Fengchu Chang v. Immigration & Naturalization Service

appellate say so at not hesitate should

level, is clear. the record Petitioner, CHANG,

Fengchu & NATURALIZATION

IMMIGRATION

SERVICE, Respondent.

No. 96-3140. Appeals, States Court

United

Third Circuit. 13, 1996.

Argued Nov. July

Decided that because faces

appeal, reasoning “general only a law of “persecution” applicability,” he does not fear disagree political opinion. We based on his Chang’s petition. grant will

I. FACTS July in of leaving China Before simultaneously as the chief Chang worked company major engineer of a state-owned employees, as than 3000 director with more M. Kascavage, Jane Sehoener A. Martin with more than a state Research Institute of PA, for Petitioner. Philadelphia, (argued), employees, as senior consultant to and Attor- Acting Assistant Hunger, W. Frank Machinery Electronics. Ministry' of and the Division, Smiley, General, E. Joan Civil ney duties, professional In the course of his Counsel, P. Linde- Michael Litigation Senior confidential technical Chang had access to Miles, Arnold, B. mann, M. Vernon Lisa projects. about information state Division, Civil Henley (argued), Madeline of China on Chang had traveled outside Justice, Office Department of States United occasions, always in connec- previous several DC, Washington, Litigation, Immigration of positions he held in with the technical tion Respondent. for country, to this the visit China. For LEWIS, ALITO, and ROTH Before: delega- as head of the Chang was selected Judges. by Circuit capacity he was In this briefed tion. security agent instructed to moni-

special delegates other and to tor the behavior THE COURT OF OPINION activity to the any suspicious report ROTH, Judge: Circuit peo- eight delegation Embassy. The fifty-five year old native Chang, a Fengchu Chang, visited the United including ple, China, asylum and with- citizen of seeks purchase tech- in connection with States fear of on his holding deportation based company from an Ameri- by Chang’s nology violating State Secu- China’s Corporation. company, Pangborn can engineer for a Chang, chief rity Law. the delegation the arrival of the After the delega- company, a technical led state-owned Chang be- July Sep- July through United States from tion members suspicious several came of this During the course of 1992. tember remaining in (1) considering by delegation not were visit, law Chang violated Chinese August, beginning of At the the United States. authorities to the Chinese reporting telephone conversation in Chang overheard delegation whose misconduct his members possibility delegate discussed (under govern- which one the Chinese by the rules set Chang States. remaining in the United ment) in the they would remain suggested making person another (2) the same States, FBI observed by meeting with an United During later. weeks phone call about three company American arranged agent as Chang September, (3) week electing to the second delegation, and hosting the Pangborn that an- officials asylum learned from and to seek stay in the United States them and in- had met with delegate was in other FBI that he being told after States. stay in United tended violations Chi- “danger.” Based on these delegate suspicious of a third also became law, reprisal if he returns Chang fears nese (“IJ”) States and the United contacts in who had Immigration Judge to China. procedures checking the said that she asylum and for application for his denied in the United States studying deportation. The Board withholding of (“BIA”) future. his Appeals dismissed Immigration delegation, Chang gration was re- officer in

As head of the Baltimore. Based on that suspicions quired report him, to the Chinese meeting what O’Neill had told Embassy. delegates Not certain Chang applied political asylum. Sep- On actually planned to remain the United delegation tember returned to China consequences States and fearful of the Chang. without Unknown to at that would suffer the hands of the Chinese time, one other member also did not return them, report if he did did delegation with the to China. suspi- either their conduct or his Chang’s request asy- denied INS Embassy. cions to the Another member of July charged Chang lum and on delegation, suspected who also that one visa, overstaying expired which had delegates might stay or more in the United September deport- conceded States, call told the Chinese Em- ability requested political asylum but bassy. He also told that he would withholding deportation. At hearing a report Chang government to the Chinese Immigration Judge before the on June upon Chang return to China because had not 1995, Chang persecu- testified that he fears complied of the gov- with the orders if tion he is returned to China based on his ernment. secrets, access to promi- Chinese state on his Chang nonetheless still intended to return China, position nent in on his contact with September, in China the middle even FBI, on his decision not to return to becoming suspicious after that other dele- asylum China and to seek in the United gates stay might in the United States and States, report and his failure to the mis- despite staying his concern that their and the delegates. conduct of other If he is returned delegate’s other to the China, Chang fears that he will lose his upon him would create risks for return to job, imprisoned, that he will be and that his September, China. about the 17th of On family will suffer leaving retaliation. Since Chang explained engineer his situation to an China, Chang spoken with his wife and Pangborn, at in a conversation initiated sister and has learned that his wife has been engineer Chang who had noted that was questioned by forced to retire and has been distraught. Chang told the if American that security agents, that the local agen- delegates some of the remained in the United cy passport, has revoked his that his defec- States, (Chang) problems upon face would tion foreign has been treated as a affairs return to China. incident, photo and that his is on at record Pangborn suggested, officials and ar- Ministry sister, Security. of State His for, ranged Chang Barry to meet with hometown, high position who holds a in their O’Neill, person Chang a who understood to Chang advised not to return to China be- in Hagerstown Only work Government. security agency cause the local “waiting is Chang later did learn that O’Neill worked you.” Investigation. the Federal Bureau of Chang explained safety upon his concerns about his Immigration Judge The denied return questioned to China. O’Neill petition in a delphie opinion. somewhat oral family about his work and his and if he asked Judge prosecution reasoned that “is not had access to state secrets. persecution prosecution unless that is severe motivated,” politically or somehow and that if September

On sug- O’Neill’s “the is severe for gestion, Chang met with O’Neill a second crime, punish- one must look to see if that Pangborn report- time at the offices. O’Neill imposed ment true,” political was because of “everything ed to some danger,” Judge “in motive.” The only thing that the concluded that persecution could did not asylum, any political do was seek face “for special opinion” and that agency Hong Kong only in instead had self-created, Chang’s family would assist in “a leaving subjective China. shown fear of re- day, again Later that suggestion turning losing job now of either being O’Neill, Chang prosecuted responsibility.” O’Neill met with an immi- for a failure BIA, Immigrant Responsibility Act which dis- form and

