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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-3140
FENGCHU CHANG,
Petitioner
v.
IMMIGRATION & NATURALIZATION SERVICE,
Respondent
Petition for Review of an Order dated January 5, 1996
of the Immigration & Naturalization Service
(Immigration & Naturalization No. A72 376 988)
Argued on November 13, 1996
Before: ALITO, ROTH and LEWIS, Circuit Judges
(Opinion Filed July 22, 1997)
Martin A. Kascavage, Esq.
Jane M. Schoener, Esq. (Argued)
Suite 595
21 South 5th Street
The Bourse Building
Philadelphia, PA 19106
Attorneys for Petitioner
Frank W. Hunger
Acting Assistant Attorney General
Civil Division
Joan E. Smiley
Senior Litigation Counsel
Michael P. Lindemann
Lisa M. Arnold
Vernon B. Miles
Madeline Henley (Argued)
Attorneys, Civil Division
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
ROTH, Circuit Judge:
Fengchu Chang, a fifty-five year old native and citizen of
China, seeks asylum and withholding of deportation based
on his fear of persecution for violating China's State
Security Law. Chang, the chief engineer for a state-owned
company, led a technical delegation to this country from
July through September of 1992. During the course of this
visit, Chang violated Chinese law (1) by not reporting to the
Chinese authorities the members of his delegation whose
misconduct (under the rules set by the Chinese
government) suggested they would remain in the United
States, (2) by meeting with an FBI agent as arranged by the
American company hosting the delegation, and (3) by
electing to stay in the United States and to seek asylum
after being told by the FBI that he was in "danger." Based
on these violations of Chinese law, Chang fears reprisal if
he returns to China. The Immigration Judge ("IJ") denied
his application for asylum and for withholding of
deportation. The Board of Immigration Appeals ("BIA")
dismissed his appeal, reasoning that because Chang faces
2
does not fear "persecution" based on his political opinion.
We disagree and will grant Chang's petition.
I. FACTS
Before leaving China in July of 1992, Chang worked
simultaneously as the chief engineer of a major state-owned
company with more than 3000 employees, as director of a
state Research Institute with more than 100 employees,
and as senior consultant to the Ministry of Machinery and
Electronics. In the course of his professional duties, Chang
had access to confidential technical information about state
projects.
Chang had traveled outside of China on several previous
occasions, always in connection with the technical positions
he held in China. For the 1992 visit to this country, Chang
was selected as head of the delegation. In this capacity he
was briefed by a special security agent and instructed to
monitor the behavior of the other delegates and to report
any suspicious activity to the Chinese Embassy. The 1992
delegation of eight people, including Chang, visited the
United States in connection with a purchase of technology
by Chang's company from an American company, Pangborn
Corporation.
After the arrival of the delegation in the United States on
July 27, 1992, Chang became suspicious that several
members of the delegation were considering remaining in
the United States. At the beginning of August, Chang
overheard a telephone conversation in which one delegate
discussed the possibility of remaining in the United States.
Chang observed the same person making another phone
call about three weeks later. During the second week of
September, Chang learned from officials at Pangborn that
another delegate had met with them and intended to stay
in the United States. Chang also became suspicious of a
third delegate who had contacts in the United States and
said that she was checking the procedures for studying in
the United States in the future.
As head of the delegation, Chang was required to report
his suspicions to the Chinese Embassy. Not certain that the
3
and fearful of the consequences that they would suffer at
the hands of the Chinese government if he did report them,
Chang did not report either their conduct or his suspicions
to the Embassy. Another member of the delegation, who
also suspected that one or more delegates might stay in the
United States, told Chang to call the Chinese Embassy. He
also told Chang that he would report Chang to the Chinese
government upon return to China because Chang had not
complied with the orders of the Chinese government.
Chang nonetheless still intended to return to China in
the middle of September, even after becoming suspicious
that other delegates might stay in the United States and
despite his concern that their staying and the other
delegate's report to the government would create risks for
him upon return to China. On about the 17th of
September, Chang explained his situation to an engineer at
Pangborn, in a conversation initiated by the engineer who
had noted that Chang was distraught. Chang told the
American that if some of the delegates remained in the
United States, he (Chang) would face problems upon return
to China.
Pangborn officials suggested, and arranged for, Chang to
meet with Barry O'Neill, a person who Chang understood to
work in the Hagerstown Government. Only later did Chang
learn that O'Neill worked for the Federal Bureau of
Investigation. Chang explained his concerns about his
safety upon return to China. O'Neill questioned Chang
about his work and his family and asked if he had access
to state secrets.
On September 23, 1992, at O'Neill's suggestion, Chang
met with O'Neill a second time at the Pangborn offices.
O'Neill reported to Chang that "everything is true," that
Chang was "in danger," that the only thing Chang could do
was seek political asylum, and that a special agency in
Hong Kong would assist Chang's family in leaving China.
Later that day, again at the suggestion of O'Neill, Chang
and O'Neill met with an immigration officer in Baltimore.
Based on that meeting and on what O'Neill had told him,
Chang applied for political asylum. On September 27, the
delegation returned to China without Chang. Unknown to
4
with the delegation to China.
The INS denied Chang's request for asylum and on July
26, 1994, charged Chang with overstaying his visa, which
had expired in September 1992. Chang conceded
deportability but requested political asylum and
withholding of deportation. At a hearing before the
Immigration Judge on June 5, 1995, Chang testified that
he fears persecution if he is returned to China based on his
access to Chinese state secrets, on his prominent position
in China, on his contact with the FBI, on his decision not
to return to China and to seek asylum in the United States,
and on his failure to report the misconduct of other
delegates. If he is returned to China, Chang fears that he
will lose his job, that he will be imprisoned, and that his
family will suffer retaliation. Since leaving China, Chang
has spoken with his wife and sister and has learned that
his wife has been forced to retire and has been questioned
by security agents, that the local security agency has
revoked his passport, that his defection has been treated as
a foreign affairs incident, and that his photo is on record at
the Ministry of State Security. His sister, who holds a high
position in their hometown, advised Chang not to return to
China because the local security agency is "waiting for
you."
