Jaswant Lal Shakuntla Lal Rikesh Lal v. Immigration and Naturalization Service

O’SCANNLAIN, Circuit Judge,

dissenting:

With respect, I cannot join the court’s opinion. Regrettably, the court ignores the teaching of the Supreme Court by failing to defer to the BIA’s permissible construction of its own asylum regulation. Further, the court simply misconstrues the record in arriving at its conclusion that the BIA’s decision to deny asylum is not supported by substantial evidence. Finally, the court misapplies our precedents in rejecting the State Department’s opinion, and BIA’s reliance on it, that circumstances in Fiji have changed. For these reasons, I must dissent.

I

Congress has authorized the Attorney General to grant asylum to “refugees.” 8 U.S.C. § 1158 (b)(1). To be considered a “refugee” and thus be eligible for asylum, an applicant must demonstrate that he is unable or unwilling to return to his country of nationality “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). The applicant’s credible account of past persecution raises a presumption that his fear of future persecution is well-founded. See 8 C.F.R. § 208.13 (b)(l)(i). The INS can then rebut this presumption by demonstrating, “by a preponderance of the evidence, that conditions ‘have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return.’ ” Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir.1998) (quoting 8 C.F.R. § 208.13 (b)(l)(i)). In Lai’s case, the BIA found that the INS successfully rebutted the presumption that his fear of future persecution was well-founded by demonstrating that conditions in Fiji have improved significantly since the tumultuous 1987 coup. 1 Unless Lai could benefit from some other applicable rule, the BIA had no choice but to affirm denial of asylum.

A

But the BIA has developed a humanitarian exception to the general rule. See Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989). Where he cannot demonstrate a well-founded fear of future persecution (because, for example, country conditions have changed), asylum shall be granted if “it is determined that the applicant has demonstrated compelling reasons for being unwilling to return to his or her country of nationality ... arising out of the severity of the past persecution.” 8 C.F.R. § 208.13 (b)(l)(ii). This regulation grows out of Chen, which remains the touchstone for determining the applicability of this exception. See Kumar v. INS, 204 F.3d 931, 935 (9th Cir.2000); Vongsakdy v. INS, 171 F.3d 1203, 1207 (9th Cir.1999). In Chen, the BIA explained that where a petitioner has suffered from “atrocious” *1013 persecution, changed country conditions “may not always produce a complete change ..., in view of his past experiences, in the mind of the refugee.” 20 I. & N. Dec. at 20 .

In Lai’s case, the BIA appears to have considered Chen’s humanitarian exception 2 and, in concluding that it did not apply, stated, “a preponderance of the evidence establishes ... that there are not compelling reasons for being unwilling to return to Fiji arising out of the severity of the past persecution of the lead respondent. In this regard we observe that [Lai] does not claim to suffer from lasting physical or emotional disability as a result of past mistreatment.” The majority takes issue with this conclusion, interpreting the latter sentence as requiring that the applicant must demonstrate an on-going disability to qualify for asylum under Chen. The majority reverses the BIA’s determination because it concludes that a requirement of “lasting ... disability” (sometimes referred to as “ongoing disability”) is inconsistent with the plain language and intent of the regulation and because neither Chen, nor other BIA cases nor our own cases applying the humanitarian exception require the applicant to establish lasting disability. 3

With respect, the majority errs because it does not defer to the BIA’s permissible construction of its own regulation. In so doing it repeats the error we made in Aguirre-Aguirre v. INS, 121 F.3d 521 (9th Cir.1997) (“Aguirre I ”), reversed, 526 U.S. 415 , 119 S.Ct. 1439 , 143 L.Ed.2d 590 (1999) (“Aguirre II”). “In the course of its analysis, [the Ninth Circuit] fail[s] to accord the required level of deference to the interpretation of the [BIA] ... it should have applied the principles of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984).” Aguirre II, 526 U.S. at 424 , 119 S.Ct. 1439 . Although the majority correctly states that substantial deference is owed to the legal decisions of the BIA, it misapplies this broad standard and substitutes its own judgments for that of the agency. The Supreme Court corrected us for making similar errors two years ago in Aguirre I. We should not repeat such errors now.

1

The BIA’s interpretation of its own regulation is owed “substantial deference.” Thomas Jefferson University v. Shalala, *1014 512 U.S. 504, 512 , 114 S.Ct. 2381 , 129 L.Ed.2d 405 (1994). This broad deference is especially warranted because the BIA’s significant expertise makes it well suited to interpret its own regulations in this complex regulatory scheme. See id; Department of Health & Human Servs. v. Chater, 163 F.3d 1129 (9th Cir.1998). The BIA’s interpretation “must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ ” Thomas Jefferson, 512 U.S. at 512 , 114 S.Ct. 2381 (quoting Udall v. Tallman, 380 U.S. 1, 16 , 85 S.Ct. 792 , 13 L.Ed.2d 616 (1965)). The Supreme Court has cautioned that we must defer to the agency’s interpretation “unless an ‘alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation.” Id. (quoting Gardebring v. Jenkins, 485 U.S. 415, 430 , 108 S.Ct. 1306 , 99 L.Ed.2d 515 (1988)).

