Long Hao Li v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-4116
_____________

LONG HAO LI,
Petitioner

v.

ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
_____________

Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A099-934-740)
Immigration Judge: Honorable Alberto Liefkohl
_____________

Argued November 3, 2010

Before: SCIRICA, RENDELL and ROTH, Circuit Judges

(Opinion Filed: February 1, 2011)
_____________

Thomas V. Massucci, Esq. [ARGUED]
Suite 908
401 Broadway
New York, NY 10013
Counsel for Petitioner
Eric H. Holder, Jr., Esq.
Marion E. Guyton, Esq.
Thomas W. Hussey, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box. 878
Ben Franklin Station
Washington, DC 20044

David N. Harling, Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation
450 5 th Street, N.W.
Washington, DC 20001
Counsel for Respondent
_____________

OPINION OF THE COURT
_____________

RENDELL, Circuit Judge.

Longhao Li, a citizen and national of China who is
ethnically Korean, seeks withholding of removal based on his
fear of persecution for violating Chinese laws forbidding
citizens from providing assistance to illegal immigrants from
North Korea. Li presented testimony that he assisted North
Korean refugees, that Chinese authorities sought to arrest him,
and that he fled to the United States to avoid arrest. Li
concedes that he violated Chinese law, but argues that his
arrest and prosecution for that violation would amount to

2
persecution “because of” his political opinion, thus satisfying
the requirements for withholding of removal.

Under our precedent, prosecution under a generally
applicable law can provide the basis for withholding of
removal, but only where the petitioner establishes a
connection between the prosecution and his or her political
opinion, such that the persecution (if shown) would be
“because of” that opinion. In this case, the law at issue is a
generally applicable law that penalizes people for assisting
those who cross the border illegally. It does not automatically
raise political concerns. Moreover, Li has not offered any
specific evidence concerning his political opinions, the
Chinese government’s awareness of those political opinions,
or the nature of the government’s enforcement of the law that
would raise suspicion that the prosecution of Li for violating
that law would relate to a political opinion. Because Li failed
to adduce evidence that raises an inference of political
persecution, as opposed to legitimate prosecution under
Chinese law, and because substantial evidence supports the
BIA’s determination that Li failed to establish a clear
probability of persecution, we will deny his petition for
review.

I.

Li entered the United States without authorization at an
undetermined date and location. On April 20, 2007, he
applied for asylum, withholding of removal under 8 U.S.C.
§ 1231(b)(3), and protection under the Convention Against
Torture. Li claimed that he would be arrested and jailed for
helping North Korean refugees cross the border into China if

3
he returned to China. Li conceded that his conduct was illegal
under Chinese law.

To support his application, Li submitted: an affidavit
describing the particulars of his claims; various forms of
identification establishing certain biographical facts; an
affidavit from his wife attesting to circumstances surrounding
his arrival in New Jersey; a translated letter from his mother,
who still lives in China, stating: “All you did was to help
pitiful people who were in awkward position. How can it be
such a crime that police is after you to arrest”; a two-page
article from an organization called “HighBeam Research” and
a report from a non-governmental organization called the
International Crisis Group describing the plight of North
Koreans who try to escape from North Korea, including those
who cross the border into China; and an excerpt of a China
“Country of Origin Information Report” published by the
United Kingdom Home Office Border & Immigration
Agency.

Among these materials, only the Home Office report
provides any detail regarding the consequences for those who
assist North Korean refugees, as opposed to the refugees
themselves. Quoting what appears to be a 2006 United States
State Department Report, the Home Office report states:

“ ( H o w e v e r), th e [ C h i n e s e ]
government continued to deny the
UNHCR permission to operate
along its northeastern border with
North Korea, arguing that North
Koreans who crossed the border
were illegal economic migrants,

4
 not refugees. During the year
several thousand North Koreans
were reportedly detained and
forcibly returned to North Korea.
Many faced persecution, and
some may have been executed
upon their return. Several
hundred North Koreans were
permitted to travel to third
countries after they had entered
diplomatic compounds or
international schools in the
country. There were numerous
credible reports of harassment and
detention of North Koreans in the
country. The government also
arrested and detained foreign
journalists, missionaries, and
activists, as well as some citizens,
for providing food, shelter,
transportation, and other
assistance to North Koreans.”

A.R. 207 (emphasis added).

The Immigration Judge held a merits hearing on Li’s
claims on February 1, 2008.1 As relevant here, Li testified

1

The IJ denied Li’s asylum claim because he found that Li
failed to establish that he submitted his application within one
year of his arrival in the United States as required under 8
U.S.C. § 1158(a)(2)(B), and the BIA affirmed that decision on
appeal. Because Li’s petition for review does not challenge the

5
regarding his “main purpose” in coming to the United States
as follows: “[i]f I had stayed in China I’ll be arrested by the
police and sentenced to serve time in jail . . .” because “I did
something illegal.” A.R. 128-29. When asked what he did
that was illegal, Li testified, “I help a lot of refugees from
North Korea. Help them . . . smuggle to the United States.”
A.R. 157. Specifically, Li explained that, over the course of a
two-year period, he drove to the Chinese border with North
Korea, where he picked up North Korean refugees crossing
the river into China and transported them in his car or his
company’s minivan to a person who would arrange food,
shelter, and work for the refugees. A.R. 160-64.

Li testified, further, that he left China after an incident
at the border in May 2006. Li drove his car to the border
crossing to pick up refugees. As he waited in his car, Li
watched the police descend and arrest the refugees and Li’s
colleague, who was bringing the refugees to Li’s car. Li fled
the scene in his car and, later, abandoned his car and returned
to the city by taxi. Fearing arrest, he did not return home;
instead, he hid at a friend’s house for ten days before deciding
to come to the United States. Li testified that his colleague
was sentenced to ten years in jail in connection with this
incident and that, shortly thereafter, his contact who helped
provide food, shelter, and work for the refugees also was
arrested. Li testified that his mother told him that authorities
visited her house and intended to arrest him, too. A.R. 164-
68.

In an oral decision at the conclusion of the merits
hearing, the IJ granted statutory withholding of removal to

denial of his asylum claim, we do not consider the facts
surrounding that decision.

