INTRODUCTION

China is not known for a strong compliance with international law.1 This is particularly true in regard to international laws regarding human rights. 2 In at least one area, however, China is making impressive gains. In 2012, China passed a newly amended version of its Criminal Procedure Law. 3 These amendments included a brand new chapter on the treatment of juveniles.4 The chapter was remarkable for just how closely its reforms line up with international laws on children’s rights and juvenile justice. Even more notably, in the years since the passage of the bill, China appears to be making tremendous strides towards applying these legal reforms in practice — not only enforcing these standards, but proudly modeling them as “best practices.”5

Why is such progressive legal reform occurring in the field of juvenile justice, in a country which is often considered resistant at best towards implementing human rights reforms? 6 Why does China appear to be complying so well with international standards on human rights in one area of law, when it has not in many others?7

Understanding how this process of reform has occurred requires looking at both the social and political pressures that motivated the reform efforts, as well as the normative process through which they occurred. This process has been heavily influenced by an openness to legal experimentation and to the role of a variety of actors, including non-state actors, in introducing new concepts and models of dealing with juvenile crime. The juvenile justice system therefore provides a particularly interesting case study through which to explore modes by which the China implements legal reform.

I. THE 2012 CRIMINAL PROCEDURE LAW AND INTERNATIONAL LAW

On March 14, 2012, the Chinese People’s Congress adopted an amended version of the Chinese Criminal Procedure Law, which went into effect January 1, 2013. 8 Unlike previous versions of the Criminal Procedure Law, the amended version of the law has an entirely new section pertaining to juvenile defendants and how juveniles should be treated within the criminal justice system.9 The chapter is remarkable for how well the requirements outlined align with the requirements on juvenile justice as prescribed in international law.

The chapter includes eleven articles, each delineating specific requirements for how juveniles should be handled in the criminal justice system.10 Nearly all theories, language, and specific requirements set out in the chapter have been previously codified in international laws and guidelines on juvenile justice.11

The chapter sets out a theory of juvenile justice that promotes rehabilitation and reintegration with society. Article 1 of the amended Criminal Procedure Law (CPL) explains that officials should “[i]mplement the directive of education, reform, and rescue for juveniles committing crimes, and continue the principle of education first with punishment as a supplement.”12 This aligns with the theories expressed in both the Convention on the Rights of the Child (CRC) and International Covenant on Civil and Political Rights (ICCPR) that the underlying theory of juvenile justice should be rehabilitative, rather than punitive. 13 The new chapter then proceeds to set out specific requirements regarding the treatment of juveniles, nearly all of which are required by international instruments such as the CRC, ICCPR, or U.N. guidelines.

The new chapter requires, for example, that all juveniles be given access to legal counsel, a key procedural right expressed by both the CRC and ICCPR.14 While this was previously set out in Chinese law, the effectiveness of this requirement was limited. 15 The new law now explicitly places the onus on public officials such as the courts, procuratorate, or other public security officials to ensure that juveniles are, in fact, represented by counsel in criminal cases.16 It also requires that juveniles should be given special treatment throughout the criminal justice process to protect their unique vulnerabilities. For example, the law suggests that officials working with children should be specially trained to handle such cases17 and that juveniles who are detained must be separated from adult offenders.18 The law also requires that all court records must be sealed in juvenile cases to protect the privacy of the juvenile defendant.19

