Jian Qiu Liu v. Holder
2011 U.S. App. LEXIS 1385
| 2d Cir. | 2011Background
- Liu, a native and citizen of the PRC, sought asylum in the United States; IJ granted asylum on January 28, 2008; BIA vacated and reversed on November 30, 2009.
- Liu testified that after his daughter was born, officials sought to compel his wife to wear an IUD; wife became pregnant, leading Liu to flee with his wife to Liu's aunt's home about four hours away.
- On March 13, 2003, family planning officials forcibly entered the aunt's home, demanded a birth permit, and sought to take Liu's wife for a forced abortion; Liu resisted and was assaulted by officials.
- During the confrontation, Liu was slapped and then punched by several officials; police were summoned after his wife was taken to be aborted, resulting in Liu's two-day detention by local police.
- Liu left China in May 2006, approximately three years after the incident; the IJ found his testimony credible and deemed the mistreatment to be persecution entitling a presumption of future persecution, which the BIA later rejected.
- The central legal issue concerns whether the mistreatment Liu suffered constitutes persecution, and whether the context of arrest/detention affects that determination, under the standards governing asylum and related review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Liu satisfied asylum on account of resistance to family planning policy | Liu contends the beating and detention occurred in the context of his resistance, constituting persecution. | BIA found no persecution given the harm was minor and prior to arrest/detention, not rising to persecution. | BIA correct; no persecution established |
| Whether the context of arrest/detention can convert mistreatment into persecution | Mistreatment in the arrest/detention context could amount to persecution under Beskovic. | Context matters, but here the harm before arrest was minor and did not reach persecution; context does not mandate per se persecution. | No persecution; context not decisive here |
| Whether remand would be futile or required to reassess persecution | If the BIA erred, the case should be remanded to apply the Beskovic framework properly. | Remand would be futile; the context and degree of harm would still fail to meet persecution. | Remand would be futile; denial affirmed |
Key Cases Cited
- Beskovic v. Gonzales, 467 F.3d 223 (2d Cir. 2006) (contextful analysis of persecution when harm occurs in arrest/detention)
- Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332 (2d Cir. 2006) (difference between harassment and persecution; degree depends on case-by-case context)
- Ai Feng Yuan v. U.S. Dep't of Justice, 416 F.3d 192 (2d Cir. 2005) (detention brief with no lasting effects may not constitute persecution)
- Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d Cir. 2007) (persecution standard in context of factual circumstances; in banc discussion)
- Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315 (2d Cir. 2006) (remand framework; potential for futility in reconsideration)
- Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391 (2d Cir. 2005) (remand/futility considerations in asylum cases)