Zhen Hua Li v. Attorney General of the United States; Immigration & Naturalization Service

PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
No. 03-1930
____________________
ZHEN HUA LI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES*;
IMMIGRATION & NATURALIZATION SERVICE,
Respondents
*Caption amended pursuant to Rule 43©), F.R.A.P.
On Petition for Review of Order of the
Board of Immigration Appeals
(Board No. A73-171-500)
Argued: October 4, 2004
Before: SLOVITER, BECKER, and STAPLETON, Circuit Judges.
(Filed: March 10, 2005)
Steven J. Kolleeny
James R. Emerson (Argued)
Room 48-328
Four Times Square
New York, NY 10036-6522
Attorneys for Petitioner
Donald E. Keener
Alison R. Drucker
Sarah Maloney (Argued)

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2
Christopher C. Fuller
Douglas E. Ginsburg
Lyle D. Jentzer
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
_____
OPINION OF THE COURT
BECKER, Circuit Judge.
Zhen Hua Li, who contends that he has been persecuted as
a result of his defiance of China’s population control policy,
petitions for review of an order of the Board of Immigration
Appeals (BIA) affirming the denial of his application for asylum
and withholding of removal. Although Li submits that he and his
wife were threatened with sterilization, detention, and physical
abuse, the evidence supporting the claim of physical persecution
does not carry the day. His more significant claim is one of
economic persecution: he and his wife were subjected to a fine
equivalent to twenty months’ salary, lost their jobs (and
accompanying health insurance, food rations, and school
payments), were effectively blacklisted from other government
employment, and had their furniture and major household
appliances confiscated. All of this, they argue, was deliberate
retaliation for having had four children.
The BIA assumed that Li was credible, but found that he
nevertheless failed to establish a claim of past economic
persecution. While the contours of the doctrine are still
developing, the existing jurisprudence establishes that economic
deprivation, if sufficiently severe, can constitute persecution within
the meaning of asylum law. Drawing upon that jurisprudence, we
hold that deliberate imposition of severe economic disadvantage
because of a protected ground may rise to the level of persecution.
While the issue is close, we believe that on the evidence in the

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3
record, this rigorous standard was met here. Moreover, our
examination of the record reveals that, given the BIA’s credibility
assumption, the Board understated the evidence in the record
regarding economic persecution. For these reasons, we will grant
Li’s petition for review and remand to the BIA for further
proceedings on the credibility issue.
I. FACTS AND PROCEDURAL HISTORY
Li is a citizen of the People’s Republic of China. He
married in 1983. He was employed as a mechanic in government-
owned factories since 1970, and his wife was employed as a nurse.
Their first child was born in 1984, a second child in 1986, and a
third in 1987. Apparently, at the time of his second child’s birth,
China allowed couples to have two children. However, according
to Li, after the birth of the third child, the birth control officials
punished him with a 1200 yuan fine, forced his wife to have an
IUD implanted, and spared her sterilization only because she
professed poor health. Li testified that the fine was equivalent to
twenty months’ salary. He submitted a receipt for 1200 yuan that
indicated the fine was imposed for “violation of Planned Family
policy.”
Two years later, in 1989, Li’s wife became pregnant with
the couple’s fourth child. At this point, more serious consequences
ensued. First, the birth control officials notified the couple that
Li’s wife would have to have an abortion. In addition, Li claimed
that he knew of someone at a neighboring factory who, after having
a fourth child, was detained and beaten, suffering severe injuries to
his legs, and was fired from his job, and that officials threatened
that if Li’s wife did not have an abortion, Li and his wife would
“end up like them, we’ll be captured and will be beaten up.”
Nevertheless, Li said that because his wife claimed that she had
health problems, the doctors did not force her to have an abortion
or to undergo sterilization after the baby was born. Li also
expressed fear that the authorities might try to sterilize him if he
were captured.
Before the baby was born, Li went into hiding in
neighboring cities, but he returned home shortly after his wife gave
birth to the fourth child. Upon arriving home, he found that he had
been terminated from his job because of his violations of the

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4
population control policy. He introduced an unauthenticated
document that stated the termination was for “serious violation
of the planned family policy, as well as his forecful [sic] giving
birth to the forth child.”
After receiving notice of his termination, Li remained in
hiding, staying with friends in other cities. Li admitted that he got
by with “some temporary jobs” but claimed that “[b]ecause I have
violated the birth control policy, most government companies
would not hire me.” Li stated that he was afraid to even apply for
another job because “if I apply for jobs in . . . government
companies they will, my original factory . . . would know my
whereabouts so they . . . would capture me.” Thus, Li claimed that
it was impossible to find a job because of his violation of the birth
control policy.
With the loss of his job also came the loss of many other
benefits, including health insurance, money for school tuition, and
food rations. His wife was also fired from her job as a result of the
fourth child and has been unable to obtain employment since.
Moreover, Li testified that when he returned home on one
occasion to visit his wife and children, the birth control authorities
had confiscated appliances and large household items such as their
refrigerator, television, and other furniture.
Li fled to the United States in 1990, fifteen months after the
birth of his fourth child. He applied unsuccessfully for asylum in
1993. In 1996, the INS instituted deportation proceedings against
him through the issuance of an Order to Show Cause. At his initial
proceeding, Li conceded deportability, but continued to seek
asylum and withholding of deportation. The merits proceeding on
his asylum and withholding of deportation claims did not occur
until March 8, 1999.
The Immigration Judge (IJ) who heard the case denied Li’s
petition. The IJ based his decision largely on his finding that there
was a “failure of proof.” In particular, he found that Li had not
presented sufficient documentation of the forced IUD, of his
inability to obtain work, or of the very existence of a family unit.
Li in fact presented documentary evidence of his marriage,
registration cards for his four children, two photographs of his
family, a receipt for the fine paid after the birth of the third child,
and his factory dismissal certificate, but the IJ gave these minimal
weight because they were unauthenticated.