The majority, however, concludes that a requirement of on-going disability is contrary to both the plain language and the intent of the agency in promulgating the regulation. Yet, it fails to demonstrate how the plain language of the regulation or its intent compels an interpretation that does not allow for the imposition of an ongoing disability requirement.

2

Under BIA’s regulations, an applicant is eligible for asylum if he or she “has demonstrated compelling reasons for being unwilling to return to his or her country of nationality ... arising out of the severity of the past persecution.” 8 C.F.R. § 208.13 (b)(1)(ii) (emphasis added). I respectfully disagree with the majority’s assertion that demonstrating severe past persecution is sufficient. See supra 1006-07. The BIA has stated: “the applicant must also show that he belongs to the smaller group of persecution victims whose persecution (including the aftermath) is so severe that the ‘compelling reasons’ standard has been met.” Matter of N-M-A-, Interim Decision 3368, at 35 1998 WL 744095 (BIA 1998). In N-M-A- the BIA concluded that the applicant did not qualify for the “humanitarian exception” because the applicant had not demonstrated “the severe harm and the long-lasting effects of that harm.” Id. (emphasis added). In other words, the applicant had not shown severe past persecution and compelling reasons arising from that persecution. Here, regardless of whether Lai has demonstrated severe past persecution, he has clearly not demonstrated compelling reasons based on this persecution for not being willing to return to his country. The majority erroneously concludes that Lai has satisfied the requirements of 8 C.F.R. § 208.13 (b) (1) (ii) without even mentioning a single compelling reason.

Because “compelling reasons” is not defined in regulation or statute, we must give substantial deference to the BIA’s interpretation so long as it is not plainly erroneous or inconsistent with the regulation. Even the'majority would agree that an ongoing physical impairment and an on-going mental impairment caused by the past persecution are compelling reasons for an applicant’s unwillingness to return to his country. Certainly, requiring such an ongoing impairment to satisfy the compelling reasons standard is not contrary to the plain language of the regulation. Absent an express definition, the BIA’s interpretation to restrict “compelling reasons” to ongoing impairments is reasonable and is thus owed substantial deference. Thomas Jefferson, 512 U.S. at 512 , 114 S.Ct. 2381 (Court must defer to agency’s interpretation unless alternative interpretation compelled by plain language or intent). At the very least, the plain language does not foreclose such a requirement. An alternative reading is not, therefore, compelled by *1015 the plain language and the majority erred in so holding.

3

Nor does the intent of the regulation compel an alternative interpretation rejecting the requirement' of on-going disability. As the majority notes, Chen is the case the regulation was intended to codify and is a useful guide to determining agency intent. See supra 1005. In no way does Chen foreclose the INS’s requiring on-going disability. Indeed, that case specifically declines “to delineate the circumstances under which past persecution may or may not be the basis for a successful asylum claim.” 20 I. & N. Dec. 16, 22 (BIA 1989).

Moreover, Chen actually supports a requirement of an on-going disability. There, the BIA focused not only on the past persecution but also on how such persecution currently affected Chen. The BIA made careful note that Chen was “physically debilitated, must wear a hearing aid ..., is always anxious and fearful, and is often suicidal.” Id. at 20 . The Board also noted that Chen had vowed suicide if he were forced to return to China. See id. These findings by the Board demonstrate that Chen was both physically and emotionally disabled. In explaining the rationale behind the exception, the Board highlights the importance of examining the connection between the past persecution and the present day: “It is frequently recognized that a person who — or whose family — has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee.” Id. at 18-19 . The board’s reference to the applicant’s present mind-set in light of the past persecution appears to speak directly to whether the applicant is “emotionally disabled.” The intent of the agency in promulgating the regulation, as amplified by Chen, supports a requirement that the applicant demonstrate an emotional or physical ailment that makes him unwilling to return to his country. 4

B

The majority attacks the BIA’s interpretation of its own humanitarian rule on several fronts, each of which fails to survive careful scrutiny.

1

The majority states repeatedly that a requirement of on-going disability is unreasonable “because it treats two applicants who are tortured alike differently if one has the good fortune to fully recover from his injuries and the other does not.” Supra at 1004. But such observation highlights the majority’s fundamental miscom-prehension of the humanitarian exception. Based solely on the fact of their past torture, the two hypothetical applicants have only demonstrated that they have suffered past persecution. Nevertheless, the regulation requires that the applicant also demonstrate compelling reasons arising out of the past persecution for not being willing to return to his country.

