Appellate Law

CA1: First usurps foreign-policy making role to help government

By S. COTUS

Datau v. Mukasey, No. 07-1996 denies a petition of an Indonesia Christian.  She looks Chinese.  The IJ said some weird things about how he had "concerns" about the truthfulness of the story, but didn't find it credible.  What does that mean?  I hate that word, "concerns."  The First seems to take particular delight by citing previous cases to establish whether an ethic group in a foreign country is oppressed or not.  This is a blatant usurpation of the executive's power.  Of course, because the executive wins they don't object.  And, since a foreigner loses, the Federalist Society doesn't care.  (Not that they have a coherent definition of "activist" beyond "things we don't like.")  But, the First seems to be not the "facts" of individual cases (as found in the record), but referring to other cases.  Anyway, the First says that she is unlikely to be persecuted when she goes back to that country.

So, the First gets to look outside the record and send someone back to their home country.  Let's take a look at another case where the government loses. In Zhao v. Mikasey, No. 07-75041 (8/26/08) from the Ninth Circuit.  The petitioner is a practitioner of Falun Gong, a widely popular religion in China.  Unfortunately, Chinese culture is very intolerant and therefore the Chinese hate them.  Unlike Indonesian Christians, however, practitioners of Falun Gong have an easier time of showing oppression because the Chinese government makes no bones about how they discriminate on the basis of religion and enjoy beating people up.  I just got back from a fun vacation in China. 

We conclude that, even if the past harm during the 2001 detention did not rise to the level of persecution, substantial evidence does not support the IJ?s rejection of the couple?s claim of well-founded fear of persecution.3 This result is dictated by two recent cases: Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004) and Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006). In Zhang, members of the petitioner?s family had been arrested in China for their participation in Falun Gong demonstrations. Id. at 716. Although Zhang himself had never been arrested, the Chinese authorities had discovered his involvement with Falun Gong and had placed the family on surveillance, warning them to report his return to China. Id. at 716- 17. On this testimony and the record of the Chinese government?s crackdown on Falun Gong, we found compelling evidence of a clear probability of persecution and hence eligibility for withholding of removal

Now, I have no doubt that Falun Gong is oppressed, but the Ninth seems to be doing exactly what the First is: determining that as a policy matter that a certain group of people is oppressed. 

Full post as published by Appellate Law and Practice on August 28, 2008 (boomark / email).