Petition for Review of an Order dated January 5, 1996 of the Immigration & Naturalization Service (Immigration & Naturalization No. A72 376 988)
Before: ALITO, ROTH and LEWIS, Circuit Judges
Argued on November 13, 1996
Fengchu Chang, a fifty-five year old native and citizen of China, seeks asylum and withholding of deportation based on his fear of persecution for violating China's State Security Law. Chang, the chief engineer for a state-owned company, led a technical delegation to this country from July through September of 1992. During the course of this visit, Chang violated Chinese law (1) by not reporting to the Chinese authorities the members of his delegation whose misconduct (under the rules set by the Chinese government) suggested they would remain in the United States, (2) by meeting with an FBI agent as arranged by the American company hosting the delegation, and (3) by electing to stay in the United States and to seek asylum after being told by the FBI that he was in "danger." Based on these violations of Chinese law, Chang fears reprisal if he returns to China. The Immigration Judge ("IJ") denied his application for asylum and for withholding of deportation. The Board of Immigration Appeals ("BIA") dismissed his appeal, reasoning that because Chang faces prosecution only under a law of "general applicability," he does not fear "persecution" based on his political opinion. We disagree and will grant Chang's petition.
Before leaving China in July of 1992, Chang worked simultaneously as the chief engineer of a major state-owned company with more than 3000 employees, as director of a state Research Institute with more than 100 employees, and as senior consultant to the Ministry of Machinery and Electronics. In the course of his professional duties, Chang had access to confidential technical information about state projects.
Chang had traveled outside of China on several previous occasions, always in connection with the technical positions he held in China. For the 1992 visit to this country, Chang was selected as head of the delegation. In this capacity he was briefed by a special security agent and instructed to monitor the behavior of the other delegates and to report any suspicious activity to the Chinese Embassy. The 1992 delegation of eight people, including Chang, visited the United States in connection with a purchase of technology by Chang's company from an American company, Pangborn Corporation.
After the arrival of the delegation in the United States on July 27, 1992, Chang became suspicious that several members of the delegation were considering remaining in the United States. At the beginning of August, Chang overheard a telephone conversation in which one delegate discussed the possibility of remaining in the United States. Chang observed the same person making another phone call about three weeks later. During the second week of September, Chang learned from officials at Pangborn that another delegate had met with them and intended to stay in the United States. Chang also became suspicious of a third delegate who had contacts in the United States and said that she was checking the procedures for studying in the United States in the future.
As head of the delegation, Chang was required to report his suspicions to the Chinese Embassy. Not certain that the delegates actually planned to remain in the United States and fearful of the consequences that they would suffer at the hands of the Chinese government if he did report them, Chang did not report either their conduct or his suspicions to the Embassy. Another member of the delegation, who also suspected that one or more delegates might stay in the United States, told Chang to call the Chinese Embassy. He also told Chang that he would report Chang to the Chinese government upon return to China because Chang had not complied with the orders of the Chinese government.
Chang nonetheless still intended to return to China in the middle of September, even after becoming suspicious that other delegates might stay in the United States and despite his concern that their staying and the other delegate's report to the government would create risks for him upon return to China. On about the 17th of September, Chang explained his situation to an engineer at Pangborn, in a conversation initiated by the engineer who had noted that Chang was distraught. Chang told the American that if some of the delegates remained in the United States, he (Chang) would face problems upon return to China.
Pangborn officials suggested, and arranged for, Chang to meet with Barry O'Neill, a person who Chang understood to work in the Hagerstown Government. Only later did Chang learn that O'Neill worked for the Federal Bureau of Investigation. Chang explained his concerns about his safety upon return to China. O'Neill questioned Chang about his work and his family and asked if he had access to state secrets.
On September 23, 1992, at O'Neill's suggestion, Chang met with O'Neill a second time at the Pangborn offices. O'Neill reported to Chang that "everything is true," that Chang was "in danger," that the only thing Chang could do was seek political asylum, and that a special agency in Hong Kong would assist Chang's family in leaving China. Later that day, again at the suggestion of O'Neill, Chang and O'Neill met with an immigration officer in Baltimore. Based on that meeting and on what O'Neill had told him, Chang applied for political asylum. On September 27, the delegation returned to China without Chang. Unknown to Chang at that time, one other member also did not return with the delegation to China.