6
Li.2 The IJ summarized the “literature” regarding the Chinese
government’s policy of returning North Korean immigrants to
North Korea and North Korea’s treatment of returning
refugees, opining that “the government of North Korea is in
some cases punishing some of these individuals in a manner
that is not associated by the fact that they had violated
immigration laws. An assessment of a sentence or hard work
or labor for such a violation clearly offends the analysis of the
Court.” A.R. 85. Apparently referring to the Home Office
report quoted above, he continued, “one of the last analysis by
the Department of State of the United States they admit that
the main action or the main directive by the People’s Republic
of China is to individuals that are assisting in this type of
operation on the other side of the fence and that will be the
respondent.” Id. The IJ concluded that Li had met the
standard for statutory withholding because, “assuming that the
police apparently knows about his operation and the use of
private equipment from his company in the operation of
smuggling these citizens of North Korea may be or may
resolve in some severe punishment to him that could affect his
liberty or even his life.” A.R. 86.

The Board of Immigration Appeals reversed, for two
reasons. First, the BIA held that Li failed to establish a
sufficient nexus between his fear of persecution and his
political opinion. Noting Li’s admission that he acted
illegally in helping refugees enter China and his failure to
“establish[] that the Chinese government’s prohibition of such
2

The record of the IJ’s oral decision contains some strange
phrasing and usage, which may be the result of poor
transcription. The quotes used here are reproduced verbatim
from that record without editing.

7
smuggling is based on an enumerated ground,” the BIA
concluded that Li “faces being the subject of a legitimate
government investigation, and could be legitimately detained
and/or prosecuted for a crime, which is not persecution.”
A.R. 4 (citing Chang v. INS, 119 F.3d 1055 (3d Cir. 1997)).
Second, the BIA concluded that Li failed to establish “a clear
probability of persecution.” It stated that Li “did not show
that the Chinese government was aware that he was involved
in the smuggling operation and still maintained an interest in
persecuting him because of his involvement.” A.R. 4.

II.

Li’s petition for review challenges both the BIA’s
determination that Li failed to demonstrate a likelihood of
persecution on account of his political opinion and its
conclusion that he failed to establish a clear probability of
persecution.

We have jurisdiction to review a final order of removal
under 8 U.S.C. § 1252(a)(1). Where, as here, our review
“does not turn on any novel legal interpretation by the [BIA]
and instead involves the [BIA]’s fact-finding and application
of established legal standards, we will reverse the [BIA]’s
decision to deny . . . withholding of [removal] ‘only if a
reasonable fact-finder would have to conclude that the
requisite fear of persecution existed.’” Lin v. INS, 238 F.3d
239, 243 (3d Cir. 2001) (quoting Chang, 119 F.3d at 1060);
see also 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative findings
of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.”); INS v.
Elias-Zacarias, 502 U.S. 478, 483-84 (1992) (“[I]f [an alien]
seeks to obtain judicial reversal of the BIA’s determination,

8
he must show that the evidence he presented was so
compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.”).

Before considering the merits of Li’s petition, we
briefly review the standard for statutory withholding of
removal, the only substantive claim remaining in this case. 3
The INA provides that “the Attorney General may not remove
an alien to a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). This standard is similar to, but more
stringent than, the standard for asylum. Whereas an asylum
applicant need only establish a “well-founded fear” of
persecution, a withholding applicant must establish a “clear
probability” that his life or freedom would be threatened
because of an enumerated characteristic. “‘Clear probability’
means that it is ‘more likely than not’ that an alien would be
subject to persecution.” Zubeda v. Ashcroft, 333 F.3d 463,
469 (3d Cir. 2003) (quoting INS v. Stevic, 467 U.S. 407, 429-
3

As noted above, Li’s petition for review does not challenge the
BIA’s denial of his asylum claim. Although Li’s brief contains
several stray references to his CAT claim, he has not made any
separate arguments concerning that claim or pointed to any
evidence that would compel a different result. We therefore
conclude that he has waived any challenge to the BIA’s denial
of that claim. See Laborers’ Int’l Union v. Foster Wheeler
Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived
unless a party raises it in its opening brief, and for those
purposes ‘a passing reference to an issue . . . will not suffice to
bring that issue before this court.’” (citation omitted)).

9
30 (1984)). Unlike asylum, withholding of removal is a
mandatory remedy; once an alien carries his or her burden to
establish a clear probability of persecution on account of an
enumerated ground, see 8 C.F.R. § 1208.16, the Attorney
General must grant the relief, see Zubeda, 333 F.3d at 469.

III.

Li first argues that the BIA erred in concluding that he
failed to establish that any persecution he might face in China
is “because of” his political opinion. Li concedes that he
violated a generally applicable Chinese law, but argues that,
by helping North Korean refugees, he was engaged in a
“quintessentially political gesture.” Pet.’s Br. 11. Without
citing any material in the record, he asserts in his brief that,
“[g]iven China’s generally abysmal human rights record, and
its specifically harsh handling of the Korean refugee situation,
there is no question that any actions to be taken by the
Chinese government against Li would be political in nature,
against someone who has, through his acts, defied China’s
ongoing efforts to circumvent international human rights and
refugee law.” Id.

The question before us is not whether the Chinese
government’s prosecution for the violation of a generally
applicable law under these circumstances could provide the
basis for a withholding of removal claim — our caselaw,
which the BIA cited and applied, plainly establishes that it
could. The real question is whether Li provided sufficient
record evidence to establish that, in his case, prosecution
would be on account of his political opinion. We agree with
the BIA that he did not. At the very least, the evidence Li

10
provided certainly would not compel any reasonable
factfinder to reach a conclusion contrary to that of the BIA.

A.

The BIA correctly identified the standard for
establishing withholding of removal based on a violation of a
generally applicable law. “As a general matter, . . . we have
held that fear of prosecution for violations of ‘fairly
administered laws’ does not itself qualify one as a ‘refugee’ or
make one eligible for withholding of [removal].” Chang v.
INS, 119 F.3d 1055, 1060 (3d Cir. 1997) (citations omitted).
As the BIA recognized, however, “under certain
circumstances, prosecution under laws of general applicability
may provide the basis for withholding of removal.” A.R. 4
(citing Chang, 119 F.3d at 1060). “To provide a basis for
withholding of removal, a generally-applicable law must be
based on an enumerated ground and the punishment must be
sufficiently extreme to constitute persecution.” A.R. 4 (citing
Chang, 119 F.3d at 1061).

