Shan Zhu Qiu v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3512
SHAN ZHU QIU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A099-023-327
ARGUED APRIL 8, 2010—DECIDED JULY 12, 2010
Before RIPPLE, MANION, and TINDER, Circuit Judges.
TINDER, Circuit Judge. In December 2004, Shan Zhu
Qiu lost his job and moved back to his parents’ home
outside Fuzhou, China. At a dinner there, he recon-
nected with a childhood friend, who noted that Qiu
looked weak and thin and offered to take him to a
qigong teacher who would help him get in shape for
free. Qiu had been sleeping poorly and thought exercise

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2 No. 09-3512
might help, and the price was right, so he agreed to go to
a lesson. Qigong is a popular form of exercise in
China that involves “coordinating slow movements with
breathing to cultivate the flow of energy, or qi, in a sort
of graceful fluid dance.” Nora Isaacs, Exercisers Slow
it Down with Qigong, New York Times, April 5, 2007.
Qiu’s first lesson took place in February 2005 at his
friend’s house; Qiu arrived, exercised for about thirty
minutes and met the qigong teacher, the “master.” Three
days later, Qiu met his friend in front of his house and
they went to a different location and practiced again.
Qiu went to several more sessions, which were held
in constantly shifting locations, and finally got curious
about why the group was moving around so much. At
this point, his friend informed him that the form of
qigong the group was practicing was Falun Gong.
Falun Gong is strictly prohibited by the Chinese gov-
ernment, which considers it an “evil cult.” It was orig-
inally practiced openly in China, but the Chinese gov-
ernment criminalized it after Falun Gong adherents
staged a massive protest outside the Chinese Communist
Party headquarters during the tenth anniversary of the
1989 pro-democracy Tiananmen Square demonstrations.
The protest was a response to increasingly negative por-
trayals of Falun Gong in the state-run media. Ironically,
the strength of the protests confirmed the fears that
prompted the negative state media coverage of Falun
Gong and the government’s position on Falun Gong
changed from disfavor to an outright ban. See Andrew
Jacobs, China Still Presses Crusade Against Falun Gong, N.Y.

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No. 09-3512 3
Times, April 28, 2009, and Craig S. Smith, The World:
Rooting Out Falun Gong; China Makes War on Mysticism,
N.Y. Times, April 30, 2000, for more details on the dev-
elopment of the relationship between Falun Gong and
the Chinese government.
Finding out that he was practicing Falun Gong was,
understandably, kind of a nasty shock for Qiu. He
believed that if he were caught practicing, he would be
detained for months. But he decided to continue for
three reasons. First, he was seeing health benefits from
his practice and was sleeping through the night. Second,
he was sure that if the group were careful, it could
practice in safety, undetected by the authorities. Third,
his experience with his Falun Gong practice convinced
him that he was not involved in an evil cult.
A little more than a month later, his master was ar-
rested. Qiu received a call from his friend who told
him that their practice had been reported and that the
authorities were looking for all of the group’s members.
Qiu returned to his parents’ home to get his things and
prepare to go into hiding. The police arrived as he was
packing, forcing him to jump off the balcony behind
the house to escape. He hiked on a mountain trail into
Fuzhou, called his family, sold his cell phone, and bought
a train ticket to Yiwu. From there, he checked in with
his family who reported that the police had served an
official summons on him at their house. His family,
fearing for his safety, told him not to come back.
After a month, Qiu ran out of money, took a train back
to Fuzhou, and went to a nearby relative’s house for

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4 No. 09-3512
help. The relative told him that the police had been
looking for him, found him a place to hide, and began
making arrangements for Qiu to flee the country. For
a fee equivalent to $70,000, the family arranged for a
smuggler to get Qiu a false passport and get to the
United States. Qiu arrived at O’Hare Airport, was
stopped by authorities, and asked for asylum.
While his asylum case was proceeding over here, ac-
cording to Qiu, the police came to his family’s home
three times and left summonses on at least two occasions
(in May 2005 and 2006), which Qiu’s mother sent to him
here in the States. Qiu also continued to practice
Falun Gong in the States, and on at least one occasion
protested in front of the Chinese Consulate in Chicago
by practicing there. He testified that there were cameras
at the consulate recording the protest and he is certain
that the police are looking for him and that he will be
arrested when he returns to China.
To be eligible for asylum, a petitioner must qualify as
a refugee under 8 U.S.C. § 1101(a)(42)(A). A refugee is
someone who is unable or unwilling to return to his
home country because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion. Id. Qiu argues that as a practitioner of
Falun Gong he has a well-founded fear of persecution
if forced to return to China. We have defined persecution
to include “detention, arrest, interrogation, prosecution,
imprisonment, illegal searches, confiscation of property,
surveillance, beatings, torture, behavior that threatens