Chang appealed 306(c)(1), 604(c), §§ January 1996. 1996 Pub L. No. appeal on missed 104-208, (1996),reprinted facts of the case Stat. opinion reviews the The BIA (under 1105a, 1252, §§ “His- U.S.C.A. that: and concludes Notes”) Statutory (Supp.1997).1 torical and Immigra in the set forth For the reasons decision, find that the re Judge’s tion that a rea

spondent has not established II. DISCUSSION person in his circumstances sonable 208(a) Immigration and Na Section race, reli on account of fear (“INA”) tionality provides Act that the Attor nationality, group social gion, discretion, may, in ney grant General her v. INS opinion. See Elias-Zacharias qualifies to an alien who as a “refu Elias-Zacaris], 478[, 112 502 U.S. [INS gee” meaning within Section (1992). par 117 L.Ed.2d 38] S.Ct. 1101(a)(42)(A) of the statute. 8 U.S.C. ticular, respondent that the fears we note 1158(a) (1988 Supp.1992). § & The term because he failed China refugee includes those who are unable or colleagues’ suspicious activities report his unwilling to return to their of nation sought asylum in the Unit because he ality “because of or a well-found prosecution he fears is ed States. race, ed fear of on account of colleagues he believes his similar to what nationality, membership partic religion, subject report to had he would have been group, political opinion.” ular or 8 social However, Embassy. the Chinese ed to 1101(42)(A). pro § The INA also U.S.C. of a law of prosecution for the violation vides, 243(h)(1), Attorney that the Section persecution, un general applicability is not deportation must withhold to a coun General imposed for invidi punishment is less try if the alien’s “life or freedom would be Acosta, 19 I & N ous reason. Matter of in such on account of threatened (BIA 1985), 211, 1985 56042 mod WL Dec. race, religion, nationality, membership a Moghar grounds, on other Matter of ified particular group, political opinion.” social or rabi, Nagy, 11 I & N supra, Matter of 1253(h). eligible § In order to be 8 U.S.C. (BIA 1966). 888, 14392 Dec. 1966 WL asylum discretionary grant of under for a testimony appears from the and 208(a), only a an alien need show Section presented that China’s evidence persecution,” but on the “well-founded fear of applied, there is no generally laws are hand, to entitlement other in order establish any against action the re indication withholding deportation of under Section to imposed spondent be for invidious 243(h)(1), proba an alien must show “a clear conclude that the reasons. We bility” INS v. of a threat life freedom. should he return to respondent fears Cardoza-Fonseca, 421, 428, 480 107 U.S. persecution constitute as China does not (1987); 1207, 1211, 434 Fa 94 L.Ed.2d S.Ct. 208(a) 243(h) contemplated sections Cir.1993). (3d INS, 12 1233 tin v. F.3d of the Act. depart BIA from the The ordered requires us to decide .Chang’s petition 1, 1996, voluntarily by March States United “persecution” term whether the director, subject by the district to extension prosecution that INA includes the deportation. face or to and, upon purportedly faces return China so, “on account if for review of whether Chang petitioned this Court political opinion. We must also of’ January order. have the BIA’s We Chang has demonstrated petition pursuant to review whether jurisdiction over 1105a(a), a threat to life or free- probability” “clear repealed § has been 8 which U.S.C. depor- withholding of qualify as to for applies ease because the dom so but still to this and, addition, whether he has estab- Sep- tation before deportation entered order so 30, a “well-founded” fear Illegal Immigration Re- lished tember Immigration Illegal Reform and Immigration ment this reason we refer to 1. For Immigrant Responsibility prior Act of 1996. Nationality amend- Act as it existed 1060 qualify discretionary grant asylum for

as lated were “generally applicable,” Chang had Attorney General. not shown prosecuted that he would be for Therefore, an “invidious reason.” agency Our review of the BIA’s decision is concluded, punishment whatever As to the BIA’s narrow. construction of the feared “persecution” could not constitute INA, if Congress has “clear evidenced within the meaning of the statute.2 unambiguous concerning precise intent itself does statute not define the term us, question” give then we before effect to persecution. general matter, however, As Chevron, U.S.A., that intent. v. Inc. Natural we have held that fear of for Council, 837, Resources 467 U.S. Defense “fairly violations of administered laws” does 843, 2778, 2781-82, 104 S.Ct. 81 L.Ed.2d 694 qualify itself one “refugee” as a or make (1984); Lewis, 195, v. Marineas 92 F.3d 200 eligible one withholding deportation. (3d Cir.1996). If the statute is silent or INS, (3d Cir.1991); Janusiak v. 947 F.2d 46 ambiguous, agency’s we defer to the inter INS, 188, see also 971 Abedini F.2d 191 pretation if permissible it is on a “based (9th Cir.1992); In Matter Acosta 19 I. & Chevron, construction the statute.” (BIA 1985). N. Dec. refusal 2782; U.S. at 104 S.Ct. at Fatin equate fugitive eligibility status with asy standard, F.3d 1239. Under this prevents lum the United States from becom judgment will not substitute our own for that ing a haven for “common criminals.” See BIA, reject but any we must also (9th Kovac v. Cir. interpretation by BIA “arbitrary, that is 1969). Thus those who govern violate laws capricious, manifestly contrary to the stat ing passports, military fraudulent conscrip Chevron, ute.” U.S. 104 S.Ct. at tion, the distribution of certain films and fact, questions 2782. On we will reverse videos, population control do not merit the BIA’s determination is not asylum based on their fear of eligible and not entitled to with Janusiak, the crime that committed. holding deportation only if a reasonable 947 F.2d at (rejecting claim of fact-finder would have to conclude that the prosecution based on bribing for passport requisite persecution fear of existed. v. INS officials); INS, 304, M.A. v. 899 F.2d 312 Elias-Zacarias, 502 112 U.S. S.Ct. (4th Cir.1990) (rejecting penalties claim that (1992). 812, 117 L.Ed.2d 38 evading for laws of conscription constitute Abedini, persecution); (hold 971 F.2d 191 A. “Generally Punishment Under Appli- ing punishment that for avoiding military cable” Laws conscription, of passport, use false or distrib begin considering We whether uting persecution); Western films was not has that qualifies failed to show he for (9th Cir.1996) 801, Chen v. 95 F.3d 806 asylum or withholding deportation of simply (violating population control laws and fear of punishment he because fears under China’s possible punishment under those laws does Law, Security which the BIA concluded is not persecution). constitute “generally applicable.” Chang prosecu fears tion security under the laws he because did Nothing in the legislative statute or the actions of delegates however, history suggests, other prose that fear of suggested they defect, which because cution under laws general of applicability China, he did not return to may he provide because never asylum the basis for sought asylum country, in this and because withholding deportation. of To contrary, the spoke he with the FBI. The BIA provides reasoned the protection statute for those who since laws that vio- fear or threats to life and free- "persecution contemplated The BIA plicable refers to as qualify "persecution” laws cannot as 208(a) 243(h) 208(a) Section of the Act.” Section under Section or as a "threat to freedom” 243(h) “persecution,” does not use the term in- on account of one of enumerated factors under requires 243(h). probability stead "clear of a threat Section Consistent with the BIA's lan- to life or freedom” on guage, account one of "persecution” the term use to refer to enumerated factors. We 208(a) the BIA understand as the standard under both Sections concluding 243(h). generally ap- under

