the asylum regime: to give relief to those who are persecuted.  As Judge Posner has recognized, in modern times governments—wary of attracting attention from international human rights organizations—have good reason to disfavor groups precisely by driving them underground, where their beliefs will be hidden and not risk “infecting” the general public.  See Muhur, 355 F.3d at 961.  Indeed, the Board’s ruling is particularly perverse.  Victims of the harshest persecution—who merit asylum the most—are most likely to hide and hence would be least likely to qualify for asylum.  See Iao v. Gonzales, 400 F.3d 530, 532 (7th Cir. 2005) (“She might be able to conceal her adherence to Falun Gong from the authorities, but the fact that a person might avoid persecution through concealment of the activity that places her at risk of being persecuted is [not] inconsistent with her having a well-founded fear of persecution.  On the contrary, it is the existence of such a fear that motivates the concealment.” (citations omitted) (emphasis added)).

So why did the Board rule the way it did?  My suspicion is that the Board was worried that if the Board found Mr. Xue to have suffered persecution then any Chinese underground Christian would be entitled to asylum in the United States.  But that fear misunderstands the nature of Mr. Xue’s argument.  His rule would not entitle every underground Chinese Christian to asylum.  An asylum seeker must still make a particularized showing in every case that he is forced to practice his religion in hiding or face a sufficiently serious punishment.  Kazemzadeh, 577 F.3d at 1361-62 (Marcus, J., specially concurring).  And the Handbook confirms: “Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status.  There may, however, be special circumstances where mere membership can be a sufficient ground.”  Handbook, supra, at 16.  Such a particularized showing could include, by way of example, demonstrating past harm on account of religious practice (such as a prior arrest and imprisonment) or evidence of the government’s individual interest in the asylum seeker (such as visiting his family to question them or forcing him to sign a guarantee letter). 

Being beaten with an electrical baton and imprisoned constitutes persecution.  The Board’s decision on past persecution, moreover, is inconsistent with the plain meaning of persecution and the relevant case law.  In the Tenth Circuit, where this appeal is pending, persecution is defined as “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive,” and requires “more than just restrictions or threats to life and liberty.”  Ritonga v. Holder, 633 F.3d 971, 975 (quoting Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004)).  “Mere ‘denigration, harassment, and threats’ are insufficient.”  Zhi Wei Pang v. Holder, 665 F.3d 1226, 1231 (10th Cir. 2012) (quoting Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005)).

The Chinese government crossed this line.  It physically injured Mr. Xue—slapping him across the head and hitting him with an electrically charged baton.  That harm is alone severe enough to amount to persecution, “even when there are no long-term side effects and the prisoner does not seek medical attention.”  Quan v. Gonzales, 428 F.3d 883, 888 (9th Cir. 2005).  He also suffered significant psychological harms—he was forced to abandon or hide his most deeply held religious beliefs or else face imprisonment at the hand of the government and was forced to endure indoctrination during his weekly reporting at the police station.  See, e.g., Mansour v. Ashcroft, 390 F.3d 667, 677 (9th Cir. 2004) (explaining that persecution includes emotional or psychological harm).  Lastly, he suffered significant pecuniary harm—his family paid 15,000 yuan to free him from jail—over half of Mr. Xue’s annual 25,000-yuan salary.  See Karki v. Holder, 715 F.3d 792, 805 (10th Cir. 2013) (recognizing that confiscation of property may constitute persecution).  Who among us wouldn’t conclude that this sort of mistreatment constitutes “suffering or harm” based on religious belief instead of mere “restrictions or threats”?  Indeed, if this does not qualify as “suffering or harm” then what would?  The Board’s opinion holds asylum petitioners to a standard far higher than the relevant case law or plain meaning of persecution demands.

A ten-percent chance of persecution renders a fear of persecution well-founded.  Finally, the Board’s holding with respect to future persecution contradicts the Supreme Court’s guidance in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), which explained that even a ten-percent chance of persecution establishes a well-founded fear of persecution.  The Board’s reasoning, moreover, relies on legally erroneous inferences. 

To begin with, the correct legal framing of the problem is if Mr. Xue were to return to China would he have a reasonable fear of persecution.  And given that he was already actually persecuted for his religious faith and forced to sign a guarantee letter his fear was objectively well-founded.  Indeed, when he stopped reporting to the police station government officials visited his family several more times to inquire about his whereabouts. 

The government’s arguments to the contrary also suffer from legal flaws.  The Board argued that Mr. Xue left China using his own passport and that meant the government were no longer interested in him.  But there are many cases explaining that governments want dissidents to flee and so cannot support the Board’s inference.  See, e.g., Mema v. Gonzales, 474 F.3d 412, 419 (7th Cir. 2007) (collecting cases relying on this inference).  The Board also held that Mr. Xue’s fear was not well-founded because his family continued to practice in hiding without being caught by the Chinese government.  But this fact would diminish the reasonableness of Mr. Xue’s fear of future persecution only if his family were similarly situated to him—and the case law establishes that family members are not a relevant comparator when they have not been caught practicing their religion in hiding but the asylum seeker has.  See, e.g., Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003); see also Hadjimehdigholi v. INS, 49 F.3d 642, 649 (10th Cir. 1995).

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David Feder is court-appointed pro bono appellate counsel to Mr. Xue in connection with his appeal in the U.S. Court of Appeals for the Tenth Circuit.  Mr. Xue has consented to the publication of this blog post.

Mr. Feder earned his J.D. summa cum laude from Harvard Law School in 2014. He previously served as a judicial law clerk to Judge Gorsuch and currently is an associate at Munger, Tolles & Olson in Los Angeles. He is also currently an Olin-Searle Fellow at Harvard Law School and he thanks the Olin-Searle Fellows in Law program for support in writing this post. This post reflects the views only of the author and not any employer—past or present. Readers may contact the author at dfeder@jd14.law.harvard.edu.