Chinese Asylum: Is it appropriate to treat suing a unit of government as a legitimate means of expressing one's political opinion? 7th Circuit 2010

Xiu Chen v. Eric Holder, Jr. (Easterbrook)
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A Chinese citizen's petition for review of BIA's denial of her application for asylum is granted and remanded as the Board has never addressed the question of whether it is appropriate to treat suing a unit of government as a legitimate means of expressing one's political opinion. Furthermore, the Board needs to consider the possibility that, if China has classified petitioner as a public protester, then perhaps an imputed political opinion is "at least one central reason" for the attempted arrest for filing suit against the local government for confiscating her father's land without just compensation.

Xiu Qin Chen, a citizen of China, seeks asylum in the United States. She contends that China persecuted her because of her political opinions and will imprison her because of those opinions should she be returned. Her political opinion, as she expresses it in this court, is that China should pay just compensation when it takes private property for public use. That capitalist principle, enshrined in the fifth amendment to the Constitution of the United States, is less honored in communist nations.

Chen contends that her home town of Langqi razed about a dozen homes in order to construct a military building. (We recount her story, which the Board of Immigration Appeals accepted provisionally.) Officials promised to provide similarly sized plots of land and to pay for construction of new houses within three months, and to provide rent for transitional housing. The rent was paid, but when four months passed without the transfer of new land or the money to build new homes, Chen filed suit against the local government. The court dismissed that suit, and officials appeared at her family’s rented home with a warrant for her arrest. She fled. Police have tried to find her ever since, and when her father refused to reveal her whereabouts he was beaten and his leg broken. But the Board of Immigration Appeals concluded that Chen’s lawsuit did not advance a political position, so the government’s reaction, though excessive, was not on account of “political opinion” within the meaning of 8 U.S.C. §1158(b)(1)(B)(i).

One circuit has held that litigation is a form of political expression that can make a person eligible for asylum. Baghdasaryan v. Holder, 592 F.3d 1018, 1020–21, 1024 (9th Cir. 2010); Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1044–45 (9th Cir. 2008). Another has implied this, see Yueqing Zhang v. Gonzales, 426 F.3d 540, 547–48 (2d Cir. 2005), though that decision did not arise from litigation. Chen urges us to follow these decisions and rule in her favor on the political-opinion question, remanding to allow the agency to address the rest of the statutory issues. Things are not quite that simple, however.

First, the ninth circuit approached the subject as if the judiciary made an independent decision. It does not. The Attorney General, and his delegate the Board of Immigration Appeals, are principally responsible for interpreting ambiguous terms in the immigration laws, and the judiciary must respect administrative decisions that plausibly implement this legislation. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), applied to immigration law by INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999). See also Negusie v. Holder, 129 S. Ct. 1159, 1163–64 (2009). The alien must establish that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant”. 8 U.S.C. §1158(b)(1)(B)(i). These are not self-defining terms, so administrative officials have considerable leeway.

Second, it is necessary to distinguish having a political opinion from the means of its expression. The United States does not allow punishment for anyone’s political views—but rules for the time, place, and manner of expression are independent of the speaker’s politics. Thus it may be permissible to punish a person for waking up the neighbors with a bullhorn, even though the viewpoint of the amplified statements cannot be penalized. See Ward v. Rock Against Racism, 491 U.S. 781 (1989). And a public demonstration that blocks access to a person’s home, and spoils the quiet that people need in their daily lives, may be curtailed. See Frisby v. Schultz, 487 U.S. 474 (1988). The second and ninth circuits appear to have assumed that the time, place, and manner rules used in the United States apply equally to foreign nations, and that any departure from them penalizes political opinion. That is far from clear to us. The foundation for the time, place, and manner rules is that they do not concern the viewpoint or content of the speech. In California, shopping malls are open to political demonstrations, see PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). But if a foreign nation bans political speech at shopping malls and arrests picketers as trespassers, that is not necessarily punishment for “political opinion”; it may be no more than insistence that political opinion be expressed in a different place. Thus if a foreign state decides that litigation is not an appropriate forum for political opinion, it would be hard to characterize that as persecution.

Third, the United States has itself limited the expression of political opinion in the courts. True enough, litigation is protected by the first amendment as one of the ways by which the people may petition for redress of grievances. See Lewis v. Casey, 518 U.S. 343 (1996); NAACP v. Button, 371 U.S. 415 (1963). Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510–11 (1972). But this does not imply that litigation is just politics by other means. See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). A court is the forum in which legal rights are vindicated, and people who use litigation solely as a pulpit for political protest may be penalized if the suit is objectively baseless. BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002).