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We note that Li’s testimony was that his wife had a1
gynecological condition, but he could not specify the nature of the
illness, and he testified that she was able to care for the children
and to work with this condition. Moreover, Li’s testimony was that
his wife told the Chinese authorities about her illness as a means of
avoiding forced abortion or sterilization, but it is unclear whether
such illness was in reality severe. He stated, “[S]he went to explain
to birth control officials that, that was something wrong with her,
but how she explained to them, I didn’t know.”
5
The IJ also advanced an “alternative discretionary analysis”
in which he found that even if Li would otherwise qualify for
asylum, he would deny Li’s petition as a matter of discretion
because it was not reasonable for Li to have left his “sick wife and
four minor children, an unemployed sick wife, no less, and a
blacklisted wife, and taking, I guess whatever savings the family
had and leaving for the United States.”1
Li filed a timely appeal with the BIA on April 5, 1999. The
BIA did not rely on the IJ’s adverse credibility determination in
denying the appeal. Indeed, the BIA acknowledged that Li
“identified some error in the Immigration Judge’s decision,” but
it nevertheless “agree[d] with the Immigration Judge’s ultimate
resolution.” The BIA rested its denial of relief on the grounds that,
“[e]ven assuming [Li] is credible, [he] failed to demonstrate past
persecution” because “when viewed in the aggregate, a fine, the
confiscation of some personal property, and loss of a government
job” do not constitute persecution. Moreover, the BIA found that
“increased cost of tuition and medical care does not constitute
persecution.” The BIA did not make any other findings or
conclusions analyzing Li’s testimony regarding economic
deprivation, nor did the opinion address Li’s claim that he and his
wife were threatened with sterilization, forced abortion,
incarceration, and other physical abuse.
The BIA also found that Li did not establish he had a well-
founded fear of future persecution, noting that
in light of [Li’s] ability to live unfettered for 15 months
before leaving China, his wife’s ability to continue living
in China without sterilization, and the ages of the

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respondent and his wife, [Li] failed to sustain the burden
of proving a well-founded fear of future persecution on
account of the coercive population control policies in
China.
Because it based its decision on the legal conclusion that Li’s
allegations did not rise to the level of persecution, the BIA
declined to address the validity of the IJ’s “alternative
discretionary rationale,” or the IJ’s adverse credibility
determination.
II. JURISDICTION, SCOPE OF, AND STANDARD OF
REVIEW
The BIA had jurisdiction over this matter pursuant to 8
C.F.R. § 3.1(b)(3) (2003). Because petitioner’s deportation
proceedings began with an Order to Show Cause issued by the
Immigration and Naturalization Service on June 26, 1996, this
matter falls under the Transitional Rules set forth in section 309(c)
of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept.
30, 1996). Our jurisdiction, therefore, is governed by former
section 106(a) of the Immigration and Nationality Act (INA), 8
U.S.C. § 1105a(a), which provides the exclusive procedure for
judicial review of all final orders of “deportation and exclusion”
in proceedings initiated prior to April 1, 1997. The BIA’s final
order was entered on March 4, 2003, and the petition for review
was timely filed on April 3, 2003. See IIRIRA § 309(c)(4)(C) .
Where, as here, the BIA issues a decision on the merits and
not simply a summary affirmance, we review the BIA’s, not the
IJ’s, decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).
We must treat the BIA’s findings of fact as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Lukwago v. Ashcroft,
329 F.3d 157, 167 (3d Cir. 2003). Moreover, “‘persecution’ and
‘well-founded fear of persecution’ are . . . findings of fact that we
review under the deferential substantial evidence standard,” and
thus the BIA’s findings must be upheld “unless the evidence not
only supports a contrary conclusion, but compels it.” Abdille v.
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). Therefore, we

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must uphold the BIA’s factual findings if they are “supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992).
III. DISCUSSION
Under 8 U.S.C. § 1158(b)(1), the Attorney General may
grant asylum to an alien who is a “refugee” within the meaning of
8 U.S.C. § 1101(a)(42). Generally speaking, an applicant must
show that he or she:
is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of
[the country of such person’s nationality or in which
such a person last habitually resided] 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. . . .
8 U.S.C. § 1101(a)(42)(A). A showing of past persecution gives
rise to a rebuttable presumption of a well-founded fear of future
persecution. 8 C.F.R. § 1208.13(b)(1). While asylum constitutes
discretionary relief, an applicant is entitled to withholding of
removal if he or she can satisfy the higher burden of demonstrating
that it is more likely than not that life or freedom would be
threatened because of a protected ground if he or she were
removed. 8 U.S.C. § 1231(b)(3)(A) (1999); Miah v. Ashcroft, 346
F.3d 434, 439 (3d Cir. 2003).
Especially relevant here is the fact that the IIRIRA amended
§ 1101(a)(42) by specifying that:
[A] person who has been forced to abort a pregnancy or
to undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a
procedure or for other resistance to a coercive
population control program, shall be deemed to have
been persecuted on account of political opinion, and a
person who has a well founded fear that he or she will
be forced to undergo such a procedure or subject to

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persecution for such failure, refusal, or resistance shall
be deemed to have a well founded fear of persecution on
account of political opinion.
Therefore, to be deemed to have been a “refugee” under Section
1101(a)(42), Li must establish that he was persecuted for “failure
or refusal” to undergo involuntary sterilization or for “other
resistance” to China’s population control policy, or alternatively,
that he has a well-founded fear of being persecuted for his
resistance to the population control policy were he to be sent back
to China.
The BIA has held that when a petitioner’s spouse has
suffered coerced sterilization or abortion, such persecution of the
spouse is considered an act of persecution against the petitioner
himself. Matter of C-Y-Z-, 21 I. & N. Dec. 915, 917 (BIA 1997)
(en banc) (“[P]ast persecution of one spouse can be established by
coerced abortion or sterilization of the other spouse.”). But see
Cai Luan Chen v. Ashcroft, 381 F.3d 221, 226-27 (3d Cir. 2004)
(finding it unnecessary to decide whether C-Y-Z- is a permissible
interpretation of the IIRIRA, but noting that C-Y-Z’s interpretation
is “not without difficulties”). However, Li does not contend that
his wife was either sterilized or forced to have an abortion; rather,
he alleges that she refused such procedures and was able to avoid
them because she claimed she was in poor health. Because Li has
alleged that he personally resisted China’s population control
policy by fleeing to avoid his own sterilization and by agreeing to
have a third and fourth child with his wife, we decline to address
the issue of whether Li could establish an asylum claim based on
his wife’s failure or refusal to undergo forced abortion or
sterilization or her resistance to China’s population control policy
under the C-Y-Z- rationale.
A. Credibility
As a threshold matter, we must determine whether we need
to consider the BIA’s evaluation of Li’s credibility in making our
decision. While the IJ’s adverse credibility determination was
central to his denial of Li’s claim, the BIA noted that Li had
“identified some error” in the IJ’s credibility finding and failure to
consider documentary evidence. The BIA, however, did not make

