Zhang Hongbao in Blast Furnace
---- A documentary on how the outstanding spiritual leader transformed to a political leader
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Excerpts of Decision and Order of the Immigration Judge
On Zhang Hongbao Political Asylum Case
From New York Times Message Board
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Location: Hagatna, Guam
Date: September 20, 2000 (September 21, 2000 Guam time)
The Immigration and Naturalization Service alleges that the respondent appeared at Guam International Airport carrying a false Indonesian passport under the name of Wang. It further alleges that the respondent was attempting to enter under the visa waiver program but he was not admitted under that program, but rather was place in asylum only proceedings.
The Service filed two country reports and indicated that its database records had been checked. See Exhibit 6. The respondent filed much documentation in support of his application for asylum on the basis that he would be persecuted as a member of a particular social group, to wit, his Kylin Society affiliation.
The respondent testified on his own behalf and was cross-examined by the Service attorney. However, the Service informed the Court that the fingerprint card results had not been received and, therefore the Court was obligated to continue the hearing for receipt of the records checks from the FBI fingerprint card. However, the Service did indicate at that time that if the records checks was clear, that it would waive appeal of a grant of asylum based upon the record available at that time.
To qualify for asylum pursuant to Section 208 of the Act, a respondent needs to show that he a refugee within the meaning of Section 101(a) (42) of the Act. The definition of a refugee includes the requirement that the respondent demonstrate either that he has suffered past persecution or that he has a well-founded fear of future persecution in the country of nationality or habitual residence on account of his race, religion, nationality, membership in particular social, or a political opinion. For the later, the alien must show that he has a subjective fear and that this fear has an objective basis. The alien must establish that there is a reasonable possibility of actually suffering such persecution if the alien were to return. The alien must also be both unwilling and unable to return or to avail himself of the protection of his home country because of such fear. Finally, an applicant must also establish that he merits asylum in the exercise of discretion.
To quality for withholding of removal pursuant to section 241(b) (3) of the Act, the respondent must show a clear probability that his life or freedom would be threatened in the country directed on account of race, religion, nationality, membership in a particular social group, or a political opinion. This means that the respondent's facts must establish that it is more likely than not that he would be subject to persecution on one of the grounds specified.
For asylum applications filed on or after April 1, 1997, an applicant shall also be considered for eligibility for withholding of removal or deferral under the United Nations Convention Against Torture, if the applicant requests such consideration of if the evidence presented by the alien indicates that he may be tortured in the country of removal. An applicant for withholding of removal under the Torture Convention bears the burden of proving that it is more likely than not that he would be tortured if removed to the proposed country of removal.
The Board of Immigration Appeals has explained that specific, detailed, and credible testimony or a combination of detailed testimony and corroborative background evidence is necessary to prove a case for asylum. Where an alien's testimony is the only evidence available, it can suffice where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis of the alleged fear.
The court also observed the respondent's demeanor closely during the course of the hearing. He was observed to be health looking and exuded an air of calmness and an expression of what only could only be described as serenity on his face during the course of the individual hearing. The respondent was also observed to perform a demonstration of his breathing exercises. His demeanor was consistent with the information he provided in his biographical notes. Based upon observing his demeanor, the respondent did appear to be an unusual and exceptional individual. This is consistent with his testimony and documentary evidence that he is the creator and leader of a large group in China.
