Zhao v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
March 15, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-60681
_______________
YU ZHAO,
Petitioner,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
m A78 129 956
_________________________
Before SMITH and GARZA, Circuit Judges,
and VANCE,* District Judge.
JERRY E. SMITH, Circuit Judge:
Yu Zhao, a native of the People’s Republic
of China, attempted to enter the United States
illegally. At a hearing before an immigration
judge (“IJ”), Zhao applied for asylum and
withholding of removal. The IJ refused to
withhold removal and denied asylum on the
ground that Zhao showed neither past
persecution nor a well-founded fear of future
persecution.
The Board of Immigration Appeals (“BIA”
or “Board”) dismissed Zhao’s appeal. He filed
a motion for reconsideration, contending that
his fear of future persecution was reasonable
* District Judge of the Eastern District of Loui-
siana, sitting by designation.

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2
and that the IJ should have given more weight
to certain documentary and testimonial
evidence.
Zhao petitioned this court to review the
BIA’s determinations; he consolidated that pe-
tition 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 re-
moval for falsely representing himself as a citi-
zen. Zhao conceded that he was subject to re-
moval but asked for, and was granted, permis-
sion to file an application for asylum and with-
holding of deportation, which he did in July
2000.
At his initial hearing, Zhao attempted to
submit, among other things, three contested
documents to the IJ: two written notices is-
sued to him from Guantou Town’s Village
Committee demanding his appearance at the
Town Government and a police summons de-
manding his appearance at the police station.
The government objected, arguing that the
documents did not conform to 8 C.F.R.
§ 287.6 (2003), the regulation governing proof
of official foreign records.
The IJ agreed with the government but
gave Zhao more time to authenticate the docu-
ments. In February 2002 the IJ held a hearing
on the merits of Zhao’s application for asylum
and withholding of deportation. Zhao had not
authenticated the documents pursuant to
§ 287.6 by the beginning of that hearing, so
the IJ excluded them.
Zhao was the only person to testify at the
hearing, but the IJ credited all of his testimony,
which established the following: Falun Gong
is a movement that professes to help its
practitioners gain self-understanding through
spiritual and physical development. Zhao
started to practice Falun Gong in 1999 to cure
his “dizzy spells” and back pain. Zhao began
his Falun Gong practice under the tutelege of
Master Zhao Kai Feng, a mentor he had
known since childhood.
In April 1999, Zhao joined about forty
other participants in a silent protest outside the
Town Hall for Quanto County in Fujian Prov-
ince. That protest and Zhao’s participation in
it were filmed. Later that year, while he was
visiting a friend, Zhao’s mother told him the
police had been looking for him and that
authorities had arrested Feng. She cautioned
Zhao not to return home.
Zhao bicycled to his aunt’s house and hid
for several weeks. He then learned that the
police had arrested other Falun Gong follow-
ers. After hiding out at his aunt’s, Zhao trav-
eled by bus to Fuzhou City, where he helped
his uncle at a construction site, but this activity
was limited, and he was there primarily to
“hide out.” During his stay in Fuzhou City,
Zhao’s mother visited him and told of further
police visits to their house.
At the end of February 2000, Zhao traveled
to Beijing by bus because the government had
begun a massive crackdown on Falun Gong
practitioners. Zhao’s family soon arranged for
him to travel to the United States. Zhao found
it too difficult to hide in the People’s Republic
of China because authorities were “hunting
down” Falun Gong practitioners everywhere,
and he believed the United States would afford
him the protection he needed. In March 2000,
he traveled to the United States with his fake
passport.

