Yu Zhao v. Gonzales

United States Court of Appeals

Fifth Circuit

F I L E D

In the March 15, 2005

United States Court of AppealsCharles R. Fulbruge III

Clerk

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, illegally. At a hearing before an immigration

and VANCE,* District Judge. judge (“IJ”), Zhao applied for asylum and

withholding of removal. The IJ refused to

JERRY E. SMITH, Circuit Judge: withhold removal and denied asylum on the

ground that Zhao showed neither past

persecution nor a well-founded fear of future

Yu Zhao, a native of the People’s Republic persecution.

of China, attempted to enter the United States

The Board of Immigration Appeals (“BIA”

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

*

District Judge of the Eastern District of Loui- a motion for reconsideration, contending that

siana, sitting by designation. his fear of future persecution was reasonable

and that the IJ should have given more weight hearing, but the IJ credited all of his testimony,

to certain documentary and testimonial which established the following: Falun Gong

evidence. is a movement that professes to help its

practitioners gain self-understanding through

Zhao petitioned this court to review the spiritual and physical development. Zhao

BIA’s determinations; he consolidated that pe- started to practice Falun Gong in 1999 to cure

tition with the one he had filed before moving his “dizzy spells” and back pain. Zhao began

for reconsideration. We grant the petition for his Falun Gong practice under the tutelege of

review and reverse the Board’s decision. Master Zhao Kai Feng, a mentor he had

known since childhood.

I.

Posing as an American citizen, Zhao tried In April 1999, Zhao joined about forty

to enter the United States illegally in March other participants in a silent protest outside the

2000. The government issued a Notice to Town Hall for Quanto County in Fujian Prov-

Appear, alleging that Zhao was subject to re- ince. That protest and Zhao’s participation in

moval for falsely representing himself as a citi- it were filmed. Later that year, while he was

zen. Zhao conceded that he was subject to re- visiting a friend, Zhao’s mother told him the

moval but asked for, and was granted, permis- police had been looking for him and that

sion to file an application for asylum and with- authorities had arrested Feng. She cautioned

holding of deportation, which he did in July Zhao not to return home.

2000.

Zhao bicycled to his aunt’s house and hid

At his initial hearing, Zhao attempted to for several weeks. He then learned that the

submit, among other things, three contested police had arrested other Falun Gong follow-

documents to the IJ: two written notices is- ers. After hiding out at his aunt’s, Zhao trav-

sued to him from Guantou Town’s Village eled by bus to Fuzhou City, where he helped

Committee demanding his appearance at the his uncle at a construction site, but this activity

Town Government and a police summons de- was limited, and he was there primarily to

manding his appearance at the police station. “hide out.” During his stay in Fuzhou City,

The government objected, arguing that the Zhao’s mother visited him and told of further

documents did not conform to 8 C.F.R. police visits to their house.

§ 287.6 (2003), the regulation governing proof

of official foreign records. At the end of February 2000, Zhao traveled

to Beijing by bus because the government had

The IJ agreed with the government but begun a massive crackdown on Falun Gong

gave Zhao more time to authenticate the docu- practitioners. Zhao’s family soon arranged for

ments. In February 2002 the IJ held a hearing him to travel to the United States. Zhao found

on the merits of Zhao’s application for asylum it too difficult to hide in the People’s Republic

and withholding of deportation. Zhao had not of China because authorities were “hunting

authenticated the documents pursuant to down” Falun Gong practitioners everywhere,

§ 287.6 by the beginning of that hearing, so and he believed the United States would afford

the IJ excluded them. him the protection he needed. In March 2000,

he traveled to the United States with his fake

Zhao was the only person to testify at the passport.

2

Since then, Zhao has learned that approxi- Zhao timely filed a motion to reconsider,

mately 200 to 300 Falun Gong practitioners re-urging the arguments he had raised before

have died during torture and that about 50,000 the IJ and, for the first time, including an ap-

practitioners have been exiled or sentenced to peal of the IJ’s exclusion of his three unau-

hard labor without a conviction. He learned thenticated documents. He also sought to sub-

that the Chinese authorities had incarcerated mit other items documenting worsening con-

some practitioners in mental facilities and ditions in the People’s Republic of China.

injected them with medicine that “mess[ed]

up” their nervous systems. Zhao was afraid to In December 2003, the BIA denied recon-

return to the People’s Republic of China, sideration. It declined to consider the IJ’s

where he believes the authorities will imprison evidentiary ruling because Zhao had failed to

and torture him. raise it in his initial appeal. Zhao timely pe-

titioned this court to review both the BIA’s in-

Zhao practices Falun Gong every morning itial decision affirming the IJ’s findings and its

for twenty to thirty minutes. He has partici- denial of his motion to reopen.

