Estimated reading time: 9 minute(s)
(Note: Updated the title of this post on January 21, 2022 in order to better represent the content of the article. Also added PDF embed of decision from the EOIR archives. Link to new article on decision added on January 22, 2022. Edited introduction to remove dead links and add relevant back-links. The article beyond the introduction is otherwise unchanged from its initial publication in June 2020.)
Today, Hong Kong is in the news because the communist government of the People’s Republic of China is moving to vitiate the last vestiges of Hong Kong’s already limited autonomy. In response, the United States Department of State has recognized that Hong Kong no longer has a significant degree of autonomy and Taiwan while the United Kingdom are preparing for a resulting surge in asylum applications from Hong Kong.
But here, I do not write to go into detail on the current crisis in Hong Kong, the response of our Government or other Governments, or to again criticize American corporations for kowtowing to the Chinese Communist Party. Instead, I will examine an old and entirely forgotten immigration precedent decision regarding a 1967 claim for relief by a resident of Hong Kong – the Matter of Man, 12 I&N Dec. 305 (BIA 1967).
A Note on Immigration Administrative Precedent Decisions
Matter of Man, decided on July 21, 1967,is an administrative precedent decision under the immigration and nationality laws. I explained the concept of an administrative immigration precedent decision in a section of my article on the Matter of Great Wall, 16 I&N Dec. 158 (Acting R.C. 1976). Rather than repeat the explanation in its entirety, I will refer you to the section of my earlier post for that explanation.
Matter of Man differs from Matter of Great Wall in that it was decided by the Board of Immigration Appeals, “the highest administrative for interpreting and applying immigration laws.” Matter of Great Wall, which concerned a visa petition rather than removal proceedings, was decided by a regional commissioner for the former Immigration and Naturalization Service.
The Board generally hears appeals stemming from proceedings in immigration courts. Although the Board of Immigration Appeals functions like a court, it is, and also was at the time Matter of Man was decided, part of the United States Department of Justice with delegated authority from the United States Attorney General, and not an actual court. Now-Supreme Court Justice Neil Gorsuch described the Board as a “quasi-judicial tribunal” in a precedent decision from his tenure as a judge on the United States Court of Appeals for the Tenth Circuit. De Niz Robles v. Lynch, 803 F.3d 1165, 1171 (10th Cir. 2015). Board decisions may generally be appealed to Federal circuit courts and are subject to administrative review by the Attorney General.
What are the Facts of Matter of Man?
Below, in several sections, I will walk readers through the Matter of Man decision. Those who are interested may follow along with the decision itself – which numbers only three pages. (Update: Decision PDF embedded on January 21, 2022.)
Basic Information About the Alien Respondent
Matter of Man concerned the deportation proceedings of a 55-year old married male alien. He was born in Hong Kong. Although Hong Kong remained a colony of the British Empire, the Board noted that the respondent was a native and citizen of the Republic of China, which by 1967 was situated in Formosa (Taiwan) rather than on mainland China.
The respondent entered the United States without permission in 1963 after he had been denied permission to land as an alien crewman. He remained the United States subsequent to his unlawful entry.
The respondent was placed in deportation proceedings on the basis of his being present in the United States without legal authorization. (Deportation proceedings were later replaced by today’s removal proceedings.) He conceded that he was deportable as charged. The special inquiry officer (that role is undertaken by immigration judges today) who adjudicated his deportation proceedings granted the respondent voluntary departure – that is, a period of time in which he could leave the United States of his own volition.
The respondent failed to voluntarily depart. Based on this failure, the former Immigration and Naturalization Service issued a warrant of deportation for the respondent. The respondent sought two stays of deportation, but both stays were denied.
Application for Withholding of Deportation
The respondent then sought to reopen his deportation proceedings so that he could seek a form of relief available only in ongoing proceedings. Specifically, the respondent sought reopening to apply for a form of relief called “withholding of deportation” under former section 243(h) of the Immigration and Nationality Act. (Under today’s laws, withholding of deportation has been supplanted by various forms of relief including asylum, withholding of removal, and protection under the Convention Against Torture.)
In order to establish eligibility for withholding of deportation, the respondent had to show that he would be persecuted if he were to be deported to Hong Kong. Furthermore, the respondent had to show that this persecution would be on the basis of his race, religion, or political opinion. (Under contemporary asylum law, aliens may also appeal to persecution on the basis of nationality or membership in a particular social group.) The respondent bore the legal burden of proof for establishing eligibility for withholding of deportation. The special inquiry officer concluded that the respondent presented no substantive evidence that he would be persecuted in Hong Kong on the basis of a protected ground. For this reason, the special inquiry officer denied the respondent’s motion to reopen proceedings.
Having otherwise exhausted his options for resisting deportation, the respondent appealed to the Board of Immigration Appeals.
The BIA is Unpersuaded by the Respondent’s “Strange Admixture of Contentions”
The Board reviewed all of the earlier proceedings in Matter of Man, noting that the respondent had submitted newspaper clippings to support his claim. Suffice it to say, the Board was unimpressed by the respondent’s presentation.
“Respondent has come forth with a strange admixture of contentions,” the Board began. One need not be a lawyer to surmise that an appellate body’s describing your claims as “a strange admixture of contentions” is not an auspicious harbinger of things to come. The Board went forth to divide the respondent’s claims and assess each in turn.