Of course, simply articulating the appropriate standard
does not end the analysis. The next step is to determine
whether the law or the Chinese government’s enforcement of
it is “based on” Li’s political opinion. An alien need not
“provide direct proof of his persecutors’ motives.” Elias-
Zacarias, 502 U.S. at 483. “But since the statute makes
motive critical, he must provide some evidence of it, direct or
circumstantial.” Id. We have previously observed that “the
nature of the statute being enforced” and “the actions that” the
alleged persecutor “sought to compel by that statute” may
“help determine the motives of the alleged persecutor.”
Chang, 119 F.3d at 1063.

11
 Our opinions in Chang v. INS, 119 F.3d 1055 (3d Cir.
1997), and Lin v. INS, 238 F.3d 129 (3d Cir. 2001), provide
examples of the type of evidentiary showing required to
sustain a substantial evidence challenge to a BIA finding that
the persecutor was not motivated by political opinion. In
Chang, a chief engineer for a state-owned company led a
delegation from China to the United States in 1992. Before
the trip, a Chinese special security agent specifically
instructed Chang to monitor and report to the Chinese
Embassy any suspicious activity by his fellow delegates.
Chang declined to do so. After meeting with FBI agents in
the United States, who told Chang that, as a result of his
actions, he was “in danger” of future mistreatment by the
Chinese government, Chang decided to stay and seek asylum
in the United States. Id. at 1057-58.

We held that the evidence compelled the conclusion
that China’s motive in prosecuting Chang would be “in part,
political.” 4 Id. at 1065. A Human Rights Watch/Asia report
4

Our analysis in Chang turned in part on our conclusion that
Chang needed only to prove that China was motivated “at least
in part” by Chang’s political opinion. See 119 F.3d at 1065.
That portion of our analysis has since been superseded by REAL
ID Act amendments to the INA, which provide that an asylum
applicant “must establish that . . . political opinion was or will
be at least one central reason for persecuting the applicant.” 8
U.S.C. § 1158(b)(1)(B)(i) (emphasis added); see generally
Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d Cir. 2009).
Under the REAL ID Act standard, an applicant must establish
more than that the persecutor is motivated “in part” by a
protected ground; “asylum may not be granted if a protected
ground is only an ‘incidental, tangential, or superficial’ reason

12
included in the record and quoted in the opinion stated that
“‘the principal objective’” of China’s Security Law, under
which Chang feared prosecution, “‘appears to be to frighten
dissidents into halting their activities.’” 5 Id. at 1064. That
evidence was bolstered by a State Department report that
indicated continuing political repression in China and
Chang’s “unique situation,” specifically the facts that “the
Chinese government entrusted him with politically sensitive
obligations to limit the freedoms of other delegates” and that
he “refused to comply” with those obligations “because he
disagreed with the punishment that the government would
mete out for violations.” Id. We summarized the evidence as
follows: “[Our] conclusion is based on the statute itself,
which provides potentially harsh punishment for mere
violation of the exit laws, on the responsibilities with which
Chang was entrusted, on the appearance of disloyalty and
political opposition as a result of Chang’s actions, and on
Chang’s actual motivations in breaking China’s laws.” Id.

In Lin, we likewise concluded that the petitioner, also a
Chinese citizen, had presented sufficient evidence to warrant
a reversal of the BIA’s ruling denying his applications for
asylum and withholding of removal. Lin was a fifteen-year-
old middle school student when, in 1989, he took a “very
active” role in student marches protesting the Chinese

for persecution of an asylum applicant.” Id.
5

Although we relied in part on the Human Rights Watch/Asia
report, we acknowledged that “the use of materials prepared by
[a] ‘watchdog’ organization is not without its problems.”
Chang, 119 F.3d at 1064 (citing M.A. v. INS, 899 F.2d 304, 313
(4th Cir. 1990)).

13
government’s “corruption, undemocratic rule, and disregard
for human rights” in his native Fujian Province. 238 F.3d at
241. Lin participated in a series of marches in May and June
1989, during which he and others attempted to occupy a
county government building and were beaten back by officers
and soldiers wielding electric batons. Id. at 241-42. On June
4th, 1989, the student protest movement ended with a
massacre of student protesters in Tiananmen Square. Id. at
242.

Lin went into hiding in China and ultimately emigrated
to the United States. He presented detailed evidence of his
ordeal to support his asylum and withholding of removal
claims, including a copy of a subpoena (issued six days after
the events in Tiananmen Square, see id. at 245) demanding
that Lin appear for interrogation at the Security Section of the
Public Security Bureau, testimony that officers visited Lin’s
home on six occasions looking for Lin and that they detained
Lin’s mother seeking information about his whereabouts, and
testimony that Lin’s classmates were arrested, beaten, and
sentenced to detention and forced labor for their participation
in the student movement. Id. at 242-43. Lin testified, further,
that the officers who visited his mother repeatedly mentioned
Lin’s involvement in the student movement. Id. at 242.

Reviewing this evidence, we held that the BIA’s
conclusion that the police sought to prosecute Lin “only for
trespass,” not on account of his political opinion, was “wholly
unsupported by the record.” Id. at 244. We based our
assessment on Lin’s testimony that police officers specifically
referenced his participation in the student democracy
movement when they interrogated his mother, the
mistreatment to which his classmates were subjected, the

14
government’s interrogation of Lin’s mother and its six visits
to his home over a year-and-a-half long period, and the
context of the broader, nationwide political repression that
followed the Tiananmen massacre. Id. at 244-45.

B.