The Immigration Judge denied Chang's petition in a
somewhat delphic oral opinion. The Judge reasoned that
prosecution "is not persecution unless that prosecution is
severe or somehow politically motivated," and that if "the
punishment is severe for prosecution of a crime, one must
look to see if that punishment was imposed because of
some political motive." The Judge concluded that Chang did
not face persecution "for any political opinion" and that
instead Chang had only shown "a self-created, subjective
fear of returning now of either losing his job or being
prosecuted for a failure in his responsibility."
Chang appealed to the BIA, which dismissed Chang's
appeal on January 5, 1996. The BIA opinion reviews the
facts of the case and concludes that:
For the reasons set forth in the Immigration Judge's
decision, we find that the respondent has not
5
established that a reasonable person in his
circumstances would fear persecution on account of
race, religion, nationality, social group or political
opinion. See Elias-Zacharias v. INS , 502 U.S. 478
(1992). In particular, we note that the respondent fears
prosecution in China because he failed to report his
colleagues' suspicious activities and because he sought
asylum in the United States. The prosecution he fears
is similar to what he believes his colleagues would have
been subject to had he reported to the Chinese
Embassy. However, prosecution for the violation of a
law of general applicability is not persecution, unless
the punishment is imposed for invidious reason. Matter
of Acosta , 19 I&N Dec. 211 (BIA 1985), modified on
other grounds , Matter of Mogharrabi , supra , Matter of
Nagy , 11 I&N Dec. 888 (BIA 1966). In that it appears
from the testimony and evidence presented that
China's security laws are generally applied, there is no
indication that any action against the respondent
would be imposed for invidious reasons. We conclude
that the prosecution the respondent fears should he
return to China does not constitute persecution as
contemplated by sections 208(a) and 243(h) of the Act.
The BIA ordered Chang to depart from the United States
voluntarily by March 1, 1996, subject to extension by the
district director, or to face deportation.
Chang petitioned this Court for review of the BIA's
January 5, 1996, order. We have jurisdiction over Chang's
petition pursuant to 8 U.S.C. § 1105a(a), which has been
repealed but still applies to this case because the order of
deportation was entered before September 30, 1996. Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 §§ 306(c)(1), 309, and 604 (c), Pub L. No. 104-208,
110 Stat. 3009 (1996), reprinted in 8 U.S.C.A. §§ 1105a,
1252, 1101 (under "Historical and Statutory Notes") (Supp.
1997).1
_________________________________________________________________
1. For this reason we refer to the Immigration and Nationality Act as it
existed prior to amendment by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996.
6
Section 208(a) of the Immigration and Nationality Act
("INA") provides that the Attorney General may, in her
discretion, grant asylum to an alien who qualifies as a
"refugee" within the meaning of Section 1101(a)(42)(A) of
the statute. 8 U.S.C. § 1158(a) (1988 & Supp. 1992). The
term refugee includes those who are unable or unwilling to
return to their country of nationality "because of
persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
§ 1101(42)(A). The INA also provides, in Section 243(h)(1),
that the Attorney General must withhold deportation to a
country if the alien's "life or freedom would be threatened
in such country on account of race, religion, nationality,
membership in a particular social group, or political
opinion." 8 U.S.C. § 1253(h). In order to be eligible for a
discretionary grant of asylum under Section 208(a), an
alien need only show a "well-founded fear of persecution,"
but on the other hand, in order to establish entitlement to
withholding of deportation under Section 243(h)(1), an alien
must show "a clear probability" of a threat to life or
freedom. INS v. Cardoza-Fonseca , 480 U.S. 421, 428 (1987);
Fatin v. INS , 12 F.3d 1233 (3d Cir. 1993).
Chang's petition requires us to decide whether the term
"persecution" under the INA includes the prosecution that
Chang purportedly faces upon return to China and, if so,
whether that persecution is "on account of" Chang's
political opinion. We must also review whether Chang has
demonstrated a "clear probability" of a threat to life or
freedom so as to qualify for withholding of deportation and,
in addition, whether he has established a "well-founded"
fear of persecution so as qualify for a discretionary grant of
asylum by the Attorney General.
Our review of the BIA's decision is narrow. As to the
BIA's construction of the INA, if Congress has evidenced
"clear and unambiguous intent concerning the precise
question" before us, then we give effect to that intent.
Chevron, U.S.A., Inc. v. National Resources Defense Counsel ,
467 U.S. 837, 843 (1984); Marincas v. Lewis , 92 F.3d 195,
200 (3d Cir. 1996). If the statute is silent or ambiguous, we
7
permissible construction of the statute." Chevron , 467 U.S.
at 843; Fatin v. INS , 12 F.3d at 1239. Under this standard,
we will not substitute our own judgment for that of the BIA,
but we must also reject any interpretation by the BIA that
is "arbitrary, capricious, or manifestly contrary to the
statute." Chevron , 467 U.S. at 844 . On questions of fact, we
will reverse the BIA's determination that Chang is not
eligible for asylum and not entitled to withholding of
deportation only if a reasonable fact-finder would have to
conclude that the requisite fear of persecution existed. INS
v. Elias-Zacharias , 502 U.S. 478, 480 (1992).
A. Punishment Under "Generally Applicable" Laws
We begin by considering whether Chang has failed to
show that he qualifies for asylum or withholding of
deportation simply because he fears punishment under
China's Security Law, which the BIA concluded is
"generally applicable." Chang fears prosecution under the
security laws because he did not report the actions of other
delegates which suggested they would defect, because he
did not return to China, because he sought asylum in this
country, and because he spoke with the FBI. The BIA
reasoned that since the security laws that Chang violated
were "generally applicable," Chang had not shown that he
would be prosecuted for an "invidious reason." Therefore,
the agency concluded, whatever punishment Chang feared
could not constitute "persecution" within the meaning of
the statute.2
The statute itself does not define the term persecution. As
a general matter, however, we have held that fear of
prosecution for violations of "fairly administered laws" does
_________________________________________________________________
2. The BIA refers to "persecution as contemplated by Section 208(a) and
243(h) of the Act." Section 243(h) does not use the term "persecution,"
instead it requires a "clear probability of a threat to life or freedom" on
account of one of the enumerated factors. We understand the BIA as
concluding that prosecution under generally applicable laws cannot
qualify as "persecution" under Section 208(a) or as a "threat to freedom"
on account of one of enumerated factors under Section 243(h).