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3
Since then, Zhao has learned that approxi-
mately 200 to 300 Falun Gong practitioners
have died during torture and that about 50,000
practitioners have been exiled or sentenced to
hard labor without a conviction. He learned
that the Chinese authorities had incarcerated
some practitioners in mental facilities and
injected them with medicine that “mess[ed]
up” their nervous systems. Zhao was afraid to
return to the 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 partici-
pated in one public, organized Falun Gong ac-
tivity in the New York/New Jersey area since
his arrival there.
After hearing Zhao’s testimony, the IJ de-
nied the application for asylum and withhold-
ing of deportation. Although the IJ found that
Zhao was a credible witness and (grudgingly)
that Falun Gong falls within the State Depart-
ment’s operative definition of “religion,” the IJ
found that Zhao had not established either past
persecution or a well-founded fear of future
persecution on account of a protected
characteristic.
On appeal, the BIA, in a per curiam opin-
ion, 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 estab-
lished past persecution and that his fear of
future persecution was not objectively reason-
able. The Board also noted that Zhao had
“testified that he currently seldom practices
Falun Gong and, when he does, he practices in
private.” The Board found that Zhao had
never had any contact with government offi-
cials “despite traveling about China for
6 months after the police expressed interest in
him.”
Zhao timely filed a motion to reconsider,
re-urging the arguments he had raised before
the IJ and, for the first time, including an ap-
peal of the IJ’s exclusion of his three unau-
thenticated documents. He also sought to sub-
mit other items documenting worsening con-
ditions in the People’s Republic of China.
In December 2003, the BIA denied recon-
sideration. It declined to consider the IJ’s
evidentiary ruling because Zhao had failed to
raise it in his initial appeal. Zhao timely pe-
titioned this court to review both the BIA’s in-
itial decision affirming the IJ’s findings and its
denial of his motion to reopen.
II.
Seeking to introduce the unauthenticated
documents and the two State Department re-
ports, Zhao contends that the BIA erred in re-
jecting his motion to reconsider. Although
Zhao labels his motion as one for reconsidera-
tion, he both re-urges current documents and
arguments and seeks to submit new evidence.
Because he seeks to introduce new evi-
dence, his motion is also one to reopen. See
Pierre v. INS, 932 F.2d 418, 421-22 (5th Cir.
1991). These two types of post-judgment mo-
tion are distinguished primarily by the fact that
a motion for reconsideration does not present
new evidence to the BIA. Irrespective of how
Zhao labels it, we will consider his motion as
both one to reopen and one to reconsider. See
id. at 422.
A.
We review the denial of a motion to recon-
sider for abuse of discretion.1 A motion for re-
1 Ghassan v. INS, 972 F.2d 631, 638 (5th Cir.
1992) (citing Osuchukwu v. INS, 744 F.2d 1136,
(continued...)

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4
consideration urges an adjudicative body to re-
evaluate the record evidence only. See Ghass-
an, 972 F.2d at 638. Insofar as Zhao’s motion
was one for reconsideration, his effort fails
because he did not identify a change in the law,
a misapplication of the law, or an aspect of the
case that the BIA overlooked. See Pierre, 932
F.2d at 422.
B.
Zhao sought to reopen the record to intro-
duce two new documents. Those documents
are (1) the U.S. Department of Justice Interna-
tional Religious Freedom Reports (“2002 Re-
ligious Freedom Reports,” issued in October
2002) and (2) the U.S. Department of Justice
Country Reports on Human Rights Practices
for 2002 (“2002 Country Reports,” issued in
March 2003).
1.
In this circuit, the degree to which 8 U.S.C.
§ 1252(a)(2)(B)(ii) (2000) precludes judicial
review of motions to reopen immigration pro-
ceedings is an open question.2 We have pre-
termitted this “thorny” question where there
were alternative means of resolving the rele-
vant issues. See, e.g., Asaad, 378 F.3d at 474
(declining to reach the issue because the court
lacked jurisdiction for other reasons). We now
at last address the issue. Although the parties
did not raise or brief this question, we must
examine the basis of our subject matter
jurisdiction, on our own motion if necessary.3
Section 1252(a)(2)(B)(ii) proscribes judicial
review of “any . . . decision or action of the
Attorney General the authority for which is
specified under this subchapter to be in the
discretion of the Attorney General” (emphasis
added). The government does not raise the is-
sue, but there is a question whether § 1252
bars judicial review of all motions to reopen,
and we may not exercise appellate jurisdiction
that we do not have. In Medina-Morales v.
Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004),
the court held that § 1252(a)(2)(B)(ii) does
not impose a complete jurisdictional bar. The
instant circumstances present a question that is
in all meaningful respects identical, and we
agree with the Ninth Circuit’s reasoning.
The subsection explicitly excepts asylum
determinations, made pursuant to § 1158(a),
from its jurisdictional prohibitions. The
operative statutory text precludes judicial
review of all actions specified as discretionary
under that provision’s subchapter “other than
the granting of relief under section 1158(a) of
this title.” § 1252(a)(2)(B)(ii). We therefore
have two potential sources of appellate juris-
diction: 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 under subchapter II of Title 8. We do
not consider the first possibility, 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 Immi-
grant Responsibility Act of 1996 (“IIRIRA”), Pub.
L. No. 104-28, 110 Stat. 3009 (1996), implements
restrictions on federal court jurisdiction over sev-
eral categories of BIA decisions. Those restric-
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,
378 F.3d 471, 474 n.1 (5th Cir. 2004) (citing
Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th
Cir. 2004)).
3 See Hill v. City of Seven Points, 230 F.3d 167
(5th Cir. 2000) (quoting Mosley v. Cozby, 813
F.2d 659, 660 (5th Cir.1987)).

