Rejecting Asylum Suits, Circuit Cautions on 'Manufactured' Claims

, New York Law Journal

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Two immigrants from China who fear that their anti-Chinese government protests in the United States could subject them to persecution if they are forced to return to their native land haven't shown enough to warrant asylum or withholding of removal, a federal appeals court has ruled.

The U.S. Court of Appeals for the Second Circuit held in two cases that the petitioners fell short of showing that the Chinese authorities were aware of their political activities in the United States and so one petitioner therefore lacked a well-founded fear of persecution if deported, and a second failed to show he would have his life or freedom threatened if sent back to China.

The holdings came in two cases, Y.C. v. Holder, 11-2749-ag and X.W. v. Holder, 11-3217-ay, where Judges Dennis Jacobs (See Profile) and Robert Sack (See Profile) and, sitting by designation, Southern District Judge Jed Rakoff (See Profile), upheld the two decisions by the Board of Immigration Appeals and cautioned about the need to be wary of manufactured claims in immigration courts.

Writing for the court, Sack cautioned about the need for "careful parsing of the legal and factual issues at stake." He cited an earlier case, Mei Fun Wong v. Holder, 633 F.3d 64 (2d Cir. 2011), where the circuit warned that China's one-family one-child policy could be used "by large numbers of Chinese nationals whose real reason for seeking entry in the United States is the historic motivation for generations of immigrants: the search for better economic opportunities."

Here, Sack said, "What makes cases like this one particularly thorny is that pro-democracy claims may be especially easy to manufacture."

"Any Chinese alien who writes something supportive of democracy (or pays for such writing to be published in his or her name) and publishes it in print or on the Internet may in some cases do so principally in order to assert that he or she fears persecution," Sack said.

Y.C., a People's Republic of China native and citizen of Korean descent, came to the United States in 2004 after being fired from her accounting job in China for "whistle blowing" about misuse of company funds. In the United States, she joined and volunteered at the Chinese Alliance for Democracy, a democratic association opposed to communism.

Y.C. claimed that her husband, who is still in China, was visited by authorities who warned that Y.C. should stop working for the alliance. Y.C. also published an article in 2004 in the alliance's publication, Beijing Spring, about her escape from China and her work for the alliance and participated in candlelight vigils outside of the Chinese Embassy in New York.

Immigration Judge Sandy Hom twice denied her applications for relief (the first time after a remand from the circuit) and the BIA dismissed her appeal 2011.

X.W. came to the United States in 2003 and applied for asylum and other relief based on two allegations—the first that he was arrested, detained for 15 days and beaten and kicked in the stomach by authorities for protesting the denial of government relief following a 2001 typhoon that destroyed his family's homes and crops, and the second for his political activities with the Chinese Democracy Party operating in the United States.

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