1061 factors, High Com the United Nations Office aof’ number account dom “on Proce Refugees, Handbook on opinion, with- missioner for religion and including Refugee Determining persecution dis- dures Criteria distinguishing between out (“Handbook”), not so which the “force lacks law” and Status “under guised as cautioned, significant provides Circuit but the Second of law” nonetheless disguised. As from illegal departure construing the Protocol. Cardo concerning guidance in in a case 22, za-Fonseca, atroci- memory of Hitler’s n. 107 S.Ct. “the U.S. 439 Yugoslavia, 480 corrupted Lewis, 22; legal system n. Marineas v. ties and at 1217 (3d fresh for Cir.1996); ... are too 195, still 18 purposes Osorio serve may (2d Cir.1994). physical persecution suppose 1017, The Hand us F.3d ‘recognized nihil obstet. of provides not bear the unequivocally book Esperdy, judicial system.’” Sovich “punishment for a common as is not same Cir.1963). (2d language ¶ offense,” equally F.2d it is law Handbook but “general- exceptions the statute makes some laws— under clear is based laws; if the law itself ly applied” with ac that do not conform such as those if the factors and enumerated one consti rights human standards —can cepted sufficiently ex- ¶ that law is persecution. Id. at 59. tute the law persecution, treme constitute Moreover, type prosecution under withholding asylum or provide the basis here, restricts its at issue one which law “generally” if the law is even deportation in, into, stay other coun- entry citizen’s applicable. BIA, tries, recognized by the long been statute, unlike the reading of the This Handbook, courts, as by the language of the BIA’s, faithful is both claim of basis for a providing possible legislative his with its and consistent statute the Handbook sets out: persecution. As Act, Congress Refugee tory. imposes States legislation certain 208(a), Section INA to include amended depart who penalties nationals severe discretionary grants providing manner or country in an unlawful from the The Act refugees. as qualify to those who authorization. without remain abroad 243(h), making with Section also amended that a reason to there believe Where if alien mandatory deportation holding of or un- illegal departure person, due to his harm on probability of a clear demonstrates such stay is liable to abroad authorized factors. enumerated one of the account of a refu- recognition as penalties his severe Cardoza-Fonseca, U.S. INS v. if it can be shown gee justified will be (1987). 1212, 1207, 434 94 L.Ed.2d 107 S.Ct. remaining out- leaving or motives for his in en purposes” “primary Congress’s ofOne to the reasons country are related the side United to 1980 law was harmonize acting the A(2) the 1951 I of in Article enumerated Protocol the United Nations law with States Convention. Refugees of the Status Relating ¶61. Thus, according to Handbook (“U.N.Protocol”), United States to which the Handbook, motives asylum-seeker’s if the Re Protocol in 1968. U.N. party a became “related” were leaving his or her 31, Jan. Refugees, of lating to the Status applicant faces and the opinion,” “political 6223, No. 6577. 1967, T.I.A.S. 19 U.S.T. laws of the penalties” “severe to define “refu sought Congress specifically can con state, those laws prosecution under Protocol; with the gee” in accordance & In Matter Janus persecution. stitute of Act is the 1980 refugee under of definition (BIA 1968); Janek, I. & N. Dec. 866 12 in the to the definition identical thus almost INS, 416, 427 F.3d v. 98 Rodriguez-Roman 2; at Art. See Cardoza-Fonse Protocol. Id. (9th Cir.1996); Esperdy, 319 F.2d v. Sovich 435-38, 107 at 1215-1216 ca, S.Ct. 480 U.S. INS, (2d F.2d Cir.1963); Coriolan interpret history). legislative (reviewing Cir.1977).3 (5th 993, 1000 Protocol, especially the definition and ing the provides that Similarly, the Handbook by guided been “refugee,” the courts have of pun- asylum fear of based their who claimed brothers involved and Janek 3. Matter Janus political law, In determining ty more, whether a offender of China’s without answers this regard refugee, question. however, can be considered a should argues, The INS also following per- Elias-Zacarias, also be had to the elements: that under INS v. 502 U.S. political opin- sonality applicant, of the (1992), 112 S.Ct. 117 L.Ed.2d 38 ion, act, the nature motive behind punish- has not shown that China’s committed, of the act the nature of the him ment of would be “on account of’ his motives; prosecution, finally, and its also political opinion because China be moti- prose- the nature of the law which vated factors other than Chang’s political may go cution is based. These elements opinion in electing prosecute him. After person show that the a concerned has fear our review the conduct that the China merely and not a fear of compel, Chang’s seeks to reasons for vio- punishment-within and rules, lating the and of the nature of the law-for an act committed him. question, rules in hold the evidence ¶86. Again, simply Handbook compels the conclusion that China’s motives conclude, enough to as the BIA did in enforcing against its rules are ease, applies “generally” that a law based on Chang’s opinion. therefore under that law cannot Contrary case, reasoning IJ’s in this support a claim withholding permits the evidence no other conclusion deportation. Rodriguez-Roman, 98 F.3d than Security violation of the (9th 416; Fisher v. “political Law was opinion.” motivated Cir.1994); Bastanipour see also BIA, In the words of the “chose not to (7th Cir.1992). F.2d 1129 Based on the lan- possibility some of his [that col- statute, guage legislative history leagues would not return to because China] reject we are constrained to the BIA’s inter- suspected he feared that delegates would pretation of the term because it China, have been returned to from em- fired permissible is not a based on construction ployment, imprisoned regardless Chevron, the statute. 467 U.S. at whether had intended to remain in the S.Ct. at 2782-83. United States.” defied the Chinese B. Persecution “on Account Political government’s orders disagreed because he Opinion” government’s with the treatment of those might who perse personal We now consider defect.4 whether the He took risk defy government cution that claims he faces is “on because the man- political opinion” account of ner in which punish and therefore purview comes within the delegates. of the INA. the other To We characterize this rejected conclusion, have the BIA’s and the action taking motivation in it as argument, general applicabili- INS’s that the anything other than narrows the Hungarian overstaying ishment under law for China the individuals who broke the rules "will seeking their visits in the United Stales and for put room, special be in a check room—check asylum. The BIA reasoned that "[i]t cannot be security agency, military, block house and then said, board, every impos- across the statute happened. to make clear—to make sure what ing criminal sanctions for unauthorized travel Anyhow, they job job, will lose their and lose particular country outside of a must be devoid of (indiscernible) keep security agen- them until the political implications.” BIA The concluded that (indiscernible).” (A.R.122-123). cy they made “punishment the brothers faced not for violation Chang stating report in effect is that he did not ordinary "per- of an criminal statute” but instead colleagues punishment his because of the that political secution for the offenses” committed (This they exactly would face in China. is also against Hungary. 12 I. & N. Dec. at 875. (A.R. 3)). what the BIA found. On the basis testimony, of such we find it reasonable to con- Chang’s testimony 4. The finds dissent that own defying clude that the orders of the p. belies such conclusion. See 26. But at the disagreed Chinese because he with hearing Chang why was asked he did call the not government policy the Embassy behind them. We do report colleagues. not Chinese Chang responded his necessary find it to use the that he was word "familiar with "political” things bearing satisfy China's in conditions. This has a order to the set of test forth in life, future,” INS, 1233, person's (3d upon Cir.1993). the and that to Fatin v. return 12 F.3d 1242

