JOSÉ A. CABRANES, Circuit Judge.
The case before us involves a claim of entitlement to asylum by petitioner Tian-Yong Chen, who alleges that he suffered persecution by the People's Republic of China on the basis of his Roman Catholic faith and that he would suffer renewed religious persecution if he were returned to China. In a June 15, 2000 decision, the Board of Immigration Appeals ("BIA") dismissed Chen's appeal from the order of an immigration judge ("IJ"), which denied Chen's application for asylum and for withholding of removal and ordered him deported from the United States if he failed voluntarily to depart. The BIA agreed with the IJ that Chen failed to establish either past persecution on account of his religious beliefs or a well-founded fear of similar persecution in the future if he returned to China. Chen petitions this Court for review of the BIA's decision.
Because both the BIA and the IJ overlooked potentially significant evidence supporting Chen's application for asylum and withholding of deportation, we grant the petition for review, vacate the decision, and remand the case to the BIA, with instructions to remand further to the IJ for further proceedings consistent with this opinion.
Chen illegally entered the United States on or about February 11, 1996, and subsequently filed an application for asylum and withholding of deportation on the grounds that he had been persecuted in China on the basis of his religion, Roman Catholicism, and that he would be arrested and persecuted if he returned to China. We summarize below Chen's declaration of facts asserted in his application.
Chen grew up in a Roman Catholic family in Changle county of the Fujian province of China. In early 1994, his uncle led a campaign to build, in Chen's home village, a Roman Catholic church that would be loyal to the Vatican and the Pope, unlike the government-sanctioned Patriotic Catholic Church that is by design and purpose independent of the Vatican. The uncle was guided in this effort by a Chinese Roman Catholic priest from overseas and a pro-Vatican retired priest of the Patriotic Catholic Church. Chen and a cousin solicited donations from neighbors
According to Chen, the church was completed in early 1995, at which point he compiled a "simple pamphlet about the life of Christ and the necessity to be loyal to the Pope" that he and his cousin distributed among Catholics in their village, including members of the Patriotic Catholic Church. Chen then learned of an investigation into the pamphlets, which led to a village meeting at which a police officer "encouraged villagers to turn the distributors in." Fearing danger, Chen and his cousin went into hiding in the uncle's house. Chen then learned that the police were looking for him and that his own house had been searched. At that point, Chen left China.
Chen's deportation hearing was held on April 29, 1997, almost seven years ago. Chen, the sole witness, testified in detail regarding the events set forth in his application. Chen testified that he, along with his Roman Catholic family and approximately seventy to eighty other villagers, attended the local Patriotic Catholic Church. He stated that about forty of those members, like Chen's family, also subscribed to Roman Catholicism. Chen elaborated on his uncle's plan to build a Roman Catholic Church in Chen's village and his own efforts to solicit donations for the church, and he described his arrest and detention in March 1994. Chen testified that, when he told the authorities that he had not done anything wrong, police officers "scolded" him and "then, they used their hands to beat [him] and [sic] as they were punishing [him.]."
Chen further testified that, upon his release, he continued to solicit donations for the church. He testified that the church was completed in 1995, and it was identified by a sign stating "Fin Chen Village Roman Catholic Church." Chen elaborated on his efforts to create and distribute a pamphlet describing the tenets of Roman Catholicism, and he explained in greater detail the investigation into the distribution of the pamphlet. He testified that, upon the advice of the church priest and friends, he left the village and went to his uncle's house in the city of Fuzhou. According to Chen, he then called home and learned that the police had visited his house and had summoned him to appear before the authorities, and, as a result, he decided to leave China.
On cross-examination, the Immigration and Naturalization Service ("INS") attorney questioned Chen about the various events to which he had testified. With respect to Chen's testimony regarding his detention in March 1994, the INS attorney asked Chen what he did during that week. Chen responded that "every now and then whenever they were free, they would get me out into the office and ask me questions like who's behind organizing this? Who — who — who backed you up? And they used also some words to scold me."
At the hearing, the IJ received into evidence certain materials submitted by Chen, including a December 11, 1995 United States Department of State report on asylum entitled "China — Country Conditions and Comments on Asylum Applications" (the "Report"). The Report, produced and updated "as appropriate" by the State Department's Office of Asylum Affairs, describes its purpose as
Report at 2.
In a section entitled "Claims Based on Religion," the Report states that "[a] growing number of [asylum] cases from China, especially from the Fuzhou area in Fujian Province, claim persecution on account of religion" and that most of these applications are "by claimed members of the unsanctioned Christian churches in China." Id. at 28. The Report explains that, in the 1950s, the Chinese government established an "official" Catholic Church — the Patriotic Catholic Church — to operate independently from the Vatican, and that no other Catholic establishment has authority to operate openly. Id. The Report further explains that the Chinese government established the Patriotic Catholic Church and other Christian organizations "to curb perceived foreign domination of Christian groups," id., and it notes that "central policy is to cajole or force all groups to join official `patriotic religious organizations' for control purposes," id. at 27.