Treating two similarly tortured applicants differently is amply supported by the policies of this regulation and of asylum generally. Virtually all victims of persecution carry with them the memories of their *1016 persecution. Our asylum law, however, seeks only to help those who cannot, by repatriation, get a fresh start in their country, whether it be from an objective fear of future persecution or for compelling reasons based on severe past persecution. “Asylum is a prophylactic protection ... [and] is designed not to remedy the past.” N-M-A-, Interim Decision 3368, at 29 (citing Marquez v. INS, 105 F.3d 374 (7th Cir.1997)) (internal citations omitted). The regulation is aimed at helping those who, like Mr. Chen, suffer from the long-lasting effects of persecution to the extent of being physically debilitated, always anxious and fearful, and suicidal at the prospect of returning to the country of his persecution. Chen, 20 I. & N. Dec. 16, 20 .

The majority would restrict the application of the regulation to treating all similarly tortured applicants alike regardless of changed conditions. But this oversteps the judicial role. While the BIA may, in the exercise of its discretion, interpret the regulation in such manner it is simply not compelled to do so either by the plain language or intent. Based on the majority’s confined interpretation of the regulation, two applicants who have suffered identical past persecution would be treated the same regardless of whether one applicant has no memory nor physical reminder of his past persecution. To such applicant, asylum would only be a remedy for a past persecution he does not even remember; it would serve no prophylactic function in having the applicant avoid repatriation to relive the horrors of his memories amidst his persecutors and the surroundings of his persecution. Yes, the applicant who has had the good fortune of recovering from his physical and emotional wounds has no right, under the regulation, to asylum from a country in which the conditions which wrought the persecution no longer exist.

2

The majority further contends that the BIA’s interpretation is owed less deference because it is arbitrary and capricious and represents an irrational departure from a settled course of adjudication. See Supra at 1006-07. The BIA’s application of the Chen exception, however, demonstrates that a requirement of an on-going disability is a logical extension of a consistent policy. Indeed, virtually all decisions applying the Chen exception have discussed the presence or absence of the long-term effects of the past persecution.

In Chen itself, the BIA carefully detailed emotional and physical scars from his past persecution in granting him asylum. Without expressly referring to “lasting ... disability,” Chen specifically declined to prescribe the requirements for asylum under this exception. Chen, 20 I. & N. Dec. 16, 22 . Applying such a disability requirement here is fully consistent with Chen .

In N-M-A-, the BIA noted that to meet the “compelling reasons” standard of the regulation the focus is appropriately on the “aftermath” of the persecution and “the long-lasting effects of [the] harm.” N-MA, Interim Decision 3368, at 35. In finding that he did not qualify for asylum, the board noted that the applicant had not testified to any “long-lasting effects” from the persecution and that there was a lack of “evidence of severe psychological trauma stemming from the harm.” Id.

In Matter of H-, where the Board granted asylum to the applicant based on the Chen exception, the Board noted that the applicant had been “badly beaten on his head, back, and forearm with a rifle butt and a bayonet, resulting in scars to his body which remain to the present.” Matter of H-, Interim Decision 3276, at 14 1996 WL 291910 (BIA 1996). The Board clearly found that the applicant had an on-going physical disability. Requiring such a dis *1017 ability there was not an irrational departure from Chen .

Matter of B-, contrary to the majority’s assertion, is not inconsistent with a requirement of on-going disability. While the Board did not make a specific finding of on-going physical or emotional disability, the Board did note that the applicant had suffered “electric shocks” and thirteen months in detention and prison receiving “various forms of physical torture and psychological abuse.” Matter of B-, Interim Decision 3251, at 2, 6 1995 WL 326740 (BIA 1995). It is highly probable that the applicant suffered permanent physical and emotional scars from this atrocious persecution. A person who suffers electric shocks will likely be permanently scarred. Equally probable is that a person who receives 13 months of various forms of psychological abuse will be emotionally scarred. Where it is likely that Bhad either emotional or physical scarring, a requirement of such a disability cannot be said to be inconsistent with this decision. Even if Bdid not suffer from an on-going disability, one BIA decision granting asylum without requiring such a disability would not render the general requirement an irrational departure from BIA policy.

A requirement of on-going disability is clearly consistent with the BIA’s past application of the Chen exception. In N-MA- the Board made an explicit finding that the applicant had not testified to the long-lasting effects of the persecution. In Chen and B-, the Board specifically noted the physical scars of the applicants. In H-, it is highly likely that the applicant suffered both physical and emotional disabilities from his electric shock torture and the many months of psychological abuse. To require an explicit on-going disability now is not contrary to these previous BIA decisions that relied heavily on the presence and absence of such a disability.

