U.S. court calls for deportation of tortured Chinese Christian Li Xiaodong of Ningbo, China, who was seeking for asylum status from religious persecution. While Fifth Circuit judge wrote that China's practice of religious confinement is a moral judgment, not a legal one, Andrew Painter, senior protection officer for the United Nation High Commissioner for Refugees, said the Fifth Circuit decision "seems to miss the point" and sets an "artificial distinction between religion and religious activities that would not appear to be justified."
The 5th Circuit found that in 1995 Li was a member of an underground evangelical Christian church meeting at his home on Sundays. He was arrested for holding an illegal church service and then interrogated at length at the local police department for "being a reactionary." Li was handcuffed, beaten, and had his hair pulled. He was then kicked, forced to kneel, and hit with a police bar when the Chinese police did not like Li's responses to their questions, according to the three-judge panel of the 5th Circuit. Li was jailed for five days and then forced by the police to clean public toilets without pay.
In August, a three-judge panel of the federal Fifth Circuit Court of Appeals affirmed the board's ruling. The decision has alarmed refugee and religious-freedom advocates. They say the ruling, unless overturned, will make it much more difficult for future asylum-seekers to prove religious persecution.
Dori Dinsmore, former advocacy director for World Relief, an international organization that assists refugees, said the appeals court decision "sends a chilling message that the United States is beginning to turn its back on people fleeing from religious persecution."
Last year, U.S. immigration courts completed about 65,000 applications for asylum. Of those cases, about 20 percent of the applicants were granted asylum, the plurality of which came from China. Asylum allows refugee to work in the United States and later apply for permanent residence. To gain asylum, applicants must prove they are refugees escaping persecution because of their nationality, membership in a particular social group, political, opinion, race, or religion.
Ann Buwalda, founder and executive director of human-rights group Jubilee Campaign USA, said in response to Fifth Circuit ruling, "Essentially, you've removed religion as a basis of gaining asylum."
Chris Bentley, a spokesman for the U.S. Citizenship and Immigration Services bureau, declined to comment on the impact Li's case could have on other asylum applicants. The agency is "reviewing the judge's decision, and then we'll take appropriate actions," Bentley said.
The Chinese law against unregistered religious activities is "simply an institutional form of persecution," according to the immigration judge who tried Li's case.
However, U.S. Attorney General's Office argued. China was simply motivated by a desire to maintain social order in prosecuting Li for engaging in illicit religious activities, not persecute based on his religious beliefs, the office said.
The line between religious belief and religious activity in Li's case is a fine one, according to the Fifth Circuit judge writing the opinion in the case.
"While we may abhor China's practice of restricting its citizens from gathering 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," he wrote.
Because the Chinese government tolerates Christianity, so long as it's practiced in a registered group, the Fifth Circuit concluded that reasonable evidence supports the Board of Immigration Appeals decision that Li was punished for illegal activities and not for his religion.
Painter plans to soon meet with officials from the Department of Homeland Security and Department of Justice to discuss Li's case and the harm the court ruling could cause to future asylum seekers.
Li's Houston-based attorney, Garrett White, said his client, now 32, plans to appeal, both to the full ring of Fifth Circuit judges and to the U.S. Supreme Court. The Alliance Defense Fund has joined Garrett as co-counsel.
"The three-judge panel erred as a matter of law and as a matter of human rights," stated ADF Senior Legal Counsel David Cortman, attorney for Li. "This is one of the most clear-cut cases imaginable, and the torture and persecution for merely being a Christian are undisputed. We just hope that fear of embarrassing China did not play a role in this terrible decision."
