United States Court of Appeals

Fifth Circuit

FILED

March 15, 2005

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 03-60681

_______________

YU ZHAO,

Petitioner,

VERSUS

ALBERTO R. GONZALES,

UNITED STATES ATTORNEY GENERAL,

Respondent.

_________________________

Petition for Review of an Order of

the Board of Immigration Appeals

m A78 129 956

_________________________

Before SMITH and GARZA, Circuit Judges,

and VANCE,

*

 District Judge.

JERRY E. SMITH, Circuit Judge:

Yu Zhao, a native of the People’s Republic

of China, attempted to enter the United States

illegally. At a hearing before an immigration

judge (“IJ”), Zhao applied for asylum and

withholding of removal. The IJ refused to

withhold removal and denied asylum on the

ground that Zhao showed neither past

persecution nor a well-founded fear of future

persecution. 

The Board of Immigration Appeals(“BIA”

or “Board”) dismissed Zhao’s appeal. He filed

a motion for reconsideration, contending that

his fear of future persecution was reasonable

* District Judge of the Eastern District of Louisiana, sitting by designation.
2

and that the IJ should have given more weight

to certain documentary and testimonial

evidence. 

Zhao petitioned this court to review the

BIA’s determinations; he consolidated that petition with the one he had filed before moving

for reconsideration. We grant the petition for

review and reverse the Board’s decision.

I.

Posing as an American citizen, Zhao tried

to enter the United States illegally in March

2000. The government issued a Notice to

Appear, alleging that Zhao was subject to removalfor falsely representing himself as a citizen. Zhao conceded that he was subject to removal but asked for, and was granted, permission to file an application for asylum and withholding of deportation, which he did in July

2000.

At his initial hearing, Zhao attempted to

submit, among other things, three contested

documents to the IJ: two written notices issued to him from Guantou Town’s Village

Committee demanding his appearance at the

Town Government and a police summons demanding his appearance at the police station.

The government objected, arguing that the

documents did not conform to 8 C.F.R.

§ 287.6 (2003), the regulationgoverning proof

of official foreign records. 

The IJ agreed with the government but

gave Zhao more time to authenticate the documents. In February 2002 the IJ held a hearing

on the merits of Zhao’s application for asylum

and withholding of deportation. Zhao had not

authenticated the documents pursuant to

§ 287.6 by the beginning of that hearing, so

the IJ excluded them. 

Zhao was the only person to testify at the

hearing, but the IJ credited all of histestimony,

which established the following: Falun Gong

is a movement that professes to help its

practitioners gain self-understanding through

spiritual and physical development. Zhao

started to practice Falun Gong in 1999 to cure

his “dizzy spells” and back pain. Zhao began

his Falun Gong practice under the tutelege of

Master Zhao Kai Feng, a mentor he had

known since childhood.

In April 1999, Zhao joined about forty

other participantsin a silent protest outside the

Town Hall for Quanto County in Fujian Province. That protest and Zhao’s participation in

it were filmed. Later that year, while he was

visiting a friend, Zhao’s mother told him the

police had been looking for him and that

authorities had arrested Feng. She cautioned

Zhao not to return home.

Zhao bicycled to his aunt’s house and hid

for several weeks. He then learned that the

police had arrested other Falun Gong followers. After hiding out at his aunt’s, Zhao traveled by bus to Fuzhou City, where he helped

his uncle at a construction site, but this activity

was limited, and he was there primarily to

“hide out.” During his stay in Fuzhou City,

Zhao’s mother visited him and told of further

police visits to their house.

At the end of February 2000, Zhao traveled

to Beijing by bus because the government had

begun a massive crackdown on Falun Gong

practitioners. Zhao’s family soon arranged for

him to travel to the United States. Zhao found

it too difficult to hide in the People’s Republic

of China because authorities were “hunting

down” Falun Gong practitioners everywhere,

and he believed the United States would afford

him the protection he needed. In March 2000,

he traveled to the United States with his fake

passport.
3

Since then, Zhao has learned that approximately 200 to 300 Falun Gong practitioners

have died during torture and that about 50,000

practitioners have been exiled or sentenced to

hard labor without a conviction. He learned

that the Chinese authorities had incarcerated

some practitioners in mental facilities and

injected them with medicine that “mess[ed]

up” their nervoussystems. Zhao was afraid to

return to the People’s Republic of China,

where he believesthe authorities will imprison

and torture him.

Zhao practices Falun Gong every morning

for twenty to thirty minutes. He has participated in one public, organized Falun Gong activity in the New York/New Jersey area since

his arrival there.

After hearing Zhao’s testimony, the IJ denied the application for asylum and withholding of deportation. Although the IJ found that

Zhao was a credible witness and (grudgingly)

that Falun Gong falls within the State Department’s operative definition of “religion,” the IJ

found that Zhao had not established either past

persecution or a well-founded fear of future

persecution on account of a protected

characteristic. 

