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

_______________



### Y U 

### Z HAO



### ,

Petitioner,

VERSUS



### A LBERTO 

### R. G ONZALES



### ,

U NITED S TATES A TTORNEY G ENERAL

,



### Respondent.

_________________________

Petition for Review of an Order of

the Board of Immigration Appeals



### m A78 129 956

_________________________

Before S MITH

and G ARZA , Circuit Judges,

and V ANCE

, * District Judge.

J ERRY E. S MITH , Circuit Judge:

Yu Zhao, a native of the People’s Republic

of China, attempted to enter the United States i l legally. At a hearing before an immigration

judge (“I J”), Zhao applied for asylum and

withholding of remo val. The IJ refused to

with ho ld removal and denied asylum on the

ground that Zhao showed neith e r 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 o f 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 cou rt to revi ew 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 removal for 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 deportati on, which he did in July

2000.

At his init

ial hearing, Zhao attempted to

submit, among other things, three contested

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

Committee demanding his appear ance at the

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

Th e go vernment objected, arguing that the

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

§ 287.6 (2003), the regulation governing 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 deportati on. Zhao had not

auth enticated the documents pursuant to

§ 287.6 by the beginning of that hearing, so

the IJ excluded them.

Zhao was the on ly person to testify at the hearing, but the IJ credited all of his testimony,

which established the following: Falun Gong

is a movement that professes to help its

practition e rs gain self-understanding through

spiritual and physical devel o pment. 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

Mast er Zhao Kai Feng, a mentor he had

known since childhood.

In April 1999, Zhao joined about forty

other participants in 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

visit ing a f

riend, Zhao’s mother told him the

p o lice had been looking for him and that

authorities had arrested Feng. She cautioned

Zhao not to return home.

Zhao b icycled 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 limit ed, and he was there primari ly 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 cr ackdown 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 becau se authorities were “hunting

down” Falun Gong practitioners everywhere,

and he believed the United States would afford

him the protecti on 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 3 0 0 Falun Gong practitioners

have died during torture and that about 50,000

practitioners have been exiled or sentenced to

hard labor without a convict io n. He learned

that the Chinese authorities had incarcerated

some practitioners in mental facilit i es and

injected them with medicine that “mess[ed]

up” their nervous systems. Zhao was afraid to

return to t he People’s Republic of China,

where he believes the 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 testim ony , the IJ denied the application for asylum and withholding of deportati on. 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

persec u tion or a well-founded fear of future

p ersecuti on 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 e stablished past persecution and that his f ear of

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

“testified that he cu r rently seldom practices

Falun Gong and, when he does, he practices in

private.” The Board found that Zhao had

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

6 months after the police expressed interest in

him.” Zhao t imely filed a motion to reconsid e r,

re-urging the argumen t s he had raised before

the IJ and, for the first time, including an appeal of th e 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 reconside rat ion. It declined to consider the IJ’s

evidentiary ruling because Zhao had failed to

raise it in his init

ial appeal. Zhao timely petitioned this court to review both the BIA’s initial decision affirming the IJ’s findings and its

denial of his motion to reopen.

II.

S eeking to introduce the unauthenticated

documents and the two State Department reports, Zhao contends that the BIA erred in rejecting his motion t o 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. S ee

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

co nsider his motion as

both one to reopen and one to reconsider. S ee

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.2 d 1136,

(continued...)4

consideration urges an adjudicative body to reevaluate the record evidence only. S ee 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. S ee Pierre

, 932

F.2d at 422.

B.

Zhao sought to reopen the record to i ntroduce two new documents. Those documents

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

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

Country Report s o n 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 wh ere there

we re alternative means of resolving the relevant issues. S ee, 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)(i

i) proscribes judicial

review of “any

. . . decision or acti on of the

A ttorney General the authority for which is

specified under this subchapter t o be in the

discretion of the Attorney General” (emphasis

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

bars ju dicial review of all motions to reopen,

and we may not exercise appellate jurisdiction

t hat we do not have. In M edina-Morales v.

Ashcroft

, 371 F.3d 520, 52 8 (9th Ci r. 2004),

t he 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 a s ylum

d eterminations, made pursuant to § 1158(a )

, fro m its jurisdictional prohibitions. The

operative statutory text precl udes 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 po t ent ial sources of appellate jurisdiction: Either (1) Zhao’s motion to reopen is

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

motion is not specified as seeking discretionary

relief u nder subchapter II of Title 8. We do

not consider the first possibi l it y, because we

may easily resolve the question in Zhao’s favor

using the second justification. 1 (...continued)

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

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

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

restrictions on federal court jurisdictionover several categor i es 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. S ee 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. Cozb y , 813

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

Out side 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 Attor ney 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, 4 the authority to reopen a deportati on proceeding derived exclusively from

a regulation promulgated by the Attorney General, 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

m o tions 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

moti o n is granted, and shall be supported by

affidavits or other evidentiary material,”

§ 1229a(c)(6)(B); and sets forth 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 wit h 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), furnishes the quantum of discretion the Attorney General enjoys when entertaining motions to reo pen. That regul ati on

provides that an “Immig rat io n Judge has discretion to deny a motion to reopen even if the

moving party has established a prima facie case

for relief.” Id. O n e might mistakenly read § 1252(a)(2)-

( B)(ii) as stripping us of the authority to r e

view any discretionary immigration d ecision.

