By DEACON MIKE MANNO
(Editor’s Note: Deacon Mike Manno, an attorney, is director of deacons for the Diocese of Des Moines and host of Iowa Catholic Radio’s Faith On Trial program [www.iowacatholicradio.com]. He can be reached at deaconmike@iowacatholicradio.com.)
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What constitutes religious persecution in the eyes of the U.S. government? A case heading to the Supreme Court may give a somewhat conclusive answer to the question.
The question being put to the court, if it decides to hear it, comes from a Chinese national who entered the country illegally, fleeing what he claimed was religious persecution by the Chinese government. His claim of religious persecution was rejected by the Board of Immigration Appeals (BIA) and by a three-judge panel of the Tenth Circuit Court of Appeals.
Ting Xue, according to the court, is a “long-practicing, faithful Christian. He was raised as a Christian by his mother and baptized in 1998 when he was thirteen years old.” He would attend services two to three times a week at an illegal “house church.” In October of 2007 authorities raided the church and arrested everyone there.
During his interrogation, Xue was slapped and struck with a baton and held in a “small, dim, jail cell” with four of his fellow worshipers with only a wooden bucket to use as a toilet. They were fed porridge twice a day and were harassed for their habit of praying before eating. He was released after four days when his mother paid a fine equaling over half of Xue’s annual income. When he was released, he was forced to sign an agreement that he would not attend any more “illegal” church meetings.
Xue, after his release, continued to attend the church; however, about two weeks after his release from jail, the church was again raided, but this time Xue was not there. Those who were in attendance were sentenced to jail for a year. Police, apparently concerned that Xue was still a member of the church, told his mother that he would be “severely punished” if he did not report to police.
At that point Xue fled and ultimately entered the United States through Mexico in July of 2008. In his application for asylum he claimed religious persecution by the Chinese authorities. Ultimately the BIA and the court found that Xue failed to show a reasonable probability of future persecution if he were to be returned to China, and denied his request for asylum. In April Xue asked the Supreme Court to review his case.
The case raises some interesting legal and political questions concerning what exactly is considered religious persecution and does explore a seeming split in the circuit courts of appeal.
One of the reasons the Tenth Circuit turned Xue down was that it determined his treatment was “not sufficiently severe” to show past persecution. “Persecution requires the infliction of suffering or harm…in a way regarded as offensive and must entail more than just restrictions or threats to life or liberty,” the court wrote.
“Absent a showing of past persecution, the [immigration judge] recognized Xue was not entitled to a presumption of a well-founded fear of future persecution.”
Thus, the court concluded that what Xue went through was not real persecution since he was only harmed once, required no medical treatment, and did not suffer any lasting physical effects. Additionally, Xue did return to his church almost immediately after his release.
Nor did the court find that Xue would suffer any future persecution if he returned to China. The court noted that he was able to leave China under his own name which “supports a conclusion that the authorities were not actively pursuing him”; he had not offered any new evidence that the authorities had any continuing interest in him; and his mother, who also participated in the underground church, and had held meetings in her home, had not been arrested or detained.
“The BIA could reasonably conclude that the fact Xue’s family remains in China unharmed and continues to attend unregistered church services, including hosting a weekly service in the family home, demonstrates Xue will not be targeted upon a return to China,” the court wrote, giving little deference to the fact that those arrested a second time had been given yearlong jail sentences.
In its holding, the court relied upon a 2008 Tenth Circuit decision, Vicente-Elias v. Mukasey in which asylum was also denied. However, in that case the main claim was economic. Arturo Vicente-Elias was of Mayan ancestry and spoke the Quiche language which put him at a disadvantage in his native Guatemala, where he claimed “Spanish-speakers refuse to employ [those who] communicate in indigenous languages.”
The result, according to Vicente-Elias, was a “deliberate imposition of substantial economic disadvantage.” During the immigration hearings, Vicente-Elias claimed he left Guatemala “to escape extreme poverty.”
The court easily found that the discrimination Vicente-Elias faced “does not reach the level of hardship which would qualify . . . as persecution.”
But a case more friendly to Xue was Kazemzadeh v. U.S. Attorney General, a 2009 case from the Eleventh Circuit Court of Appeals. It was filed by an Iranian, Hani Kazemzadeh, who converted from Islam to Christianity and feared he would be put to death if returned to Iran. Iranians born Christian could practice their faith openly, he had testified, but converts from Islam to Christianity “practice underground” because they are subject to execution.
He also told the immigration authorities that he was part of a free speech movement in Iran and had been arrested and detained several days, was beaten, tortured, and denied access to his family. Later, after he fled, he was convicted in absentia as Agitator against the Islamic Republic, and sentenced to six years in prison.
Here, as in the prior cases, the BIA dismissed Kazemzadeh’s appeal on the grounds that he had failed to establish his eligibility for asylum. It ruled that he failed “to establish that he was persecuted on account of his political opinion because he ‘failed to allege that he suffered any specific harm’ as a result of his arrest, interrogation, beating, and detention.”
Here, however, the court had little trouble reversing the BIA. “The applicant need not establish a reasonable possibility of persecution if the applicant instead proves that he is a member of, or is identified with, a group that is subject to a ‘pattern or practice’ of persecution in his country of nationality.”
The court also approvingly cited a sister court in stating, “We agree with the decision of the Seventh Circuit that having to practice religion underground to avoid punishment is itself a form of persecution.”
The general rules for this type of asylum require that the threat against the individual is nationwide; economic suffering is not, in itself, reason for granting asylum; and even if the asylum seeker has not yet suffered persecution, a genuine fear of future persecution is sufficient. Additionally, the persecution does not need to come from the government, it may come from groups that either work with permission or tolerance of the authorities, or that the government cannot control.
Xue’s petition to the Supreme Court was filed April 24 and a response is required in late June. If the High Court does hear the appeal, Xue v. Sessions will certainly clear the air as to what exactly is considered religious persecution in the context of asylum seekers.
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