Introduction

This article examines published Federal appellate court decisions from the United States Courts of Appeals for the First, Second, Third, Fourth, and Fifth Circuits on applications for asylum, withholding of removal, and former suspension of deportation based on “economic persecution.” This article is part of a series of articles that covers Board of Immigration Appeals (BIA) [see article] and Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits [see article] decisions on the same issue. Before starting reading this article or its companion articles, please see our introduction article to the series [see article]. The introduction provides background on the different governing standards for economic persecution claims and a general overview of the series. Furthermore, we recommend that you also consult our comprehensive article on the development of adjudicative standards for economic persecution claims since 1961 [see article].

Note on Structure of This Article

For each Federal circuit decision, we will specify the ground on which the claimed economic persecution was based, the country of nationality of the applicant, and the standard applied. Please see the relevant section of the introductory article to the series for an overview of the different governing standards [see section]. When reading, please bear in mind that each case is assessed on an individualized basis, and an outcome in a past case does not guarantee an outcome in a future case.

It is important to note that we are only covering a section of interesting and significant decisions on the subject. This article is by no means intended to be a comprehensive review of every relevant decision on the issue of economic persecution through economic deprivation from the First, Second, Third, Fourth, and Fifth Circuits.

United States Court of Appeals for the First Circuit

The First Circuit has jurisdiction over Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico.

Vanchurina v. Holder, 619 F.3d 95 (1st Cir. 2010) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Particular Social Group (Small Business Owner)
Country: Russia
Standard(s) Applied: Matter of T-Z-

Vanchuria claimed that in Russia she was subject to economic persecution through extortion because she was a small business owner. 619 F.3d at 99. The First Circuit affirmed the Board’s determination that police threats to plant narcotics and “weekly inspections” of her business were insufficient to establish economic persecution. Id. Although she sold her business and apartment to escape the threats, the First Circuit noted that she had not been coerced to do so and those making the threats had not wanted her to do so. Id. Furthermore, the First Circuit noted that she and her husband had built a “large house” in a “nice neighborhood.” Id. In any case, the First Circuit also found that she failed to establish her membership in a particular social group. Id. at 100.

Kadri v. Mukasey, 543 F.3d 16 (1st Cir. 2008) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Particular Social Group (Sexual Orientation)
Country: Indonesia
Standard(s) Applied: Remand to Board to apply Matter of T-Z-

Petitioner (Kadri) was a medical doctor. 543 F.3d at 26. He claimed economic persecution based on the fact that he could not earn a living as a medical doctor due to persecution on account of his sexual orientation. Id. The immigration judge rejected his claim based on the fact that he had not been physically injured, arrested, or imprisoned and because the claimed economic harms did not rise to persecution. Id. The BIA affirmed the decision. The First Circuit remanded because it could not ascertain which standard the immigration judge and Board used to evaluate the claim and instructed the Board to apply its then-new Matter of T-Z- decision. Id. The First Circuit stated that “[b]ased on his testimony and the evidence he submitted, Kadri may be able to sustain a claim for economic persecution.” Id.

Alexandrescu v. Mukasey, 537 F.3d 22 (1st Cir. 2008) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political
Country: Romania
Standard(s) Applied: Not specified

Petitioner (Alexandrescu) had been a military and then a commercial pilot. 537 F.3d at 24. He was forced to resign as a commercial pilot, by his account, because of his political views. Id. After being unable to find work as a pilot, he worked for an opposition newspaper and in several other odd jobs. Id. The First Circuit found that he had not alleged conduct that was severe enough to constitute economic persecution. Id. at 25. Specifically, the First Circuit stated that, although he lost his job as a pilot, he did not lose his ability to make a living. Id.

United States Court of Appeals for the Second Circuit

The Second Circuit has jurisdiction over Connecticut, New York, and Vermont. It is worth noting that Westlaw reports that, as of December 6, 2017, there have been 172 direct citations to Matter of T-Z- by Federal appellate courts. Of these, 113 are credited to the Second Circuit. However, only five of the 113 Second Circuit decisions were selected for publication as precedent.