That re ading, however, is incorrect, because

§ 1252(a)(2)(B)(ii) strips us only of jurisdiction to review discretionary authority specified

in the s tatute . The statutory language is uncharacteristically pellucid on this score; it does

not allu d e generally to “discretionary author it y” or to “discretionary authority exercised under th i s statute, ” but specifically to

“authority for which is specified under this

s ubchapter t o be in the discretion of the Attorney General.” Id. (emphasis added)

.

In ruling on Zhao’s motion, however, the

BIA exercised no such stat ut o rily delineated

discretion; that discretion instead derived from

regulations promulgated by the Attorney General. One might argue that the statute authorizes such a regulatory delegation 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 “spec ified under

this subchapte r.” Aware that there is some

caselaw from other circuits to 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. 3 14, 322

(1992); Lara v. Trominski

, 216 F.3d 487, 496 (5th

Cir. 2000). 6 Two cases, in particular, are in tensio n with

our holding here and that in Medina-Morales

. S ee

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 present regarding whether a regulation

,

as opposed to a statute

, may be the source of

discretion sufficient to foreclose judicial review.

Onyinkwa

, i d. at 799-800, addresses the distinction between statutory and regulatory authority

for discretion in a single sentence: “Since a regulat i on 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 de ferential abuse-ofdiscretion standard. 7 Our standard of review

is the same irrespective of whether the petit io ner seeks withholding of deportation or

makes an asylum request. 8 With regard t o

how we actually apply this standa r d 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 i s our duty

to allow [the] decis io n t o be made by the Attorney General ’s delegate, even a decision that we deem in error, so long as it is

not cap r icious, racially invidious, utterly

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

than the res ult of any perceptible rational

approach.

Pritchett

, 993 F.2 d at 83 (5th Ci r. 1993)

(quoting Osuchukwu v. INS

, 744 F.2d 1136,

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

2.

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

for reopening of immigration proceedings are

disfavored for the same re asons as are peti

tions for rehearing and motions for a new trial

on the basis of newly discovere d evidence.”

Dohe rty , 502 U.S. at 323 (citing A budu

, 485

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

(c)(1) states that “[a] motion to reo pen 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 t he IJ, who excluded

them, and Zhao failed to contest this ruling on

direct appeal . Although the documents are

mate rial, § 1003.2(c)(1) is stated in the conjunctive, and the docum ents were plainly

available and considered in the hearing before

the IJ.

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

admit the 2002 International Freedom Reports

and the 2002 Country Reports, however, rests

on far more pr ecarious logic. The BIA

dispenses, in a single sentence, with Zhao’s at6 (...continued)

power to grant continuances is within the discretion

of immigration judges, under the IIRIRA courts

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

interpretation whereby any statutorily authorized

regulation conferring discr etion 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

discretionar y authority. The court quotes V an

Dinh v. Reno

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

in support of the prop osition that a motion to reopen cannot be subject to judicia l review. V an

Dinh itself, however, misstates t he 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 D oherty

, 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 reo pening for the submission of previously unavailable evidence, we find insufficient cause

to r eo pen, as [Zhao’s] new evidence largely

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

this ruling, we take full acc ount 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 app licant’s claim.” M atter of S-M-J

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

The IJ issued her deci sio n on February 5,

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

Reports. Although S -M- J d eals with an asylum applicant’s failure to include crucial background docum

ent at ion, it would be a bizarre

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

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

become available, on a m oti on to reopen.

That is not to say that any or even a substantial variety of documen t at ion should require

the BIA to reopen asylum proceedings, but it

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

there must be some sit uat ions in which the

content of the new docu ment ation requires

that result.

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

justify reopening the record be cause 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

contention that the Chinese government persecutes mere practitioners of Falun Gong, it reminde d 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 o f evidence

that is absent from the 1999 Country Reports

i n the record and, on the other, that the two

new documents are redundant.

Accordi ng to the Departm ent of State

International Religious Freedom Report 2002,

Si n ce 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 grounds for practitioners to receive

punishment ranging from loss of employment and educat ion 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 hav e died in

detention si n ce 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

. . . w ere forced to attend [anti

Fulon Gong] cl asses. 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 Rep o rts echo this description of lower-level practitioners’ tre a tment: “Since the [Chinese] Government

banned the [Falun Gong] in 1999, the mere belief in the discip line (and since January, e ven

without any public manifestation of its tenets )

has been sufficient grounds for practitioners to

receive punishment ranging from loss of

employme n t to imprisonment.” (Emphasis

added.)