† The author is a Staff Attorney at Children’s Rights in New York City. Prior to this she was a Visiting Fellow at the Center for Comparative and Public Law at the University of Hong Kong. My sincere thanks to the Salzburg Cutler Law Fellows Program which helped to spark and critique an initial conception of this paper, to Professor Katherine Franke and my brilliant classmates in her research and writing seminar, who reviewed early drafts and improved my writing tremendously, and to HKU’s Center for Comparative and Public Law for allowing me the opportunity and resources to finalize this as a Visiting Fellow.
1 Jacques deLisle, China’s Approach to International Law: A Historical Perspective, 94 AM . SOC’Y INT’L L. PROC . 267, 267 (2000).
2 See Camila Ruz, Human rights: What Is China Accused of?, BBC NEWS (Oct. 21, 2015), http://www.bbc.com/news?magazine-34592336.
3 Wendy Zeldin, China: Amendment of Criminal Procedure Law, LIBR. CONGRESS: GLOBAL LEGAL MONITOR (Apr. 9, 2012), http://www.loc.gov/law/foreign-news/article/china-amendment-of-criminal-procedure-law/.
4 Id.
5 See John Kamm, Trying Juveniles, N.Y. TIMES (Nov. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/global/trying-juveniles.html.
6 THOMAS LUM, CONG. RESEARCH SERV., RL34729, HUMAN RIGHTS IN CHINA AND U.S. POLICY 1–3 (2011).
7 Kamm, supra note 5
8 Zeldin, supra note 3.
9 Id.
10 Zhonghua Renmin Gongheguo Xingshi Susong Fa (中华人民共和国刑事诉讼法) [Criminal Procedure Law of the People’s Republic of China] (promulgated by the Nat’l People’s Cong., Mar. 14, 2012, effective Jan. 1, 2013) pt. 5, ch. 1, translated in UN TREATY BODY DATABASE , http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/CHN/INT_CAT_ADR_CHN _20050_E.doc (last visited Mar. 3, 2017) [hereinafter Criminal Procedure Law].
11 There are eight documents which set out the majority of the international laws and standards on juvenile justice. Two of these are binding international treaties. These are the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR). Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3; International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 171. China has signed both of these documents and ratified the CRC. TREATY SECTION, OFFICE OF LEGAL AFFAIRS, MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL, at 204, 389, U.N. Sales No. E.09.V.3 (2009). There are also five relevant United Nations rules and guidelines that provide countries with further standards on developing their juvenile justice systems. See High Comm’r for Human Rights, Rep. of the High Commissioner for Human Rights on the Protection of Human Rights of Juveniles Deprived of Their Liberty, ¶ 5, U.N. Doc. A/HRC/21/26 (Aug. 3, 2012) (collecting the five sets of rules and guidelines). Although these guidelines are not binding, they can be seen as interacting with, and sometimes clarifying, the rights described in the CRC and ICCPR. Additionally, the Committee on the Rights of the Child, the body charged with monitoring compliance with the Convention on the Rights of the Child (CRC), has issued a variety of general comments, which provide greater clarity on how the Convention on the Rights of the Child should be interpreted. In particular, General Comment No. 10 provides on how to interpret the CRC’s requirements on juvenile justice. Comm. on the Rights of the Child, General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, ¶ 4, CRC/C/GC/10 (Apr. 25, 2007) [hereinafter General Comment No. 10].
12 Criminal Procedure Law, supra note 10, art. 266.
13 The Convention on the Rights of the Child (CRC) states that juveniles accused of violating criminal law should be treated in a way that promotes the child’s reintegration and productive role in society, as well as promoting “the child’s sense of dignity and worth.” Convention on the Rights of the Child, supra note 11, art. 40(1). The ICCPR requires that states should “take account of . . . the desirability of promoting [the] rehabilitation” of children in conflict with the law. International Covenant on Civil and Political Rights, supra note 11, art. 14(4). General Comment No. 10 says “[t]his principle reflects the fundamental human right . . . in article 1 of [the Universal Declaration of Human Rights].” General Comment No. 10, supra note 11, ¶ 13.
