Li v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XUN LI, 
Petitioner, No. 05-70053
v.
 Agency No.
A96-349-858
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

XIANGZHE CUI, 
Petitioner, No. 05-72298
v.
 Agency No.
A96-349-242
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

HE YUN FANG, 
Petitioner, No. 05-76786
v.
 Agency No.
A78-312-198
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.

On Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted
March 6, 2008—Pasadena, California
Filed March 23, 2009
3649
3650 LI v. HOLDER
Before: Mary M. Schroeder, Kim McLane Wardlaw, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Wardlaw
LI v. HOLDER 3653
COUNSEL
Li v. Holder, No. 05-70053
Joseph S. Porta, Law Offices of Cohen & Kim, Los Angeles,
California, for petitioner Xun Li.
Robert C. Balfe, United States Attorney, Western District of
Arkansas; Deborah J. Groom, Assistant United States Attor-
ney, Fort Smith, Arkansas, for Attorney General Holder.
Cui v. Holder, No. 05-72298
Miguel A. Olano, Santa Clarita, California; Patricia Vargas,
Vargas & Associates, Alhambra, California, for petitioner
Xiangzhe Cui.
Nairi M. Simonian, Department of Justice, Washington, D.C.;
Peter D. Keisler, Assistant Attorney General; Norah Ascoli
Schwarz, Office of Immigration Litigation; and Karen D.
Utiger, Department of Justice, Washington, D.C., for Attor-
ney General Holder.
Fang v. Holder, No. 05-76786
Jarrett A. Green, Skadden, Arps, Slate, Meagher & Flom
LLP, Los Angeles, California, for petitioner He Yun Fang.
Matthew C. Mulford, Deputy Attorney General, San Diego,
California; Peter D. Keisler, Assistant Attorney General; and
3654 LI v. HOLDER
Terri J. Scadron and Anthony W. Norwood, Office of Immi-
gration Litigation, Washington, D.C., for Attorney General
Holder.
OPINION
WARDLAW, Circuit Judge:
The consolidated petitions of Xun Li, Xiangzhe Cui, and
He Yun Fang present the same question of law.1 Police in the
People’s Republic of China are alleged to have arrested and
tortured Chinese petitioners of North Korean descent for hav-
ing provided humanitarian assistance to North Koreans seek-
ing refuge in China. The Board of Immigration Appeals
(“BIA”) denied each of the three petitioners’ asylum applica-
tions, characterizing the Chinese authorities’ treatment of the
petitioners as prosecution for a criminal act—that of harbor-
ing foreign citizens—rather than persecution on account of
political opinion. The BIA, however, did not rely upon any
Chinese law that actually criminalizes the provision of food
and clothing to undocumented North Koreans or other for-
eigners so as to give rise to a “legitimate prosecutorial pur-
pose.” See Ratnam v. INS, 154 F.3d 990, 995-96 (9th Cir.
1998). Nor have we discovered a Chinese law that prohibits
providing assistance to foreign refugees. Rather, the BIA
seems to have imported into China what it perceived would
be criminal activity in the United States. The policy of the
United States, however, through the North Korean Human
Rights Act of 2004, 22 U.S.C. §§ 7801-7845, has been to
1
We hereby consolidate these petitions because they each involve a Chi-
nese citizen of North Korean descent who was allegedly persecuted for
giving aid, food, and shelter to North Korean refugees. We grant relief
only to Xun Li, so we discuss Li’s petition in detail and take those facts
as true for purpose of our development of the law. In accompanying mem-
orandum dispositions, the panel denies relief to He Yun Fang, and a two-
judge majority denies relief to Xiangzhe Cui.
LI v. HOLDER 3655
encourage the very type of humanitarian assistance provided
here. We have jurisdiction pursuant to 8 U.S.C. § 1252, and
we hold that when a petitioner violates no Chinese law, but
instead comes to the aid of refugees in defiance of China’s
unofficial policy of discouraging such aid, a BIA finding that
the petitioner is a mere criminal subject to legitimate prosecu-
tion is not supported by substantial evidence.
I. BACKGROUND
China’s mountainous border provinces contain one of the
world’s most acute humanitarian crises.2 Famine in North
Korea, compounded by political repression, has propelled into
China a stream of desperate North Korean refugees with few
options for survival. According to the U.S. Department of
State, as many as 50,000 North Koreans (75 percent of whom
are female) have journeyed to China in search of sustenance.
See Rhoda Margesson et al., Congressional Research Service
Report for Congress, North Korean Refugees in China and
Human Rights Issues, CRS-4 (Sept. 26, 2007), available at
http://www.fas.org/sgp/crs/row/RL34189.pdf [hereinafter
CRS Report]. The North Koreans fleeing their homeland do
so at severe risk: Article 47 of the North Korean Penal Code
designates “defection” as a capital crime. Id. at CRS-9. Life
in China also entails significant peril, however, as China has
developed an unofficial policy of discouraging aid to North
Korean refugees. Id. at CRS-10 to -12, CRS-25. China simi-
larly has refused to allow U.N. agencies, including the U.N.
High Commissioner for Refugees, to provide assistance. Id. at
CRS-10 to -12. Under a bilateral 1986 repatriation agreement
with North Korea, China occasionally deports North Korean
refugees to an uncertain fate, but most refugees appear to be
2
Although the IJ concluded that Li was not credible, we find that this
adverse credibility determination is not supported by substantial evidence.
Our recitation of the background facts is taken from Li’s testimony,
which, given our rejection of the adverse credibility finding, we accept as
true. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004).
3656 LI v. HOLDER
quietly ignored. Id. at CRS-11 to -12. Viewing the North
Koreans as nothing more than economic migrants, China does
not allow them to apply for asylum, id. at CRS-11, and it will
not allow its own citizens to assist the refugees. Confronting
this stalemate, individual Chinese citizens, such as the peti-
tioners here, have defied China’s policy and provided some
relief in the form of food, clothing, and shelter to ameliorate
the plight of these North Korean refugees.
II. STATEMENT OF FACTS AND PROCEDURAL
HISTORY
Xun Li (“Li”) is a thirty-eight-year-old Chinese native and
citizen of North Korean descent. Before he left China, Li
lived in Yanji City, which is located in Jilin Province, a
mountainous region in northeastern China that borders North
Korea, and worked as a tour guide.3 Around 2001, during a
difficult time in Li’s life, Li met Dong Hoa Cui (“Hoa”), a
North Korean citizen and Christian pastor who preached to Li
about Christianity. In time, Li decided to convert to Christian-
ity. He began practicing in a nondenominational church. The
church held services every Sunday at the home of one of the
members. The services rotated to a different home each week,
and there were usually at least ten members at each meeting.