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Indeed, while we review only the decision of the BIA, we2
note that the IJ erred in imposing a strict authentication
requirement, which we have subsequently rejected in Gui Cun Liu
9
any credibility findings of its own. Thus, we are left only with the
BIA’s conclusion that, assuming Li was credible, he failed to
establish past persecution as the basis for the BIA’s denial of Li’s
past persecution claim. This rationale is all that we may review.
See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A]
reviewing court, in dealing with a determination or judgment
which an administrative agency alone is authorized to make, must
judge the propriety of such action solely by the grounds invoked
by the agency. If those grounds are inadequate or improper, the
court is powerless to affirm the administrative decision by
substituting what it considers to be a more adequate or proper
basis.”); Ernesto Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir.
2000) (“[T]his court cannot affirm the BIA on a ground upon
which it did not rely.”).
In Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003),
we held that where the BIA makes no findings on the credibility
issue, “we must proceed as if [petitioner’s] testimony were
credible and determine whether the BIA’s decision is supported by
substantial evidence in the face of the assumed (but not
determined) credibility.” In Kayembe, the IJ relied on an adverse
credibility determination to deny the petitioner’s claim, but the
BIA rested its affirmance on other grounds, without making a
credibility determination. Also instructive is Briones v. INS, 175
F.3d 727 (9th Cir. 1999) (en banc), where the BIA had taken note
of the IJ’s adverse credibility determination, but declined to
address it, because the BIA found that Briones’s testimony, even
if it was credible, did not establish a well-founded fear of
persecution. 175 F.3d at 728. Yet the Ninth Circuit, sitting en
banc, analyzed the facts as alleged by the petitioner and found that
the allegations were of a “compelling nature” such that, “if
trustworthy,” they would make out a claim for a well-founded fear
of persecution. Id. The court then remanded to the BIA for
credibility findings as to his claim.
Similarly, in the instant case, the BIA identified “some
error” in the IJ’s decision, explicitly assumed credibility, and2

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v. Ashcroft, 372 F.3d 529 (3d Cir. 2004). See also Leia v. Ashcroft,
2005 WL 14808 (3d Cir. Jan. 4, 2005). In Gui Cun Liu, a case
where the IJ gave no weight to a certificate of abortion allegedly
from Chinese officials, we held that “asylum applicants can not
always reasonably be expected to have an authenticated document
from an alleged persecutor.” 372 F.3d at 532. We found that it
was legal error for the IJ to impose an absolute rule of exclusion on
the basis of authentication, and that such improper rejection of
unauthenticated documents could “fundamentally upset[] the
balancing of facts and evidence upon which the agency’s decision
is based.” Id. at 533-34.
10
found Li had failed to even allege past persecution. Thus, in
accord with Kayembe and Briones, we will review the BIA’s legal
conclusions assuming the credibility of Li’s testimony.
B. Past Persecution
Li testified to two categories of harm as a result of his
resistance: 1) unfulfilled threats that he and his wife would be
sterilized and/or physically harmed, and 2) economic harm.
1. Unfulfilled Threats
Li testified that as a result of his violation of China’s
population control policy, he was threatened with sterilization and
physical violence. After the birth of Li’s fourth child, Li claimed,
“At that time, my . . . wife was in poor health, so they came to me.
That means they want to capture me to . . . have sterilization done
to me.” Li also claimed that he knew of a person at a neighboring
factory who was arrested and beaten after the birth of a fourth
child. Officials at his own factory allegedly warned Li that if his
wife did not have an abortion that they would “end up like them,
we’ll be captured, and will be beaten up.”
It is established, however, that “[t]hreats standing alone . . .
constitute persecution in only a small category of cases, and only
when the threats are so menacing as to cause significant actual
‘suffering or harm.’” Lim v. INS, 224 F.3d 929, 936 (9th Cir.
2000); see also Guan Shan Liao v. United States Dep’t of Justice,

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Rather than consider such threats past persecution, Boykov3
and Lim recognized that unfulfilled threats are generally “within
that category of conduct indicative of a danger of future
persecution.” Lim, 224 F.3d at 936; see also Boykov, 109 F.3d at
416. Moreover, Lim recognized that as a matter of proof, “claims
of threats are hard to disprove,” and so “flipping the burden of
proof every time an asylum applicant claimed that he had been
threatened would unduly handcuff the [government].” Id.
Unfulfilled, non-imminent threats are properly addressed when
considering whether a petitioner has a well-founded fear of future
persecution.
11
293 F.3d 61, 70 (2d Cir. 2002).
We agree that unfulfilled threats must be of a highly
imminent and menacing nature in order to constitute persecution.
See Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir. 1997). For
example, Boykov held that the petitioner, a Bulgarian national, had
not suffered past persecution even though he had faced repeated
threats by the Communist Party authorities who accused him of
being critical of the government: Boykov’s friend had disappeared
and later was found murdered; he was warned by his boss, a
Communist official, that he would lose his job or “something even
worse could happen”; and he was visited by the police at his home,
who threatened that “now . . . it would be much easier for them to
get rid of” him. Id. at 414-15. Similarly, in Lim, the Ninth Circuit
found that a petitioner had not suffered past persecution where he
had received repeated death threats for his role in investigating and
prosecuting a dissident group, and his colleagues who also took
part in the investigation were in fact murdered one by one. 224
F.3d at 932-33. The Court noted that Lim lived in the Philippines
for six years after receiving the threats without meeting any harm,
albeit with the aid of a personal bodyguard and some police
protection. Id. Notwithstanding the threats’ sinister and credible
nature, in both Boykov and Lim, the courts held that unfulfilled
threats, even death threats, did not qualify as past persecution
unless highly imminent.3
The threats of physical mistreatment, detention, or
sterilization described by Li do not appear to have been
sufficiently imminent or concrete for the threats themselves to be

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If we were to consider whether Li has demonstrated a well-4
founded fear of future persecution, we would address his testimony
regarding unfulfilled threats at that time. Because the BIA failed
to properly address the past persecution claim, however, we do not
reach Li’s claim that he has a well-founded fear of future
persecution.
The 1952 version of Section 243(h) of the INA provided:5
“The Attorney General is authorized to withhold deportation of any
alien within the United States to any country in which in his
opinion the alien would be subject to physical persecution and for
such period of time as he deems to be necessary for such reason.”
12
considered past persecution. As in Boykov and Lim, neither Li nor
any of Li’s family members were actually imprisoned, beaten,
sterilized, or otherwise physically harmed. While certainly
disturbing, Li’s concern that he would be forced to undergo
sterilization, and his supervisor’s comments that he could be
arrested and beaten, were less imminent and less menacing than
the ominous threats faced by petitioners in Boykov and Lim, which
were not found to constitute past persecution.
Therefore, we hold that the unfulfilled threats described by
Li do not constitute past persecution.4
2. Economic Harm
The INA does not provide a statutory definition of the term
“persecution.” See 8 U.S.C. § 1101(a)(42) (defining “refugee”
status in terms of “persecution”). We must, therefore, determine
under what circumstances economic restrictions may rise to the
level of persecution.
Prior to 1965, section 243(h) of the INA, 66 Stat. 212, 214
(enacted June 27, 1952), required a petitioner to demonstrate that
he suffered from “physical persecution” in order to qualify for
withholding of deportation. The import of the requirement that5
persecution be “physical” was highlighted in Blazina v. Bouchard,
286 F.2d 507, 511 (3d Cir. 1961), where we held that
[b]efore the Attorney General may grant relief under
Section 243(h) it must be shown to his satisfaction that, if

