Long Hao Li v. Attorney General of the United States

633 F.3d 136, 2011 U.S. App. LEXIS 1947, 2011 WL 294037
Court of Appeals for the Third Circuit·Decided February 1, 2011·No. 09-4116·Published·Cited by 32 cases

Opinions

OPINION OF THE COURT

RENDELL, Circuit Judge.

Long Hao Li, a citizen and national of China who is ethnically Korean, seeks withholding of removal based on his fear of persecution for violating Chinese laws forbidding citizens from providing assistance to illegal immigrants from North Korea. Li presented testimony that he assisted North Korean refugees, that Chinese authorities sought to arrest him, and that he fled to the United States to avoid arrest. Li concedes that he violated Chinese law, but argues that his arrest and prosecution for that violation would amount to persecution “because of’ his political opinion, thus satisfying the requirements for withholding of removal.

Under our precedent, prosecution under a generally applicable law can provide the basis for withholding of removal, but only where the petitioner establishes a connection between the prosecution and his or her political opinion, such that the persecution (if shown) would be “because of’ that opinion. In this case, the law at issue is a [138] generally applicable law that penalizes people for assisting those who cross the border illegally. It does not automatically raise political concerns. Moreover, Li has not offered any specific evidence concerning his political opinions, the Chinese government’s awareness of those political opinions, or the nature of the government’s enforcement of the law that would raise suspicion that the prosecution of Li for violating that law would relate to a political opinion. Because Li failed to adduce evidence that raises an inference of political persecution, as opposed to legitimate prosecution under Chinese law, and because substantial evidence supports the BIA’s determination that Li failed to establish a clear probability of persecution, we will deny his petition for review.

I.

Li entered the United States without authorization at an undetermined date and location. On April 20, 2007, he applied for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture. Li claimed that he would be arrested and jailed for helping North Korean refugees cross the border into China if he returned to China. Li conceded that his conduct was illegal under Chinese law.

To support his application, Li submitted: an affidavit describing the particulars of his claims; various forms of identification establishing certain biographical facts; an affidavit from his wife attesting to circumstances surrounding his arrival in New Jersey; a translated letter from his mother, who still lives in China, stating: “All you did was to help pitiful people who were in awkward position. How can it be such a crime that police is after you to arrest”; a two-page article from an organization called “HighBeam Research” and a report from a non-governmental organization called the International Crisis Group describing the plight of North Koreans who try to escape from North Korea, including those who cross the border into China; and an excerpt of a China “Country of Origin Information Report” published by the United Kingdom Home Office Border & Immigration Agency.

Among these materials, only the Home Office report provides any detail regarding the consequences for those who assist North Korean refugees, as opposed to the refugees themselves. Quoting what appears to be a 2006 United States State Department Report, the Home Office report states:

“(However), the [Chinese] government continued to deny the UNHCR permission to operate along its northeastern border with North Korea, arguing that North Koreans who crossed the border were illegal economic migrants, not refugees. During the year several thousand North Koreans were reportedly detained and forcibly returned to North Korea. Many faced persecution, and some may have been executed upon their return. Several hundred North Koreans were permitted to travel to third countries after they had entered diplomatic compounds or international schools in the country. There were numerous credible reports of harassment and detention of North Koreans in the country. The government also arrested and detained foreign journalists, missionaries, and activists, as well as some citizens, for providing food, shelter, transportation, and other assistance to North Koreans.”

A.R. 207 (emphasis added).

The Immigration Judge held a merits hearing on Li’s claims on February 1, [139]*1392008.1 As relevant here, Li testified regarding his “main purpose” in coming to the United States as follows: “[i]f I had stayed in China I’ll be arrested by the police and sentenced to serve time in jail ...” because “I did something illegal.” A.R. 128-29. When asked what he did that was illegal, Li testified, “I help a lot of refugees from North Korea. Help them ... smuggle to the United States.” A.R. 157. Specifically, Li explained that, over the course of a two-year period, he drove to the Chinese border with North Korea, where he picked up North Korean refugees crossing the river into China and transported them in his car or his company’s minivan to a person who would arrange food, shelter, and work for the refugees. A.R. 160-64.

Li testified, further, that he left China after an incident at the border in May 2006. Li drove his car to the border crossing to pick up refugees. As he waited in his car, Li watched the police descend and arrest the refugees and Li’s colleague, who was bringing the refugees to Li’s car. Li fled the scene in his car and, later, abandoned his car and returned to the city by taxi. Fearing arrest, he did not return home; instead, he hid at a friend’s house for ten days before deciding to come to the United States. Li testified that his colleague was sentenced to ten years in jail in connection with this incident and that, shortly thereafter, his contact who helped provide food, shelter, and work for the refugees also was arrested. Li testified that his mother told him that authorities visited her house and intended to arrest him, too. A.R. 164-68.

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Long Hao Li v. Attorney General of the United States, 633 F.3d 136, 2011 U.S. App. LEXIS 1947, 2011 WL 294037 (3d Cir. 2011).

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