On appeal, the BIA, in a per curiam opinion, affirmed the IJ’s decision under 8 C.F.R.

§ 1003.1(e)(5) (2003). The BIA affirmed the

IJ’s determination that Zhao had not established past persecution and that his fear of

future persecution was not objectively reasonable. The Board also noted that Zhao had

“testified that he currently seldom practices

Falun Gong and, when he does, he practicesin

private.” The Board found that Zhao had

never had any contact with government officials “despite traveling about China for

6 months after the police expressed interest in

him.”

Zhao timely filed a motion to reconsider,

re-urging the arguments he had raised before

the IJ and, for the first time, including an appeal of the IJ’s exclusion of his three unauthenticated documents. He also sought to submit other items documenting worsening conditions in the People’s Republic of China. 

In December 2003, the BIA denied reconsideration. It declined to consider the IJ’s

evidentiary ruling because Zhao had failed to

raise it in his initial appeal. Zhao timely petitioned this court to review both the BIA’sinitial decision affirming the IJ’s findings and its

denial of his motion to reopen.

II.

Seeking to introduce the unauthenticated

documents and the two State Department reports, Zhao contends that the BIA erred in rejecting his motion to reconsider. Although

Zhao labels his motion as one for reconsideration, he both re-urges current documents and

arguments and seeks to submit new evidence.

Because he seeks to introduce new evidence, his motion is also one to reopen. See

Pierre v. INS, 932 F.2d 418, 421-22 (5th Cir.

1991). These two types of post-judgment motion are distinguished primarily by the fact that

a motion for reconsideration does not present

new evidence to the BIA. Irrespective of how

Zhao labels it, we will consider his motion as

both one to reopen and one to reconsider. See

id. at 422.

A.

We review the denial of a motion to reconsider for abuse of discretion.1

 A motion for re1 Ghassan v. INS, 972 F.2d 631, 638 (5th Cir.

1992) (citing Osuchukwu v. INS, 744 F.2d 1136,

(continued...)
4

consideration urges an adjudicative bodyto reevaluate the record evidence only. See Ghassan, 972 F.2d at 638. Insofar as Zhao’s motion

was one for reconsideration, his effort fails

because he did not identify a change in the law,

a misapplication of the law, or an aspect of the

case that the BIA overlooked. See Pierre, 932

F.2d at 422. 

B.

Zhao sought to reopen the record to introduce two new documents. Those documents

are (1) the U.S. Department ofJustice International Religious Freedom Reports (“2002 Religious Freedom Reports,” issued in October

2002) and (2) the U.S. Department of Justice

Country Reports on Human Rights Practices

for 2002 (“2002 Country Reports,” issued in

March 2003). 

1.

In this circuit, the degree to which 8 U.S.C.

§ 1252(a)(2)(B)(ii) (2000) precludes judicial

review of motions to reopen immigration proceedings is an open question.2

 We have pretermitted this “thorny” question where there

were alternative means of resolving the relevant issues. See, e.g., Asaad, 378 F.3d at 474

(declining to reach the issue because the court

lacked jurisdiction for other reasons). We now

at last address the issue. Although the parties

did not raise or brief this question, we must

examine the basis of our subject matter

jurisdiction, on our own motion if necessary.3

Section 1252(a)(2)(B)(ii) proscribes judicial

review of “any . . . decision or action of the

Attorney General the authority for which is

specified under this subchapter to be in the

discretion of the Attorney General” (emphasis

added). The government does not raise the issue, but there is a question whether § 1252

bars judicial review of all motions to reopen,

and we may not exercise appellate jurisdiction

that we do not have. In Medina-Morales v.

Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004),

the court held that § 1252(a)(2)(B)(ii) does

not impose a complete jurisdictional bar. The

instant circumstances present a question that is

in all meaningful respects identical, and we

agree with the Ninth Circuit’s reasoning.

The subsection explicitly excepts asylum

determinations, made pursuant to § 1158(a),

from its jurisdictional prohibitions. The

operative statutory text precludes judicial

review of all actions specified as discretionary

under that provision’s subchapter “other than

the granting of relief under section 1158(a) of

this title.” § 1252(a)(2)(B)(ii). We therefore

have two potential sources of appellate jurisdiction: Either (1) Zhao’s motion to reopen is

a “granting of relief” under §1158(a) or (2) his

motionis notspecified asseeking discretionary

relief under subchapter II of Title 8. We do

not consider the first possibility, because we

may easily resolve the question inZhao’sfavor

using the second justification.

1

(...continued)

1142-43 (5th Cir. 1984)).