Consistent with the BIA's language, we use the term "persecution" to
refer to the standard under both Sections 208(a) and 243(h).
8
withholding of deportation. Janusiak v. INS , 947 F.2d 46
(3d Cir. 1991); see also Abedini v. INS , 971 F.2d 188, 191
(9th Cir. 1992); In Matter of Acosta 19 I. & N. Dec. 211, 233
(BIA 1985). The refusal to equate fugitive status with
eligibility for asylum prevents the United States from
becoming a haven for "common criminals." See Kovac v.
INS , 407 F.2d 102, 104 (2d Cir. 1969). Thus those who
violate laws governing fraudulent passports, military
conscription, the distribution of certain films and videos,
and population control do not merit asylum based on their
fear of punishment for the crime that they committed.
Janusiak , 947 F.2d at 48 (rejecting claim of persecution
based on prosecution for bribing passport officials); M.A. v.
INS , 899 F.2d 304, 312 (4th Cir. 1990) (rejecting claim that
penalties for evading laws of conscription constitute
persecution); Abedini , 971 F.2d at 191 (holding that
punishment for avoiding military conscription, use of false
passport, or distributing Western films was not
persecution); Chen v. INS , 95 F.3d 801, 806 (9th Cir. 1996)
(violating population control laws and fear of possible
punishment under those laws does not constitute
persecution).
Nothing in the statute or legislative history suggests,
however, that fear of prosecution under laws of general
applicability may never provide the basis for asylum or
withholding of deportation. To the contrary, the statute
provides protection for those who fear persecution or
threats to life and freedom "on account of" a number of
factors, including religion and political opinion, without
distinguishing between persecution disguised as "under
law" and persecution not so disguised. As the Second
Circuit cautioned, in a case concerning illegal departure
from Yugoslavia, "the memory of Hitler's atrocities and of
the legal system he corrupted to serve his purposes ... are
still too fresh for us to suppose that physical persecution
may not bear the nihil obstet. of a `recognized judicial
system.' " Sovich v. Esperdy , 319 F.2d 21, 27 (2d Cir.
1963). The language of the statute makes no exceptions for
"generally applied" laws; if the law itself is based on one of
the enumerated factors and if the punishment under that
law is sufficiently extreme to constitute persecution, the law
9
deportation even if the law is "generally" applicable.
This reading of the statute, unlike the BIA's, is both
faithful to the language of the statute and consistent with
its legislative history. In the 1980 Refugee Act, Congress
amended the INA to include Section 208(a), providing for
discretionary grants of asylum to those who qualify as
refugees. The Act also amended Section 243(h), making
withholding of deportation mandatory if the alien
demonstrates a clear probability of harm on account of one
of the enumerated factors. INS v. Cardoza-Fonseca , 480
U.S. 421, 429 (1987). One of Congress's "primary purposes"
in enacting the 1980 law was to harmonize United States
law with the United Nations Protocol Relating to the Status
of Refugees ("U.N. Protocol"), to which the United States
became a party in 1968. U.N. Protocol Relating to the
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S.
No. 6577. Congress specifically sought to define "refugee" in
accordance with the Protocol; the definition of refugee
under the 1980 Act is thus almost identical to the
definition in the Protocol. Id. at Art. 2; See Cardoza-
Fonseca , 107 S. Ct. at 1215- 1216 (reviewing legislative
history). In interpreting the Protocol, and especially the
definition of "refugee," the courts have been guided by the
Office of the United Nations High Commissioner for
Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status ("Handbook"), which lacks the
"force of law" but nonetheless provides significant guidance
in construing the Protocol. Cardoza-Fonseca , 480 U.S. at
439 n.22; Marincas v. Lewis , 92 F.3d 195, 204 (3d Cir.
1996); Osorio v. INS , 18 F.3d 1017, 1027 (2d Cir. 1994).
The Handbook unequivocally provides that persecution is
not the same as "punishment for a common law offense,"
Handbook ¶ 56, but it is equally clear that prosecution
under some laws - such as those that do not conform with
accepted human rights standards - can constitute
persecution. Id. at ¶ 59.
Moreover, prosecution under the type of law at issue
here, one which restricts its citizen's entry into, or stay in,
other countries, has long been recognized by the BIA, by
the courts, and by the Handbook, as providing a possible
basis for a claim of persecution. As the Handbook sets out:
10
The legislation of certain States imposes severe
penalties on nationals who depart from the country in
an unlawful manner or remain abroad without
authorization. Where there is reason to believe that a
person, due to his illegal departure or unauthorized
stay abroad is liable to such severe penalties his
recognition as a refugee will be justified if it can be
shown that his motives for leaving or remaining outside
the country are related to the reasons enumerated in
Article I A(2) of the 1951 Convention.
Handbook at ¶ 61. Thus, according to the Handbook, if
the asylum-seeker's motives in leaving his or her country
were "related" to "political opinion," and the applicant faces
"severe penalties" under the laws of the state, prosecution
under those laws can constitute persecution. In Matter of
Janus & Janek , 12 I. & N. Dec. 866 (BIA 1968); Rodriquez-
Roman v. INS , 98 F.3d 416, 427 (9th Cir. 1996); Sovich v.
Esperdy , 319 F.2d 21 (2d Cir. 1963); Coriolan v. INS , 559
F.2d 993, 1000 (5th Cir. 1977)3.
Similarly, the Handbook provides that
In determining whether a political offender can be
considered a refugee, regard should also be had to the
following elements: personality of the applicant, his
political opinion, the motive behind the act, the nature
of the act committed, the nature of the prosecution,
and its motives; finally, also the nature of the law on
which the prosecution is based. These elements may go
to show that the person concerned has a fear of
persecution and not merely a fear of prosecution and
punishment-within the law-for an act committed by
him.
_________________________________________________________________
3. Matter of Janus and Janek involved brothers who claimed asylum
based on their fear of punishment under Hungarian law for overstaying
their visits in the United States and for seeking asylum. The BIA
reasoned that "[i]t cannot be said, across the board, that every statute
imposing criminal sanctions for unauthorized travel outside of a
particular country must be devoid of political implications." The BIA
concluded that the brothers faced not "punishment for violation of an
ordinary criminal statute" but instead "persecution for the political
offenses" committed against Hungary. 12 I. & N. Dec. at 875.
