Persecution Complex: 3rd Circuit Finds Village Head’s Threat of Marriage or Incarceration Was Not Persecution

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Substantial evidence supports the BIA’s decision. While Zhang contends that she was persecuted when the village chief attempted to coerce her into marrying his son, and that she suffered this persecution on account of her membership in a particular social group, the alleged wrongs here do not rise to the level of persecution. Li Rong Zhang v. Attorney General of U.S., 2012 WL 3715337 (3rd Cir. 2012).

As someone who is not anything close to an expert in asylum law, I can’t say that I agree with the Third Circuit’s conclusion.

In Zhang, Li Rong Zhang petitioned for review of an order of the Board of Immigration Appeals affirming an Immigration Judge’s order removing her to the People’s Republic of China. Zhang claimed that the head of her village had threatened to put her in jail if she did not marry his son. The Immigration Judge, however, found that

[B]ased on the testimony of the respondent[,] [e]ven if one were to find her testimony credible, the Court would find that she has not suffered past persecution. She was not forced into a marriage. She was not detained. [A] [m]arriage proposal, even by someone you detest, does not rise to the level of persecution. Respondent’s family was not involved in this threat….This was strictly, if you were to believe the respondent, the village head making proposals to her on behalf of his son. And even though he was a powerful individual, according to the respondent, the Court finds the proposals do not rise to the level of persecution. Respondent’s testimony regarding being taken away from her home and being threatened with detention is unsupported by any credible evidence and again, the respondent was able to escape and live with a relative undetected.

With respect to future persecution, the respondent has been away from China for more than two years. It is inconceivable that the village head is still looking for her to marry his son. The respondent certainly could not have been the only single woman in the village. There is no evidence that the village head remains interested in having the respondent as a daughter-in-law. Th[e] statement that she would be forced to marry the son of the village head, were she to return to China, is purely speculative.

The Board of Immigration Appeals thereafter dismissed Zhang’s appeal, finding that “[f]or all the reasons noted by the [IJ], we agree that [Zhang] failed to carry her burden of establishing that she has suffered past persecution or has a well-founded fear of future persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion.”

As noted in the block quote that led this post, the Third Circuit subsequently denied Zhang’s petition for review. So, why did the Third Circuit find that what Zhang faced and would face was not persecution? According to the court,

Persecution is defined as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). Persecution “does not encompass all treatment our society regards as unfair, unjust or even unlawful or unconstitutional.” Id.

Here, Zhang was not forced into marriage. She received two allegedly coercive marriage proposals and was threatened with detention. But she was not forced to marry Li’s son against her will, she was not detained, and she was able to escape the perceived threat and reside with her aunt in another part of China without being detected. As for Zhang’s claimed fear of future persecution, we agree with the IJ that, without substantial further evidence, “[i]t is inconceivable that the village head is still looking for her to marry his son” several years later. Without evidence showing a reasonable likelihood that Zhang experienced past persecution or has a well-founded fear of future persecution,…we agree with the IJ and BIA that she has failed to demonstrate that she qualifies for asylum.

Meanwhile, Judge Aldisert dissented, finding that a remand was appropriate so that

a number of legal questions of first impression, including: (1) whether the experience of forced marriage is “immutable”; (2) whether the ability to choose one’s spouse is so fundamental to human conscience and dignity that one should not be deprived of that experience by a forced marriage; and (3) whether Zhang may even maintain a past persecution claim on this ground as someone who has never actually been “forced into marriage” at—all indeed, she fled before she wed.

Again, I’m no expert in asylum law, so I have no answers to these questions, but I sure wish that the case would have been remanded to the BIA so that they could provide some answers.

I will say, though, that I’m quite confused by the majority’s contention that Zhang could not have feared future persecution because “‘[i]t is inconceivable that the village head is still looking for her to marry his son’ several years later.” I have no idea whether this conclusion is factually accurate, but what I do know is that, if Zhang is to be believed, the head of her village threatened to jail her if she did not marry his son. Yes, Zhang escaped from this coerced marriage by fleeing her village, but what type of reception should she expect when she returns home? I would think that the man that threatened her with incarceration if he didn’t marry his son might make good on that promise. I’m reminded of the statement of Secretary State Madeleine Albright in the wake of embassy bombings in Kenya and Tanzania: “Our memory is long, our reach is far.”

-Colin Miller

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