Zhen L I Iao v. Alberto R. Gonzales

* This is the name that appears in the final order of the Board of
Immigration Appeals and in the docket and briefs in this court.
But the record reveals that the petitioner’s name is actually
Xiuzhen Li, and that is the name we’ll use in the opinion.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1700
Z HEN L I I AO *
Petitioner,
v.
A LBERTO R. G ONZALES , Respondent.
____________
Petition to Review Order of the
Board of Immigration Appeals.
No. A 79 089 633
____________
A RGUED J ANUARY 26, 2005—D ECIDED M ARCH 9, 2005
____________
Before POSNER , M ANION , and W OOD , Circuit Judges.
P OSNER , Circuit Judge. An immigration judge ordered the
petitioner, a citizen of China seeking asylum in the United
States, to be removed (deported) from the United States, and
the Board of Immigration Appeals affirmed without
opinion. The basis of the immigration judge’s ruling was
that the petitioner is not entitled to asylum because she lacks

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2 No. 04-1700
a well-founded fear of being persecuted by the Chinese
government should she return to China.
A woman in her early 20s, Li arrived in the United States
in 2000. At the removal hearing she testified through an
interpreter that she had begun to practice Falun Gong in
China and—the Chinese government having outlawed
Falun Gong in 1999—that police and village officials had
learned of her activity (probably through her employer) and
decided to investigate. Village officials made repeated visits
to the house in which she lived with her parents to tell her
to abandon Falun Gong, but she eluded them by residing
mainly in her aunt’s house. Police visited the parents’ home
and delivered a summons commanding Li to come to the
police station for an interview. She did not comply with the
summons. They kept coming back to the home, looking for
her, and she fled the country.
Since arriving in the United States, Li has, again according
to her testimony, practiced Falun Gong in Chicago (where
she lives) and has also participated in street demonstrations
against the Chinese government’s persecution of the
movement. When she arrived in this country she knew the
name of the founder of Falun Gong (Li Hongzhi, now in
exile in the United States) and had done the physical
exercises that are the primary manifestation of adherence to
Falun Gong, but she was vague about its doctrines and
unfamiliar with its symbol. She has since become more
familiar with the movement’s doctrines and symbol. At the
hearing before the immigration judge she presented letters
from her mother in China, and the Chinese man who had
introduced her to Falun Gong there, corroborating her testi-
mony.
Falun Gong is an international movement, though pri-
marily Chinese, that is often referred to as a “religion” (or,
by its critics, as a “cult”), though it is not a religion in the

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No. 04-1700 3
Western sense. Like other Asian “religions,” such as Bud-
dhism and Confucianism—on both of which Falun Gong
draws—there is no deity. The emphasis is on spiritual self-
perfection through prescribed physical exercises; in this
respect the movement has affinities with traditional Chinese
medicine.
The government acknowledges that China persecutes
adherents to Falun Gong and that an applicant for asylum
need not have experienced persecution (Li has not) in order
to have a well-founded fear of future persecution, Diallo v.
Ashcroft, 381 F.3d 687, 699 (7th Cir. 2004); Sivaainkaran v.
INS, 972 F.2d 161, 165 n. 2 (7th Cir. 1992); Knezevic v.
Ashcroft, 367 F.3d 1206, 1212 (9th Cir. 2004), which suffices
for a claim of asylum. Capric v. Ashcroft, 355 F.3d 1075, 1084-
85 (7th Cir. 2004); Yadeger-Sargis v. INS, 297 F.3d 596, 601-02
(7th Cir. 2002); Krastev v. INS, 292 F.3d 1268, 1270 (10th Cir.
2002). As Falun Gong is neither theistic nor, so far as
appears, political, the ferocious antipathy to it by the
Chinese government—that government’s determination to
eradicate it root and branch—is mysterious, but undeniable.
See, e.g., Zhang v. Ashcroft, 388 F.3d 713, 716, 719 (9th Cir.
2004) (per curiam). If Li practiced Falun Gong in China, as
she testified she did, or if she attempted to practice it upon
returning to China, she would face a substantial likelihood
of persecution. She might be able to conceal her adherence
to Falun Gong from the authorities, but the fact that a person
might avoid persecution through concealment of the activity
that places her at risk of being persecuted is in no wise
inconsistent with her having a well-founded fear of persecu-
tion. Id. at 719 (“to require Zhang to practice his beliefs in
secret is contrary to our basic principles of religious freedom
and the protection of religious refugees”); Muhur v. Ashcroft,
355 F.3d 958, 960-61 (7th Cir. 2004). On the contrary, it is the
existence of such a fear that motivates the concealment.

