Ting Xue, a committed Christian, is a refugee who fled from religious persecution in his native China. He now lives in Denver with his wife, a lawful permanent resident who likewise hails from China, and their young daughter. Xue has a job, pays taxes, and is active in a local evangelical church. But if the federal government has its way, Xue will soon be separated from his family and sent back to China. He is fighting hard for his freedom.
Ting Xue’s story is a living parable that reveals a deeply troubling truth: For years, the federal government has routinely denied claims such as Ting Xue’s for asylum. That meanspirited practice results from the steely determination of a cadre of immigration law judges, who wield enormous power over life and limb, to deny claims for asylum and dispatch individuals back to face the tender mercies of their countries of origin. Appointed by the attorney general, these 300 judges across the country do so by erecting a virtually insurmountable barrier for an asylum claimant, such as Xue, who seeks to demonstrate the pivotal requirement of a “well-founded fear of persecution” based on religion. That’s the legal key that unlocks the door to freedom in the United States.
The facts in Ting Xue’s case are clear and undisputed. Xue grew up in a Christian family in China, was baptized at the age of 13, and was long active in an underground church in his community. As a young adult, in addition to Sunday worship services, Xue faithfully attended Friday evening fellowship gatherings, which moved from house to house in order to avoid detection. On one fateful Friday evening in 2007, however, police entered the venue du jour and arrested the attendees, who were peacefully reading the Bible, singing hymns, and enjoying Christian fellowship.
Xue was hauled to a local police station along with his fellow worshipers, interrogated by three officers, roughed up when he claimed not to know who the “leaders” of the underground church were, and then locked up in a windowless jail cell with four fellow believers for three days and four nights. The conditions were deplorable: one straw mattress for five prisoners, a single bucket for their toilet, and a bowl of porridge twice a day. The prisoners were mocked, particularly when they prayed together before their simple meals. Jailers taunted them with cries of “We are your God” and “Pray to your Jesus to rescue you.”
Before his release from police custody, Xue was forced to sign a pledge that he would never attend the underground church again. He was also warned that a second offense would carry a harsh punishment. For good measure, his jailers ordered him to show up at the police station weekly for ideological education. Xue signed the pledge but violated it two weeks later. He returned to the underground church but grudgingly abided by the command to appear for his weekly dose of Communist ideology: Love your country, work hard, and cease assembling in the name of Jesus.
Two months later, police again intruded into the Friday evening gathering of young adults, arrested everyone, and sent several of Xue’s colleagues to prison for one-year terms. Working overtime at his job on that Friday evening, Xue was spared, but his family determined that he needed to get away. With funds raised by his uncles, Xue left China and entered the United States illegally. He was soon apprehended by U.S. immigration authorities, whereupon he claimed the right to remain in the United States as a refugee fleeing religious persecution.
Under federal law, asylum claimants must establish a “well-founded fear of persecution” on grounds of religious or political belief and practice were they to be deported back to their country of origin. Responding to Xue’s undisputed portrayal of his own plight, an immigration law judge in Denver concluded that his story (which the judge fully credited) showed merely a restriction in his freedom, but that the conditions he likely faced upon return did not rise to the level of “persecution.” As the judge saw it, all Xue needed to do to avoid running afoul of the anti-faith zealots in China was to worship in secret.
This wildly wrongheaded decision was not only upheld by the Board of Immigration Appeals, likewise appointed by the attorney general, but by a unanimous three-judge panel of the federal appeals court sitting in Denver. As matters stand, Xue’s last hope is to get relief from the Supreme Court, which will consider his petition for review early this fall. Many faith-community organizations have rallied around Xue’s position as a matter of law and human decency.
For years, tragic situations like Xue’s have been replicated throughout America’s broken asylum adjudicatory system. Time and again, asylum claimants from around the world are told to go home. All they need to do, they are informed, is to hide their faith or their politics. Stop practicing and professing in any community or public setting, even in an underground church or political setting, and you’ll be fine. Just keep silent.
Time and again, federal judges have rejected this widespread bureaucratic approach to asylum claims. In a brilliant opinion a few years ago, Judge Richard Posner reminded immigration judges: “Christians living in the Roman Empire before Constantine made Christianity the empire’s official religion faced little risk of being thrown to the lions if they practiced their religion in secret; it doesn’t follow that Rome did not persecute Christians.” Posner went on to observe: “One aim of persecuting a religion is to drive its adherents underground in the hope that their beliefs will not infect the remaining population.”
Just so. China is pre-Constantine Rome, minus the lions. Persecution is widespread—and growing. As Sarah Cook demonstrates in her impressive new book The Battle for China’s Spirit, controls over religion in China have been on the rise since 2012, seeping into new areas of daily life. President Xi Jinping is at the vanguard of this new wave of official repression. He makes nice with President Trump at Mar-a-Lago, but party minions back home fully understand his anti-liberty, militantly secularist message about Christians. Here’s what Xi Jinping said in April 2016: “Communist party cadres must be unyielding Marxist atheists. We should guide and educate the religious circle and their followers.”
“Guidance and education” means prison for increasing numbers of believers in China and the courageous lawyers who represent them. Freedom House researchers have identified hundreds of cases of Chinese citizens sentenced to prison for exercising their basic freedoms guaranteed by the Universal Declaration of Human Rights. Former prisoners have detailed a shocking array of cruel “beatings, long-term shackling, electric baton shocks, and injection with unknown drugs.” That’s the China of Xi Jinping.
So what is to be done here at home? Xue’s fate now rests in the hands of the Supreme Court. The Court can and should bring clarity to the law, particularly the meaning of the all-important term “persecution,” a word that Congress left undefined. But more broadly, this evil manifestation of the “deep state” provides the still-new administration with an opportunity to bring about humane and sensible reform.
Start with the immigration law judges. Unlike federal judges, they are subject to the command and control of the attorney general. Ironically, the attorney general needs to take a page from the repressive Xi Jinpings and “guide and educate” the immigration judges, followed by the Board of Immigration Appeals. They all need retraining. And the Justice Department’s Civil Division needs to stop defending the indefensible. “Confessing error” in Ting Xue’s sad case would be a good start. The solicitor general should say, in the spirit of Fiorello La Guardia, “When we make a mistake, it’s a beaut.” More generally, President Trump should not allow his attorney general to punt on questions of asylum law, as his predecessors, both Democratic and Republican, allowed their attorneys general to do.
As Margaret Thatcher was wont to say: “Keep the best, reform the rest.” Reform of the administration of America’s asylum laws is long overdue. It’s a worthy and noble cause for Attorney General Jeff Sessions to pursue, and for the nation’s chief executive to embrace.
Ken Starr is a former U.S. solicitor general and federal circuit court judge.