Yun Ho Jen (“Jen”) led the meetings.
In October 2002, Hoa asked Li to provide shelter and assis-
tance to Christian North Koreans who were fleeing persecu-
tion, and Li agreed. In late November, Li began providing
shelter to two North Korean refugees by allowing them to stay
in his home. On the evening of December 8, 2002, Li’s
church held a small service at his home with other members
3
Li’s work was seasonal. From April through September, he lived on
Changbai Mountain, approximately six hours by car from Yanji City, and
led tours. From October through March, he lived in Yanji City and pre-
pared for the tour season by doing paperwork and taking classes to enrich
his knowledge as a guide.
LI v. HOLDER 3657
and the North Koreans in attendance. Around 9:00 p.m., the
police came to the door, arrested and handcuffed Li and the
others in attendance, including the North Koreans, and took
them all to the police station. At the station, the police took
the group to an interrogation room. It was approximately
11:00 p.m. when the interrogation began. The police asked,
“Who is your leader?” When no one responded, the police
began slapping each of them on their faces. Finally, Jen
admitted he was the leader, at which point he was taken away
from the group. Li later learned that Jen was sent to a labor
camp.
Li was the second one to be separated from the group and
interrogated individually. The police asked, “What was the
reason to for you to join the cults? And why did you giving
asylums to the North Korean?”4 The police also asked, “You
know that you [giving] asylum to those North Koreans would
be a violation of the law?” Li responded:
4
The hearing transcript is replete with both translation and transcription
problems. We have held that an asylum applicant has a due process right
to be given competent translation services if he does not speak English.
He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003); see Perez-Lastor v. INS,
208 F.3d 773, 778 (9th Cir. 2000) (“It is long-settled that a competent
translation is fundamental to a full and fair hearing.”). Yet, “[e]ven where
there is no due process violation, faulty or unreliable translations can
undermine the evidence on which an adverse credibility determination is
based.” He, 328 F.3d at 598; see also Kebede v. Ashcroft, 366 F.3d 808,
811 (9th Cir. 2004) (finding that apparent inconsistencies were due to the
petitioner’s difficulties with English and thus could not support the IJ’s
negative credibility finding); Mendoza Manimbao v. Ashcroft, 329 F.3d
655, 662 (9th Cir. 2003) (“[W]e have long recognized that difficulties in
interpretation may result in seeming inconsistencies, especially in cases
. . . where there is a language barrier.”). Li does not speak English.
Although a Mandarin interpreter was present at Li’s hearing, numerous
translation difficulties occurred. These difficulties were compounded by
the IJ’s and the government counsel’s frequent interruptions. Thus, as we
discuss further below, some of the perceived inconsistencies on which the
IJ based his adverse credibility determination had more to do with transla-
tion and transcription problems than with the credibility of Li’s claim.
3658 LI v. HOLDER
I believe in the religion. It’s my personal to freedom.
And then in regard to accommodating the North
Koreans, they been sufferings and it was very brutal.
And it’s human to rights to give them the protection.
And then would it be something in violation the law
that to accommodate those suffered people?
Li said that he gave this statement to the police “[b]ecause
that’s how [he] feel[s] to and without any guilt.” Thus, Li
stated his belief that he should aid the North Koreans to pro-
tect their human rights, and that it was consistent with his reli-
gious beliefs to protect them.
The interrogation continued with the police telling Li that
they wanted a list of all the church members and how they
had helped the North Koreans. When Li refused to disclose
the names and to explain how the church members had
helped, one interrogating officer began to hit and punch the
handcuffed Li in the face “vigorously.” The officer then
kicked Li backward to the floor and continued punching him
as blood began to flow from Li’s nose and lips. Once Li hit
the floor, another officer joined in, and the officers then took
turns kicking Li in the head and stomach. Li, remaining con-
scious, tried to shield himself from the blows. When Li again
refused to disclose the names of the church members and to
explain their help to the North Koreans, the officers told him
that he was “going to suffer for the consequences.” The offi-
cers then stripped him down to his underwear and tied him to
an electric pole. In the frigid December night, the officers left
Li, who was bleeding and still handcuffed, exposed to the
below-freezing temperature for nearly an hour. They eventu-
ally retrieved Li and resumed questioning. Li was paralyzed
and frozen, and was unable to respond. The officers then told
Li they had all the evidence they needed—“the Bible and also
the North Koreans”—to sentence him to a labor reform camp.
Li spent fifteen days at the labor camp, where the other
inmates continuously beat him up. Li’s family finally secured
LI v. HOLDER 3659
his release by furnishing a 5000 RMB5 bribe to the police
department. In exchange, Li was required to sign a letter of
guarantee promising to give up his faith, report on other
church members, and obey Chinese laws. The guarantee also
stated that Li had to report to the local police station every
week, which he did for a short time.6 Fearing Chinese authori-
ties, however, Li decided to seek asylum in the United States.
He paid 120,000 RMB7 to travel from China to South Korea
to Vancouver to Seattle to Los Angeles, where he requested
asylum in May 2003.
The Immigration Judge (“IJ”) denied Li’s petition for asy-
lum, withholding of removal, and protection under the Con-
vention Against Torture (“CAT”) on the basis of an adverse
credibility finding. The IJ alternatively found that, even if Li
were credible, his testimony did not establish past persecution
because the actions of the officers did not rise to the level of
persecution. The IJ stated that the beatings Li suffered,
“[a]lthough . . . certainly [not] pleasant,” were not severe
enough to constitute persecution. The IJ acknowledged that Li
“continued to suffer some mistreatment at the labor camp,”
but found this treatment did not constitute persecution
because “it was not at the hands of the police or any other
officials of the government, but . . . rather at the hands of his
fellow prisoners.” The IJ then turned to “the question as to
whether [Li] was really arrested and sentenced to the labor
camp because of the harboring of illegal aliens.” The IJ
assumed that Li’s detention and sentence to the labor camp
were a “legitimate sanction for violation of the law by that
country.” The IJ reasoned: “[O]ne of the charges that [Li]
clearly admits is that he was harboring a [sic] illegal aliens,
which is not only apparently a crime in China, but would be
5
RMB, the currency in China, stands for “Renminbi” (literally, “the
people’s currency”).
6
Li testified, however, that he tore up the letter of guarantee soon after
he was released from the labor camp.
7
At the time, 120,000 RMB was approximately $15,000.
3660 LI v. HOLDER
a crime in the United States as well” (emphasis added). The
IJ failed to cite to any Chinese law Li had violated. In addi-
tion to rejecting the possibility that Li was persecuted on
account of his political opinion, the IJ also found Li had failed
to demonstrate that he was persecuted on account of religion
or any other protected ground. The IJ therefore exercised his
“discretion to not grant asylum to [Li].” The IJ also rejected
Li’s application for withholding of removal and protection
under CAT. The BIA affirmed without opinion. Li timely
petitions for review.
