Interim Decision #3104 

MATTER OF CHEN 

In Deportation Proceedings 

A-26219652 

Decided by Board April 25, 1989 

(1) An applicant for asylum under section 208 of the Immigration and Nationality Act, 8 

U.S.C. § 1158 (1982), may establish his claim by presenting evidence of past 

persecution in lieu of evidence of a well-founded fear of persecution. 

(2) Where an alien has shown that he has been persecuted in the past on account of race, 

religion, nationality, membership in a particular social group, or political opinion, the 

likelihood of present persecution then becomes relevant as to the exercise of 

discretion, and asylum may be denied as a matter of discretion if there is little 

likelihood of present persecution. 

(3) Where past persecution has been established by an applicant for asylum, the Service 

ordinarily will be obliged to present, as a factor militating against a favorable exercise 

of administrative discretion, evidence that little likelihood of present persecution 

exists, or the presiding official(s) may take administrative notice of changed 

circumstances in a country. 

(4) A favorable exercise of administrative discretion in an asylum application may be 

warranted for humanitarian reasons notwithstanding the fact that there is little 

likelihood of future persecution. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2))—Nonimmigrant—remained 

longer than permitted 

ON BEHALF OF RESPONDENT: 

Pravin J. Patel, Esquire 

Ronald W. Freeman, Esquire 

335 Broadway 

New York, New York 10013 

ON BEHALF OF SERVICE: 

David M. Dixon 

Appellate Counsel 

Michael Rocco 

General Attorney 

BY: Milhollan, Chairman; Dunne, Vacca, and Morris, Board Members. Concurring 

Opinion: Heilman, Board Member. 

This case was before us on October 14, 1988, when we sustained the 

respondent's appeal from an immigration judge's November 1, 1984, 

decision finding the respondent deportable and denying his applications for asylum, withholding of deportation, and voluntary departure. 

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Interim Decision #3104 

We granted the respondent's application for asylum. The Immigration 

and Naturalization Service requested that execution of our decision 

and order be stayed pending consideration of a motion to reconsider. 

We granted this request on October 21, 1988. On November 16, 1988, 

the Service filed a motion to reconsider in which it asks that we change 

or clarify certain aspects of our October 14, 1988, decision. The 

Service motion to reconsider will be granted. Upon reconsideration, 

the respondent's appeal will again be sustained and his application for 

asylum granted. 

The respondent is a 31-year-old native and citizen of China. He was 

admitted to the United States on November 23, 1980, as a nonimmigrant student. He was authorized to remain in this country until 

August 31, 1982, but remained beyond that time. On April 26, 1984, 

an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of 

Alien (Form I-221 S) was issued against him charging him with 

deportability as an overstay under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982). At a deportation hearing held on September 78, 1984, the respondent admitted 

that he was deportable as charged. The issue at the hearing, and the 

issue on appeal, involves the respondent's applications for asylum and 

withholding of deportation. 

An alien who is seeking withholding of deportation from any 

country must show that his "life or freedom would be threatened in 

such country on account of race, religion, nationality, membership in a 

particular social group, or political opinion." Section 243(h)(1) of the 

Act, 8 U.S.C. § 1253(h)(1) (1982). In order to make this showing, the 

alien must establish a "clear probability" of persecution on account of 

one of the enumerated grounds. INS v. Stevic, 467 U.S. 407, 413 

(1984). This clear probability standard requires a showing that it is 

more likely than not that an alien would be subject to persecution if 

returned to the country from which he seeks withholding. 

In order to establish eligibility for a grant of asylum, an alien must 

demonstrate that he is a "refugee" within the meaning of section 

101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). See section 

208 of the Act, 8 U.S.C. § 1158 (1982). That definition includes the 

requirement that an alien demonstrate that he is unwilling or unable to 

return to his country because of "persecution or a well-founded fear of 

persecution" on account of race, religion, nationality, membership in a 

particular social group, or political opinion. Case law has focused 

primarily on the meaning of "well-founded fear," and the Supreme 

Court has held that a well-founded fear of persecution may be 

established upon a lesser showing than the clear probability of 

persecution which must be shown under section 243(h). INS v. 