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5
Outside of the § 1158(a) proviso, the text
of § 1252(a)(2)(B)(ii) makes plain that we do
not have the jurisdiction to review certain dis-
cretionary actions of the Attorney General.
The law, however, proscribes judicial review
of a discretionary action only where it is spe-
cified under the subsection of title 8 that gov-
erns immigration proceedings.
Before 1996,4 the authority to reopen a de-
portation proceeding derived exclusively from
a regulation promulgated by the Attorney Gen-
eral, 8 C.F.R. § 3.2(c) (2003).5 In 8 U.S.C.
§ 1229a(c)(6) (2004), however, Congress set
forth a set of rules governing review of
motions to reopen immigration proceedings.
That subsection states that an alien may file
one such motion, § 1229a(c)(6)(A); specifies
that the motion shall “state the new facts that
will be proven at a hearing to be held if the
motion is granted, and shall be supported by
affidavits or other evidentiary material,”
§ 1229a(c)(6)(B); and sets forth relevant dead-
lines, § 1229a(c)(6)(C). These provisions,
however, only set forth the standards for eval-
uating a motion to reopen; they do not furnish
us with a level of deference to afford the At-
torney General in making that evaluation.
A federal regulation, 8 C.F.R. § 1003.23-
(b)(3) (2003), furnishes the quantum of discre-
tion the Attorney General enjoys when enter-
taining motions to reopen. That regulation
provides that an “Immigration Judge has dis-
cretion to deny a motion to reopen even if the
moving party has established a prima facie case
for relief.” Id.
One might mistakenly read § 1252(a)(2)-
(B)(ii) as stripping us of the authority to re-
view any discretionary immigration decision.
That reading, however, is incorrect, because
§ 1252(a)(2)(B)(ii) strips us only of jurisdic-
tion to review discretionary authority specified
in the statute. The statutory language is un-
characteristically pellucid on this score; it does
not allude generally to “discretionary au-
thority” or to “discretionary authority exer-
cised under this statute,” but specifically to
“authority for which is specified under this
subchapter to be in the discretion of the At-
torney General.” Id. (emphasis added).
In ruling on Zhao’s motion, however, the
BIA exercised no such statutorily delineated
discretion; that discretion instead derived from
regulations promulgated by the Attorney Gen-
eral. One might argue that the statute autho-
rizes such a regulatory delegation of discretion
and that the underlying activity should there-
fore be immune from our scrutiny, but such a
construction would belie Congress’s conspic-
uous selection of the phrase “specified under
this subchapter.” 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. 314, 322
(1992); Lara v. Trominski, 216 F.3d 487, 496 (5th
Cir. 2000).
6 Two cases, in particular, are in tension with
our holding here and that in Medina-Morales. See
Yerkovich v. Ashcroft, 381 F.3d 990 (10th Cir.
2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799-
800 (8th Cir. 2004). We disagree with the analysis
these cases present regarding whether a regulation,
as opposed to a statute, may be the source of
discretion sufficient to foreclose judicial review.
Onyinkwa, id. at 799-800, addresses the dis-
tinction between statutory and regulatory authority
for discretion in a single sentence: “Since a regu-
lation implementing subchapter II specifies that
(continued...)