2 The Illegal Immigration Reform and Immigrant ResponsibilityAct of 1996 (“IIRIRA”), Pub.

L. No. 104-28, 110 Stat. 3009 (1996), implements

restrictions on federal court jurisdiction over several categories of BIA decisions. Those restrictions are codified at 8 U.S.C. § 1252 (2004) and

govern judicial review of proceedings commencing

on or after April 1, 1997. See Assaad v. Ashcroft,

378 F.3d 471, 474 n.1 (5th Cir. 2004) (citing

Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th

Cir. 2004)).

3 See Hill v. City of Seven Points, 230 F.3d 167

(5th Cir. 2000) (quoting Mosley v. Cozby, 813

F.2d 659, 660 (5th Cir.1987)).
5

Outside of the § 1158(a) proviso, the text

of § 1252(a)(2)(B)(ii) makes plain that we do

not have the jurisdiction to review certain discretionary actions of the Attorney General.

The law, however, proscribes judicial review

of a discretionary action only where it is specified under the subsection of title 8 that governs immigration proceedings.

Before 1996,4the authority to reopen a deportation proceeding derived exclusively from

a regulationpromulgated bythe AttorneyGeneral, 8 C.F.R. § 3.2(c) (2003).5

 In 8 U.S.C.

§ 1229a(c)(6) (2004), however, Congress set

forth a set of rules governing review of

motions to reopen immigration proceedings.

That subsection states that an alien may file

one such motion, § 1229a(c)(6)(A); specifies

that the motion shall “state the new facts that

will be proven at a hearing to be held if the

motion is granted, and shall be supported by

affidavits or other evidentiary material,”

§ 1229a(c)(6)(B); and setsforth relevant deadlines, § 1229a(c)(6)(C). These provisions,

however, only set forth the standards for evaluating a motion to reopen; they do not furnish

us with a level of deference to afford the Attorney General in making that evaluation.

A federal regulation, 8 C.F.R. § 1003.23-

(b)(3) (2003), furnishesthe quantumof discretion the Attorney General enjoys when entertaining motions to reopen. That regulation

provides that an “Immigration Judge has discretion to deny a motion to reopen even if the

moving partyhas established a prima facie case

for relief.” Id.

One might mistakenly read § 1252(a)(2)-

(B)(ii) as stripping us of the authority to review any discretionary immigration decision.

That reading, however, is incorrect, because

§ 1252(a)(2)(B)(ii) strips us only of jurisdictionto review discretionaryauthorityspecified

in the statute. The statutory language is uncharacteristically pellucid on thisscore; it does

not allude generally to “discretionary authority” or to “discretionary authority exercised under this statute,” but specifically to

“authority for which is specified under this

subchapter to be in the discretion of the Attorney General.” Id. (emphasis added). 

In ruling on Zhao’s motion, however, the

BIA exercised no such statutorily delineated

discretion; that discretion instead derived from

regulations promulgated by the Attorney General. One might argue that the statute authorizessuch a regulatorydelegation of discretion

and that the underlying activity should therefore be immune from our scrutiny, but such a

construction would belie Congress’s conspicuous selection of the phrase “specified under

this subchapter.” Aware that there is some

caselaw fromother circuitsto the contrary, we

conclude that we have authority to review the

motion to reopen.6

4 This is the year in which Congress passed the

IIRIRA.

5

See INS v. Doherty, 502 U.S. 314, 322

(1992); Lara v. Trominski, 216 F.3d 487, 496 (5th

Cir. 2000).

6 Two cases, in particular, are in tension with

our holding here and that in Medina-Morales. See

Yerkovich v. Ashcroft, 381 F.3d 990 (10th Cir.

2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799-

800 (8th Cir. 2004). We disagree with the analysis

these cases presentregardingwhether a regulation,

as opposed to a statute, may be the source of

discretion sufficient to foreclose judicial review.

Onyinkwa, id. at 799-800, addresses the distinction between statutory and regulatory authority

for discretion in a single sentence: “Since a regulation implementing subchapter II specifies that

(continued...)
6

In exercising that authority, we review the

BIA’s denial of a motion to reopen or to reconsider under a highly deferential abuse-ofdiscretion standard.7

 Our standard of review

is the same irrespective of whether the petitioner seeks withholding of deportation or

makes an asylum request.8 With regard to

how we actually apply this standard to the

Board’s denial of a motion to reopen,

[t]he standard is whether the Board has acted within the bounds of an abundant discretion granted it by Congress. It is our duty

to allow [the] decision to be made by the

Attorney General’s delegate, even a decision that we deem in error, so long as it is

not capricious, racially invidious, utterly

without foundation in the evidence, or otherwise so irrational that it is arbitrary rather

than the result of any perceptible rational

approach.

Pritchett, 993 F.2d at 83 (5th Cir. 1993)

(quoting Osuchukwu v. INS, 744 F.2d 1136,

1141-42 (5th Cir. 1984) (alterations in original)).

2.