Claim 1: Fear of Persecution by the British Government
The respondent’s first claim was that were he to be deported to Hong Kong, he would be subjected to economic persecution by the British Government. That is, the British Government would make it impossible for him to earn a living and provide basic support for himself and his family. To support his claim, the respondent appealed to the “common knowledge” that the British Government would harass an individual such as himself in Hong Kong.
The Board was unconvinced: “We do not agree that this is a matter of common knowledge…” The Board continued, taking the view that the respondent “has not come forth with one item of evidence that he would be persecuted.” It noted that the respondent did not allege that he or anyone in his family had “ever been harassed, arrested, threatened or molested by the authorities and does not give any reasons why such persecution would now take place if he returned to Hong Kong.”
Claim 2: Fear of Persecution by the Communist Chinese Government if it Were to Take Over Hong Kong
The respondent’s second claim was that the Red Chinese Government on mainland China might take over control of Hong Kong from the British. He suggested that were that to occur, he would be subjected to persecution by the Chinese Communist Party. The respondent again endeavored to support his claim by appealing to “common knowledge” – submitting newspaper clippings detailing violent riots in Hong Kong against its British Government that had been sponsored and encouraged by the Communist government in mainland China.
While granting that mainland China was encouraging riots in Hong Kong, the Board found that the respondent’s suggestion that this would result in the Communists wresting control of Hong Kong from the British was “speculative and conjectural.” The Board noted that contemporary reports suggested that the Hong Kong police and British army had brought the attempts at insurrection under control.
The Board wrote: “The possibility that at some future time there might be a change in the government of a country is a much too tenuous basis to support a present withholding of deportation to that country.” That is, the respondent would have needed to show that he would actually be persecuted if he were deported to Hong Kong, not that he might hypothetically be persecuted were a foreign power to take over Hong Kong. The Board quoted from an earlier precedent decision holding something to the same effect: “Such future possibilities are not amenable to proof and consequently their determination is not amenable to the adjudicative process.” Matter of Vardjan, 10 I&N Dec. 567, 579 (BIA 1964).
Additional Reasons for the BIA’s Skepticism Related to the Respondent’s Pending Visa Petition
The Board noted that the respondent had submitted a photocopy of his immigrant visa petition to obtain lawful permanent resident status under the former employment-based sixth preference category. The Board explained that, were the petition to be approved, the respondent would have then been required to travel to Hong Kong to apply to the American Consulate for his immigrant visa. (An immigrant visa may be granted on the basis of an approved petition in a separate application.) It reasoned: “Thus, in one breath respondent pleads that he not be deported to Hong Kong for fear of persecution and in the next breath he states he plans to voluntarily travel there to obtain a visa.”
Board Dismisses the Appeal
Unsurprisingly, the Board dismissed the respondent’s appeal and ordered “that respondent be deported forthwith.”
My Thoughts on the Decision in Matter of Man
I discovered Matter of Man when I was doing a comprehensive research project on applications for relief based on fear of economic persecution. As far as I could find in my research, Matter of Man has no subsequent citation history in the five-plus decades since its publication.
While some immigration precedents such as Matter of Great Wall end up being heavily cited to in other cases and decisions, others like Matter of Man are published and just as soon forgotten. Matter of Man technically remains binding on all immigration adjudicators, but it is unclear whether it has crossed the mind of a single adjudicator since it was published.
It is not entirely clear why Matter of Man was published at all. It certainly was not a close case – even the most generous adjudicator would have had to find that the respondent’s appeals to “common knowledge” fell well short of sustaining his burden of proof. The issue of speculative claims was not novel, and as the Board noted, it had previously considered a similar issue in the withholding of deportation context in 1964. Regarding the respondent’s claim that he would face economic persecution by the British Government in Hong Kong, the Board merely noted that the respondent made the claim.
My best guess for why Matter of Man was selected for publication as a precedent decision was to offer guidance to immigration adjudicators on how to handle purely speculative claims of persecution based on hypothetical future events. Were an adjudicator to revive the decision today, however, it might be on the basis of the Board’s brief analysis of the disconnect between the respondent’s claimed fear of persecution and his willingness to return to Hong Kong to apply for a visa, were his immigrant visa petition to be granted.
Quotable: “A Strange Admixture of Contentions”
With all that being said, I must credit the Board for its “strange admixture of contentions” line. That, more than anything else, is a fine reason to revive Matter of Man. I intend to set an example by co-opting it for use in The New Leaf Journal.
(Update: Published article on “a strange admixture of contentions” on January 22, 2022.)
Connecting the BIA’s Decision to Current Events in Hong Kong
Although the Board correctly denied the respondent’s motion to reopen, the current situation in Hong Kong made me think of this long-buried decision. To be sure, the respondent’s claim that he was eligible for withholding of deportation in 1967 based on the possibility of the Communist Chinese takeover of Hong Kong made for a very weak claim. Furthermore, even if the United Kingdom had ceded control over Hong Kong in the midst of proceedings, it seems unlikely that the respondent would have been able to establish a sufficiently particularized risk of deportation to merit relief. But the respondent’s articulated concern and the newspaper clippings about riots in Hong Kong highlight how long the concerns about a Communist take-over of Hong Kong have been percolating.
I do not doubt that in the aftermath of Communist China’s completing its full subjugation of Hong Kong, many individuals fleeing Hong Kong will be able to present far stronger claims for asylum or other forms of protection than did Mr. Man some 53 years ago.