This case is very different from Chang and Lin. As a
preliminary matter, we do not even have enough information
to conduct the type of analysis we performed in Chang and
Lin. The record does not identify the precise statute or even
provide any general information about the law under which Li
fears prosecution.6 All we know is that, by his own
6

At argument, Li’s counsel, apparently relying on Li v. Holder,
559 F.3d 1096, 1110 (9th Cir. 2009), argued for the first time
that assisting North Koreans who cross the border is not illegal
under Chinese law. Numerous factors, including Li’s failure to
raise that issue before the IJ and BIA and the assertions to the
contrary in his brief to this Court, see Pet’r’s Br. 11, preclude us
from considering that argument.
Without addressing this waiver problem, our dissenting
colleague asserts that this “gap” in the record provides an
independent basis for remand, see Dissenting Op. 6-7, because
the Government, not Li, bore the burden of producing evidence
concerning the applicable Chinese law, see id. at 1. That
assertion is contrary to the well established standards that the
alien, not the Government, bears the burden of proof on a
withholding of removal claim, see Zubeda, 333 F.3d at 469, and
that, to “obtain judicial reversal of the BIA’s determination,” an
alien “must show that the evidence he presented” to the BIA
“was so compelling that no reasonable factfinder could fail to
find the requisite fear of persecution.” Elias-Zacarias, 502 U.S.

15
admission, Li’s conduct was illegal, A.R. 129, 170, and that,
according to a United Kingdom government report of what
the United States State Department has said, the Chinese
government has “‘arrested and detained foreign journalists,
missionaries, and activists, as well as some citizens, for
providing food, shelter, transportation, and other assistance to
North Koreans,’” A.R. 207. The sum total of those facts —
that Chinese law penalizes people who assist others who cross
the border illegally — does not automatically raise the same
sort of political concerns as the laws involving controls on
people leaving the country or political expression implicated
in Chang and Lin.

Indeed, in this case, unlike in Chang or Lin, no record
evidence suggests that the law’s objective is to silence or
punish political dissent. To the contrary, the record suggests
that the Chinese government views North Korean immigrants
as “illegal economic migrants” and is concerned that “a
steady stream of border crossers” could “become a flood,

at 483-84.
The Ninth Circuit Court of Appeals adhered to those
standards in Li, when it held that the IJ’s conclusion that Li’s
previous detention for assisting North Korean immigrants
violated Chinese law was contrary to record evidence in the
form of sworn affidavits from two Chinese legal experts that the
petitioner had presented to the IJ. 559 F.3d at 1110. Critically,
Li presented no similar evidence in this case. In light of the law
that governs our review in this area, his failure to provide
meaningful information regarding the content of the applicable
Chinese law only underscores our conclusions that Li failed to
produce sufficient evidence to support his withholding claim
and, more to the point, that the record evidence in this case does
not compel us to reach a finding contrary to that of the BIA.

16
causing economic havoc in the [border] region and possibly
stoking latent Korean nationalism there.” A.R. 213-14.
Viewed in this light, and without any additional information,
a generally applicable Chinese law designed to deter Chinese
citizens from assisting North Korean migrants can reasonably
be interpreted as a rational policy response to a serious
immigration problem, similar to steps that other countries take
to protect their own borders. In fact, as the Government
pointed out in its brief to the BIA, United States law also
provides criminal penalties, including up to ten years in
prison, for bringing in, transporting, or harboring aliens in the
United States in violation of the immigration laws. See A.R.
46 (citing 8 U.S.C. § 1324).

Nor does Li provide any detail about his own political
opinions, about the Chinese government’s awareness of those
political opinions, or about the government’s enforcement of
the law that compels the conclusion that any prosecution in
his case would be politically motivated. Li testified only that
he broke the law by assisting North Korean refugees; that
some of his colleagues were arrested and sentenced to ten
years in prison for breaking the law; and that police knew
about Li’s activities and sought to arrest Li for breaking the
law. This evidence is at least as consistent with fear of
legitimate prosecution for smuggling as it is with targeted
persecution on account of a political opinion.

Li’s testimony did not touch on his motivation to help
the North Korean refugees, but the affidavit attached to his
asylum application suggests that his concerns were
humanitarian. After describing the Chinese government’s
policy of deporting North Koreans who enter China illegally,
Li stated, “I asked myself, since the Chinese government is

17
unwilling to help, shouldn’t I do my best to assist them?”
A.R. 291. Li’s mother also cast his actions in humanitarian
terms: “All you did was to help pitiful people who were in
awkward position. How can it be such a crime that police is
after you to arrest[?]” A.R. 237. We recognize that “a
humanitarian or charitable act may signify a humanitarian or
charitable conviction; and a government might construe [a]
violation of law as opposition or resistance to the law’s
underlying policy, and punish it accordingly.” Jin Jin Long v.
Holder, 620 F.3d 162, 167 (2d Cir. 2010). But surely any
prosecution involving a humanitarian act cannot be presumed
to be politically motivated. Indeed, without any evidence
concerning the government’s motivation in enforcing the law,
a government prosecution of a violation of the law would
seem to be based on legitimate law enforcement concerns. In
this case, Li simply has not provided any facts to suggest that
prosecution would be because of any opposition or resistance
to the law’s underlying policy, rather than appropriate
administration of the law.7

7

Judge Roth’s assertion that our analysis in this regard “all but
abandons Chang,” Dissenting Op. 3, is incorrect. Our
conclusion in Chang that the petitioner was entitled to asylum
and withholding of removal was based on more than a
determination that Chang acted out of a humanitarian instinct;
we also considered record evidence concerning the specific
Chinese law at issue, State Department and private human rights
reports bolstering Chang’s claims, and the unique features of
Chang’s situation that, taken together, established that the
Chinese government’s motivation for prosecuting Chang was
“in part, political.” See Chang, 119 F.3d at 1064-65. No such
evidence bolsters Li’s claim in this case.

18
 Specifically, Li presents none of the indicia of political
motivation on the part of the Chinese government that the law
requires. We are not presented with the type of “unique
situation” involving special government responsibilities and
confirmation by the FBI that the petitioner was in a politically
precarious position we considered so persuasive in Chang, or
evidence that police were seeking to punish the petitioner
through beatings or forced labor as a direct consequence of
participating in a political demonstration, as we confronted in
Lin. Therefore, we cannot conclude, as we must to grant the
petition for review, that Li’s evidence is “so compelling that
no reasonable factfinder could fail to find the requisite fear of
persecution.” Elias-Zacarias, 502 U.S. at 483-84.

C.

