United States Court of Appeals

Fifth Circuit



## FILED

August 9, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-60670

XIAODONG LI,

Petitioner,

versus

ALBERTO GONZALES,

Attorney General of the United States,

Respondent.

Petition for Review of an Order from

the Bureau of Immigration Appeals

Before GARWOOD, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The question presented in this case is whether a Chinese Christian who was prosecuted for

holding an illegal religious gathering and conducting an underground church was persecuted on

account of hi s religio us beliefs, which would entitle him to withholding of removal pursuant to 8

U.S.C. § 1253(h) of the Imm i gration and Nationality Act. The immigration judge found Li to be

eligible for withholding of remo val. The Board of Immigration Appeals (BIA) reversed the

immigration judge's decision and dismissed Li's application. Li brings this petition for review of the

BIA’s order. For the following reasons, we affirm the BIA’s decision.1 As of Ma rch 1, 2003, the INS's administrative, service, and enforcement functions were

transferred from the Department of Justice to the new Department of Homeland Security. The Bureau

of Im migration and Customs Enforcement in the Department of Homeland Security assumed the

INS's detention, removal, enforcement and investigative functions.

2 FACTUAL AND PROCEDURAL BACKGROUND

Xiaodong Li, a native and citizen of the People’s Republic of China, was admitted to the

United States as a crewman on a cruise ship on November 4, 1995, with permission to remain until

his ship left port for a period not to exceed twenty-nine days. Li did not depart as required, and the

Immigration and Naturalization Service (INS) instituted removal proceedings on September 21,

1999. 1 Li appeared before an immigration judge (IJ) on October 14, 1999, admitted the allegations

against him and conceded t hat he was subject to removal. Li applied for asylum, withholding of

removal, and protecti on under the Convention Aga inst Torture Act (CAT), and in the alternative,

sought voluntary departure.

The IJ conducted a hearing, during which Li, represented by counsel, was the only witness

to testify. Through an interpreter, Li gave the following testimony during the hearing: Li grew up

in Ningbo, China, and his parents continue to live there. Li was born into a Christian family, but the

Chinese leadership, the Chinese Communist Party, suppressed religious activities, and his parents did

not allow him to participate in the church.

Li’s friend, Gao Ying, invited him to jo in a government church in November 1989, and Li

signed up to be a member. In December 1989, the administrators of Li’s school learned of his

participation in the church and warned him against participating in a religion that did not support the

Chinese Communist Party. The administrators threatened to discharge Li from school and to inform

the police if he continued his participation. Li ended his participation in the government church.3

Li then became involved in an underground church. He and his friend, Gao Ying, organized

a group of six or seven members and held meetings at Li’s home on Sundays. Li’s parents did not

approve of the meetings because they feared trouble if the police found out about them. During the

meetings, the group studied the Bible and exchanged religious materials. The meetings began in

December 1989, and continued through April 1995.

In December 1994, the police came to Li’s house during a meeting, but found no religious

materials and took no action. The police warned Li not to spread reactionary materials or religious

materials. The group continued to have meetings, and the police returned in April 1995, at which

time they found religious materials in Li’s home. The police advised Li that he was holding an illegal

gathering, and Li responded that the Constitution gave him the freedom to practice a religion. The

pol ice arrested Li for being a reactionary. He was the only participant arrested because he was

recognized as the organizer of the gathering at his home.

Li was handcuffed and taken to the police station, where he was placed in a room and told

to kneel. When he refused, the police beat him, kicking his leg in the back, hitting him in the head,

and pulling his hair, forcing him to kneel. The police interrogated Li, seeking his admission that he

was involved in an illegal gathering and h ad co nducted an underground church, but Li refused to

plead guilty. Li stated that there were two policemen in the room and one was holding a police bar,

which he used to hit Li if the officer did not like Li’s responses to the questions.

After two hours of questioning, Li signed a written confession, acknowledging that he was

pleading guilty to conducting an illegal gathering against the gover nment and o rganizing an

underground church. Li was detained with a number of other prisoners under abusive conditions for

five days, until he was bailed out by his uncle. Li lost his job and the police forced him to work in4

the streets cleaning public toilets, without pay. He continued do ing this work until he left the

country.