The Report indicates that "[s]poradic repression in some areas has reflected official concern over the [g]overnment's inability to control the rapid growth of membership in [unsanctioned] Christian groups." Id. at 29. It further states that "[i]n general, individual worshippers are not harassed by the regime" and that the regime "target[s] leaders," including priests, "particularly those who maintain connections with Rome." Id. The Report also indicates that "authorities are sensitive to proselytizing," id., and that, "although some discreet proselytizing and distributing of religious texts outside official channels is tolerated," the government does "proscribe and sometimes punish" religious proselytizing, id. at 27.
The Report states that many Chinese are members of unsanctioned churches and that the number of unsanctioned-church members "clearly surpasses the number of members of `sanctioned' churches." Id. at 28. The Chinese government is reported to "generally tolerate the existence and activities of the unsanctioned churches, as long as services are small and there is no higher-level organizing." Id. The Report refers to an October 3, 1995 article in The New York Times for a report of "relaxed restrictions on Christian worship in Changle county." Id. at 30 n. *.
The Report also refers to the China chapter in the State Department's 1994 Country Reports
At the hearing's conclusion, the IJ rendered an oral decision denying Chen's application for asylum and withholding of deportation. The IJ summarized the events as Chen had described them in his application and testimony, including Chen's claim that he had been "interrogated about his activities" when he was detained in March 1994, but the IJ did not mention Chen's claim that he had been beaten. The IJ stated that Chen's "rendition of his situation in his native land failed to demonstrate any reasonable possibility that he would be harmed or threatened if returned to the People's Republic of China at this time." Concluding that Chen had not established past persecution or a well-founded fear of future persecution, the IJ denied Chen's application, while granting Chen's alternative request for voluntary departure.
On appeal by Chen, the BIA reviewed the record and issued a decision on June 15, 2000 upholding the IJ's decision. In re Chen, No. A74 588 462, slip op. (BIA June 15, 2000). The BIA concluded that Chen's arrest and detention were insufficient to constitute past persecution. In a footnote to its analysis of past persecution, the BIA remarked that "[a]lthough Chen's counsel in his brief states that [Chen] was beaten by Chinese officials during this detention, the record reflects that [Chen] did not testify that he was beaten, but did testify that he was interrogated." Id. at 3 n. 1. Proceeding from its determination on past persecution, the BIA further concluded that Chen failed to establish a well-founded fear of future persecution, finding insufficient evidence in the record "to demonstrate that anyone in China has the present inclination to persecute [Chen]." Id. at 3. In support of this conclusion, the BIA cited the Report for its observations that the Chinese government "principally target[s] leaders" and "tolerates the existence and activities of the unsanctioned churches, as long as services are small and there is no higher-level organizing." Report at 28-29.
Chen filed a motion for reconsideration, which the BIA denied. Chen then timely appealed to this Court the BIA's decision affirming the IJ's order denying his application.
On appeal, Chen broadly contends that substantial evidence does not support the BIA's decision, because the BIA improperly weighed the evidence. Chen also argues more specifically that the BIA's decision cannot stand because the BIA erroneously ignored Chen's testimony that he had been beaten when he was detained by local authorities. The INS acknowledges that the BIA erred in stating that Chen did not testify that he had been beaten, but it argues that, even with the consideration of that evidence, the BIA would have reached the same conclusion and thus its decision should be affirmed.
In order to demonstrate eligibility for asylum, Chen bears the burden of establishing that he is unable or unwilling to return to China because he experienced past persecution or has a well-founded fear of persecution on account of his religion. 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A); see also Diallo v. INS, 232 F.3d 279, 284 (2d Cir.2000). "An alien's fear [of future persecution] may be well-founded even if there is only a slight, though discernible, chance of persecution." See Diallo, 232 F.3d at 284. If an applicant establishes that he has suffered past persecution, he shall be presumed to have a well-founded
In contrast, in order to determine eligibility for withholding of deportation, Chen bears the greater burden of establishing that his "life or freedom would be threatened in [China] because of [his] ... religion." 8 U.S.C. § 1231(b)(3)(A). Because of this greater burden, an inability to establish eligibility for asylum necessarily precludes ability to establish eligibility for withholding of deportation. See Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999). However, unlike the Attorney General's discretion with regard to an application for asylum, if the showing for withholding of deportation is made, no discretion lies with the Attorney General; the application for withholding must be granted. Id.
