Shu Han Liu v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3581
SHU HAN LIU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition to Review Order of
the Board of Immigration Appeals.
No. A077-354-003.
ARGUED MAY 1, 2013—DECIDED JUNE 3, 2013
Before BAUER, POSNER, and TINDER, Circuit Judges.
POSNER, Circuit Judge. The petitioner, a Chinese citizen,
entered the United States in 2001, at the age of 18, and
forthwith applied for asylum on the ground that if re-
turned to China she would be punished for having
refused to marry a Communist Party official. Her ap-
plication for asylum was denied and in 2004 she was
ordered removed. She stayed, and last year applied to

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2 No. 12-3581
reopen her removal proceeding in order to apply for
asylum and withholding of removal on the ground of
changed conditions in China. In 2011 she had converted
to Christianity, and she argues that if removed to China
her religious beliefs would compel her to join a Christian
church not recognized as legitimate by the Chinese gov-
ernment and to proselytize, which the government
forbids, and as a result she would face persecution.
The Chinese government is suspicious of religion. It
fears religious sects as potential incubators of rebellion
and denounces many of them as “cults.” U.S. Department
of State, Bureau of Democracy, Human Rights and
Labor, International Religious Freedom Report for 2011: China
4 (2012); Guobin Zhu, “Prosecuting ‘Evil Cults’: A Critical
Examination of Law Regarding Freedom of Religious
Belief in Mainland China,” 32 Human Rights Q. 471, 486
(2010). Although Article 36 of the Constitution of the
People’s Republic of China says that Chinese citizens
“enjoy freedom of religious belief,” it qualifies this by
stating that the “state protects normal religious activities”
(emphasis added). As explained in Congressional-Execu-
tive Commission on China, Annual Report 7 (2006), the
Chinese government’s “2004 Regulation on Religious
Affairs (RRA)…emphasizes government control and
restrictions on religion. The RRA articulates general
protection only for freedom of ‘religious belief,’ but not
for expressions of religious belief. Like earlier regula-
tions, it also protects only those religious activities
deemed ‘normal,’ without defining this term.” Under
Article 300 of China’s criminal code, involvement with a
cult is punishable: “Whoever forms or uses superstitious

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No. 12-3581 3
sects or secret societies or weird religious organizations
or uses superstition to undermine the implementation
of the laws and administrative rules and regulations of
the State shall be sentenced to fixed-term imprison-
ment of not less than three years but not more than seven
years; if the circumstances are especially serious, he
shall be sentenced to fixed-term imprisonment of not
less than seven years.” Congressional-Executive Commis-
sion on China, “Criminal Law of the People’s Republic
of China, Article 300,” www.cecc.gov/pages/newLaws/
criminalLawENG.php. (visited May 23, 2013).
Naturally the government is suspicious of Christian-
ity—a Western import. It requires Christian churches to
register with the government, insists they comply with
the doctrines of state-approved “patriotic religious as-
sociations,” keeps careful tabs on them, and forbids
church members to proselytize. International Religious
Freedom Report for 2011, supra, at 1, 7-8; Congressional-
Executive Commission on China, Annual Report 94, 103
(2011), Annual Report 108 (2010), Annual Report 132-
35 (2009).
Unsurprisingly a majority of Christians in China do not
consider the registered churches authentic and join unreg-
istered churches, called “house” churches—frequently
they are in private homes, as in early Christianity. The
house churches resist, and often defy, the constraints
that the government imposes on the registered
churches. Pew Forum on Religion & Public Life, Global
Christianity 58 (2011). “ ‘The bottom line is that house
church members believe in Jesus, not the party’s version
of Jesus,’ said Zhang Minxuan, a pastor and president