Huo Qiang Chen v. Holder, 773 F.3d 396 (2d Cir. 2014) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Forced Sterilization)
Country: China
Standard(s) Applied: Matter of T-Z-

Petitioner (Chen) was punished because he and his wife violated China’s population control program. 773 F.3d at 401. The Chinese government sterilized Chen’s wife and issued substantial fines against the family, which he had paid, in part, from his income as a sharecropper and by taking out loans from his sister. Id. He fled his village after being confronted by Chinese authorities, and he paid a smuggler (more than his outstanding fine amount) and escaped to the United States. After he fled, the Chinese Government terminated his family’s right to farm its assigned plot of land, leaving his wife unemployed. Id.

The Second Circuit agreed with the Board’s conclusion that Chen had not been subjected to economic persecution in the past because he failed to demonstrate that the payment of the fine constituted a substantial disadvantage to him. Id. at 407. It noted that here was no precedent for finding that threats by themselves can constitute past persecution. Id. at 406.

However, the Second Circuit vacated the Board’s decision, rejecting its finding that that the record was insufficient to establish that Chen had a well-founded fear of persecution. The Second Circuit did not believe that the record established, for the reasons given by the Board, that Chen would be able to repay the substantial outstanding amount of his fine “without being impoverished or deprived of life’s necessities.” Id. at 409. It noted Chen’s meager income and that he had had to procure loans to pay even a small portion of the fine and to reach the United States and that there was no guarantee that Chen would be able to secure additional loans to pay the remainder of the fine. Id. at 408-09. Accordingly, the Second Circuit remanded to the Board for further consideration of Chen’s claims of fear of future persecution.

Xiu Fen Xia v. Mukasey, 510 F.3d 162 (2d Cir. 2007) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Forced Abortion)
Country: China
Standard(s) Applied: Matter of T-Z- (but note that Board had rendered a decision in the case prior to issuance of Matter of T-Z-)

Petitioner (Xia) was forced to use an IUD and to pay a fine after having a child when her marriage had not been registered. 510 F.3d at 164. In addition, Xia was required to report for three “checkups” annually to ensure that her IUD remained in place and that she was not pregnant. Id. After becoming pregnant again, Xia aborted her pregnancy at a private hospital prior to her mandated checkup in fear of the ramifications if the government had discovered that she had become pregnant again. Id. The Second Circuit agreed with the BIA’s conclusion that Xia’s abortion had not been “forced” because the Chinese government had been unaware that she was pregnant, and it further agreed with the finding that her claimed economic harms were speculative. Id. at 166-67. The Second Circuit noted that Xia had not presented evidence on the nature of the fine that she feared or her ability to pay such a fine. Id. at 167.

Guan Shan Liao v. U.S. Dept. of Justice, 293 F.3d 61 (2d Cir. 2002) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Resistance to coercive population control program)
Country: China
Standard(s) Applied: Kovac

The Second Circuit rejected petitioner’s claim based on resistance to a coercive population control program based on the lack of “testimony or other evidence … regarding petitioner’s income in China, his net worth at the time of the fines, or any other facts that would make it possible … to evaluate his personal financial circumstances in relation to the fines.” 293 F.3d at 70.

Cheng Kai Fu v. Immigration and Naturalization Service, 386 F.2d 750 (2d Cir. 1967) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion
Country: National of Republic of China (Taiwan). Petitioner initially ordered removed to Republic of Republic of China, but Republic of China refused to issue a travel permit. Petitioner then ordered removed to Hong Kong, which was then part of the United Kingdom. Sought relief from removal to Hong Kong.
Standard(s) Applied: Not specified

Petitioner claimed that he would face economic persecution in Hong Kong as an anti-Communist when the Chinese government assumed control. 386 F.3d at 753. The Second Circuit rejected this claim, finding, based on the evidence, that the “economic difficulties they claim they will face will be shared by many others.” Id. The Second Circuit also rejected the contention that Hong Kong would imminently fall from British control to Chinese communist control as “too speculative to be the basis of deportation proceedings.” Id. Based on the failure to show a likelihood of persecution, the Second Circuit did not address the claim that the government had failed to articulate standards for adjudicating applications for relief under former section 243(h).