14 Article 267 of the Criminal Procedure Law states “[w]here a minor criminal suspect or defendant has not entrusted a defender, the people’s court, people’s procuratorate or public security organ concerned shall notify a legal aid agency to assign a lawyer as the defender of the minor.” Criminal Procedure Law, supra note 10, art. 276. The Convention on the Rights of the Child requires that “[e]very child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance,” and “to have legal or other appropriate assistance in the preparation and presentation of his or her defense.” Convention on the Rights of the Child, supra note 11, arts. 37(d), 40(2)(b)(ii). General Comment No. 10 clarifies that when interpreting “[l]egal or other appropriate assistance,” legal assistance should not be denied simply because other assistance is available. General Comment No. 10, supra note 11, ¶ 49. The right to counsel and free legal aid is also required by both the ICCPR and the Beijing Rules. International Convention on Civil and Political Rights, supra note 11, art. 14(3)(d); G.A. Res. 40/33, annex, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), rs. 7.1, 15.1 (Nov. 29, 1985) [hereinafter Beijing Rules]. Although international law imposes no direct duty on any specific actors to ensure a juvenile’s access to counsel, best practice guides have recommended that legislation or guidelines for police or prosecutors “should impose a duty on [them] . . . to assist the child in obtaining legal [assistance].” CAROLYN HAMILTON, UNICEF, GUIDANCE FOR LEGISLATIVE REFORM ON JUVENILE JUSTICE 45–46 (2011).
15 The right to counsel had actually already been specified in Chinese law in 2006. Zhonghua Renmin Gongheguo Wei Chengnian Ren Baohu Fa (中华人民共和国未成年人保护法) [Law of the People’s Republic of China on the Protection of Minors] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2006, effective June 1, 2007), art. 51, translated in Law of the People’s Republic of China on the Protection of Minors (2006 Revision) [Revised], PKULAW.CN (last visited Mar. 4, 2017) [hereinafter Law on the Protection of Minors]. That law, however, stated that should a minor be in need of legal aid, a legal aid institution should provide it to him. Id. The burden therefore lay on the legal aid institutions (who are themselves a relatively new and problematic institution in China and who often have little power in the system) and put no direct burden on any of the actual key players in the criminal process. Legal Aid, CONG.-EXECUTIVE COMMISSION
ON CHINA , https://www.cecc.gov/legal-aid (last visited Feb. 3, 2017).
16 Criminal Procedure Law, supra note 10, art. 267.
17 Article 266 of the Criminal Procedure Law specifies that officials working in the juvenile justice system should be “familiar with the physical and mental characteristics of minors.” Id. art. 266. This echoes language in the U.N. Guidelines that “[l]aw enforcement and other relevant personnel, of both sexes, should be trained to respond to the special needs of young persons,” G.A. Res. 45/112, annex, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), ¶ 58 (Dec. 14, 1990) [hereinafter Riyadh Guidelines], and that “police officers who frequently . . . deal with juveniles” should be “specially instructed and trained,” Beijing Rules, supra note 14, r. 12.1.
18 Article 269 of the Criminal Procedure Law requires that juveniles “held in custody or arrested or who are serving sentences . . . [should be held] separately from adults.” Criminal Procedure Law, supra note 10, art. 269. The CRC in Article 37(c) states that “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so.” Convention on the Rights of the Child, supra note 11, art. 37(c); see also, e.g., International Covenant on Civil and Political Rights, supra note 11, art. 10(2)(b) (requiring that juveniles accused of crimes be kept separate from adults).
19 The Criminal Procedure Law requires that juvenile records be sealed. Criminal Procedure Law, supra note 10, art. 275. The Chinese Law on the Protection of Minors previously required that public sources such as the news or “computer network[s]” should not share information about juvenile defendants. Law on the Protection of Minors, supra note 15, art. 58. However, the amended Criminal Procedure Law now requires that all juveniles under the age of 18 who are sentenced to five years or less shall have their criminal records sealed, and only court officials will be able to access these documents. Criminal Procedure Law, supra note 10, art. 275. Such a requirement for privacy is expressed in the CRC in Article 40(2)(b)(vii), which states that a juvenile defendant has a right “[t]o have his or her privacy fully respected at all stages of the proceedings.” Convention on the Rights of the Child, supra note 11, art. 40(2)(b)(vii). This vague language has been clarified by the Committee in General Comment No. 10, explaining that “[a]ll stages of the proceedings” starts at the point of “initial contact with law enforcement” bodies and extends until either a “final decision” or “release from supervision.” General Comment No. 10, supra note 11, ¶ 64. General Comment No. 10 further clarifies that there should be some form of domestic legislation requiring trials to occur “behind closed doors” and that records should be kept “strictly confidential.” Id. at ¶¶ 64–66. The Beijing Rules similarly specify the juvenile’s “right to privacy” so as to “avoid harm being caused to her or him by undue publicity or by the process of labeling” and that “[i]n principle, no information that may lead to the identification of a juvenile offender shall be published.” Beijing Rules, supra note 14, rs. 8.1–2. “Records of juvenile offenders shall be kept strictly confidential . . . .” Id. r. 21.1.

