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Religious Persecution May Include Non-Physical Forms of Harm

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Huang v. Holder is an Eleventh Circuit case on appeal from a Board of Immigration Appeals (BIA) denying Huang’s application for asylum after finding that the abuse he suffered in his native country of China did not constitute religious persecution.  The Eleventh Circuit vacated and remanded to the BIA because it was unclear from the BIA’s decision whether or not it had considered the non-physical evidence of religious persecution Huang presented.

Huang, a Chinese Christian, came to the US through the Mexican border on October 20, 2009.  Upon arrival, he filed an asylum application because based on fear of further religious persecution in China due to his Christian faith.  Huang testified that he became a Christian in 2006 and began attending church services every Sunday.  On August 23, 2009 police interrupted the service he was attending and arrested Huang along with approximately fifteen other congregants.  Huang was brought to the police station and detained for three days while he was questioned about the church’s leadership and members.  During his detention Huang was beaten when he refused to provide information and suffered bruises for which he was later treated at a hospital.  Huang was only released when his father paid bail and upon release was asked to sign a statement vowing that he would not attend the same church again, which he signed.  After his release Huang returned to the church to find that everything had been destroyed.  Sometime later, the police came to Huang’s home and spoke to his father telling him that Huang needed to return to the police station for further investigation.  At this time the police also confiscated all of Huang’s religious materials including his bible.

Huang feared further persecution based on these incidents because he did not plan to stop attending his church services.  Shortly after these incidents, Huang fled China with the help of his father who provided written testimony in his hearing that the police continued to visit the home looking for Huang after he left the country.

The Immigration Judge (IJ) denied Huang’s asylum application because he had failed to demonstrate either past persecution or a well-founded fear of future persecution based on the protected ground of religious beliefs and ordered him removed to China, a ruling Huang appealed to the BIA.  The BIA upheld the IJ decision that “considered cumulatively, [Huang’s injuries] did not rise to the level of severity to constitute past persecution” and that he had not proven a well-founded fear of future persecution and denied relief.  Id.

The Eleventh Circuit, on appeal, vacated the BIA decision and remanded for further consideration of the non-physical persecution Huang suffered.  The Eleventh Circuit did not find that the BIA did not consider factors beyond Huang’s physical injuries but that, based on the record it could not determine whether these factors were a part of the BIA’s considerations.  Judge Huck began the Huang opinion, colorfully, saying“[i]t’s not always enough to say that you did something.  Sometimes, you have to show it as well.  Or at least you have to not do something else that may raise a question as to whether you did what you said you did.”  The BIA analyzed only the beatings that Huang suffered as a factor in their decision.  The Eleventh Circuit credits the BIA with mentioning the confiscation of Huang’s Christian materials but is unsatisfied with the level of attention paid saying that the BIA “did not appear to attach any significance to this fact.”

In addition to the BIA’s lack of analysis on the non-physical harm Huang suffered, the Eleventh Circuit was troubled by the lack of mention of another Eleventh Circuit case on religious persecution: Shi v. U.S. Attorney General.  In Shi, which contained a similar fact pattern to Huang, the Eleventh Circuit found “extreme and egregious suppression of religious practice.”  To support that finding the Eleventh Circuit focused on four circumstances of Shi’s persecution.  First, that “the incident began with the interruption of a private church service and ended with an attempt to coerce Shi to abandon his religious conviction and to promise to never again attend a church meeting like the one that led to his detention in the first place.”  Second, that the police confiscated Shi’s bibles.  The third and fourth circumstance surrounded Shi’s detention and beating which were more excessive than Huang’s.  For these reasons, the Eleventh Circuit remanded to the case to the BIA for further proceedings consistent with its opinion.

Huang draws a distinction between religious and political persecution in its determination that while both may involve physical abuse, which is highly relevant to a persecution determination, both forms of persecution also include particular factors outside of physical harm which are relevant to the court.  In discussing the additional factors particular to religious persecution, Huang has increased the factors that the courts must evaluate in determining religious persecution. By citing Shi in its opinion, the Eleventh Circuit has created a standard that physical abuse is not the only criteria for finding religious persecution. In addition courts should consider any other action taken by the persecutors meant to prevent worship.  The Court focuses specifically on: prohibition of attending church services, through police interruption or forced disavowals; illegal police searches; and confiscation of bibles and other religious materials.  Huang, did not determine that these factors were exhaustive and left open the possibility that the  lower courts could, and should, consider any other facts presented by the petitioner that are relevant to claims of persecution.

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