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No. 09-3512 5
the same, and non-life-threatening behavior such as
torture and economic deprivation if the resulting condi-
tions are sufficiently severe.” Capric v. Ashcroft, 355
F.3d 1075, 1084 (7th Cir. 2004) (quotations omitted).
Qiu had a hearing before an Immigration Judge,
who found that he was not eligible for asylum in the
United States (and therefore ineligible for withholding
of removal and protection under the Convention
Against Torture, see Mabasa v. Gonzales, 455 F.3d 740, 746-
47 (7th Cir. 2006)). Qiu presented the evidence, described
above, that he fled China to escape persecution on
account of his practice of Falun Gong, that he had pro-
tested by practicing Falun Gong here in America, that
the Chinese were aware of his activities, and, relying
on State Department reports, that Falun Gong peti-
tioners were persecuted in China. This evidence, he
argued, showed that he had a well-founded fear of
future persecution. The IJ disagreed and the Board of
Immigration Appeals affirmed. Qiu petitions for re-
view. As presented to us, the single issue in this case
is whether substantial evidence supports the decision
below that Qiu has not established a well-founded fear
of future persecution as a result of his Falun Gong prac-
tice. We review the decision of the Board under
the substantial evidence standard and will reverse only
if the evidence compelled the contrary result. Gjerazi v.
Gonzales, 435 F.3d 800, 807 (7th Cir. 2006).
The IJ did not challenge Qiu’s credibility, but did find
the summonses that were entered into evidence “unreli-
able.” The IJ found that Qiu did not suffer past persecu-

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6 No. 09-3512
tion in China because he was never detained, punished,
or physically harmed there. The fact that the police
sought Qiu for questioning was insufficient, the IJ
found, to establish the level of persecution necessary to
qualify as a refugee. Qiu does not challenge this point.
At the same time, the IJ found Qiu’s “limited participa-
tion in Falun Gong practice in China insufficient to estab-
lish a well-founded fear of future persecution.” The IJ
found that the State Department country reports for
China offered by Qiu (specifically the 2007 Report on
Religious Freedom and the 2006 Report on Human
Rights Practices) were insufficient to establish that his
fear of future persecution was well-founded per se. In-
stead, the IJ found that the reports showed that hundreds
of thousands of people still practice Falun Gong in
their homes and that punishment for Falun Gong prac-
tice depends on the facts of each case. Other than
the presence of the police at his house, the IJ found that
Qiu presented no other evidence that he would be
harmed in China. The IJ questioned the validity of the
summonses, and noted that even if credible, those sum-
monses were not sufficient to establish a fear of future
persecution. The IJ also credited no evidence that the
Chinese were aware of his actions in front of their
Chicago consulate. Finally, the IJ noted that there is a
wide range of punishment for practitioners of Falun
Gong (ranging from loss of employment to imprison-
ment) and that Qiu could not establish where his
case falls along that spectrum. The Board adopted these
findings, noting the little weight given to the summons
and the unlikelihood that Qiu was identified by the

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No. 09-3512 7
Chinese government as a protester in front of their con-
sulate. The Board, then, found that the evidence sup-
ported the IJ’s decision that Qiu had not proven that
he was eligible for asylum. See 8 U.S.C. § 1158(b)(1)(B)
(“The burden of proof is on the applicant to establish
that the applicant is a refugee . . . .”).
To reverse the Board’s decision, we must determine
that the evidence compels the conclusion that Qiu has
a well-founded fear of persecution. See INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992). As a practical
matter, we think it beyond doubt that Qiu is in for some
type of trouble when he returns to China. If nothing else,
the Chinese government need only search the Seventh
Circuit web site’s archived opinions to be alerted to
his activities. But evidence describing the way the
Chinese government treats repatriated, asylum-seeking
Falun Gong adherents is not in the record. (The 2007 State
Department Report on Religious Freedom in China does
describe a Falun Gong adherent who was repatriated
from Russia and has since been kidnapped; his wife
believes it was at the hands of the Chinese government).
The Board seemed to agree that Qiu was indeed in for
some type of punishment in China, but found that Qiu
could not prove how harsh it was going to be.
Uncontested in this matter are the propositions that a
Falun Gong practitioner can qualify for asylum and
that Qiu is a bona fide Falun Gong adherent. Also uncon-
tested is the proposition that Qiu genuinely fears perse-
cution in China. The issue for our consideration is only
whether this fear is justified. So, to obtain a reversal, Qiu