In Doherty, the Court held that “[m]otions

for reopening of immigration proceedings are

disfavored for the same reasons as are petitions for rehearing and motions for a new trial

on the basis of newly discovered evidence.”

Doherty, 502 U.S. at 323 (citing Abudu, 485

U.S. at 107-08). Indeed, 8 C.F.R. § 1003.2-

(c)(1) states that “[a] motion to reopen proceedings shall not be granted unless it appears

to the Board that the evidence sought to be offered is material and was not available and

could not have been discovered or presented at

the former hearing . . . .”

The Board did not abuse its discretion in refusing to reopen the record to admit the unauthenticated documents. Those documents had

been presented before the IJ, who excluded

them, and Zhao failed to contest this ruling on

direct appeal. Although the documents are

material, § 1003.2(c)(1) is stated in the conjunctive, and the documents were plainly

available and considered in the hearing before

the IJ.

The BIA’s failure to re-open the record to

admit the 2002 InternationalFreedomReports

and the 2002 CountryReports, however, rests

on far more precarious logic. The BIA

dispenses, in a single sentence, with Zhao’s at6

(...continued)

power to grant continuancesis within the discretion

of immigration judges, under the IIRIRA courts

generally have no jurisdiction to review the exercise of that discretion.” We decline to endorse an

interpretation whereby any statutorily authorized

regulation conferring discretion necessarily forecloses judicial review. Such a reading is contrary

to Congress’s language and has adverse policy

consequences.

Yerkovich does not even mention the distinction

between a statute and a regulation furnishing

discretionary authority. The court quotes Van

Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999),

in support of the proposition that a motion to reopen cannot be subject to judicial review. Van

Dinh itself, however, misstates the statutory text,

omitting the phrase “the authority for which is specified” before “under this subchapter.” By selectively (or inadvertently) omitting this language, the

Yerkovich and Van Dinh courts analyze statutory

language that Congress did not adopt.

7 Lara, 216 F.3d at 496 (citing Doherty, 502

U.S. at 322-23; Pritchett v. INS, 993 F.2d 80, 83

(5th Cir. 1993)).

8

See Doherty, 502 U.S. at 323 (quoting INS v.

Abudu, 485 U.S. 94, 99 n.3 (1988)).
7

tempt to reopen the record to admit these documents: “To the extent that [Zhao] seeks reopening for the submission of previously unavailable evidence, we find insufficient cause

to reopen, as [Zhao’s] new evidence largely

repeats the extensive country condition information already in the record.” As we overturn

this ruling, we take full account of the broad

discretion delegated to the Board in adjudicating these motions. Here, however, the Board

erred egregiously in its conclusion.

The Board requires an applicant to provide

corroborating evidence where it is reasonable

to do so. Specifically, “general background

information about a country, where available,

must be included in the record as a foundation

for the applicant’s claim.” Matter of S-M-J,

21 I. & N. 722, 724 (1997) (emphasis added).

The IJ issued her decision on February 5,

2002, before publication of the 2002 International Freedom Reports and the 2002 Country

Reports. Although S-M-J deals with an asylum applicant’s failure to include crucial background documentation, it would be a bizarre

policy indeed to require the applicant to provide the Country Reports before the issuance

of an IJ’s final order, but categorically to refuse to allow him to introduce them, once they

become available, on a motion to reopen.

That is not to say that any or even a substantial variety of documentation should require

the BIA to reopen asylum proceedings, but it

is to say that, in the name of legal consistency,

there must be some situations in which the

content of the new documentation requires

that result.

The government argues, as the BIA reasoned, that the 2002 Country Reports do not

justify reopening the record because they

merely restate the conditions described in the

1999 Country Reports. Here the government

is somewhat disingenuous. When, at oral argument, the government sought to rebut the

contentionthat theChinese government persecutes mere practitioners of Falun Gong, it reminded us that evidence regarding Chinese

persecution of non-leaders was contained in

the 2002 Country Reports, not the 1999 reports. The government cannot simultaneously

argue that, on the one hand, the 2002 Country

Reports contain a crucial piece of evidence

that is absent from the 1999 Country Reports

in the record and, on the other, that the two

new documents are redundant.

According to the Department of State

InternationalReligious FreedomReport 2002,

Since the [Chinese] Government banned

the [Falun Gong] in 1999 and began a comprehensive nationwide repression of the

movement, the practice of Falun Gong or

possession of its literature has been sufficient groundsfor practitioners to receive

punishment ranging from loss of employment and education opportunities to imprisonment. Some Falun Gong members

have been tortured in custody and there

have been reports that several hundred or

more Falun Gong adherents have died in

detention since 1999. Falun Gong members who “disrupt public order” or distribute publications may be sentenced to 3 to 7

years in prison . . . .