Before reaching further discussion on the merits of the applications, further discussion of the procedural history of the case is warranted. The Service provided evidence at a hearing on July 28, 2000 that the FBI fingerprint card had come through and that it was clear. The respondent expected that the case would be completed at that time, however, during that same hearing. This lead to requests for more time so that a letter from the Chinese Embassy to the Liaison officer at INS Headquarters Removals Unit should be followed up upon. All of this took the respondent by surprise. Eventually, after the continuances were granted. In addition, the Court made a supplementary request to the Department of State for an advisory opinion. This was received and the Court provided it to the parties. In this advisory opinion dated August 16, 2000, the Department of State informed this Court that it was "unable it evaluate the specific charges made against the applicant by the Chinese government." The Department of State then went on to make other observations regarding the materials recently received from the government of china. After that advisory was received, the Service asked for more time and this was again granted. Meanwhile, the respondent was given the opportunity to present his own evidence to refute the allegations of the Chinese government and he did so. Meanwhile, word of the respondent's asylum proceedings became know to the press and there are many examples of press reports of this case in the record or proceedings. The Service also consulted with the Library of Congress for its opinion. This Court will give significant weight to all of the Department of State materials. In particular, it is noted that the respondent's Zhong Gong Qi Gong group is specifically mentioned in the "2000 Annual Report on International Religious Freedom: China". After the submission of all of the evidence, the Service indicated that it had a continuing investigation regarding the allegations of the Chinese government underway. However, the Service attorneys were unable to articulate precisely what type of investigation this was, who was conducting it, and when it would be completed. In short, on September 1, on September 19, and again on September 20, the Service orally requested another in personam hearing in Guam, where the Service is still detaining the respondent as an "arriving" again. The Service attorney stated that it wants to question the respondent about allegations of the Chinese government and anything that their own investigation uncovers. The Service attorney stated that agency was unable to take a position on whether the documents from the Chinese government are credible. It stated that it wanted to question the respondent in person to observe his demeanor, to see if his answers conflated with previous testimony, and to use whatever evidence should become available by the time of the proposed in personam hearings; which the Service suggested be fit into the October 16 through October 20, 2000 or the December 4 through December 6, 2000 Guam Details which this Court has already scheduled for Guam. The Service argued that during the merits hearing on June 13, 2000, the Service did not know about the criminal allegations of the Chinese Government against the respondent.
The respondent argued repeatedly, beginning on August 4, 2000, that the removal hearing should be completed with a grant of asylum in that the FBI fingerprint check was accomplished and that he had a clean record. The respondent argued consistently that it is a very common approach for the government and the Chinese Communist Party to accuse prominent people of criminal conduct which has no basis in fact, and then to created accusations through false investigations. As the Service and Department of State and the Library of Congress provided its input, the respondent provided numerous press reports and the aforementioned year 2000 Annual Report on International Religious Freedom in China. His many documents were filed in order to support his position that there was no truth to the allegations of rape or sexual assault. The respondent provided numerous press reports and the aforementioned year 2000 Annual Report on International Religious Freedom in China. His many documents were filed in order to support his position that there was no truth to the allegations of rape of sexual assault. The respondent also provided his own written Declaration, in which he denies any and all allegations of criminal misconduct relating to assaults upon his group members. The respondent opposed further delay in concluding these asylum only proceedings, stating that he has been in detention for seven months on Guam.
The motion for a continuance in order that an in personam hearing could be readjourned in Guam was denied. There is not date certain as to when the Service will be ready to proceed. There have been a number of continuances. The court is of the belief that there is no need to further observe the respondent's demeanor and to cross-examine him regarding the Chinese government's documents because it is abundantly clear that he will not admit that the allegations of non-political crimes took place.
Thus, we turn to the application for asylum. The court finds that respondent did provide credible testimonial and documentary evidence that he is the founder and leader of the Zhong Gong group described in the Department of State letter dated August 16, 2000 and described in the year 2000 Religious Report on China. Even putting aside the respondent's own evidence, the Department of State material is a very strong indication that the respondent is a refugee based upon membership in the Zhong Gong group and, in the alternative, it could also be characterized as religious persecution or political opinion persecution. The respondent argues that the powers in China, in particular the Chinese Communist Party, is afraid of groups such as the Zhong Gong becoming a political force. The respondent indicates that he has been openly critical of the Chinese communist Party, although at one time, he maintained close relationships with and provided health services to high-level Chinese party officials. The key question for asylum, which the Service raised after the Chinese Government provided the aforementioned Exhibits 25 and 26, is that, the respondent may be ineligible for asylum pursuant to section 208 (b) (2) (a) (iii) of the Act. That provision says that asylum grants will not apply to an alien if the Attorney General Determines that there are serious reasons for believing that the alien has committed a serious non-political crime outside the United States prior to the arrival of the alien in the United States. There is no evidence of any conviction.