At worst, the “lasting ... disability” requirement is a narrow view of what constitutes compelling reasons. In INS. v. Yueh-Shaio Yang, 519 U.S. 26, 32 , 117 S.Ct. 350 , 136 L.Ed.2d 288 (1996), the Supreme Court reasoned that since “entry fraud” was “a rule of the INS’s own invention, the INS is entitled, within reason, to define that exception as it pleases.” Id. Similarly, a ■ narrow view of “compelling reasons” is not a disregard of the BIA’s general policy of considering the long-lasting effects of the persecution. After all, the Chen exception is a regulation created by the BIA, and, as such, it is entitled to define it as it pleases.

3

Sadly, the majority repeats the errors of Aguirre I, which was reversed by Aguirre II , in which the Supreme Court admonished this court for having failed to accord the BIA’s interpretations the deference they are owed and for simply imposing our own construction of the statute.

Aguirre II involved the definition of a “serious nonpolitical crime,” a provision of asylum law that prevents an applicant, otherwise eligible for withholding of deportation, from remaining in the United States because of crimes committed in his country of origin. See 526 U.S. at 419 , 119 S.Ct. 1439 ; 8 U.S.C. § 1253 (h)(2)(C). Applying the definition of a “serious nonpolitical crime” adopted in one of its earlier decisions, the BIA had concluded that the applicant committed serious nonpolitical crimes. See Aguirre II, 526 U.S. at 422-23 , 119 S.Ct. 1439 . We reversed, concluding that the BIA had incorrectly interpreted the provision. See Aguirre I, 121 F.3d at 524 . We held that the BIA had erred because it failed to consider the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (“UN Hand *1018 book”) and did not heed our precedent when it applied the serious nonpolitical crime provision. See id. We held that following the UN Handbook and our cases, the BIA should have considered the persecution the petitioner might suffer if he returned, whether his crimes were grossly disproportionate to their alleged objectives, and whether his actions were “atrocious” as defined by our cases. See id. Judge Kleinfeld dissented. See id. at 524-25 . In turn, the Supreme Court reversed and held that we had not appropriately deferred to the BIA as the agency charged with administering the statute. See Aguirre II, 526 U.S. at 425 , 119 S.Ct. 1439 . In analyzing the present case, the majority fails to follow the principles and path laid out in Aguirre II .

In Lai’s case, the BIA interpreted its own decision (Chen) as codified in the regulations ( 8 C.F.R. § 208.13 (b)(1)(ii)). Such an interpretation must be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Udall v. Tallman, 380 U.S. 1, 16 , 85 S.Ct. 792 , 13 L.Ed.2d 616 (1965). Thus, the issue before us, of course, is whether the BIA’s requirement that an applicant show “lasting ... disability” in order to avoid the well-founded fear of future persecution element of asylum eligibility is a “permissible construction” of the regulation. Id. The question becomes whether an alternative interpretation is compelled by the plain language of the regulation or the intent in promulgating it. Thomas Jefferson, 512 U.S. at 512 , 114 S.Ct. 2381 . In rejecting the BIA’s decision, the majority never states how the plain language or intent of the regulation compels an alternative interpretation that disallows a requirement of on-going disability.

Applying the lessons of Aguirre II here, the majority’s interpretation of the Chen exception, “is not obvious” “[a]s a matter of plain language.” Aguirre II, 526 U.S. at 426 , 119 S.Ct. 1439 . Nowhere in the regulation is the meaning or scope of “compelling reasons” defined. It is not at all obvious that “compelling reasons” should be based on anything more than physical and emotional disabilities. Although the majority’s interpretation may well be reasonable, the BIA is not compelled to follow it. Because of the BIA’s expertise, we defer to it to choose among all of the competing reasonable interpretations the one interpretation which it believes best comports with its policy goals. By not deferring to the BIA and, instead, substituting its own judgment, the majority has repeated our errors from Aguirre I.