11
as the BIA did in this case, that a law applies "generally"
and therefore prosecution under that law cannot support a
claim for asylum or withholding of deportation. Rodriquez-
Roman , 98 F.3d 416; Fisher v. INS , 37 F.3d 1371, 1382
(9th Cir. 1994); see also Bastanipour v. INS , 980 F.2d 1129
(7th Cir. 1992). Based on the language and legislative
history of the statute, we are constrained to reject the BIA's
interpretation of the term persecution because it is not
based on a permissible construction of the statute.
Chevron , 467 U.S. at 844 .
B. Persecution "on Account of Political Opinion"
We now consider whether the persecution that Chang
claims he faces is "on account of political opinion" and
therefore comes within the purview of the INA. We have
rejected the BIA's conclusion, and the INS's argument, that
the general applicability of China's law, without more,
answers this question. The INS also argues, however, that
under INS v. Elias-Zacharias , 502 U.S. 478 (1992), Chang
has not shown that China's punishment of him would be
"on account of" his political opinion because China may be
motivated by factors other than Chang's political opinion in
electing to prosecute him. After our review of the conduct
that the China seeks to compel, of Chang's reasons for
violating the rules, and of the nature of the rules in
question, we hold that the evidence compels the conclusion
that China's motives in enforcing its rules against Chang
are based on Chang's political opinion.
Contrary to the IJ's reasoning in this case, the evidence
permits no other conclusion than that Chang's violation of
the Security Law was motivated by his "political opinion."
In the words of the BIA, Chang "chose not to report the
possibility [that some of his colleagues would not return to
China] because he feared that the suspected delegates
would have been returned to China, fired from employment,
and imprisoned regardless of whether they had intended to
remain in the United States." Chang defied the Chinese
government's orders because he disagreed with the
government's treatment of those who might defect.4 He took
_________________________________________________________________
4. The dissent finds that Chang's own testimony belies such a
conclusion. See p. 26. But at the hearing Chang was asked why he did
12
manner in which that government would punish the other
delegates. To characterize this action and Chang's
motivation in taking it as anything other than political
narrows the term "political" beyond recognition.5 Unlike
those, for example, who violate population control laws
because they want more children, see Chen v. INS , 95 F.3d
801, 805 (9th Cir. 1996), or those who violate exit control
laws in search of economic opportunity, see Si v. Slattery ,
864 F. Supp. 397, 406 (S.D.N.Y. 1994), Chang failed to
report his fellow delegates based solely on his disagreement
with the punishment that they were likely to face at the
hands of the Chinese government. This action came not
because of, but in spite of, his concerns for his family and
his fear of retaliation.
The IJ reasoned that Chang
did make a choice not to return to China and [ ] it
_________________________________________________________________
not call the Chinese Embassy and report his colleagues. Chang
responded that he was "familiar with China's conditions. This things has
a bearing of the person's life, future," and that upon return to China the
individuals who broke the rules "will be put in a special check room --
check room, a block house security agency, a military, and then to make
clear -- to make sure what happened. Anyhow, they will lose their job
and lose job, keep them (indiscernible) until the security agency they
made (indiscernible)." (A.R. 122-123). Chang in effect is stating that he
did not report his colleagues because of the punishment that they would
face in China. (This is also exactly what the BIA found. (A.R. at 3)). On
the basis of such testimony, we find it reasonable to conclude that
Chang was defying the orders of the Chinese government because he
disagreed with the government policy behind them. We do not find it
necessary for Chang to use the word "political" in order to satisfy the test
set forth in Fatin v. INS , 12 F.3d 1233, 1242 (3d Cir. 1993).
5. See , e.g. , the definition of"political" in Black's Law Dictionary, 5th Ed.
(1979):
Pertaining or relating to the policy or the administration of
government, state or national. Pertaining to, or incidental to, the exercise
of the functions vested in those charged with the conduct of government;
relating to the management of affairs of state, as political theories; of or
pertaining to exercise of rights and privileges or the influence by which
individuals of a state seek to determine or control its public policy...."
13
could be believed or perceived by many that his choice
of not returning to China was somehow motivated on
the principle that he opposes in some way to the
Chinese government. The respondent, however, has not
manifested such opposition. He has manifested in his
application his support and sympathy for incidents
such as the Tianamen Square incident in 1989 and his
reluctance to restrict individuals when they are abroad
conducting their profession. Yet, that is not the test
that the Court must apply in determining whether or
not such manifestations are such that they warrant
political asylum.
To the contrary, the evidence compels a reasonable fact
finder to conclude that Chang has "manifested" opposition
to the Chinese government. His actions in defying the
orders of the Chinese government because he disagreed
with how they would treat those suspected of trying to
defect did exactly that. Simply because he did not call
himself a dissident or couch his resistance in terms of a
particular ideology renders his opposition no less political.
See Osorio v. INS , 18 F.3d 1017, 1029 (2d Cir. 1994)
(reasoning that resistance is no less political simply
because alien did not state that he belonged to a political
party, or which political philosophy he supported).
We must, of course, look beyond Chang's motives to
those of China. Elias-Zacharias , 502 U.S. 478 (1992),
requires that China's enforcement of its Security Law be
"on account of " Chang's political opinion in order for
Chang to qualify for relief. Indeed, an applicant for asylum
must show not that the persecutor's motives for
persecuting the applicant are "political" in some general
sense but instead that the persecutor is motivated
specifically by the political opinions of the asylum-seeker.
Thus the Court held in Elias-Zacharias that persecution for
failing to join a guerilla movement was not, on its face, "on
account of " the applicant's political opinion. Instead the
guerillas sought to fill their ranks and retaliated against
those who refused to fight based on their refusal to fight,
not based on their political opinion.
The Immigration Judge in this case made no adequate
finding as to the Chinese government's motives in enforcing
14
concludes that Chang did not fear persecution on account
of one of the enumerated grounds. The BIA based its
reasoning that Chang's persecution was not on account of
political opinion because the law, under which he would be
prosecuted, applies generally. This is a conclusion,
however, that we have already rejected.