United States Court of Appeals for the Third Circuit

The Third Circuit has jurisdiction over Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.

Fei Yan Zhu v. Attorney General of the U.S., 744 F.3d 268 (3d Cir. 2014) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Forced Sterilization and Resistance to Population Control Program)
Country: China
Standard(s) Applied: Matter of T-Z-

Petitioner, who had three children while living in the United States, sought asylum due to a fear of persecution were she to return to China. Among her claims, she claimed that she would face economic harm were she to be returned to China. 744 F.3d at 278. The Third Circuit agreed with the BIA’s decision finding that petitioner did not sustain her burden of proof, noting that she had not submitted information regarding her current economic situation. Id. at 278 n.17.

Fei Mei Cheng v. Attorney General of U.S., 623 F.3d 175 (3d Cir. 2010) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Other Resistance to Coercive Population Control Program)
Country: China
Standard(s) Applied: Matter of T-Z-

Petitioner (Cheng) defied Chinese officials who demanded that she abort her second child and gave birth. 623 F.3d at 179. The Chinese government punished Cheng and her family in a variety of ways, including the seizure of her family’s farm and truck, forbidding the family to work the farm, ordering her and her husband to be sterilized, detaining them for resisting sterilization, forcing her to submit to the insertion of an IUD, forcing her to undergo three “checkups” a year to check her IUD and ensure that she was not pregnant, and forcing her to pay double the normal amount to send her second daughter to daycare. Id. at 179-80.

The Third Circuit rejected the BIA’s finding that Cheng had not been subjected to economic persecution. The court focused on the seizure of her family’s farm and truck in finding that Cheng had provided credible testimony of “the devastating impact that such deprivation had upon her and her family…” Id. at 194. The Third Circuit further found that these sanctions were not “modest fines,” as the BIA had concluded, but rather the “wholesale seizure of assets” that deprived the family of its exclusive source of livelihood. Id. at 195.

Li v. Attorney General of the U.S., 400 F.3d 157 (3d Cir. 2005) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Resistance to Coercive Population Control Program)
Country: China
Standard(s) Applied: Matter of Acosta; Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) [PDF version] (stipulated general standards for “persecution” but was not itself an “economic persecution” case)

Petitioner (Li) claimed that he had been persecuted for his defiance of China’s population control policies. He argued that he and his wife had been threatened with a fine equivalent to twenty months’ salary, had suffered the loss of their jobs (including health insurance, food rations, and school payments), had been effectively blacklisted from government employment, and had their furniture and household appliances confiscated. 400 F.3d at 157.

The Third Circuit reviewed the BIA’s decision to deny Li’s application under the substantial evidence standard and determined that the BIA had erred. Id. at 168. The Third Circuit found that, in the aggregate, the penalties imposed on Li, including an onerous fine, blacklisting from any government employment or most other forms of legitimate employment, loss of health benefits, loss of school tuition, loss of food rations, and confiscation of household furniture and appliances constituted the “imposition of severe economic disadvantage” on Li and his family in light of their financial situation. Id. 169. It noted that, although Li had been able to find work in “temporary, unofficial jobs,” he had testified that he had been effectively living “on the run” and that his wife had lost her job as a nurse. Id. at 168.