If the position of the United States Government is that the record evidence introduced at

the init ial administrative hearing does not demonstrate that mere practitioners were the

o b jects of Chinese government persecution,

then the previ o usly unavailable documents

Zhao sought to introduce into the record must

be admitted o n a motion to re-open, because

t hey 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 authorit y 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-fou nded 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

und er 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 testimo ny 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 support ing documents under 8 C.F.R. § 287.6. This argument is

distinct from Zhao’s assertion that the BIA erred in

r efusing 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 curre nt r ecord 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 onthe record evidence and the supplementary documents Zhao first

sought to introduce on his motion to reopen

. 11 See Mikhael

, 115 F.3d at 303; F addoul 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

testimon y is significant, because we must

accept as t rue 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. S ee 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

compels it.” I

d. (citing INS v. Elias-Zacarias

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

must prove that the evidence is so compelling

that no reasonable factfinder could reach a

co n trary conclusion. S ee id. “[I]t is the

factfinder’s duty to make determinations based

on the credibility of the witnesses.” I d. (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

r espect 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 has failed to demonstrate past persecution. Zhao points to no evidence that the

government ever arrested, detained, in t errogated, or har med him or his family. S ee

Faddoul

, 37 F.3d at 18 8. 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 re asonable.” E duard v. Ashcroft

, 379 F.3d 182, 189 (5th Cir. 2 004)

(quotin g 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 inflict

ion 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.” A bdel-M asieh 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 depriv a tion of liberty,

food, housing, employment or other essentials

of life.” I d. T he 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 persons similarly situated

. . . on account of race, religion, nationality,

membership in a particular social group, or

political opinion; and

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

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

upon return to that country is reasonable.

8 C.F.R. § 20 8 .13(b)(2)(iii)(A)-(B) (2003).

There are therefore two differ ent ways for

Zhao to pro ve 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’s testimony,

so Zhao’s possession of a subjective fear is not

at issue. With regard to the well-founded fear10

of future persecution, the ali en’s “subjective

fear will satis f

y this standard if ‘a reasonable

person in [his] circumstan ces would fear

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

native country.’” F

addo ul , 37 F.3d at 188

(qu oti ng G uevara Flores v. INS

, 786 F.2d

1242, 1249 (5t h Cir. 1986)). This standard,

h owever, does not requi re Zhao to demonstrate that he w ill be persecuted on retur ning

to the People’s Republic of China. It requires

a lesser showi n g of certainty 

### SS he must show

“to a reasonable degree” that his r eturn there

would be intolerable. S ee Eduard

, 379 F.3d at

189 (citing Mikhael

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

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

fear. To establish the objective reasonableness

of a well-founded fear of future persec uti on,

the alien must prove that

(1) he possesses a belief or characteristic a

persecutor seeks to overcome by means of

punishment of some sort; (2) the persecutor

is already aware, or could become aware,

that the alien po s sesses this belief or characteristic; (3) the persecutor has th e capabilit y of punishin g 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 f urt her 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. S ee 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 of future

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 of the spiritual exercise. In fact, he

indicated in his init

ial te st imony that he

didn’t have time because he’s studying and

trying to better himself. He had an education.

That passage is the extent of the IJ’s finding

concerning Zhao’s alleged fear of future persecution on returning to the People’s Republic of

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

Zhao’s Falun Gong practice in the U nited

States.

In essence, the IJ reasoned that Zhao could

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

Gong publicly in New York. Zhao argues that

the IJ drew the wrong conclusions from the

r ecord testimony and failed to consider ot her

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 inquiry 

### SS

whether the applic a nt

possesses a belief or characteristic that a persecutor seeks to overcome by me ans of punishment of some sort 

### S S

the government does

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

fits within the statutory mean i ng of the word11

“religion.” In her mystifying analysis, the IJ infers from Zhao’s infrequent public Falun Gong

participation that he no l o nger qualifies for

protecti on under the statute.