1063 must, course, beyond beyond Unlike We look recognition.5 “political” term population those, example, Chang’s violate motives to who those China. Elias- chil they Zacarias, 812, want more laws because control 502 U.S. 112 S.Ct. 117 (9th dren, (1992), see Chen requires that China’s L.Ed.2d en Cir.1996), exit control those who violate Security forcement of its Law be “on account see opportunity, laws in search economic political opinion in order of’ (S.D.N.Y. Slattery, F.Supp. Si v. Indeed, qualify appli to for relief. an 1994), Chang failed to his fellow dele 'asylum cant for must show not that the solely disagreement gates based his persecutor’s persecuting ap motives for the likely face they that were to the plicant “political” general are in some sense government. hands of the Chinese at the persecutor that the but instead motivated of, spite in came not but This action because political opinions specifically of, family for his and his fear of concerns his asylum-seeker. Thus the Court held Eli retaliation. failing as-Zacarias not, face, its join guerilla movement was IJ reasoned that opin applicant’s political account of’ the “on to China make a choice not to return did guerillas sought to fill ion. Instead then- perceived it could be believed or and [] who against ranks and retaliated those re returning to his not many that choice of fight fight, based fused to on their refusal prin on the was somehow motivated China political opinion. on their not based way opposes in ciple that he some respondent, government. The Immigration Judge in this case made however, opposi not such manifested adequate finding gov- as to the Chinese application He has manifested his tion. enforcing ernment’s motives in support sympathy for incidents his opinion against Chang, although the laws Square incident as the Tianamen such persecu- did not fear concludes to restrict individu 1989 and reluctance tion on account one of the enumerated they conducting then- when are abroad als reasoning BIA grounds. The based its Yet, that is not the test profession. account was not on determining apply must the Court law, political opinion because the under which are or not such manifestations whether prosecuted, applies generally. he would be asylum. they warrant such conclusion, however, that we This is a have contrary, compels a rea the evidence To already rejected. fact finder to conclude that sonable ignoring In addition to the U.N. Hand- opposition to the Chinese has “manifested” cases, BIA and Immi- and relevant book defying the or government. His actions in Judge also consider the na- gration failed to government because he the Chinese ders of being and the ture of the statute enforced treat those disagreed with how compel sought that China actions exactly that. suspected trying did defect statute, help determine the both which himself a Simply because he did not call For persecutor. ex- alleged motives of in terms of or couch his resistance dissident ample, a statute aimed enforcement of ideology opposition particular renders political dissidents expressive conduct of F.3d political. See no less Osorio “polit- persecution based on (2d Cir.1994) would constitute (reasoning that re of rules opinion,” but the enforcement ical political simply because is no less sistance necessarily conscription governing does belonged to a not state that he alien did persecution. This distinction is philosophy political party, constitute which language necessary effectuate supported). management See, relating government; e.g., "political” Black's duct 5. definition of theories; (1979): state, Dictionary, political 5th Ed. of or Law affairs of as privileges pertaining rights and or "Pertaining policy to exercise of relating or or government, or national. of a state seek state individuals administration Pertaining the influence which to, to, policy....” exercise of public or incidental its to determine control charged with the con- vested in those functions otherwise, breaking any “law”, no the face of statute that criminalizes INA — directly law matter how that was aimed at illegal departure. political opinion, permit the state to INS, Rodriguez-Roman v. 98 F.3d at 430 say punishing that the conduct of (internal omitted). footnote law, breaking political opinion not the Security The nature of China’s Law makes that led to that conduct.6 See Perkovie v. importance clear the scrutinizing the stat- INS, (6th Cir.1994) (holding 33 F.3d pursuant ute or rules applicant to which the punishment against peaceful under laws likely. claims is According to political expression politi- is “on account of’ Watch/Asia, Rights the Human July opinion); Bastanipour cal 980 F.2d Report, part which is of the administrative (7th Cir.1992) (reaching the unas- record, principal objective” “the of the 1993 sailable conclusion that Regulations for Security “ap- the State Law against law apostasy is “on account of’ reli- pears frighten to be to halting dissidents into gion); Rodriguez-Roman 98 F.3d (9th Cir.1996) Report their activities.” goes say on to (holding punishment pohtically-motivated Security that the State Law violations of exit be used to prosecute punishment laws constitutes “all “on account of’ activities actionable under the political opinion). ‘counterrevolution’ clauses of the Criminal Code, avoiding while the alarm caused context, In this we conclude that China’s community by international overtly politi- enforcement of governing Chang’s the rules language cal of the latter.” To this end the stay in unauthorized this and his regulations “completely leave vague open report refusal to others who violated interpretation” the definition of “political.” rules would be The Criminal “harm security.” to state Although we rec- provides year prison Code a one term for ognize that prepared the use of materials nothing those who do more than violate its “watchdog” organization is not without its exit control laws. As the Ninth Circuit has problems, I.N.S., see M.A. v. reasoned: (4th Cir.1990), report sug- this at least proposition The Second Circuit stated the gests that the INS carefully should have unequivocally: sup- “It would be naive to examined enforcing China’s motives in its pose punishment ... illegal depar- Security suggest Law. We do not that relief motivated, politically ture ... is not granted an alien solely should be based does not constitute because of reports particularly such where political opinion.” ... conflict Esperdy, [Sovich v. (2d Cir.1963) findings Department with 319 F.2d 21 State. ]. Because the case, however, this Rights the Human punish crime is intended to those who ex- report hibit grave disloyalty form of consistent with the to their Watch/Asia homeland, Department State part simply acknowledge is also here says, what should administrative record and which apparent now have been part, all: that severely punishes although a state which “several instances” the departure unlawful persons government views brought who ille- its behavior gally disloyal conformity leave as “into internationally accept- and subversive and punish norms,” seeks to accordingly. rights them Thus ed human that China has not petitioner the motive that a yet “significantly mitigated must show on continuing re- part initially pression the state is established dissent.”7 virtually always argue prosecu- One could Department 7. The United States of State released Country Report prohibiting political tion under laws new dissent is On Human China Rights January For 1996 on political opinion which not "on account of" because the Practices "[s]ecurity policy documents that in 1996 action, persecutor is concerned with the not the personnel responsible were for numerous human (i.e., opinion prosecute that motivates it. "we abuses,” rights and that the Chinese says things govern- him ment, because critical of the widespread "continued to commit and well-doc- actually but we do not care if he holds this rights stemming umented human ... abuses opinion.”). require Elias-Zacarias does dissent, from the authorities’ intolerance [and] result. report plays fear of unrest....” This no role in Moreover, motivated, also at least in even if we should determine China was part, by Chang’s opposition policy. does not establish the to official the law itself (2d motive, con- we would nonetheless Osorio v. Cir. requisite 1994) compels Chang’s unique (finding plain meaning situation that the of the clude that is, phrase “persecution in state’s motive on account of the vic the realization selecting Chang political opinion” perse to head tim’s does not part, political. mean government solely politi en- cution on account of the delegation, the Chinese victim’s politically opinion). sensitive obli- trusted him with cal This conclusion is based on the itself, provides potentially of other dele- which gations to limit the freedoms statute meeting punishment gates by preventing them from harsh for mere violation of the laws, people permission, responsibilities talking with other without exit on the with which entrusted, phones, appearance by restricting their use of the and on the of disloyalty political opposition reporting suspicious all behavior to the Chi- and as a result actions, specifically Chang’s Chang’s Embassy. Chang, When se- and on actual nese preform government breaking these motivations in China’s laws. lected See tasks, Janek, comply refused to because he Matter Janus and 12 I. & N. Dec. sensitive (1968) gov- disagreed punishment (considering with the that the 1968 WL 14130 violations, standing party, would mete out for Chi- Janus’ in the Communist ernment obligation laws is at propagandize gov na’s enforcement of the for the Czech ernment, Chang’s political severity punishment that he part“on in account of’ least faced, prosecuted government’s concern opinion. argue To and defection, merely “breaking concluding law” not on for that Janus faced eye violating ordinary an “political” grounds is to turn blind for statute, persecution po Those mo- government. of the criminal but for the motives those, are, punish against part, litical offense he has committed tives at least state). Chang, opposition manifested like who have government policy of the Chinese prevent taking politi- from similar others C. The “Well-Founded” Fear Persecu- Probability cal actions.8 tion and the “Clear Persecution” Standards argues may The INS that China have been by legitimate protect concerns of must demonstrate that his

