On March 3, 2015, the Seventh Circuit held oral arguments in the case of Grace Tangka v. Eric Holder, Jr. The case revolves around an ethnic Chinese Christian woman living in Indonesia. The Petitioner alleges that she received threatening phone calls and letters, had rocks thrown at her home, and had her daughter kidnapped due to her religious faith. Accordingly, all of this warrants that the Petitioner be granted asylum based on a well-founded fear of persecution due to past persecution. Looking to the oral arguments, can we predict Judge Posner’s position on the case?

From the beginning of oral arguments, Posner wasted no time in questioning the Petitioner’s attorney, Ms. Htun. He began with the hard questions surrounding the responsibility of the Indonesian government in the Petitioner’s “persecution.” He parsed out whether the government was the Petitioner’s persecutor. As to the threatening calls and letters and destruction of Petitioner’s home, it seemed nonsensical to attribute those actions to the government. Posner instead went directly to whether there was any evidence that the government was implicated in the daughter’s kidnapping. Ms. Htun admitted that there was not, but that the Petitioner’s claim did not rest on persecution committed by the government.

The crux of Ms. Htun’s argument was that the Indonesian government has continuously failed to protect the Petitioner due to her religious beliefs and that this justified granting asylum. Ms. Htun noted that even after the Petitioner and fellow Christian followers rented space in a mall, assuming that the public nature of the space would protect them, they continued to be harassed. Nothing was done when the Petitioner’s house was showered with rocks. Additionally, had the Petitioner reported her daughter’s kidnapping, her report would have fell on “deaf ears.”

What may have triggered more questioning from the great Posner was the proposition that there is less policing in the Christian neighborhoods than in Muslim neighborhoods. This led Posner to highlight that there is a distinction between a government systematically refusing to protect Christians and a government simply being inefficient in protecting Christians. He stated that if Indonesia simply does not have good policing, it does not follow that everyone can get asylum. Posner really wanted to know what made the Petitioner’s case “special.” If it was simply that the Petitioner was part of a minority group of Christians, it would mean that all Christians in Indonesia could seek asylum in the United States. Though Ms. Htun did not articulate it as forcefully as she could, she argued that that all the events in Petitioner’s life, in addition to the heinous act of her daughter’s kidnapping, amounted to persecution sufficient to grant Petitioner’s asylum claim. Simply being Christian in Indonesia would not be valid asylum claim.

The attorney for the government, Ms. Jones, argued that the Petitioner had failed to show that any of the actions against her were based on a religious ground. What was interesting about Ms. Jones’s argument was not the content of what she was saying. Her arguments were logical and concise and no doubt presented good reasons for denying the Petitioner her asylum claim. However, Ms. Jones’s recited a speech. The judges rarely interrupted her or asked her any challenging questions. In fact, the judges did not ask her more than five questions as compared to the interrogation Ms. Htun received. What was painful to hear was the nervousness and shakiness in Ms. Jones’s voice. Maybe she was nervous being in front of the notorious judges. They did not question her, so maybe they were on her side? Alternatively, maybe no length or form of prying would make the judges side with her and the government.

Though a conservative, Posner as time and time again advocated in favor asylum rights. He has noted that asylum seekers are “positive additions to American society” and are “likely to be productive citizens.” But his crusade for asylum seekers has more to do with what he would categorize as irrational decisions of immigration judges. In a 2005 opinion, Posner ordered that the decision denying asylum to a Chinese woman be vacated and sent back to the immigration court for a second hearing given that “Congress has not authorized the immigration service to . . . deny[] asylum applications in unreasoned decisions.” More recently, in Stanojkova v. Holder, Posner strongly criticized the immigration judges’ interpretation of what consisted of persecution. He stated that the judge “resorted to the kind of warped logic that mars so many opinions of immigration judges and members of the Board of Immigration Appeals.”

The oral argument in Grace Tangka provides little insight as to the immigration judge’s reasoning for denying the Petitioner’s asylum application. This may mean that Posner found no such flaw in the immigration judge’s rational. Thus, his intensive interrogation of Ms. Htun, could simply be an indication that the underlying merits of the claim are not strong. Or Posner may simply have been attempting to clarify the parameters of what a decision in favor of the Petitioner would mean. Bets are on this theory. Posner is known to question and pose hypotheticals to ensure that future attorneys can distinguish cases. This leads to a more coherent jurisprudence. So looking back, maybe Ms. Jones’s realized, after hearing the catechization that Ms. Htun received, that the Petitioner had the case in the bag. Maybe she was nervous because she realized her argument would be falling on “deaf ears.”