Chinese Immigrant Seeks Asylum From Persecution

By Romilda Perfidio



Jian Lian Guo, a Chinese native living in Manhattan, escaped her country on January 3, 2000, for fear of religious persecution when she converted to Christianity. The Immigration and Naturalization Service (INS) charged her with removability shortly after her non-valid entry to the United States. After 9/11, the INS’s functions were transferred to the Department of Homeland Security within the U.S. Department of Justice.

Guo requested asylum but was denied by an Immigration Judge. The judge concluded Guo’s story was not reliable based on credibility. She claimed she was teaching Sunday school and was discovered by government officials but eluded them and fled the country, according to the third circuit appeals opinion docket. She tried to appeal her case on October 29, 2002, but the Board of Immigration also denied the appeal.

During the appeal process Guo married and bore a son. She issued a motion to reopen her case on January 21, 2003, claiming “intervening developments,” according to the docket. China has a family planning policy that allows for one child per family. By now, Guo was pregnant with her second child. She feared returning to China would subject her to the country’s sterilization policy and/or penalties for having more than one child. Guo’s motion to reopen was denied on January 16, 2003, stating she failed to establish a “well- rounded fear,” according to the third circuit court of appeals opinion docket.

The Immigration and Naturalization Act states, an individual qualifies for asylum if he/she is “unable” or “unwilling” to return to their country because of “persecution or a well- rounded fear on account of race, religion, nationality, membership in a particular social group, or political opinion.” The burden of proof lies with the applicant to show eligibility based on facts and credible testimony. Gou must show a well-rounded fear based on three facts. She has a fear of persecution if she returns to her native land, there is a possibility she will be persecuted upon return to her country and lastly, she is unwilling to return as a result of her fear.

Gou brought her case to the United States Court of Appeals for the Third Circuit on October 25, 2004. Joshua Barvaid, Esquire and Theodore Cox, Esquire of the Theodore Cox Law Firm in New York were the lead attorneys on the case. The Department of Justice Civil Division, Office of Immigration, represented the respondents.

Cox, who deals mainly with Immigration cases and who has owned his own law firm for 11 years, said this was a “difficult appeal” in a telephone interview. He filed a motion to reopen Gou’s case based on two arguments: “primae facie” – if the case was reopened she would be eligible for asylum, and second, the Board erred in the “credibility determination,” according to Cox.

Cox was successful in his appeal to the Supreme Court and the motion to reopen Gou’s case was granted. He confirmed if Gou was sent back to China there was a “reasonable possibility she would be sterilized.”

Once the motion is granted it takes about a year for the case to go from the circuit courts back to the Immigration Courts, according to Cox. However he is confident and “expects good results” from the Immigration courts.

Immigration officials could not be reached for comments on the decision or future court case.

This is not the first “big case” the Cox Law firm has argued and won. Last February they argued a case of religious persecution of a Chinese citizen in the second court of appeals and won. The court ruled the State Department’s human rights analysis “may not give the most accurate picture,” according to an article by Law.com.