## Facts

- Xiaodong Li, a native and citizen of China, practiced Christianity in China.
- China officially recognized Christianity but regulated religious practice by requiring religious groups to register with the Religious Affairs Bureau and be supervised by government-approved “patriotic” religious committees.
- Religious activity occurring outside government-registered and supervised church locations was treated as unlawful.
- For over five years, Li and a friend held small gatherings at Li’s home with several others, reading the Bible and singing hymns rather than attending a state-supervised church.
- Police discovered the home meetings, arrested Li as a “reactionary,” and beat him until he confessed to establishing an underground church and holding an illegal gathering against the government.
- Before a scheduled hearing on the Chinese charges, Li fled to the United States as a crewman in November 1995 and remained beyond his authorized stay.
- Li did not apply for asylum immediately because he hoped to return if conditions in China improved.
- After nearly three years in the United States, Li learned that his friend had been arrested, Li’s family members had been questioned, and police were searching for Li, including based on allegations that he sent religious materials to China from the United States.
- In removal proceedings, the immigration judge (IJ) denied asylum as time-barred under the one-year filing deadline but granted withholding of removal, finding it more likely than not that Li would be persecuted if returned because China’s registration regime functioned as persecution of those who would not submit their religious practice to state control.
- The government appealed, and the Board of Immigration Appeals (BIA) reversed the IJ’s withholding grant, reasoning that Li faced lawful prosecution for violating generally applicable rules against unregistered religious activity rather than persecution on account of religion.
- Li petitioned the Fifth Circuit for review. In an August 9, 2005 published opinion, the Fifth Circuit affirmed the BIA’s denial of withholding (420 F.3d 500).
- Li sought rehearing. While rehearing was pending, the Department of Homeland Security moved the BIA to reopen, withdraw its appeal, and reinstate the IJ’s withholding grant; on October 6, 2005, the BIA granted reopening, vacated its prior decision, and reinstated the IJ’s withholding order.
- Li then moved the Fifth Circuit to vacate its August 2005 opinion. On November 1, 2005, the Fifth Circuit granted vacatur and dismissed the petition (and rehearing petition) as moot (429 F.3d 1153).

## Issues

1. Whether substantial evidence supported the BIA’s determination that Li’s expected treatment in China would be lawful prosecution for violating registration rules, rather than persecution on account of religion, such that Li was not entitled to withholding of removal.  
2. Whether the Fifth Circuit retained a live case or controversy after the BIA reopened the matter, vacated its own denial of withholding, and reinstated the IJ’s grant of withholding, and whether the court should vacate its earlier published merits opinion.

## Decision

- In the August 9, 2005 merits opinion (420 F.3d 500), the Fifth Circuit affirmed the BIA’s denial of withholding of removal.
- While rehearing was pending, the BIA reopened the case, vacated its prior decision, and reinstated the IJ’s order granting withholding of removal.
- In the November 1, 2005 opinion (429 F.3d 1153), the Fifth Circuit granted Li’s motion to vacate, vacated the prior published merits opinion, and dismissed the petition for review and petition for rehearing as moot.

## Legal Principles

- Withholding of removal requires the applicant to show that it is more likely than not that the applicant would be persecuted in the country of removal on account of a protected ground, including religion.
- On a petition for review, the court evaluates the BIA’s decision (rather than the IJ’s) when the BIA issues its own decision without adopting the IJ’s reasoning, and it reviews factual determinations under the substantial-evidence standard.
- A government’s enforcement of a generally applicable law may be treated as prosecution rather than persecution; whether enforcement crosses into persecution depends on the record and the protected-ground nexus.
- A petition for review becomes moot when subsequent agency action eliminates the challenged final order and provides the relief at issue, leaving no live dispute for Article III jurisdiction.
- When a case becomes moot while further review is pending, the court may vacate its earlier merits decision; a vacated appellate opinion has no precedential effect.

## Conclusion

This case produced two Fifth Circuit published opinions: the court initially affirmed the BIA’s denial of withholding in 420 F.3d 500, but after the BIA reopened the proceedings, vacated its denial, and reinstated the IJ’s grant of withholding, the Fifth Circuit vacated its earlier merits opinion and dismissed the petition (and rehearing petition) as moot in 429 F.3d 1153, leaving the reinstated withholding order in place and no controlling Fifth Circuit merits ruling.


Xiaodong Li v. Gonzales, 420 F.3d 500, 429 F.3d 1153 (2005)