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Falun Gong Practitioner's Well-Founded Fear of Persecution, Plus Criminal Matter

By FindLaw Staff on July 12, 2010 4:03 PM

US v. Nance, 09-3786, concerned a defendant's challenge to his 180-month sentence for receiving child pornography.  In affirming the sentence, the court held that the district court did not err in calculating defendant's criminal history score using his conviction that had been considered as part of a pattern of activity involving the sexual exploitation of a minor under section 2G2.2(b)(5), as note 3 to section 2G2.2 creates an exception to the general rule that relevant conduct may not be considered when computing a defendant's criminal history score.  The court also held that the district court did not err in finding that non-victim materials defendant possessed at the time he received the victim materials were relevant conduct.  Lastly, the court held that the sentence was both procedurally sound and substantively reasonable.

Qiu v. Holder, No. 09-3512, concerned a Chinese citizen's petition for review of the BIA's affirmance of an IJ's denial of his application for asylum on the ground that petitioner failed to establish that he was subject to a well-founded fear of persecution upon return to China.  In granting the petition, the court held that the evidence establishes that the State Department reports and petitioner's own credited testimony established that he is a Falun Gong practitioner, that the practice of Falun Gong is outlawed in China, that the Chinese police knew that he is a Falun Gong practitioner, that the practice of Falun Gong is outlawed in China, that the Chinese police know he practices Falun Gong, that China persecutes Falun Gong practitioners, and that the only way petitioner can avoid persecution is to cease the practice of Falun Gong or hope to evade discovery.

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