Immigration authorities cannot deport an adherent of the Chinese spiritual movement Falun Gong to his native country, where he faces a “clear probability” of religious persecution, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
An immigration judge ignored compelling evidence supporting Hongke Zhang’s request for withholding of deportation, Chief Judge Mary M. Schroeder and Senior Judges Alfred T. Goodwin and A. Wallace Tashima wrote in a per curiam opinion.
Zhang, now 42, came to the United States on an employee visa in 1996. He returned to China twice within the following year, and testified at his immigration hearing that he became interested in Falun Gong during those trips. He said he introduced other members of his family to Falun Gong, as a result of which his brother was sent to a reeducation-through-labor camp and his parents were arrested and forced to write letters of self-criticism, and have had repeated police visits to their home.
Religious Principles
Falun Gong incorporates Buddhist and Taoist principles and involves meditation. The Chinese government has called Falun Gong an “anti-humanity evil cult” and a 2000 State Department report identified it as one of several religious movements that have been persecuted by the Chinese government.
Adherents have been known to mass in the thousands to demonstrate against the government, and say they are persecuted because they do not believe in Communism. While Falun Gong does not consider itself a religion and does not have clergy or fixed places of worship, the persecution of its followers is considered religious for purposes of immigration law because its founding principles are undoubtedly religious, the Ninth Circuit judges explained.
In Zhang’s case, however, the immigration judge ruled that neither the State Department report nor Zhang’s testimony about what had happened to his family was sufficient to qualify him for asylum or withholding of deportation.
The IJ explained that because he did not apply for asylum for one year after his last reentry into the United States, he had to show a material change in circumstances or extraordinary circumstances in order to qualify for asylum, and that he failed to make such a showing.
‘Pillar to Post’
As for withholding of deportation, which does not require such a showing, the IJ ruled that because the government was not “going from pillar to post, home to home, checking out each and every home about Falun Gong followers,” there was no reason why Zhang could not return to China and practice Falun Gong in his home.
The Board of Immigration Appeals summarily affirmed.
The Ninth Circuit panel said the IJ was correct with regard to asylum, but had misapplied the law with regard to withholding of deportation.
The persecution of Zhang’s family, the fact that he is now known to the Chinese government to be practitioner, and the findings of the State Department that thousands of followers have been sent to reeducation camps; hundreds imprisoned, many of whom died in custody; and many beaten and detained following peaceful demonstrations establish that Zhang is likely to be persecuted if he returns, the judges said.
The panel also rejected the IJ’s finding that Zhang can practice Falun Gong in his home. That finding is inconsistent with his testimony regarding the frequency with which the police visit his mother’s home, as a result of which she no longer feels free to practice Falun Gong there, the judges said.
Even if Zhang were free to practice in private, the judges added, this would not make him free from persecution in the legal sense.
“...[T]o require Zhang to practice his beliefs in secret is contrary to our basic principles of religious freedom and the protection of religious refugees,” the judges wrote.
The case is Zhang v. Ashcroft, 03-70930.