Case and Court
Rong Chen v. Holder (5th Cir. Sep. 14, 2010).
Foreign citizens who enter the U.S. without authorization are often caught by law enforcement and detained while undergoing deportation proceedings. To stay in the U.S., they will often claim asylum, which is often denied. Such cases do not usually have a cyberlaw angle, but yesterday the Fifth Circuit Court of Appeals issued one that did. The case involved Rong Chen, who the court describes this way:
Chen, a citizen of the People’s Republic of China, operated an internet café in China where customers played a video game called The Legendary World. He also hired several experienced players who played the game to win virtual items that Chen would then sell to his customers for profit. Chen admits that his business was using pirated copies of The Legendary World and paid no royalties to the copyright holder, and he also acknowledges that the Chinese government considers this internet gaming to be a form of illegal gambling. Although the Chinese government inspects internet cafés on a regular basis, Chen testified that he evaded detection of the illegal activity at his café for several months by simply closing his shop on the days when it was scheduled for inspection. Chinese authorities eventually shut down Chen’s internet café and issued a notice for his arrest. Chen’s business partner and several employees were arrested, but Chen escaped and fled to the United States, entering the country illegally.
Chen argued he deserved asylum because he “faces persecution for his membership in a social group which he identifies as ‘the internet gaming community.’ ” Not surprisingly, the Fifth Circuit rejected this argument:
To be eligible for asylum, however, the social group “must share a common immutable characteristic that they cannot change or should not be required to change because it is fundamental to their individual identities or consciences.” Mwembie v. Gonzales, 443 F.3d 405, 414-15 (5th Cir. 2006) (internal quotation marks and citation omitted). Chen presented no evidence that membership in the online gaming community is so fundamental to one’s identity or conscience that it functions as an immutable characteristic. Indeed, Chen was primarily involved with internet gaming as a means of employment, and we have held that one’s occupation is normally not so fundamental that it can be considered immutable. Id. at 415.
While I don’t disagree with the outcome, I know some online gamers who would consider their gaming to be “fundamental to their individual identities or consciences.” One wonders if such a community will ever be recognized in this context.