INTRODUCTION

Clara Zheng is from Zilin, China, the closest providence to the ChinaNorth Korea border.¹ For the past several years, her church in Zilin has been operating a secret safe house for North Korean defectors. Clara has read in the Korean news and international reports that many North Korean families risk their lives by crossing the river from North Korea to flee to China.² In North Korea, being a Christian is considered one of the gravest political crimes.³ Clara wondered how anyone could sit idly by and watch the Chinese government force countless starving North Korean families to repatriate.⁴ In Clara’s church, people talk about how the Chinese government may punish Chinese citizens who help North Koreans. Last month, despite the well-planned church operation, Clara’s friend who accompanied her on many operations was arrested and put in jail. Fearful of being punished by the Chinese government, Clara paid $15,000 to travel to the United States, hoping for a safe haven. She was hopeful because, in the past, the U.S. government has granted refugee status to couples that faced forced sterilization of their second child under China’s One-Child Policy.⁵ However, last week, an immigration judge denied Clara refugee status and ordered her to be removed from the U.S. Her lawyer told her that the court’s decision is not surprising because the U.S. does not generally grant refugee status to a Chinese citizen who aided North Korean defectors, in violation of a generally applicable law.⁶

The 108th Congress, with the assistance of President George W. Bush, acted to lend American support to the North Korean refugees by passing the North Korean Human Rights Act of 2004.⁷ The congressional act implies that the U.S. will protect, or at least endorse, groups that support North Korean human rights, including the people who feed, house, and protect North Korean defectors.⁸ Ironically, however, the U.S. government still denied refugee status to many Chinese citizens who were punished by their government for aiding North Korean defectors.⁹ The Third Circuit Court of Appeals denied refugee status to the Chinese applicants because they violated a “fairly administered [Chinese] law” and the punishment did not amount to “persecution.”¹⁰ However, is there really such a law that outlaws assistance to North Korean defectors? If there is, is this Chinese law and policy in violation of certain international human rights?How should the U.S. courts analyze “persecution” by non-democratic governments like that of China and North Korea? How do diplomatic relations between the U.S. and these two countries affect America’s open disapproval of China’s human rights violations?

The Third Circuit has held that if a law is (1) fairly administered or (2) generally applicable to all citizens, then the presumption is that the law is legitimate and may be rightfully enforced.¹¹ In other words, if a court decides that: (1) there is a Chinese law prohibiting assistance to North Korean defectors, and (2) such law is generally applicable to Chinese citizens, then no protection would be granted to the applicant, whose act was the exact behavior the North Korean Human Rights Act wished to protect.¹² As a result, the courts may deny asylum/refugee status to these Chinese citizens who then might be forced to return to China, where he/she faces the possibility of punishment, often severe, for aiding the defectors.¹³

Thus, the current analysis needs to include whether prosecution was a mere pretext for persecution. Specifically, is the punishment the applicants face upon return so severe, when compared to the crime, that the prosecution amounts to persecution? This Article suggests that China might be using criminal punishment as a pretext for persecution, and the evidence is based on disproportionately severe punishment compared to the severity of the actual crime.¹⁴ Hence, even if one assumes that a Chinese law was fairly and generally applied to all of its citizens, it is  possible that the Chinese citizens who aid North Korean defectors are persecuted through disproportionately severe punishment.¹⁵ This Article argues that the courts should first examine an applicant’s criminal history, if any, and secondly, use a hybrid approach for granting refugee status to Chinese citizens who would be prosecuted (vis-a-vis persecuted) for assisting North Korean defectors. These two approaches are of paramount importance especially when the courts are uncertain whether the Chinese penal code outlaws such activity.¹⁶

