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The Honorable Michael Chertoff Secretary U.S. Department of Homeland Security Naval Security Station Washington, D.C. 20578

The Honorable Alberto R. Gonzales Attorney General U.S. Department of Justice Robert F. Kennedy Building 950 Pennsylvania Avenue, NW Washington, D.C. 20530-2000

October 28, 2005

Re: Xiaodong Li v. Alberto Gonzales, No. 03-60670 (5th Cir. Aug. 9, 2005)

Dear Secretary Chertoff and Attorney General Gonzales:

We are writing to express our deep concern about the positions taken by the Department of Homeland Security (“DHS”) and the Department of Justice in the above-referenced asylum case concerning a victim of religious persecution in China. Our organizations are faith-based and secular organizations that work on behalf of those who seek asylum in this country, and in that capacity, some of our organizations have filed amicus briefs in this case or have otherwise expressed our concerns.

While we welcome the news that the Board of Immigration Appeals has now issued a new decision in this case, we remain very concerned about the continuing impact of the government’s initial position – which contravened both U.S. and international refugee and human rights law – on other victims of religious persecution. As you know, the government’s position in this case has been affirmed by a decision of the Court of Appeals for the Fifth Circuit. If this decision is not corrected and the government’s position not clarified, other victims of religious persecution may be jeopardized. We therefore urge that the government, in addition to not opposing a request to vacate the decision, join the request that the Court of Appeals rehear the case en banc or at the very least vacate its prior panel decision.

The crux of the government’s argument in this case has been that the Chinese government has a “legitimate sovereign right” to prohibit the practice of religion by groups that it does not sanction, and that therefore an individual prosecuted for practicing religion outside of a church registered with the Chinese government – including in his own home – is not the victim of religious persecution but “merely” the subject of legitimate governmental prosecution.

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As detailed in the record in this case (in which both the immigration judge and the Board of Immigration Appeals found Mr. Li to be credible), Mr. Li was arrested for holding Bible study meetings in his home and was then detained and beaten until he confessed to organizing an underground church.

However, after the immigration judge found Mr. Li credible and entitled to the protection of the United States:

The Department of Homeland Security’s Bureau of Immigration and Customs Enforcement (“ICE”) appealed the decision, with its attorney arguing that the government of China has a “legitimate right” to enforce laws relating to unregistered churches and a “legitimate interest” in ensuring that religious groups do not engage in any activities “that may be regarded as a threat to the political or social order.”

The Board of Immigration Appeals (which falls under the jurisdiction of the Justice Department’s Executive Office for Immigration Review) concluded that the Chinese law prohibiting unregistered religions and underground churches implements a “legitimate sovereign right” rather than constituting religious persecution.

The Justice Department’s Office of Immigration Litigation (“OIL”), which litigates immigration cases, in its brief to the Court of Appeals for the Fifth Circuit adopted the Board’s reasoning and cited to the Board’s conclusion that China’s religious prohibitions are a ‘legitimate sovereign right’ rather than persecution. OIL also argued that Mr. Li was not entitled to protection from persecution, since Communist party officials view unregulated religion as a “potential challenge to their authority” and “an alternative to Socialist thought.” OIL argued that “there is simply no indication that the Chinese government’s criminal prosecution of Petitioner is motivated by Li’s religious beliefs.”

The Fifth Circuit panel decision issued on August 9 upheld these positions. Because the positions taken by the government in this case conflict with both U.S. law and our international legal commitments, we urge your Departments to join in the request that the full Court of Appeals for the Fifth Circuit review the case en banc or at least vacate its prior decision. In so doing, it will be critically important for the government to clearly acknowledge – and correct – its mistaken legal positions, in addition to citing to the “new evidence” concerning the September 30 letter from the U.S. Commission on International Religious Freedom. If these mistaken legal positions are not corrected, it would create the misimpression that the government’s prior positions were legally correct, potentially jeopardizing the fates of other refugees in other religious persecution cases. We also recommend that all ICE and OIL attorneys be instructed not to cite with approval to the decisions that were based on the government’s initial positions.

In any future submissions in this case, we also urge the government to make clear that (1) the concept of religion includes both personal faith and religious practice – including private practice in one’s own home; and (2) that a government’s use of its laws and law enforcement to punish the free exercise of religion does not remove its victims from the scope of refugee protection.

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Finally, we also recommend that your Departments take steps to ensure that there is proper oversight of the legal positions taken by individual ICE and OIL attorneys in asylum cases. Toward that end, we recommend that DHS create mechanisms to ensure that the guidance of the government’s asylum legal experts (located in USCIS, the operational bureau that has responsibility for asylum matters) is followed in interpreting and applying asylum law. The need for oversight by asylum legal experts is needed not just within DHS, but between DHS and DOJ as well. We also urge that the new refugee policy director have significant refugee protection expertise, and the authority necessary to oversee this kind of compliance with asylum law and policy.

Thank you for your attention to this important matter.


Carlina Tapia-Ruano President-elect American Immigration Lawyers Association

Susan Benesch Acting Director Amnesty International USA

J. Traci Hong Director of Immigration Programs Asian American Justice Center

Capital Area Immigrants’ Rights Coalition Washington, D.C.

Center for Gender and Refugee Studies University of California Hastings College of the Law San Francisco, CA

Christian Legal Society Springfield, VA

Rev. Joseph Roberson Director, Immigration and Refugee Program Church World Service

Richard Parkins Director Episcopal Migration Ministries

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Gideon Aronoff Vice President for Public Policy and Government Relations Hebrew Immigrant Aid Society

Michael Horowitz Director, Project for International Religious Liberty Hudson Institute

Eleanor Acer Director, Asylum Program Human Rights First

Ann J. Buwalda Director Jubilee Campaign USA

Ralston H. Deffenbaugh, Jr. Director Lutheran Immigration and Refugee Service

Michele Garnett McKenzie Attorney at Law, Refugee & Immigrant Program Director Minnesota Advocates for Human Rights

Carl H. Esbeck Legal Counsel, Office of Governmental Affairs National Association of Evangelicals

Clifton Kirkpatrick Stated Clerk of the General Assembly Presbyterian Church (U.S.A.)

Refugio del Rio Grande San Benito, TX

Michele Pistone Professor and Director, Clinical Program & CARES Clinic Villanova University School of Law

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Rev. Craig B. Mousin Wellington Avenue United Church of Christ Chicago, IL

Monique Beadle Refugee Program Director World Organization for Human Rights USA

Individuals 1

Pamela Goldberg

Jeff Joseph Joseph Law Firm, PC

Jonathan Robert Nelson

1 These individuals are also concerned about the matters addressed in this letter.