Li obtained a visa and a passport and left the country on November 4, 1995. After he had

agreed to plead guilty, Li had been told that a hearing would be set in six months. He left the country

before the hearing was conducted because he believed that he would have been sentenced to prison.

Li testified that he did not believe that there was any part of China whe re he could practi ce hi s

religion without harassment.

Li did not file an application for asylum until July 1999 because he had planned on returning

to China. He testified that he had hoped that China’s policy on religious practice would change, and

he could return home without being subject t o persecution. Li reported that he had sent religious

materials back to China and that when the po lice discovered the materials, in March 1999, they

interrogated his family members. The police warned his family to report to them if Li returned to

China and warned them that if they did not the family members would be charged with an offense.

After that incident, Li stated that he realized that China’s policy had not changed toward underground

churches and that conditions had worsened. He learned in May 1999 that his friend, Gao Ying, had

been arrested and sentenced to prison for two years. Li testified that he believed that if he returned

to China, he would face oppression, arrest, interrogation, jail time, and torture.

Li admitted on cross-examination that he had never registered his church and that it was an

underground church. He explained that if he registered the church, the Government would use it for

its own propaganda purposes. He agreed that it was against the law in China to have an underground

church and that he had been arrested for a legal violation. Li also admitted that he had no problems

with the church in the six years prior to the police visit in 1994. He stated that the bar used to beat5

him was an electric black wand and that the officer shocked him with the bar if the officer dislike Li’s

responses. After Li was released from detention, he did not see a doctor o r go to the hospital for

treatment because he had been fired and the medical costs would have been high. Li testified that he

obtained a passport from the foreign affa irs and training department in June 1995, and a visa in

October. He was able to fly out of Shanghai without being stopped.

Li testified that he left the cruise line in January 1996, and moved to Houston, where he lives

with a friend. Li applied for asylum in August 1999, after learning of his friend’s imprisonment for

religious activities, his family’s interrogation in March, and that the police were loo king for him

because he had sent religious materials to China.

Reports the state department submitte d as evidence reflect that the Chinese Government’s

policy is to allow religious groups only if the group advocates the communist doctrine of socialism,

and that a campaign occurred, between 1994 and 1997, to suppress the activities of all unregistered

religious groups.

The IJ denied the application for asylum because Li failed to fil e it within one year of his

arrival. The IJ also determined that Li was not entitled to relief under CAT. Li has not challenged

the IJ’s ruling denying his application for asylum or the denial of relief under the CAT. However, the

IJ granted L i wit hho lding of removal and held that Li cannot be removed to China unless

circumstances there change. In his oral decision, the IJ found that Li was a credible wit ness with

respect to his testimony about his personal experience in China. The IJ also determined that the

testimony was consistent with the information provided by the United States State Department about

the practices in China regardin g undergro und religious organizations. The IJ recognized that

unregistered religious activity in China is a punishable offense. The IJ further noted that the materials6

provided by the State Department showed that between 1994 and 1997, which included the time of

Li’s 1995 arrest, the police had stepped up a campaign against unregistered religious groups.

The IJ determ

ined t hat t he Chinese law against unregistered religious activities was an

institutional form of persecution aimed at persons engaged in religious activities who cannot be

controlled by the Government. The IJ found no evidence that the prohibition against unregistered

religious gro ups is related to a legitimate attempt to stop terrorism or other legitimate interests in

public order. The IJ concluded that if Li returned to China, it was more likely than not that he would

be subject to persecution based on his religious activities in 1995.

The INS appealed the IJ’s order granting withholding of removal. The BIA determined that

Li was a credible witness but concluded that he had failed to show that it was more likely than not

that he would be persecuted if he returns to China. The BIA averred t hat Li was punished for

violating the law regarding unregistered churches and not because of his religion. The BIA further

stated that the Chinese Government has a legitimate right to enforce the laws which it enacts and that

Li’s fears were of prosecution and not persecution. Finally, the BIA concluded that punishment by

the Chinese government for violating its strict regulations of the amount of religious mate rials

available to its cit izens and the amount of materials brought into the country is also not a form of

persecution. Li subsequently filed a timely petition for review.