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4 No. 04-1700
The immigration judge gave five reasons for nevertheless
denying Li’s application for asylum. The first is that she was
not persecuted in China. But she does not claim to have been;
it is a nonissue. The fifth reason is that her brother, who
lives in the United States, is a follower of Falun Gong yet
failed to submit an affidavit attesting that his sister is too.
The judge misread the record; the brother is not a follower
of Falun Gong.
Reasons 2 through 4 overlap. Reason 2 is that Li failed to
present persuasive evidence that she is a follower of the
movement, because in her testimony she was “quite vague
concerning her beliefs.” For example, she didn’t know that
Falun Gong has a symbol (the “Falun Wheel” composed of
reverse swastikas, a Buddhist symbol). But the heart of
Falun Gong observance is the exercises, which she testified
without contradiction that she does.
Reason 3 was that there were inconsistencies in her tes-
timony about the visits of the police to her home. This was
not, as the immigration judge thought, an independent rea-
son for denying the application for asylum; rather, it was a
reason not to credit her testimony about being a member of
Falun Gong. The inconsistencies were trivial, however, and
may well have been due to the fact that Li was testifying
through an interpreter who appears not to have had a good
command of English. When Li testified about the delivery
of the summons to her home by the police, the immigration
judge asked her whether she had had any prior “confronta-
tions” with the government and she said no, but later
explained that although the police didn’t start coming to her
home until they served the summons, village officials had
visited earlier. Were these “confrontations”? She was never
at home when they visited. And goodness knows how the
translator translated “confrontations” into Chinese.

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No. 04-1700 5
Reason 4 was that when interviewed by an asylum officer
at the time she first applied for asylum, Li testified that after
the village officials got wind of her involvement with Falun
Gong she “went into hiding at different locations and never
went back home.” The immigration judge said that she “did
not specifically testify in this manner (e.g. that she went into
hiding) nor does the rest of the record support this state-
ment.” That is not correct. Although Li (more precisely, the
translator) did not use the word “hiding,” she said she
wasn’t at home when the police visited and that sometimes
she was “at my aunt that I mentioned at her house.”
Apparently the village officials and police visited her home
repeatedly, and since she was never there when they
showed up it is a logical inference, supported also by her
mother’s letter, that she was indeed trying to evade the
authorities.
The immigration judge’s opinion cannot be regarded as
reasoned; and there was no opinion by the Board of Immi-
gration Appeals. So we have to vacate the decision and send
the matter back to the immigration service. We do not
decide that Li is entitled to asylum; that is a decision for the
immigration authorities to make. But she is entitled to a
rational analysis of the evidence by them.
The number of followers of Falun Gong in China is
estimated to be in the tens of millions, all of them subject to
persecution. And among the other billion Chinese there are
doubtless many who would prefer to live in the United
States than in China. Falun Gong, unlike, say, Judaism or
Roman Catholicism or Jehovah’s Witnesses, does not appear
to have any formal requirements for membership; indeed,
it has no membership. Anyone, we suppose, can get hold of
a book of Li Hongzhi’s teachings, start doing the exercises,
and truthfully declare himself or herself a bona fide adher-
ent to Falun Gong. The implications for potential Chinese

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6 No. 04-1700
immigration to the United States may be significant, though
in this circuit there have been only two litigated applications
for asylum based on fear of persecution for being an
adherent (or for being believed by the Chinese authorities to
be an adherent) of Falun Gong, Liu v. Ashcroft, 380 F.3d 307
(7th Cir. 2004); Yu v. Ashcroft, No. 03-3965, 2004 WL 3103070
(7th Cir. Dec. 28, 2004) (unpublished order), and in the
federal courts as a whole there have been only a couple of
dozen such cases since 2003. The United States has every
right to control immigration. But Congress has not autho-
rized the immigration service to do so by denying asylum
applications in unreasoned decisions.
We close by noting six disturbing features of the handling
of this case that bulk large in the immigration cases that we
are seeing:
1. A lack of familiarity with relevant foreign cultures. Yi-Tu
Lian v. Ashcroft, 379 F.3d 457, 459 (7th Cir. 2004); Joanna
Ruppel, “The Need for a Benefit of the Doubt Standard in
Credibility Evaluation of Asylum Applicants,” 23 Colum.
Human Rts. L. Rev. 1, 14-15 (1992). The immigration judge
offered no justification for regarding a person’s lack of
knowledge of Falun Gong doctrines as evidence of a false
profession of faith. Different religions attach different weights
to different aspects of the faith. Falun Gong, remember, is
not theistic; nor is it hierarchical. So far as appears, what is
central is neither doctrine nor symbol, but the exercises.
Benoît Vermander, “Looking at China Through the Mirror
of Falun Gong,” 35 China Perspectives 4 (May-June 2001),
h t t p : / / w w w . c e f c . c o m . h k / u k / p c / a r t i c l e s /
art_ligne.php?num_art_ligne=3501 (“the absence of any for-
mal rituals and organisation would make it impossible to
consider Falun Gong precisely as a religion. Where rituals are
concerned, however, it seems to us that one must consider
the communal practice of exercises, alternated with peaceful