4

Finally, the majority faults the BIA for failing to follow our previous cases applying the Chen exception, in particular Vong-sakdy and Lopez-Galarza. None of our cases forecloses the requirement that a petitioner claim an on-going disability in order to qualify for asylum under Chen , and the facts of those cases indicate that the existence of a continuing disability is an important consideration. In Vongsak-dy, we compared the persecution suffered by the petitioner to that suffered by Chen. We noted specifically that “[bjoth suffered serious physical injuries and were denied medical care, resulting in permanent impairment.” 171 F.3d at 1207 (emphasis added). In Lopez-Galarza, where the petitioner was- raped, abused, deprived of food and imprisoned, there is no indication of whether she suffered an on-going disability. But we did not hold in that case that the persecution satisfied the requirements of humanitarian asylum; instead, we remanded the case to the BIA so that it could consider the possibility. See 99 F.3d at 963. Thus the best that can be said for the majority’s position is that none of our cases explicitly state that on-going disability is a requirement. But the BIA’s impo *1019 sition of such a requirement certainly does not contradict our case law. 5 According to the majority’s analysis, an agency is foreclosed from altering its interpretation of a statute or regulation unless that interpretation has been specifically acknowledged and approved by our case law. This standard does not accord the deference embodied in Chevron that is necessary for an agency to “give[ ] ambiguous statutory terms ‘concrete meaning through a process of case-by-case adjudication.’ ” Aguirre II, 526 U.S. at 425 , 119 S.Ct. 1439 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987)).

C

Neither the humanitarian exception, nor the majority’s reinterpretation of it, can overcome the deference Aguirre II requires us to give to the BIA in the disposition of its regulations. For the foregoing reasons, the BIA’s decision to deny Lai asylum is based on a permissible construction of the asylum statute, is consistent with Chen and our cases, and should be upheld.

II

Notwithstanding the discussion in Part I, it is entirely possible that the majority has over-interpreted the BIA’s decision; that is, the BIA may never have intended to establish a new “lasting ... disability” requirement as a matter of law. After laying out the facts of Lai’s persecution, the BIA concluded:

a preponderance of the evidence establishes ... that there are not compelling reasons for being unwilling to return to Fiji arising out of the severity of the past persecution of the lead respondent. In this regard we observe that the principal respondent does not claim to suffer from lasting physical or emotional disability as a result of past mistreatment.

Rather than establishing a new legal requirement, the BIA may have been simply supporting its conclusion that the totality of the facts of this case does not support asylum under Chen by noting that Lai did not claim ongoing disability. If this interpretation of the BIA’s opinion is correct then, the majority should have reviewed the BIA’s decision under the substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992); Kumar, 204 F.3d at 934-35 (applying the substantial evidence standard to our review of the BIA’s decision that the petitioner did not qualify for asylum under Chen). On the facts of this case, the BIA’s decision that the severity of the persecution suffered did not rise to the level of “atrocity” is clearly supported by substantial evidence and the majority errs in concluding otherwise.

We have held that in considering the humanitarian exception, the BIA should compare the severity of the persecution endured by the applicant with that suffered by the petitioner in Chen. See Lopez-Galarza, 99 F.3d at 963. As the majority recognizes, the BIA here did just that. After describing extensively the persecution that Lai suffered, the BIA’s conclusion, citing Chen , was sufficient and does not lack substantial evidence to support it. See Marcu, 147 F.3d at 1082-83 . In Marcu , we stated:

With regard to [the claim for humanitarian asylum], the BIA held: “[B]ased on the evidence on hand, we do not find sufficient humanitarian grounds to grant the respondent asylum as a matter of discretion. The actions were not so se *1020 vere or atrocious in nature to warrant asylum for humanitarian reasons.” Although we require more than a mere comment from the BIA, all that is necessary is a decision that sets out terms sufficient to enable us as a reviewing court to see that the Board has heard, considered and decided.

Id. at 1082 . As in Lai’s case, in Marcu , “[t]he BIA set forth in its opinion an extensive description of the harassment and abuse [the petitioner] endured.... In the BIA’s judgment, however, that harassment and abuse did not rise to the necessaiy level of severity or atrociousness to warrant asylum on humanitarian grounds. The BIA’s opinion demonstrates that it heard the claim, considered the evidence, and decided against [the petitioner].” Id. at 1083 . That is precisely what occurred here. As we concluded in Marcu , “No more was required.” Id.See also Kazlaus-kas, 46 F.3d at 906-07 (holding that the IJ did not abuse his discretion where he considered the severity of the petitioner’s and his family’s persecution, the likelihood of future persecution, the circumstances surrounding the petitioner’s departure and entry into the United States).

The two cases cited by the majority— Lopez-Galarza and Vongsakdy — do not teach otherwise. In Lopez-Galaraza, the BIA erred because it “simply failed to consider the level of atrocity of past persecution.” 99 F.3d at 963. In that case, the BIA did not “provide an explanation sufficient to enable us as a reviewing court to see that the Board has heard, considered, and decided.” Id. (quotations omitted). Here, the BIA made it clear that it had considered the severity of the past persecution, but did not consider it to rise to the level of “atrocity.” It fulfilled all the requirements of Marcu .