motivated persecution is ing confidential state information. As an fear of “well-founded” order matter, qualify discretionary grant asylum for a initial we note that neither the BIA to 208(a) Refugee of the Act of or the IJ mentioned this consideration as a under section opinions, they for nor make a 1980. He must also show that he faces a basis their did indeed, probability qualify finding suggest, factual even clear of harm to for man deportation datory withholding funda under Sec these were China’s motives. More 243(h) Act. will mentally, even if this concern motivated the tion We reverse part, questions only two if a reasonable fact- government we conclude these however, decision, qualify asylum part putes it is not such a our because motive— the record this case. based on fear of under the exit laws. (holding Rodriguez-Roman, See 98 F.3d at 430 suggest all Chi- 8. Our conclusion does not applicant politi- flee that the must homeland overstay emigrate who their visas or nese visitors qualify cal reasons in order to based permission eligible asylum. without are laws.) violating exit persecution upon fear of return is not Moreover, discusses, as the next section simply departure, based on his it is also based on upon fear of return is political grounds his refusal —on —to unique compelling. Thus those who flee colleagues as he was to do. instructed This reasons, resistance, concerns, China or because for economic gen- not economic statute, may have be able to violated another overstaying erated his fear and led to his his visa. prove them neither that China's question We leave un- for another occasion political opinion would be "on account of” their applicant, der what circumstances an who vio- or that their fear of ed,” is “well-found- lates exit laws but who motive in doing although perhaps question. so but in case we reach neither im- — 1066 “generally by many that harsh conditions