On appeal from a decision of the BIA, we must uphold the BIA's determination if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4) (repealed 1996); see Diallo, 232 F.3d at 287.
The Decisions of the IJ and the BIA
What is troubling about this case is the undisputed failure by the IJ and the BIA (jointly and severally, the "immigration court") to acknowledge, much less evaluate, Chen's testimony that he had been beaten. At his deportation hearing, Chen specifically stated that the police "used their hands to beat [him]." A review of the BIA's decision reveals no consideration of that testimony. Indeed, not only did the BIA, in denying Chen's application, fail to mention Chen's testimony on being beaten, but the BIA also stated — explicitly but erroneously — that Chen had not testified to being beaten. The IJ likewise failed to mention Chen's testimony on being beaten, acknowledging, as did the BIA, only Chen's claim that he had been interrogated.
In Alvarado-Carillo v. INS, 251 F.3d 44, 50 (2d Cir.2001), we granted a petition for review, vacated the BIA's decision, and remanded where the decision, denying an application for asylum and withholding of deportation, "suffer[ed]" from "serious flaws," including a "patently erroneous" statement by the BIA in its summary of the applicant's testimony and other evidence. The BIA found implausible the petitioner's claim that he had been persecuted for eleven years. We described this finding as a "fundamental flaw" in the
Here, as in Alvarado-Carillo, the IJ and the BIA made a fundamental error in ignoring a significant aspect of Chen's testimony in support of his claims of past persecution and future persecution. The IJ erred in overlooking Chen's testimony that he had been beaten, and the BIA perpetuated and compounded that flaw by not only ignoring the testimony but also flatly asserting that no such testimony existed in the record. These errors cannot be viewed as inconsequential, for we agree with the Seventh Circuit that "persecution" in the asylum context means that, although "the conduct must rise above mere harassment," the term includes "more than threats to life or freedom; non-life[-]threatening violence and physical abuse also fall within this category." Begzatowski v. INS, 278 F.3d 665, 669 (7th Cir.2002) (internal quotation marks omitted); see also Liao v. U.S. Dep't of Justice, 293 F.3d 61, 67 (2d Cir.2002) (noting that "[v]arious types of conduct constitute persecution"). Accordingly, physical harm inflicted on an applicant on account of his religious beliefs is a circumstance relevant to establishing past persecution, and such harm is also relevant to establishing a well-founded fear of future persecution. Indeed, the BIA itself implicitly recognized the relevance of physical violence when it (erroneously) observed an absence of any testimony on being beaten.
Because the BIA did not consider Chen's testimony that he had been beaten, its decision is fatally flawed and we are unable adequately to consider whether substantial evidence supports the BIA's determination that Chen failed to establish either past persecution or a well-founded fear of future persecution. See Alvarado-Carillo, 251 F.3d at 50-51; see also Georgis v. Ashcroft, 328 F.3d 962, 968 (7th Cir.2003) ("While our review of the IJ's credibility determinations is highly deferential, we will not automatically yield to the IJ's conclusions when they are drawn from insufficient or incomplete evidence." (internal citation omitted)); Palavra v. INS, 287 F.3d 690, 692 (8th Cir.2002) (vacating and remand where "significant parts of the record were not considered" by the BIA); Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir.1999) (noting that, with the BIA's erroneous interpretation of certain evidence, "[i]t is impossible to be confident that [the applicant's] claim has been fully understood or analyzed"); Cordero-Trejo v. INS, 40 F.3d 482, 492 (1st Cir.1994) (concluding that the BIA's decision "cannot stand," given the BIA's failure to address evidence that was "far too extensive and significant to be dismissed").
The INS, however, urges us nevertheless to deny Chen's petition for review on the ground that the BIA "would have reached the same conclusion" even if it had not overlooked Chen's testimony that he had been beaten (Appellee's Br. at 27 n.*). To make this argument, the INS directs us
We disagree. In view of the BIA's conclusion that Chen's detention, as the BIA apparently (mis-)understood it, did not establish past persecution, it is unremarkable that the BIA accurately described the circumstances of other cases that likewise determined that the applicant had failed to demonstrate past persecution. The citations do not assure us that the BIA, had it been aware of all of Chen's testimony, would have relied on those cases for the different conclusion that Chen's beating was insufficient to establish either past persecution or a fear of future persecution.
Indeed, since the BIA expressly (and erroneously) noted an absence of testimony that Chen was beaten in explaining the rejection of his claim of past persecution, it is a fair inference that the BIA might have regarded a beating as significant. Similarly, had the BIA noted Chen's testimony that he had been beaten, the BIA could have determined that future beating is possible and it may have weighed differently the likelihood that Chen would suffer persecution if he were to return to China and the reasonableness of his fear of future persecution.