In Vongsakdy , the petitioner suffered permanent impairment resulting from his two-year ordeal at a forced labor camp. There, he was deprived of food and water, beaten and tortured, had his fingers broken, denied medical care, compelled to witness the killing of his friend, and had his thumb severed by a rifle blow. See 171 F.3d at 1205-06 . Lai’s experience, though brutal, was simply not as serious. Lai was beaten and tortured and deprived of adequate food and water for three days, not two years. His home and temple were robbed. He was forced to watch as soldiers fondled his wife. He was detained an additional three times. He was prevented from leaving the country. One should not minimize in any way the severity of the brutality suffered by the Lai family, but the standard, as established by Chen and our own cases is one of “atrociousness.” This standard must be kept high to prevent the exception from destroying the carefully calibrated statutory and regulatory scheme.

Let us remember, our standard of review is substantial evidence; that is, the evidence in the record must compel the opposite conclusion reached by the BIA before we are at liberty to overturn its judgment. See Vongsakdy, 171 F.3d at 1206 . Given the definition of “atrocity” endorsed by the Supreme Court, the appropriate standard of review, and the need to take care that the exception does not swallow the rule, I cannot say that the BIA’s conclusion that the persecution was not serious enough is not supported by substantial evidence.

Finally, the majority’s conclusion cannot be reconciled with our recent decision in Kumar . In that case, the petitioner, like Lai, a Fijian of Indian descent and supporter of the Labour Party, suffered from extensive persecution. The soldiers entered the Kumar’s home, beat and tied up Kumar’s parents and then forced them to watch as they stripped Kumar of her clothes and sexually assaulted her. See *1021 204 F.3d at 932-33 . The soldiers threatened Kumar’s life and took her father into custody where they beat him for two weeks. See id. Later that same year, soldiers destroyed the temple where Ku-mar was worshiping, dragged her out by her hair and punched and kicked her until she agreed to convert from Hinduism. See id. at 933 . They also knocked her mother unconscious when she tried to intervene. Still later, a group of soldiers caught up with Kumar while she was at school and beat her until she was unconscious. See id. Despite the ferocity of the persecution Kumar suffered, we held that the record did not compel us to conclude that the BIA erred when it decided that the severity of the persecution did not rise to the level required for humanitarian asylum. See id. at 935 .

The majority does not even attempt to reconcile these cases, and I believe it cannot. On the facts, Kumar and Lai suffered from very similar experiences of persecution. I find it improbable that the facts of Lai could compel us to conclude that no reasonable person could fail to find that the severity of Lai’s persecution rose to the level of “atrocity” required for humanitarian asylum, while those of Kumar do not.

Substantial evidence supports the BIA’s conclusion that Lai is not eligible for asylum because he failed to demonstrate compelling reasons arising out of severe past persecution for not being willing to return to his country. If the BIA did require a showing of permanent impairment before granting asylum based on the “compelling reasons” standard of 8 C.F.R. § 208.13 (b)(l)(ii), we should defer, to its decision as a permissible construction of its regulation.

III

In light of the discussion in Parts I and II, one must reach the question whether substantial evidence also supports the BIA’s conclusion that changed country conditions have obviated Lai’s well-founded fear of future persecution.

A

The BIA found by a preponderance of the evidence that since the 1987 coup, “country conditions in Fiji have changed to such an extent that [Lai] no longer has a well-founded fear of being persecuted.... ” The BIA noted that the State Department report, issued in 1994, stated that there was no evidence of widespread human rights violations in Fiji against ethnic Indians and that Indo-Fijians engage in business and professional activities. It noted that both ethnic Fijians and ethnic Indians lead “ ‘tranquil and productive lives’ throughout Fiji.” 6 Thus the BIA ordered the Lais deported if they did not depart voluntarily within 30 days.

We review the BIA’s conclusion regarding changed country conditions for substantial evidence. See Marcu, 147 F.3d at 1081 . Lai’s past persecution establishes a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 208.13 (b)(1)(i). The INS then rebutted *1022 this presumption by demonstrating, “by a preponderance of the evidence, that conditions have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return.” Marcu, 147 F.3d at 1081 (quotations omitted). The State Department country reports are “the most appropriate and perhaps the best resource for information on political situations in foreign nations.” Kazlauskas, 46 F.3d at 906 (quotations omitted).