Cardoza -Fonseca, 480 U.S. 421 (1987). Adopting the view of the 

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Interim Decision #3104 

United States Court of Appeals for the Fifth Circuit, we have held in 

Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), that an applicant 

for asylum has established a well-founded fear if he shows that a 

reasonable person in his circumstances would fear persecution. See 

Guevara Flores v. INS, 786 F.2d 1242 (5th Cir. 1986); see also 

Carcamo-Flores v. INS, 805 F.2d 60 (2d Cir. 1986). 

Alternatively, eligibility for asylum may be established by a showing 

of past persecution. There has, heretofore, been less emphasis in the 

courts and within this Board on situations where past persecution is 

the main, or only, basis for an asylum applicant's claim. However, it is 

clear from the plain language of the statute that past persecution can 

be the basis for a persecution claim, and the case law has acknowledged this, if not focused on it. See Desir v. Ilchert, 840 F.2d 723, 729 

(9th Cir. 1988); Blanco-Comarribas v. INS, 830 F.2d 1039, 1043 (9th 

Cir. 1987); cf. INS v. Cardoza-Fonseca, supra, at 1218. Similarly, 

Immigration and Naturalization Service Operations Instruction 208.4 

and the Service Worldwide Guidelines for Overseas Refugee Processing ("Guidelines") recognize that past persecution and a well-founded 

fear of persecution are alternative methods of establishing eligibility 

for refugee status. The Guidelines specifically point out that "where a 

person claims to have been persecuted, he need only establish that 

objective fact," whereas "where a person claims a fear of persecution, 

subjective and objective elements are involved. The subjective condition of the person's fear relates to his feelings and perceptions based on 

his experience or his assessment of future harm." Guidelines, supra, at 

10 (emphasis added). 

If an alien establishes that he has been persecuted in the past for one 

of the five reasons listed in the statute, he is eligible for a grant of 

asylum. The likelihood of present or future persecution then becomes 

relevant as to the exercise of discretion, and asylum may be denied as a 

matter of discretion if there is little likelihood of present persecution. 

Where past persecution is established by the applicant, the Service 

ordinarily will have to present, as a factor militating against the 

favorable exercise of discretion, evidence that there is little likelihood 

of present persecution, or the immigration judge or this Board may 

take administrative notice of changed circumstances in appropriate 

cases, such as where the government from which the threat of 

persecution arises has been removed from power) Thus, a rebuttable 

presumption arises that an alien who has been persecuted in the past 

by his country's government has reason to fear similar persecution in 

the future. 

We note that section 208(b) of the Act recognizes that conditions may change, and 

that an asylum grant may be terminated due to changed circumstances. 

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Interim Decision #3104 

However, there may be cases where the favorable exercise of 

discretion is warranted for humanitarian reasons even if there is little 

likelihood of future persecution. That victims of past persecution 

should in some cases be treated as refugees or asylees even when the 

likelihood of future persecution may not be great has been recognized 

by the Office of the United Nations High Commissioner for Refugees, 

in The Handbook on Procedures and Criteria for Determining Refugee 

Status under the 1951 Convention and the 1967 Protocol Relating to the 

Status of Refugees (Geneva, 1988). There, referring to a "general 

humanitarian principle," it is written: 

It is frequently recognized that a person who—or whose family—has suffered under 

atrocious forms of persecution should not be expected to repatriate. Even though 

there may have been a change of regime in his country, this may not always produce 

a complete change in the attitude of the population, nor, in view of his past 

experiences, in the mind of the refugee. 

Id. at § 136. Thus, while the likelihood of future persecution is a factor 

to consider in exercising discretion in cases where an asylum application is based on past persecution, asylum may in some situations be 

granted where there is little threat of future persecution. Moreover, as 

with any case involving the exercise of discretion, all other factors, 

both favorable and adverse, should also be considered, with recognition of the special considerations present in asylum cases. See Matter 

of Pula, 19 I&N Dec. 467 (BIA 1987). It is in the contexts of all these 

factors that we view the respondent's claim. 