finder would be forced conclude shared perse- Chang requisite persons” “persecu- fear of shown other do not constitute Elias-Zacarias, tion,” Acosta, 112 (quoting cution. 502 at U.S. id. In Matter 19 I. (BIA probability” 211, 233, S.Ct. at 815. Under the “clear & N. Dec. 1985 WL 56042 243(h), persecution 1985)), § At- life, standard of term does include threats to torney deportation confinement, if torture, General must withhold and economic restric- upon Chang demonstrates that return to Chi- tions so severe that a real constitute Fatin, na “his life or freedom would be threatened” threat to life freedom. F.3d at statutory factors. 8 claim, on account of one prove 1240. To his must there- Fatin, 1253(h)(1); § 12 F.3d at 1237. U.S.C. fore show either that he has a well founded standard, Chang To meet must show probability fear or that there is a clear that likely objective that it is “more evidence harm, just he will suffer not but harm that if he is persecution than not” he will face qualifies “persecution” as under this stan- deported to China. INS v. Cardoza-Fonse- dard. ca, 421, 430, 1207, 1212, 480 U.S. S.Ct. According Chang’s testimony at (1987). L.Ed.2d 434 hearing Immigration Judge before the 208(a) § The test under is less ex application asylum, upon in his return to acting; only that a Chang need show he has China, arrested, Chang would be detained in subjective persecution sup fear of that is house,” imprisoned, a “block and lose his ported by objective evidence job. The INS introduced into evidence possibility. is a reasonable See Cardoza- Department Report United States of State Fonseca, 430, 440, at 480 U.S. S.Ct. China, conditions which notes 1212, 1217-18; Mogharrabi, Matter 19 I. pro- that Article 176 of the Criminal Code (BIA & N. Dec. 1987 WL 108943 prison up year vides a sentence of to one 1987) (holding applicant that “an violating exit laws. China’s Most economic if has established well-founded fear immigrants, according Report, are person in circum shows that a reasonable China, imprisoned upon return not al- persecution”). stances would fear This less repeat though some offenders have received showing that require er standard does not year one “administrative sentences” of im- likely is than more not. Fear prisonment camps. Chang in labor submit- can be is a well-founded even “when there report, ted a authored Ross Munro of less than 50% chance of the tak occurrence Institute, Foreign Policy which found Cardoza-Fonseca, ing place.” 480 U.S. privileged because of access to 107 S.Ct. at 1213. If meets this information, high status in the Chinese standard, Attorney may, General but is government, position and the with which the to, required grant asylum. not him, entrusted longer Depart- would face a sentence. The evaluating the likelihood Report politi- ment of State concluded that persecution upon faces return to Chi general cal dissidents do fare well na, begin with a consideration China; Report relates that “in 1994 possible punishment faces under widespread there continued to be and well- China’s laws. treatment of those China’s China, rights human documented abuses who violate the laws is relevant both internationally accepted in violation of likely as to how it is that will be norms, stemming both from the authorities’ punished and as to whether not such inadequacy intolerance of dissent and the punishment persecution. would constitute legal safeguards speech, as- freedom Only enough if that severe religion.” abuses “in- sociation and Such conduct,” constitute “extreme can it consti arbitrary lengthy clude incommunicado persecution. tute See Fatin v. detention, pris- torture and mistreatment of persecu (reasoning that the term AR oners.” “encompass tion does not all treatment unfair, society unjust, BIA regards our as or even did not discuss the likelihood unconstitutional”). Although Chang unlawful or would face on return to exactly year alone can result in a of exit laws China, to determine and it is difficult express political who immigration judge punishment, concluded and those what judge subject. immigration government may stated opposition The to the Chinese this indicated, in “as coun- opinion imprisonment in his oral that torture. It is uneon- face the of China try security [sic] conditions troverted that violated the simply for persecute its members not ways, does in laws several and as the IJ acknowl- in another they have been returning after edged, Chang’s actions “could be believed or Leaving prob- the country illegally.” aside by perceived by many” being as motivated remain Chang has done more than lem that opposition the Chinese. country illegally, the “as indicated” in this circumstances, punishment these Under any previous not refer to discussion does year up imprisonment to one under Article concerning the coun- judge the statement 176, more, perhaps significantly are suf- in judge stated try conditions of China. ficiently “persecution” to constitute severe paragraph that he was not con- previous the this Circuit’s standard in Fatin. See fact, “would, pun- in be vinced INS, Rodriguez-Roman v. 431 under the Act as that term is defined ished (9th Cir.1996) years in (concluding that three any political persecution for as a means persecu- prison leaving qualifies as Cuba motives appears go opinion.” This tion); Janek, 12 I. & N. Dec. at 875 Janus & exacting punishment, not in of China (holding year long enough sentence to con- laws, security whether it enforces its leaving Hungary). stitute judge the state basis nowhere does simply unexplained the We cannot credit IJ’s “country any conclusion about the reaching country Indeed, conclusion about China’s conditions. at the outset of China.”9 conditions if it not And even is true China does opinion judge stated that neither the punish simply its report generally the those who violate Department nor the State laws, “weight to with provided much to its exit that conclusion little do of Ross Munro case, security violation of the this where the decision.” fraught with laws was far more extensive and discussed, Chang testified that both he As implications. delegates potential im- his fellow faced repercussions for prisonment and economic inquiry— We now turn to related laws, security a claim violations of the experience this will the likelihood repeated BIA without comment. IJ the if returned to China. he is testimony finding that this lacked made information about China’s addition to the INS, F.2d credibility. See v. 748 Sotto is general, evidence in this case laws the Cir.1984) (3d (remanding part because 1) Security Law violated China’s and BIA must articulate reasons dis- IJ by remaining in the States and United them); Hartooni crediting evidence before gov failing report others to the Chinese Cir.1994) (reason- (9th F.3d 2) ernment; delega one member of the other posi- although the is in the best ing that IJ 3) China; to return to China tion also failed determinations, credibility the tion to make in this is aware that remained specific must offer a reason for disbeliev- IJ permitted to beyond that he was do the time applicant’s testimony or the court ing the asylum; aware that he seeks so and be true); accept testimony as see should 4) high-level position (7th Chang held a also, F.3d Salameda privy to confi government and was Cir.1995) BIA that did not (vacating order 5) information; China state technical dential ques- in a rational manner ] “address! “foreign affairs as has treated his defection tendered for consider- tions that the aliens photograph at the ation”). posted his Further, incident” and Department the State Re- 6) office; FBI INA, told local supports this port, introduced 7) Chang’s wife was