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8 No. 09-3512
needs to show that he has proven that a Falun Gong
practitioner, like him, would be in for some trouble
in China and that the trouble would be severe enough
to rise to the level of persecution. See Bhatt v. Reno, 172
F.3d 978, 982 (7th Cir. 1999) (“[A petitioner] must show
specific, detailed facts supporting the reasonableness of
his fear that he will be singled out for persecution.”
(internal quotations and alterations omitted)). The bur-
den is on him to do so. 8 U.S.C. § 1158(b)(1)(B). Because
Qiu got out of China in time (which means he can’t rely
on previous persecution at the hands of the Chinese
authorities to prove future persecution), and because he
hasn’t spoken to any of the other practitioners who were
rounded up when he was (including the master and his
friend who introduced him to Falun Gong), Qiu’s only
evidence appears to be the State Department reports
entered into evidence below. If pertinent, these State
Department reports can be sufficient to prove a well-
founded fear of persecution. See Tamas-Mercea v. Reno,
222 F.3d 417, 423 (7th Cir. 2000).
The State Department reports, relied on by Qiu, reveal
that in 1999, Falun Gong was officially banned by the
Chinese government, and that as late as 2007, “Falun Gong
practitioners continued to face arrest, detention, and
imprisonment, and there were credible reports of deaths
due to torture and abuse.” 2007 State Department
Report on Religious Freedom in China. “Practitioners
who refuse to recant their beliefs are sometimes sub-
jected to harsh treatment in prisons, reeducation through
labor camps, and extra-judicial ‘legal education’ centers.”
Id. “Some foreign observers estimated that at least half

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No. 09-3512 9
of the 250,000 officially recorded inmates in the country’s
reeducation-through-labor camps are Falun Gong adher-
ents. . . . Hundreds of Falun Gong adherents were
also incarcerated in legal education centers, a form of
administrative detention, upon completion of their
reeducation-through-labor sentences. . . . In March 2006
U.N. Special Rapporteur on Torture Manfred Nowak
reported that Falun Gong practitioners accounted for
66 percent of victims of alleged torture while in govern-
ment custody.” Id.
The 2006 State Department Report on Human Rights in
China catalogs several beatings, deaths, and disappear-
ances of Falun Gong advocates (these people seem to
be something more than your average practitioner) and
it also notes that Falun Gong practitioners and their
families are targeted for arbitrary arrest, detention, and
harassment. The State Department also reports that
Falun Gong practitioners are subject to a “crackdown.”
While “core leaders” of Falun Gong are singled out for
harsher treatment, apparently most practitioners are
forced into study sessions or sent directly to the
reeducation-through-labor camps.
Had Qiu been more of an activist in China, we
don’t think there’s any question that he established a
well-founded fear of future persecution upon his return
to China. But, the question is whether a Falun Gong
practitioner in his situation can expect this same type
of persecution. The IJ and the Board relied on the fact
that Qiu practiced Falun Gong for only about three
months; they found that this makes him a low-level

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10 No. 09-3512
practitioner and therefore subject to lesser penalties.
While we agree that the facts established that Qiu is a
novice practitioner (or at least was when he left China),
the evidence also shows that the police were at his door
only three months after he started practicing. This estab-
lishes, at least, that police are interested in any Falun
Gong practitioner, not merely the “core leaders.” The
evidence also establishes, both through the State Depart-
ment reports and Qiu’s personal experience, that the
Chinese do not tolerate “private” Falun Gong practice.
Qiu’s private sessions with his group were reported to
the police who acted accordingly. Falun Gong is illegal
in China and the only way for Qiu to avoid punishment
is to cease practicing Falun Gong or work even harder
to avoid discovery.
Reading more closely into the State Department
reports, it also looks like the Board made an error: the
Board held that Qiu cannot establish that he, specifically,
will be persecuted because most practitioners of Falun
Gong were “punished administratively.” That sounds
like they were given a slap on the wrist; but when you
look at the State Department Report on Human Rights
Practices in China in 2006 (which the Board relied on),
you see that the term “administrative” includes “adminis-
trative detention centers” which are “administered sepa-
rately from the formal court system.” Later in the report,
we find that “[a]ctivists sentenced to administrative
detention also reported they were strapped to beds or
other devices for days at a time, beaten, forcibly injected
or fed medications, and denied food and use of toilet
facilities.” Administrative detention facilities include