(Emphasis added.) The next paragraph of that

document adds that “[e]ven [non-protesting]

practitioners . . . were forced to attend [antiFulon Gong] classes. Those who refused to

recant their belief . . . were sent to reeducation-through-labor camps, where, in some cases, beatings and torture were used to force

them to recant their beliefs.” 
8

The 2002 Country Reports echo this description of lower-level practitioners’ treatment: “Since the [Chinese] Government

banned the [Falun Gong] in 1999, the mere belief in the discipline (and since January, even

without any public manifestation of itstenets)

has been sufficient groundsfor practitionersto

receive punishment ranging from loss of

employment to imprisonment.” (Emphasis

added.) 

Ifthe position ofthe United States Government is that the record evidence introduced at

the initial administrative hearing does not demonstrate that mere practitioners were the

objects of Chinese government persecution,

then the previously unavailable documents

Zhao sought to introduce into the record must

be admitted on a motion to re-open, because

they establish precisely that crucial proposition.9

 The BIA abused even its abundant

discretion in failing to allow the documents to

be introduced.10

III.

Under 8 U.S.C. § 1158(a) (2004) the

Attorney General enjoys authority to grant

asylum to any alien who qualifies as a refugee

under § 1101(a)(42)(A). For purposes of this

statute, a refugee is

any person who is unable or unwilling to

return to, and is unable or unwilling to avail

himself or herself of the protection of, that

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 . . . . 

8 U.S.C. § 1101(a)(42)(A) (emphasis added).

The decision to grant or deny asylum involves two components. First, the alien must

demonstrate that he has been persecuted or

has a well-founded fear of persecution on account of one of the factors listed in § 1101(a)-

(42)(A).11 That the alien qualifies as a refugee

under the statute does not, however, automatically entitle him to asylum. The language

of § 208 is precatory, and the decision to grant

or deny asylum is within the IJ’s discretion.12

The IJ found that there was no evidence of

past persecution and that Zhao’s credited testimony was legally insufficient to establish a

well-founded fear of future persecution. Specifically, the IJ found that Zhao had presented

no evidence that any Chinese government official ever confronted him at any time for any

reason. The IJ did not question Zhao’s verac9 Alternatively, if the government’s position is

that the 1999 Country Reports suggest all of this

information, then we would be forced to hold,

based only on a review of the existing record, that

it abused its discretion.

10 Zhao contends that the IJ erred as a matter of

law when she excluded his three supporting documents under 8 C.F.R. § 287.6. This argument is

distinct fromZhao’s assertion that theBIA erred in

refusing to reopen the record to admit these same

documents; accordingly, it is subject to a different

analysis. We need not resolve this question, however, because (1) the current record does not

demonstrate the steps, if any, that Zhao took to authenticate the documents; and (2) we grant Zhao’s

petition and reverse the Board on the record evidence and the supplementary documents Zhao first

sought to introduce on his motion to reopen.

11 See Mikhael, 115 F.3d at 303; Faddoul v.

INS, 37 F.3d 185, 188 (5th Cir. 1994).

12 Mikhael, 115 F.3d at 303; Faddoul, 37 F.3d

at 188.
9

ity but stated that “Zhao simply failed to make

his case.” That the IJ did not doubt Zhao’s

testimony is significant, because we must

accept as true all the facts to which Zhao

testified. The question is merely the interpretation and legal sufficiency of those facts.

A.

We use the substantial evidence standard to

review the IJ’s factual conclusion that an alien

is not eligible for asylum. See Chun, 40 F.3d

at 78 (citing Adebisi, 952 F.2d at 912). Under

substantial evidence review, we cannot reverse

the BIA’s factual determinations unless we

decide “not only that the evidence supports a

contrary conclusion, but also that the evidence

compelsit.” Id. (citing INS v. Elias-Zacarias,

502 U.S. 478, 481 n.1 (1992)). The alien

must prove that the evidence is so compelling

that no reasonable factfinder could reach a

contrary conclusion. See id. “[I]t is the

factfinder’s dutyto make determinations based

on the credibility of the witnesses.” Id. (citing

Vazquez-Mondragon v. INS, 560 F.2d 1225,

1226 (5th Cir. 1977)). We will not substitute

our judgment for that of the BIA or IJ “with

respect to the credibility of witnesses or ultimate factual findings based on credibility

determinations.” Id. 

1.

There is no error in the IJ’s determination

that Zhao hasfailed to demonstrate past persecution. Zhao points to no evidence that the

government ever arrested, detained, interrogated, or harmed him or his family. See

Faddoul, 37 F.3d at 188. As the IJ noted,

there is no evidence in the record that a government official ever confronted Zhao because

of his involvement in Falun Gong.

2.