At oral argument, Li’s counsel took the position that
the Chinese government’s position on North Korean refugees
is so abhorrent that withholding of removal should be
automatic for any Chinese citizen who helps North Korean
refugees and, to some extent, our dissenting colleague
suggests the same result.8 The logical upshot of such a ruling,
8

To be sure, the dissenting opinion asserts that the record
“compels” the conclusion that Li’s “humanitarian interest in
assisting North Korean refugees” was “at least one central
ground for the Chinese government’s attempt to arrest him”
because it concludes that the record shows that “China’s
treatment of immigration by North Koreans and assistance to
such immigrants is harsh, politicized, and far from evenhanded.”
Dissenting Op. 8, 11. But we are unwilling to conclude that
China’s enforcement of its immigration laws is “harsh,
politicized, and far from evenhanded” simply because China

19
however, would be that every Chinese citizen who helps
North Korean refugees would qualify automatically for
asylum or withholding of removal. But our law plainly
requires more. As we noted above, absent “some evidence . .
., direct or circumstantial” of his persecutors’ motives, an
alien may not succeed on an asylum or withholding of
removal claim. Elias-Zacarias, 502 U.S. at 483.
Applying that principle, we and other courts of appeals
have granted petitions for review in cases involving claims
similar to Li’s only where the petitioners adduced specific
evidence that supported their claims; in the case of asylum or
withholding of removal claims, this means specific evidence
that at least raises an inference of political persecution. For
example, in Jin Jin Long v. Holder, 620 F.3d 162, 167-68 (2d
Cir. 2010), the Second Circuit Court of Appeals granted a
petition for review and ordered the BIA to consider whether
facts related to the Chinese petitioner’s previous arrest and
detention supported an inference that the petitioner was
“persecuted for political reasons, rather than punished for
legitimate law enforcement purposes.” There, the evidence
showed that, “though neither charged nor presented in court,

may previously have imposed less severe penalties for violations
of the law. See id. 9-10 (citing fact that penalties for assisting
with North Korean immigration increased from relatively
modest fines to jail sentences of up to ten years as evidence of
“disproportionately severe punishment”). For all we know
based on this record, the Chinese government could have
responded to the escalating crisis of North Korean immigration
by increasing the applicable legal penalties for assisting with
such immigration. The record simply does not provide us with
sufficient information to conclude (let alone for us to find that
the record compels the conclusion) that the increased penalties
flow from unfair administration of the law.

20
[the petitioner] was subjected to prolonged detention and
physical abuse.” Id. Similarly, in Kang v. Attorney General,
611 F.3d 157, 166-67 (3d Cir. 2010), we granted a petition for
review and held that the evidence compelled a finding that the
petitioner met her burden of establishing a CAT claim where
she provided affidavits from similarly situated individuals
detailing their detention and torture and testimony and an
affidavit concerning police beating and torture of her son to
elicit information about the petitioner. And, in Li v. Holder,
559 F.3d 1096, 1111-12 (9th Cir. 2009), the Ninth Circuit
Court of Appeals granted a petition for review based on the
petitioner’s claim that he was persecuted on account of his
political opinion for helping North Korean refugees because
he provided “direct evidence of officers’ motivation in the
record — the officers specifically interrogated Li about why
and how he had helped the North Koreans while they were
brutalizing him.” Id.

By contrast, in other cases involving Chinese citizens
who have assisted North Korean refugees, courts of appeals
have not hesitated to deny petitions for review that were not
supported by specific evidence raising an inference of
political persecution. See, e.g., Jin, 620 F.3d at 168 (holding
that petition “fails on the essential ground that there is little (if
any) evidence that [alien] acted from a political motive”
where alien testified that he “did not believe that assisting
North Korean refugees was illegal until after his assistance
was completed”; alien acted out of “independently sufficient
motive of family loyalty”; and alien, like Li in this case, fled
“before encountering the authorities investigating his
conduct”); Li, 559 F.3d at 1098 n.1 (noting that Li’s petition
was consolidated with two other petitions involving “Chinese
citizen[s] of North Korean descent who [were] allegedly

21
persecuted for giving aid, food, and shelter to North Korean
refugees,” and granting relief to only one of the three
petitioners). Because Li has not presented any specific
evidence of past mistreatment or any details regarding the
government’s administration of the law or the arrest and
detention of his colleagues that suggest that his prosecution
would be anything other than a legitimate prosecution for a
violation of the law, his case plainly falls within the latter
category.9
We emphasize that our decision is based solely on the
lack of compelling evidence of a political motive for
prosecution in this case. Although we disagree with Li’s
counsel that an alien who testifies that he or she assisted
North Korean refugees automatically establishes a
withholding of removal claim, we certainly do not suggest
that a Chinese citizen who has assisted North Korean refugees
can never establish such a claim. In each case, the question is
whether the alien has provided evidence sufficient to establish
an inference that he or she would be persecuted “because of
the alien’s . . . political opinion.” 8 U.S.C. § 1231(b)(3)(A)

9

We would agree with Judge Roth’s view that the case should
be remanded to consider whether the prosecution Li fears is a
mere pretext for persecution, see Dissenting Op. 9-10, but for
the fact that it was Li’s burden to prove his claim, see Zubeda,
333 F.3d at 469. Li conceded the existence of the law, and he
neither made any argument nor adduced any proof to suggest
that the law was pretextual as applied to him. These facts
distinguish Li’s case from the Second Circuit’s decision in Jin
Jin Long v. Holder, 620 F.3d 162, 164 (2d Cir. 2010), and the
Ninth Circuit’s decision in Li v. Holder, 559 F.3d 1096 (9th Cir.
2009). See supra 21.

22
(emphasis added). Where, as here, the alien has not adduced
such evidence, we will deny his or her petition for review.

IV.

In addition to challenging the BIA’s determination
concerning the nexus between his political opinion and his
alleged persecution, Li also asserts that the BIA’s
determination that he failed to establish a clear probability of
persecution is unsupported by substantial evidence. Li barely
argues the point in his brief and, because our conclusion with
respect to the political opinion issue is dispositive of Li’s
petition for review, we only briefly consider this issue here.

As explained above, the “‘clear probability’” standard
for withholding of removal requires an alien to establish that
“it is ‘more likely than not’” that “the alien would be subject
to persecution.” Zubeda, 333 F.3d at 469 (citation omitted).
The BIA held that Li failed to establish a “clear probability of
persecution” because he “did not show that the Chinese
government was aware that he was involved in the smuggling
operation and still maintained an interest in persecuting him
because of his involvement.” A.R. 4. As the Government
conceded at oral argument, Li did provide some testimony
and a letter from his mother that indicated that the Chinese
authorities sought to arrest him based on his activities with the
North Koreans.