pated in one public, organized Falun Gong ac-

tivity in the New York/New Jersey area since II.

his arrival there. Seeking to introduce the unauthenticated

documents and the two State Department re-

After hearing Zhao’s testimony, the IJ de- ports, Zhao contends that the BIA erred in re-

nied the application for asylum and withhold- jecting his motion to reconsider. Although

ing of deportation. Although the IJ found that Zhao labels his motion as one for reconsidera-

Zhao was a credible witness and (grudgingly) tion, he both re-urges current documents and

that Falun Gong falls within the State Depart- arguments and seeks to submit new evidence.

ment’s operative definition of “religion,” the IJ

found that Zhao had not established either past Because he seeks to introduce new evi-

persecution or a well-founded fear of future dence, his motion is also one to reopen. See

persecution on account of a protected Pierre v. INS, 932 F.2d 418, 421-22 (5th Cir.

characteristic. 1991). These two types of post-judgment mo-

tion are distinguished primarily by the fact that

On appeal, the BIA, in a per curiam opin- a motion for reconsideration does not present

ion, affirmed the IJ’s decision under 8 C.F.R. new evidence to the BIA. Irrespective of how

§ 1003.1(e)(5) (2003). The BIA affirmed the Zhao labels it, we will consider his motion as

IJ’s determination that Zhao had not estab- both one to reopen and one to reconsider. See

lished past persecution and that his fear of id. at 422.

future persecution was not objectively reason-

able. The Board also noted that Zhao had A.

“testified that he currently seldom practices We review the denial of a motion to recon-

Falun Gong and, when he does, he practices in sider for abuse of discretion.1 A motion for re-

private.” The Board found that Zhao had

never had any contact with government offi-

cials “despite traveling about China for 1

Ghassan v. INS, 972 F.2d 631, 638 (5th Cir.

6 months after the police expressed interest in 1992) (citing Osuchukwu v. INS, 744 F.2d 1136,

him.” (continued...)

3

consideration urges an adjudicative body to re- lacked jurisdiction for other reasons). We now

evaluate the record evidence only. See Ghass- at last address the issue. Although the parties

an, 972 F.2d at 638. Insofar as Zhao’s motion did not raise or brief this question, we must

was one for reconsideration, his effort fails examine the basis of our subject matter

because he did not identify a change in the law, jurisdiction, on our own motion if necessary.3

a misapplication of the law, or an aspect of the

case that the BIA overlooked. See Pierre, 932 Section 1252(a)(2)(B)(ii) proscribes judicial

F.2d at 422. review of “any . . . decision or action of the

Attorney General the authority for which is

B. specified under this subchapter to be in the

Zhao sought to reopen the record to intro- discretion of the Attorney General” (emphasis

duce two new documents. Those documents added). The government does not raise the is-

are (1) the U.S. Department of Justice Interna- sue, but there is a question whether § 1252

tional Religious Freedom Reports (“2002 Re- bars judicial review of all motions to reopen,

ligious Freedom Reports,” issued in October and we may not exercise appellate jurisdiction

2002) and (2) the U.S. Department of Justice that we do not have. In Medina-Morales v.

Country Reports on Human Rights Practices Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004),

for 2002 (“2002 Country Reports,” issued in the court held that § 1252(a)(2)(B)(ii) does

March 2003). not impose a complete jurisdictional bar. The

instant circumstances present a question that is

1. in all meaningful respects identical, and we

In this circuit, the degree to which 8 U.S.C. agree with the Ninth Circuit’s reasoning.

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

review of motions to reopen immigration pro- The subsection explicitly excepts asylum

ceedings is an open question.2 We have pre- determinations, made pursuant to § 1158(a),

termitted this “thorny” question where there from its jurisdictional prohibitions. The

were alternative means of resolving the rele- operative statutory text precludes judicial

vant issues. See, e.g., Asaad, 378 F.3d at 474 review of all actions specified as discretionary

(declining to reach the issue because the court 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

1

(...continued) have two potential sources of appellate juris-

1142-43 (5th Cir. 1984)). diction: Either (1) Zhao’s motion to reopen is

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

2

The Illegal Immigration Reform and Immi- motion is not specified as seeking discretionary

grant Responsibility Act of 1996 (“IIRIRA”), Pub. relief under subchapter II of Title 8. We do

L. No. 104-28, 110 Stat. 3009 (1996), implements not consider the first possibility, because we

restrictions on federal court jurisdiction over sev- may easily resolve the question in Zhao’s favor

eral categories of BIA decisions. Those restric- using the second justification.

tions 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,

3

378 F.3d 471, 474 n.1 (5th Cir. 2004) (citing See Hill v. City of Seven Points, 230 F.3d 167

Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th (5th Cir. 2000) (quoting Mosley v. Cozby, 813

Cir. 2004)). F.2d 659, 660 (5th Cir.1987)).

