Tuesday, March 24, 2009
Court: Prosecution for Humanitarian Aid Was Persecution
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday revived the claim of one of three Chinese nationals of North Korean descent who sought asylum based upon alleged persecution for rendering humanitarian aid to North Korean refugees in China.
Ruling that the Board of Immigration Appeals’ finding that Chinese authorities’ alleged arrest and torture of Xun Li as a valid prosecution for a criminal act of harboring foreign citizens rather than persecution on account of political opinion lacked substantial evidence, the court granted Li relief.
The court rejected the consolidated petitions of the two other nationals, Xiangzhe Cui and He Yun Fang, in unpublished memoranda.
Li lived in Yanji City, located in a mountainous region in northeastern China’s Jilin Province, bordering North Korea. In 2001, he said he met North Korean citizen and Christian pastor who convinced him to convert to Christianity and began practicing in a nondenominational church which met weekly at the homes of members.
About a year later, Li claimed, police officers came to his home while he was hosting a service and arrested everyone in attendance, including two Christian North Korean refugees whom Li was sheltering in his house.
According to the U.S. Department of State, as many as 50,000 North Koreans have journeyed to China to escape famine and political repression in North Korea, risking their lives to do so as the North Korean Penal Code designates “defection” as a capital crime.
In a 2007 report, the department said that China views the North Koreans as economic migrants and does not allow them to apply for asylum. China also will not allow the United Nations or its own citizens to assist the refugees, the report stated.
Li claimed that the police who arrested him demanded a list of the names of the church members and how they had helped the North Koreans. After he refused to provide the information, Li said that he was beaten bloody and handcuffed outside the police station for nearly an hour in below-freezing temperatures while dressed only in his underwear.
He testified that he was sentenced to a labor camp where he spent 15 days before his family was able to bribe the police to secure his release. Li then fled China by way of South Korea to Vancouver, then to Seattle and ultimately to Los Angeles, where he requested asylum in May 2003.
Reasoning that Li had admitted to harboring an illegal alien, an immigration judge determined that Li’s detention and sentence were a legitimate sanction for violating Chinese law and denied Li’s request for relief, and the Board of Immigration Appeals affirmed without opinion.
Judge Kim McLane Wardlaw wrote on appeal that an alien’s fear of accountability for a criminal act will not entitle him to asylum in the United States, but noted that prosecution can rise to the level of government persecution if the prosecution lacks legitimacy.
Pointing to the absence of any Chinese statute or regulation criminalizing Li’s conduct of providing food, clothing and shelter to the North Koreans, and China’s treaty obligations to protect North Korean refugees, Wardlaw reasoned Li could not have been legitimately prosecuted for rendering aid.
“Li refused to obey the nebulous, unwritten policy that undocumented North Korean refugees should receive no aid from Chinese citizens, rather than leaving the refugees to starve, abject and unsheltered, or reporting them to the government to face repatriation and possible execution,” Wardlaw wrote.
She acknowledged the “unfortunate irony” that Li took actions consistent with American laws encouraging foreign nations to support North Korean refugees, and then, when persecuted on that basis, was declared unfit to seek asylum.
“It would be an odd form of justice, and one to which we do not subscribe, that would beseech people of good conscience to provide aid, officially designate recipients of the aid as refugees, and then determine that those who provided that aid are categorically ineligible to enter the United States when other governments persecute them for providing the aid,” Wardlaw added concluded.
Wardlaw, joined by Judges Mary M. Schroeder and Richard C. Tallman, remanded Li’s petition on the question of whether changed country conditions would rebut the presumption that Li had a well-founded fear of future persecution if returned to China.
Joseph S. Porta of the Law Offices of Cohen & Kim represented Li and predicted a “favorable” outcome on remand because he said he believes that China’s policy is the same now as it was when his client first sought asylum.
Having seen other cases involving the same issue, the attorney said that yesterday’s decision “clarifies where someone is being prosecuted and where someone is being persecuted, which can be a kind of touchy area,” and “will be beneficial for other asylum seekers.”
Miguel Olano of Santa Clarita and Patricia Vargas of Alhambra represented Xiangzhe Cui while Jarrett A. Green of Skadden, Arps, Slate, Meagher & Flom LLP represented He Yun Fang. They could not be reached for comment.
A spokesperson from the U.S. Department of Justice issued a statement that the department is reviewing yesterday’s decision.
The case is Li v. Holder, 05-70053.
Copyright 2009, Metropolitan News Company