DISCUSSION

"We have authority to review only an order of the BIA,

. . . unless the IJ's decision has some

impact on the BIA's decision." Mikhael v. INS , 115 F.3d 299, 302 (5th Cir. 1997) (citing Chun v.

INS , 40 F.3d 76, 78 (5th Cir.1994)). Here, the BIA did not adopt the decision of the IJ, thus, our

review is limited to the BIA's decision.7

We review factual

findings of the Board to determine if they are supported by “substantial

evidence” in

the record which means we will reverse the Board’s factual findings only when the

evidence i s "so compelling that no reasonable factfinder could fail to find the requisite fear of

persecution." I NS v. Elias-Zacarias

, 502 U.S. 478, 481 (1992). The BIA’s legal conclusions are

reviewed de novo

. Rojas v. INS , 937 F.2d 186, 189 (5th Cir. 1991).

This court will “accord deference to the BIA's interpretation of immigration statutes unless

the record reveals compelling evidence that the BIA's interpretation is incorrect.” I d. In reviewing

the BIA’s construction of immigration statutes, if Congress has evidenced clear and unambiguous

intent concerning the question before he court, then the court will give effect to Congress ’ intent.

White v. INS , 75 F.3d 213, 215 (5th Cir. 1996) (citing Chevron, U.S.A., Inc. V. Nat’l Resource s

Defense Council, Inc. , 467 U.S. 837, 842-43 (1984)). If a statute is silent or ambiguous, the court

will defer to the agency’s interpretation if it is based on a permissible construction of the statute. I d.

Under this standard, the court will not substitute its judgment for that of the BIA, but the court must

reject any interpretation by the BIA that is arbitrary, capricious, or manifest ly contrary to a statute.

Chevron , 467 U.S. at 844.

Li asserts tha t when t he BIA denied his application for withholding of removal, the Board

failed to apply its own

established precedent. He argues that the BIA has considered certain

criteria–criteria he fails to ident ify– in evaluating whether prosecution by a foreign sovereign amounts

to persecution on account of a protected ground or punishment for a criminal act. He contends that

the criteria the BIA has used in its analysis essentially boils down to a nexus test; i.e. whether there

is a nexus between the conduct the law proscribes and a threat to the applicant’s life or freedom based

on a protected ground. He contends that in contravention of the BIA’s own past precedent, the2 Section 1253(h)(1) read:

The Atto rney General shall not deport any alien (other than an alien described in

8 Board stated Li faces prosecution for a criminal violation and not on account of a protected ground

without conducting a nexus test. Li argues that applying the BIA’s own rules to the facts of his case,

it is clear that there is a close nexus between the conduct proscribed by China’s law on unregistered

churches and religious conduct, which is protected by statute. Li emphasizes that China’s law against

unregistered churches is targeted to prohibit undoub t ably religious activities, i.e. unregistered

communal worship, the study of sacred texts, etc.

The government counters that the record evidences that China does not prohibit registered

religions. Instead, the government contends that China’s motivation for its law that prohibits

unregistered churches is tied to its desire to control religion in order to maintain social order, not a

desire to persecute based on religious beliefs. The government asserts that there is not sufficient

evidence in the record to compel the finding that Li’s criminal prosecution amounts to persecution

on account of his religion.

An otherwise deportable alien who claims they would be persecuted if deported has two

met ho ds of relief available to them: withholding of removal and asylum. The alien applying fo r

withholding must demonstrate that “his life or freedom would be threatened in the proposed country

o f removal on account of race, religion, nationality, membership in a particular social gro up, o r

political opinion.” 8 C.F.R. § 208.16(b). Unlike asylum claims, which are granted to qualified aliens

at the discretion of the Attorney General, the former § 1253(h) of the immigration statute requires

that the Attorney General withhold deport at io n o f an alien if his “life or freedom would be

threatened” on account of one of the enumerated grounds. 2 8 U.S.C. § 1253(h)(1996). Congress’section 1251(a)(4)(D) of this title) to a co unt ry if the Attorney General determines

that such 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.

