Jubilee Campaign – With unprecedented and uncharacteristic swiftness, the US Department of Homeland Security (DHS) this week reversed its position in the refugee protection case of Mr. Li Xiaodong and agreed that he may stay in America . Religious freedom and human rights groups, including Christians throughout the US , had joined their voices in protesting the decision of the Fifth Circuit Court of Appeals in Li v. Gonzales. Jubilee Campaign worked with Congressional offices and others to advocate a reversal of policy within DHS and the US Department of Justice (DOJ) concerning asylum cases involving religious-based persecution.
In an abrupt and surprise move, on Tuesday, October 4, DHS filed a Motion to Reopen and Withdrawal of Appeal with the Board of Immigration Appeals (BIA), a division of the DOJ which reviews decisions in asylum and deportation matters. BIA issued its decision this Thursday, reopening the Li removal order and reinstating the original decision of the immigration judge, who had found that Li was credible, had suffered persecution as a house church member in China in the mid-1990s and should receive America’s protection from being returned to the probability of persecution in China on account of his religious faith and practice.
In 2000 an immigration judge had ordered that Li receive withholding of removal as a form of refugee protection. However, the Immigration and Naturalization Service–now part of DHS and renamed the US Citizenship and Immigration Service (USCIS)–appealed the grant of protection to BIA. A three-judge panel from BIA found that Li had honestly described how police beat and tortured him with an electric shock device, forced him to sign a confession and required him to clean public toilets without pay after his release, which he did until he managed to flee China. Despite this abuse, BIA found that Li had not suffered “persecution” and that his detention was permissible “prosecution” by a country that has the right to establish laws to control public order. In August 2005, the Fifth Circuit Court of Appeals upheld BIA’s reversal of the protection order and based the decision on creating an artificial distinction between “religious belief,” which is protected by asylum law, and “religious practice,” which the Fifth Circuit concluded is not protected. A three-judge panel of the Fifth Circuit found that China ‘s state-run Three Self Patriotic Protestant Church was available for Li to attend if he wanted to worship God, and that China had the right to prosecute Li for praying and worshiping in his private home with others who shared his faith.
Although Li now has the received the good news of protection in America , the decision of the Fifth Circuit still stands at this writing. In an effort to vacate the Fifth Circuit decision, this week Li’s attorneys filed a Petition for En Banc Review in the Fifth Circuit. In addition, organizations across the ideological spectrum–from Christian Legal Society and Jubilee Campaign to Amnesty International and the Harvard Immigration and Refugee Clinic–are filing “friend of the court” briefs in support of Li and seeking the reversal of the Fifth Circuit’s reasoning in its August decision, which still stands despite BIA’s reversal of its appeal and agreement to refugee protection.
Jubilee Campaign’s brief focused on the significant increase in persecution of house church leaders by Beijing . Jubilee is also convinced that the prosecution of a Christian who resists communist and atheist ideology and control as inconsistent with his religious beliefs is by definition persecution. To hold otherwise is to put in jeopardy countless religious minorities throughout the world. Jubilee Campaign Director, Ann Buwalda, noted in our brief, “In Iran and Saudi Arabia , conversion to Christianity from Islam (known as apostasy), is against the law and punishable by death. In nations such as Egypt and Pakistan , though apostasy is not per se against the law, other provisions are frequently used to punish converts on account of their religion. Certainly the Fifth Circuit does not believe that converts to Christianity in the Arab world are themselves to blame and could avoid prosecution by simply remaining Muslim. And certainly the U.S. will not return them to countries where they will be subjected to heinous punishment on the basis that sovereign nations have a right to ‘maintain order.'” Yet, if the August Li vs. Gonzales decision of the Fifth Circuit is not reversed, it could become impossible for a convert from Islam to Christianity to seek refugee protection in the United States . That would be a travesty to the deeply held religious values that America stands for and promotes around the world. Jubilee will continue to advocate for this dangerous precedent to be reversed.