4

Outside of the § 1158(a) proviso, the text One might mistakenly read § 1252(a)(2)-

of § 1252(a)(2)(B)(ii) makes plain that we do (B)(ii) as stripping us of the authority to re-

not have the jurisdiction to review certain dis- view any discretionary immigration decision.

cretionary actions of the Attorney General. That reading, however, is incorrect, because

The law, however, proscribes judicial review § 1252(a)(2)(B)(ii) strips us only of jurisdic-

of a discretionary action only where it is spe- tion to review discretionary authority specified

cified under the subsection of title 8 that gov- in the statute. The statutory language is un-

erns immigration proceedings. characteristically pellucid on this score; it does

not allude generally to “discretionary au-

Before 1996,4 the authority to reopen a de- thority” or to “discretionary authority exer-

portation proceeding derived exclusively from cised under this statute,” but specifically to

a regulation promulgated by the Attorney Gen- “authority for which is specified under this

eral, 8 C.F.R. § 3.2(c) (2003).5 In 8 U.S.C. subchapter to be in the discretion of the At-

§ 1229a(c)(6) (2004), however, Congress set torney General.” Id. (emphasis added).

forth a set of rules governing review of

motions to reopen immigration proceedings. In ruling on Zhao’s motion, however, the

That subsection states that an alien may file BIA exercised no such statutorily delineated

one such motion, § 1229a(c)(6)(A); specifies discretion; that discretion instead derived from

that the motion shall “state the new facts that regulations promulgated by the Attorney Gen-

will be proven at a hearing to be held if the eral. One might argue that the statute autho-

motion is granted, and shall be supported by rizes such a regulatory delegation of discretion

affidavits or other evidentiary material,” and that the underlying activity should there-

§ 1229a(c)(6)(B); and sets forth relevant dead- fore be immune from our scrutiny, but such a

lines, § 1229a(c)(6)(C). These provisions, construction would belie Congress’s conspic-

however, only set forth the standards for eval- uous selection of the phrase “specified under

uating a motion to reopen; they do not furnish this subchapter.” Aware that there is some

us wit h a level of deference to afford the At- caselaw from other circuits to the contrary, we

torney General in making that evaluation. conclude that we have authority to review the

motion to reopen.6

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

(b)(3) (2003), furnishes the quantum of discre-

tion the Attorney General enjoys when enter- 6

Two cases, in particular, are in tension with

taining motions to reopen. That regulation our holding here and that in Medina-Morales. See

provides that an “Immigration Judge has dis- Yerkovich v. Ashcroft, 381 F.3d 990 (10th Cir.

cretion to deny a motion to reopen even if the 2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799-

moving party has established a prima facie case 800 (8th Cir. 2004). We disagree with the analysis

for relief.” Id. these cases present regarding whether a regulation,

as opposed to a statute, may be the source of

discretion sufficient to foreclose judicial review.

4

This is the year in which Congress passed the

IIRIRA. Onyinkwa, id. at 799-800, addresses the dis-

tinction between statutory and regulatory authority

5

See INS v. Doherty, 502 U.S. 314, 322 for discretion in a single sentence: “Since a regu-

(1992); Lara v. Trominski, 216 F.3d 487, 496 (5th lation implementing subchapter II specifies that

Cir. 2000). (continued...)

5

In exercising that authority, we review the Attorney General’s delegate, even a deci-

BIA’s denial of a motion to reopen or to re- sion that we deem in error, so long as it is

consider under a highly deferential abuse-of- not capricious, racially invidious, utterly

discretion standard.7 Our standard of review without foundation in the evidence, or oth-

is the same irrespective of whether the peti- erwise so irrational that it is arbitrary rather

tioner seeks withholding of deportation or than the result of any perceptible rational

makes an asylum request.8 With regard to approach.

how we actually apply this standard to the

Board’s denial of a motion to reopen, Pritchett, 993 F.2d at 83 (5th Cir. 1993)

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

[t]he standard is whether the Board has act- 1141-42 (5th Cir. 1984) (alterations in origi-

ed within the bounds of an abundant discre- nal)).

tion granted it by Congress. It is our duty

to allow [the] decision to be made by the 2.