danger”; “in that he was provides law that violations claim. Chinese “persecution," and whether enough to opinion appears distinct constitute to confuse three 9. The imposed fears would be that he fear is issues: whether well-founded, statutorily prohibited grounds. is severe for one of whether what he fears early likely than to retire and his son is not more not to believe that he did. forced course, university. government may Of the Chinese The IJ allowed attend anything meeting know of his with the FBI. the incident noted that the information about calculus, possibility This one factor being foreign as a affairs incident treated sister, disregard possibility but we cannot provided by Chang’s that she but letter, meeting. China does know of the FBI proba- although did not submit a “she bly could have done so.” We defer to III. CONCLUSION from the sister conclusion that the evidence credibility, lacked and we do not consider Considering the evidence of China’s laws Chang gave that further. The IJ also noted case, practices Chang’s and and the facts of to FBI confidential information and compelled Chang we are to that conclude govern- that that it is not clear the Chinese faces a better than even likelihood that he Chang sought political experience ment is aware that significant impris- will term of asylum country in this or met with the FBI. onment that if is constitutes he Chang to returned China. is thus entitled to virtually impossible Chang It would be for withholding deportation under 8 U.S.C. govern- to demonstrate what the Chinese 1253(h). § exacting He also meets the less ment does or does not know about his con- 1158(a), requirements § of 8 U.S.C. and is appli- versations with FBI or about his eligible discretionary grant therefore for a asylum. beyond dispute, cation for It is asylum. denying withholding The order however, high-ranking employ- when a state vacated, deportation asylum is therefore supervising ee entrusted with an entire tech- Attorney and the is case remanded for the suddenly delegation inexplicably nical Chang General’s decision as to whether is China, leaving impor- fails to return to his discretionary grant asylum. entitled to positions government tant with the Chinese behind, family and his entire that the Chi- ALITO, Judge, dissenting: Circuit government may suspect nese that the he ease, The facts of this as recounted in the applied asylum country. for in this Even majority’s opinion, sym- arouse considerable however, assuming, that China does not pathy petitioner Feng Chang. Chu Chang applied asy- know or believe that is, however, upsetting There no basis for lum, Chang disloyalty has demonstrated to Immigration Ap- decision of the Board of through stay the Chinese his unauthorized peals. that, given position in this such his immigration judge and the BIA found government responsibilities with and his Chang prove that failed that he had a well- supervising delegation, likely it is more founded fear of on account of persecution upon than not that he faces re- opinion. required uphold We are turn. that decision unless no reasonable factfinder conclusion, In reaching particu- we are could have so found. INS v. Elias See larly responsibilities mindful of the with Zacarias, U.S. S.Ct. Chang which was entrusted China and of (1992). 815, 117 In L.Ed.2d 38 Fatin v. the unusual role of FBI in Chang this case. (3d Cir.1993), 12 F.3d 1233 we held that: did not initiate FBI. contact with the prevail withholding-of- order to on a FBI uncontroverted evidence shows that the deportation polit- claim based on Chang “danger.” told that he was in Cer- (1) opinion, specify ical an alien must tainly strong objective this constitutes evi- relies, political opinion on which he or she was, fact, Chang that in danger. dence (2) opinion, show that he or she holds that agent The FBI went so far as escort (3) show that he or she would be meeting immigration with the persecuted or has a well-founded fear although officer. what And we do not know opinion. based on that government Chang’s the Chinese knows of Id. at 1242. FBI, meetings agree with the that, ease, regardless gave Chang argues of whether he informa- In this that if is he FBI, prosecuted tion to the the Chinese is returned to China he will be country’s law. violating opposes state time has said he if assumes that colleagues Even one that his would have qualifies “persecution,” as fears them; reported if he had faced and at no if fear is and even one assumes opposes time has said that he “well-founded,” immigration judge government’s requirement Chinese that a finding grounds BIA had reasonable delegation delega- leader surveil his fellow “on ac- that such would not be Indeed, reflects, tees. so far as the record “political opinion.” See count of’ 8 Chang any political has never articulated 1101(42)(A). § This is the sim- U.S.C. so for opinion at odds with govern- the Chinese specified ple Chang has reason that never ment. any political opinion that he holds and Rather, testimony his makes it clear that government. at odds with the unwillingness his colleagues his easily evidence is summa- The relevant solely uncertainty based regarding defect, Chang, who had no desire to rized. their true explains intentions. As suspicious became one or more members brief, so, but his delegation of his intended do amade conscious not to contact choice that; suspicion just uncertain was was Embassy. He that he reasoned did not R. 112— colleagues’ of his true intentions. A report to want the individual unless he 13, 115-16, to 122. was thus forced absolutely sure his intentions. fulfilling duty Chi- choose between his report the event that he to chose an[ ] by reporting suspicions his to the nese law to government, individual that individ- Embassy, un- causing possibly Chinese thus repercussions. ual would suffer severe He problems colleagues, deserved any problems want did not to cause loyalty colleagues by respecting his individuals who be otherwise innocent. keeping quiet became until unless he added). (emphasis Petitioner’s Br. at 7 See plans. sure of their (same; Chang’s also A.R. brief before the to in- Chang testified he decided not BIA); (Chang’s testimony A.R. 115-17 colleagues form infor- on his without better report like to—to them “[he wouldn’t] 113,115-16 (Chang’s testimony mation. A.R. embassy” [he could] “before make wouldn’t] like to do this” “[he before intentions); their clear” true A.R. 122 sure” of obtained “new evidence” to “make (Chang’s testimony that it was ... “hard intentions). certainly a hu- their This was way make a decision” because there was “no But, mane and understandable decision. his colleagues’ to make —make sure” of majority’s conclusion, contrary to there is plans); A.R. 113. a decision. evidence that was majority, According to a reasonable fact- political opposi- than representing Rather compelled finder would be to find law, security China’s tion to state “Chang delegates failed to his fellow simply for accura- conduct reflects concern with solely disagreement based on his cy Br. at 31 its enforcement. See they likely were face at (Chang’s conduct was intended “to avoid Maj. government.” the hands of the Chinese false accusations of an otherwise innocent Op. majority at 1063. The holds that individual”). honorable, Such concern gov- opposition “manifested to the Chinese compels but I fail see how it the factual by “defying ernment” the orders of Chi- “defied” the Chinese conclusion disagreed nese because he political opin- government because he held suspected how treat those contrary ion the state law.10 Ac- Maj. Op. trying to defect.” at 1063. These I dissent. cordingly, testi- conclusions are belied own mony. opposes