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No. 09-3512 11
“reeducation-through-labor camps” and conditions there
are described as “similar to those in prisons.” Conditions
in prison are described as “harsh and degrading.” The
report notes that “[a]dministrative detention was fre-
quently used to intimidate political activists and
prevent public demonstrations” and that the Chinese
“government was reforming its administrative punish-
ment system, but reforms seek to codify rather than
abolish it.” Activists can be sentenced to “three years
in reeducation-through labor camps or other detention
programs” without trial by administrative panels. The
IJ found that Qiu faced punishment from “possible loss
of employment to imprisonment” and that many Falun
Gong practitioners who are released after detention
are re-arrested. Administrative punishment, therefore,
does not necessarily mean lenient punishment. To us,
therefore, it seems that administrative punishment
may be persecution and indeed, Qiu can expect to be ad-
ministratively punished when he returns to China. The
Board’s minimization of administrative punishment
must be more clearly explained, therefore, before we
can defer to its determination that Qiu has no well-
founded fear of persecution. See Gomes v. Gonzales, 473
F.3d 746, 757 (7th Cir. 2007) (“We cannot defer to
findings of fact that the immigration judge has not
made.” (quotation omitted)).
The government’s response is that it is incumbent on
Qiu to prove the degree of harm he can expect when he
returns to China. But all the evidence in the case shows
that Qiu can never practice Falun Gong again if he goes
back to China unless he’s willing to be punished. See

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12 No. 09-3512
Ghebremedhin v. Ashcroft, 385 F.3d 1116, 1120 (7th Cir.),
opinion modified on reh’g, 392 F.3d 241 (7th Cir. 2004) (noting
that the State Department reports established a “history
of persecution” in petitioner’s country and finding that
“nothing in the record demonstrates that [the petitioner]
would not face the same dangers should he be returned
there”). At best, the State Department reports establish
that there’s a sort of progressive discipline structure for
punishment of Falun Gong prisoners, but the discipline
only appears to stop if the practitioner ceases to prac-
tice Falun Gong.
Asylum exists to protect people from having to return
to a country and conceal their beliefs. Iao v. Gonzales,
400 F.3d 530, 532 (7th Cir. 2005); Muhur v. Ashcroft, 355
F.3d 958, 960-61 (7th Cir. 2004) (noting the “fatal flaw” in
the IJ’s opinion lies in the “assumption—a clear error of
law—that one is not entitled to claim asylum on the
basis of religious persecution if . . . one can escape the
notice of the persecutors by concealing one’s religion”). We
addressed a similar issue in Iao, 400 F.3d at 531, where
we remanded an IJ decision that was “unreasoned.”
There, the IJ made several factual errors and faulty as-
sumptions that undercut his ultimate decision that a
Falun Gong follower should be deported. As an aside,
we noted: “The number of followers of Falun Gong in
China is estimated to be in the tens of millions, all of
them subject to persecution . . . . [Because] [a]nyone, we
suppose, can get hold of a book of [Falun Gong] teachings,
start doing the exercises, and truthfully declare himself
or herself a bona fide adherent to Falun Gong[,] [t]he
implications for potential Chinese immigration to the

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No. 09-3512 13
United States may be significant. . . . But Congress has
not authorized the immigration services to [control Chi-
nese immigration] by denying asylum applications in
unreasoned decisions.” Id. at 533.
While the Board found that Qiu had failed to establish
that he was subject to a well-founded fear of persecution
on return to China because he could not identify the
type of punishment he would be subject to, we find
that the evidence established the opposite. The State
Department reports and Qiu’s own credited testimony
established that he is a Falun Gong practitioner, that
the practice of Falun Gong is outlawed in China, that
the Chinese police know he practices Falun Gong, that
China persecutes Falun Gong practitioners, and that
the only way Qiu can avoid persecution is to cease the
practice of Falun Gong or hope to evade discovery.
Putting Qiu to such a choice runs contrary to the
language and purpose of our asylum laws. Before finding
Qiu ineligible for asylum, the Board must reconcile the
dilemma facing Qiu, the level of persecution he would
face in China’s administrative system, and the asylum
statute. Accordingly, we grant the petition for review
and remand for reconsideration in light of our opinion.
7-12-10

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