Because the BIA's conclusion was predicated on its mistaken belief that the record contained no evidence of any beating, its analysis cannot be regarded as based on the evidence of record, and we are deprived of the ability adequately to review the BIA's denial of Chen's applications for asylum and withholding of deportation. The appropriate course of action is to grant the petition for review, vacate the decision, and remand the case, without passing on the sufficiency of Chen's evidence in support of his application. See Alvarado-Carillo, 251 F.3d at 46 ("[W]e vacate the decision but, mindful of the deference generally granted to the BIA, we remand to permit the BIA to reevaluate petitioner's claim in light of this opinion."). And because the IJ also erroneously ignored Chen's testimony that he had been beaten, we instruct the BIA, on remand, to further remand to the IJ. Finally, in light of the considerable passage of time since Chen's original hearing, in which Chen asserted the circumstance overlooked by the immigration court on which we base remand, we conclude that, on remand before the IJ, a new hearing on Chen's application is warranted. See Qiu v. Ashcroft, 329 F.3d 140, 154-57 (2d Cir.2003) (vacating the BIA's decision, due to errors in its analysis, and remanding with instructions to further remand to an IJ for a new hearing, noting, among other things,
Instructions on Remand
The immigration court on remand will be obligated to consider whether the particular circumstances asserted by Chen establish eligibility for asylum or withholding of deportation. We believe that, in considering those questions, the immigration court should be careful not to place excessive reliance on published reports of the Department of State such as the one received into evidence in the instant case. Such State Department reports are usually the result of estimable expertise and earnestness of purpose, and they often provide a useful and informative overview of conditions in the applicant's home country. But their observations do not automatically discredit contrary evidence presented by the applicant, and they are not binding on the immigration court. See Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir.1997) (emphasizing that State Department reports are "not binding, either on the [immigration] service or on the courts"); see also Gailius v. INS, 147 F.3d 34, 46 (1st Cir.1998) ("Even as to general country conditions, `[t]he advice of the State Department is not binding....'" (quoting Gramatikov, 128 F.3d at 620)). Thus, where a report suggests that, in general, an individual in the applicant's circumstances would not suffer or reasonably fear persecution in a particular country, the immigration court may consider that evidence, but it is obligated to consider also any contrary or countervailing evidence with which it is presented, as well as the particular circumstances of the applicant's case demonstrated by testimony and other evidence.
In addition, the immigration court cannot assume that a report produced by the State Department — an agency of the Executive Branch of Government that is necessarily bound to be concerned to avoid abrading relations with other countries, especially other major world powers — presents the most accurate picture of human rights in the country at issue. We note the widely held view that the State Department's reports are sometimes skewed toward the governing administration's foreign-policy goals and concerns. See, e.g., David Sloss, Hard-Nosed Idealism and U.S. Human Rights Policy, 46 St. Louis U. L.J. 431, 432 (2002) (observing that, prior to 1998, "the country reports frequently contained half-truths about human rights abuses in friendly countries" so as to "avoid damaging our relationships with those countries"); see also Gramatikov, 128 F.3d at 620 ("[T]here is perennial concern that the Department soft-pedals human rights violations by countries that the United States wants to have good relations with.").
The Report received into evidence in this case suggests that the Chinese government, in its efforts to control religious practices in the mid-1990s, focused on "leaders" of unsanctioned churches. Report at 29. The Report, however, qualifies its observations by noting that this was the "general" approach of the Chinese government and that the government sometimes engaged in "[s]poradic repression in some areas," and the Report acknowledges that "the authorities are sensitive to proselytizing." Id. Moreover, the observation that the government's control efforts were focused on church leaders does not undercut Chen's claims that he suffered past persecution and reasonably fears future persecution. Chen's testimony, if believed, establishes that he participated to a greater degree than an ordinary layperson by soliciting donations and distributing unauthorized religious pamphlets, and that the authorities targeted him for these activities. It is possible that someone in Chen's position
We note further that on remand Chen will be entitled to relief if he shows a well-founded fear of persecution upon return to China. The Report, produced in 1995, no longer necessarily reflects the current attitudes and responses of the Chinese authorities toward the practice of Roman Catholicism — the situation to which Chen
For the foregoing reasons, we conclude that the BIA did not adequately consider Chen's application for asylum and withholding. Because of the BIA's error, we cannot accept its determination that Chen has failed to establish past persecution or a fear of future persecution. Accordingly, we grant Chen's petition for review, vacate the BIA's decision, and remand the case for further proceedings consistent with this opinion.