The INS denied Chang's request for asylum and on July 26, 1994, charged Chang with overstaying his visa, which had expired in September 1992. Chang conceded deportability but requested political asylum and withholding of deportation. At a hearing before the Immigration Judge on June 5, 1995, Chang testified that he fears persecution if he is returned to China based on his access to Chinese state secrets, on his prominent position in China, on his contact with the FBI, on his decision not to return to China and to seek asylum in the United States, and on his failure to report the misconduct of other delegates. If he is returned to China, Chang fears that he will lose his job, that he will be imprisoned, and that his family will suffer retaliation. Since leaving China, Chang has spoken with his wife and sister and has learned that his wife has been forced to retire and has been questioned by security agents, that the local security agency has revoked his passport, that his defection has been treated as a foreign affairs incident, and that his photo is on record at the Ministry of State Security. His sister, who holds a high position in their hometown, advised Chang not to return to China because the local security agency is "waiting for you."
The Immigration Judge denied Chang's petition in a somewhat delphic oral opinion. The Judge reasoned that prosecution "is not persecution unless that prosecution is severe or somehow politically motivated," and that if "the punishment is severe for prosecution of a crime, one must look to see if that punishment was imposed because of some political motive." The Judge concluded that Chang did not face persecution "for any political opinion" and that instead Chang had only shown "a self-created, subjective fear of returning now of either losing his job or being prosecuted for a failure in his responsibility."
Chang appealed to the BIA, which dismissed Chang's appeal on January 5, 1996. The BIA opinion reviews the facts of the case and concludes that:
For the reasons set forth in the Immigration Judge's decision, we find that the respondent has not established that a reasonable person in his circumstances would fear persecution on account of race, religion, nationality, social group or political opinion. See Elias-Zacharias v. INS, 502 U.S. 478 (1992). In particular, we note that the respondent fears prosecution in China because he failed to report his colleagues' suspicious activities and because he sought asylum in the United States. The prosecution he fears is similar to what he believes his colleagues would have been subject to had he reported to the Chinese Embassy. However, prosecution for the violation of a law of general applicability is not persecution, unless the punishment is imposed for invidious reason. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other grounds, Matter of Mogharrabi, supra, Matter of Nagy, 11 I&N Dec. 888 (BIA 1966). In that it appears from the testimony and evidence presented that China's security laws are generally applied, there is no indication that any action against the respondent would be imposed for invidious reasons. We conclude that the prosecution the respondent fears should he return to China does not constitute persecution as contemplated by sections 208(a) and 243(h) of the Act.
The BIA ordered Chang to depart from the United States voluntarily by March 1, 1996, subject to extension by the district director, or to face deportation.
Chang petitioned this Court for review of the BIA's January 5, 1996, order. We have jurisdiction over Chang's petition pursuant to 8 U.S.C. Section(s) 1105a(a), which has been repealed but still applies to this case because the order of deportation was entered before September 30, 1996. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Section(s) 306(c)(1), 309, and 604 (c), Pub L. No. 104-208, 110 Stat. 3009 (1996), reprinted in 8 U.S.C.A. Section(s) 1105a, 1252, 1101 (under "Historical and Statutory Notes") (Supp. 1997). *fn1
Section 208(a) of the Immigration and Nationality Act ("INA") provides that the Attorney General may, in her discretion, grant asylum to an alien who qualifies as a "refugee" within the meaning of Section 1101(a)(42)(A) of the statute. 8 U.S.C. Section(s) 1158(a) (1988 & Supp. 1992). The term refugee includes those who are unable or unwilling to return to their 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. Section(s) 1101(42)(A). The INA also provides, in Section 243(h)(1), that the Attorney General must withhold deportation to a country if the alien's "life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Section(s) 1253(h). In order to be eligible for a discretionary grant of asylum under Section 208(a), an alien need only show a "well-founded fear of persecution," but on the ...