Even taking that evidence into account, however, Li
cannot show that the record compels a contrary result, as he
must to succeed on his petition for review. See Shardar v.
Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004) (BIA’s
determination whether alien has met his burden of proof “will

23
be upheld to the extent it is supported by ‘reasonable,
substantial and probative evidence on the record considered as
a whole’” (citations omitted)). The record discloses only that
authorities came looking for Li once, shortly after they
arrested his colleague. At the same time, the record also
contains evidence that, after he came to the United States, Li
contacted the Chinese government, applied for, and received a
Chinese passport without any difficulty. See A.R. 182-83.
Thus, the record as a whole does not compel the conclusion
that police have continued to pursue his case in the several
years since he left, or that they would more likely than not
seek to persecute him on his return.

V.

For the foregoing reasons, we will deny Li’s petition for
review.

24
 Long Hao Li v. Attorney General of the United States

No. 09-4116

ROTH, Circuit Judge, Dissenting:

The Majority and I agree that there is a glaring
omission in the record: evidence of the generally applicable
law that the BIA cited as the source of China’s interest in Li.
The Majority tries to pin this omission on Li. However, it is
not Li who is arguing that any generally applicable law is
involved here. The Immigration Judge did not discuss any
such law or rely upon one in its decision granting withholding
of removal. Mention of a generally applicable law appears in
the record before us for the first time in the government’s
brief before the BIA. The government has not, however,
indicated what specific law it had in mind. Because it is the
government that is arguing that China seeks to prosecute Li
under a law of general applicability, it is the government that
must bear the initial burden of identifying the law it has in
mind and producing evidence to support its theory. The
omission in the record of a generally applicable law does not
count towards the ultimate burden Li bears in establishing his
claim for withholding of removal. To the contrary, this
omission eviscerates the government’s argument for denial of
the petition for review.

Moreover, the record before us suffices to support Li’s
petition and compels three essentials conclusions: (1) Li
manifested his political opinion in assisting North Korean
refugees; (2) he faces a clear probability of enduring
treatment severe enough to amount to persecution; and (3) his
political opinion serves as at least one central reason China
seeks to persecute him. Li’s petition does not depend on his
demonstrating a law of general applicability. For these
reasons, I respectfully dissent.

A. Li’s Political Opinion
 The record clearly establishes that Li held a political
opinion in opposition to China’s policy towards North Korean
refugees. The instant case invokes Chang v. I.N.S., 119 F.3d
1055 (3d Cir. 1997), where we confronted a petition for
asylum and withholding of removal from a Chinese national
who had violated China’s generally applicable exit laws and
refused to report others who had violated those same laws.
There, we stated:

To argue that Chang is prosecuted merely for
“breaking the law” and not on “political”
grounds is to turn a blind eye to the motives of
the government. Those motives are, at least in
part, to punish those, like Chang, who have
manifested opposition to the policy of the
Chinese government and to prevent others from
taking similar political actions.

Chang, 119 F.3d at 1065. While the standards for granting
asylum and withholding of removal have shifted in the years
since, Chang retains its salience today and applies with equal
force to the instant Petition for Review.

By assisting North Koreans refugees not for monetary
compensation, but because he sympathized with their plight,
Li manifested his opposition to the policies of the Chinese
government. See id. The Majority presents a false choice
between Li’s humanitarian and political motivations. See
ante, 18-19. In this case, as in Chang, the two are one and the
same. In his testimony before the IJ and in the affidavit
submitted with his asylum application, Li demonstrated that
he is acutely aware of the poverty and starvation endemic to
North Korea and that he believes China is “obligated to . . .

2
protect human rights and provide asylum to the [North
Korean] refugees.” (A.R. 291 (affidavit); see also A.R. 161
(testimony).) Li’s actions, moreover, speak louder than his
words. Despite the risk of grave punishment, Li’s willful
disobedience of China’s policy towards North Koreans based
on conscientious – rather than pecuniary – motives indicates
a political belief. In other words, a humanitarian action in
knowing violation of a state policy constitutes opposition to
that policy, and therefore, reflects a political belief.1 A
conclusion to the contrary all but abandons Chang. See 119
F.3d at 1065.

B. A Clear Probability of Being Subjected to
Persecution

The assertion that Li failed to establish by a clear
probability that he would be subject to persecution is not
reasonably grounded in the record. Rather, the record
demonstrates that the Chinese government knows of Li’s
assistance, threatens punishment severe enough to constitute
persecution, and maintains an interest in arresting him. At the
merits hearing, Li testified that, while in hiding after his
escape from police, he learned from his mother that police
had visited their home to arrest him. (A.R. 165, 167.) In a
subsequent letter to Li, his mother mentioned again that the
police seek to arrest Li for the assistance he provided to North
Koreans who had crossed into China. (A.R. 179, 237.) Li
1

I note that Li’s actual political opinion, or China’s
knowledge of his actual political opinion, may be
inconsequential where China has imputed one to him. See
Espinosa-Cortez v. U.S. Atty Gen., 607 F.3d 101, 108-09 (3d
Cir. 2010).

3
further testified that his fellow dissidents received ten-year
jail terms and that he likely would receive the same
punishment if he were to return. (A.R. 165, 168).2 Thus, as
the Majority all but says outright, the BIA incorrectly
concluded that Li “did not show that the Chinese government
was aware he was involved in the smuggling operation.”
Ante, 21 (citing A.R. 4); see also Kang, 611 F.3d at 163-64,
166 (concluding that the substantial evidence standard called
for reversal of BIA’s findings where BIA appeared to ignore
forceful evidence in support of applicant).