To establish a well-founded fear of future

persecution, an alien must demonstrate “a subjective fear of persecution, and that fear must

be objectively reasonable.” Eduard v. Ashcroft, 379 F.3d 182, 189 (5th Cir. 2004)

(quoting Lopez-Gomez v. Ashcroft, 263 F.3d

442, 445 (5th Cir. 2001)). The INA does not

define persecution, but we have described it as

“[t]he infliction of suffering or harm, under

government sanction, upon persons who differ

in a way regarded as offensive (e.g., race,

religion, political opinion, etc.), in a manner

condemned by civilized governments.” Abdel-Masieh v. INS, 73 F.3d 579, 583-84 (5th

Cir. 1996). “The harm or suffering need not

be physical, but may take other forms, such as

the deliberate imposition of severe economic

disadvantage or the deprivation of liberty,

food, housing, employment or other essentials

of life.” Id. The applicant, however, need not

provide evidence that he would be singled out

for persecution, if

(A) [he] establishes that there is a pattern

or practice in [his] country . . . of persecution of a group of personssimilarly situated

. . . on account ofrace, religion, nationality,

membership in a particular social group, or

political opinion; and

(B) [he] establishes [his] own inclusion in,

and identificationwith,such a group of persons such that [his] fear of persecution

upon return to that country is reasonable.

8 C.F.R. § 208.13(b)(2)(iii)(A)-(B) (2003).

There are therefore two different ways for

Zhao to prove the objectivity of his persecution claim. First, he can show that he would

be singled out for persecution. Alternately, he

can satisfy the two prongs of § 203.13(b)-

(2)(iii).

The IJ explicitly credited Zhao’stestimony,

so Zhao’s possession of a subjective fear is not

at issue. With regard to the well-founded fear
10

of future persecution, the alien’s “subjective

fear will satisfy this standard if ‘a reasonable

person in [his] circumstances would fear

persecution if [he] were to be returned to [his]

native country.’” Faddoul, 37 F.3d at 188

(quoting Guevara Flores v. INS, 786 F.2d

1242, 1249 (5th Cir. 1986)). This standard,

however, does not require Zhao to demonstrate that he will be persecuted on returning

to the People’s Republic of China. It requires

a lesser showing of certaintySShe must show

“to a reasonable degree” that his return there

would be intolerable. See Eduard, 379 F.3d at

189 (citing Mikhael, 115 F.3d at 305)) (internal quotation marks omitted).

This court regards the reasonableness inquiry as one into both subjective and objective

fear. To establish the objective reasonableness

of a well-founded fear of future persecution,

the alien must prove that

(1) he possesses a belief or characteristic a

persecutor seeks to overcome by means of

punishment ofsome sort;(2) the persecutor

is already aware, or could become aware,

that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and, (4) the

persecutor has the inclination to punish the

alien. 

Eduard, 379 F.3d at 191 (citing Matter of Mogharrabi, 19 I & N Dec. 439, 446 (BIA

1987)). 

Two further legal points merit repeating.

First, the test does not require Zhao to prove

that he had been personally targeted, because

such an interpretation would render the future

persecution inquiry redundant of the past

persecution analysis. See id. at 192. Second,

Zhao need not prove that the Chinese government was actually aware that he was a Falun

Gong practitioner (although it is fairly certain

from the record that it was), but merely that

that government easily could become aware of

such status. See id. at 192-93. 

With regard to Zhao’s alleged fear offuture

persecution, the IJ found that

[t]he respondent argues that he is concerned about the future persecution. However, the respondent also has indicated that

he has not been very much involved in the

practice ofthe spiritual exercise. In fact, he

indicated in his initial testimony that he

didn’t have time because he’s studying and

trying to better himself. He had an education.

That passage isthe extent ofthe IJ’sfinding

concerning Zhao’s alleged fear offuture persecution on returning to the People’sRepublic of

China. In determining the objective justification for that fear, the IJ focused solely on

Zhao’s Falun Gong practice in the United

States. 

In essence, the IJ reasoned that Zhao could

not have a well-founded fear of future persecution because he seldom practices Falun

Gong publicly in New York. Zhao argues that

the IJ drew the wrong conclusions from the

record testimony and failed to consider other

testimony that supports his claim. Noting the

self-evident flaws in the IJ’s apparent inferences, we agree.

With respect to the first element of the reasonableness inquirySSwhether the applicant

possesses a belief or characteristic that a persecutor seeks to overcome by means of punishment of some sortSSthe government does

not dispute that Zhao is a Falun Gong practitioner. The IJ explicitly notes that Falun Gong

fits within the statutory meaning of the word
11

“religion.” In her mystifying analysis, the IJ infersfromZhao’sinfrequent public Falun Gong

participation that he no longer qualifies for

protection under the statute. 

This reasoning is deeply flawed. Zhao’s

testimony establishes that his participation in

public Falun Gong activities was not an accurate proxy for his actualfidelityto the practice.