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13
deported, the alien would be subject not only to
persecution, but to physical persecution. . . . The phrase
“physical persecution” should be taken to mean
confinement, torture or death inflicted on account of race,
religion, or political viewpoint.
One year after Blazina, in Dunat v. L.W. Hurney, 297 F.2d
744, 746 (3d Cir. 1962), we recognized that economic restrictions
could constitute “physical persecution,” but only where such
restrictions prevented an applicant from any opportunity of earning
a livelihood. We reasoned in Dunat
[T]here is no basis for thinking that “physical
persecution” requires or even connotes the use of
intense physical force applied to the body with all the
dramatics of the rack and the wheel. The denial of an
opportunity to earn a livelihood in a country such as
[communist Yugoslavia] is the equivalent of a
sentence of death by means of slow starvation and
none the less final because it is gradual.
Id.
In 1965, however, Congress amended the Immigration Act
by deleting the adjective “physical” from the term “physical
persecution.” INA, Pub. L. No. 89-236, § 11(f), 79 Stat. 918 (Oct.
3, 1965). In Kovac v. INS, 407 F.2d 102, 106-07 (9th Cir. 1969),
the Ninth Circuit found that by deleting the word “physical” and
so as to require only “persecution,” not “physical persecution,”
Congress intended to remove the requirement that applicants show
that economic harm was so severe as to cause bodily injury. By
this reasoning, the panel found that the 1965 Amendment
“eliminated the premise upon which courts construing the old
statute . . . based the rule that, to come within the reach of section
243(h), a denial of employment opportunities must extend to all
means of gaining a livelihood.” Id.
Because of the new terminology regarding persecution in
the INA, Kovac introduced a new standard for withholding of
deportation claims: “Under the amended statute, therefore, a
probability of deliberate imposition of substantial economic
disadvantage upon an alien for reasons of race, religion, or

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The 1980 amendment to the INA replaced the term6
“persecution” with the term “threat to life or freedom” for
withholding of deportation cases. “Threat to life or freedom”
remains the standard governing withholding of removal in 8 U.S.C.
§ 1231(b)(3) under current law. At the same time, the 1980
amendment introduced the term “persecution” into the asylum
context, which is the term used today for qualification as a refugee
under 8 U.S.C. § 1101(a)(42). In 1996, the IIRIRA, inter alia,
repealed the term “withholding of deportation” in 8 U.S.C.
§ 1253(h) and renamed it “withholding of removal,” now codified
at 8 U.S.C. § 1231(b)(3). See Pub. L. No. 104-208, § 307(a), 110
Stat. 3009 (Sept. 30, 1996). While the terminology and
codification have changed, in substance the two provisions are the
same.
14
political opinion is sufficient to confer upon the Attorney General
the discretion to withhold deportation.” 407 F.2d at 107 (emphasis
added). In Borca v. INS, 77 F.3d 210, 216 (7th Cir. 1996), the
Seventh Circuit extended Kovac’s reasoning to both asylum and
withholding of deportation (now withholding of removal, see note
6, infra) claims.
Since the 1965 amendment, the Immigration and
Naturalization Act has undergone considerable alteration and
amendment, but the basic principle that physical persecution is no
longer statutorily required remains intact. Without going through
an exhaustive history of the INA, we simply note a few major
amendments to the relevant statutory sections in the margin.6
This Court has had few occasions, following the 1965
amendment to the INA, to determine what types of economic
restrictions might constitute persecution now that physical
persecution is no longer required. Most notably, adopting the
standard for persecution set forth by the BIA in Matter of Acosta,
19 I. & N. Dec. 211 (BIA 1985), in Fatin v. INS, 12 F.3d 1233,
1240 (3d Cir. 1993), we defined persecution as “threats to life,
confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” Fatin made clear that
“persecution” denotes “severe” conduct and that, “persecution
does not encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional. If persecution were

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15
defined that expansively, a significant percentage of the world’s
population would qualify for asylum in this country . . . .” Id. at
1240.
Since Acosta and Fatin established the general standard for
persecution in this circuit, we follow these precedents. However,
neither case dealt directly with the issue of economic persecution,
and so neither Acosta nor Fatin controls as a matter of factual
application. Fatin questioned whether being forced to wear a
chador and to comply with other religious laws constituted
persecution of an Iranian woman who opposed Iran’s gender-
specific dress and religious requirements. Id. Similarly, Acosta
did not involve any claim of economic disadvantage, but rather
concerned a native of El Salvador who alleged he was physically
assaulted and had his life threatened because of his involvement in
a cooperative for taxi drivers. 19 I & N Dec. at 216-17.
Moreover, the BIA has yet to cite Acosta or its economic
persecution standard to clarify what it means by “economic
restrictions so severe that they constitute a threat to life or
freedom.” Thus, neither Fatin nor BIA precedent illuminates the
contours of an economic persecution claim.
Ahmed v. Ashcroft, 341 F.3d 214 (3d Cir. 2003), is one of
the only other cases in this circuit to address the issue of economic
persecution since we established the Fatin standard. In Ahmed, we
held that a former resident of Saudi Arabia had not established that
he had suffered past economic persecution because of his
Palestinian background. In that case, petitioner had faced
employment discrimination, but nevertheless had attended a top
Saudi Arabian university and had been employed in all but one
year since his graduation. Id. at 217-18. Like Fatin, however,
Ahmed, is clearly distinguishable from the instant case. Li testified
that after losing his government job, he and his wife were
effectively blacklisted from any legitimate employment, forcing
him to get by with low-level, temporary employment while hiding
out with friends in other parts of China. Ahmed, therefore, does
not help us determine whether and when more severe economic
restrictions may rise to the level of persecution. We are therefore
left without factual analogies in BIA decisions or in our own
Circuit’s precedent to determine when economic restrictions
should be recognized as persecution.
Many decisions of other Courts of Appeals have followed