The harm Li fears from the Chinese government – ten
years of imprisonment – amounts to a deprivation of freedom
that rises to the level of persecution. “Our oft-quoted, non-
exclusive list of examples of persecution ‘include[s] threats to
life, confinement, torture, and economic restrictions so severe
that they constitute a threat to life or freedom.’” Cheng v.
U.S. Atty Gen., 623 F.3d 175, 192 (3d Cir. 2010) (quoting
Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993). Ten years
of imprisonment constitutes a period of confinement greater
than past instances where this Court found persecution. See
Chang, 119 F.3d at 1067 (concluding that punishment of up to
one year of imprisonment is “sufficiently severe to constitute
‘persecution’ under this Circuit’s standard . . . .”); see also
Gomez-Zuluaga v. U.S. Atty Gen., 527 F.3d 330, 342 (3d Cir.
2008) (finding that abduction and eight-day confinement,
during which she was threatened, tied to a bed, and
2

We must credit Li’s testimony. Where, as here, “an IJ or
the BIA fails to make an explicit credibility finding, [the Court]
. . . proceed[s] as if the applicant’s testimony were credible.”
Toure v. U.S. Atty Gen., 443 F.3d 310, 326 (3d Cir. 2006).

4
blindfolded, rose to the level of persecution); Li Wu Lin, 238
F.3d 239, 248 (3d Cir. 2001) (finding that “a year and a half
incarceration and forced labor for a fifteen-year old who
voiced opposition to the government” constituted a
sufficiently severe deprivation that amounted to persecution).

Despite the BIA’s error in concluding that the Chinese
government was not aware of Li’s involvement in the
operation, the Majority stills finds that the record does not
demonstrate a clear probability of persecution. In reaching
this conclusion, the Majority notes that Li successfully
applied for and obtained a Chinese passport from the Chinese
Consulate in New York, suggesting that China’s interest in
persecuting Li has dissipated. See ante, 24 (citing A.R. 182-
83.). But the Majority omits that Li paid a “broker” to
accompany him to the Consulate and to ensure that he would
be able to obtain a passport. This undermines the use of this
evidence to support the inference that China has lost interest
in Li. (A.R. 132, 182-84.) 3 In addition, the ten years of
imprisonment that Li potentially faces indicates how severely
China may punish such conduct and renders it unlikely that
China would disregard such a perceived offense. Moreover,
there is no evidence in the record that China’s interest in
3

I note further that, even if Li had not relied on the
assistance of a “broker,” China’s willingness to issue Li a
passport is consistent with an intent to persecute Li. Granting
Li’s passport application would increase Li’s likelihood of
returning to China, which would provide the Chinese
government the best opportunity to apprehend him. Refusing to
grant the passport application would prevent Li from entering
China on his own volition and therefore prevent China from
arresting Li.

5
persecuting Li has lessened with time, nor of any amelioration
in China’s treatment of those who assist North Korean
refugees. (A.R. 168.)

C. Political Opinion as at Least One Central
Reason for Persecution

In reaching its conclusion, the Majority ultimately
relies on the BIA’s finding that Li did not face persecution,
but prosecution under a generally applicable law. In my view,
this finding reads too far into a sparse record and
oversimplifies the distinction between persecution and
prosecution.

First, the record is remarkably silent on the generally
applicable law that Li supposedly defied. And the BIA did
not point to any provision of Chinese law that Li violated in
concluding that China sought to prosecute, not persecute, Li
under a law of general applicability. As the Second Circuit
recognized in Long v. Holder, this point alone merits remand
to the BIA and, pursuant to 8 CFR § 1003.1(d)(3)(iv),
possible remand to the IJ, for further consideration of the
relevant Chinese law. 620 F.3d 162, 164, 168 (2d Cir. 2010).
The only evidence that Li violated any law at all comes from
his own, limited testimony to that end. See ante, 6 (citing
A.R. 128-29, 157.). But Li is not a lawyer and did not state
what law he violated. It appears the only reason he thought
he did something illegal was because other members of his
organization had been imprisoned. Moreover, even if Li’s
testimony is literally true, it does not establish that he violated
a law that carries a penalty of ten years in prison.

This gap in the record is particularly troubling in light

6
of Li v. Holder, 559 F.3d 1096, 1111 & n.15 (9th Cir. 2009),
which found that there is no Chinese law punishing assistance
to North Korean refugees. Although the Ninth Circuit found
that smuggling of refugees is an offense in China, see id. at
1111 n.15, the record does not establish that Li participated
in smuggling North Korean immigrants across the border. It
is admittedly conceivable that, as the Majority and the BIA
appear to have assumed, China’s smuggling law is drafted
broadly enough to reach Li’s conduct.4 But in the absence of
the text of the law or evidence about its scope, this conclusion
cannot be based on substantial evidence. This assumption is
all the more suspect, as record evidence demonstrates that Li
held a political motivation for supporting the immigration of
North Koreans, and documents China’s practice of harshly
punishing individuals accused of assisting North Korean
refugees for political motives. (See A.R. 207-09.)

Second, the Majority overlooks several nuances in the
distinction between prosecution and persecution. The
Majority correctly states that prosecution under a generally
4

The Majority’s speculation about Chinese law based on
United States law providing criminal penalties for bringing in,
transporting, or harboring aliens simply underscores the lack of
evidence in the record. See ante, 17. As Chang and the
numerous cases granting asylum to Chinese citizens establish,
China’s laws can be very different from our own, thus making
persuasive comparisons unlikely. Even if our law were
somehow relevant here, because Li obtained no private financial
gain from transporting aliens, he would have faced at most a
five-year prison sentence under United States law, see 8 U.S.C.
§ 1324(a)(1)(B)(ii), and probably much less than that under the
United States Sentencing Guidelines.

7
applicable law would not necessarily amount to persecution.
Ante, 11. But where prosecution is a mere pretext for
persecution, the existence of a generally applicable law must
not be allowed to cloak the government’s true intent. In the
present case, the Majority and the BIA have failed to
adequately consider the possibility of pretext. The record
compels the conclusion that Li’s political opinion, i.e., his
humanitarian interest in assisting North Korean refugees
despite China’s official policy toward those refugees, along
with the action he took consistent with that opinion, was at
least one central ground for the Chinese government’s attempt
to arrest him and its continued interest in him.