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6
In exercising that authority, we review the
BIA’s denial of a motion to reopen or to re-
consider under a highly deferential abuse-of-
discretion standard.7 Our standard of review
is the same irrespective of whether the peti-
tioner seeks withholding of deportation or
makes an asylum request.8 With regard to
how we actually apply this standard to the
Board’s denial of a motion to reopen,
[t]he standard is whether the Board has act-
ed within the bounds of an abundant discre-
tion granted it by Congress. It is our duty
to allow [the] decision to be made by the
Attorney General’s delegate, even a deci-
sion that we deem in error, so long as it is
not capricious, racially invidious, utterly
without foundation in the evidence, or oth-
erwise so irrational that it is arbitrary rather
than the result of any perceptible rational
approach.
Pritchett, 993 F.2d at 83 (5th Cir. 1993)
(quoting Osuchukwu v. INS, 744 F.2d 1136,
1141-42 (5th Cir. 1984) (alterations in origi-
nal)).
2.
In Doherty, the Court held that “[m]otions
for reopening of immigration proceedings are
disfavored for the same reasons as are peti-
tions for rehearing and motions for a new trial
on the basis of newly discovered evidence.”
Doherty, 502 U.S. at 323 (citing Abudu, 485
U.S. at 107-08). Indeed, 8 C.F.R. § 1003.2-
(c)(1) states that “[a] motion to reopen pro-
ceedings shall not be granted unless it appears
to the Board that the evidence sought to be of-
fered 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 re-
fusing to reopen the record to admit the unau-
thenticated documents. Those documents had
been presented before the IJ, who excluded
them, and Zhao failed to contest this ruling on
direct appeal. Although the documents are
material, § 1003.2(c)(1) is stated in the con-
junctive, and the documents were plainly
available and considered in the hearing before
the IJ.
The BIA’s failure to re-open the record to
admit the 2002 International Freedom Reports
and the 2002 Country Reports, however, rests
on far more precarious logic. The BIA
dispenses, in a single sentence, with Zhao’s at-
6(...continued)
power to grant continuances is within the discretion
of immigration judges, under the IIRIRA courts
generally have no jurisdiction to review the exer-
cise of that discretion.” We decline to endorse an
interpretation whereby any statutorily authorized
regulation conferring discretion necessarily fore-
closes judicial review. Such a reading is contrary
to Congress’s language and has adverse policy
consequences.
Yerkovich does not even mention the distinction
between a statute and a regulation furnishing
discretionary authority. The court quotes Van
Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999),
in support of the proposition that a motion to re-
open cannot be subject to judicial review. Van
Dinh itself, however, misstates the statutory text,
omitting the phrase “the authority for which is spe-
cified” before “under this subchapter.” By selec-
tively (or inadvertently) omitting this language, the
Yerkovich and Van Dinh courts analyze statutory
language that Congress did not adopt.
7 Lara, 216 F.3d at 496 (citing Doherty, 502
U.S. at 322-23; Pritchett v. INS, 993 F.2d 80, 83
(5th Cir. 1993)).
8 See Doherty, 502 U.S. at 323 (quoting INS v.
Abudu, 485 U.S. 94, 99 n.3 (1988)).

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7
tempt to reopen the record to admit these doc-
uments: “To the extent that [Zhao] seeks re-
opening for the submission of previously un-
available evidence, we find insufficient cause
to reopen, as [Zhao’s] new evidence largely
repeats the extensive country condition infor-
mation already in the record.” As we overturn
this ruling, we take full account of the broad
discretion delegated to the Board in adjudicat-
ing these motions. Here, however, the Board
erred egregiously in its conclusion.
The Board requires an applicant to provide
corroborating evidence where it is reasonable
to do so. Specifically, “general background
information about a country, where available,
must be included in the record as a foundation
for the applicant’s claim.” Matter of S-M-J,
21 I. & N. 722, 724 (1997) (emphasis added).
The IJ issued her decision on February 5,
2002, before publication of the 2002 Interna-
tional Freedom Reports and the 2002 Country
Reports. Although S-M-J deals with an asy-
lum applicant’s failure to include crucial back-
ground documentation, it would be a bizarre
policy indeed to require the applicant to pro-
vide the Country Reports before the issuance
of an IJ’s final order, but categorically to re-
fuse to allow him to introduce them, once they
become available, on a motion to reopen.
That is not to say that any or even a substan-
tial variety of documentation should require
the BIA to reopen asylum proceedings, but it
is to say that, in the name of legal consistency,
there must be some situations in which the
content of the new documentation requires
that result.
The government argues, as the BIA rea-
soned, that the 2002 Country Reports do not
justify reopening the record because they
merely restate the conditions described in the
1999 Country Reports. Here the government
is somewhat disingenuous. When, at oral ar-
gument, the government sought to rebut the
contention that the Chinese government perse-
cutes mere practitioners of Falun Gong, it re-
minded us that evidence regarding Chinese
persecution of non-leaders was contained in
the 2002 Country Reports, not the 1999 re-
ports. The government cannot simultaneously
argue that, on the one hand, the 2002 Country
Reports contain a crucial piece of evidence
that is absent from the 1999 Country Reports
in the record and, on the other, that the two
new documents are redundant.
According to the Department of State
International Religious Freedom Report 2002,
Since the [Chinese] Government banned
the [Falun Gong] in 1999 and began a com-
prehensive nationwide repression of the
movement, the practice of Falun Gong or
possession of its literature has been suf-
ficient grounds for practitioners to receive
punishment ranging from loss of employ-
ment and education opportunities to im-
prisonment. Some Falun Gong members
have been tortured in custody and there
have been reports that several hundred or
more Falun Gong adherents have died in
detention since 1999. Falun Gong mem-
bers who “disrupt public order” or distrib-
ute publications may be sentenced to 3 to 7
years in prison . . . .
(Emphasis added.) The next paragraph of that
document adds that “[e]ven [non-protesting]
practitioners . . . were forced to attend [anti-
Fulon Gong] classes. Those who refused to
recant their belief . . . were sent to reeduca-
tion-through-labor camps, where, in some cas-
es, beatings and torture were used to force
them to recant their beliefs.”