He continued to practice Falun Gong in

private almost every day. The 1999 Country

Reports establish that the Chinese government

indeed targeted Falun Gong practitioners for

punishment. The 2002 Country Reports are

even more explicit on this score.13

With respect to the second element of the

reasonablenessinquirySSwhether the People’s

Republic of China is already aware, or could

become aware, that the applicant possess this

belief or characteristicSSthe record also establishes that Zhao meets his burden. The record

is replete with uncontroverted testimony both

(1) that in his hometown, Zhao participated

publicly in Falun Gong activities and (2) that

the local authorities visited his house to look

for him on several occasions. 

The government urges us not to connect

the various dots—(1) that Zhao was

videotaped partaking in a Falun Gong

demonstration; (2) that Falun Gong practitioners are objects of Chinese government

persecution; (3) that Zhao’s master was

arrested; and (4) that the police visited Zhao’s

home looking for him. Although the original

record does not contain direct evidence that

the authorities were seeking out Zhao because

of his Falun Gong participation, that inference

is unavoidable in light of Zhao’s credited,

uncontroverted testimony. Moreover, Zhao

need not rely on the unauthenticated

documents to support the inference.

With respect to the third and fourth elements, the supplemental documentation establishes not only that the Chinese government

hasthe capability and inclination to punish Falun Gong practitioners, but also that it has

already done so. Those facts require no further elaboration here.14 The two sets of

Country Reports confirm that the People’s

Republic ofChina is capable of, and intendsto,

crack down on Falun Gong practitioners. 

13 We present much of this information in the

discussion of Zhao’s motion for reconsideration.

For example, according to the Department of State

International Religious Freedom Report 2002,

[s]ince the [Chinese] Government banned the

[Falun Gong] in 1999 and began a comprehensive nationwide repression ofthemovement, the

practice of Falun Gong or possession of its

literature has been sufficient grounds for practitioners to receive punishment ranging from

loss of employment and education opportunities

to imprisonment. Some Falun Gong members

have been tortured in custody and there have

been reportsthatseveral hundred or more Falun

Gong adherents have died in detention since

1999. Falun Gong members who “disrupt public order” or distribute publications may be sentenced to 3 to 7 years in prison . . . .

(Emphasis added.)

14 The 1999 Country Reports explain that in

July of that year the government of the People’s

Republic of China initiated a crackdown against

the movement, imprisoning thousands and beating

those who refused to recant their beliefs. The two

Houses of Congress unanimously passed a concurrent resolution condemning those actions. As discussed above, the 2002CountryReports, which the

BIA should have re-opened the record to include,

make evident that the Chinese government employed these tactics against not only core leaders

but also mere practitioners.
12

At oral argument the government took the

position that, although the Chinese government may punish mere Falun Gong practitioners (rather than leaders) administratively,

such penalties do not amount to persecution

within the meaning of the statute. First, the

2002 Country Reports reveal the government’s contention at oral argument to be inconsistent with the Attorney General’s assessment that even lower level practitioners are

punished.15 Second, the government is reading

into the 1999 Country Reports a clean

distinction between leaders and mere practitioners where, in fact, that distinction does not

exist. Third, the government cites no support

for this proposition, which flies in the face of

common sense when we consider that the “administrative” penalties include severe fines,

imprisonment, and torture.

The BIA’s opinion seemsto premise denial

on three major considerations: (1) that Zhao

now rarely practices Falunn Gong publicly;

(2) that he had no “direct contact with government officials”; and (3) that he was able to

travel freely about the People’s Republic of

China forsix months after the police expressed

interest in him. As we have said, the

frequencywith which Zhao now practices Falun Gong publicly bears no relationship to how

likely the Chinese government is to persecute

him on his potential return. 

The BIA’s statement that Zhao did not

have direct contact with government officials

is equally delphic—the reason Zhao did not

come into direct contact withChinese officials

isthat he was evading them. Such lack of contact may militate against a finding of past

persecution, but that is not the argument on

which Zhao’s application stands. 

The IJ cites Zhao’s lack of contact with

government officials as though one can reasonably infer that they were not looking for

him. The record, however, is replete with uncontroverted testimony that Zhao was fleeing

the authorities on discovering that they were

searching for him. 

Finally, the characterization of Zhao as

“traveling” about the People’s Republic of

China forsix monthsis misleading and borders

on being disingenuous. The record establishes

that for that entire period of time, Zhao was

either fleeing the authorities or hiding. Although the record indicates that Zhao did

work while he was at his uncle’s construction

site, it is equally obvious that he was there

primarily to evade the authorities. The BIA

therefore abused its discretion in ruling that

Zhao did not have the well-founded fear of future persecution necessary to sustain an asylum claim.

IV.