In addition to ignoring the U.N. Handbook and relevant
cases, the BIA and Immigration Judge also failed to
consider the nature of the statute being enforced and the
actions that China sought to compel by that statute, both
of which help determine the motives of the alleged
persecutor. For example, enforcement of a statute aimed at
the expressive conduct of political dissidents would
constitute persecution based on "political opinion," but the
enforcement of rules governing conscription does not
necessarily constitute persecution. This distinction is
necessary to effectuate the language of the INA - otherwise,
breaking any "law", no matter how directly that law was
aimed at political opinion, would permit the state to say
that it was punishing the conduct of breaking the law, not
the political opinion that led to that conduct.6 See Perkovic
v. INS , 33 F.3d 615, 622 (6th Cir. 1994) (holding that
punishment under laws against peaceful political
expression is "on account of" political opinion); Bastanipour
v. INS , 980 F.2d 1129, 1132 (7th Cir. 1992) (reaching the
unassailable conclusion that prosecution under law against
apostasy is "on account of " religion); Rodriguez-Roman v.
INS, 98 F.3d 416 (9th Cir. 1996) (holding that punishment
for politically-motivated violations of exit laws constitutes
punishment "on account of" political opinion).
In this context, we conclude that China's enforcement of
the rules governing Chang's unauthorized stay in this
country and his refusal to report others who violated
_________________________________________________________________
6. One could virtually always argue that prosecution under laws
prohibiting political dissent is not "on account of" political opinion
because the persecutor is concerned with the action, not the opinion
that motivates it. (i.e., "we prosecute him because he says things critical
of the government, but we do not care if he actually holds this opinion.").
Elias-Zacharias does not require this result.
15
provides a one year prison term for those who do nothing
more than violate its exit control laws. As the Ninth Circuit
has reasoned:
The Second Circuit stated the proposition
unequivocally: "It would be naive to suppose ... that
punishment for illegal departure ... is not politically
motivated, or does not constitute punishment because
of ... political opinion." [ Sovich v. Esperdy , 319 F.2d 21
(2d Cir. 1963)]. Because the crime is intended to
punish those who exhibit a grave form of disloyalty to
their homeland, we simply acknowledge here what
should by now have been apparent to all: that a state
which severely punishes unlawful departure views
persons who illegally leave as disloyal and subversive
and seeks to punish them accordingly. Thus the motive
that a petitioner must show on the part of the state is
initially established on the face of a statute that
criminalizes illegal departure.
Rodriguez-Roman v. INS , 98 F.3d at 430 (internal footnote
omitted).
The nature of China's Security Law makes clear the
importance of scrutinizing the statute or rules pursuant to
which the applicant claims prosecution is likely. According
to the Human Rights Watch/Asia, July 29, 1994 Report,
which is part of the administrative record, "the principal
objective" of the 1993 Regulations for the State Security
Law "appears to be to frighten dissidents into halting their
activities." The Report goes on to say that the State Security
Law may be used to prosecute "all activities actionable
under the `counterrevolution' clauses of the Criminal Code,
while avoiding the alarm caused in the international
community by the overtly political language of the latter."
To this end the regulations leave "completely vague and
open to political interpretation" the definition of "harm to
state security." Although we recognize that the use of
materials prepared by "watchdog" organization is not
without its problems, see M.A. v. I.N.S. , 899 F.2d 304, 313
(4th Cir. 1990), this report at least suggests that the INS
should have carefully examined China's motives in
enforcing its Security Law. We do not suggest that relief to
16
particularly where they conflict with findings of the
Department of State. In this case, however, the Human
Rights Watch/Asia report is consistent with the State
Department report that is also part of the administrative
record and which says, in part, that although in "several
instances" the Chinese government brought its behavior
"into conformity with internationally accepted human rights
norms," that China has not yet "significantly mitigated
continuing repression of political dissent."7
Moreover, even if we should determine that the law itself
does not establish the requisite motive, we would
nonetheless conclude that Chang's unique situation
compels the realization that the state's motive is, in part,
political. In selecting Chang to head the delegation, the
Chinese government entrusted him with politically sensitive
obligations to limit the freedoms of other delegates by
preventing them from meeting or talking with other people
without permission, by restricting their use of the phones,
and by reporting all suspicious behavior to the Chinese
Embassy. When Chang, specifically selected by the
government to preform these sensitive tasks, refused to
comply because he disagreed with the punishment that the
government would mete out for violations, China's
enforcement of the security laws is at least in part"on
account of " Chang's political opinion. To argue that Chang
is prosecuted merely for "breaking the law" and not on
"political" grounds is to turn a blind eye to the motives of
the government. Those motives are, at least in part, to
punish those, like Chang, who have manifested opposition
_________________________________________________________________
7. The United States Department of State released a new CHINA COUNTRY
REPORT ON HUMAN RIGHTS PRACTICES FOR 1996 on January30, 1997, which
documents that in 1996 "[s]ecurity policy and personnel were
responsible for numerous human rights abuses," and that the Chinese
government "continued to commit widespread and well-documented
human rights abuses ... stemming from the authorities' intolerance of
dissent, [and] fear of unrest...." This report plays no role in our decision,
however, because it is not part of the record in this case.
17
others from taking similar political actions.8
The INS argues that China may have been motivated by
legitimate concerns of protecting confidential state
information. As an initial matter, we note that neither the
BIA or the IJ mentioned this consideration as a basis for
their opinions, nor did they make a factual finding or
indeed, even suggest, that these were China's motives. More
fundamentally, even if this concern motivated the Chinese
government in part, we conclude that China was also
motivated, at least in part, by Chang's opposition to official
policy. Osorio v. INS , 18 F.3d 1017, 1028 (2d Cir. 1994)
(finding that the plain meaning of the phrase"persecution
on account of the victim's political opinion" does not mean
persecution solely on account of the victim's political
opinion). This conclusion is based on the statute itself,
which provides potentially harsh punishment for mere
violation of the exit laws, on the responsibilities with which
Chang was entrusted, on the appearance of disloyalty and
political opposition as a result of Chang's actions, and on
Chang's actual motivations in breaking China's laws. See
Matter of Janus and Janek , 12 I. & N. Dec. 866, 874 (1968)
(considering Janus' standing in the Communist party, his
_________________________________________________________________
8. Our conclusion does not suggest that all Chinese visitors who overstay
their visas or emigrate without permission are eligible for asylum.