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

for reopening of immigration proceedings are

6 disfavored for the same reasons as are peti-

(...continued)

power to grant continuances is within the discretion tions for rehearing and motions for a new trial

of immigration judges, under the IIRIRA courts on the basis of newly discovered evidence.”

generally have no jurisdiction to review the exer- Doherty, 502 U.S. at 323 (citing Abudu, 485

cise of that discretion.” We decline to endorse an U.S. at 107-08). Indeed, 8 C.F.R. § 1003.2-

interpretation whereby any statutorily authorized (c)(1) states that “[a] motion to reopen pro-

regulation conferring discretion necessarily fore- ceedings shall not be granted unless it appears

closes judicial review. Such a reading is contrary to the Board that the evidence sought to be of-

to Congress’s language and has adverse policy fered is material and was not available and

consequences. could not have been discovered or presented at

the former hearing . . . .”

Yerkovich does not even mention the distinction

between a statute and a regulation furnishing

The Board did not abuse its discretion in re-

discretionary authority. The court quotes Van

fusing to reopen the record to admit the unau-

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

in support of the proposition that a motion to re-

thenticated documents. Those documents had

open cannot be subject to judicial review. Van been presented before the IJ, who excluded

Dinh itself, however, misstates the statutory text, them, and Zhao failed to contest this ruling on

omitting the phrase “the authority for which is spe- direct appeal. Although the documents are

cified” before “under this subchapter.” By selec- material, § 1003.2(c)(1) is stated in the con-

tively (or inadvertently) omitting this language, the junctive, and the documents were plainly

Yerkovich and Van Dinh courts analyze statutory available and considered in the hearing before

language that Congress did not adopt. the IJ.

7

Lara, 216 F.3d at 496 (citing Doherty, 502 The BIA’s failure to re-open the record to

U.S. at 322-23; Pritchett v. INS, 993 F.2d 80, 83 admit the 2002 International Freedom Reports

(5th Cir. 1993)).

and the 2002 Country Reports, however, rests

8

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

on far more precarious logic. The BIA

Abudu, 485 U.S. 94, 99 n.3 (1988)). dispenses, in a single sentence, with Zhao’s at-

6

tempt to reopen the record to admit these doc- 1999 Country Reports. Here the government

uments: “To the extent that [Zhao] seeks re- is somewhat disingenuous. When, at oral ar-

opening for the submission of previously un- gument, the government sought to rebut the

available evidence, we find insufficient cause contention that the Chinese government perse-

to reopen, as [Zhao’s] new evidence largely cutes mere practitioners of Falun Gong, it re-

repeats the extensive country condition infor- minded us that evidence regarding Chinese

mation already in the record.” As we overturn persecution of non-leaders was contained in

this ruling, we take full account of the broad the 2002 Country Reports, not the 1999 re-

discretion delegated to the Board in adjudicat- ports. The government cannot simultaneously

ing these motions. Here, however, the Board argue that, on the one hand, the 2002 Country

erred egregiously in its conclusion. Reports contain a crucial piece of evidence

that is absent from the 1999 Country Reports

The Board requires an applicant to provide in the record and, on the other, that the two

corroborating evidence where it is reasonable new documents are redundant.

to do so. Specifically, “general background

information about a country, where available, According to the Department of State

must be included in the record as a foundation International Religious Freedom Report 2002,

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

21 I. & N. 722, 724 (1997) (emphasis added). Since the [Chinese] Government banned

the [Falun Gong] in 1999 and began a com-

prehensive nationwide repression of the

The IJ issued her decision on February 5, movement, the practice of Falun Gong or

2002, before publication of the 2002 Interna- possession of its literature has been suf-

tional Freedom Reports and the 2002 Country ficient grounds for practitioners to receive

Reports. Although S-M-J deals with an asy- punishment ranging from loss of employ-

lum applicant’s failure to include crucial back- ment and education opportunities to im-

ground documentation, it would be a bizarre prisonment. Some Falun Gong members

policy indeed to require the applicant to pro- have been tortured in custody and there

vide the Country Reports before the issuance have been reports that several hundred or

of an IJ’s final order, but categorically to re- more Falun Gong adherents have died in

fuse to allow him to introduce them, once they detention since 1999. Falun Gong mem-

become available, on a motion to reopen. bers who “disrupt public order” or distrib-