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4 No. 12-3581
of the Chinese House Church Alliance, who says he has
been detained 41 times.” Quoted in Andrew Jacobs, “Illicit
Church, Evicted, Tries to Buck Beijing,” N.Y. Times,
Apr. 17, 2011, p. A4. The registered churches return the
enmity of the house churches. A leader of a registered
church has complained that western Christian churches
“interfere, and this slows the work of the church in
China. First, we’re trying to build up a nondenomina-
tional, unified church, and yet overseas denominations
are trying to revive denominationalism here. Second,
there is theological interference. They criticize, saying
that under communism one cannot operate a church;
we are citizens of heaven; we don’t need to be under
any government. And third, they want to negate the
independence of the church in China, and instead set up
a mother-son relationship with churches overseas.”
Quoted in Mark Galli, “The Chinese Church’s Delicate
Dance: A Conversation with the Head of the Protestant
Three-Self Patriotic Movement,” Christianity Today, Nov
1, 2004, www.christianitytoday.com/ct/2004/november/
30.68.html (visited May 6, 2013). U.S. Commission on
International Religious Freedom, Annual Report 37 (2013),
reports that at least 18 house churches have been classified
as cults, and Congressional-Executive Commission on
China, Annual Report 100-11 (2010), reports that the
Chinese government “has banned at least 18 Protestant
groups with adherents in multiple provinces, as well
as many more congregations and movements that are
active in only one province.” See also U.S. Department
of State, Bureau of Democracy, Human Rights and
Labor, International Religious Freedom Report for 2010: China

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No. 12-3581 5
2 (2010) (“the government also considered several
Protestant Christian groups to be ‘evil cults’ ”); Con-
gressional-Executive Commission on China, Annual Report
85 (2012).
Liu is Protestant, and Protestant house churches appear
to be more commonly targeted than Catholic ones. See
Brian Spegele, “China’s Banned Churches Defy Re-
gime,” Wall Street Journal, July 28, 2011 http://
online.wsj.com/article/SB1000142405270230456760457645
1913744126214.html (visited May 23, 2013). Yet the house
churches of whatever denomination actually put one in
mind of the underground Catholic congregations that
formed when Henry VIII wrested control of the English
Church from the Pope, and like the members of those
congregations the members of the house churches face
persecution. See International Religious Freedom Report for
2011, supra, at 8; Congressional-Executive Commission on
China, Annual Report 103-05 (2011), Annual Report 109-10
(2010), Annual Report 136-38 (2009). There have been recent
“reports of abuses of religious freedom, including religious
prisoners and detainees. The government’s respect for
and protection of the right to religious freedom [has]
deteriorated. During the year [2010] religious affairs
officials and security organs scrutinized and restricted
the religious activities of registered and unregistered
religious and spiritual groups. The government harassed,
detained, arrested, or sentenced to prison a number
of religious adherents for activities reported to be re-
lated to their religious practice. These activities included
assembling for religious worship, expressing religious
beliefs in public and in private, and publishing religious

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6 No. 12-3581
texts.” International Religious Freedom Report for 2011, supra,
at 7-8; see also Congressional-Executive Commission on
China, Annual Report 103-05 (2011); China Aid Association,
2012 Annual Report: Chinese Government Persecution of
Christians & Churches in Mainland China 6 (2013).
Because the petitioner moved to reopen her asylum
proceeding after a final order of removal had been
entered, her motion was untimely if based only on a
change in her activities after coming to this country, such
as her conversion. Compare Chen v. Holder, No. 12-2563,
2013 WL 1908017, at *1 (7th Cir. May 9, 2013). She
had instead to show a change in conditions in China
since 2002, the date of her last removal hearing. 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). She thus
had to show that Chinese persecution of Christians (of
her type) had worsened. Otherwise there would be no
excuse for her having waited eight years beyond the
normal 90-day deadline for reopening.
It is true that had she not converted to Christianity
she would have no basis for seeking asylum on the
ground that China persecutes Christians. But if her con-
version was sincere, what would be the basis (other
than untimeliness, which is not a bar to seeking asylum
on the basis of changed country conditions) for treating
her differently from someone who had converted to
Christianity before coming to the United States? The
conversion was a change in her personal circumstances,
true; but the change would not have exposed her to a risk
of persecution in China had it not been for the change
in conditions in that country. See Joseph v. Holder, 579