The respondent testified at the hearing that both he and his family 

were persecuted in China during the so-called Cultural Revolution, 

from approximately 1966 through the mid-1970's. The respondent 

also submitted a lengthy statement in conjunction with his Request for 

Asylum in the United States (Form 1-389). The immigration judge 

found the respondent's descriptions of the events of those years 

credible, and we find no reason to doubt that judgment. The 

respondent's testimony and statement reflect the following. 

The respondent is the son of Oikai Chen, who was a Christian 

minister in China. In the fall of 1966, when the Cultural Revolution 

began, the respondent's father became a target of the Red Guards. He 

was forbidden from continuing his ministry and his income was 

terminated. Near the end of the year, the Red Guards ransacked the 

respondent's home, destroying walls and furniture and confiscating 

papers and personal effects. The respondent's father became a prisoner 

in the building of the Young Men's Christian Association. In the 

coming months, his father was dragged through the streets in a 

humiliating fashion over 50 times and was daily required to write 

confessions of his crimes. In November of 1967, during a Bible 

burning crusade, the respondent's father was pushed into a bonfire of 

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Interim Decision #3104 

Bibles. He was badly burned but survived. The respondent's father 

continued to suffer a harsh fate at the hands of the Red Guards in the 

ensuing years, and he died in 1974, at the age of 46. 

The respondent himself was 8 years old when the Cultural 

Revolution began. When his home was ransacked in late 1966, he was 

locked in a room with his grandmother and kept there for over 6 

months. He was not allowed to attend school and was interrogated on 

a continuing basis. When he cried, the Red Guards kicked and bit him 

and deprived him of food. In mid-1967, he was released from the 

house arrest and returned to school. However, the respondent stated 

that because of his family background, he was abused and humiliated. 

On one occasion, he fell asleep during a speech regarding the need to 

criticize one's parents. Rocks were thrown at him. They struck his 

head and he suffered a serious loss of blood. His injuries required a 

month of intensive treatment. 

In 1970, and again in 1972, the respondent was sent to rural villages 

for reeducation. He was harshly treated and denied medical care for a 

bad cut to his leg in 1970, and for a month -long high fever he suffered 

in 1972, which was caused by abusive treatment. On another occasion, 

the respondent was locked in a closet for 5 hours when he was unable 

to write the extensive criticism of his father demanded by one of his 

teachers. From 1973 to 1975, the respondent endured a number of 

exiles designed to "reeducate" him. The respondent stated that he was 

eventually allowed to support himself as a substitute teacher or 

handyman, but that from 1976 until his 1980 departure from China, 

he lived in "complete social isolation," and that as the son of a 

Christian minister, he could "never outlive [his] status as a pariah, an 

outcast, an 'unrepentent' element." 

The respondent stated that because of the events described, he is 

physically debilitated, must wear a hearing aid due to his head injury, 

is always anxious and fearful, and is often suicidal. The respondent 

testified that he would kill himself if forced to return to China. 

The immigration judge found that the respondent's fears were real. 

However, he concluded that the "leniency of the present Government 

of China to mere religious activity does not permit a finding of wellfounded fear" of persecution in the future. 

It seems beyond dispute that the respondent has in fact suffered 

persecution in China. However, it is also true that, since the time of 

the Cultural Revolution, conditions in China have changed significantly. We note in this regard that millions of people suffered during the 

Cultural Revolution and have since been rehabilitated. The current 

leader of China, Deng Xiaoping, was himself persecuted during that 

time, sent to the countryside, and forced to perform manual labor. 

While religious freedom as we understand it may still not be enjoyed in 

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China, we are not persuaded by the evidence presented that a 

reasonable person in the respondent's circumstances would have a 

well-founded fear of persecution on account of his religion, if returned 

to the China of 1989. We therefore agree with the immigration judge 

that the respondent has not met his burden of establishing a wellfounded fear of persecution. 