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8
The 2002 Country Reports echo this de-
scription of lower-level practitioners’ treat-
ment: “Since the [Chinese] Government
banned the [Falun Gong] in 1999, the mere be-
lief in the discipline (and since January, even
without any public manifestation of its tenets)
has been sufficient grounds for practitioners to
receive punishment ranging from loss of
employment to imprisonment.” (Emphasis
added.)
If the position of the United States Govern-
ment is that the record evidence introduced at
the initial administrative hearing does not dem-
onstrate that mere practitioners were the
objects of Chinese government persecution,
then the previously unavailable documents
Zhao sought to introduce into the record must
be admitted on a motion to re-open, because
they establish precisely that crucial proposi-
tion.9 The BIA abused even its abundant
discretion in failing to allow the documents to
be introduced.10
III.
Under 8 U.S.C. § 1158(a) (2004) the
Attorney General enjoys authority to grant
asylum to any alien who qualifies as a refugee
under § 1101(a)(42)(A). For purposes of this
statute, a refugee is
any person who is unable or unwilling to
return to, and is unable or unwilling to avail
himself or herself of the protection of, that
country because of persecution or a
well-founded fear of persecution on ac-
count of race, religion, nationality, mem-
bership in a particular social group, or pol-
itical opinion . . . .
8 U.S.C. § 1101(a)(42)(A) (emphasis added).
The decision to grant or deny asylum in-
volves two components. First, the alien must
demonstrate that he has been persecuted or
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-
matically 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 testi-
mony was legally insufficient to establish a
well-founded fear of future persecution. Spe-
cifically, the IJ found that Zhao had presented
no evidence that any Chinese government of-
ficial ever confronted him at any time for any
reason. The IJ did not question Zhao’s verac-
9 Alternatively, if the government’s position is
that the 1999 Country Reports suggest all of this
information, then we would be forced to hold,
based only on a review of the existing record, that
it abused its discretion.
10 Zhao contends that the IJ erred as a matter of
law when she excluded his three supporting doc-
uments under 8 C.F.R. § 287.6. This argument is
distinct from Zhao’s assertion that the BIA erred in
refusing to reopen the record to admit these same
documents; accordingly, it is subject to a different
analysis. We need not resolve this question, how-
ever, because (1) the current record does not
demonstrate the steps, if any, that Zhao took to au-
thenticate the documents; and (2) we grant Zhao’s
petition and reverse the Board on the record evi-
dence and the supplementary documents Zhao first
sought to introduce on his motion to reopen.
11 See Mikhael, 115 F.3d at 303; Faddoul v.
INS, 37 F.3d 185, 188 (5th Cir. 1994).
12 Mikhael, 115 F.3d at 303; Faddoul, 37 F.3d
at 188.