While enforcement of a law of general applicability –
even against an offender who objects to the law because of his
political opinion – might not be on account of a protected
ground, pretextual prosecution on the basis of political
opinion is. See Shardar v. Ashcroft, 382 F. 3d 318, 323 (3d
Cir. 2004); see also Long v. Holder, 620 F.3d 162, 166-68 (2d
Cir. 2010) (distinguishing persecution from prosecution); Li v.
Holder, 559 F.3d 1096, 1108-09 (9th Cir. 2009) (same). In
the present case, the record demonstrates that China seeks to
disproportionately punish Li as a result of his political
opinion. China, thus, does not fairly administer the purported
law at issue.

To begin with, disproportionately severe punishment
may indicate that a prosecution is a mere pretext for
persecution. Shardar, 382 F. 3d at 323.5 On this point, Li’s
5

Both the Second and Ninth Circuits have devoted
considerable attention to this theory. See, e.g., Vumi v.
Gonzalez, 502 F.3d 150, 158 (2d Cir. 2007) (noting that the BIA

8
testimony that his colleagues received jail sentences of ten
years demonstrates that the punishment Li feared was
disproportionate to the alleged crime – assistance to North
Korean refugees. Indeed, as the Chinese government began
to crack down on North Korean refugees, those Chinese
citizens who had assisted North Korean refugees were
punished only with fines in the $3,600 range. (A.R. 215.) At
a minimum, the BIA should have considered whether the ten-
year sentence Li faced was so disproportionate as to constitute
persecution by means of a pretextual prosecution. See Long,
620 F.3d at 166-68 (citing cases where disproportionate
punishment or selective enforcement of a law amounted to
persecution on a protected ground).

M oreover, this evidence of disproportionate
punishment indicates that the purported law at issue is not
fairly administered, and thus should not be considered a law
of general applicability. The Majority recognizes that “[a]s a
general matter . . . we have held that fear of prosecution for
violations of ‘fairly administered laws’ does not itself qualify
one as a ‘refugee’ or make one eligible for withholding of
[removal].” Ante, 11 (quoting Chang, 119 F.3d at 1060
(citations omitted)); see also Shardar, 382 F.3d at 323

failed to consider whether punishment was “disproportionate to
the crime, which would indicate persecution on grounds of
political opinion rather than prosecution or legitimate law-
enforcement”) (internal quotation omitted); Chanco v. I.N.S., 82
F.3d 298, 302 (9th Cir. 1996) (“Although prosecution for a
common law crime will not ordinarily constitute persecution, a
showing of disproportionate punishment may support a claim
that the prosecution is a pretext for persecution on account of
political opinion.”).

9
(quoting Chang for the same proposition). Here, however,
China’s exceptionally unfavorable application of the
purported law to Li – when compared with mere fines it
assessed to other alleged violators – indicates unfair
administration. See Janusiak v. I.N.S., 947 F.2d 46, 48-49 (3d
Cir. 1991) (noting that prosecution may amount to
persecution on account of a protected ground where petitioner
“would be treated differently than other violators of [a] law
because of [petitioner’s] political leanings”). Thus, assuming
a law exists that prohibits Li’s conduct, China’s selective and
severe enforcement of the law reveals that in some
circumstances China uses enforcement of the law as a pretext
for persecuting political dissenters, not simply to implement
rational immigration policy.

As discussed above, over the past year the Second and
Ninth Circuits have addressed the persecution of Chinese
citizens for humanitarian assistance provided to North Korean
refugees. Both circuits found that the BIA, in denying
petitions for review, failed to consider a number of factors
indicating pretextual prosecution. See Long v. Holder, 620
F.3d 162, 164 (2d Cir. Sept. 16, 2010) (vacating and
remanding for BIA’s failure to consider whether prosecution
of a Chinese citizen for assisting North Korean refugees may
have been pretextual); Li v. Holder, 559 F.3d 1096, 1108-09
(9th Cir. 2009) (finding error in BIA’s conclusion that
petitioner is a mere criminal subject to legitimate prosecution,
because police persecuted petitioner for providing aid to
North Korean refugees and for expressing opinions contrary
to Chinese policy). Like the petitioners in those cases, Li
faces persecution under the guise of “prosecution” for his
efforts to help North Korean refugees. The harsh punishment
suffered by those who worked with Li to help North Korean

10
refugees demonstrates the likelihood that China will persecute
Li on account of his political beliefs. The BIA erred in
failing to consider this possibility and the considerable record
evidence supporting it. See Espinosa-Cortez v. U.S. Atty
Gen., 607 F.3d 101, 113-14 (3d Cir. 2010) (“An applicant for
asylum is entitled to a reasoned analysis, not one which
wholly disregards relevant, probative evidence.”)

In short, the evidence before us does not support the
Majority’s conclusion that Li has failed to establish
persecution because there may be a generally applicable
Chinese law that might criminalize his conduct and could be
fairly applied to result in a proportionate punishment of ten
years. The record does not contain the text of this law, the
Ninth Circuit cast doubt on the existence of any law punishing
Li’s conduct, see Li, 559 F.3d at 1111 n.15, and the only
available record evidence shows that China’s treatment of
immigration by North Koreans and of assistance to such
immigrants is harsh, politicized, and far from evenhanded.
There is insufficient evidence to support the BIA’s finding
that Li faced prosecution under a generally applicable law. I
would therefore follow the course of the Second Circuit and
remand for further factfinding on this issue.6 See Long, 620
6

If this case were to be remanded, I also would direct the
BIA to consider whether Li has established that “there is a
pattern or practice of persecution of a group of persons similarly
situated to him on account of a protected ground and that he is
included in, or identified with, the persecuted group such that it
is more likely than not that his life or freedom would be
threatened if he returned.” In re A-M-, 23 I. & N. Dec. 737,
740-41 (B.I.A. 2005) (analyzing 8 C.F.R. § 1208.16(b)(2)); see
also Wong v. U.S. Atty Gen., 539 F.3d 225, 232-34 (3d Cir.

11
F.3d at164, 168.

For the reasons stated above, I would grant Li’s
Petition for Review, and vacate and remand this case to the
BIA for further action consistent with this dissent.

2008) (discussing evidence of a “pattern or practice” of
persecution in the context of an asylum claim); Lie v. Ashcroft,
396 F.3d 530, 537-38 (3d Cir. 2005) (same). There are reports
in the record of the harsh Chinese crackdown on individuals,
like Li, who assist North Korean refugees, which may evidence
such a pattern or practice. (See A.R. 207-09.)

12