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No. 04-1700 7
protests, as the movement’s own ritual arsenal”); Anne S. Y.
Cheung, “In Search of a Theory of Cult and Freedom of
Religion in China: The Case of Falun Gong,” 13 Pac. Rim L.
& Policy J. 1, 28 (2004) (“those who believe in Falun Gong
dedicate themselves to the exclusive practice of this exercise
as a means to achieve enlightenment. In this sense, manifes-
tation and belief are united”).
2. An exaggerated notion of how much religious people know
about their religion. Muhur v. Ashcroft, supra, 355 F.3d at 959-
60. Of course a purported Christian who didn’t know who
Jesus Christ was, or a purported Jew who had never heard
of Moses, would be instantly suspect; but many deeply re-
ligious people know very little about the origins, doctrines,
or even observances of their faith.
3. An exaggerated notion of the availability, especially in poor
nations, of documentary evidence of religious membership. Id.;
Qiu v. Ashcroft, 329 F.3d 140, 154 (2d Cir. 2003). An acepha-
lous, illegal religious movement is particularly unlikely to
issue membership cards. The immigration judge’s zeal for
documentation reached almost comical proportions when
after Li had testified at length and in considerable detail
about locations, including the street in front of the Chinese
consulate in Chicago, in which she had participated in dem-
onstrations against the persecution of Falun Gong, he
upbraided her for having “failed to submit to the Court any
letters or photographs or any other evidence whatsoever
to corroborate these claims.” Since the demonstrators are
mainly Chinese who might one day want or be forced to
return to China, they are hardly likely to be taking photos of
each other demonstrating, or to be creating other docu-
mentary proof of participating in demonstrations of which
the Chinese government deeply disapproves.
4. Insensitivity to the possibility of misunderstandings caused
by the use of translators of difficult languages such as Chinese,

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8 No. 04-1700
and relatedly, insensitivity to the difficulty of basing a determi-
nation of credibility on the demeanor of a person from a culture
remote from the American, such as the Chinese. E.g., Lin v.
Ashcroft, 385 F.3d 748, 756 n. 1 (7th Cir. 2004); Ememe v.
Ashcroft, 358 F.3d 446, 451-53 (7th Cir. 2004); Mendoza
Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir. 2003); He v.
Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003); Deborah E. Anker,
“Determining Asylum Claims in the United States: A Case
Study on the Implementation of Legal Norms in an
Unstructured Adjudicatory Environment,” 19 N.Y.U. Rev. L.
& Social Change 433, 505-27 (1992); Neal P. Pfeiffer, “Credi-
bility Findings in INS Asylum Adjudications: A Realistic
Assessment,” 23 Tex. Int’l L.J. 139 (1988). Behaviors that in
our culture are considered evidence of unreliability, such as
refusing to look a person in the eyes when he is talking to
you, are in Asian cultures a sign of respect.
5. Reluctance to make clean determinations of credibility.
Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004);
Diallo v. Ashcroft, supra, 381 F.3d at 698-700; Mendoza
Manimbao v. Ashcroft, supra, 329 F.3d at 660-61; Diallo v.
Ashcroft, 232 F.3d 279, 287 (2d Cir. 2000). When an immigra-
tion judge says not that he believes the asylum seeker or he
disbelieves her but instead that she hasn’t carried her
burden of proof, the reviewing court is left in the dark as to
whether the judge thinks the asylum seeker failed to carry
her burden of proof because her testimony was not credible,
or for some other reason.
6. Affirmances by the Board of Immigration Appeals either with
no opinion or with a very short, unhelpful, boilerplate opinion,
even when, as in this case, the immigration judge’s opinion
contains manifest errors of fact and logic.
We do not offer these points in a spirit of criticism. The
cases that we see are not a random sample of all asylum

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No. 04-1700 9
cases, and the problems that the cases raise may not be rep-
resentative. Even if they are representative, given caseload
pressures and, what is the other side of that coin, resource
constraints, it is possible that nothing better can realistically
be expected than what we are seeing in this and like cases.
But we are not authorized to affirm unreasoned decisions
even when we understand why they are unreasoned.
The petition for review is granted and the matter returned
to the immigration service for further proceedings consis-
tent with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-9-05

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