That is not to say that any or even a substan- ute publications may be sentenced to 3 to 7

tial variety of documentation should require years in prison . . . .

the BIA to reopen asylum proceedings, but it

is to say that, in the name of legal consistency, (Emphasis added.) The next paragraph of that

there must be some situations in which the document adds that “[e]ven [non-protesting]

content of the new documentation requires practitioners . . . were forced to attend [anti-

that result. Fulon Gong] classes. Those who refused to

recant their belief . . . were sent to reeduca-

The government argues, as the BIA rea- tion-through-labor camps, where, in some cas-

soned, that the 2002 Country Reports do not es, beatings and torture were used to force

justify reopening the record because they them to recant their beliefs.”

merely restate the conditions described in the

7

The 2002 Country Reports echo this de- III.

scription of lower-level practitioners’ treat- Under 8 U.S.C. § 1158(a) (2004) the

ment: “Since the [Chinese] Government Attorney General enjoys authority to grant

banned the [Falun Gong] in 1999, the mere be- asylum to any alien who qualifies as a refugee

lief in the discipline (and since January, even under § 1101(a)(42)(A). For purposes of this

without any public manifestation of its tenets) statute, a refugee is

has been sufficient grounds for practitioners to

receive punishment ranging from loss of any person who is unable or unwilling to

employment to imprisonment.” (Emphasis return to, and is unable or unwilling to avail

added.) himself or herself of the protection of, that

country because of persecution or a

If the position of the United States Govern- well-founded fear of persecution on ac-

ment is that the record evidence introduced at count of race, religion, nationality, mem-

the initial administrative hearing does not dem- bership in a particular social group, or pol-

onstrate that mere practitioners were the itical opinion . . . .

objects of Chinese government persecution,

then the previously unavailable documents 8 U.S.C. § 1101(a)(42)(A) (emphasis added).

Zhao sought to introduce into the record must

be admitted on a motion to re-open, because

they establish precisely that crucial proposi- The decision to grant or deny asylum in-

tion.9 The BIA abused even its abundant volves two components. First, the alien must

discretion in failing to allow the documents to demonstrate that he has been persecuted or

be introduced.10 has a well-founded fear of persecution on ac-

count 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, auto-

9

matically entitle him to asylum. The language

Alternatively, if the government’s position is

of § 208 is precatory, and the decision to grant

that the 1999 Country Reports suggest all of this

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

information, then we would be forced to hold,

based only on a review of the existing record, that

it abused its discretion. The IJ found that there was no evidence of

past persecution and that Zhao’s credited testi-

10

Zhao contends that the IJ erred as a matter of mony was legally insufficient to establish a

law when she excluded his three supporting doc- well-founded fear of future persecution. Spe-

uments under 8 C.F.R. § 287.6. This argument is cifically, the IJ found that Zhao had presented

distinct from Zhao’s assertion that the BIA erred in no evidence that any Chinese government of-

refusing to reopen the record to admit these same ficial ever confronted him at any time for any

documents; accordingly, it is subject to a different reason. The IJ did not question Zhao’s verac-

analysis. We need not resolve this question, how-

ever, because (1) the current record does not

demonstrate the steps, if any, that Zhao took to au- 11

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

thenticate the documents; and (2) we grant Zhao’s INS, 37 F.3d 185, 188 (5th Cir. 1994).

petition and reverse the Board on the record evi-

12

dence and the supplementary documents Zhao first Mikhael, 115 F.3d at 303; Faddoul, 37 F.3d

sought to introduce on his motion to reopen. at 188.

8

ity but stated that “Zhao simply failed to make jective fear of persecution, and that fear must

his case.” That the IJ did not doubt Zhao’s be objectively reasonable.” Eduard v. Ash-

testimony is significant, because we must croft, 379 F.3d 182, 189 (5th Cir. 2004)

accept as true all the facts to which Zhao (quoting Lopez-Gomez v. Ashcroft, 263 F.3d

testified. The question is merely the interpre- 442, 445 (5th Cir. 2001)). The INA does not

tation and legal sufficiency of those facts. define persecution, but we have described it as

