X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Immigration authorities relied excessively on a State Department country report in denying the application of a Roman Catholic asylum-seeker who claimed he faced religious persecution in China, the 2nd U.S. Circuit Court of Appeals has ruled. “[T]he immigration court cannot assume that a report produced by the State Department, an agency of the Executive Branch of Government that is necessarily bound to be concerned to avoid abrading relations with other countries, especially other major world powers, presents the most accurate picture of human rights in the country at issue,” Judge Jose A. Cabranes wrote on behalf of a unanimous panel in Chen v. INS, 00-4136. The 2nd Circuit panel, which also included Chief Judge John M. Walker and Judge Pierre N. Leval, vacated and remanded for new hearing the case of Tian-Yong Chen, who fled China for the United States in 1995. Chen claimed he faced persecution for participating in his uncle’s campaign to build an unsanctioned Roman Catholic church in their village in the province of Fujian. Such churches pledge loyalty to the Vatican and the pope, while the government-sanctioned Patriotic Catholic Church is independent of the pope’s influence. At his 1997 deportation hearing, Chen testified that he was arrested in 1994 for soliciting donations for the church. He claimed he was interrogated, scolded and beaten in custody. Upon his release, he continued to raise funds for the church. He also wrote and distributed a pamphlet about the Roman Catholicism. He fled the country after learning he was again sought by police. The Immigration and Naturalization Service judge received into evidence at the hearing a 1995 State Department report that said the Chinese government was concerned about the rapid growth of unsanctioned Christian churches, whose memberships exceed those of official churches. But the report also said the government generally targeted religious leaders and priests for persecutions, rather than individual worshippers, and tolerated small-scale worship in unsanctioned churches. The INS judge denied Chen’s application on the grounds that he failed to demonstrate past persecution or a well-founded fear of future persecution. The Board of Immigration Appeals upheld the immigration judge’s decision, erroneously stating that Chen had not testified that he had been beaten by Chinese authorities and citing the State Department report’s finding that religious persecution in China was aimed at leaders. CLAIM IGNORED In vacating the BIA’s decision and remanding the case, the 2nd Circuit panel castigated the immigration authorities for ignoring Chen’s claim of physical abuse at the hands of police in China. “What is troubling about this case is the undisputed failure by [the immigration court] to acknowledge, much less evaluate, Chen’s testimony that he had been beaten,” Cabranes wrote. The court determined that the BIA might have reached a different conclusion about Chen’s history of persecution, as well as his fear of future persecution in China, if it had considered evidence that he had been beaten. The 2nd Circuit instructed that the INS judge hearing the case on remand take care not to place “excessive reliance” on State Department reports, noting that such reports are “sometimes skewed toward the governing administration’s foreign policy goals and concerns.” Even absent such biases, the court said, State Department reports “do not automatically discredit contrary evidence presented by the applicant.” The court noted that Chen’s activities in soliciting donations and distributing pamphlets indicated a higher level of participation than might be expected of a layperson. “It is possible that someone in Chen’s position is regarded as a ‘leader’ in his effort freely to exercise his religious faith,” Cabranes wrote, “especially in a country where high-level leaders of any church hierarchy and particularly persons identified as leaders of the Roman Catholic Church reportedly suffer serious adverse consequences and are often physically inaccessible to their congregations.” Immigration officials could not be reached for comment on the decision. Joshua Bardavid of the law offices of Theodore N. Cox represented Chen before the 2nd Circuit. Bardavid said he was very pleased with the decision. “Many immigration lawyers think the State Department reports do not reflect what is going on in countries like China,” he said. “This provided the court an opportunity to address that.” Bardavid said reports by Amnesty International and other groups often contained harsher assessments of human rights conditions than State Department reports, but INS judges often relied on the latter to buttress their decisions to deny asylum.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.