Mr. Song's tale is harrowing: His property targeted for redevelopment. Offered compensation, but he believed that local regulations required payment of at least 45% more. When he attempted to negotiate, local officials said no deal. So he organized a protest at which he and his neighbors held signs that said things like “opposed to forced demolition.” They also "chanted slogans like 'give me my fair compensation,' 'please do what is just,' and 'return to me what is mine.'"
For his troubles, he eventually was arrested, charged with "interfering with official duties." (This tale, as you may have already deduced, takes place in the People's Republic of China.)
During the three days Song was jailed, police tortured and beat him, and encouraged his cell mates to do the same. Song was forced to spend an entire night in a squatting position. The police also interrogated him about his alleged crime. When asked why he had gathered the crowd of protestors, Song maintained that the compensation the government had offered was not fair and was inconsistent with government regulation.
When Mr. Song did not knuckle under, "police beat him with a baton and electric baton until he passed out. Song suffered multiple injuries from the beatings, to the point that he was unable to walk." His family eventually bailed him out. He came to the United States on a visitor visa and sought asylum.
The Ninth Circuit's opinion in Song v. Sessions, No. 14-71113 (Feb. 15, 2018) dealt with whether Mr. Song's actions fleeing his homeland were because he was being persecuted for his political views, or whether they were "motivated by a desire for increased compensation for his property," as the Board of Immigration Appeals concluded. The court noted that everyone agreed Mr. Song had been persecuted. But under federal law, a claim for asylum must be based on a person's actual or imputed political opinions.
The court first concluded that it didn't matter what Mr. Song's actual motivations here were, because it was enough that the local officials who persecuted him attributed a political opinion to him:
From the government’s perspective, Song was the leader of a large group of local residents protesting the government’s eminent domain policy. Song organized over one hundred people to block the entrance of a government building. He identified himself as a leader of the protest and told a government employee that the protestors were there specifically because they were subject to the government’s eminent domain policy. He refused to disperse the crowd until the residents’ concerns about the forced demolition of their building were heard. The Chinese government was familiar with such protests; the 2010 Human Rights Report confirms that forced relocation protests were “common” and that there was “widespread” animosity toward forced demolitions. It was in this context that government officials approached Song.
Slip op. at 10. The officials had acknowledged this when they accused Mr. Song "of holding anti-government views in response to Song’s assertion that the compensation he was offered was not consistent with government regulation." Slip op. at 11.
The court concluded that this was an actual or imputed political opinion: "[a]ccordingly, we find that the record compels the conclusion that the government imputed an anti-eminent domain opinion to Song, and persecuted him for that opinion.being 'anti-government.'" Slip op. at 12. Political opinions are not just beliefs about electoral politics or formal ideology or action, but includes claims for more compensation when property is being expropriated, and the natural actions which flow from that:
The record makes clear that Song not only sought additional compensation for himself, but also staged a public protest of more than one hundred neighbors and a sit-in refusal to vacate his building, accompanied by a statement that he would die for the cause, in opposition to the demolition. The IJ and BIA narrowly focused on Song’s “desire for increased compensation for his property” without taking into account the full spectrum of Song’s actions.
Slip op. at 12.
Denial of asylum vacated, case sent back for consideration of whether Mr. Song met the other elements of the claim.
This case highlights two points. First, property rights are civil rights, and standing up for your property rights is a political stance. Think about that any time you hear people criticizing those who object to the taking of their property by accusing them of merely trying to leverage more compensation. There is often a lot more going on in these cases than just merely money. This apparently wasn't Mr. Song's home, it was a "building in which Song had owned a commercial unit since 1997." Slip op. at 4. But the climate in which he operated was charged:
Forced demolition was the leading cause of social unrest and public discontent in China in 2010. Affected residents often were not paid market value for their property, and sometimes received even less compensation than the government initially promised. Nearly 70% of respondents in one study reported that they had encountered problems with demolition and relocation, either relating to compensation or forced eviction. Government officials frequently colluded with property developers to pay those subjected to forced eviction as little as possible. Yet few legal remedies were available to displaced residents, local officials sometimes retaliated against those who tried to protest.
Slip op. at 4-5 (footnote omitted). We suspect that the deprivation of his dignity, and not money, was his biggest beef.
Second, even though the PRC has made some gains in the property rights arena (as we noted in a series of posts during and after the 2011 Brigham-Kanner Property Rights Conference held in Beijing, such as this post, this post, and this post), the idea of "property rights" in a officially socialist country remains anathema. It may claim to support property rights and private ownership, but the reality seems far different. As the above quote from the opinion notes, this stuff is the source of hundreds if not thousands of similar protests each year, most of which go unreported and never make even the back pages of western media. But if the plot line of "Wolf Warrior 2," China's biggest moneymaking movie of all time -- in which the Rambo-ish main character is drummed out of the People's Liberation Army because he supported a village objecting to eminent domain -- can be driven by this issue, you know this is a much bigger thing than we realize.
Song v. Sessions, No. 14-71113 (9th Cir. Feb. 15, 2018)