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

A. government sanction, upon persons who differ

We use the substantial evidence standard to in a way regarded as offensive (e.g., race,

review the IJ’s factual conclusion that an alien religion, political opinion, etc.), in a manner

is not eligible for asylum. See Chun, 40 F.3d condemned by civilized governments.” Ab-

at 78 (citing Adebisi, 952 F.2d at 912). Under del-Masieh v. INS, 73 F.3d 579, 583-84 (5th

substantial evidence review, we cannot reverse Cir. 1996). “The harm or suffering need not

the BIA’s factual determinations unless we be physical, but may take other forms, such as

decide “not only that the evidence supports a the deliberate imposition of severe economic

contrary conclusion, but also that the evidence disadvantage or the deprivation of liberty,

compels it.” Id. (citing INS v. Elias-Zacarias, food, housing, employment or other essentials

502 U.S. 478, 481 n.1 (1992)). The alien of life.” Id. The applicant, however, need not

must prove that the evidence is so compelling provide evidence that he would be singled out

that no reasonable factfinder could reach a for persecution, if

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

factfinder’s duty to make determinations based (A) [he] establishes that there is a pattern

on the credibility of the witnesses.” Id. (citing or practice in [his] country . . . of persecu-

Vazquez-Mondragon v. INS, 560 F.2d 1225, tion of a group of persons similarly situated

1226 (5th Cir. 1977)). We will not substitute . . . on account of race, religion, nationality,

our judgment for that of the BIA or IJ “with membership in a particular social group, or

respect to the credibility of witnesses or ul- political opinion; and

timate factual findings based on credibility

determinations.” Id. (B) [he] establishes [his] own inclusion in,

and identification with, such a group of per-

1. sons such that [his] fear of persecution

There is no error in the IJ’s determination upon return to that country is reasonable.

that Zhao has failed to demonstrate past perse-

cution. Zhao points to no evidence that the 8 C.F.R. § 208.13(b)(2)(iii)(A)-(B) (2003).

government ever arrested, detained, interro- There are therefore two different ways for

gated, or harmed him or his family. See Zhao to prove the objectivity of his persecu-

Faddoul, 37 F.3d at 188. As the IJ noted, tion claim. First, he can show that he would

there is no evidence in the record that a gov- be singled out for persecution. Alternately, he

ernment official ever confronted Zhao because can satisfy the two prongs of § 203.13(b)-

of his involvement in Falun Gong. (2)(iii).

2. The IJ explicitly credited Zhao’s testimony,

To establish a well-founded fear of future so Zhao’s possession of a subjective fear is not

persecution, an alien must demonstrate “a sub- at issue. With regard to the well-founded fear

9

of future persecution, the alien’s “subjective Gong practitioner (although it is fairly certain

fear will satisfy this standard if ‘a reasonable from the record that it was), but merely that

person in [his] circumstances would fear that government easily could become aware of

persecution if [he] were to be returned to [his] such status. See id. at 192-93.

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

(quoting Guevara Flores v. INS, 786 F.2d With regard to Zhao’s alleged fear of future

1242, 1249 (5th Cir. 1986)). This standard, persecution, the IJ found that

however, does not require Zhao to demon-

strate that he will be persecuted on returning [t]he respondent argues that he is con-

to the People’s Republic of China. It requires cerned about the future persecution. How-

a lesser showing of certaintySShe must show ever, the respondent also has indicated that

“to a reasonable degree” that his return there he has not been very much involved in the

would be intolerable. See Eduard, 379 F.3d at practice of the spiritual exercise. In fact, he

189 (citing Mikhael, 115 F.3d at 305)) (inter- indicated in his initial testimony that he

nal quotation marks omitted). didn’t have time because he’s studying and

trying to better himself. He had an educa-

This court regards the reasonableness in- tion.

quiry as one into both subjective and objective

fear. To establish the objective reasonableness That passage is the extent of the IJ’s finding

of a well-founded fear of future persecution, concerning Zhao’s alleged fear of future perse-

the alien must prove that cution on returning to the People’s Republic of

China. In determining the objective justi-

(1) he possesses a belief or characteristic a fication for that fear, the IJ focused solely on

persecutor seeks to overcome by means of Zhao’s Falun Gong practice in the United

punishment of some sort; (2) the persecutor States.

is already aware, or could become aware,

that the alien possesses this belief or char- In essence, the IJ reasoned that Zhao could

acteristic; (3) the persecutor has the capa- not have a well-founded fear of future per-

bility of punishing the alien; and, (4) the secution because he seldom practices Falun

persecutor has the inclination to punish the Gong publicly in New York. Zhao argues that

alien. the IJ drew the wrong conclusions from the

record testimony and failed to consider other

Eduard, 379 F.3d at 191 (citing Matter of Mo- testimony that supports his claim. Noting the

gharrabi, 19 I & N Dec. 439, 446 (BIA self-evident flaws in the IJ’s apparent infer-

1987)). ences, we agree.