-- 15 of 30 --

While the IJ was more explicit about the legal standard he7
employed, he appears to have set too high a bar for economic
persecution. The IJ found that only when “a person is unable to
make any type of livelihood, is unable to support himself and his
family, then he may have been deprived of his freedom to such an
extent that asylum may be an appropriate form of relief.” The IJ
went on to find that “[t]he family did manage to survive and no one
16
Kovac’s reasoning and have recognized economic harm as
persecution where the alien can show that he or she was subjected
to “deliberate imposition of substantial economic disadvantage”
because of a protected ground. See Baballah v. Ashcroft, 367 F.3d
1067, 1075 (9th Cir. 2004); Eduard v. Ashcroft, 379 F.3d 182, 187
(5th Cir. 2004); Guan Shan Liao v. United States Dep’t of Justice,
293 F.3d 61, 70 (2d Cir. 2002); Yong Hao Chen v. INS, 195 F.3d
198, 204 (4th Cir. 1999); Borca v. INS, 77 F.3d 210, 216 (7th Cir.
1996); Berdo v. INS, 432 F.2d 824, 847 (6th Cir. 1970).
On the other hand, courts have emphasized that it is not
sufficient for petitioner to merely have suffered from “natural,
nonpunitive economic downturns” or from generally harsh
conditions shared by others in the alien’s native country; rather,
such economic harm must be deliberately imposed as a form of
punishment. Borca, 77 F.3d at 216. Nor is it sufficient for a
petitioner to have faced only economic discrimination or to have
been denied his preferred job. Ahmed, supra, 341 F.3d at 217.
Informed by the reasoning of these cases, we hold that the
deliberate imposition of severe economic disadvantage which
threatens a petitioner’s life or freedom may constitute persecution.
(This is the Acosta standard). Such disadvantage might, for
instance, involve “the deprivation of liberty, food, housing,
employment, and other essentials of life.” See Eduard, supra, 379
F.3d at 187. We turn to the application of this standard to the
record in this case.
Assuming Li’s testimony to be credible, see Part III.A,
supra, the BIA found that “[a] fine, loss of a particular job, and
confiscation of some personalty” do not rise to the level of
persecution, even when viewed in the aggregate. It is unclear what
legal standard the BIA used for determining when economic harm
constitutes persecution. Moreover, we agree with Li that the BIA7

-- 16 of 30 --

starved and they all got by for that 15 month period following the
time when [Li] lost his job with the government. So the act of
losing the job was not in and of itself an act of persecution. The
1200 yuan fine was not in and of itself persecution . . . .” While the
standard for economic persecution is stringent, and the economic
harm, in accord with Fatin, must be severe, we do not require
complete loss of all means of earning a livelihood, nor do we
require evidence of near-starvation, for economic restrictions to
rise to the level of persecution. See Borca, 77 F.3d at 216 (finding
it unnecessary for a petitioner to establish a “utter lack of economic
opportunity” to meet the standard for economic persecution).
Therefore, the testimony and evidence in this case is unlike8
that in Liao, 293 F.3d at 70, where the Second Circuit held that
without evidence of “petitioner’s income, his net worth at the time
of the fines or any other facts that would make it possible . . . to
evaluate [petitioner’s] personal financial circumstances in relation
to the fines,” the court could not determine whether petitioner had
suffered “substantial economic disadvantage” as a result his
violation of China’s population control policy.
17
mischaracterized the nature of the economic consequences Li
faced because of his refusal to comply with China’s population
control policy. While we review any factual findings by the BIA
under the highly deferential “substantial evidence” standard, INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992), in this case, the BIA
assumed Li to be credible, and concluded that Li’s allegations do
not make out a claim for economic persecution. After careful
review of the record, assuming Li’s credibility, we are satisfied
that Li’s allegations rise to the level of economic persecution and
therefore that the BIA’s decision was not supported by substantial
evidence.
First, Li testified that the 1200 yuan fine, imposed after the
birth of his third child, was equivalent to twenty months’ salary.
Although the BIA seems to have given little weight to this
testimony, we believe this is an extremely onerous fine in relation
to Li’s income. Second, the BIA’s finding that Li lost a8
“particular job” understates the evidence in the record that the loss
of a government job in China due to violations of the family
planning policy constitutes the imposition of a severe economic

-- 17 of 30 --

It is possible that the blacklisting of Li and his wife, as the9
dissent suggests, was caused by their voluntary departure from their
employment rather than their violations of national birth control
policy. That is not a necessary inference from Li’s testimony,
however, and a contrary inference is a clearly permissible one if
that testimony is fully credited. We, of course, leave that issue for
resolution by the trier of fact on remand.
18
disadvantage. More specifically, the BIA’s finding that Li lost
only a “particular job” does not confront the testimony that Li was
effectively blacklisted from any government employment and that
it would be impossible for him to find another job.9
In Borca, supra, 77 F.3d at 215-17, the Seventh Circuit held
that a radiologist who was barred from any government
employment except for menial farm labor had suffered economic
persecution. Being blacklisted from government employment is
particularly significant in Li’s case because Li is a mechanic who
specializes in fixing large factory machines, his job at the Bridge
Factory was the only job he ever held in China, and any unofficial
jobs which Li was able to obtain did not employ his specialized
skills. In both Borca, 77 F.3d at 215, and in Kovac, 407 F.2d at
104, the courts found it important that petitioners could not find
work in the occupations in which they had specialized training—as
a radiologist and a restaurant chef, respectively. While during the
fifteen months between the birth of his fourth child and his flight
to the United States, Li was able to get by with temporary,
unofficial jobs, Li testified that he was effectively living on the run
and afraid to apply for any official employment.
Additionally, the BIA’s characterization of Li’s testimony
does not account for the significance of a government job in
China, which, the record indicates, provides not only income, but
also health coverage, food and medicine rations, and educational
benefits. Moreover, the BIA did not address Li’s testimony that
his wife also lost her employment as a nurse and has been unable
to obtain new employment because of the family’s violation of
China’s population control policy. Li testified that his wife has not
been employed since the birth of her fourth child and that his
family is supported by money he sends from his job in the United
States.

-- 18 of 30 --

19
Finally, the magnitude of the confiscation of the Lis’
household items seems more substantial than “some personalty.”
Authorities confiscated their refrigerator, television, and other
household items that Li argues were “significant objects,
especially to an impoverished family such as the Lis.”
In sum, while Li’s family did not reach near-starvation
levels, we can fairly say that the economic restrictions allegedly
faced by the Li family were “severe.” In the aggregate, a fine of
more than a year and a half’s salary; blacklisting from any
government employment and from most other forms of legitimate
employment; the loss of health benefits, school tuition, and food
rations; and the confiscation of household furniture and appliances
from a relatively poor family constitute deliberate imposition of
severe economic disadvantage which could threaten his family’s
freedom if not their lives. Moreover, the economic harm in Li’s
case was deliberately imposed as a form of punishment because of
his violation of China’s population control policy, rather than
being the result of “natural” economic downturns or generally
harsh conditions shared by others in China. We hold that, when
viewed in the aggregate, Li’s allegations amount to economic
persecution.
IV. CONCLUSION
The basis of the BIA’s decision was that, even if Li were
credible, his allegations do not rise to the level of past persecution.
We must review the BIA’s decision to deny Li’s appeal based
solely on the grounds relied upon by the BIA, and thus, like the
BIA, we must assume credibility. Assuming Li’s allegations to be
true, we hold that Li did establish a claim for economic
persecution. Accordingly, we will grant Li’s Petition to Review
the Order of the BIA, vacate the BIA’s order, and remand the
matter to the BIA for further proceedings on the credibility issue.