The events which Lai alleges took place primarily from 1987 to 1988, the year following the coups, with one isolated incident in 1991. Despite Lai’s credible accounts of severe past persecution, the Report provides substantial support for the BIA’s conclusion that the situation in Fiji has changed so significantly that Lai may return without fear of future persecution, cf. Marcu, 147 F.3d at 1081-83 . In Marcu , an applicant who had been persecuted for more than twenty-five years in Romania on account of his pro-American views was denied asylum because of the changes that occurred in that country after the fall of the Ceausescu regime. This was so despite the fact that Marcu had been beaten in the year following the change in leadership. See Marcu, 147 F.3d at 1081 . As in Marcu , almost all of the incidents Lai alleges here occurred in that “chaotic” first year following the coup. Unlike the petitioner in Marcu , here Lai suffered one additional instance of persecution after that time in 1991. Mindful of the Supreme Court’s admonishment that we are not to overturn the decision of the BIA unless the evidence “compels ” us to do so, we cannot say that this one later event compels us to conclude “that no reasonable factfinder could fail to find the requisite fear of persecution.” Elias-Zacarias, 502 U.S. at 483-84 , 112 S.Ct. 812 (emphasis added).

Despite the targeted and protracted nature of the persecution Lai suffered, the record provides substantial evidence to support the BIA’s conclusion. Lai was persecuted on account of his political views, his ethnicity and his religion. The 1994 country report indicates that the previous two elections (both taking place after Lai’s last instance of persecution) were fair and free; the Indo-Fijian parties participated without interference on the part of the government. In the 1992 elections four of the twelve parties were Indo-Fiji-an. Although prevented by the Constitution from gaining control of the government, the record shows that the non-ethnic Fijian parties controlled 33 (in contrast to the ethnic Fijians’ 37) of the seats in the lower house of Parliament. Thus the Report provides substantial support for the BIA’s conclusion that if Lai were to return, he would not face persecution on account of his political participation.

With respect to the persecution Lai suffered on account of his ethnicity and religion, the State Department report concludes that Fijians of all faiths and ethnicities lead tranquil and active business and personal lives. The Indian community dominates the business and the professions, and is well-represented in public service. It is true that the report and several newspaper articles in the record indicate some continued ethnic tension, and that the police are at times slow to prevent harassment of Indo-Fijians. The report concludes, however, that overall Fijians of both ethnicities “are leading tranquil and productive lives throughout Fiji,” and there is no widespread violation of human rights against Indo-Fijians on the part of the military or the police. 7 *1023 As the court held in Marcu , we need not resolve the factual dispute over the current conditions in Fiji. See id. at 1082 . “Our task is to determine whether there is substantial evidence to support the BIA’s finding, not to substitute an analysis of which side in the factual dispute we find more persuasive.” Id. Our case law well establishes “that the country report from our Department of State is the ‘most appropriate’ and ‘perhaps best resource,’ ” for determining country conditions. Id.; Kazlauskas, 46 F.3d at 906. As such, the State Department report “provide[s] substantial evidence for the BIA’s determination that the INS successfully rebutted the presumption of future prosecution.” Marcu, 147 F.3d at 1082 . 8 The record simply does not compel a reasonable factfinder to reach the opposite conclusion.

B

Lai and the majority assert that the State Department reports are insufficiently individualized to be helpful is assessing the reasonableness of Lai’s fear of future persecution. As noted above, however, the State Department reports are the best source of information regarding country conditions, and we have held that the BIA may rely on them to determine whether an applicant has a well-founded fear of future persecution. See, e.g., Kazlauskus, 46 F.3d at 906.

Nor is the BIA’s conclusion that Lai need no longer fear persecution based on an insufficiently individualized assessment of the Report as it applies to his case. See Garrovillas v. INS, 156 F.3d. 1010 (9th Cir.1998). In Garrovillas , this court held the BIA’s analysis of changed country conditions to be insufficiently specific. But the context of that determination differed significantly from the case at hand. In Garrovillas , the BIA had found that the petitioner did not establish past persecution and it did not afford him the presumption of well-founded fear of future persecution. See id. at 1017 . Nor did it analyze the facts to assess whether the presumption had been rebutted by the changed country conditions. All the BIA did was quote two paragraphs of the State Department report without mentioning its applicability to the case. See id. “Thus it [was] not clear whether this quotation was intended to serve as a means of rebutting the presumption of a well-founded fear of future persecution.” . Id.

In contrast, the BIA here afforded Lai the presumption of a well-founded fear of future persecution, and then found that the country report “establishes that since that persecution occurred, country conditions in Fiji have changed to such an extent that the lead respondent no longer has a well-founded fear of being persecuted.... ” Lai claims persecution on account of political opinion, religion, and ethnic origin; the portions of the report cited by the BIA referred specifically to the decreased political and ethnic tension between ethnic Fijians and Indians and the “tranquil and productive lives” of Fijians of all faiths. Unlike in Garrovillas , the BIA here made it clear that it considered the appropriate presumption, found it rebutted, and dis *1024 cussed those sections of the report that dealt specifically with the reasons for which Lai was persecuted. In sum, the requirement that the changed country conditions analysis be individualized to the petitioner is met in this case. 9

IV

The majority rejects a reasonable interpretation by the BIA of its own regulation and misinterprets it as adding a new requirement. It then compounds its error by failing to apply the correct standard of review. Finally it misconstrues the law on “changed country conditions.” In my view, the BIA’s construction of the statute is a permissible one. As sympathetic as the Lais’ application is, nothing in the record legally compels a result different from that reached by the BIA.