Two further legal points merit repeating. With respect to the first element of the rea-

First, the test does not require Zhao to prove sonableness inquirySSwhether the applicant

that he had been personally targeted, because possesses a belief or characteristic that a per-

such an interpretation would render the future secutor seeks to overcome by means of pun-

persecution inquiry redundant of the past ishment of some sortSSthe government does

persecution analysis. See id. at 192. Second, not dispute that Zhao is a Falun Gong practi-

Zhao need not prove that the Chinese govern- tioner. The IJ explicitly notes that Falun Gong

ment was actually aware that he was a Falun fits within the statutory meaning of the word

10

“religion.” In her mystifying analysis, the IJ in- (1) that in his hometown, Zhao participated

fers from Zhao’s infrequent public Falun Gong publicly in Falun Gong activities and (2) that

participation that he no longer qualifies for the local authorities visited his house to look

protection under the statute. for him on several occasions.

This reasoning is deeply flawed. Zhao’s The government urges us not to connect

testimony establishes that his participation in the various dots—(1) that Zhao was

public Falun Gong activities was not an accu- videotaped partaking in a Falun Gong

rate proxy for his actual fidelity to the practice. demonstration; (2) that Falun Gong prac-

He continued to practice Falun Gong in titioners are objects of Chinese government

private almost every day. The 1999 Country persecution; (3) that Zhao’s master was

Reports establish that the Chinese government arrested; and (4) that the police visited Zhao’s

indeed targeted Falun Gong practitioners for home looking for him. Although the original

punishment. The 2002 Country Reports are record does not contain direct evidence that

even more explicit on this score.13 the authorities were seeking out Zhao because

of his Falun Gong participation, that inference

With respect to the second element of the is unavoidable in light of Zhao’s credited,

reasonableness inquirySSwhether the People’s uncontroverted testimony. Moreover, Zhao

Republic of China is already aware, or could need not rely on the unauthenticated

become aware, that the applicant possess this documents to support the inference.

belief or characteristicSSthe record also estab-

lishes that Zhao meets his burden. The record With respect to the third and fourth ele-

is replete with uncontroverted testimony both ments, the supplemental documentation estab-

lishes not only that the Chinese government

13

has the capability and inclination to punish Fal-

We present much of this information in the un Gong practitioners, but also that it has

discussion of Zhao’s motion for reconsideration. already done so. Those facts require no fur-

For example, according to the Department of State

ther elaboration here.14 The two sets of

International Religious Freedom Report 2002,

Country Reports confirm that the People’s

[s]ince the [Chinese] Government banned the Republic of China is capable of, and intends to,

[Falun Gong] in 1999 and began a comprehen- crack down on Falun Gong practitioners.

sive nationwide repression of the movement, the

practice of Falun Gong or possession of its

14

literature has been sufficient grounds for prac- The 1999 Country Reports explain that in

titioners to receive punishment ranging from July of that year the government of the People’s

loss of employment and education opportunities Republic of China initiated a crackdown against

to imprisonment. Some Falun Gong members the movement, imprisoning thousands and beating

have been tortured in custody and there have those who refused to recant their beliefs. The two

been reports that several hundred or more Falun Houses of Congress unanimously passed a concur-

Gong adherents have died in detention since rent resolution condemning those actions. As dis-

1999. Falun Gong members who “disrupt pub- cussed above, the 2002 Country Reports, which the

lic order” or distribute publications may be sen- BIA should have re-opened the record to include,

tenced to 3 to 7 years in prison . . . . make evident that the Chinese government em-

ployed these tactics against not only core leaders

(Emphasis added.) but also mere practitioners.

11

At oral argument the government took the The IJ cites Zhao’s lack of contact with

position that, although the Chinese govern- government officials as though one can rea-

ment may punish mere Falun Gong practitio- sonably infer that they were not looking for

ners (rather than leaders) administratively, him. The record, however, is replete with un-

such penalties do not amount to persecution controverted testimony that Zhao was fleeing

within the meaning of the statute. First, the the authorities on discovering that they were

