Xiu Qin Chen v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2619
XIU QIN CHEN,
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
SUBMITTED MAY 5, 2010—DECIDED JUNE 10, 2010
Before EASTERBROOK, Chief Judge, and COFFEY and
HAMILTON, Circuit Judges.
EASTERBROOK, Chief Judge. Xiu Qin Chen, a citizen of
China, seeks asylum in the United States. She contends
that China persecuted her because of her political
opinions and will imprison her because of those opin-
ions should she be returned. Her political opinion, as
she expresses it in this court, is that China should pay
just compensation when it takes private property for
public use. That capitalist principle, enshrined in the

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2 No. 09-2619
fifth amendment to the Constitution of the United States,
is less honored in communist nations.
Chen contends that her home town of Langqi razed
about a dozen homes in order to construct a military
building. (We recount her story, which the Board of
Immigration Appeals accepted provisionally.) Officials
promised to provide similarly sized plots of land and to
pay for construction of new houses within three months,
and to provide rent for transitional housing. The rent
was paid, but when four months passed without the
transfer of new land or the money to build new homes,
Chen filed suit against the local government. The court
dismissed that suit, and officials appeared at her
family’s rented home with a warrant for her arrest. She
fled. Police have tried to find her ever since, and when
her father refused to reveal her whereabouts he was
beaten and his leg broken. But the Board of Immigration
Appeals concluded that Chen’s lawsuit did not advance
a political position, so the government’s reaction, though
excessive, was not on account of “political opinion”
within the meaning of 8 U.S.C. §1158(b)(1)(B)(i).
One circuit has held that litigation is a form of political
expression that can make a person eligible for asylum.
Baghdasaryan v. Holder, 592 F.3d 1018, 1020–21, 1024 (9th
Cir. 2010); Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1044–45
(9th Cir. 2008). Another has implied this, see Yueqing
Zhang v. Gonzales, 426 F.3d 540, 547–48 (2d Cir. 2005),
though that decision did not arise from litigation. Chen
urges us to follow these decisions and rule in her favor
on the political-opinion question, remanding to allow the

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No. 09-2619 3
agency to address the rest of the statutory issues. Things
are not quite that simple, however.
First, the ninth circuit approached the subject as if the
judiciary made an independent decision. It does not.
The Attorney General, and his delegate the Board of
Immigration Appeals, are principally responsible for
interpreting ambiguous terms in the immigration laws,
and the judiciary must respect administrative decisions
that plausibly implement this legislation. See Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), applied to immigration law by INS v.
Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999). See also
Negusie v. Holder, 129 S. Ct. 1159, 1163–64 (2009). The
alien must establish that “race, religion, nationality,
membership in a particular social group, or political
opinion was or will be at least one central reason for
persecuting the applicant”. 8 U.S.C. §1158(b)(1)(B)(i). These
are not self-defining terms, so administrative officials
have considerable leeway.
Second, it is necessary to distinguish having a
political opinion from the means of its expression. The
United States does not allow punishment for anyone’s
political views—but rules for the time, place, and manner
of expression are independent of the speaker’s politics.
Thus it may be permissible to punish a person for
waking up the neighbors with a bullhorn, even though
the viewpoint of the amplified statements cannot be
penalized. See Ward v. Rock Against Racism, 491 U.S. 781
(1989). And a public demonstration that blocks access
to a person’s home, and spoils the quiet that people need
in their daily lives, may be curtailed. See Frisby v.

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4 No. 09-2619
Schultz, 487 U.S. 474 (1988). The second and ninth
circuits appear to have assumed that the time, place,
and manner rules used in the United States apply
equally to foreign nations, and that any departure
from them penalizes political opinion. That is far from
clear to us. The foundation for the time, place, and
manner rules is that they do not concern the view-
point or content of the speech. In California, shopping
malls are open to political demonstrations, see PruneYard
Shopping Center v. Robins, 447 U.S. 74 (1980). But if a
foreign nation bans political speech at shopping malls
and arrests picketers as trespassers, that is not neces-
sarily punishment for “political opinion”; it may be no
more than insistence that political opinion be expressed
in a different place. Thus if a foreign state decides that
litigation is not an appropriate forum for political opinion,
it would be hard to characterize that as persecution.
Third, the United States has itself limited the expres-
sion of political opinion in the courts. True enough,
litigation is protected by the first amendment as one of
the ways by which the people may petition for redress
of grievances. See Lewis v. Casey, 518 U.S. 343 (1996);
NAACP v. Button, 371 U.S. 415 (1963). Cf. California Motor
Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510–11
(1972). But this does not imply that litigation is just
politics by other means. See Caperton v. A.T. Massey Coal
Co., 129 S. Ct. 2252 (2009). A court is the forum in
which legal rights are vindicated, and people who use
litigation solely as a pulpit for political protest may
be penalized if the suit is objectively baseless. BE&K
Construction Co. v. NLRB, 536 U.S. 516 (2002).