Chang's fear of persecution upon return is not based simply on his
departure, it is also based on his refusal - on political grounds - to
report his colleagues as he was instructed to do. This political
resistance, not economic concerns, generated his fear and led to his
overstaying his visa. We leave for another occasion the question under
what circumstances an applicant, who violates exit laws but who has no
political motive in so doing - although perhaps the government imputes
such a motive - may qualify for asylum based on fear of prosecution
under the exit laws. See Rodriquez-Roman , 98 F.3d at 430 (holding that
the applicant must flee homeland for political reasons in order to qualify
for asylum based on violating exit laws.)
Moreover, as the next section discusses, Chang's fear of persecution
upon return is unique and compelling. Thus those who flee China for
economic reasons, or because they have violated another statute, may be
able to prove neither that China's persecution of them would be "on
account of" their political opinion or that their fear of persecution is
"well-founded," but in this case we reach neither question.
18
severity of punishment that he faced, and the government's
concern with defection, and concluding that Janus faced
not punishment for violating an ordinary criminal statute,
but persecution for the political offense he has committed
against the state).
C. The "Well-Founded" Fear of Persecution and the
"Clear Probability of Persecution" Standards
Chang must demonstrate that his fear of persecution is
"well-founded" in order to qualify for a discretionary grant
of asylum under section 208(a) of the Refugee Act of 1980.
He must also show that he faces a clear probability of harm
to qualify for mandatory withholding of deportation under
Section 243(h) of the Act. We will reverse on these two
questions only if a reasonable fact-finder would be forced to
conclude that Chang has shown the requisite fear of
persecution. Elias-Zacharias , 502 U.S. at 481 . Under the
"clear probability" of persecution standard of§ 243(h), the
Attorney General must withhold deportation if Chang
demonstrates that upon return to China "his life or freedom
would be threatened" on account of one of the statutory
factors. 8 U.S.C. § 1253(h)(1); Fatin , 12 F.3d at 1237. To
meet this standard, Chang must show with objective
evidence that it is "more likely than not" he will face
persecution if he is deported to China. INS v. Cardoza-
Fonseca , 480 U.S. 421, 430 (1987).
The test under § 208(a) is less exacting; Chang need only
show that he has a subjective fear of persecution that is
supported by objective evidence that persecution is a
reasonable possibility. See Cardoza-Fonseca , 480 U.S. at
430, 440; Matter of Mogharrabi , 19 I. & N. Dec. 439, 445
(BIA 1987) (holding that "an applicant for asylum has
established a well-founded fear if he shows that a
reasonable person in his circumstances would fear
persecution"). This lesser standard does not require a
showing that persecution is more likely than not. Fear can
be well-founded even "when there is a less than 50%
chance of the occurrence taking place." Cardoza-Fonseca ,
480 U.S. at 431 . If Chang meets this standard, the Attorney
General may, but is not required to, grant asylum.
19
upon return to China, we begin with a consideration of the
possible punishment that Chang faces under China's laws.
China's treatment of those who violate the security laws is
relevant both as to how likely it is that Chang will be
punished and as to whether or not such punishment would
constitute persecution. Only if that punishment is severe
enough to constitute "extreme conduct," can it constitute
persecution. See Fatin v. INS 12 F.3d 1233, 1240
(reasoning that the term persecution does not "encompass
all treatment that our society regards as unfair, unjust, or
even unlawful or unconstitutional"). Although"generally
harsh conditions shared by many other persons" do not
constitute "persecution," id. (quoting In Matter of Acosta , 19
I. & N. Dec. 211, 233 (BIA 1985)), the term does include
threats to life, confinement, torture, and economic
restrictions so severe that they constitute a real threat to
life or freedom. Fatin , 12 F.3d at 1240. To prove his claim,
Chang must therefore show either that he has a well
founded fear or that there is a clear probability that he will
suffer not just harm, but harm that qualifies as
"persecution" under this standard.
According to Chang's testimony at the hearing before the
Immigration Judge and in his application for asylum, upon
return to China, Chang would be arrested, detained in a
"block house," imprisoned, and lose his job. The INS
introduced into evidence a United States Department of
State Report on country conditions in China, which notes
that Article 176 of the Criminal Code provides a prison
sentence of up to one year for violating China's exit laws.
Most economic immigrants, according to the Report, are not
imprisoned upon return to China, although some repeat
offenders have received one year "administrative sentences"
of imprisonment in labor camps. Chang submitted a report,
authored by Ross Munro of the Foreign Policy Institute,
which found that because of Chang's access to privileged
information, his high status in the Chinese government,
and the position with which the Chinese government
entrusted him, Chang would face a longer sentence. The
Department of State Report concluded that political
dissidents in general do not fare well in China; the Report
relates that "in 1994 there continued to be widespread and
20
violation of internationally accepted norms, stemming both
from the authorities' intolerance of dissent and the
inadequacy of legal safeguards for freedom of speech,
association and religion." Such abuses "include arbitrary
and lengthy incommunicado detention, torture and
mistreatment of prisoners." AR 0199.
The BIA did not discuss the likelihood that Chang would
face persecution on return to China, and it is difficult to
determine exactly what the immigration judge concluded on
this subject. The immigration judge stated in his oral
opinion that "as indicated, in country conditions [sic] the
government of China does not persecute its members
simply for returning after they have been in another
country illegally." Leaving aside the problem that Chang
has done more than remain in this country illegally, the "as
indicated" does not refer to any previous discussion or
statement by the judge concerning the country conditions
of China. The judge stated in the previous paragraph that
he was not convinced that Chang "would, in fact, be
punished as that term is defined under the Act as a means
of persecution for any political opinion." This appears to go
to the motives of China in exacting punishment, not to
whether it enforces its security laws, and nowhere does the
judge state a basis for reaching any conclusion about the
"country conditions of China."9 Indeed, at the outset of the
opinion the judge stated that neither the State Department
report nor the report of Ross Munro provided much "weight
to its decision."