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No. 12-3581 7
F.3d 827, 834 (7th Cir. 2009). The Board of Immigration
Appeals has made no finding that her conversion was
insincere, a ploy to enable her to avoid removal.
The Justice Department insists that the only change
was in the petitioner’s personal conditions. That is wrong.
It ignores the change in country conditions. In arguing
that reopening was barred because the only change was
in personal conditions, the Department was once again
violating the Chenery doctrine. See Chen v. Holder, supra, at
*2, and cases cited there. For the Board had made no
mention of a change in personal conditions. The Depart-
ment commits a second Chenery violation by arguing
that China leaves small, unobtrusive house churches
alone; the argument does not appear in the Board’s opin-
ion. It is also a weak argument. An “unobtrusive”
house church presumably is one that refrains from prose-
lytizing; and to forbid proselytizing is an infringement
of religious liberty—the petitioner asserts without con-
tradiction that her religious faith requires that she prose-
lytize. By their repeated violations of the Chenery doc-
trine, the Justice Department’s lawyers are courting
sanctions.
We must consider whether the petitioner has a well-
founded fear of religious persecution should she return
to China and, if so, whether the risk of persecution
is greater than it would have been in 2002, the date of
her final removal hearing. We have mentioned some
evidence that the conditions of religious freedom in
China have deteriorated since then, and we’ll discuss
more later.

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8 No. 12-3581
The analytic section of the Board’s opinion begins
mysteriously with the statement that the petitioner “cites
the [State Department] Country Reports on China for
the years 2001 to 2008, but she does not offer them to
support her motion.” We don’t know what the Board
means. She submitted copies with her motion—not that
she had to; it was enough for her to cite them since they
are public documents to which the Board has ready
access. In fact the next sentence in the Board’s opinion
cites the State Department’s 2009 Country Report along
with three of the Department’s International Religious
Freedom Reports.
The opinion cites these four reports in support of the
proposition “that China currently allows the practice of
Christianity, although there have been reports of the
detention of some leaders of underground, or ‘house,’
churches and harassment of church members.” Indeed
there have been such reports—many. Yet from the four
reports that it cites the Board infers only that the
petitioner “has not shown that the arrest of leaders of
underground churches and harassment of church
members demonstrates that she will suffer mistreat-
ment amounting to persecution upon her return to
China based on her practice of Christianity.” We can’t
tell whether the Board thinks that she will be harassed
but not persecuted (that the harassment will not be
severe enough to amount to persecution) or that the
fact that members of house churches are persecuted
doesn’t mean that she will be persecuted even though
she will be joining such a church.

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No. 12-3581 9
One of the four reports cited by the Board states
that “in Beijing the government reportedly pressured
landlords to stop renting space to house church groups.
During an outdoor worship service, authorities re-
portedly conducted surveillance, used loudspeakers to
warn against unauthorized public gatherings, detained
church leaders to prevent them from attending services,
and closed public parks to dissuade the groups from
gathering.” U.S. Department of State, Bureau of Democ-
racy, Human Rights and Labor, Country Reports on
Human Rights Practices for 2009: China 15 (2010). In
another of the reports cited by the Board we read that
“some religious or spiritual groups are outlawed,
including the Falun Gong. Other religious groups, such
as Protestant ‘house churches’ or Catholics loyal to the
Vatican, are not outlawed, but are not permitted to
openly hold religious services unless they affiliate with
a patriotic religious association. In some parts of the
country, authorities have charged religious believers
unaffiliated with a patriotic religious association with
‘illegal religious activities’ or ‘disrupting social stability.’
Punishments for these charges range from fines to impris-
onment.” U.S. Department of State, International Religious
Freedom Report for 2010: China 1 (Nov. 2010).
In the third report we learn that “police and officials
of local [Religious Affairs Bureaus] in some areas
disrupted home worship meetings, claiming that partici-
pants disturbed neighbors or social order, or belonged
to an ‘evil religion.’ Police sometimes detained for hours
or days worshippers attending such services and pre-
vented further worship activities. Police interrogated