An alien who fears persecution if returned

to a particular country has two potential

sources of relief under the INA: asylum and

withholding of removal. A grant of asylum

permits the alien to remain in this country; a

withholding of removalforbids hisremoval to

the persecuting country.16 A grant of asylum

is within the AttorneyGeneral’s discretion, but

restriction on removal is granted to qualified

aliens as a matter of right. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 424 (1987).

We grant Zhao’s asylum application, so we

need not consider the removal issue.17

15 See supra note 13 and part II.B.2.

16 See INA §§ 208 & 241(b)(3), codified at

8 U.S.C. §§ 1158, 1231(b)(3).

17 Because we resolve the case on other

grounds, we do not reach Zhao’s due process

(continued...)
13

V.

TheAttorneyGeneralenjoys significant discretion inmaking asylumdeterminations. That

authority, however, is not plenary. The IJ

credited allofZhao’stestimonybut interpreted

it in such a way that allowed her to rule

against him on gro unds of legal sufficiency.

The IJ’ssummaryofZhao’stestimonyconsists

entirely of conclusory remarks, mischaracterizations of various events, and non-sequiters.

TheBIArubber-stamped the IJ’sruling and

then dismissed (in a single sentence), as redundant, the detailed corroborating materials

Zhao submitted in his motion to reopen.

Zhao’s testimony, if true, is likely sufficient to

justify our decision to grant his petition and

overturn the BIA. Once we consider the documentationexcluded in error, however, the decision is an easy one. The Attorney General’s

discretion is not so broad so as to allow him to

reject asylum applications without a logical

explanation.

Ordinarily, upon allowing reopening of the

record, we would remand the persecution

question to the BIA. See INS v. Ventura, 537

U.S. 12, 16-17 (2002).18 The circumstances

here, however, differ from those appellate

courts generally confront in reviewing a motion to reopen. In Ventura, for example, the

BIA had not considered the changed country

conditions argument at all. See id. Here, to

the contrary, the Board has already rejected

the “changed country conditions” proposition,

so our ruling on the persecution issue does not

usurp the Board’s authority to rule on it first.19

Moreover, although the language in Ventura is

strong, it remains precatory. The Court could

have worded its holding categorically, and its

failure to do so must be a conscious decision.

We cautiously conclude that this case exhibits

the narrow set of circumstances that requires

no remand.20

17(...continued)

claims.

18 The specific language in Ventura is worth

noting:

Generally speaking, a court of appeals should

remand a case to an agency for decision of a

matter that statutes place primarily in agency

hands. This principle has obvious importance

in the immigration context. The BIA has not

yet considered the “changed circumstances”

issue. And every consideration that classically

(continued...)

18(...continued)

supportsthe law’s ordinary remand requirement

does so here. The Agency can bring its expertise to bear upon the matter; it can evaluate

the evidence; it can make an initial determination; and, in doing so, it can, through informed

discussion and analysis help a court later determine whether its decision exceeds the leeway

that the law provides.

Ventura, 537 U.S. at 16-17.

19 The finalsentence of theBIA’s opinion reads:

“To the extent that the respondent seeks reopening

for the submission of previously unavailable

evidence, we find insufficient cause to reopen, as

the respondent’s new evidence largely repeats the

extensive country condition information already in

the record.” The BIA had already determined that,

based on the record evidence sans supplemental

reports, Zhao had no well-founded fear of future

persecution.

20 We also note that in Ventura, 537 U.S. at 17-

18, the Court explicitly stated that the State Department report on which the Ninth Circuit had

relied was equivocal with respect to the relevant

(continued...)
14

The petition for review is GRANTED, and

the order of the BIA is REVERSED. This

matter is remanded to the BIA for any further

necessary proceedings in accordance with this

opinion.

ENDRECORD 

20(...continued)

country conditions. Similar equivocation is absent

in the State Department and Religious Freedom

reportsthat constituteZhao’s evidenceof “changed

country conditions” for Falun Gong in the People’s

Republic of China.
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:

I concur in the majority’s well-reasoned decision, except for its

final resolution. The majority correctly notes that “the proper

course, except in rare circumstances, is to remand to the agency

for additional investigation or explanation.” Ventura, 537 U.S. at

16. However, this case does not present the court with “rare

circumstances” that would warrant granting asylum without first

remanding the case to the BIA for further review. While the BIA

did consider the “changed country conditions,” it did so only in

the context of the motion to reopen. The BIA was never given an

opportunity to “bring its expertise on the matter; [to] evaluate

the evidence; and . . . [provide an] informed discussion and

analysis” on these changed circumstances as they relate to Zhao’s

actual asylum claim. Id at 17. As a result, the majority has

“seriously disregarded the agency’s legally mandated role.” Id.

The more prudent and proper approach is to reverse the BIA’s order

denying Zhao’s motion to reopen, and to remand the case to the BIA

for additional investigation or explanation. 

 Accordingly, I respectfully DISSENT IN PART.