As discussed, Chang testified that both he and his fellow
delegates faced potential imprisonment and economic
repercussions for violations of the security laws, a claim
that the BIA repeated without comment. The IJ made no
finding that this testimony lacked credibility. See Sotto v.
INS , 748 F.2d 832, 837 (3d Cir. 1984) (remanding in part
because IJ and BIA must articulate reasons for discrediting
_________________________________________________________________
9. The opinion appears to confuse three distinct issues: whether Chang's
fear of persecution is well-founded, whether what he fears is severe
enough to constitute "persecution," and whether the punishment that he
fears would be imposed for one of the statutorily prohibited grounds.
21
(9th Cir. 1994) (reasoning that although the IJ is in the
best position to make credibility determinations, the IJ
must offer a specific reason for disbelieving the applicant's
testimony or the court should accept the testimony as
true); see also , Salameda v. INS , 70 F.3d 447, 451 (7th Cir.
1995) (vacating BIA order that did not "address[ ] in a
rational manner the questions that the aliens tendered for
consideration"). Further, the State Department Report,
introduced by the INA, supports this claim. Chinese law
provides that violations of exit laws alone can result in a
year of punishment, and those who express political
opposition to the Chinese government may face
imprisonment and torture. It is uncontroverted that Chang
violated the security laws in several ways, and as the IJ
acknowledged, Chang's actions "could be believed or
perceived by many" as being motivated by political
opposition to the Chinese.
Under these circumstances, punishment of up to one
year of imprisonment under Article 176, and perhaps
significantly more, are sufficiently severe to constitute
"persecution" under this Circuit's standard in Fatin . See
Rodriguez-Roman v. INS , 98 F.3d 416, 431 (9th Cir. 1996)
(concluding that three years in prison for leaving Cuba
qualifies as persecution); Janus & Janek , 12 I. & N. at 875
(holding a year long sentence enough to constitute
persecution for leaving Hungary). We simply cannot credit
the IJ's unexplained conclusion about China's country
conditions. And even if it is true that China does not
generally punish those who simply violate its exit laws, that
conclusion has little to do with this case, where the
violation of the security laws was far more extensive and
fraught with political implications.
We now turn to a related inquiry -- the likelihood that
Chang will experience this persecution if he is returned to
China. In addition to the information about China's laws in
general, the evidence in this case is that 1) Chang violated
China's Security Law by remaining in the United States and
by failing to report others to the Chinese government; 2)
one other member of the delegation also failed to return to
China; 3) China is aware that Chang remained in this
22
and may be aware that he seeks asylum; 4) Chang held a
high-level position in the Chinese government and was
privy to confidential state technical information; 5) China
has treated his defection as "foreign affairs incident" and
posted his photograph at the local security office; 6) the FBI
told Chang that he was "in danger"; 7) Chang's wife was
forced to retire early and his son is not allowed to attend
the university. The IJ noted that the information about the
incident being treated as a foreign affairs incident was
provided by Chang's sister, but that she did not submit a
letter, although "she probably could have done so." We
defer to this conclusion that the evidence from the sister
lacked credibility, and we do not consider it further. The IJ
also noted that Chang gave no confidential information to
the FBI and that it is not clear that the Chinese
government is aware that Chang sought political asylum in
this country or met with the FBI.
It would be virtually impossible for Chang to demonstrate
what the Chinese government does or does not know about
his conversations with the FBI or about his application for
asylum. It is beyond dispute, however, when a high-ranking
state employee entrusted with supervising an entire
technical delegation suddenly and inexplicably fails to
return to China, leaving his important positions with the
Chinese government and his entire family behind, that the
Chinese government may suspect that the he applied for
asylum in this country. Even assuming, however, that
China does not know or believe that Chang applied for
asylum, Chang has demonstrated disloyalty to the Chinese
through his unauthorized stay in this country such that,
given his position with government and his responsibilities
in supervising the delegation, it is more likely than not that
he faces persecution upon return.
In reaching this conclusion, we are particularly mindful
of the responsibilities with which Chang was entrusted by
China and of the unusual role of FBI in this case. Chang
did not initiate contact with the FBI. The uncontroverted
evidence shows that the FBI told Chang that he was in
"danger." Certainly this constitutes strong objective
evidence that Chang was, in fact, in danger. The FBI agent
23
immigration officer. And although we do not know what the
Chinese government knows of Chang's meetings with the
FBI, we agree with Chang that, regardless of whether he
gave information to the FBI, the Chinese government is
more likely than not to believe that he did. Of course, the
Chinese government may not know anything of his meeting
with the FBI. This possibility is one factor in the calculus,
but we cannot disregard the possibility that China does
know of the FBI meeting.
III. CONCLUSION
Considering the evidence of China's laws and practices
and the facts of Chang's case, we are compelled to conclude
that Chang faces a better than even likelihood that he will
experience a significant term of imprisonment that
constitutes persecution if he is returned to China. Chang is
thus entitled to withholding of deportation under 8 U.S.C.
§ 1253(h). He also meets the less exacting requirements of
8 U.S.C. § 1158(a), and is therefore eligible for a
discretionary grant of asylum. The order denying witholding
of deportation and asylum is therefore vacated, and the
case is remanded for the Attorney General's decision as to
whether Chang is entitled to a discretionary grant of
asylum.
24
The facts of this case, as recounted in the majority's
opinion, arouse considerable sympathy for petitioner Feng
Chu Chang. There is, however, no basis for upsetting the
decision of the Board of Immigration Appeals.
The immigration judge and the BIA found that Chang
failed to prove that he had a well-founded fear of
persecution on account of political opinion. We are required
to uphold that decision unless no reasonable factfinder
could have so found. See INS v. Elias-Zacarias , 502 U.S.
478, 481 (1992). In Fatin v. INS , 12 F.3d 1233 (3d Cir.
1993), we held that:
In order to prevail on a withholding-of-deportation or
asylum claim based on political opinion, an alien must
(1) specify the political opinion on which he or she
relies, (2) show that he or she holds that opinion, and
(3) show that he or she would be persecuted or has a
well-founded fear of persecution based on that opinion.