Part I of the Article begins with a brief discussion of U.S. refugee law, international human rights law, applicable Chinese law, and recent U.S. case law under Long Hao Li v. Attorney General. Part II analyzes whether criminal prosecution of Chinese citizens who assist North Korean defectors may be a mere pretext for political prosecution. Part III argues that the U.S. courts should consider a hybrid approach; a totality of the circumstances test that considers additional grounds of appeal for a refugee application.¹⁷ The hybrid approach is juxtaposed with the dominant, current approach, where refugee status is denied or granted on account of five possible grounds (race, religion, nationality, membership in a particular social group, or political opinion).¹⁸ The Article will then explain how the hybrid approach can better reflect Li’s situation and better complement the international human rights standard. Part IV applies the two approaches analyzed in Parts II and III to someone in Clara’s situation. Finally, the Article will discuss prospects for human rights implementation and legal development in China. 

I. INTERNATIONAL HUMAN RIGHTS STANDARD AND THE U.S. REFUGEE LAW

The Attorney General may grant refugee status to an alien who has suffered past persecution or has a well-founded fear of future persecution.¹⁹ The applicant must prove that he is unable or unwilling to return to the country of origin, because of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”²⁰

A. Persecution

Even though the United Nations Handbook on Procedures and Criteria for Determining Refugee Status does not offer a definition of persecution,²¹ U.S. courts traditionally held that persecution means that there is a subjectively genuine and objectively reasonable threat to life or freedom that an ordinary person would regard as offensive (i.e., death, torture, confinement, or extreme economic deprivation).²² Also, the harm is “inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.”²³ In regards to the objective standard of “reasonable fear,” an applicant’s testimony without corroborating evidence may be sufficient, as long as it is “credible, persuasive, and refers to specific facts.”²⁴

Still, applying a general definition of persecution is not easy for the courts, as they are tasked with the challenge of determining whether a government had a “legitimate, prosecutorial purpose” in punishing people who allegedly committed a crime.²⁵ In deciding whether a government has a legitimate ground to prosecute a person or a group, some courts have focused their analysis on whether a government has reason to believe that the person was engaged in criminal activity.²⁶ Other courts have focused on whether a government has undertaken “any formal prosecutorial measures” regarding the actions committed.²⁷ A marginally smaller number of courts have also discussed whether a government was driven by a political motive in excessively or arbitrarily punishing a person.²⁸