III. STANDARD OF REVIEW
When the BIA adopts the reasoning of the IJ, we review the
decision of the IJ. See Kazlauskas v. INS, 46 F.3d 902, 905
(9th Cir. 1995) (“Because the BIA did not independently
review [the applicant’s] case and instead adopted the IJ’s
opinion, we review the decision of the IJ.”); 8 C.F.R.
§ 1003.1(e)(4). We review the IJ’s determination that an
applicant has not established asylum eligibility for substantial
evidence, see Tang v. Gonzales, 489 F.3d 987, 989-90 (9th
Cir. 2007), upholding a determination when it is “ ‘supported
by reasonable, substantial, and probative evidence on the
record considered as a whole,’ ” Gormley v. Ashcroft, 364
F.3d 1172, 1176 (9th Cir. 2004) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). To reverse a finding
“we must find that the evidence not only supports that conclu-
sion, but compels it.” Elias-Zacarias, 502 U.S. at 481 n.1.
IV. DISCUSSION
The Attorney General may, in his discretion, grant asylum
to applicants determined to be refugees within the meaning of
section 101(a)(42)(A) of the Immigration and Nationality Act.
8 U.S.C. § 1101(a)(42)(A); see id. § 1158(b)(1). An applicant
qualifies as a refugee when the “applicant is unable or unwill-
ing to return to his home country because of a well-founded
fear of future persecution on account of race, religion, nation-
LI v. HOLDER 3661
ality, membership in a particular social group, or political
opinion.” Navas v. INS, 217 F.3d 646, 654 (9th Cir. 2000). An
applicant may establish a “well-founded fear of future perse-
cution” in two ways: proof of past persecution or a demon-
stration that the applicant has a subjectively genuine and
objectively reasonable fear of future persecution. Fisher v.
INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc). To be eligi-
ble for asylum, an applicant must demonstrate a nexus
between the alleged persecution and one of the five protected
categories. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150-51
(9th Cir. 2000). A showing of past persecution gives rise to
a rebuttable presumption that the applicant has a well-founded
fear of future persecution. See Tawadrus v. Ashcroft, 364 F.3d
1099, 1103 (9th Cir. 2004).
A. Credibility Determination
[1] We review credibility findings under a substantial evi-
dence standard.8 Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th
Cir. 2007). An adverse credibility determination must be
based on “specific, cogent reasons” found in the record. Singh
v. Gonzales, 439 F.3d 1100, 1105 (9th Cir. 2006) (internal
quotation marks omitted). One of these reasons must go to the
heart of the asylum claim. See Li v. Ashcroft, 378 F.3d 959,
964 (9th Cir. 2004). “Minor inconsistencies in the record that
do not relate to the basis of an applicant’s alleged fear of per-
secution, go to the heart of the asylum claim, or reveal any-
thing about an asylum applicant’s fear for his safety are
insufficient to support an adverse credibility finding.” Men-
doza Manimbao, 329 F.3d at 660. Further, the adverse credi-
bility finding must be based on the record before the IJ. See
Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000)
(“Speculation and conjecture cannot form the basis of an
8
Because Li applied for asylum before May 11, 2005, we apply the pre-
REAL ID Act standards to his adverse credibility determination. See
Singh, 439 F.3d at 1105; Li, 378 F.3d at 964.
3662 LI v. HOLDER
adverse credibility finding, which must instead be based on
substantial evidence.”).
The IJ found that Li’s testimony lacked credibility based on
“a number of events” that the IJ had difficulty reconciling.
Although the IJ did not find that any one of these events actu-
ally supported an adverse credibility determination, he con-
cluded that “considered cumulatively,” they undermined Li’s
testimony.
[2] The IJ’s scatter-shot justifications for his adverse credi-
bility determination, however, are riddled with speculation,
see id., and are based on minor inconsistencies that do not go
to the heart of the claim, see Mendoza Manimbao, 329 F.3d
at 660.
[3] The IJ stated that “it’s difficult to reconcile why the
North Koreans would be fleeing to China where religion is
also prohibited.” The IJ engaged in impermissible speculation
and conjecture in his assumption that the unidentified North
Koreans aided by Li fled North Korea, a brutal dictatorship
that “continues to commit numerous, serious human rights
abuses,” 22 U.S.C. § 7801(1), to escape religious persecution.
While there may be many reasons that North Koreans seek
refuge in China, “it is clear that two key elements driving
North Koreans across the border into China include deterio-
rating humanitarian conditions—mainly due to food shortages
—and human rights violations.” CRS Report, at CRS-6. Thus,
the IJ relied on impermissible speculation as to the North
Korean refugees’ motivation to create an inconsistency where
none existed. See Shah, 220 F.3d at 1071.
[4] The IJ also found it “difficult to reconcile” that some of
the fleeing North Korean refugees may have gone to South
Korea as a safe haven, as Li testified, while Li himself chose
the United States as a refuge. The IJ could not understand
why Li did not also want to stay in South Korea, especially
given that “he speaks Korean fluently and is of Korean
LI v. HOLDER 3663
nationality.” Once again, the IJ manufactured an inconsis-
tency he thought required “reconciliation,” this time by specu-
lating as to the individual circumstances of the refugees Li
aided and Li’s own circumstances, which were quite different.
While South Korea “remains the primary destination for
North Korean refugees,” CRS Report, at CRS-14, who transit
through China because “it is impossible to cross the heavily
mined demilitarized zone leading to South Korea,”9 Li is not
a North Korean refugee; he is a citizen of China and, thus, a
Chinese refugee. Moreover, Li explained why he remained
only temporarily in South Korea: fear of extradition back to
China. The IJ inexplicably failed to credit—or even mention
—Li’s legitimate explanation as to the reason he, as opposed
to the North Korean refugees, could stay only temporarily in
South Korea. It goes without saying that China and South
Korea have a different diplomatic relationship than that which
exists between North Korea and South Korea. While the only
record evidence as to South Korea’s extradition policy is Li’s
testimony, there is nothing in the record to contradict his
understanding that, as a Chinese citizen, he would be returned
to China if found by the South Korean authorities.
The IJ next stated that it was “difficult to reconcile why
exactly [Li] was arrested.” Li testified that the Chinese
authorities told him he was arrested for being part of a reli-
gious “cult” and for giving asylum to the North Korean refu-
gees. The IJ did not find anything that contradicts the fact that
9
Barbara Demick, China Feels Pressure over North Koreans, L.A.