This Court having reviewed the background information from the Department of State, having considered the Service's views, and all of the material field by the responders, finds that the exception at Section 209 (b) (2) (A) (iii) simple is not present in this case. Although there are some reasons to believe he has committed serous non-political crimes, the record does not justify a finding that those reasons are "serious". The prosecution material submitted by the Chinese government does not appear to be prepared in a very professional quality and it is full of conclusiary statements by the investigators. Moreover, there is little or no forensic evidence attached to the reports and, as pointed out by the various commentators, the timing of the material is suspect. It is also questionable as to why the respondent was not arrested for sexual assault before he left the country in 1994. The respondent had a high profile and it would have been easy to locate him and to serve any arrest warrant on him had an arrest warrant been issued in 1990 or 1991. There does not appear to be any other exception for granting asylum which would be a bar in the respondent's case, although the Court has also considered whether the firm resettlement exception might apply.
In that the Court finds that the respondent has established by a preponderance of the evidence that he is a refugee, and having determined that none of the exceptions does not apply to his case, the question of the exercise of discretion must also be addressed. As explained above, at the end of hearing on June 13, 2000, the respondent had established that he is a refugee as contemplated within the definition of the Immigration and Nationality Act. The Court had on that day before it no direct adverse information sufficient upon which to deny asylum as a matter of discretion. As explained, this case was set out for a records check completion and the respondent's fingerprint was found to be clear. However, the Service then began to submit adverse evidence from the Chines Embassy. in response, the respondent describes himself as the founder of Kylin Philosophy, a beneficial Qi Gong exercise type health program. The record suggests that the organization had 30 to perhaps 38 million adherents, that it had thousands of teaching centers located throughout various provinces in China, and that the respondent or the organizations assets were valued at hundreds of millions of dollars prior to its closure in 1999. The Kylin Philosophy apparently had its roots in traditional Chinese cultural health and well being practices. The respondent argues that the benefits of his program can and will be shared with the people of the United States for the common good.
The Court had given consideration to document the respondent has file. These include correspondence in support of his good work and his good character from the Hong-Kong based Information Center for Human Rights and Democracy. There is other correspondence of unclear authorship and there are also letters or "testimony" on the respondent's behalf, such as from Yan and so on among others. In a statement dated August 14, 2000, the respondent's colleague, Mr. Yan (who's demeanor this Court has also personally observed) states that the documents from the Chinese authorities were a "pure fabrication" intended to "force repatriation of Zhang Hong Bao in order to subject him to the death penalty in China", for being a political dissident due to his "open criticism of the Chinese Communist Party" and because he has a "large and close-knit organization". She verified that the respondent left China to avoid persecution and states that "prior to the allegations sent to the Immigration Judge from the Chinese Embassy, numerous official government documents show no trace of criminal allegations" against the respondent. She references various documents. She concludes that in China, "labeling political dissidents with trumped-up charges of criminal allegations is known as a common tactic". As stated in his declaration, the respondent denies all the allegations contained in the documents from the Chinese authorities who are interested only in persecuting him for political reasons. In sum, the respondent denies that he has been a person inflicting criminal assault or rape against his followers.
On the other hand, the respondent may have found a safe haven elsewhere in his travels after leaving China. The respondent admits in his "My Biographical Notes" that public security began to "follow his tracks" in 1994, wanting to arrest him, whereupon he "escaped from China" and stayed in Australia temporarily to lead the work of Zhong Gong continuously. The respondent indicates that he then moved from country to country in Southeast Asia until "forced" to come to Guam "for moral support and political asylum". The Form I-589 states that the respondent left China in June, 1994, but he did not arrive at Guam until January 29, 2000. There is no detailed explanation of why he did not or could not get asylum anywhere he stayed between leaving China and coming to Guam with a false Indonesian passport after transiting through several countries. The form 1-589 states that respondent went to at least nine countries, including Australia and Thailand. The respondent states at page six of the application that he did not request asylum from these countries because he was not planning to apply for asylum at the time. Yet, the respondent testified that he came to Guam "the organization" and "not for personal reasons". The possibility of safe haven elsewhere appears to remain a factor to be considered in the exercise of discretion. The respondent's use of the Indonesian passport is not considered an adverse factor in making my discretionary determination under the circumstances of the respondent's case. However, this Court does find that since the respondent was able to promote and operate his organization and businesses from other countries, especially Australia, he could probably have resettled permanently in one of those countries.