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No. 09-2619 5
This record strongly implies that Chen’s suit was objec-
tively baseless. It’s not just that she lost. She did not
own the land. Her parents did, and the government’s
promise to supply replacement land and pay for a
new house was made to her father, not to her. In the
United States, a suit complaining about a municipality’s
failure to pay for real property taken from the
plaintiff’s parents would be dismissed as frivolous, and
an award of sanctions would be likely. Only the owner
can sue for compensation. Chen says that she filed the
suit because her parents (and the other owners whose
land was taken) were afraid to challenge the local gov-
ernment. That makes the suit sound like a political
protest but also reveals that it was filed for reasons
other than any hope of success and thus abused the
legal process. If courts of this nation would deem such
a suit frivolous and sanctionable—and not an impinge-
ment on the rights of political opinion sheltered by the
first amendment—it cannot be political persecution
for other nations to think likewise. (Chen says that
the court dismissed the suit peremptorily and without
explanation, which suggests that the judge found it
frivolous.)
This conclusion does not necessarily lead to a decision
in the agency’s favor, however. The Board assumed that
litigation differs from expression of political opinion
but did not analyze whether that is so in general, or
particularly in China. Perhaps despite appearances
China does allow political litigation. How China under-
stands the proper use of its courts is a matter for the
agency to decide. Yet, as far as we can determine, the

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6 No. 09-2619
Board has never addressed, in a precedential opinion,
the question whether (and, if so, in which nations) it is
appropriate to treat suing a unit of government as a
legitimate means of expressing one’s political opinion.
The Board’s decision in Chen’s case is not precedential
and therefore does not count for the purpose of Chevron,
which requires a formal resolution of a question by
rulemaking or adjudication. See United States v. Mead
Corp., 533 U.S. 218 (2001); Ali v. Mukasey, 521 F.3d 737,
739 (7th Cir. 2008). (But see Gutnik v. Gonzales, 469 F.3d
683 (7th Cir. 2006) (concluding that a non-precedential
order of a single member receives Chevron deference).
The apparent intra-circuit conflict was noted in Joseph v.
Holder, 579 F.3d 827, 833 (7th Cir. 2009). There is no need
to resolve it here, any more than in Joseph.)
The Board’s failure to address the time, place, and
manner topic is not the only problem with its disposi-
tion. The response to Chen’s suit was not a fine or any
equivalent sanction but a warrant for her arrest. That
step is so disproportionate to the filing of a frivolous
suit that it raises the question whether the government
was setting out to muzzle a political opponent rather
than just to enforce the nation’s rules on the appropriate
subject matter of litigation. The agency did not consider
the possibility that the attempt to arrest Chen revealed
that the local government perceived a challenge much
different from the annoyance of a suit filed by a person
who did not own the confiscated property. The State
Department reports that China has been stern in sup-
pressing opposition to its land-acquisition policies,
at least when that opposition takes the form of public

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No. 09-2619 7
gatherings, see 2006 Country Report: China 9, 15
(March 2007), and if China has classified Chen as a
public protester then perhaps an imputed political
opinion is “at least one central reason” for the attempted
arrest. The agency needs to consider this possibility; so
far it has not done so.
Before conducting a more comprehensive analysis of
litigation as political opinion in China, the Board might
want to decide whether Chen is telling the truth. The
immigration judge disbelieved her, remarking that
Chen had not supplied material documents, the absence
of which raised suspicions. Chen relates that she was
represented by counsel in China. It therefore should
be possible to obtain any papers filed on her behalf
and learn from counsel whether, as Chen asserts, the
court’s decision was never transcribed. The warrant for
her arrest should be available and could reveal the
nature of the charge laid against her. Medical records
from her father’s treatment likewise may be helpful. The
agency could infer that Chen’s failure to produce docu-
ments that would corroborate her story, if they existed,
implies that the documents do not exist and that the
story is false. See 8 U.S.C. §1158(b)(1)(B)(ii), (iii); Mitondo
v. Mukasey, 523 F.3d 784 (7th Cir. 2008). But Chen has
offered reasons for not supplying some of these docu-
ments. She maintains, for example, that the government
directed the hospital to withhold her father’s medical
records. The agency needs to determine whether Chen’s
explanation for the records’ absence is honest.
There are other potential questions too, such as whether
the threat of an arrest is itself persecution, if the nation

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8 No. 09-2619
has a legal system capable of resolving the prosecuting
authority’s charges. A fugitive from criminal charges,
which is how Chen describes herself, cannot insist
that the agency assume that other nations have only
kangaroo courts; that proposition requires proof. These
and other subjects are open on remand.
The petition for review is granted, and the matter is
remanded for proceedings consistent with this opinion.
6-10-10

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