As discussed above, however, our determination that the respondent has not established a well-founded fear of present or future 

persecution is not in itself determinative, since we have found that the 

respondent has clearly established that he and his family were severely 

persecuted in the past in China. The detailed descriptions provided by 

the respondent regarding what his family endured during the Cultural 

Revolution indicate that their strong religious convictions caused them 

even more than the usual amount of ill-treatment during that turbulent 

period. Based on our discussion above, we therefore find that he is 

statutorily eligible for asylum. 

We further conclude that asylum should be granted in this case in 

the exercise of discretion. While conditions in China have changed 

since the time the respondent was persecuted, the basic form of 

government there has not changed, human rights are still sometimes 

abused, and there is little religious freedom. The respondent is closely 

identified with a religious family. While he may not have a "wellfounded fear" of future persecution in China, we do not think that all 

chance of persecution on account of his religion has been eliminated 

by the change in regime since the Cultural Revolution. Moreover, it is 

evident that the respondent still genuinely fears returning to China. 

Given what happened to his father, and given the manner in which he 

spent much of his boyhood, his fear of repatriation is understandable. 

The respondent has now lived in the United States for over 8 years. He 

has no close family remaining in China. His one sibling, a brother, 

lives in Hong Kong, but the respondent spent only 1 week there while 

en route to this country. The only adverse factor in this case is the 

likelihood that the respondent intended to abandon his residence in 

China and remain in the United States permanently at the time he was 

admitted to this country as a nonimmigrant student in 1980. See 

section 101(a)(15)(F) of the Act, 8 U.S.C. § 1101(a)(15)(F) (1982). 

However, we do not consider this factor controlling for the reasons set 

forth in Matter of Pula, supra. Having carefully considered all the 

circumstances, we find that a favorable exercise of discretion is 

warranted in this case. The respondent's application for asylum will 

therefore be granted. 

In its motion to reconsider, the Service does not appear to seriously 

contest our finding that the respondent in this case should be granted 

asylum. However, it expresses the concern that our approach to the 

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issue of past persecution, including our consideration of humanitarian 

factors, is overly broad and will lead to "endless litigation" and 

"frivolous claims." As discussed above, we believe that past persecution can form the basis for an asylum claim under the statute. When 

such claims are made, we believe they can best be handled on a caseby-case basis. We shall not attempt at this time to delineate the 

circumstances under which past persecution may or may not be the 

basis for a successful asylum claim. 

Inasmuch as we are granting the respondent's application for 

asylum, we find it unnecessary to rule on his application for 

withholding of deportation. See Matter of Mogharrabi, supra. Accordingly, the following orders will be entered. 

ORDER: The motion to reconsider is granted. 

FURTHER ORDER: The appeal is sustained. 

FURTHER ORDER: The application for asylum is granted. 

CONCURRING OPINION: Michael J. Heilman, Board Member 

I respectfully concur. 

The important holding in this case is that a person who establishes 

past persecution may still be granted asylum for humanitarian reasons 

even where there is little or no evidence of the present possibility of 

persecution. As the majority notes, this Board issued a decision on this 

issue to which the Service took exception and subsequently submitted 

a motion to reconsider to this Board. 

Unlike the majority, I would not have granted the motion to 

reconsider. The Service in its motion presented the argument that it 

could not "believe that Congress intended that past persecution could 

be the basis" for an asylum grant. There was no reference to legislative 

history or any other authority for this proposition. In addition, the 

Service did not state how its position in this case could be reconciled 

with the interpretation it has applied for approximately 6 years in the 

Refugee Processing Guidelines, in which it has clearly applied the 

same interpretation as the Board. Because the motion was deficient in 

these respects, I would not have granted it. 