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10 No. 12-3581
church leaders and lay persons about their worship
activities at locations including meeting sites, hotel
rooms, and detention centers. Non-governmental or-
ganizations (NGOs) reported that church leaders
faced harsher treatment than members, including
greater frequency and length of detention, formal arrest,
and reeducation-through-labor or imprisonment.” U.S.
Department of State, International Religious Freedom
Report for 2009: China 5 (Oct. 2009).
And in the fourth report we read that “religious groups
independent of the five patriotic religious associations
have great difficulty obtaining legal status and can be
vulnerable to coercive and punitive action by the
Public Security Bureau (PSB) and the Religious Affairs
Bureau. In parts of the country, local authorities tacitly
approved of the activities of unregistered groups and did
not interfere with them, reportedly leading to unreg-
istered churches holding worship services attended by
hundreds. In other areas local officials punished the same
activities by confiscating and destroying property or
imprisoning leaders and worshippers.” U.S. Department
of State, International Religious Freedom Report for July-
Dec. 2010: China 4 (Sept. 2011).
The Board’s opinion ignores not only the most pertinent
parts (the ones we’ve just quoted) of the four reports it
itself cited, but also the other reports cited by the petitioner
that indicate that Chinese officials persecute members of
house churches. See U.S. Department of State, Bureau of
Democracy, Human Rights and Labor, Country Reports on
Human Rights Practices for 2008: China, § 2.c (2009) (“during

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No. 12-3581 11
the year there were numerous reports of detention and
harassment of unregistered Protestant groups”), 2006
Country Report, § 2.c (2007), 2005 Country Report, § 2.c
(2006), 2003 Country Report, § 2.c (2004); Congressional-
Executive Commission on China, Annual Report 108-10
(2010), Annual Report 136-38 (2009); China Aid Association,
2010 Annual Report: Chinese Government Persecution of
Christians & Churches in Mainland China 9 (2011), 2009
Annual Report 8-9 (2010). Notice that the reports ignored
by the Board include not only State Department Country
Reports on China but also reports by the Congressional-
Executive Commission on China, which like the State
Department’s Country Reports are official U.S. government
documents. We have remarked in two recent cases the
Board’s unexplained and inexplicable refusal to consult
the Commission’s reports. Ni v. Holder, No. 12-2242, 2013
WL 1776501, *5-6 (7th Cir. Apr. 26, 2013); Chen v. Holder,
supra, at *2.
After citing (and misconstruing) the four reports, the
Board veers into a protracted discussion of “the
unsworn statement of the respondent’s friend in China,
in which he claims that he and others” were threatened
and fined by police for “spreading the gospel and ad-
vertising a Christmas show event.” The Board complains
that the statement (which the petitioner’s friend had
mailed to her from China) “is not supported by evidence
such as a police report, arrest record, detention release
certificate, fine receipt, or statement of others,” and
“moreover, this unsworn document appears to be
created for the purpose of litigation and is from an inter-
ested witness not subject to cross-examination.” These
characterizations are curious. According to his resident