Accordingly, Lai’s petition for review of the BIA decision should be denied and, I, therefore, respectfully dissent.

. Jaswant Lai applied for asylum claiming that he had been persecuted in Fiji because he was a Hindu Indian who supported the Lab-our Party. As the Immigration Judge found him credible, I too assume his credibility. See Singh v. INS, 94 F.3d 1353, 1356 (9th Cir.1996). The INS challenged Lai's credibility on appeal from the IJ, but the BIA did not decide the issue because it concluded that even if Lai had established past persecution, changed country conditions supported denial of asylum. On remand, therefore, the INS should have the opportunity to raise the credibility issue. I agree with the BIA and the court that Lai suffered past persecution on account of his race, religion, and political opinion.

. While I agree with the majority that the petitioner raised this matter on appeal, I cannot endorse its reliance on the following passages in petitioner's brief: whether “substantial evidence is found in the record which would compel an opposite finding than that reached by the Board’’ and whether "the Board failed to apply the law to the facts of the case and whether it abused its discretionary power.” Concluding that a litigant raises a specific issue (even in part) because he makes such broad statements, is like saying that because the petitioner appealed, he raised all issues. This would eviscerate the requirement that a litigant raise the specific issues that he wants us to address. There is a difference between a notice of appeal and a brief. Compare Fed. R.App. P. 3 with Fed R.App. P. 28. Only because, as the majority notes, the petitioner asserted that the BIA erred when it underestimated the magnitude of his persecution can I concur that the issue has been raised. The requirement that an issue be raised with particularity is grounded in notions of notice and fairness to the opposing party and should not be lightly set aside.

. For the sake of discussion here, I assume that the majority is correct that the BIA intended to establish such a requirement. It is equally likely that the BIA's opinion noted the lack of lasting disability as a consideration, not a requirement. In my view, consideration of such a factor would be well within the BIA’s authority to give meaning to vague provisions of the statute following the analysis in the remainder of Part I of this dissent.

. Of course, under our substantial deference standard of review, the intent of the regulation need not "support” a requirement of ongoing disability, the agency’s choice will prevail unless an alternative interpretation is compelled. Thomas Jefferson, 512 U.S. at 512 , 114 S.Ct. 2381 .

. The BIA does not contradict its own case law either as the petitioner in Chen suffered permanenl impairment.

. OUR REVIEW IS LIMITED TO THE EVIDENCE CONTAINED IN THE ADMINISTRATIVE RECORD. NEVERTHELESS, I CANNOT TURN A BLIND EYE TO THE RECENT REPORTS OF RENEWED CONFLICT IN FIJI BETWEEN THE INDIGENOUS FIJIANS AND ETHNIC INDIANS. See, e.g., SAM HOWE VERHOVEK, "BURST OF ETHNIC TENSION IN FIJI THREATENS SOUTH SEAS ‘EDEN,’ ” N.Y. TIMES, June 7, 2000, at Al. The hostage crisis comes after a period of tranquility during which an ethnic Indian was elected prime minister. In any case, the proper avenue to address any pertinent changes in the country subsequent to the BIA's decision is to file a motion to reopen the proceedings with the BIA. See 8 C.F.R. § 3.2 .

. Lai suffered his last instance of persecution in 1991. The State Department Report states that widespread persecution of ethnic Indians had ended by 1994.

. Petitioner cannot distinguish Marcu by arguing that the BIA’s finding there found support in both the State Department report and a letter from the Director of the Office of Asylum Affairs individualized to the petitioner's case. See infra at 8423-24. It does not follow that absent the Director's letter, the BIA's finding would have lacked substantial support. In any case, Kazlauskas firmly establishes the proposition that a State Department report can be enough by itself. In Ka-zlauskas, we affirmed the BIA’s changed country condition finding based only on the State Department report. See id. 46 F.3d at 906.

. The petitioner appears to mistake the requirement that the IJ and BIA undertake an individualized analysis of how the changed country conditions affect the particular petitioner’s case with a requirement that the State Department report provide individualized analysis. The State Department issues reports describing the political situation in the country. The IJ and the BIA then analyze the reports to determine whether the information contained therein is relevant to the individual asylum seeker’s application. Requiring more of the State Department when thousands of asylum applications are filed each year would be unfounded in law, regulation or precedent. In any case, we have explicitly rejected the notion that the Report itself must be individualized. See Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995).