9 purpose in

enact ing § 1253(h) was to mirror the provisions of the United Nations Convention

Relat ing t o the Status of Refugees, which imposes a mandatory duty on contracting states not to

return an alien to a country in which his life or freedom would be threatened on account of the same

enumerated grounds. I NS v. Cardoza-Fonseca

, 480 U.S. 421, 429, 436-37 (1987) (citing Article

33.1 of the Convention, 189 U.N.T.S. 150, 176 (1954), reprinted in 19 U.S.T. 6259, 62 76). The

Handbook on Procedures and Criteria for Determining Refugee Status, issued by the Office of the

United Nations High Commissioner, provides significant guidance in construing the United Nations

Convention Relating to the Status of Refugees and, consequently, Congress’ intent as to the asylum

and withholding of removal statutes. Id. at 438, 439 n.22.

Although the term persecution is not used in the withholding of removal statute, the Supreme

Court has established that an alien applying for withholding of removal has the burden to prove that

there is a "clear probability of persecution" upon return to his country of origin. I NS v. Stevic

, 467

U.S. 407, 413 (1984). A "clear probability" means that the applicant will more likely than not be

persecuted if deported. C ardoza-Fonseca

, 480 U.S. at 430; Stevic

, 467 U.S. at 429-30. The alien’s

testimony alone, if credible, is sufficient to sustain the burden. 8 C.F.R. 208.16(b). “If the applicant

is determined to have suffered past persecution in the proposed country of removal on account of

race, religion, nationality, membership in a particular social gro up, or political opinion, it shall be

presumed that” he has satisfied his burden. 8 C.F.R. §208.16(b)(1).

The term “pe rsecution” is not defined in the immigration statute, C hang v. INS , 119 F.3d10

1055, 1060 (3rd Cir. 1997), therefore, the court must accept any interpretation by the BIA that is

not arbitrary, capricious, or manifest ly contrary to the statute. C hevron

, 467 U.S. at 844. The BIA

has defined persecution as “harm or suffering that is inflicted upon an individual in order to punish

him for possessing a belief or characteristic a per secutor seeks to overcom e.” Accord M atter of

Acosta

, 19 I. & N. Dec. 211, 212 (BIA 1985). Prosecution for violating laws of general applicability

does not constitute persecut io n, unless the punishment was motivated by one of the enumerated

grounds and the punishment was sufficiently serious or arbitrary. A bdel-Masieh v. INS

, 73 F.3d 579,

584 (5th Cir. 1996) ("While punishment of criminal conduct in itself is not persecution, where that

punishment

. . . is 'excessive or arbitrary'--and is motivated by one of the specified grou nds, such

punishment would constitute persecution under the Act."); Acosta

, 19 I & N. Dec. at 222 (stating

that punishment for violating laws of general applicabilit y, such as violating travel restrictions, is not

persecution unless the punishment was imposed for “invidious reasons.”); Chang

, 119 F.3d at 1061

(fear of prosecution may be persecution “[i]f the prosecution is motivated by one of the enumerated

factors, such as [religious freedom], and if the punishment under the law is suff icient ly serious to

constitute persecution”) ; INS v. Rodriguez-Roman

, 98 F.3d 416, 427-29 (9th Cir. 1996) (holding that

prosecution for illegal departure can constitute persecution if the punishment is motivated by the

alien’s political opinion and the punishment is severe); Sovich v. Esperdy

, 319 F.2d 21, 28-30 (2d

Cir.1963).