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12 No. 12-3581
identification card, the writer of this one-page state-
ment describing the incident of religious harassment is
a contemporary of the petitioner’s, a young man who
knew her before she moved to the United States. The
statement is consistent with evidence credited in
official reports, and the writer would no more have
dared to swear to its truth before a notary public than
he would have dared to ask the police for a record of
his arrest or a receipt for the fine he was forced to pay.
(“And why do you want these things, young man”? “In
order to document Chinese persecution of Christians,
such as myself and my friend in America who doesn’t
want to be sent back here.” This is not a conversation
that we can imagine taking place.) According to the
English-language version of the official Chinese govern-
ment website, Chinese notaries must “adhere to the Four
Cardinal Principles, uphold the leadership of the Com-
munist Party of China, love the socialist motherland,
observe laws and discipline, be in good health, and have
fine professional ethics.” M inistry of Justice,
People’s Republic of China, The Notarial System,
www.legalinfo.gov.cn/english/Legal-Knowledge/content/
2009-02/03/content_1028375.htm (visited May 6, 2013). As
the Sixth Circuit has noted, “given the documented
persecution of Christians in China, it seems an arbitrarily
high threshold to require that letters attesting to gov-
ernment abuse and admitting membership in a
persecuted organization be notarized.” Yu Yun Zhang v.
Holder, 702 F.3d 878, 881 (6th Cir. 2012).
Granted, the significance of the friend’s statement as
evidence pales in relation to the significance of evidence

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No. 12-3581 13
in official and otherwise reputable reports. But why the
Board should have made such a fuss over it perplexes
us, except as a reflection of the general muddle that it’s
in over authentication of foreign documents, the muddle
we discussed in Chen v. Holder, supra, at *4.
The last paragraph of the Board’s opinion states sum-
marily that the petitioner has failed to demonstrate
changed country conditions. By limiting itself to reports
dated 2009 or later, however, the Board deprived itself
of the ability to compare current conditions in China
regarding persecution of members of house churches
with conditions in 2002, the date of the petitioner’s final
removal hearing. Yet remember that the petitioner had
cited reports issued in that and subsequent years that
the Board had ignored; by ignoring them the Board
disabled itself from determining whether persecution
of the house churches had worsened since 2002. In addi-
tion, the petitioner submitted—and the Board also
ignored—reports, and once again they mainly are
official federal government publications, which state that
persecution of members of house churches is indeed
worse today than it was in 2002. Recall our earlier quota-
tion from the State Department’s International Religious
Freedom Report for 2011; see also U.S. Department of State,
International Religious Freedom Report for July-December 2010:
China 1 (2011); Congressional-Executive Commission on
China, Annual Report 136 (2009); China Aid Association,
2010 Annual Report 9 (2011). And compare the U.S. Depart-
ment of State, Bureau of Democracy, Human Rights and
Labor, Country Reports on Human Rights Practices for 2009:
China 15 (2010) (“several large house churches reported

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14 No. 12-3581
increased government interference with their activities
in periods preceding sensitive anniversaries”), the 2008
Country Report, § 2.c (2009) (“authorities disrupted church
meetings and retreats; detained, beat, and harassed
leaders and church members; and confiscated the
personal property of church leaders and members.”), and
the 2005 Country Report, § 2.c (2006) (“the new regula-
tions require religious groups to register places of
worship and authorized the government to define what
religious activity is ‘normal’ and therefore lawful.
Spiritual activities in places of worship that have not
registered may be considered illegal and participants
can be punished”), with the 2002 Country Report, § 2.c
(2003) (“in certain areas in the southeast, government
supervision of religious activity was minimal, and regis-
tered and unregistered churches were treated similarly
by authorities, existing openly side by side),” and the
2001 Country Report, § 2.c (2002) (“official repression
of underground Catholic and Protestant groups in
Guangdong and Fujian provinces eased somewhat”)—all
unaccountably ignored by the Board. Occasionally the
later reports repeat almost verbatim characterizations
of governmental attitudes toward the house churches
from the earlier reports, suggesting no increase in harass-
ment or persecution. The repetitions may have been
unintentional, but in any event the Board did not
mention them. In sum, the evidence of changed condi-
tions, and that the petitioner faces a significant risk of
persecution if she is removed to China, is unrebutted.

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No. 12-3581 15
The Board’s order is vacated and the case returned to
the Board for further proceedings consistent with
this opinion.
6-3-13

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