Ahmed v. Ashcroft, 341 F.3d 214 (3d Cir. 2003) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Particular Social Group
Country: Saudi Arabia
Standard(s) Applied: None Specified

Petitioner was a stateless Palestinian born in Saudi Arabia. He sought asylum in part on the basis that he was subjected to economic persecution as a Palestinian in Saudi Arabia. To support his claim, he noted, among other things, that foreigners must be sponsored by a Saudi citizen to work, that it took him a year after graduating from university to find work as a car mechanic, and that he was paid less than his Saudi counterparts and had to work longer hours. 341 F.3d at 216. The Third Circuit found that the economic disadvantages Ahemd was subjected to were “not so severe as to constitute a threat to life or freedom amounting to persecution.” Id. at 218. It noted that he was one of the few Palestinians in Saudi Arabia to have graduated from King Saud University. Id. It also found relevant that he had obtained employment. Id. The Third Circuit noted that his brother-in-law was a Saudi citizen who could help him find work. Id.

Dunat v. Hurney, 297 F.2d 744 (3d Cir. 1961) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Religion
Country: The former Yugoslavia
Standard(s) Applied: New standard developed in Dunat

Dunat was decided when aliens had the burden of proving “physical persecution” in order to establish eligibility for relief. Although it has since been recognized as having been superseded by statute in Li, Dunat remains interesting because the Third Circuit found that the petitioner met the highest of the most commonly used economic persecution standards.

Petitioner (Dunat) was a native and citizen of Yugoslavia who sought withholding of deportation on the basis that the communist government of Yugoslavia would persecute him as a practicing Roman Catholic. He argued that he would be “physically persecuted” through the denial of an opportunity to earn a livelihood. 297 F.3d at 744. Dunat testified that a practicing Roman Catholic in Yugoslavia could not farm his or her own farm or obtain government employment. Id. at 746 n.2. He explained that he had had to stop attending church in order to find work to support his wife and children, who themselves were barred from working due to being practicing Catholics. Id.

The Third Circuit found that Dunat had established that the net effect of the sanctions imposed on him in Yugoslavia would amount to physical persecution on account of his Catholic faith. Id. at 746. It took the position that denial of an opportunity to earn a livelihood in Yugoslavia would be “the equivalent of a sentence to death by means of slow starvation…” Id.

United States Court of Appeals for the Fourth Circuit

The Fourth Circuit has jurisdiction over Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion
Country: Zimbabwe
Standard(s) Applied: Matter of T-Z-

Petitioner (Mirisawo) had not been personally persecuted in Zimbabwe. However, her brother, sister, and daughter were all members of the main opposition political party. 599 F.3d at 394. In 2002, her brother was beaten for being an active member of the opposition party. Id. As a result of this event, Mirisawo, who had been working in the United States as a G5 visa, stayed with her sister when she visited Zimbabwe to avoid being associated with her brother. Id. During this time, she purchased a house for her brother and her children. Id. In 2005, when Mirisawo was again working in the United States, the government destroyed three rooms of her four room house for the purported purpose of cleaning out slums. Id. However, the Fourth Circuit explained that it was “widely believed” that the operation was intended to destroy homes in areas where many people voted for the opposition party in the previous election. Id.

Mirisawo’s claimed past economic persecution based on imputed political opinion through the destruction of most of the house she had bought. The Fourth Circuit concluded that she failed to prove that the destruction of her house “was a deliberate and severe deprivation of a basic necessity of life…” Id. at 397. The Court noted that she had never lived in the house, and at the time it was destroyer, it did not affect her ability to earn a living as a housekeeper in the United States. Id. Furthermore, it found that she was likely to find similar work if she returned to Zimbabwe. Id. It added that, while the destruction of the house “resulted in investment loss,” she did not rely on that investment for current or future income. Id. at 398. Her claims of future persecution based on the fear that the political opinions of her family would be imputed to her were rejected because her family members had not faced persecution since her brother, who continued to live in Zimbabwe without further incident, was beaten in 2002. Id.

Li v. Gonzales, 405 F.3d 171 (4th Cir. 2005) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Resistance to coercive population control program)
Country: China
Standard(s) Applied: Unclear: cited to INS v. Stevic, 467 U.S. 407 [PDF version], which referenced both Dunat and Kovac

Petitioner (Li) became pregnant without a valid marriage certificate. 405 F.3d at 174. She fled with her husband into the mountains to have the child out of fear that the government would try to force her to have an abortion. Id. For the unauthorized birth, she was fined more than she and her husband would earn in an entire year. Id. She was also forced to submit to an IUD insertion against her will. Id.

