Zhongkeng Tang v. Ashcroft

107 F. App'x 9
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 13, 2004
DocketNo. 03-1001
StatusPublished

This text of 107 F. App'x 9 (Zhongkeng Tang v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zhongkeng Tang v. Ashcroft, 107 F. App'x 9 (7th Cir. 2004).

Opinion

ORDER

Zhongkeng Tang, a native and citizen of China, seeks review of a decision of the Board of Immigration Appeals finding him removable, denying his application for political asylum and withholding of removal, and refusing voluntary departure. For the reasons set forth below, we grant the petition for review and vacate and remand the Board’s decision.

Facts and Background Proceedings

Tang is seeking asylum based on his connection with “Yi Guan Dao.” Yi Guan Dao, or the ‘Way of Basic Unity,” is a religion that combines elements of Confucianism, Daoism, Buddhism, and Christianity. See U.S. Dept. of State, China: Profile of Asylum Claims and Country Conditions 1133 (April 14, 1998). The religion was banned in 1949, but reemerged in the 1990s. U.S. Dept, of State, Country Reports on Human Rights Practices for 1997 (Jan. 30, 1998). Chinese authorities consider Yi Guan Dao to be a “cult,” and in 1997 began a “government crackdown” on it and similar religions. Id. The Human Rights Watch has described followers of Yi Guan Dao as a “persecuted group,” and has noted that the Chinese Public Security Bureau considers the group to be “counterrevolutionary.” Human Rights Watch, China: State Control of Religion 30 (October 1997). Tang testified that Yi Guan Dao followers believe in “trying to resolve disease and how people resolve their bad fortune.” Tang also testified that the Chinese government is “very much against” the Yi Guan Dao religion and that the government believes that it is “destructive to the society,” and that its followers are “counterrevolutionaries.”

At his hearing in May 1998, Tang testified that he was arrested and beaten because he practiced Yi Guan Dao. Tang explained that when he was 16 years old he began assisting the leader of the Yi Guan Dao group in his village of Dingqi, located in Fujian province. He testified that he knew some of the members and liked what the group was doing, so he began taking part in their bimonthly ceremonies, and continued to do so for approximately eight years. He stated that the members of the group were very close “like a family.”

Tang testified that in 1993, he and other group members were arrested and interrogated. He did not provide any details regarding his arrest, but stated that he was not detained or beaten. He testified that he was arrested a second time in 1994, along with five other Yi Guan Dao members in Dingqi because he belonged to the Yi Guan Dao group. Tang testified that he was taken into custody for three nights and two days and beaten with sticks and an electric whip by public security officers. He testified that he bled a lot, that his head hurt, and that he was so dizzy he could not see straight. The jail was very small and “there was nowhere to move.” He also did not receive food or water while he was detained. After he was released, Tang testified, he “was hiding all over the [11]*11place” for several months until he left for the United States as a stowaway on a cruise ship. Tang further testified that police have visited his parents, who still live in China, to question them about him.

On cross-examination the government noted that in Tang’s initial application for asylum he stated that his 1994 arrest was for kidnapping, rather than because of his religious beliefs. He stated that he and his girlfriend, Lanxiang Chen, left Dingqi for Fuzhou, the provincial capital, after she told him that her father was going to force her to marry another man. After several months, Chen’s father learned that they were in Fuzhou and had Tang “arrested for kidnapping women.” A few weeks after the police released him, Tang stated, he received a note from Chen asking him to leave quickly because her father had reported to the public security agency that he was a key member of Yi Guan Dao.

The IJ denied Tang’s application, finding that Tang had not established past persecution or a reasonable probability of future persecution based on religion. The IJ found that Tang did not suffer persecution because he was imprisoned only once, and for a limited duration. The IJ also expressed doubt that the police wanted to arrest Tang or “are interested in him in any way” because he already had been outside of China for three years. The IJ also noted inconsistencies between Tang’s testimony and his application, but did not make a specific credibility finding. The IJ also found Tang ineligible for withholding of removal. Tang appealed to the BIA, which summarily affirmed the judgment. This timely petition for review followed.

Analysis

Because the BIA affirmed without opinion, we review the IJ’s analysis as if it were the BIA’s, and uphold the decision if it is supported by substantial evidence. See Oforji v. Ashcroft, 354 F.3d 609, 612 (7th Cir.2003). We will reverse the BIA’s determination only when the evidence compels a different result. Ciorba v. Ashcroft, 323 F.3d 539, 544 (7th Cir.2003).

To qualify for asylum, Tang must establish “refugee” status, i.e., that he is an alien unwilling or unable to return home “because of ... a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Tang could show this by proving either that he (1) suffered past persecution, or (2) has a well-founded fear of future persecution. See Oforji 354 F.3d at 613. A finding of past persecution shifts to the government the burden of rebutting the presumptive fear of future persecution. See Bace v. Ashcroft, 352 F.3d 1133, 1137 (7th Cir.2003); 8 C.F.R. § 208.13(b)(1).

The Immigration and Nationality Act does not define “persecution.” But we have defined persecution under the INA as “punishment” or the “infliction of harm” for political, religious, or other illegitimate reasons “that rises above the level of mere ‘harassment.’ ” Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir.2000). Physical abuse need not cause “serious injury” to qualify as persecution. Asani v. INS, 154 F.3d 719, 722-23 (7th Cir.1998). And a single episode of physical abuse can be sufficient to constitute persecution, as long as a petitioner offers details about the incident to establish its severity. See Dandan v. Ashcroft, 339 F.3d 567, 573 (7th Cir.2003).

We believe that Tang’s imprisonment and beatings, if found credible, rise above “mere harassment” and qualify as proof of past persecution. In cases involving similar mistreatment and injuries we have [12]*12found persecution. In Asani,

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