Yet, the Court has doubts as to whether this discipline or culture is as beneficial as it is propertied to be.
Regarding other good deeds, such as large donations in 1998 to Northeast China Flood Disaster Relief.
An Immigration Judge must always keep in mind after finding statutory eligibility for asylum that there is the secondary issue relating to the discretionary determination. The best interest of the community of the United States is in the balance. Although there is insufficient evidence to show "serious reasons" that the respondent has committed serious non-political crimes outside the United States prior to his arrival at Guam, this Court will exercise its discretion with caution. As Shakespeare wrote: "modest doubt is called the beacon of wise". The record reflects that there is a possibility that the respondent is not a responsible health practitioner that the respondent is not a responsible health practitioner and that there is at least a possibility that he is a charismatic man who has abused the trust of his followers. The balance between the positive and negative factors lips slightly towards denying the application as a matter of discretion.
Turning to the question of eligibility for withholding of removal pursuant to section 241 (b) (3) of the Act, the Court finds that the respondent has met his burden of proof to show by a clear probability that his life or freedom would be threatened in China on account of his membership in a particular social group or perhaps political opinion or imputed political opinion or religious affiliation if his Zhong Gong group is considered a religion. The respondent's well-documented presentation, as well as the information from the Department of State do establish that it is more likely than not that he would be subject to persecution on one of the grounds just specified. Withholding of removal is mandatory unless the Attorney General determines that one of the exceptions applies and this Court finds that the exception for serious reasons to believe that an alien has committed a serious non-political crime outside the United States prior to his arrival his simply not present. As stated above, there are some reasons to believe there was a serious non-political crime, but there are not "serious reasons". Obviously, if the respondent is a serial rapist, those would be particularly serious crimes and are even defined as aggravated felony offenses in the Immigration and Nationality Act. However, the respondent denies those allegations and, as explained above, the evidence that is presented, when viewed in it's totality, does not amount to serious reasons. ... Accordingly, the application for withholding of removal from the United States to China will be granted.
The Court now turns its attention to eligibility for withholding of removal under the United Nations Convention against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment. Having carefully considered all of the evidence, the Court finds most probative the "2000 Annual Report on International Religious Freedom: China", dated September 4, 2000. In that report, the Bureau of Democracy, Human Rights, and Labor of the United States Department of State reports that during the period covered by this report, there were numerous credible reports of torture and other abuses of detained Falun Gong practitioners. The report goes on to state that core leaders of such groups are singled out for "particularly harsh treatment". At page 16 of the same report, the Department reports that "the Zhong Gong Qi Gong group, which reportedly had a following rivaling that of Falun Gong, was banned under the anti-cult application of the Criminal law, and its leader, Zhang Hong Bao, was charged with rape, forgery, and illegal crossing of boundaries. According to a news report, a local Zhong Gong leader named Chen Jilong was convicted in January, 2000 of illegally practicing medicine and was sentenced to two years in prison. The respondent has also provided evidence of arrests of his own employees or practitioners.
This record of proceeding is also sufficient to establish that the torture feared by the respondent would be inflicted by or with the acquiescence of a public official or other person acting is an official capacity in China. Accordingly, the Court having found that the respondent has established that it is more likely than not that he would be tortured if removed to China and finding that the exception for serious non-political crime does not apply, withholding ender the Convention Against torture will also be granted.
Accordingly, the following orders shall be entered:
IT IS HEREBY ORDERED, that the respondent's application for asylum will be denied solely as a matter of discretion.
IT IS FURTHER ORDERED, that the application for withholding of removal pursuant to Section 241 (b) (3) of the Act is hereby granted.
IT IS FURTHER ORDERED, that the application for withholding of removal under the Convention Against Torture is granted.
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