Thi s reasoning is deeply flawed. Zhao’s

testimony establishes that his participati o n in

public Falun Gong activities was not an accurate proxy for his actual fidelit y to 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

reasonableness inquiry 

### SS

whether the People’s

Republic of China

is already aware, or could

become aware, that the applicant possess this

belief or characteristic 

### SS

the 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 a nd (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

vid e otaped partaking in a Falun Gong

demonstration; (2) that FalunGong practitioners are ob

ject s of Chinese government

persec ut ion; (3) that Zhao’s master was

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

home looki ng for him. Although the original

record does not contain d irect 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 t e stimony. Moreover, Zhao

need no t 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

has the 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 of China is capable of, and intends to,

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 bann ed the

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

prac tice of Falun Gong or possession of its

literature has been sufficient grounds for practitioners to r eceive 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

Go n g 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 Count ry Reports explain that in

July of that year the government of the People’s

Republic of China initiate d 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 2002 Country Reports, which the

BIA should have re-opened the record to include,

make evident that the Chinese go ver nment employed these tactics against not only core leaders

but also mere practitioners.12

At oral argument the government took the

p osition that, although the Chinese govern

ment may punish mere Falun Gong practi ti oners (rather t han leaders) administratively,

such penalties do not amount to persecution

wit hin the meaning of the statute. First, the

2002 Country Reports reveal the government’s contention at oral arg ument 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 Count ry Reports a clean

distinction betw e en leaders and mere practitioners where, in fact, that distinction does not

exist. Third, the government cites no support

for this proposition, whi ch flies in the face of

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

imprisonment, and torture.

The BIA’s opinion seems to premise denial

on three major cons iderations: (1) that Zhao

now rarely practices Falunn Gong pub licly;

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

travel freely about the People’s Re public of

China for six months after the police expressed

interest in him. As we have said, the

frequency with 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 th at Zhao did not

have direct contact with government o fficials

is eq ually delphic—the reason Zhao did not

come into direct contact with Chinese o fficials

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

persecution, but that is not the argum ent on

which Zhao’s application stands. The IJ cites Zhao’s lack of contact wit h

government offici als as though one can reasonably infer that they were not loo king for

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

the authorities on discovering that th ey were

searching for him.

Finally, the characterization of Zhao as

“traveling” about the People’s Republic of

China for six months is misleading and borders

on being disingenuous. The record establishes

t hat for that entire period of time, Zhao was

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

work while he was at his uncle’s construction

site, it is equally obvious that he was there

p rimarily to evade the authorities. The BIA

therefore abused its discr et ion in ruling that

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

IV.

An alien who fears persecuti o n if returned

to a particular country has two poten t ial

sources of relief under the IN A: asylum and

withholding of removal. A grant of asylum

permits the alien

t o remain in this country; a

withholding of removal forbids his removal to

the persecuting country. 16 A grant of asylum

is within the Attorney General’s discretion, but

restriction on removal i s granted to qualified

aliens as a matter of rig ht. S ee INS v.

Cardoza-Fonseca

, 480 U.S. 421, 424 (1987).

We grant Zha o ’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 §§ 20 8 & 241(b)(3), codified at

8 U.S.C. §§ 1158, 1231(b)(3).

17 Because we resolve the cas e on other

grounds, we do not reach Zhao’s due process

(continued...)13 V.

The Attorney General enjoys significantdiscretion in making asylum determinations. That

authority, however, is not plen ary. The IJ

credited all of Zhao’s testimony but interpreted

it in such a way that allowed her to rul e

against him on

gro unds of legal sufficiency.

The IJ’s summary of Zhao’s testimony consists

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

The BIA rubber-stamped the IJ’s ruling and

t hen 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

t o grant his petition and

overturn the BIA. Once we consider the documentation excluded 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. S ee INS v. Ventura

, 537

U .S. 12, 16-17 (2002). 1 8 The circumstances here, however, differ from those appellat e

courts generally confront in reviewing a motion to reopen. In V

entura

, for example, the

BIA had not considered the changed country

conditions argument at all. See id. Here, to

the contrary, the Board has already r ejected

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 circumstanc es that requires

no remand. 20

17 (...continued)

claims.

1 8 The specific language in Ventura is worth

noting:

Generally speaking, a court of appeals should

remand a c a se to an agency for decision of a

matter that statutes plac e pr imarily in agency

hands. This principle has obvious importance

in the immigration context. The BIA has not

yet considered the “change d circumstances”

issue. And every consideration that classically

(continued...) 18 (...continued)

supports the law’s ord inary 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 in itial determination; and, in doing so, it can, through informed

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

that the law provides.

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

19 The final sentence of the BIA’s opinion reads:

“To the extent that the respondent seeks reopening

for the submission of previously unavailable

evidence, we find insufficien t cause to reopen, as

the resp ondent’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 ha d no well-founded fear of future

persecution.

20 We also note that in Ventura

, 537 U.S. at 17-

18, the Court expli citly stated that the State Department report on which the N inth Circuit had

relied was equ ivocal with respect to the relevant

(continued...)14

The petition for review is GRANTED, and

the order of the BIA is REVERSED. Thi s

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 t he State Department and Religious Freedom

reports that constitute Zhao’s evidence of “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.” V entura

, 537 U.S. at

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

circumstances” that would warrant granting as ylum without first

re manding 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 mot ion 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

actua l asylum claim. I d at 17. As a result, the majority has

“seriously disregarded the agency’s legally manda ted role.” I d

.

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.