OPPOSITION TO CORRUPTION AS A POLITICAL OPINION SUPPORTING A GRANT OF ASYLUM: RUQIANG YU V. HOLDER AND ITS PREDECESSORS

Ruqiang Yu was initially denied asylum by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) despite their acceptance of his testimony that he had been mistreated after opposing corruption at the state-owned factory where he worked in China.  As the Court described the facts: 

The IJ found that Yu credibly testified that, while an employee and a team leader at a state-run airplane factory in Shanghai, his employer corruptly refused to pay the wages of workers on his team and that, when Yu’s efforts to aid the workers and to bring the corruption to the attention of government officials was discovered, he was jailed and later fired.

In considering whether opposition to corruption constitutes a political opinion, “[t]he important questions … are whether the applicant’s actions were ‘directed toward a governing institution, or only against individuals whose corruptionwas aberrational,’ ” and “whether the persecutor was attempting to suppress a challenge to the governing institution, as opposed to isolated, aberrational acts of greed or malfeasance.”

Since the passage of the REAL ID Act, a showing of retaliatory harm for exposing acts of corruption, coupled with evidence that the corruption is in some way linked to a political system, would appear insufficient to demonstrate that a victim’s anticorruption beliefs are “one central reason” for retaliation against him. Instead, an alien must persuade the trier of fact not just that the alleged persecutor was motivated in some measure by the alien’s actual or imputed political belief, but that the protected trait was “one central reason” for the persecution.

The BIA in Matter of N-M- described three factors that an IJ could use to determine whether actual or imputed political opinion was a central reason for retaliation against one who had expressed an anticorruption belief.  The first is “whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs”   such as whether the “alien denounced corruption in public or at work, published articles criticizing governmental corruption, or organized fellow victims of government extortion against this behavior.”  Matter of N-M-, 25 I&N Dec. at 532.  The second factor is “any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs,” such as “statements indicating that the persecutor viewed the alien as a political threat or subversive and was motivated as such.”  Id.  The third factor described by BIA in Matter of N-M-, citing the Second Circuit’s decision in Castro, looks to whether corruption was pervasive in an asylum applicant’s country:

An Immigration Judge should also consider evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials. Where the alien threatens to expose the corrupt acts of rogue officials acting without the support of the governing regime, it seems less likely that the act would be perceived as politically motivated or politically threatening. However, if corruption is entrenched in the ruling party, a challenge to the corrupt practices of this party may be more likely to represent a challenge to the political position of the ruling party, and not just the financial standing or reputation of a small group of corrupt officials. See Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010) . . . .  Whether the governing regime, and not just the corrupt individuals, retaliates against an alien for expressing anticorruption beliefs is relevant to this inquiry.

First, we note that the BIA’s factual conclusion that Yu opposed “aberrational” corruption is not supported by the record. Conduct is “aberrational” if it is “a deviation or departure from what is normal, usual, or expected” or something that is “abnormal, diverging from the norm.” Oxford English Dictionary (June 2012, online ed.) (defining “aberration”). Yu’s application indicated that “quite a few . . . workers in other groups did not get paid for a few months,” and that he personally escorted ten of them to confront factory officials. These facts indicate that the non-payment of wages was apparently recurring, not aberrational.

Second, the appropriate inquiry does not focus simply on the number of corrupt acts, but on an assessment of the overall climate and context in which the opposition takes place. Where opposition to corruption transcends self-protection and represents a challenge to state-sanctioned modes of official behavior, a petitioner may be eligible for asylum. . . .

The fact that the protests organized by Yu challenged corruption at a single workplace does not render the corruption categorically aberrational without regard to the nature of Yu’s conduct.  In several ways, Yu’s conduct is typical of political protest (and may have been perceived as such by the authorities). Thus, the record indicates that Yu had no personal, financial motive to oppose the corruption, undertook to vindicate the rights of numerous other persons as against an institution of the state (a state-owned factory), and suffered retaliation by an organ of the state – the police.

However, Ruqiang Yu teaches that at least within the Second Circuit (and perhaps elsewhere if the BIA or other Courts of Appeals accept the Second Circuit’s reasoning), some claims of asylum based on opposition to corruption may be viable even if evidence regarding country-wide corruption is for some reason unavailable.  In cases where reliable background evidence regarding the corruption in a particular country or region simply cannot be obtained despite vigorous efforts, applicants and attorneys need not despair.