Times, Feb. 22, 2008, at A-11. The 2.5-by-151-mile demilitarized zone,
or DMZ, that spans the border between North and South Korea is known
as “the world’s most heavily fortified border” and “is dotted with land-
mines and bunkers and crisscrossed by barbed wire.” Online NewsHour,
PBS, North Korea: Nuclear Standoff, Oct. 19, 2006, http://www.pbs.org/
newshour/indepth_coverage/asia/northkorea/dmz.html. When President
Clinton visited the DMZ in 1993, he called it “the scariest place on Earth.”
Christoph Bluth, Korea 137 (2008). See generally Dick K. Nanto, Library
of Congress, North Korea: Chronology of Provocations, 1950-2003 (Mar.
18, 2003), available at http://www.fas.org/man/crs/RL30004.pdf.
3664 LI v. HOLDER
Li was arrested because he was practicing his religion and
sheltering North Koreans. Rather, the IJ credited the arrest,
but yet again found an inconsistency based on his own specu-
lation that the police should have ferreted out the purposefully
secret religious meeting sooner. However, that the arrest
occurred after a year of secret meetings, as opposed to after
one week, does not suggest anything about the credibility of
the claim. Moreover, the IJ fully credited Li’s testimony that
one of the two reasons for his arrest was giving humanitarian
aid to the North Korean refugees.10
[5] The IJ also raised doubts about Li’s testimony that he
had held church services in his house about eight times. The
IJ assumed that Li could not be telling the truth because “he
admit[ted] that he only participated in the church from Octo-
ber to April when he was on the off-season for his work.”11
The IJ erred in reaching this conclusion. Li testified that he
began attending the church services in October 2001. The IJ
asked Li, “And so how [many] different members’ houses did
you meet at?” Li responded, “We have more than 10 of us, so
we . . . take the rotations.” The IJ then asked, “So would it be
fair to say that you met at your house eight times before the
December 8, 2002 [meeting]?” Li said yes. Although it is
unclear whether the services rotated to a new house each Sun-
day or just once a month, it is clearly possible that Li hosted
the services eight times between October 2001 and December
8, 2002.12 Although Li admitted that, because of his job as a
tour guide, he usually could not attend the services between
April and September (though he did attend when he had the
day off), there were still thirty-seven Sundays during the off-
10
The IJ credited this testimony, but erred as a matter of law in conclud-
ing, without referencing a Chinese law, that Li’s aid to the refugees was
a criminal act. See infra IV.C.
11
Li testified that he attended services between October and March, not,
as the IJ stated, between October and April.
12
Li stated that he remembered hosting the services in October 2001 and
on December 8, 2002.
LI v. HOLDER 3665
season on which Li could have hosted the services. Without
knowing how the rotation system worked, the IJ improperly
speculated that Li’s statement that he held services about
eight times was an inconsistency.13 Even if this were an incon-
sistency, however, it still was not a proper basis for the IJ’s
adverse credibility finding because it does not go to “the heart
of the asylum claim.” Mendoza Manimbao, 329 F.3d at 660.
Whether he hosted the services eight times, or six or four,
does not impact the question of whether he was attacked by
Chinese authorities on December 8, 2002, or whether he
would fear returning to China. See Singh v. Ashcroft, 362 F.3d
1164, 1171 (9th Cir. 2004) (“[E]ven if we were to agree with
the INS that this testimony was inconsistent, any discrepancy
cannot be viewed as [an] attempt[ ] by the applicant to
enhance his claims of persecution, [and thus has] no bearing
on credibility.” (alterations in original) (internal quotation
marks omitted)).
The IJ also found it “difficult to reconcile why it’s so
important for [Li] to come to America so that he can practice
his religion when he did not know what the teachings were of
the registered Christian church of his home town.” Li testified
that he came to the United States to practice his Christian reli-
gion. The IJ did not find anything in the record to contradict
Li’s claim that he is a Christian; indeed, he credited Li’s testi-
mony that he is a practicing Christian, but nevertheless sug-
gested that Li’s failure to know “the difference between the
teachings of the Presbyterian church [that he attends in Los
Angeles] and the teachings of the church in his home town[ ]”
undermines Li’s basis for seeking to practice Christianity at
his new Presbyterian church. Li was introduced to a particular
branch of Christianity and decided to worship within that
church, without pursuing other options. What a new Christian
convert in China would know (or even could know) about the
13
In fact, it is the IJ—rather than Li—who seems inconsistent here,
given that the IJ himself calculated that Li had met at his house eight
times, which he then asked Li to confirm by asking a leading question.
3666 LI v. HOLDER
theological positions of various denominations is pure conjec-
ture.
What we do know from the 2002 U.S. Department of State
Country Report in the record is that the Chinese government
“continued to enforce regulations requiring all places of reli-
gious activity to register with the Government or to come
under the supervision of official, ‘patriotic’ religious organi-
zations,” and that “some religious groups, including unregis-
tered Protestant and Catholic congregations and members of
nontraditional religious groups, continued to experience vary-
ing degrees of official interference, harassment, and repres-
sion.” Bureau of Democracy, Human Rights, & Labor, U.S.
Dep’t of State, Country Reports on Human Rights Practices:
China (Includes Tibet, Hong Kong, and Macau) (Mar. 31,
2003), available at http://www.state.gov/g/drl/rls/hrrpt/2002/~
18239.htm. It is only logical that Li would choose the United
States, where his freedom to practice religion is constitution-
ally guaranteed, as his final destination.
Next, the IJ stated that Li admitted one of the reasons he
wanted to come to the United States was for better economic
opportunities. A review of the hearing transcript and Li’s asy-
lum application makes clear, however, that Li seeks asylum
on the grounds of religious and political persecution, and that
economic benefits are—at most—a secondary motivation.
During the hearing, the government counsel asked Li, “[D]id
you come to the United States for better job opportunities?”
Li said yes. Neither the counsel nor the IJ asked any follow-
up questions about this alleged motivation. Even if economic
opportunities were a secondary motivation, it is not a basis for
undermining Li’s wholly consistent testimony that he was
persecuted on account of religion and political opinion. Li
repeatedly stated that he came to the United States to escape
religious and political persecution in China. Similarly, his
asylum application states that he is seeking asylum on the
basis of religion, political opinion, and membership in a par-
ticular social group, as well as relief under CAT.
LI v. HOLDER 3667
The IJ also illogically discredited Li’s testimony because Li
paid 120,000 RMB ($15,000) to escape China, even though
he initially thought he might leave China for only a few years.