At no time has said that he defection; prohibiting at no Chinese law that, sons, variety compels majority 10. The for a of rea- the evidence the conclusion that holds & BROTHER WYETH JOHN

LIMITED, Appellant, INTERNATIONAL

CIGNA

CORPORATION,

Appellee 96-1653.

No. Appeals, Court of

United States

Third Circuit.

Argued Feb. 1997. July

Decided However, prosecuting Chang majority applying for violat- it China’s motive errs case, because, text, is, explained part, political. as I have in the ing the state law there is no evidence that conduct was Maj. Op. at 1064. Because of its conclusion any political opinion. based on political "on conduct was based Moreover, accepting "imputed opin- courts majority grounds,” need to reach does not theory merely presumed ion” have not that a question asylum applicant whether an can foreign government political a attributed requisite ac- show the fear of "on rather, opinion applicant; have re- opinion” political where he in count of ... fact quired applicant actually "produce! that the political opinion but his home has manifested imputation.” evidence of such a mistaken Chen erroneously imputes country’s government 801, (9th Cir.1996). v. 95 F.3d See political opinion. Maj. Op. See him disfavored Ilchert, (9th Cir.1995) Singh v. 69 F.3d any at 1064 n. am not aware of case in which 7.1 (relying police imputed on evidence that "the asylum applicant prevailed an claim of Singh separatists the beliefs of the Sikh "political opinion” "persecution" on account basis”); Ilchert, Singh harmed him on that v. any political opinion did hold where he not (9th Cir.1995) (relying F.3d on evi- country’s government odds with his home applicant dence that the was tortured because he present any not evidence that his home coun- did suspected being separatist); a Sikh Desir try's government specific politi- had attributed a Ilchert, (9th Cir.1988) (rely- opinion to him. cal ing on evidence that the Ton Ton "at- Macoutes (9th Rodriguez-Roman 98 F.3d 416 Desir). tributed subversive views” to Under Eli- Cir.1996), the court held that in order to show government the fact that the as-Zacarias Chinese prosecution departure for unlawful consti- prosecuting Chang have a motive in applicant prove "persecution,” tutes "must that the does show would be "on persons illegal that he is one of the at whom "political opinion.” Chang's account of” See departure persons statute was who flee 502 U.S. at 112 S.Ct. at 815. And directed— their homeland for reasons.” Id. at 430 present compel did not evidence sufficient to (citations omitted). id. at 426. The See also that the has im- conclusion (“Nor majority proposition puted political opinion endorses the that "if the id. to him. See leaving any (assuming, arguendo, seeker's motives in his or her is there indication suffice) opinion’ 'political guerrillas erroneously ... were ‘related’ to that the be- departure politically [unlawful laws] can lieved that Elias-Zacarias’ refusal was based”). persecution.” Maj. Op. constitute at 1061.

Case Details

Case Name: Fengchu Chang v. Immigration & Naturalization Service

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 22, 1997

Citation: 119 F.3d 1055

Docket Number: 96-3140

Court Abbreviation: 3rd Cir.