Id . at 1242.
In this case, Chang argues that if he is returned to China
he will be prosecuted for violating that country's state
security law. Even if one assumes that the prosecution that
Chang fears qualifies as "persecution," and even if one
assumes that Chang's fear is "well-founded," the
immigration judge and the BIA had reasonable grounds for
finding that such prosecution would not be "on account of"
Chang's "political opinion." See 8 U.S.C. §1101(42)(A). This
is so for the simple reason that Chang has never specified
any political opinion that he holds and that is at odds with
the Chinese government.
The relevant evidence is easily summarized. Chang, who
had no desire to defect, became suspicious that one or
more members of his delegation intended to do so, but his
suspicion was just that; Chang was uncertain of his
colleagues' true intentions. A.R. 112-13, 115-16, 122.
Chang was thus forced to choose between fulfilling his duty
under Chinese law by reporting his suspicions to the
Chinese Embassy, thus causing possibly undeserved
problems for his colleagues, and respecting his loyalty to
25
sure of their plans.
Chang testified that he decided not to inform on his
colleagues without better information. A.R. 113, 115-16
(Chang's testimony that "[he wouldn't] like to do this" before
he obtained "new evidence" to "make sure" of their
intentions). This was certainly a humane and
understandable decision. But, contrary to the majority's
conclusion, there is no evidence that it was a political
decision. According to the majority, a reasonable factfinder
would be compelled to find that "Chang failed to report his
fellow delegates based solely on his disagreement with the
punishment that they were likely to face at the hands of the
Chinese government." Maj. Op. at 13. The majority holds
that Chang "manifested opposition to the Chinese
government" by "defying the orders of the Chinese
government because he disagreed with how they would
treat those suspected of trying to defect." Maj. Op. at 14.
These conclusions are belied by Chang's own testimony.
At no time has Chang said that he opposes the Chinese
law prohibiting defection; at no time has Chang said that
he opposes the punishment that his colleagues would have
faced if he had reported them; and at no time has Chang
said that he opposes the Chinese government's requirement
that a delegation leader surveill his fellow delegees. Indeed,
so far as the record reflects, Chang has never articulated
any political opinion at odds with the Chinese government.
Rather, his testimony makes it clear that his
unwillingness to report his colleagues was based solely on
his uncertainty regarding their true intentions. As Chang
explains in his brief, he
made a conscious choice not to contact the Embassy.
He reasoned that he did not want to report the
individual unless he was absolutely sure of his
intentions. In the event that he chose to report an[ ]
individual to the government, that individual would
suffer severe repercussions. He did not want to cause
any problems for individuals who may be otherwise
innocent.
26
(same; Chang's brief before the BIA); A.R. 115-17 (Chang's
testimony that "[he wouldn't] like to -- to report them to the
Chinese embassy" "before [he could] make clear" their true
intentions); A.R. 122 (Chang's testimony that it was "hard
. . . to make a decision" because there was "no way to make
-- make sure" of his colleagues' plans); A.R. 113.
Rather than representing political opposition to China's
state security law, Chang's conduct simply reflects a
concern for accuracy in its enforcement. See Chang Br. at
31 (Chang's conduct was intended "to avoid false
accusations of an otherwise innocent individual"). Such a
concern is honorable, but I fail to see how it compels the
factual conclusion that Chang "defied" the Chinese
government because he held a political opinion contrary to
the state security law.10 Accordingly, I dissent.
_________________________________________________________________
10. The majority holds that, for a variety of reasons, the evidence
compels the conclusion that China's motive in prosecuting Chang for
violating the state security law is, in part, political. Maj. Op. at 15-16.
Because of its conclusion that Chang's conduct was based "on political
grounds," the majority does not need to reach the question whether an
asylum applicant can show the requisite fear of persecution "on account
of . . . political opinion" where he in fact has manifested no political
opinion but his home country's government erroneously imputes to him
a disfavored political opinion. See Maj. Op. at 17 n.7. I am not aware of
any case in which an asylum applicant prevailed on a claim of
"persecution" on account of "political opinion" where he did not hold any
political opinion at odds with his home country's government and did
not present any evidence that his home country's government had
attributed a specific political opinion to him.
In Rodriguez-Roman v. INS , 98 F.3d 416 (9th Cir. 1996), the court held
that in order to show that prosecution for unlawful departure constitutes
"persecution," the applicant "must prove that he is one of the persons at
whom the illegal departure statute was directed-- persons who flee their
homeland for political reasons." Id . at 430 (citations omitted). See also
id . at 426. The majority endorses the proposition that "if the asylum-
seeker's motives in leaving his or her country were`related' to `political
opinion' . . . prosecution under [unlawful departure laws] can constitute
persecution." Maj. Op. at 11. However, the majority errs in applying it to
27
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
this case, because, as I have explained in the text, there is no evidence
that Chang's conduct was based on any political opinion.
Moreover, courts accepting the "imputed opinion" theory have not
merely presumed that a foreign government has attributed a political
opinion to the applicant; rather, they have required that the applicant
actually "produce[ ] evidence of such a mistaken imputation." Chen v.
INS , 95 F.3d 801, 806 (9th Cir. 1996). See Singh v. Ilchert , 69 F.3d 375,
379 (9th Cir. 1995) (relying on evidence that "the police imputed to
Singh the beliefs of the Sikh separatists and harmed him on that basis");
Singh v. Ilchert , 63 F.3d 1501, 1509 (9th Cir. 1995) (relying on evidence
that the applicant was tortured because he was suspected of being a
Sikh separatist); Desir v. Ilchert , 840 F.2d 723, 729 (9th Cir. 1988)
(relying on evidence that the Ton Ton Macoutes "attributed subversive
views" to Desir). Under Elias-Zacarias the fact that the Chinese
government may have a political motive in prosecuting Chang does not
show that the prosecution would be "on account of " Chang's "political
opinion." See 502 U.S. at 482 . And Chang did not present evidence
sufficient to compel the conclusion that the Chinese government has
imputed a political opinion to him. See id . ("Nor is there any indication
(assuming, arguendo, it would suffice) that the guerrillas erroneously
believed that Elias-Zacarias' refusal was politically based").
28