The IJ assumed that no one would pay such a large amount
of money if he had plans to remain in the United States for
only a few years. First, the IJ had no basis for concluding that
$15,000 was a large sum of money to secure a refugee’s safe
transit with the necessary documentation from China to the
United States. Second, if in fact the sum was either relatively
or absolutely substantial, it would seem to make Li’s story
more, rather than less, credible—expenditure of a large sum
of money for transit to a destination for only a few years sug-
gests the degree to which Li feared for his life. The IJ merely
speculated that no one would spend $15,000 to flee persecu-
tion by the Chinese government. There is no inconsistency in
Li’s payment of $15,000 to travel to the United States to
escape persecution, and his hope that one day he could be
reunited with his family.
The IJ also found a discrepancy where none existed in Li’s
testimony about his medical treatment. Li testified that he
went to Yanji Hospital after he was released from the labor
camp. He stated, “I had examination over there, and then they
gave me the prescription, the medicine. . . . [I]t was a supple-
ment, vitamins. And then also my stomach was bad and then
there’s some medication for my stomach.” Li provided a form
corroborating his treatment at the hospital. However, Li had
told the asylum officer that his sister, who is a doctor at a
firm, provided his medical treatment. The government coun-
sel asked, “So why is it that you submitted to Court a docu-
ment indicating that you went [to] the Yanji city hospital if,
in fact, it was your sister who treated you and she works for
a big firm?” Li explained, “Because my sister, even though
she works for a large firm, she specialize in looking after the
welfare of the employees of the firm. So she’s not a specialist
in that field and that’s why I needed to go to a specialized
hospital.” The counsel then asked, “[Y]ou’re saying that your
sister treated you and you went to a hospital?” Li responded,
3668 LI v. HOLDER
“It just a examination that I went.” The counsel continued to
press Li: “[Y]ou only told the asylum officer that your sister
was the only one who treated you.” Li again explained, “No,
officer I believes that she took care of me at home giving me
the injections and also giving me the pills.” That Li was
treated both by his sister and at the hospital does not render
his testimony inconsistent. Although the record is rendered
vague by either translation problems or Li’s failure to under-
stand the question, it does appear that Li initially sought his
sister’s help and, then, because his injuries were outside of her
speciality, went to the local hospital for examination. Regard-
less, whether Li’s injuries were treated by his sister or at a
hospital, or both, does not go to the heart of his claim and has
little bearing on the veracity of the persecution he describes.
See Li, 378 F.3d at 964.
The IJ also found that Li was not credible because “he
could not explain why he presented the [train] ticket as evi-
dence to this Court that he now claims was erroneous.” Li tes-
tified that he departed Yanji City by train on February 20,
2003, but the ticket stub was dated February 10, 2003. Li
explained that the conductor made a mistake in writing the
date on the ticket, and that he only “show[ed] it to [the IJ] ver-
ifying to the fact that I actually depart.” In any event, such
confusion around dates cannot support an adverse credibility
determination. See Bandari v. INS, 227 F.3d 1160, 1166 (9th
Cir. 2000) (“Any alleged inconsistencies in dates that reveal
nothing about a petitioner’s credibility cannot form the basis
of an adverse credibility finding.”).
Finally, the IJ took issue with Li’s testimony about conver-
sations he had with his family after arriving in the United
States; in particular, the IJ questioned Li’s testimony that “his
mother had been threatened because the police wanted to
know his whereabouts.” The following exchange took place
during the hearing:
IJ: Okay. Why do you fear, sir, going back to
China?
LI v. HOLDER 3669
Li: If I ever return then, I will be sentenced.
IJ: And how do you know that?
Li: Because my family, when I talk to them
through the phone, they said you’re not to
return. If you ever return, then you will be
arrested. And then to put in jail. So for sure that
I do not come back.
....
IJ: Okay. And why would you — Were you think-
ing that you could return to China in a few
years?
Li: Right now my family told me that in China you
are not possibly to able to return.
IJ: I understand that. But when you departed, you
didn’t know that. So what were you thinking
that a few years would do for you?
Li: I just wanted to get away to from the Chinese
authority. . . . .
....
IJ: Have your parents been harassed by the police?
Li: They came to my home and threatening to my
mother saying that you better urge your son to
return.
IJ: Did they do anything more than just threaten
her? What did they threaten her with?
3670 LI v. HOLDER
Li: Whether to persuade me to return as soon as
possible. And too because your son has vio-
lated the law and it could be serious.
IJ: So did they threaten her with putting her in jail?
Li: No.
We are perplexed as to why the IJ even mentioned these state-
ments; they only seem to support—rather than undercut—Li’s
asylum claim.
[6] The IJ’s adverse credibility determination thus rests
upon an illusory foundation of speculation, uninformed con-
jecture and assumptions, fabricated inconsistencies, and dis-
crepancies having nothing to do with Li’s claim for asylum.
On the other hand, the IJ credited each aspect of Li’s testi-
mony that actually did support his claim for asylum. For
example, the IJ fully credited Li’s claim that he had been
arrested, detained, and “slapped,” and sentenced to a labor
camp for giving humanitarian aid to North Koreans. Because
we find no “specific, cogent reasons” in the record supporting
the IJ’s adverse credibility determination, Singh, 439 F.3d at
1105 (internal quotation marks omitted), we conclude that the
adverse credibility finding is not supported by substantial evi-
dence. Absent an adverse credibility determination, we must
accept Li’s testimony as true. See Kalubi, 364 F.3d at 1137.
B. Persecution
[7] Persecution is “the infliction of suffering or harm upon
those who differ (in race, religion or political opinion) in a
way regarded as offensive.” Gormley, 364 F.3d at 1176 (inter-
nal quotation marks omitted). It is well established that physi-
cal violence is persecution under 8 U.S.C. § 1101(a)(42)(A).
See, e.g., Guo v. Ashcroft, 361 F.3d 1194, 1197-98, 1202-03
(9th Cir. 2004) (finding beatings of a Chinese detainee to rise
to the level of persecution); Chand v. INS, 222 F.3d 1066,
LI v. HOLDER 3671
1073 (9th Cir. 2000) (“Physical harm has consistently been
treated as persecution.”).
Because the IJ found that, even if Li had testified credibly,
he did not suffer any past persecution on account of a pro-
tected ground, we need not remand Li’s asylum application
for a determination on this issue. See Guo, 361 F.3d at 1204.
We first address whether the Chinese authorities’ brutal
attacks on Li rise to the level of persecution, and then turn to
the question of whether the persecution was on account of
political opinion.