-- 19 of 30 --

The majority assumes that the applicable policy at the
relevant time limited the family to two children. See
Maj. typescript op. at . From that we deduce that a
family with four children, as the Lis admittedly have, has
violated the policy twice.
Zhen Hua Li v. Ashcroft, No. 03-1930
SLOVITER, Circuit Judge, dissenting.
The majority’s concern for the economic plight of Zhen
Hua Li is admirable but the question before us is whether that
plight is a result of economic persecution. The primary basis for
the majority’s determination that there was “persecution” is that
Li was terminated from his government position and his wife
from hers. Is this court ready to take the position that a
government that terminates the employment of one of its
workers who violated its laws not once but twice is10
persecuting that employee by terminating his employment? If
the government then declines to hire the employee in another
position, is that persecution? Does it become persecution
because the government then fines the employee for violation of
its laws? And finally, if the employee is unable to find a
comparable non-government position, does it then rise to the
level of persecution? I dissent from the judgment of the
majority because I believe its opinion is flawed as to the
relevant facts and as to the relevant law, particularly in that it
departs from this court’s precedent.
I.
To qualify for asylum, the alien must demonstrate that
s/he is a “refugee,” which entails establishing that s/he is
“unable or unwilling to return to . . . that country [of nationality]
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.” 8 U.S.C. § 1101(a)(42)
(emphasis added).
The Refugee Act of 1980 introduced the term
“persecution” into the context of asylum. Congress chose not to
define “persecution” in the Refugee Act, nor has any legislative

-- 20 of 30 --

The BIA reasoned that “[i]t is a basic rule of statutory
construction that words used in an original act or section, that are
repeated in subsequent legislation with a similar purpose, are presumed
to be used in the same sense in the subsequent legislation.” Acosta, 19
I. & N. Dec. at 223 (citing Lorillard v. Pons, 434 U.S. 575, 581 (1978)).
Only “2 years before enacting the Refugee Act of 1980, Congress chose
not to define the word ‘persecution’ when using it in other provisions of
the Act because the meaning of the word was understood to be well
established by administrative and court precedents.” Id.
21
definition been enacted in the interim. In Matter of Acosta, 19
I. & N. Dec. 211 (BIA 1985), the BIA determined that
“Congress, in using the term ‘persecution’ in the definition of a
refugee under section 101(a)(42)(A) of the Act, intended to
adopt the judicial and administrative construction of that term
existing prior to the Refugee Act of 1980.” Id. at 223. The11
BIA cited a number of administrative and federal appellate
decisions which in aggregate stand for the proposition that
before 1980 “‘persecution’ was construed to mean either a
threat to the life or freedom of, or the infliction of suffering or
harm upon, those who differ in a way regarded as offensive.
The harm or suffering inflicted could consist of confinement or
torture. It also could consist of economic deprivation or
restrictions so severe that they constitute a threat to an
individual’s life or freedom.” Id. at 222 (citations omitted)
(emphasis added).
Following Acosta, various courts of appeals have
evolved separate, yet closely related prudential constructions of
the term “persecution.” See Aguilar-Solis v. INS, 168 F.3d 565,
569 (1st Cir.1999) (“Congress has not defined the term
‘persecution,’ and the courts thus far have failed to achieve a
general consensus on its meaning and scope in this context.”);
see, e.g., Mansour v. Ashcroft, 390 F.3d 667, 681 (9th Cir.
2004) (“The definition of persecution that our court applies is a
creation of purely our own case law.”). The definitions of
“persecution” given by these courts range from the more
expansive constructions adopted by the Fifth, Seventh, Ninth,

-- 21 of 30 --

See, e.g., Wiransane v. Ashcroft, 336 F.3d 889, 893 (10th Cir.
2004) (“[W]e have held that a finding of persecution ‘requires the
infliction of suffering or harm upon those who differ (in race, religion,
or political opinion) in a way regarded as offensive’ and must entail
‘more than just restrictions on threats to life and liberty’” (citing
Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001)); Borca v.
INS, 77 F.3d 210, 215 (7th Cir. 1996) (“a threat to life or freedom is not
necessarily a persecution prerequisite.”); Abdel-Masieh v. INS, 73 F.3d
579, 583-84 (5th Cir. 1996) (defining persecution as “[t]he infliction of
suffering or harm, under government sanction, upon persons who differ
in a way regarded as offensive (e.g., race, religion, political opinion,
etc.), in a manner condemned by civilized governments.”); Ghaly v. INS,
58 F.3d 1425, 1431 (9th Cir. 1995) (defining persecution as “the
infliction of suffering or harm upon those who differ (in race, religion or
political opinion) in a way regarded as offensive.” (citations omitted)).
Other courts of appeals evaluate claims of persecutions on a
case-by-case basis, without adopting a formalized working definition of
the term. See, e.g., Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004)
(“This Court has held that persecution . . . requires more than a few
isolated incidents of verbal harassment or intimidation, unaccompanied
by any physical punishment, infliction of harm, or significant deprivation
of liberty.” (internal quotations omitted)); Manzoor v. United States
Dept. of Justice, 254 F.3d 342, 346 (1st Cir. 2001) (“[W]e can say that
while persecution is not restricted to threats to life or freedom, it requires
more than ‘mere harassment or annoyance.” (citations omitted));
Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (citing cases
from the Seventh and Ninth Circuit).
22
and Tenth Circuits, to the much narrower construction used by12
the Eighth Circuit, see, e.g., Rife v. Ashcroft, 374 F.3d 606, 612
(8th Cir. 2002) (“Persecution is the infliction or threat of death,
torture, or injury to one’s person or freedom on account of a
statutory ground . . . .” (citations omitted)).13
In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), this court
set forth our construction of “persecution.” We defined the term
as “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or
freedom;” a definition essentially the same as that adopted by
the BIA in Acosta. Id. at 1240. We made clear that persecution
refers only to “severe” conduct and “does not encompass all