1 Clara Zheng’s story as portrayed in this Article is entirely fictitious. Her story serves to illustrate the typical plight of an individual who violates Chinese law in order to aid North Korean defectors. While not every story is the exactly the same, every Chinese citizen that gives assistance to a North Korean risks much in doing so, and if caught faces serious repercussions. The story of Clara Zheng is meant to personalize for readers the challenges such people encounter regularly.
2 See, e.g., Those Who Flee: North Korean Refugees, N. KOR. NOW, http://www.northkoreanow.org/the-crisis/those-who-flee-north-korean-refugees (last visited Aug. 27, 2015).
3 Human Rights Council, Rep. of the Comm’n of Inquiry on Human Rights in the Democratic People’s Republic of N. Kor. on its Twenty-Fifth Session, U.N. Doc. A/HRC/25/63, at 7–8 (Feb. 7, 2014); see also HUMAN RIGHTS WATCH, WORLD REPORT 2013: NORTH KOREA (2013), http://www.hrw.org/world-report/2013/country-chapters/north-korea [hereinafter WORLD REPORT 2013: NORTH KOREA] (reporting that many North Korean defectors flee to neighboring countries because of serious food shortages, insecurity, and fear of torture and inhumane treatment, political prisoner/labor camps, and execution for “vaguely defined offenses such as ‘crimes against the state and crimes against the people.’”).
4 See Those Who Flee, supra note 2.
5 Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 108–09 (3d Cir. 2007), overruled by Guang Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009).
6 See, e.g., Long Hao Li v. Att’y Gen., 633 F.3d 136, 137–38 (3d Cir. 2011); but see Xun Li v. Holder, 559 F.3d 1096, 1110–11, 1113 (9th Cir. 2009).
7 North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118 Stat. 1287 (codified as amended at 22 U.S.C. § 7801–7845 (2012 & Supp. I 2013)).
8 See id. § 203, 118 Stat. at 1294 (codified as amended at 22 U.S.C. § 7833 (2012 & Supp. I 2013)).
9 Alyce S. Ahn, Note, Prosecution or Persecution: Contradictions Between U.S. Foreign Policy & the Adjudication of Asylum Claims Involving the Harboring of North Korean Refugees, 24 GEO. IMMIGR. L.J. 311, 311–12 (2010).
10 Long Hao Li., 633 F.3d at 138, 141, 147.
11 Id. at 137–38, 141.
12 See Xun Li, 559 F.3d at 1112–13. However, “a generally applicable law can provide the basis for withholding of removal, but only where the petitioner establishes a connection between the prosecution and his or her political opinion . . . .” Long Hao Li, 633 F.3d at 137.
13 See, e.g., Long Hao Li, 633 F.3d at 137–38, 143–44; see also Xun Li v. Holder, 559 F.3d at 1112 (finding clear evidence that the Chinese petitioner would be subjected to severe punishment upon return to China).
14 Long Hao Li, at 151 (Roth, J., dissenting).
15 Xun Li, 559 F.3d at 1109 (quoting Fisher v. INS, 79 F.3d 955 (9th Cir. 1996)).
16 Compare Long Hao Li, 633 F.3d at 144 (finding “that Chinese law penalizes people who assist others who cross the border illegally”), with Xun Li 559 F.3d at 1098 (stating that the court has not “discovered a Chinese law that prohibits providing assistance to foreign refugees”).
17 See Ang v. Gonzales, 430 F.3d 50, 55–56 (1st Cir. 2005).
18 See infra section I(B).
19 8 U.S.C. § 1158(b)(1)(A) (2012); 8 U.S.C. § 1101(a)(42)(A) (2012); see also 8 C.F.R.
§ 208.13(b)(1), (b)(1)(i)(A)–(B) (2013) (stating that the well-founded fear of future persecution is presumed when suffering from a past persecution is proved; however, the government can
rebut this presumption by a preponderance of evidence that the conditions in the applicant’s country have changed or that the applicant is reasonably expected to relocate to another part of country).
20 8 U.S.C. § 1158(c)(2) (2012).
21 Michel Moussalli (Director of International Protection), Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, ¶ 51, U.N. Doc. HCR/IP/4/Eng/REV.1 (1979)
[hereinafter U.N. Handbook].
22 13 Am. Jur. 3D Proof of Facts § 4 (1991) [hereinafter Proof of Facts]; see also U.N. Handbook, supra note 21, ¶ 52 (“The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed.”).
23 Proof of Facts, supra note 22, § 4.
24 Tafreshi v. McElroy, 112 F.3d 505, No. 96-2755, 1997 WL 234670, at *2 (2d Cir. 1997) (unpublished table decision (quoting Melendez v. U.S. Dep’t of Justice, 926 F.2d 211, 215 (2d Cir. 1991); 8 C.F.R. § 208.13(a) (2013); see also Doptante v. INS., 198 F.3d 253, No.
97-71408, 1999 WL 801509, at *1 (9th Cir. 1999) (unpublished table decision); Velis v. INS, 47 F.3d 1178, No. 94-9526, 1995 WL 66536, at *3–4 (10th Cir. 1995) (unpublished table decision).
25 Proof of Facts, supra note 22.
26 Ramirez Rivas v. INS, 899 F.2d 864 (9th Cir. 1990), vacated, 502 U.S. 1025 (1992) (mem.).
27 Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th Cir. 1988) (holding that a government’s prosecution is “legitimate” if it has undertaken “formal prosecutorial measures”), superseded by statute, Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as recognized in Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2008).
28 See, e.g., Ramirez Rivas, 899 F.2d at 868 (citing U.N. Handbook, supra note 21, ¶ 85).

† Ra Hee Jeon was born and raised in South Korea. She graduated cum laude from George Washington University in 2011, and she received her Juris Doctorate degree from Regent University School of Law in 2015. She currently practices immigration law in Virginia Beach, Virginia.