[8] We hold that the IJ erred in finding that the actions of
the police did not rise to the level of persecution. See Gorm-
ley, 364 F.3d at 1176-77. Accepting Li’s testimony as true,
the record compels the conclusion that Li was persecuted. See
Elias-Zacarias, 502 U.S. at 481 n.1; Silaya v. Mukasey, 524
F.3d 1066, 1068 (9th Cir. 2008). As we already described, the
officers repeatedly hit Li in the face in an effort to extract a
confession and to punish him for aiding the North Koreans.
Next, the officers took turns kicking him in the head and
stomach as he lay on the floor. They then left the bloodied
and still handcuffed Li exposed to the freezing December
night for nearly an hour. Finally, Li endured further police-
sanctioned beatings during the fifteen days of his confinement
at the labor camp. The police were either unwilling or unable
to control the beatings of Li by his fellow inmates. See
Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000)
(“[A]ffirmative state action is not necessary to establish a
well-founded fear of persecution if the government is unwill-
ing or unable to control those elements of its society responsi-
ble for targeting a particular . . . individual[ ].” (internal
quotation marks omitted)); cf. Kalubi, 364 F.3d at 1136 (find-
ing that harsh conditions in an overcrowded prison cell, even
absent physical beatings, established past persecution). Li
required medical attention at a hospital upon his release. The
totality of the circumstances demonstrate that Li was perse-
cuted. See Chand, 222 F.3d at 1073; Guo, 361 F.3d at 1203
3672 LI v. HOLDER
(“We look at the totality of the circumstances in deciding
whether a finding of persecution is compelled.”); Korablina
v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (“The key ques-
tion is whether, looking at the cumulative effect of all the
incidents a petitioner has suffered, the treatment she received
rises to the level of persecution.”). The IJ therefore erred in
finding that the beating Li suffered did not rise to the level of
persecution required by law.
The IJ’s reliance on Prasad v. INS, 47 F.3d 336 (9th Cir.
1995), is misplaced. Prasad had been arrested, taken to a
police station, and “hit on his stomach and kicked from
behind.” Id. at 339. His captors “did not threaten him explicit-
ly,” and he was released after four to six hours. Id. Although
we condemned the attack on Prasad, we found that it was not
“so overwhelming so as to necessarily constitute persecution.”
Id. This is clearly far less severe than what the Chinese police
did to Li. Further, unlike Prasad, who was released after a few
hours, Li continued to suffer for fifteen days at the labor
camp. Lastly, the police did explicitly threaten Li. Thus, the
comparison to Prasad does not support the IJ’s conclusion.
C. Pretextual Prosecution
[9] We have long distinguished persecution from prosecu-
tion. An applicant very well may fear accountability for a
criminal act in his native country; however, such fear does not
necessarily entitle him to the protection of the United States.
See Chanco v. INS, 82 F.3d 298, 301 (9th Cir. 1996)
(“Persons avoiding lawful prosecution for common crimes are
not ordinarily deemed refugees.”). For example, an applicant
avoiding prosecution for misappropriating funds may have a
well-founded fear of returning home, but such fear does not
bring him within the protected classes of our asylum law. See
Mabugat v. INS, 937 F.2d 426, 429 (9th Cir. 1991).
[10] Nevertheless, we also have recognized that persecution
and prosecution are not mutually exclusive. Indeed, prosecu-
LI v. HOLDER 3673
tion may serve as the avenue by which agents of the state per-
secute a disfavored group. Violators of the Nazi-era
Nuremberg Laws, for instance, may have been “prosecuted”
under those virulently anti-Semitic laws; however, one would
be hard-pressed to categorize the prosecution as anything
other than persecution on account of religion. See Sanchez-
Trujillo v. INS, 801 F.2d 1571, 1574 (9th Cir. 1986) (“Few
could doubt, for example, that any Jew fleeing Nazi Germany
in the 1930’s or 40’s would by virtue of his or her religious
status alone have established a clear probability of persecu-
tion.” (internal quotation marks omitted)).
Understanding that persecution may appear in the guise of
prosecution, we have carved out exceptions to the general rule
that applicants avoiding prosecution for violations of criminal
law are ineligible for asylum. Chief among these exceptions
to the general rule are “disproportionately severe punishment
and pretextual prosecution.” Fisher, 79 F.3d at 962; see
Chanco, 82 F.3d at 302 (“Although prosecution for a common
law crime will not ordinarily constitute persecution, a show-
ing of disproportionate punishment may support a claim that
the prosecution is a pretext for persecution on account of
political opinion.”).
We explored the interplay between persecution and prose-
cution in Bandari, 227 F.3d 1160. There, a Christian Iranian
citizen sought asylum in the United States following a “prose-
cution” for interfaith dating. Id. at 1163. While in high school,
Bandari began dating a Muslim neighbor, a crime in theo-
cratic Iran. Id. When police officers caught the two embracing
in the street, they summarily arrested Bandari, took him to the
police station, and began whipping him with a rubber hose
until he lost consciousness. He was later sentenced to seventy-
five lashes and a year in a prison. Id. at 1163-64. Bandari fled
Iran to seek asylum in the United States. Id. at 1164. We
declined to characterize the treatment of Bandari as a “legiti-
mate criminal prosecution.” Id. at 1168. While the initial stop
of Bandari may have been “mere law enforcement,” the ensu-
3674 LI v. HOLDER
ing physical attacks “were clearly based on Bandari’s reli-
gion.” Id. We recognized that Bandari’s claim may fall under
a mixed-motive analysis, when police motivation sprung from
both prosecutorial aims and religious hatred. Id. Yet, because
an asylum applicant need only present “ ‘evidence from
which it is reasonable to believe that the harm was motivated,
at least in part, by an actual or implied protected ground,’ ”
id. at 1168-69 (quoting Borja v. INS, 175 F.3d 732, 736 (9th
Cir. 1999) (en banc), superseded by statute, REAL ID Act,
Pub. L. No. 109-13, Div. B, Title I, § 101(a)(3)(B)(i), 119
Stat. 231, 303 (2005), as recognized in Parussimova v.
Mukasey, 555 F.3d 734, 740 (9th Cir. 2009)), Bandari met his
burden and we granted his petition.
We also have determined that the distinction between per-
secution and prosecution is less than clear cut when the “pros-
ecution” lacks legitimacy or proceeds without the process
normally due. In Blanco-Lopez v. INS, we declined to find an
“actual, legitimate, criminal prosecution” when the El Salva-
dorian military accused Blanco-Lopez of being a guerilla who
illegally smuggled arms from Nicaragua. 858 F.2d 531, 534
(9th Cir. 1988), superseded by statute on other grounds,
REAL ID Act § 101(a)(3)(B)(i), as recognized in Parussi-
mova, 555 F.3d at 740. The Attorney General argued that “El
Salvador has the right to prosecute individuals accused of
criminal activity and that such prosecution is readily distin-
guishable from persecution based on political beliefs.” Id. We
disagreed, finding
no evidence in the record . . . that an actual, legiti-
mate, criminal prosecution was initiated against
Blanco-Lopez . . . . Indeed, Blanco-Lopez testified
that, while a captive of the security forces, he was
threatened with death unless he admitted to being a
guerilla. We can hardly characterize this as an exam-
ple of legitimate criminal prosecution.