The Supreme Court has held that persecution is “on account of” one of the protected grounds

if the persecutor’s motivation to harm the victim is on account of the victi m’s possession of the

characteristic at issue. E lias-Zacarias

, 502 U.S. at 482. The Court stated, as an example, that the

Nazi regime’s persecution of Jews was not persecution on account of political opinion. Id. While,11

the Nazis’ persecution was part of the pursuit of their political goals, the Nazis were not motivated

by a desire to overcome a political opinion held by Jews; therefore, the persecution was not “o n

account of” political opinion. Likewise, the Court stated that “if a fundamentalist Moslem regime

persecutes democrats, it is not engaging in persecution on account of religion.” I d. The federal

courts and the BIA have also recognized that an alien may demonstrate that a persecutor’s actions

were on account of a protected characteristic even if a persecutor had mixed motivations; a

persecutor does not have to be motivated solely by the vict im’s possession of a protected

characteristic. G irma v. INS

, 283 F.3d 664, 667-68 (5th Cir. 2002) (holding that the alien need not

prove that the persecutor was motivated by a prot ected ground to the exclusion of all other

mo t ivations). The question thus becomes whether China was motivated, at least in part, by Li’s

religion in punishing Li.

The BIA held that Li did not establish that he would be persecuted if he was returned to China

because Li did not prove that his punishment was on account of his religion. The BIA held that Li

was punished for violating the law regarding unregistered churches and not because of his religion.

The BIA noted that “China does not prohibit registered religions and its law is a legitimate sovereign

right ‘not institutional persecution.’”

We find it necessary at this point to examine China’s regulation of rel i gion in order to

determine whether the Chinese government was punishing Li on account of his r eligio n when it

charged him with violating its religious regulations. The evidence in the record establishes the

following: China recognizes five "official" religions: Catholicism, Protestantism, Buddhism, Islam and

Taoism. D E P ’ T OF S TATE

, 106 TH C ONG

., C OUNTRY R EPORTS ON H UMAN R IGHTS P RACTICES FOR

1998 855 (Comm. Print 1999). Religious groups must be registered with the government’s Religious12

Affairs Bureau (RAB). I d. at 854-55. Government sanctioned “patriotic religious organizations”

supervise religious groups and must in turn report to the RAB. Id. Religious activity is permitted

only at places of worship and by groups that are registered with the RAB and com e under the

supervision of the corresponding patriotic organization. I d. at 853-57. For example, the government

legally permits only Christian groups registered with the Catholic Patriot ic Associ ati on or the

(Protestant) Three-Self Patriotic Movement committee. D E P ’ T OF S TATE

, B UREAU OF D EMOCRACY

,

C HINA : P ROFILE OF A SYLUM C LAIMS AND C OUNTRY C ONDITIONS 6-7 (April 14, 1998). Since Li

would be classified as a Protestant, his group would be supervi s ed by the Three-Self Patriotic

Movement committee. T he Th ree-Self Patriotic Movement committee is a political organization

established to oversee official Protestant church matters, prom ote patriotism and prom ote the three

principles of self-administration, self-support, and self-propagation. Id.

To become a registered religious group, the group must: possess an approved meeting place;

contain citizens who are religious believers and who regularly take part in religious activity; have an

organized governing board; have a minimum number of followers; have a set of operating rules; and

have a legal source of income. D E P ’ T OF S TATE

, 106 TH C ONG

., C OUNTRY R EPORTS ON H UMAN

R IGHTS P RACTICES FOR 1998 854. Li testified that other than the fact that his group had a regular

meeting time and place, his group had no governing board or rules or other such formal structure.

For this reason, Li's practice of meeting with seven other friends at his home to study the bible and

sing hymns would not have been blessed with the government’s approval and granted registration.

The Chinese government reported in 1997 that there are over 12,000 churches and 25,000

meeting places for the 10 to 15 million registered Protestant citizens; however, there are anywhere13

from 30 million to 80 millio n Chinese citizens who worship in house churches that are independent

of government control like Li. I d. at 856. Unofficial groups claim that government authorities often

refuse them registration without explanation, but, it is not the case here that Li attempted to register

his group but was refused. I d. Religious activity that is not conducted by a group registered by the

government at a place of worship sanctioned by the government is illegal. The State Department’s

country report in the record establishes that unregistered religious groups are the targets of

harassment, detention, physical abuse, and interrogations. Id. at 838-39, 854-58.