-- 22 of 30 --

23
treatment our society regards as unfair, unjust or even unlawful
or unconstitutional.” Id. We emphasized that were a more
expansive definition adopted “a significant percentage of the
world’s population would qualify for asylum in this country –
and it seems most unlikely that Congress intended such a
result.” Id.; see also Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d
Cir. 2003).
Admittedly, our definition of persecution differs from
that of circuits such as the Seventh Circuit, which has stated that
“a threat to life or freedom is not necessarily a persecution
prerequisite.” Borca v. INS, 77 F.3d 210, 215 (7th Cir. 1996).
Despite this potential tension, the Fatin standard continues to
govern our evaluation of asylum claims. The majority’s effort to
cabin Fatin to the situation of an Iranian woman being forced to
wear a chador and to comply with other religious laws belittles
the force of that precedential opinion. In an unbroken line of
cases, we have applied Fatin to fact patterns far afield from the
requirement to wear a chador and to comply with other religious
law. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 93 (3d Cir.
2004) (applying Fatin standard to a claim of ethnic and religious
persecution in Ukraine); Chen v. Ashcroft, 381 F.3d 221, 231
(3d Cir. 2004) (applying Fatin standard to a claim of persecution
under China’s population control program); Lukwago v.
Ashcroft, 329 F.3d 157, 167-68 (3d Cir. 2003) (applying Fatin
standard to a claim by petitioner that he was forcibly conscripted
into a guerilla organization); Lin v. INS, 238 F.3d 239, 243-44
(3d Cir. 2001) (applying Fatin standard to petitioner’s claims
that he had a well-founded fear of future persecution for his
participation in Tiananmen Square demonstrations); Chang v.
INS, 119 F.3d 1055, 1066 (3d Cir. 1997) (applying Fatin
standard to petitioner’s claim that he has a well-founded fear of
future persecution, if returned to China, on the basis of his
political opinion).
This court, as well as others, has recognized that
following the 1965 amendment to the INA deleting the
requirement that persecution be “physical,” INA, Pub. L. No.
89-236, § 11(f), 79 Stat. 918 (1965), the definition of
“persecution” encompasses not only physical persecution but
also economic persecution. See, e.g., Ahmed, 341 F.3d at 217-

-- 23 of 30 --

Kovac was later extended to the asylum context by Borca v.
INS, 77 F.3d 210, 217 (7th Cir. 1996).
We note that the Kovac standard for economic persecution
mirrors the Ninth Circuit’s relatively expansive standard for persecution
in general. See, e.g., Ghaly, 58 F.3d at 1431 (9th Cir. 1998) (defining
persecution as “the infliction of suffering or harm upon those who differ
(in race, religion or political opinion) in a way regarded as offensive.”
Likewise, other circuits that have adopted the Kovac standard appear to
have broader definitions of persecution than the standard adopted by this
Court.
The BIA stated in Acosta:
24
18. Since then, several circuits have adopted the formulation
first coined by the Ninth Circuit in Kovac v. INS, 407, F.2d 102
(9th Cir. 1969), that a “deliberate imposition of substantial
economic disadvantage upon an alien for reasons of race,
religion, or political opinion” constitutes persecution. Id. at 107
(exploring economic disadvantage in the withholding of
removal context) (emphasis added); see Maj. typescript op.
(citing cases from the Second, Fourth, Fifth, Seventh, and Ninth
Circuits).14
To the extent that the majority’s adoption of the Ninth
Circuit’s Kovac standard suggests a weakening of the standard
previously applied to find “persecution,” it is unwarranted. The
standard for “economic persecution,” must accord with the
overarching prudential standard adopted for persecution claims
in general. In other words, a standard for economic persecution
must not be more expansive than the standard for physical
persecution. The 1965 amendments do not reveal a contrary
congressional intent. Thus, whereas our definition of
persecution in Fatin may contain language suggesting that it is
more exacting than the standard of persecution adopted by the
Ninth Circuit, so also must be our definition of economic
persecution.15
In expressing our own formulation of economic
persecution, see Acosta, 19 I. & N. Dec. at 222, we should give
due deference to the reasonable interpretations of the BIA.16

-- 24 of 30 --

Prior to 1980, “persecution” was construed to mean
either a threat to the life or freedom of, or the infliction
of suffering or harm upon, those who differ in a way
regarded as offensive. See, e.g., Kovac v. INS, 407 F.2d
102, 107 (9th Cir. 1969); Matter of Maccaud, 14 I&N
Dec. 429, 434 (BIA 1973); Matter of Dunar, supra, at
320; Matter of Diaz, 10 I&N Dec. 199, 200 n.1 (BIA
1963); see also Matter of Laipenieks, 18 I&N Dec. 433,
456-57 (BIA 1983). The harm or suffering inflicted could
consist of confinement or torture. See Blazina v.
Bouchard, 286 F.2d 507, 511 (3d Cir. 1961). It also could
consist of economic deprivation or restrictions so severe
that they constitute a threat to an individual's life or
freedom. See, e.g., Dunat v. Hurney, 297 F.2d 744, 746
(3d Cir. 1962); Matter of Salama, 11 I&N Dec. 536 (BIA
1966); Matter of Eusaph, 10 I&N Dec. 453, 454 (BIA
1966).
19 I. & N. Dec. at 222.
25
See Chevron, 467 U.S. 837 (1984); see, e.g., INS v. Cardoza-
Fonseca, 480 U.S. 421, 448 (1987) (“the courts must respect the
interpretation of the agency to which Congress has delegated the
responsibility for administering the statutory program”); Smriko
v. Ashcroft, 387 F.3d 279, 297 (3d Cir. 2004) (“We are required
to ‘accord [ ] Chevron deference [to the BIA] as it gives
ambiguous statutory terms concrete meaning through a process
of case-by-case adjudication.’” quoting Aguirre-Aguirre, 526
U.S. 415, 425 (1999)); Bamidele v. INS, 99 F.3d 557, 561 (3d
Cir. 1996) (“We, of course, also acknowledge the general
applicability of Chevron’s analysis to our review of an agency’s
interpretations of its governing statutes.”).
The majority opinion, in defining economic persecution
as “the deliberate imposition of severe economic disadvantage
which threatens a petitioner’s life or freedom,” purports to
recognize the interpretation given by the BIA and by this court
in Fatin. Maj. typescript op. at . However, it is disingenuous
to use the words of the governing precedent to give the
appearance of following in that path while in reality applying a
far different standard. Rather than considering whether the