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9
ity but stated that “Zhao simply failed to make
his case.” That the IJ did not doubt Zhao’s
testimony is significant, because we must
accept as true all the facts to which Zhao
testified. The question is merely the interpre-
tation and legal sufficiency of those facts.
A.
We use the substantial evidence standard to
review the IJ’s factual conclusion that an alien
is not eligible for asylum. See Chun, 40 F.3d
at 78 (citing Adebisi, 952 F.2d at 912). Under
substantial evidence review, we cannot reverse
the BIA’s factual determinations unless we
decide “not only that the evidence supports a
contrary conclusion, but also that the evidence
compels it.” Id. (citing INS v. Elias-Zacarias,
502 U.S. 478, 481 n.1 (1992)). The alien
must prove that the evidence is so compelling
that no reasonable factfinder could reach a
contrary conclusion. See id. “[I]t is the
factfinder’s duty to make determinations based
on the credibility of the witnesses.” Id. (citing
Vazquez-Mondragon v. INS, 560 F.2d 1225,
1226 (5th Cir. 1977)). We will not substitute
our judgment for that of the BIA or IJ “with
respect to the credibility of witnesses or ul-
timate factual findings based on credibility
determinations.” Id.
1.
There is no error in the IJ’s determination
that Zhao has failed to demonstrate past perse-
cution. Zhao points to no evidence that the
government ever arrested, detained, interro-
gated, or harmed him or his family. See
Faddoul, 37 F.3d at 188. As the IJ noted,
there is no evidence in the record that a gov-
ernment 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 sub-
jective fear of persecution, and that fear must
be objectively reasonable.” Eduard v. Ash-
croft, 379 F.3d 182, 189 (5th Cir. 2004)
(quoting Lopez-Gomez v. Ashcroft, 263 F.3d
442, 445 (5th Cir. 2001)). The INA does not
define persecution, but we have described it as
“[t]he infliction of suffering or harm, under
government sanction, upon persons who differ
in a way regarded as offensive (e.g., race,
religion, political opinion, etc.), in a manner
condemned by civilized governments.” Ab-
del-Masieh v. INS, 73 F.3d 579, 583-84 (5th
Cir. 1996). “The harm or suffering need not
be physical, but may take other forms, such as
the deliberate imposition of severe economic
disadvantage or the deprivation of liberty,
food, housing, employment or other essentials
of life.” Id. The applicant, however, need not
provide evidence that he would be singled out
for persecution, if
(A) [he] establishes that there is a pattern
or practice in [his] country . . . of persecu-
tion 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 per-
sons such that [his] fear of persecution
upon return to that country is reasonable.
8 C.F.R. § 208.13(b)(2)(iii)(A)-(B) (2003).
There are therefore two different ways for
Zhao to prove the objectivity of his persecu-
tion 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 fear

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10
of future persecution, the alien’s “subjective
fear will satisfy this standard if ‘a reasonable
person in [his] circumstances would fear
persecution if [he] were to be returned to [his]
native country.’” Faddoul, 37 F.3d at 188
(quoting Guevara Flores v. INS, 786 F.2d
1242, 1249 (5th Cir. 1986)). This standard,
however, does not require Zhao to demon-
strate that he will be persecuted on returning
to the People’s Republic of China. It requires
a lesser showing of certaintySShe must show
“to a reasonable degree” that his return there
would be intolerable. See Eduard, 379 F.3d at
189 (citing Mikhael, 115 F.3d at 305)) (inter-
nal quotation marks omitted).
This court regards the reasonableness in-
quiry as one into both subjective and objective
fear. To establish the objective reasonableness
of a well-founded fear of future persecution,
the alien must prove that
(1) he possesses a belief or characteristic a
persecutor seeks to overcome by means of
punishment of some sort; (2) the persecutor
is already aware, or could become aware,
that the alien possesses this belief or char-
acteristic; (3) the persecutor has the capa-
bility of punishing the alien; and, (4) the
persecutor has the inclination to punish the
alien.
Eduard, 379 F.3d at 191 (citing Matter of Mo-
gharrabi, 19 I & N Dec. 439, 446 (BIA
1987)).
Two further legal points merit repeating.
First, the test does not require Zhao to prove
that he had been personally targeted, because
such an interpretation would render the future
persecution inquiry redundant of the past
persecution analysis. See id. at 192. Second,
Zhao need not prove that the Chinese govern-
ment 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 con-
cerned about the future persecution. How-
ever, 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 initial testimony that he
didn’t have time because he’s studying and
trying to better himself. He had an educa-
tion.
That passage is the extent of the IJ’s finding
concerning Zhao’s alleged fear of future perse-
cution on returning to the People’s Republic of
China. In determining the objective justi-
fication for that fear, the IJ focused solely on
Zhao’s Falun Gong practice in the United
States.
In essence, the IJ reasoned that Zhao could
not have a well-founded fear of future per-
secution because he seldom practices Falun
Gong publicly in New York. Zhao argues that
the IJ drew the wrong conclusions from the
record testimony and failed to consider other
testimony that supports his claim. Noting the
self-evident flaws in the IJ’s apparent infer-
ences, we agree.
With respect to the first element of the rea-
sonableness inquirySSwhether the applicant
possesses a belief or characteristic that a per-
secutor seeks to overcome by means of pun-
ishment of some sortSSthe government does
not dispute that Zhao is a Falun Gong practi-
tioner. The IJ explicitly notes that Falun Gong
fits within the statutory meaning of the word

