Weiwei Chen v. Holder

Citation: 549 F. App'x 567Docket: No. 13-1863

Court: Court of Appeals for the Seventh Circuit; December 22, 2013; Federal Appellate Court

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Weiwei Chen, a 23-year-old Chinese national living unlawfully in the U.S., fled China after being detained and abused by police due to her Christian faith. After being accused of colluding with foreigners, she was interrogated, beaten, and threatened with a labor camp during a five-day detention, where one officer also attempted to sexually assault her. Despite the immigration judge (IJ) finding her testimony credible, Chen’s request for relief from removal was denied on the grounds that her experiences did not constitute past persecution and her fear of future persecution was deemed unfounded. The IJ’s and Board of Immigration Appeals' decisions were challenged, arguing that the attempted sexual assault combined with her prior mistreatment qualifies as past persecution. Chen's parents paid a bond for her release, after which she was required to report to police weekly, leading to depression and an inability to focus on her studies. She immigrated to the U.S. in February 2007 shortly after her release, resuming church activities in Chicago's Chinatown while Chinese authorities continue to search for her, threatening her parents with prosecution if she does not return.

Chen applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) due to fears of religious and political persecution in China. Although her application was submitted past the one-year deadline, the Immigration Judge (IJ) waived this requirement, recognizing the reasonableness of her circumstances. Chen expressed fear of arrest, detention, and punishment upon returning to China, as well as concerns about police surveillance that would inhibit her religious practices. During removal proceedings for overstaying her visa, Chen provided a letter from her pastor in China confirming her baptism and church participation. The government countered with the State Department’s 2010 International Religious Freedom Report, noting restrictions on religious freedom in China, particularly for unregistered house churches.

The IJ ultimately denied Chen’s requests for asylum and related relief, acknowledging her testimony about past mistreatment but determining it did not constitute persecution. The IJ argued that her experiences did not amount to serious harm, and Chen failed to demonstrate a well-founded fear of future persecution, particularly because her pastor's letter lacked concerns for his safety. The Board of Immigration Appeals upheld the IJ’s decision, stating that Chen's brief detention and minor mistreatment were insufficient to qualify as persecution, and her fear of future harm was not objectively reasonable. While the Board acknowledged the troubling nature of an attempted sexual assault described by Chen, they concluded it amounted to harassment rather than persecution. 

Chen contested the Board's ruling on appeal, arguing that persecution can be psychological and does not require severe physical abuse. She asserted that the agency underestimated the significance of the attempted assault and her age. The review of the agency's decisions, which were adopted and supplemented by the Board, requires substantial evidence for factual findings and de novo review for legal conclusions.

Two procedural matters are addressed regarding Chen's claims for relief from removal. First, the government contends that Chen did not exhaust her administrative remedies by failing to raise her objections to the Immigration Judge's (IJ) denial of relief under the Convention Against Torture (CAT) before the Board, resulting in the forfeiture of that claim. Second, the agency's consideration of Chen's age in evaluating her claims is examined. Although age is a significant factor in claims of persecution, it is not required for the agency to explicitly mention it as long as it is aware of the petitioner’s age, which it was in this case.

However, the agency applied an incorrect legal standard by dismissing Chen's mistreatment as insufficient for a persecution claim, failing to evaluate the cumulative significance of her experiences. The legal standards indicate that persecution can include significant physical harm or non-physical harm of equal gravity and that credible threats can also constitute persecution. The agency erred by downplaying the trauma of a sexual assault Chen experienced, mistakenly reasoning that her resistance meant she was only harassed. Previous rulings have established that threats of serious harm, such as attempted sexual assault, are serious and should not be minimized.

Additionally, the agency improperly focused solely on Chen's five-day detention without considering its broader impact, including her subsequent depression, limitations on her activities, and fears of police reprisal. The agency's failure to adequately assess these factors represents another error in its analysis of Chen's persecution claim.

The agency erred by focusing on the detention rather than the severity of Chen's abuse, as the Immigration Judge (IJ) incorrectly claimed that Chen was not severely bruised despite her credible testimony to the contrary. The agency also neglected to adequately consider the attempted sexual assault on her. Consequently, the petition for review regarding Chen's asylum and withholding of removal claims is granted. Chen has established past persecution, which entitles her to a rebuttable presumption of future persecution. Furthermore, she provided substantial evidence of her fear of future persecution, including a police threat to send her to a labor camp, ongoing searches for her, and warnings to her parents under threat of criminal prosecution to report her if she returns. The State Department's International Religious Freedom Report indicates that, as of 2010, Chinese authorities targeted religious individuals for practicing outside state-sanctioned churches. The petition is granted for a reevaluation of Chen's claims using the appropriate legal standards.