Id. Further, we noted that Blanco-Lopez testified that if the
security forces found him again, they would kill him without
LI v. HOLDER 3675
instituting any formal prosecutorial measures. Id. We there-
fore concluded that the government’s conduct was “not in fur-
therance of a criminal prosecution, but rather was [an
incident] of governmental persecution based on Blanco-
Lopez’s perceived political beliefs.” Id.; see also Chand, 222
F.3d at 1077 (“[R]esistance to discriminatory government
action that results in persecution is persecution on account of
a protected ground.”).
[11] When the government lacks a legitimate prosecutorial
motive or any “other logical reason for the persecution at
issue,” Navas, 217 F.3d at 657, we presume, as a matter of
law, that “the motive for harassment is political,” id. at 660(internal quotation marks omitted); see also Ahmed v. Keisler,
504 F.3d 1183, 1196 (9th Cir. 2007) (“That Ahmed was
beaten absent any due process also supports his claim of per-
secution on account of a political opinion.”); Hernandez-Ortiz
v. INS, 777 F.2d 509, 516 (9th Cir. 1985) (“When a govern-
ment exerts its military strength against an individual or a
group within its population and there is no reason to believe
that the individual or group has engaged in any criminal activ-
ity or other conduct that would provide a legitimate basis for
governmental action, the most reasonable presumption is that
the government’s actions are politically motivated.”), super-
seded by statute on other grounds, REAL ID Act
§ 101(a)(3)(B)(i), as recognized in Parussimova, 555 F.3d at
740; Ratnam, 154 F.3d at 996 (“Torture in the absence of any
legitimate criminal prosecution, conducted at least in part on
account of political opinion, provides a proper basis for asy-
lum and withholding of deportation even if the torture served
intelligence gathering purposes.”).
[12] The IJ erred in assuming that Li’s detention and sen-
tence to the labor camp were a “legitimate sanction for viola-
tion of [Chinese] law.” Li cannot possibly have been
legitimately prosecuted. Neither the IJ nor the Attorney Gen-
eral was able to cite to any Chinese statute or regulation that
criminalizes Li’s conduct, and the record demonstrates that no
3676 LI v. HOLDER
such law exists. In a sworn affidavit, UC Berkeley School of
Law Professor Robert C. Berring, who specializes in Chinese
law and the Chinese legal system, attested that, to his knowl-
edge, “there is no published law forbidding Chinese citizens
from providing food and comfort to illegal aliens.” Similarly,
Professor Cheng Gan-Yuan, a specialist in Chinese criminal
law who lived most of his life in China and formerly taught
at the Nanjing Normal University School of Law, swears
unequivocally that there “is no criminal law of any kind (writ-
ten or verbal, formal or informal) in China prohibiting citizens
from providing food, water, shelter, social assistance or other
assistance to individuals who entered China illegally from
another country.”
International treaties further buttress our conclusion that
Li’s conduct was not criminal. China itself has treaty obliga-
tions to protect the North Korean refugees. China has acceded
to the 1951 U.N. Convention Relating to the Status of Refu-
gees,14 and the 1967 Protocol to that Convention. See Conven-
tion Relating to the Status of Refugees, 189 U.N.T.S. 137
(2002), available at http://www.unhchr.ch/html/menu3/b/
treaty2ref.htm; Congressional-Executive Commission on
China, 2005 Annual Report 113 (2005), available at http://
www.cecc.gov/pages/annualRpt/annualRpt05/CECCann
Rpt2005.pdf.
14
The Office of the U.N. High Commissioner for Refugees recently
wrote:
Certain provisions of the Convention are considered so funda-
mental that no reservations may be made to them. These include
the definition of the term “refugee,” and the so-called principle
of non-refoulement, i.e. [sic] that no Contracting State shall expel
or return (“refouler”) a refugee, against his or her will, in any
manner whatsoever, to a territory where he or she fears persecu-
tion.
Office of the U.N. High Commissioner for Refugees, Introductory Note to
Convention and Protocol Relating to the Status of Refugees 5 (UNHCR
2007), available at http://www.unhcr.org/protect/PROTECTION/3b66c2
aa10.pdf.
LI v. HOLDER 3677
[13] Because no law prohibits Li’s conduct, when the Chi-
nese officials abruptly arrested Li in his home and took him
to a police station where he endured physical abuse as part of
a coercive interrogation aimed at locating North Korean refu-
gees and discouraging the provision of humanitarian aid to
them, the record compels the conclusion that the officials
were not engaged in legitimate criminal prosecution. Cf.
Blanco-Lopez, 858 F.2d at 534 (finding governmentally
inflicted harm without formal prosecutorial measures to be
persecution). The only crime Li might have committed was
failure to cooperate with a police investigation;15 however, he
was not accused of this crime by the Chinese police. More-
over, as we discuss below, the record demonstrates that the
police were not motivated by Li’s failure to cooperate. Rather,
they were motivated by a desire to punish Li for defying the
unwritten Chinese policy of discouraging humanitarian aid to
North Koreans.16
15
China does have a law prohibiting the smuggling of aliens into its
country; however, the conduct criminalized by the statute does not
remotely resemble that undertaken by Li. Article 318 of the Criminal Law
of the People’s Republic of China reads in part: “Whoever makes arrange-
ments for another person to illegally cross the national border (frontier)
shall be sentenced to fixed-term imprisonment of not less than two years
but not more than seven years and shall also be fined . . . .” Criminal Law
of the People’s Republic of China, pt. 2, Ch. 6, § 3, Art. 318 (1997),
available at http://www.cecc.gov/pages/newLaws/criminalLawENG.php.
There is no evidence in the record that Li had any role in assisting North
Koreans to cross the Chinese border—certainly the Chinese police did not
arrest or prosecute him for smuggling; rather, he was arrested for giving
the refugees food, shelter, and other necessities.
16
Additionally, the extreme physical violence inflicted upon Li was
“disproportionately severe punishment” such that it may be independently
considered persecution on this ground. Fisher, 79 F.3d at 962; see Ban-
dari, 227 F.3d at 1168. As we already described, Li suffered grievously
at the hands of the Chinese police, and the inmates at the labor camp. A
reasonable factfinder would be compelled to find that Li’s circumstances
meet the persecution threshold.