-- 25 of 30 --

Indeed the majority’s factual analysis cites only the Seventh
Circuit’s decision in Borca and the Ninth Circuit’s decision in Kovac.
26
restrictions on the Lis were “so severe that they constitute a
threat to life or freedom,” the majority applies instead the more
expansive standard of “substantial economic disadvantage” used
by the Ninth Circuit in the Kovac case. That is simply not the
same standard as “a threat to life or freedom,” and smoke and
mirrors cannot make them comparable. In any event, the facts17
of record show that under any court’s definition of economic
persecution, Li has not made the necessary showing.
II.
A review of the record puts Li’s position in a far different
light than does the majority’s opinion. Even assuming that we
must take Li’s credibility as established, his own testimony and
affidavit show that the circumstances surrounding his asylum
claim do not amount to economic persecution.
Both he and his wife left their jobs in anticipation of, not
as a result of, the government’s response to their non-
compliance with the government’s population control policy.
The majority itself holds that the unfulfilled threats described by
Li do not constitute past persecution. Maj. typescript op. at .
It follows that such threats cannot be used to excuse the Lis’
unauthorized departure from their jobs. Li’s testimony makes
clear that he ran away from his job after his fourth child was
born because he was afraid he would be beaten, as happened to
a factory worker in a neighboring factory after he had a fourth
child.
A. We were frightened and
the officials also told us, told us if I
don’t, if we don’t go to abortion
then we will be, end up like them,
we’ll be captured and will be beaten
up.
Q. Okay. So, what did you

-- 26 of 30 --

27
do next?
A. Not, not long before my,
the child was born I have decided to
leave that factory.
Q. And, were did you go?
A. Then I, I went to Woo
Haun (phonetic sp.) City and the
Chung Zua (phonetic sp.) City to
hide. To hide away.
App. at A-31.
Li’s affidavit makes clear that it was after he ran away
and hid and after the fourth child (a third boy) was born on
April 19, 1989 that his wife received notice that he was
officially fired from his job on April 30, 1989. App. at A-103.
Li’s wife also left her job at the hospital where she
worked, despite the fact that her job was never officially
terminated. Li’s affidavit states:
My wife was also being pressured
by her superiors at her workplace
and threatened with fines and other
punishment, so she took our three
kids to the countryside to stay with a
friend. We could not go into hiding
together because in order to earn
money I had to stay close to the city
where there was no place there for
my wife and children to stay. My
wife was unable to earn money
because of her pregnancy and the
need to take care of our children.
App. at A-103. Although the Lis were threatened with the
possible termination of their jobs, they were not terminated until

-- 27 of 30 --

28
they actually left. The termination of a departed employee
hardly constitutes persecution.
There is also no evidence that Li was “blacklisted,” as
the majority states. He did not apply for a government job in
any other region of China, which is vast, nor did he apply for a
private industry job. He merely assumed he would be unable to
find one if he had applied. App. at A-33 (“[b]ecause I have
violated the birth control policy, most companies would not hire
me.” (emphasis added)).
The majority portrays the fine imposed on Li as
draconian. Li’s own testimony does not so portray it. The Lis
apparently anticipated that violation of China’s population
control policy would be followed by imposition of a fine, but
the amount of Li’s fine after the birth of his third child does not
appear to have created the economic hardship the majority
assumes. Li’s testimony makes that clear:
Q. Did you pay the fine, this
1200 yuan fine, did you ever pay
that fine?
A. Yes, I paid that.
Q. And, how did you
manage to pay a fine that was so
large?
A. At that time me and my
wife both working and so we had
some savings.
Q. And, where did you pay
that fine?
A. It’s about, over 10, 20
days after the third child was born,
so we went to pay the fine.

-- 28 of 30 --

29
Q. That was ‘87?
A. Yes.
App. at A-55.
The majority in its discussion of the effect of the 1200
yuan fine that constituted the equivalent of twenty months of
Li’s salary never acknowledges that Li’s wife also worked, and
the record does not show the amount of her earnings. Nor does
the majority even consider that as a result of the dual income the
family may have had savings, a fact to which Li testified. It
follows that while the fine may have been substantial, the
majority’s characterization of the fine as “an extremely onerous
fine in relation to Li’s income” is not supported by the record.
Maj. typescript op. at .
The other economic effects of Li’s violation of China’s
population control policy also do not rise to the level of
persecution under any court’s standard. Once the Lis left their
positions, it is not surprising that they would also have forfeited
some of the benefits that accrue to government workers, such as
health benefits, school tuition and food rations. The taking of
some of the Lis’ property is deplorable, but the majority makes
more of it than does Li. Li’s affidavit states that he was
informed that officials confiscated their “refrigerator and
television,” which he noted was private property purchased with
their own money. App. at A-103. The latter is significant
because the Lis lived in an apartment provided by the factory
(“we all live in the factory’s dorm, the factory’s assigned
apartments . . . .”, App. at A-37) and there is nothing to show
whether the officials who confiscated the refrigerator and
television believed that those items were provided by the
factory. Thus, while the economic restrictions imposed on Li
may have been “substantial,” any argument that they were so
severe as to constitute threats to life or freedom is undercut by
Li’s own assertion that during the fifteen months between the
birth of his fourth child and his flight to the United States, he
was able to support his family through temporary unofficial

-- 29 of 30 --

The majority relies heavily on Borca, 77 F.3d at 215, and
Kovac, 407 F.2d at 104, where the Seventh and Ninth Circuits found
important, for purposes of evaluating whether petitioners had suffered
economic persecution, the fact that petitioners could not find work in the
occupations in which they had specialized training. Under our doctrine
of economic persecution, which requires restrictions so severe that they
constitute a threat to an individual’s life or freedom, Borca and Kovac
are not controlling.
“Give me your tired, your poor, Your huddled masses yearning
to breathe free, The wretched refuse of your teeming shore, Send these,
the homeless, tempest-tossed, to me: I lift my lamp beside the golden
door.” Emma Lazarus
30
jobs. There is an evident contradiction in the majority’s18
conclusion that “while Li’s family did not reach near-starvation
levels,” the economic disadvantage he purportedly suffered
“could threaten his family’s freedom if not their life.” Maj.
typescript op. at .
Finally, although we may not agree with China’s
coercive population control policy, a policy I note that was
instituted to avoid the true starvation that would result for many
of its 1.3 billion people were the population growth to continue
unabated, I believe that the record substantially supports the
BIA’s conclusion that “[a] fine, loss of a particular job, and
confiscation of some personalty do not rise to the level of
persecution, even when viewed in the aggregate.” App. at A-5.
III.
I cannot refrain from a personal note. It appears that our
immigration policy has significantly changed from the
welcoming words on the Statute of Liberty. As much as some19
of us may wish to return, at least in part, to the days of more
open doors, it is our duty as federal judges to follow the
immigration policies enacted by Congress. For the foregoing
reasons, I would deny the petition for review.

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