The Fourth Circuit determined that while the fine was “harsh” (approximately $1,300 USD), it was not “so large as to compel a finding that it threatens Li’s life or freedom.” Id. at 178. The Court added that evidence in the record indicated that the Chinese government would allow Li and her husband to repay the fine over a period of 12-13 years. The Fourth Circuit added that she had voluntarily incurred $60,000 in debt to be smuggled out of China, Id., which the court viewed as buttressing its conclusion that the far smaller $1,300 fine did not threaten Li’s life or freedom.

United States Court of Appeals for the Fifth Circuit

The Fifth Circuit has jurisdiction over Louisiana, Mississippi, and Texas.

Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Forced Abortion)
Country: China
Standard(s) Applied: Matter of T-Z-

Petitioner (Zhu) became pregnant outside of marriage in 1994. 493 F.3d at 591. She feared that if the government discovered the pregnancy, she would be forced to have an abortion. Id. She also testified that children born to unmarried women in China are not recognized as citizens, denied admission to school, and refused medical treatment. Id. She obtained an abortion without the government discovering the pregnancy. Id. In 1997, she became pregnant again, and this time entered the United States on a tourist visa, where she gave birth. She feared that had she remained in China she would have faced the possibility of imprisonment, fines, unemployment, abortion, and sterilization. Id.

Following Matter of T-Z-, the Fifth Circuit held that her abortion had been “forced” because “a reasonable person in Zhu’s position would objectively find [the] potential harms to be very real and genuine.” Id. at 598. It added, “in the face of the negative legal, social, and economic ramifications of the pregnancy … the additional fact that Zhu’s boyfriend may have wanted her to have an abortion does not keep the abortion from having been compelled by the government.” Id. at 599. It is worth noting that Zhu was granted withholding of removal.

Youssefinia v. INS, 784 F.2d 1254 (5th Cir. 1986) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion
Country: Iran
Standard(s) Applied: Not specified, but cited to “total withdrawal of economic opportunity”

Petitioner (Youssefinia) was in the United States on a student visa when the Iranian Revolution took place. Youssefinia, along with several family members, were members of the political party of the former Shah. 784 F.2d at 1253. After the revolution, his uncle and sister were arrested and quickly released, but they were fired from their jobs. Id. at 1257. His father was jailed for three months and deprived of most of his rights for three years after release. A warrant had also been obtained for Youssefinia’s arrest. Id. Youssefinia claimed that he would be unable to support his family and that his assets might be confiscated if he was deported to Iran. Id.

The Fifth Circuit found that Youssefinia was not eligible for asylum based on economic deprivation because he did not sustain a burden of proof for showing a “total withdrawal of all economic opportunity.” Id. at 1261. It noted that Youssefinia’s brothers had obtained employment and were able to support the family. Id. The Court also determined that the immigration judge did not err in determining that Youssefinia’s circumstances would likely be more similar to those of his brothers than those of his father. It added that “economic detriment due to a change in political fortune is alone insufficient to establish a well-founded fear of persecution.” Id.

Conclusion

The sixteen cases covered in this article provide an interesting look at how a variety of economic persecution claims have been evaluated in five Federal appellate courts. Li v. Attorney General of the U.S., 400 F.3d 157 (3d Cir. 2005) is worth singling out as a particularly influential decision both because the Board cited favorably to it in Matter of T-Z- and because it has been cited to for its economic deprivation as persecution analysis by various other circuits. Huo Qiang Chen v. Holder, 773 F.3d 396 (2d Cir. 2014) provides one of the most detailed discussions of the standard set forth in Matter of T-Z-.

An alien who is considering seeking relief in the form of asylum and/or withholding of removal should always consult with an experienced immigration attorney. To learn more about asylum, please see our full selection of articles [see category]. Please also see our introductory article to statutory withholding of removal [see article].