3678 LI v. HOLDER
D. Persecution on Account of Political Opinion
[14] Criticism of government actions or policies generally
may be considered the expression of political opinion. See
Ahmed, 504 F.3d at 1192 (“A political opinion encompasses
more than electoral politics or formal political ideology or
action.”); Njuguna v. Ashcroft, 374 F.3d 765, 768-70 (9th Cir.
2004) (stating that acting “against government corruption”
may express a political opinion, even when the action in ques-
tion is “assisting two Kenyan women [to] escape from the
Saudi royal family’s employ”); Al-Saher, 268 F.3d at 1146
(“It is clear that Al-Saher’s statements regarding the unfair
distribution of food in Iraq resulted in Iraqi officials imputing
an anti-government political opinion to Al-Saher.”); Borja,
175 F.3d at 736 (holding that when Borja “articulated her
political opposition” and thereby provoked an “immediate
reaction” from her persecutors, it was clear that “no reason-
able factfinder could fail to see the role her outspoken politi-
cal opinion played both then and thereafter in what happened
to her”).
[15] The IJ erred in finding that Li was not persecuted on
account of his political opinion. The police—who were imple-
menting the unofficial Chinese policy of discouraging human-
itarian aid to North Korean refugees—were motivated by a
desire to brutalize Li for defying the policy by providing aid
to the North Koreans and for expressing opinions contrary to
this policy in his words and deeds. Persecutors’ motivation
should not be questioned when the persecutors specifically
articulate their reason for attacking a victim. See Elias-
Zacarias, 502 U.S. at 483-84; see, e.g., Kebede, 366 F.3d at
811-12 (reversing the IJ’s holding that the petitioner failed to
establish that she suffered past persecution on account of
political opinion when the petitioner testified that the soldiers
who raped her stated during the rape that they were raping her
because of her family’s position in the prior Ethiopian
regime).
LI v. HOLDER 3679
There is direct evidence of the officers’ motivation in the
record—the officers specifically interrogated Li about why
and how he had helped the North Koreans while they were
brutalizing him. When Li would not disclose the names of the
other church members who had provided aid, the officers
threatened that Li was “going to suffer for the consequences.”
We already have recounted the various ways in which Li did
in fact suffer at the hands of his persecutors. Moreover, before
sending Li to the labor camp, where he continued to “suffer
for the consequences,” the police told him that they had all the
evidence they needed—“the Bible and also the North Kore-
ans.” The evidence clearly demonstrates that the authorities
persecuted Li to force him to conform to the government’s
unofficial policy, and that this policy was enforced coercively
and without regard to China’s criminal law.
[16] Li refused to obey the nebulous, unwritten policy that
undocumented North Korean refugees should receive no aid
from Chinese citizens, rather than leaving the refugees to
starve, abject and unsheltered, or reporting them to the gov-
ernment to face repatriation and possible execution. Li was
motivated by a moral obligation to protect and ease the suffer-
ing of the refugees—his deeds matching the words of the
President of the United States and various members of Con-
gress who likewise have protested the Chinese treatment of
North Korean refugees. See CRS Report, at CRS-25. Though
Li did not explicitly state his political disagreement with the
policy until he was detained and interrogated, his actions
clearly indicated his opposition before that point. One who is
persecuted for protesting with lawful deeds is just as worthy
of asylum under our laws as one who protested with words.
Cf. Mamouzian v. Ashcroft, 390 F.3d 1129, 1134 (9th Cir.
2004) (holding that beatings resulting from protests against
government practices constitute persecution on the basis of
political opinion). Thus, Li’s defiance of his government’s
unofficial policy gives rise to an inference that the ensuing
attacks and beatings were on account of his political opinion,
particularly when no other logical explanation for the attacks
3680 LI v. HOLDER
exists, see Navas, 217 F.3d at 660, and the beatings intensi-
fied when Li refused to provide the names of the others who
were assisting the refugees. We therefore hold that Li was
persecuted by the Chinese authorities on account of his politi-
cal opinion.
Holding otherwise would implicate serious policy con-
cerns. Although the IJ purportedly looked to our nation’s
criminal laws to support his view that Li suffered legitimate
prosecution for violating China’s law, he neglected to con-
sider our nation’s law regarding the treatment of North
Korean refugees, which completely undermines the IJ’s legal
extrapolation. The 108th Congress, with the assistance of
President George W. Bush, acted to lend American support to
the North Korean refugees by passing the North Korean
Human Rights Act of 2004, 22 U.S.C. §§ 7801-7845. In this
legislation, the United States decried the treatment of foreign
aid workers attempting to assist North Korean refugees strug-
gling in China, § 7801(21); sought to “promote a more dura-
ble humanitarian solution to the plight of North Korean
refugees,” § 7802(2); encouraged foreign nations to support
the refugees, § 7832(a)(3); appropriated twenty million dol-
lars a year to aid the refugees, § 7833(c)(1); urged China to
handle the refugees in a manner consistent with its interna-
tional obligations, § 7844(a); and directed the U.S. Secretary
of State to help facilitate applications of these refugees to seek
asylum in the United States, § 7843. The unfortunate irony
presented by these petitions is that Li took actions consistent
with U.S. law and policy facilitating foreign aid for North
Korean refugees, and yet, when persecuted on that basis, was
declared unfit to seek asylum here in the United States. It
would be an odd form of justice, and one to which we do not
subscribe, that would beseech people of good conscience to
provide aid, officially designate recipients of the aid as refu-
gees, and then determine that those who provided that aid are
LI v. HOLDER 3681
categorically ineligible to enter the United States when other
governments persecute them for providing the aid.17
V. CONCLUSION
Because on the record before us there exists no discernible
legitimate prosecutorial purpose behind the Chinese officials’
detention and beatings of Li, the record compels the conclu-
sion that Li was persecuted on account of his political opin-
ion, a protected category within our asylum law.18
[17] A finding of past persecution gives rise to a presump-
tion that Li has a well-founded fear of future persecution were
he to return to China. See Tawadrus, 364 F.3d at 1103. How-
ever, this presumption can be rebutted if the government can
“demonstrate that there has been a fundamental change in cir-
cumstances such that the applicant no longer has a well-
founded fear.” Id. (internal quotation marks omitted). Because
this issue was not previously addressed, we remand Li’s peti-
tion on the question of whether changed country conditions
rebut the presumption of a well-founded fear of persecution.
See INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam).
PETITION GRANTED; REMANDED for further pro-
ceedings.
17
In light of our holding with respect to Li’s claim of persecution on
account of political opinion, we need not reach his claim of persecution
on account of religion.
18
Because we hold that Li has established his eligibility for asylum, we
need not reach his withholding of removal and CAT claims.