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11
“religion.” In her mystifying analysis, the IJ in-
fers from Zhao’s infrequent public Falun Gong
participation that he no longer qualifies for
protection under the statute.
This reasoning is deeply flawed. Zhao’s
testimony establishes that his participation in
public Falun Gong activities was not an accu-
rate proxy for his actual fidelity 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 inquirySSwhether the People’s
Republic of China is already aware, or could
become aware, that the applicant possess this
belief or characteristicSSthe record also estab-
lishes that Zhao meets his burden. The record
is replete with uncontroverted testimony both
(1) that in his hometown, Zhao participated
publicly in Falun Gong activities and (2) that
the local authorities visited his house to look
for him on several occasions.
The government urges us not to connect
the various dots—(1) that Zhao was
videotaped partaking in a Falun Gong
demonstration; (2) that Falun Gong prac-
titioners are objects of Chinese government
persecution; (3) that Zhao’s master was
arrested; and (4) that the police visited Zhao’s
home looking for him. Although the original
record does not contain direct evidence that
the authorities were seeking out Zhao because
of his Falun Gong participation, that inference
is unavoidable in light of Zhao’s credited,
uncontroverted testimony. Moreover, Zhao
need not rely on the unauthenticated
documents to support the inference.
With respect to the third and fourth ele-
ments, the supplemental documentation estab-
lishes not only that the Chinese government
has the capability and inclination to punish Fal-
un Gong practitioners, but also that it has
already done so. Those facts require no fur-
ther 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 banned the
[Falun Gong] in 1999 and began a comprehen-
sive nationwide repression of the movement, the
practice of Falun Gong or possession of its
literature has been sufficient grounds for prac-
titioners to receive punishment ranging from
loss of employment and education opportunities
to imprisonment. Some Falun Gong members
have been tortured in custody and there have
been reports that several hundred or more Falun
Gong adherents have died in detention since
1999. Falun Gong members who “disrupt pub-
lic order” or distribute publications may be sen-
tenced to 3 to 7 years in prison . . . .
(Emphasis added.)
14 The 1999 Country Reports explain that in
July of that year the government of the People’s
Republic of China initiated a crackdown against
the movement, imprisoning thousands and beating
those who refused to recant their beliefs. The two
Houses of Congress unanimously passed a concur-
rent resolution condemning those actions. As dis-
cussed above, the 2002 Country Reports, which the
BIA should have re-opened the record to include,
make evident that the Chinese government em-
ployed these tactics against not only core leaders
but also mere practitioners.

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12
At oral argument the government took the
position that, although the Chinese govern-
ment may punish mere Falun Gong practitio-
ners (rather than leaders) administratively,
such penalties do not amount to persecution
within the meaning of the statute. First, the
2002 Country Reports reveal the govern-
ment’s contention at oral argument to be in-
consistent with the Attorney General’s assess-
ment that even lower level practitioners are
punished.15 Second, the government is reading
into the 1999 Country Reports a clean
distinction between leaders and mere practi-
tioners where, in fact, that distinction does not
exist. Third, the government cites no support
for this proposition, which flies in the face of
common sense when we consider that the “ad-
ministrative” penalties include severe fines,
imprisonment, and torture.
The BIA’s opinion seems to premise denial
on three major considerations: (1) that Zhao
now rarely practices Falunn Gong publicly;
(2) that he had no “direct contact with govern-
ment officials”; and (3) that he was able to
travel freely about the People’s Republic of
China for six months after the police expressed
interest in him. As we have said, the
frequency with which Zhao now practices Fal-
un Gong publicly bears no relationship to how
likely the Chinese government is to persecute
him on his potential return.
The BIA’s statement that Zhao did not
have direct contact with government officials
is equally delphic—the reason Zhao did not
come into direct contact with Chinese officials
is that he was evading them. Such lack of con-
tact may militate against a finding of past
persecution, but that is not the argument on
which Zhao’s application stands.
The IJ cites Zhao’s lack of contact with
government officials as though one can rea-
sonably infer that they were not looking for
him. The record, however, is replete with un-
controverted testimony that Zhao was fleeing
the authorities on discovering that they were
searching for him.
Finally, the characterization of Zhao as
“traveling” about the People’s Republic of
China for six months is misleading and borders
on being disingenuous. The record establishes
that for that entire period of time, Zhao was
either fleeing the authorities or hiding. Al-
though the record indicates that Zhao did
work while he was at his uncle’s construction
site, it is equally obvious that he was there
primarily to evade the authorities. The BIA
therefore abused its discretion in ruling that
Zhao did not have the well-founded fear of fu-
ture persecution necessary to sustain an asy-
lum claim.
IV.
An alien who fears persecution if returned
to a particular country has two potential
sources of relief under the INA: asylum and
withholding of removal. A grant of asylum
permits the alien to remain in this country; a
withholding of removal forbids his removal to
the persecuting country.16 A grant of asylum
is within the Attorney General’s discretion, but
restriction on removal is granted to qualified
aliens as a matter of right. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 424 (1987).
We grant Zhao’s asylum application, so we
need not consider the removal issue.17
15 See supra note 13 and part II.B.2.
16 See INA §§ 208 & 241(b)(3), codified at
8 U.S.C. §§ 1158, 1231(b)(3).
17 Because we resolve the case on other
grounds, we do not reach Zhao’s due process
(continued...)