As to the particular circumstances of this case, the majority opinion 

solely discusses the testimony of the respondent. From this the 

mistaken impression might be drawn that there is nothing else in the 

record upon which this decision might be based. There are both a 

fairly detailed advisory opinion from the Bureau of Human Rights and 

Humanitarian Affairs of the Department of State and a Country 

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Interim Decision #3104 

Reports on Human Rights Practices ("Country Reports")' in the 

record. The advisory opinion states that the respondent does not have 

a well-founded fear of persecution. This conclusion is interesting, but 

the opinion itself, in its factual dissertation, leaving aside its gratuitous 

legal analysis, unintentionally substantiates the respondent's claim, or 

at a minimum, gives it a plausible context. It is clear from the 

information provided there that widescale persecution occurred in 

China during the period in which the respondent and his family 

suffered severe ill-treatment, according to his detailed testimony. 

The Country Reports also provide evidence of both past and ongoing religious persecution. It is clear from this document, for 

instance, that prior to 1981, religious worship was forbidden, and that 

almost all places of worship were confiscated and turned into factories, 

and military and governmental facilities. Institutions for religious 

training were closed during that time. At the present, persons who 

practice any religion are "normally not allowed to join the Communist 

Party" and so are excluded from "many of the material, career, and 

other benefits" which accrue to membership. Country Reports, supra, 

at 748. This in turn "exerts a strong pressure against religious 

commitment." Id. The right to religious freedom only applies to 

persons over 18 years of age. All religious denominations are controlled 

by the state and all "legally-recognized" religions must be affiliated 

with state-organized religious bodies. Id. at 749. In order to attend 

church, a person must obtain a pass issued by local authorities. 

Participation in "unofficial clandestine 'house churches' is forbidden, 

and reports of arrests of persons who have done so is noted. Id. 

Given this information, even if one finds that the governmental 

policies toward religious belief and practice have changed considerably 

since 1981, the situation in China is far from certain. If indeed four 

Catholic priests were sentenced for "subversion" to 15 years in prison 

for maintaining relations with the Vatican, as the Country Reports 

states, I for one will express serious doubts as to the extent of religious 

freedom in China at present, and no great confidence that the very 

recent past will not be repeated. 

In these circumstances, since the respondent has been found to have 

suffered badly because of his religious affiliation and his family 

relationship to a minister of religion, there is good reason not to 

require him to return to China. This approach, aside from being 

consistent with the language of the Refugee Act of 1980, 2also puts the 

United States in conformance with the United Nations Convention 

1 1953 Country Reports on Human Rights Practices, Joint Committee of the Senate 

and House of Representatives, 98th Congress, 2d Session (1984). 

2Pub. L. No. 96-212, 94 Stat. 197. 

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and Protocol Relating to the Status of Refugees, 3a generally understood principle of interpretation of the Refugee Act of 1980. Matter of 

Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other grounds, 

Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). As the majority 

points out in its discussion of the applicability of the Handbook on 

Procedures and Criteria for Determining Refugee Status under the 

1951 Convention and the 1967 Protocol Relating to the Status of 

Refugees (Geneva, 1979), the Convention is interpreted by the United 

Nations High Commissioner for Refugees to apply to past victims of 

persecution. It bears emphasizing in addition that at the time the 

Convention came into effect, the majority of the refugees covered by 

the Convention were victims of past persecution in Europe, which 

persecution clearly had ceased with the defeat of the Axis powers. It is 

thus apparent to me that the historical underpinnings of the Convention, from which the Refugee Act of 1980 receives its genesis, would 

have to be totally ignored if one were inclined to adopt the position 

that present likelihood of persecution is also required where past 

persecution has been established. It would also be necessary to ignore 

the further fact that the United States has been operating an extensive 

refugee program for Cambodians whose claim to refugee status is 

solely based on persecution by the regime of Pol Pot, which was driven 

out of power in December 1978 by a Vietnamese invasion. 

For these reasons, I would also sustain the appeal. 

3United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 

U.N.T.S. 150; United Nations Protocol Relating to the Status of Refugees, January 31, 

1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268. 

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