2002 Country Reports reveal the govern- searching for him.

ment’s contention at oral argument to be in-

consistent with the Attorney General’s assess- Finally, the characterization of Zhao as

ment that even lower level practitioners are “traveling” about the People’s Republic of

punished.15 Second, the government is reading China for six months is misleading and borders

into the 1999 Country Reports a clean on being disingenuous. The record establishes

distinction between leaders and mere practi- that for that entire period of time, Zhao was

tioners where, in fact, that distinction does not either fleeing the authorities or hiding. Al-

exist. Third, the government cites no support though the record indicates that Zhao did

for this proposition, which flies in the face of work while he was at his uncle’s construction

common sense when we consider that the “ad- site, it is equally obvious that he was there

ministrative” penalties include severe fines, primarily to evade the authorities. The BIA

imprisonment, and torture. therefore abused its discretion in ruling that

Zhao did not have the well-founded fear of fu-

The BIA’s opinion seems to premise denial ture persecution necessary to sustain an asy-

on three major considerations: (1) that Zhao lum claim.

now rarely practices Falunn Gong publicly;

(2) that he had no “direct contact with govern- IV.

ment officials”; and (3) that he was able to An alien who fears persecution if returned

travel freely about the People’s Republic of to a particular country has two potential

China for six months after the police expressed sources of relief under the INA: asylum and

interest in him. As we have said, the withholding of removal. A grant of asylum

frequency with which Zhao now practices Fal- permits the alien to remain in this country; a

un Gong publicly bears no relationship to how withholding of removal forbids his removal to

likely the Chinese government is to persecute the persecuting country.16 A grant of asylum

him on his potential return. is within the Attorney General’s discretion, but

restriction on removal is granted to qualified

The BIA’s statement that Zhao did not aliens as a matter of right. See INS v.

have direct contact with government officials Cardoza-Fonseca, 480 U.S. 421, 424 (1987).

is equally delphic—the reason Zhao did not We grant Zhao’s asylum application, so we

come into direct contact with Chinese officials need not consider the removal issue.17

is that he was evading them. Such lack of con-

tact may militate against a finding of past

16

persecution, but that is not the argument on See INA §§ 208 & 241(b)(3), codified at

which Zhao’s application stands. 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

15

See supra note 13 and part II.B.2. (continued...)

12

V. here, however, differ from those appellate

The Attorney General enjoys significant dis- courts generally confront in reviewing a mo-

cretion in making asylum determinations. That tion to reopen. In Ventura, for example, the

authority, however, is not plenary. The IJ BIA had not considered the changed country

credited all of Zhao’s testimony but interpreted conditions argument at all. See id. Here, to

it in such a way that allowed her to rule the contrary, the Board has already rejected

against him on gro unds of legal sufficiency. the “changed country conditions” proposition,

The IJ’s summary of Zhao’s testimony consists so our ruling on the persecution issue does not

entirely of conclusory remarks, mischar- usurp the Board’s authority to rule on it first.19

acterizations of various events, and non-sequi- Moreover, although the language in Ventura is

ters. strong, it remains precatory. The Court could

have worded its holding categorically, and its

The BIA rubber-stamped the IJ’s ruling and failure to do so must be a conscious decision.

then dismissed (in a single sentence), as re- We cautiously conclude that this case exhibits

dundant, the detailed corroborating materials the narrow set of circumstances that requires

Zhao submitted in his motion to reopen. no remand.20

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

justify our decision to grant his petition and

overturn the BIA. Once we consider the doc- 18

(...continued)

umentation excluded in error, however, the de- supports the law’s ordinary remand requirement

cision is an easy one. The Attorney General’s does so here. The Agency can bring its ex-

discretion is not so broad so as to allow him to pertise to bear upon the matter; it can evaluate

reject asylum applications without a logical the evidence; it can make an initial determina-

explanation. tion; and, in doing so, it can, through informed

discussion and analysis help a court later deter-

Ordinarily, upon allowing reopening of the mine whether its decision exceeds the leeway

record, we would remand the persecution that the law provides.

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

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

17

(...continued) for the submission of previously unavailable

claims. evidence, we find insufficient cause to reopen, as

the respondent’s new evidence largely repeats the

18

The specific language in Ventura is worth extensive country condition information already in

noting: the record.” The BIA had already determined that,

based on the record evidence sans supplemental

Generally speaking, a court of appeals should reports, Zhao had no well-founded fear of future

remand a case to an agency for decision of a persecution.

matter that statutes place primarily in agency

20

hands. This principle has obvious importance We also note that in Ventura, 537 U.S. at 17-

in the immigration context. The BIA has not 18, the Court explicitly stated that the State De-

yet considered the “changed circumstances” partment report on which the Ninth Circuit had

issue. And every consideration that classically relied was equivocal with respect to the relevant

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

13

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

reports that constitute Zhao’s evidence of “changed

country conditions” for Falun Gong in the People’s

Republic of China.

14

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.