The BIA credited Li’s testimony that he suffered at the hands of the Chinese government

because of his unregistered religious activities, and the record reflects that the Chinese government–

particularly during the time period in whic h Li was targeted– harassed, interrogated, detained and

physically abused members of unauthorized religious groups. However, as the government and the

BIA observe, China does permit registered Protestant groups to practice their religion. The country

report states that members o f registered religious groups report little to no harassment from the

government. Li testified that when he was a member of a registered Christ ian church he suffered

harassment and threats from his school, but harassment from his school is insufficient to constitute

persecution.

Li argues that it should be beyond peradventure that he was persecuted on account of his

religion because he was arrested and abused as a result of clearly religious activities. We agree that

it is axiomatic that Li was punished because of religious activities, nonetheless, it does not necessarily

follow that Li was punished because of his religion. With respect to the question of whether he was

persecution based on his religion or whether he faces prosecution for his activities, albeit religious

activities, it is a close question and Li’s arguments have some force as shown by the IJ’s decision,3 Li stated that he did not want to register his religious group because he did not agree with

the Government's requirement that registered churches prom ote Commu nism and alter church

teachings so as to not conflict with Socialist thought. Li also testified that the police accused him of

being a reactionary against the government and he was arrested for, inter alia

, conducting an illegal

gathering against the government. The Government asserts that China regulates religion based on

a concern that unregulated religious gatherings are a challenge to their authority and an alternative

t o Communist thought. Finally, the Three-Self Patriotic Movement committee that registered

Protestant groups are supervised by is a “political” organiza t io n. Based on this record, perhaps it

would have been more appropriate for Li to argue that he was persecuted based on his political

opinion.

14 which found in his favor . Nevertheless, the BIA concluded that the record shows Li faces

prosecution for illegal activities if returned to China, n ot persecution on account of rel i gi on. The

standard of review co nfines us t o grant a reversal only if the evidence presented is such that a

reasonable factfinder would have to conclude that persecution existed. S ee Elias-Zacarias

, 502 U.S.

at 481. We must find that the evidence in the record c ompels reversal of the BIA’s conclusion. I d.

at 481 n.1 (stating that to reverse the BIA’s factual finding that persecution on account of political

opinion existed, the court must find that the evidence not only supports that conclusion but compels

it). Having conducted an independent review of the record, we are unable to conclude that the record

before us compels reversal. The record establishes that the Chinese government does permit millions

of its citizens to practice Christianity without punishment as long as they are members of registered

groups. The evidence suggests that the Chinese government condones, or rather tolerates, the

Christian faith and seeks to punish only the unregistered aspect of Li’s activities. There is therefore

reasonable, substantial, and probative evidence to support the BIA’s decision that Li’s punishment

was for his activities and not for his religion, and there is nothing in the record that mandates us to

find otherwise. I d. Thus, there is nothing in this record that compels us to find that it is more likely

than not Li would be persecuted based on his religion if he was returned to China. 34 Notwithstanding the substantial discussion by the immigration judge and the BIA as to the

many complexities of this case, one of the many probing questions that there is no definit ive answer

to is whether Chinese law makes a distinction between merely praying or discussing religious beliefs

at home with family or friends, and organizing and operating an unregis tered church. There i s no

definitive determination in the record as to how broadly Chinese law defines a “church” or a

“religious group” (or whether Ch inese law precludes a registered church from having a home

location). We are not called upon to determine whether prosecution for merely saying a personal

prayer in the presence of one or more others, or discussing religious beliefs at home in the presence

of one or more others, is persecution on account of religion.

15 Clearly, we are faced with a complicated issue in this case. The issue in this case is perplexing

not only because it involves affairs of a foreign state that are contrary to our fundamental ideals but

also because the line between religious belief and religious activity here is indeed a fine one and it is

colored by sensitive political and religious concerns. However, while we may abhor China’s practice

of restricting its citizens fr o m gat hering in a private home to read the gospel and sing hymns, and

abusing offenders, like Li, who commit such acts, that is a moral judgment not a legal one. 4 We are

restricted by the confines of the withholding of removal standard and the record before us. Based

on both, we cannot conclude that the BIA erred in denying Li withholding of removal.

CONCLUSION

For the foregoing reasons, we AFFIRM the BIA’s denial of Li’s application for withholding

of removal.

AFFIRMED.