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13
V.
The Attorney General enjoys significant dis-
cretion in making asylum determinations. That
authority, however, is not plenary. The IJ
credited all of Zhao’s testimony but interpreted
it in such a way that allowed her to rule
against him on gro unds of legal sufficiency.
The IJ’s summary of Zhao’s testimony consists
entirely of conclusory remarks, mischar-
acterizations of various events, and non-sequi-
ters.
The BIA rubber-stamped the IJ’s ruling and
then dismissed (in a single sentence), as re-
dundant, the detailed corroborating materials
Zhao submitted in his motion to reopen.
Zhao’s testimony, if true, is likely sufficient to
justify our decision to grant his petition and
overturn the BIA. Once we consider the doc-
umentation excluded in error, however, the de-
cision is an easy one. The Attorney General’s
discretion is not so broad so as to allow him to
reject asylum applications without a logical
explanation.
Ordinarily, upon allowing reopening of the
record, we would remand the persecution
question to the BIA. See INS v. Ventura, 537
U.S. 12, 16-17 (2002).18 The circumstances
here, however, differ from those appellate
courts generally confront in reviewing a mo-
tion to reopen. In Ventura, for example, the
BIA had not considered the changed country
conditions argument at all. See id. Here, to
the contrary, the Board has already rejected
the “changed country conditions” proposition,
so our ruling on the persecution issue does not
usurp the Board’s authority to rule on it first.19
Moreover, although the language in Ventura is
strong, it remains precatory. The Court could
have worded its holding categorically, and its
failure to do so must be a conscious decision.
We cautiously conclude that this case exhibits
the narrow set of circumstances that requires
no remand.20
17(...continued)
claims.
18 The specific language in Ventura is worth
noting:
Generally speaking, a court of appeals should
remand a case to an agency for decision of a
matter that statutes place primarily in agency
hands. This principle has obvious importance
in the immigration context. The BIA has not
yet considered the “changed circumstances”
issue. And every consideration that classically
(continued...)
18(...continued)
supports the law’s ordinary remand requirement
does so here. The Agency can bring its ex-
pertise to bear upon the matter; it can evaluate
the evidence; it can make an initial determina-
tion; and, in doing so, it can, through informed
discussion and analysis help a court later deter-
mine whether its decision exceeds the 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 insufficient cause to reopen, as
the respondent’s new evidence largely repeats the
extensive country condition information already in
the record.” The BIA had already determined that,
based on the record evidence sans supplemental
reports, Zhao had no well-founded fear of future
persecution.
20 We also note that in Ventura, 537 U.S. at 17-
18, the Court explicitly stated that the State De-
partment report on which the Ninth Circuit had
relied was equivocal with respect to the relevant
(continued...)

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14
The petition for review is GRANTED, and
the order of the BIA is REVERSED. This
matter is remanded to the BIA for any further
necessary proceedings in accordance with this
opinion.
ENDRECORD
20(...continued)
country conditions. Similar equivocation is absent
in the State Department and Religious Freedom
reports that constitute Zhao’s evidence of “changed
country conditions” for Falun Gong in the People’s
Republic of China.

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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.

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